Session v. Carson et al

Filing 349

ORDER by Chief Judge Philip A. Brimmer on 7/15/2022, re: 285 the Order and Recommendation of United States Magistrate Judge Kristen L. Mix is ACCEPTED. ORDERED that Plaintiff's Motion in Opposition to Order and Recommendation 285 by the United States Magistrate Judge 300 , construed as an objection, is OVERRULED. ORDERED that plaintiff's claim against defendant Timothy Brown is DISMISSED without prejudice. ORDERED that defendant Timothy Brown is DISMISSED. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 18-cv-00239-PAB-KLM
FRANKY L. SESSION,
Plaintiff,
v.
VANESSA CARSON, Health Service Administrator,
LINDSEY E. FISH, Medical Doctor,
TEDDY L. LAURENCE, Physician Assistant,
TEJINDER SINGH, Physician Assistant,
ROBERT L. MANGUSO, Medical Doctor,
TIMOTHY R. BROWN, Medical Doctor, and
CORRECTIONAL HEALTH PARTNERS, Insurer, and
DOE 1, Correctional Officer,
Defendants.

ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION

This matter is before the Court on the Order and Recommendation of United
States Magistrate Judge Kristen L. Mix (“the recommendation”) filed on November 3,
2020 [Docket No. 285]. Magistrate Judge Mix recommends that the Court deny
plaintiff’s Motion Requesting Both Subpoena Duces Tecum to Be Served by Officers of
the Court [Docket No. 280] (the “motion”) and dismiss defendant Timothy Brown
(“Brown”) from the case. Docket No. 285. Plaintiff filed a “motion in opposition” to the
recommendation, which the Court construes as a written objection. Docket No. 300.
The Court will “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is proper if it
is timely and specific enough to enable the Court “to focus attention on those issues –

factual and legal – that are at the heart of the parties’ dispute.” United States v. 2121
East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996). In light of plaintiff’s pro se status,
the Court reviews his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).
I.

BACKGROUND
Plaintiff was a prisoner in the custody of the Colorado Department of Corrections

(“CDOC”).1 Plaintiff initiated this lawsuit on January 30, 2018. Docket No. 1. The
second amended complaint (“SAC”) was filed on August 23, 2018. Docket No. 38.
Despite the age of the action, plaintiff has been unable to serve Brown.
On September 28, 2018, a waiver of service was returned executed as to
defendants Teddy Laurence (“Laurence”), Robert Manguso (“Manguso”), and Vanessa
Carson (“Carson”), but stated that Tejinder Singh (“Singh”) and Brown were not CDOC
employees and thus CDOC could not waive service on their behalf. Docket No. 43. On
November 21, 2018, plaintiff filed a motion requesting that the United States Marshals
Service (“USMS”) serve Brown at Surgery Specialist of Fremont County, 933A Sell
Avenue, Cañon City, Colorado, 81212. Docket No. 64 at 2. On December 18, 2018,
the magistrate judge granted the motion and directed service of Brown at the address
provided by plaintiff. Docket No. 87 at 2. On May 7, 2019, the summons was returned
unexecuted, with notations that “[t]he business at this address has closed” and that
“[t]he current whereabout of Timothy Brown [is] unknown.” Docket No. 142 at 2.

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The Court discusses only the facts relevant to the resolution of plaintiff’s
objections.
2

