Garcia v. Hefner et al
ORDER that the Order and Recommendation of United States Magistrate Judge Kristen L. Mix (Doc. # 92 ) is AFFIRMED and ADOPTED as an Order of this Court.that Plaintiffs post-dismissal motions and requests for relief (Docs. ## 79 , 80 , 81 , 82 , 84 , 86 , 88 , 89 , 90 ) are DENIED for the reasons stated above and in Judge Mixs Recommendation.That Plaintiff's Motion for Judge to Open Case and Motion to Join Cases (Doc. # 94 ) is DENIED AS MOOT, by Judge Christine M. Arguello on 11/17/2021.(evana, )
Case 1:19-cv-00555-CMA-KLM Document 95 Filed 11/17/21 USDC Colorado Page 1 of 8
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 19-cv-00555-CMA-KLM
HEFNER, Deputy ACDF,
TITUS, Deputy ACDF Housing,
JOHN DOE, Deputy ACDF,
YNIGUEZ, Deputy ACDF,
MOHR, Deputy ACDF, and
TITUS, Deputy ACDF Medical,
ORDER AFFIRMING AND ADOPTING ORDER AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE AND DENYING PLAINTIFF’S MOTION TO
REOPEN CASE AND JOIN CASES
This matter is before the Court on the Order and Recommendation of United
States Magistrate Judge Kristen L. Mix (“Recommendation”) (Doc. # 92) and Plaintiff’s
Motion for Judge to Open Case and Motion to Join Cases (“Motion to Reopen”) (Doc. #
94). For the following reasons, Judge Mix’s Recommendation is affirmed and adopted
as an order of this Court. Plaintiff’s Motion to Reopen is denied.
This is a 42 U.S.C. § 1983 case. In late 2018 and early 2019, Plaintiff, Alexander
Garcia, was a being held in pretrial detention at the Adams County Detention Facility.
Case 1:19-cv-00555-CMA-KLM Document 95 Filed 11/17/21 USDC Colorado Page 2 of 8
(Doc. # 7, p. 6). Garcia alleges that, on two occasions during his pretrial detention, he
was moved into a housing unit that lacked power for his CPAP machine – a breathing
device used to treat sleep apnea – causing him to experience serious breathing
problems throughout the night. (Doc. # 7, p. 7). He sued several Adams County
employees who worked at the jail, alleging violations of the Eighth and Fourteenth
Amendments. (Doc. # 7).
Garcia filed this lawsuit in early 2019. (Doc. # 1). By late 2020, however, there
had been only minimal progress toward a resolution, so the Court issued an Order to
Show Cause why the case should not be dismissed for failure to prosecute. (Doc. # 71).
When Plaintiff failed to respond to the show-cause order, the Court dismissed the case.
(Doc. # 74).
A few months after the case was dismissed, Plaintiff began filing motions and
other documents asking the Court to vacate its order of dismissal and allow his case to
proceed. Plaintiff ultimately filed ten post-dismissal requests for relief, including:
1. Motion for Relief from Judgement, Motion to Vacate or Set Aside, Pursuant to
FRCP 60; and Set Schedule (Doc. #79) (the “Rule 60(b) Motion”);
2. Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. #
80) (the “Application to Proceed”);
3. Motion for Appointment of Counsel (Doc. # 81);
4. Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915 (Doc. # 82) (the “Motion to Proceed”);
5. Motion Concerning Motion to Vacate Order (Doc. # 84) (the “Motion for Status”);
6. Motion Concerning Status (Doc. # 86) (the “Second Motion for Status”);
Case 1:19-cv-00555-CMA-KLM Document 95 Filed 11/17/21 USDC Colorado Page 3 of 8
7. Proposed Order for Judgment (Doc. # 88) (the “First Motion for Judgment”),
which is a motion but is mistakenly titled as an order;
8. Motion for Judgment (Doc. # 89) (the “Second Motion for Judgment”);
9. Unopposed Motion Pursuant to C.R.C.P. 60(b)(3) for Fraud and Motion for
Sanctions (Doc. # 90) (the “Second Rule 60(b) Motion”).
10. Plaintiff’s Motion for Judge to Open Case and Motion to Join Cases (“Motion to
Reopen”) (Doc. # 94).
