Crittendon-Morman v. Lara et al

Filing 40

ORDER affirming and adopting 37 United States Magistrate Judge Maritza Dominguez Braswell's Recommendation; granting 24 Motion to Dismiss for Lack of Prosecution; finding as moot 30 Motion for Partial Summary Judgment. By Judge Charlotte N. Sweeney on 1/6/25.(jdyne)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:23-cv-02630-CNS-MDB
MICHAEL CRITTENDON-MORMAN,
Plaintiff,
v.
ANTHONY LARA, a Manitou Spring Police officer, in his individual capacity, and
JEFFERY SCHUELKE, a Manitou Spring Police officer, in his individual capacity,
Defendants.

ORDER

Before the Court is United States Magistrate Judge Maritza Dominguez Braswell’s
Recommendation to grant Defendants’ Motion to Dismiss Due to Plaintiff’s Failure to
Prosecute. ECF No. 24 (motion to dismiss); ECF No. 37 (Recommendation). Plaintiff,
represented by counsel, did not object to the Recommendation. For the reasons below,
the Court affirms and adopts the Recommendation and dismisses Plaintiff’s case with
prejudice.
I.

BACKGROUND

Plaintiff brings his claims pursuant to 42 U.S.C. § 1983 and Colo. Rev. Stat. § 1321-131, alleging unlawful seizure in violation of the Fourth Amendment, racial
discrimination in violation of the Fourteenth Amendment, and deprivation of rights under
Colorado state law. See generally ECF No. 1; ECF No. 37 at 1–2. Beyond filing his

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complaint, Plaintiff has done little to further his case. The parties began discovery on
January 15, 2024, and Defendants scheduled Plaintiff’s deposition for May 21, 2024. ECF
No. 24, ¶¶ 3, 6. Plaintiff’s counsel notified Defendants the day before the deposition that
he was unable to locate Plaintiff, and Magistrate Judge Dominguez Braswell granted the
parties additional time to reschedule the deposition. Id., ¶¶ 7–9. Though the parties made
several efforts to communicate with Plaintiff to schedule his deposition, those efforts were
unsuccessful. Id., ¶¶ 11–13. On August 2, 2024, Defendants informed Plaintiff’s counsel
that they would file a motion to dismiss for failure to prosecute if alternative dates for the
deposition were not provided by August 12, 2024, and when no such dates were provided,
Defendants filed their motion to dismiss. Id., ¶¶ 14–15.
During an October 1, 2024 Status Conference before Magistrate Judge
Dominguez Braswell, she ordered Plaintiff to sit for his deposition and directed Plaintiff’s
counsel to file a notice by November 1, 2024, reporting whether Plaintiff was located and
whether his deposition occurred. ECF No. 37 at 2. The Court warned counsel that
Plaintiff’s failure to comply with the Court’s order to sit for his deposition could result in
the dismissal of his case. Id. On November 1, 2024, Plaintiff’s counsel informed the Court
that Plaintiff had not sat for his deposition, and that no depositions had been scheduled.
ECF No. 34.
This Court referred Defendants’ motion to dismiss to Magistrate Judge Dominguez
Braswell for initial determination. ECF No. 25. Applying the five factors enumerated in

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Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992), 1 she considered whether
dismissal under Federal Rule of Civil Procedure 41(b) is appropriate. 2 She determined
that the Ehrenhaus factors weigh in favor of dismissal. ECF No. 37 at 8. She then
considered whether dismissal should be with or without prejudice. Id. at 9–11. After
careful consideration, she determined that dismissal with prejudice is warranted in this
case. Id. at 10. As explained above, Plaintiff failed to object to her Recommendation.
II.

LEGAL STANDARD & ANALYSIS

When—as is the case here—a party does not object to a Magistrate Judge’s
Recommendation, the Court “may review a magistrate [judge]’s report under any standard
it deems appropriate.” Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991)
(citing Thomas v. Arn, 474 U.S. 140, 150 (1985)). The Court is “accorded considerable
discretion” when reviewing “unchallenged” recommendations. Id. Here, the Court has
reviewed Magistrate Judge Dominguez Braswell’s thorough Recommendation and is
satisfied that it is sound and that there is no clear error on the face of the record.
III.

CONCLUSION

The Court AFFIRMS and ADOPTS Magistrate Judge Dominguez Braswell’s
Recommendation, ECF No. 37, in its entirety as an order of this Court. Accordingly, the

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Ehrenhaus provides that, “[b]efore choosing dismissal as a just sanction, a court should ordinarily consider
a number of factors, including: (1) the degree of actual prejudice to the defendant; (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.” 965 F.2d at 921 (citations and internal quotations omitted).
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Federal Rule of Civil Procedures 41(b) provides that, “[i]f the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this
rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates
as an adjudication on the merits.”

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Court GRANTS Defendants’ Motion to Dismiss Due to Plaintiff’s Failure to Prosecute.
ECF No. 24. The Clerk of Court is directed to close this case and moot the
pending partial motion for summary judgment, ECF No. 30.
DATED this 6th day of January 2025.
BY
COURT:
Y THE C
O RT:
OU
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Charlotte
har
a lotte N. Sweeney
Swe
ween
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United
States
Judge
nited State
te
es Di
District Jud
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