On May 9, 2019, the magistrate judge ordered plaintiff to show cause why the
magistrate judge should not recommend dismissal of the case against Brown pursuant
to Fed. R. Civ. P. 4(m) for failure to provide an address at which to effect service on
Brown. Docket No. 147 at 4-5. On August 19, 2019, plaintiff responded to the order to
show cause with two “possible” addresses for Brown. Docket No. 177 at 6 (emphasis
in original). One was a post office box and one was an address in Troy, Missouri. Id.
Because Fed. R. Civ. P. 4(e)(2) and Colo. R. Civ. P. 4(e) do not permit service by
mailing to or leaving documents at a post office box, on November 13, 2019 the
magistrate judge directed the USMS to attempt to serve Brown “one last time” at the
Troy, Missouri address. Docket No. 208 at 5.
Service was effectuated on a Timothy Brown in Troy, Missouri on January 28,
2020, but, for unknown reasons, the return of service was not docketed until July 2,
2020. Docket No. 244. Based on subsequent information, the magistrate judge
concluded that the Timothy Brown served in Troy, Missouri was not the Timothy Brown
named in this lawsuit. Docket No. 278 at 3. On August 10, 2020, plaintiff filed a motion
for an extension of time to serve Brown and stated that he could only obtain the correct
service information by serving subpoenas duces tecum on third parties Physician Health
Partners (“PHP”) and the Colorado Department of Records (“DORA”). Docket No. 257
at 2. On October 9, 2020, the magistrate judge granted plaintiff’s motion to the extent
she ordered him to complete two subpoenas duces tecum and submit them to the Court
along with a motion seeking service by the USMS. Docket No. 278 at 5.
The Court docketed a motion seeking service of the subpoenas duces tecum on
October 29, 2020. Docket No. 280. On October 30, 2020, defendants Carson,
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Laurence, and Manguso filed a response opposing issuance of the subpoena duces
tecum to DORA by noting that DORA has a publicly available “License Lookup” tool that
listed the 933A Sell Avenue, Canon City, Colorado 81212 address at which service of
Brown had already been attempted. Docket No. 283 at 1-2. Also on October 30, 2020,
defendant Correctional Health Partners (“CHP”) filed a response stating that it had
contacted PHP and that neither PHP nor CHP had an address for Brown. Docket No.
282 at 2. Based on this information, the magistrate judge concluded that the subpoenas
duces tecum would be an undue burden on DORA and PHP and denied plaintiff’s
motion to issue the subpoenas duces tecum. Docket No. 285 at 5-6. The magistrate
judge then recommended that, because plaintiff had not provided an address at which
to serve Brown, the Court dismiss Brown from the lawsuit without prejudice pursuant to
Fed. R. Civ. P. 41(b) for failure to prosecute. Id. at 6. On January 14, 2021, plaintiff
filed a motion in opposition to the magistrate judge’s recommendation. Docket No. 300.
II. ANALYSIS
A. Timeliness
The Tenth Circuit has held that “objections to [a] magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo
review by the district court.” 2121 East 30th St., 73 F.3d at 1060. The magistrate
judge’s recommendation was filed on November 3, 2020, making any objection due on
November 20, 2020.2 Docket No. 285 at 11. Plaintiff filed a motion for a forty-five day
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Under Fed. R. Civ. P. 5(b)(2)(C), when service of a paper is by mail, service is
completed upon mailing. When a party must act within a specified time after being
served and service is made by mail, three days are added after the period would
otherwise expire. Fed. R. Civ. P. 6(d). However, this additional three days for the initial
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extension of time, which the Court granted in part, making his objections due on or
before December 11, 2020. Docket No. 289. Plaintiff filed another motion for a fortyfive day extension of time, which the Court again granted in part. Docket No. 294. The
Court ordered plaintiff’s objections due on or before January 1, 2021, and advised
plaintiff that “the Court will not grant any additional extensions of time.” Id. Plaintiff filed
both a “Motion in Opposition” to the recommendation, Docket No. 300, and a
“Declaration . . . In Support of Motion in Opposition.” Docket No. 296. The Court
docketed the declaration on January 7, 2021 and the motion in opposition, which the
Court will construe as an objection, on January 14, 2021. Docket Nos. 296, 300.
Plaintiff’s objections were filed after January 1, 2021, and are thus untimely
unless they were mailed in compliance with the prison mailbox rule. The prison mailbox
rule states that a document is considered timely if given to prison officials prior to the
filing deadline, regardless of when the Court receives the documents. Price v. Philpot,
420 F.3d 1158, 1164-67 (10th Cir. 2005); see also Green v. Snyder, 525 F. App’x. 726,
729 (10th Cir. 2013) (unpublished) (finding objections untimely where the prisoner's
certificate of mailing did not comply with the prison mailbox rule). To gain the benefit of
the prison mailbox rule, a party must either (1) use the legal mail system or (2) attach a
notarized statement or a declaration compliant with 28 U.S.C. § 1746 stating the date
the filing was given to prison officials and stating that the filing had pre-paid, first-class
postage. Philpot, 420 F.3d at 1166.