The gist of Garcia’s argument across all of these motions was that he was out of town
when the Order to Show Cause was issued, and that he therefore had no opportunity to
respond to the Order. 1 Therefore, he argued, the Court should reinstate his case.
The Court referred the first nine motions to Judge Mix. Judge Mix denied the First
and Second Motions for Status (Docs. ## 84, 86) and recommends denying the
remaining motions (Docs. ## 79, 80, 81, 82, 88, 89, 90). Garcia now objects to Judge
Mix’s recommendation. (Doc. # 93).
Under 28 U.S.C. § 636(a)(1)(B), this Court may designate a magistrate judge to
consider dispositive motions and submit recommendations to the Court. When a
magistrate judge submits a recommendation, the Court must “determine de novo any
part of the magistrate judge’s [recommended] disposition that has been properly
objected to.” F.R.C.P. 72(b)(3). To invoke de novo review, however, “a party's
1 Garcia’s motions defy easy summary: Garcia is proceeding pro se, and his handwritten arguments are
often difficult to understand. However, the Court has reviewed each of his filings in detail and has
construed them liberally in an effort to avoid any unfair prejudice to Garcia. This brief summary of Garcia’s
arguments is intended only to frame the key issue that this Court must resolve; it should not be construed
as overlooking the other arguments asserted in Garcia’s many motions. The Court has carefully
considered each of these arguments.
Case 1:19-cv-00555-CMA-KLM Document 95 Filed 11/17/21 USDC Colorado Page 4 of 8
objections to the magistrate judge's report and recommendation must be both timely
and specific.” U.S. v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996); see also
Lockert v. Faulkner, 843 F. 2d 1015, 1019 (7th Cir. 1988) (“Just as a complaint stating
only ‘I complain’ states no claim, an objection stating only ‘I object’ preserves no issue
for review.”). In the absence of a proper objection, “the district court may review a
magistrate [judge’s] report under any standard it deems appropriate.” Summers v. Utah,
927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)
(stating that “[i]t does not appear that Congress intended to require district court review
of a magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings.”)).
Garcia is proceeding pro se. Therefore, the Court has construed his pleadings
and other filings liberally, holding them to a less stringent standard than it would apply
pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews
v. Heaton, 483 F.3d 1070, 1076 (10th Cir.2007); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir.1991). Even when his motions and other documents are construed extremely
liberally, however, Garcia has failed to state a valid basis for overturning Judge Mix’s
orders or rejecting Judge Mix’s recommendations.
RULE 60(b) MOTIONS (DOCS. ## 79, 90)
Judge Mix first recommends denial of Garcia’s Rule 60(b) Motions (Docs. ## 70,
90) on the ground that Garcia has failed to demonstrate any basis for relief from
judgment under Rule 60. Garcia objects, arguing that he “was not given any notice by
Case 1:19-cv-00555-CMA-KLM Document 95 Filed 11/17/21 USDC Colorado Page 5 of 8
defendants, tribunal or clerk of courts” before the dismissal order was entered. (Doc. #
93, p. 4). The Court agrees with Judge Mix.
Rule 60(b) states that “[o]n motion and just terms, the court may relieve a party . .
. from a final judgment” based on “mistake, inadvertence, surprise, or excusable
neglect[,]’” “fraud, . . . misrepresentation, or misconduct by an opposing party[,]” “or any
other reason that justifies relief.” Relief under Rule 60(b) is “extraordinary and may only
be granted in exceptional circumstances.” Servants of the Paraclete v. Does, 204 F.3d
1005, 1009 (10th Cir. 2000). Rule 60 relief is generally available only “when
circumstances are so ‘unusual or compelling’ that extraordinary relief is warranted or
when it ‘offends justice’ to deny such relief.” Johnson v. Ward, No. 20-cv-00447-PABMEH, 2021 WL 2222713, at *1.