objection period is immaterial because the Court granted plaintiff two extensions of time
and ordered any objections due on a specific date. See Docket Nos. 289, 294.
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The declaration is dated December 10, 2020; however, the envelope is marked
as being received by the Colorado Territorial Correctional Facility, the prison where
plaintiff is incarcerated, on January 4, 2021. Docket No. 296 at 4-5. The envelope is
postmarked January 5, 2021. Id. at 5. Plaintiff’s objection is dated January 3, 2021.
Docket No. 300 at 10. Therefore, both the declaration and objection were given to
prison officials after the January 1, 2021 deadline, and are thus untimely.
B. Firm Waiver Rule
The Tenth Circuit has “adopted a firm waiver rule when a party fails to object to
the findings and recommendations of the magistrate.” Duffield v. Jackson, 545 F.3d
1234, 1237 (10th Cir. 2008). “The failure to timely object to a magistrate’s
recommendations waives appellate review of both factual and legal questions.” Id.
However, “the firm waiver rule does not apply (1) when a pro se litigant was not notified
‘of the time period for objecting and the consequences of failing to object,’ (2) ‘when the
interests of justice warrant,’ or (3) when the party that failed to object ‘makes the
onerous showing required to demonstrate plain error.’” Schupper v. Cafasso, 708 F.
App’x 943, 946 (10th Cir. 2017) (unpublished) (quoting Wardell v. Duncan, 470 F.3d
954, 958 (10th Cir. 2006)). The Court next considers whether to not apply the firm
waiver rule under this standard.
1. Notification of Time Period to Object
The recommendation advised plaintiff of the deadline to respond and informed
plaintiff that a failure to timely object would waive de novo review of the
recommendation. Docket No. 285 at 11. The Court granted plaintiff two extensions of
time and advised him that it would not grant another. Docket Nos. 289, 294. Thus,
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because plaintiff was advised of the consequences of filing his objections late, the first
exception to the firm waiver rule does not apply so as to require de novo review.
2. Interests of Justice
When considering whether the interests of justice warrant review, the Tenth
Circuit considers “a pro se litigant’s effort to comply, the force and plausibility of the
explanation for his failure to comply, and the importance of the issues raised.”
Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1120 (10th Cir. 2005). Plaintiff does not
explain what caused the delay in filing his objection, detail his efforts to comply with the
objection deadline, or request an additional extension of time to object to the magistrate
judge’s recommendation. See generally Docket Nos. 296, 300. It appears that plaintiff
wrote his declaration on December 10, 2020, but did not mail it until the deadline had
passed. See Docket No. 296 at 4-5. Therefore, the first two considerations weigh in
favor of the firm waiver rule.
The Tenth Circuit has noted that “[i]n many respects, the interests of justice
analysis we have developed, which expressly includes review of a litigant’s
unobjected-to substantive claims on the merits, is similar to reviewing for plain error.”
Duffield, 545 F.3d at 1238 (quoting Morales-Fernandez, 418 F.3d at 1120). Therefore,
the Court will consider the importance of the issues raised in the context of determining
whether the magistrate judge committed plain error. See Craighead v. Bear, 717 F.
App’x 815, 819 (10th Cir. 2017) (unpublished) (noting that the “importance of the issue
raised” is determined by an analysis similar to plain error review).

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3. Plain Error
“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects
substantial rights, and which (4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Morales-Fernandez, 418 F.3d at 1122-23 (quotation
omitted). “To be plain, the error must be clear or obvious under current, well-settled law
of either the Supreme Court or [the Tenth Circuit].” Fed. Deposit Ins. Corp. v. Kan.
Bankers Sur. Co., 840 F.3d 1167, 1172 (10th Cir. 2016).
Plaintiff’s motion requests that the Court issue subpoenas duces tecum to DORA
and PHP. Docket No. 280 at 1. Plaintiff objects to the magistrate judge’s
recommendation on the following grounds: (1) the magistrate judge’s factual recitation
was incomplete, (2) plaintiff has demonstrated a clear, non-discretionary right to the
issuance of the subpoenas, and (3) defendant Brown should not be dismissed from the
lawsuit.
a. Factual Background
Plaintiff argues that the factual recitation in the recommendation was incomplete
because (i) defendants waived the right to object to issuance of the subpoenas by not
responding to plaintiff’s earlier motion for extension of time to effectuate service, and (ii)
plaintiff requested early discovery from the CDOC and Surgery Specialist of Fremont
County. Docket No. 300 at 3. Plaintiff argues that because he filed a motion for an
extension of time to serve Brown and defendants did not respond to this motion, they
waived the right to respond to a later motion. Id. Plaintiff filed a motion for an extension
of time in which to serve Brown, which stated that he would only be able to obtain the
correct service information by serving subpoenas duces tecum on the non-parties PHP
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and DORA. Docket No. 257 at 2. Defendants did not respond to this motion and the
magistrate judge granted it, ordering the Clerk of Court to mail two signed but otherwise
blank subpoenas to plaintiff and ordering plaintiff to complete the blank subpoenas and
file them “along with a motion seeking service by the United States Marshals Service.”
Docket No. 278 at 4.
Defendants CHP, Carson, Laurence, and Manguso filed responses to plaintiff’s
subsequently filed motion seeking service by the USMS, wherein they argued that the
DORA website provided an address for Brown that the USMS had already attempted to
effectuate service at, Docket No. 283 at 1-2, and CHP had contacted PHP and that
neither CHP nor PHP had a personal address for Brown. Docket No. 282 at 2.
The Court finds that the magistrate judge’s consideration of these responses was
not plain error. The magistrate judge specifically instructed plaintiff to file a motion
seeking service by the USMS, and defendants were permitted to respond to the
motion.3 See D.C.COLO.LCivR 7.1(d) (responding party has 21 days after service of a
motion to file a response). Therefore, the Court will overrule this objection.
b. Right to Issuance of Subpoena
Plaintiff argues that the magistrate judge committed error by entering a
recommendation on his motion before permitting him the time to file a reply. Docket No.
300 at 5. Under D.C.COLO.LCivR 7.1(d), while a moving party may file a reply within
14 days of a response to a motion, “[n]othing in this rule precludes a judicial officer from
3

Plaintiff also states that he requested early discovery from CDOC and Surgery
Specialist of Fremont County LLC for Brown’s address and the magistrate judge denied
this motion. Docket No. 300 at 3. Plaintiff does not explain how omitting this from the
magistrate judge’s recitation of the factual history of the case caused any error.
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ruling on a motion at any time after it is filed.” Plaintiff further rehashes his objection
that defendants waived the right to object to service of the subpoenas, Docket No. 300
at 5, which the Court has overruled. Therefore, the Court overrules plaintiff’s objection
that the magistrate judge erred by entering a recommendation before plaintiff filed a
reply.
Plaintiff argues that he has a clear, non-discretionary right to the issuance of the
subpoenas under Fed. R. Civ. P. 45. Id. Plaintiff objects that the requested home
address would be listed on Brown’s “medical license application” and “credentialing
application packet,” and the Colorado Attorney General’s Office would have known that
DORA possesses this information. Id. at 7. While plaintiff contends that DORA would
have an address for Brown, he presents no evidence for this, id., and, as the magistrate
judge noted, “there is no indication that a subpoena duces tecum issued to DORA
would provide any additional information.” Docket No. 285 at 5. Even if the Court found
the magistrate judge’s decision to deny the subpoena to be in error, it was not “plain”
and did not “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Morales-Fernandez, 418 F.3d at 1122-23. Therefore, the Court
overrules this objection.
Plaintiff additionally argues that CHP shares a network with CDOC that lists
Brown’s address, and states that this address is 1335 Phay Avenue, Suite D, Cañon
City, Colorado 81212. Docket No. 300 at 7. Plaintiff does not argue that CDOC has
any other addresses for Brown. See id. Therefore, the issuance of a subpoena to
CDOC, when plaintiff states that he now possesses the address that CDOC has for