Garcia’s Rule 60(b) motions fail to demonstrate excusable neglect, misconduct
by the opposing party, or other “unusual or compelling” circumstances that would justify
Rule 60 relief. Although Garcia claims that he was out of town when the show-cause
order was issued, Garcia never notified the Court of his travel plans. Further, Garcia’
fails to provide any details as to when he left town, when he returned, or why he failed
to have his mail either checked or forwarded during his absence. The show-cause order
was issued in November 2020, but Garcia waited until April 2021 – more than five
months later – to file a response. During that five-month period, Garcia entirely ceased
litigating this case. Garcia offers no explanation why he believed it to be acceptable to
take a five-month hiatus from this lawsuit without providing any advance notice to the
Court of his planned absence.
Case 1:19-cv-00555-CMA-KLM Document 95 Filed 11/17/21 USDC Colorado Page 6 of 8
Furthermore, when Garcia did finally file something – the Rule 60(b) Motion filed
in late April – he failed to do what the show-cause order instructed him to do: explain
why he has failed to diligently prosecute this lawsuit. (See Doc. # 79). Rather, Garcia’s
Motion attempted to blame Defendants for his failure to respond to the show-cause
order. But Garcia cites no legal authority to suggest that it was Defendants’ obligation to
ensure he responded to the show-cause order, and to date, Garcia has still failed to
provide any acceptable justification for his failure to diligently prosecute this case.
Therefore, the Court agrees with Judge Mix’s conclusion that Garcia has failed to
demonstrate a basis for relief from judgment under Rule 60.
Garcia’s Objection does not even mention, let alone state a valid objection to,
Judge Mix’s remaining orders and recommendations. Although the Court construes pro
se pleadings liberally, it cannot act as a pro-se litigant’s advocate, and it may not
“supply additional factual allegations . . . or construct a legal theory on a plaintiff’s
behalf. Whitney v. New Mexico, 113 F.3d 1170, 1173– 74 (10th Cir.1997). Pro se
litigants must follow the same procedural rules that govern other litigants. Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994). Even under an extremely generous reading,
nothing in Garcia’s Objection can be fairly read as stating a valid object to Judge Mix’s
rulings with respect to the First and Second Motions for Status (Docs. ## 84, 86) or her
recommendations with respect to the Application to Proceed (Doc. # 80), the Motion for
Appointment of Counsel (Doc. # 81), the Motion to Proceed (Doc. # 82), or the Motions
for Judgment (Docs. # 88, 89).
Case 1:19-cv-00555-CMA-KLM Document 95 Filed 11/17/21 USDC Colorado Page 7 of 8
In the absence of a proper objection, “the district court may review a magistrate
[judge’s] report under any standard it deems appropriate.” Summers, 927 F.2d at 1167.
Applying this standard, the Court finds no basis to reject Judge Mix’s Recommendation.
The Court has reviewed Judge Mix’s orders and recommendations with respect to these
motions, and it finds that they are sound and that there is no clear error on the face of
the record. Therefore, Judge Mix’s Recommendation is affirmed and adopted with
respect to these motions. (Docs. ## 80, 81, 82, 84, 86, 88, 89).
MOTION FOR JUDGE TO OPEN CASE AND MOTION TO JOIN CASES (DOC.
Finally, Garcia asks that this case be reopened and consolidated with another
lawsuit he filed in 2021. (Doc. # 94). This Motion is denied. This case has been closed
since December 2020. (Doc. # 74). As discussed above, Garcia has failed to
demonstrate any valid basis for reopening the case. Therefore, the case cannot be
reopened or consolidated with any other case, and the Motion must be denied as moot.
For the foregoing reasons, the Court ORDERS that the Order and
Recommendation of United States Magistrate Judge Kristen L. Mix (Doc. # 92) is
AFFIRMED and ADOPTED as an Order of this Court. It is
FURTHER ORDERED that Plaintiff’s post-dismissal motions and requests for
relief (Docs. ## 79, 80, 81, 82, 84, 86, 88, 89, 90) are DENIED for the reasons stated
above and in Judge Mix’s Recommendation. It is
Case 1:19-cv-00555-CMA-KLM Document 95 Filed 11/17/21 USDC Colorado Page 8 of 8
FURTHER ORDERED that Plaintiff’s Motion for Judge to Open Case and Motion
to Join Cases (Doc. # 94) is DENIED AS MOOT.
DATED: November 17, 2021
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?