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Brown, would be futile. The Court overrules this objection as moot.4 Therefore, the
Court will accept the recommendation of the magistrate judge and deny plaintiff’s
motion requesting service of the subpoenas by the USMS.
c. Dismissal of Brown
The magistrate judge recommends that the Court dismiss Brown without
prejudice from this lawsuit due to failure to prosecute pursuant to Fed. R. Civ. P. 41(b).
Docket No. 285 at 7. However, because plaintiff’s claim against Brown may be barred
by the statute of limitations, a dismissal without prejudice may have the same effect as
a dismissal with prejudice. Id. Under Rule 41(b), a court may sua sponte dismiss a
case for failure to prosecute. Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151
(10th Cir. 2007). In recommending dismissal of Brown, the magistrate judge
considered:
(1) the degree of actual prejudice to the defendant[s]; (2) the amount of
interference with the judicial process; . . . (3) the culpability of the litigant;
(4) whether the court warned the party in advance that dismissal of the
action would be a likely sanction for noncompliance; and (5) the efficacy
of lesser sanctions.
Docket No. 285 at 7 (quoting Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.
1992)).

4

In his objection, Docket No. 300 at 8, plaintiff also asks the Court, in the
alternative, to grant his Motion Requesting USMS to Effect Service of Process on
Timothy Roland Brown and Request Contact Information. Docket No. 301. The
magistrate judge denied that motion, Docket No. 308, which plaintiff filed the same day
as his objection, in light of her recommendation to dismiss Brown. Plaintiff did not
object to that ruling, which is dispositive of plaintiff’s request here. The Court therefore
rejects this alternative ground.
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Plaintiff argues that dismissal is inappropriate because (1) defendants were not
prejudiced, (2) the magistrate judge did not adequately consider the difficulties in
locating an address for Brown when determining that the effective administration of
justice weighed in favor of dismissal, (3) plaintiff has now located an address for Brown
and should be granted “one last opportunity to serve him,” and (4) the magistrate
judge’s statement that plaintiff was warned multiple times that the failure to effectuate
service would lead to dismissal of Brown is misleading because the magistrate judge
granted plaintiff an extension to serve Brown. Docket No. 300 at 8-10.
None of these arguments demonstrate plain error in the magistrate judge’s
recommendation. Plaintiff argues that any prejudice to defendants was “self-inflicted”
because CDOC told the USMS that CDOC did not have an address for Brown when
CDOC in fact had one. Docket No. 300 at 8-9. CHP states that neither CHP nor PHP
possess a personal address for Brown. Docket No. 282 at 2. As plaintiff notes, CDOC
is a non-party, Docket No. 300 at 8, and the magistrate judge has already denied
plaintiff’s request for discovery from CDOC on Brown’s address because the magistrate
judge was unaware of any authority to require a non-party to produce an address solely
so a plaintiff could effectuate service and because CDOC already voluntarily provided
the information it possessed about Brown. Docket No. 147 at 4. Therefore, the Court
finds no error in the magistrate judge’s conclusion that defendants have been
prejudiced by plaintiff’s failure to effectuate service on Brown.
Plaintiff argues that the delay has not interfered with the prompt administration of
justice, but raises no specific argument that would support finding plain error in the
magistrate judge’s conclusion to the contrary. See Docket No. 300 at 9. Similarly,
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plaintiff argues that the magistrate judge did not properly consider the difficulties an
incarcerated person has effectuating service, see id., but the magistrate judge clearly
considered the multiple attempts plaintiff had made to supply a correct address for
Brown and the Court finds no plain error. Docket No. 285 at 9.5
Plaintiff argues that “the culpability of the litigant” weighs against dismissal
because he has now located a business address for Brown.6 Docket No. 300 at 10.
The magistrate judge found that, though plaintiff clearly worked hard to find an address
at which to serve Brown, plaintiff was ultimately culpable for failing to provide one, and
thus that this factor weighs in favor of dismissal of Brown. Docket No. 285 at 9. Plaintiff
states that the address he has for Brown is where Brown “move[d] his medical practice.”
Docket No. 300 at 9-10. Plaintiff does not indicate why he was unable to find this
address earlier in the course of litigation, besides saying that “the internet [gave plaintiff]
out-dated information.” Id. at 10. Even assuming plaintiff has now identified a correct
address for Brown, he is still culpable for not finding a valid address until almost three
years into the litigation. Compare Docket No. 1 (complaint filed January 30, 2018), with
Docket No. 296 (stating that plaintiff identified address for Brown on December 10,
2020). While the Court recognizes that there is an unexplained six month gap between
when service was executed on Timothy Brown in Troy, Missouri and returned for
docketing, Docket No. 244, even excluding this gap plaintiff has been unable to locate

5

Plaintiff states that he was released on July 29, 2021. See Docket No. 329 at 1.

6

Plaintiff states at various points that he secured a business address for Brown
from (1) Neil A. Bourjaily, a physician’s assistant using the CTCF computer system,
Docket No. 300 at 7; (2) Michkesha Wells, his son’s mother, Docket No. 296 at 2; and
(3) the website centura.org, Docket No. 300 at 9-10.
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an address for Brown for two and a half years. The Court thus finds no plain error in the
magistrate judge’s conclusion that the culpability of plaintiff weighed in favor of
dismissal, and overrules plaintiff’s objection that a newly located address for Brown
changes this calculus.
Plaintiff’s final objection is that the magistrate judge’s statement that plaintiff was
warned multiple times that the failure to provide an address to serve Brown would result
in a recommendation to dismiss Brown is misleading because the magistrate judge
granted plaintiff an extension of time to serve Brown. Docket No. 300 at 10. The
magistrate judge granted plaintiff an extension of time to serve Brown and ordered the
Clerk of Court to send plaintiff two signed, but otherwise blank, subpoenas. Docket No.
278 at 5. However, the magistrate judge denied plaintiff’s motion for the USMS to serve
the subpoenas, Docket No. 285, and the Court has overruled plaintiff’s objections to this
order. See supra. Therefore, the Court finds no plain error in the magistrate judge’s
finding that plaintiff was warned that failure to provide a correct address would result in
a recommendation to dismiss Brown.
The Court finds that plaintiff has not demonstrated plain error in the magistrate
judge’s recommendation. The Court will therefore enforce the firm waiver rule and
accept the recommendation of the magistrate judge.
III.

CONCLUSION
For the foregoing reasons, it is
ORDERED that the Order and Recommendation of United States Magistrate

Judge Kristen L. Mix [Docket No. 285] is ACCEPTED. It is further

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ORDERED that Plaintiff’s Motion in Opposition to Order and Recommendation
[ECF 285] by the United States Magistrate Judge [Docket No. 300], construed as an
objection, is OVERRULED. It is further
ORDERED that plaintiff’s claim against defendant Timothy Brown is DISMISSED
without prejudice. It is further
ORDERED that defendant Timothy Brown is DISMISSED.

DATED July 15, 2022.
BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge

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