Alonso v. Barham et al
Filing
80
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Stephan M. Vidmar to DISMISS this action without prejudice. Objections to PF&RD due by November 30, 2020. Add 3 days to the deadline if service is by mail to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D), (F)); if service is by electronic means, no additional days are added. See Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c). (rcf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JUAN CARLOS ALONSO,
Plaintiff,
v.
No. 16-cv-0903 KWR/SMV
JULIE BARHAM and
CHILDREN, YOUTH AND FAMILIES
DEPARTMENT,
Defendants.
MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on its Order to Show Cause [Doc. 77], filed on
September 24, 2020. The Court recommends dismissing this action without prejudice for failure
to follow the order of this Court and for lack of prosecution. Plaintiff has taken no action in this
case since May 26, 2020. See [Doc. 72]. Since that time, Plaintiff’s counsel withdrew because
Plaintiff did not communicate with counsel for several months. [Docs. 74, 75]. Most recently,
Plaintiff failed to appear for a telephonic status conference, [Doc. 76], and failed to respond to the
Court’s subsequent Order to Show Cause, [Doc. 77]. Plaintiff has abandoned the case. It should
be dismissed.
Background
Plaintiff brought civil claims against Defendants in state court for violations of his
constitutional rights, based on sexual abuse while he was within the care of the state as a minor.
[Doc. 1-1]. Plaintiff’s civil case was removed to federal court in August 2016. [Doc. 1].
Simultaneously, Defendant Barham faced criminal charges in state court for the underlying
conduct. See [Docs. 20, 20-1, 21, 24, 26, 27, 35, 52, 59]. Discovery in this civil case was stayed
from November 4, 2016, until October 2, 2019, while the state court ordered Defendant Barham
restored to competency for her criminal proceedings. See id.
With the assistance of counsel, Plaintiff filed a Joint Motion to Extend Pre-trial Deadlines
on May 26, 2020, and this is the most recent action Plaintiff took in this case. See [Doc. 72].
Plaintiff’s counsel withdrew on August 10, 2020, leaving Plaintiff to proceed pro se, because
Plaintiff had not communicated with counsel for several months. [Docs. 74, 75]. On
September 2, 2020, the Court set a telephonic status conference for September 24, 2020. [Doc. 76].
The Order setting the hearing directed all parties to call Judge Vidmar’s teleconference line on
September 24, 2020, at 1:30 p.m. The notice of electronic filing indicates that the Order was sent
to Plaintiff by United States mail at 308 South Kansas in Roswell, New Mexico, 88203.
Nevertheless, Plaintiff failed to appear, and the status conference could not proceed. The Court
ordered Plaintiff to show cause, [Doc. 77], in writing, no later than October 26, 2020, why he
should not be sanctioned for his failure to appear, up to and including dismissal of this case without
further notice. See Fed. R. Civ. P. 41(b). The Court further ordered that the Clerk mail two copies
of the Order to Show Cause, [Doc. 77], to Plaintiff: one at his address in Roswell and one at the
Chaves County Detention Center.1 Both were returned as undeliverable. [Docs. 78, 79].
1
When Plaintiff failed to appear for the hearing on September 24, 2020, counsel for Defendants informed court staff
that Plaintiff might be detained at the Chaves County Detention Center.
2
Standard
Rule 41(b) authorizes dismissal “[i]f the plaintiff fails to prosecute or comply with [the]
rules or a court order.”2 Fed. R. Civ. P. 41(b). Dismissal is a “drastic sanction that should be
employed only as a last resort,” Davis v. Miller, 571 F.3d 1058, 1061 (10th Cir. 2009), and it is
“appropriate only in cases of willful misconduct,” Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th
Cir. 1992). Before dismissing a case under Rule 41, therefore, a court should consider the
following factors:
(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.
Ehrenhaus, 965 F.2d at 921 (citations, internal quotation marks, and ellipsis omitted) (considering
dismissal under Rule 37); see also Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d
1135, 1143 (10th Cir. 2004) (applying the Ehrenhaus factors to dismissal under Rule 41(b)). “Only
when the aggravating factors outweigh the judicial system’s strong predisposition to resolve cases
on their merits is dismissal an appropriate sanction.” Ehrenhaus, 965 F.2d at 921 (quoting Meade
v. Grubbs, 841 F.2d 1512, 1521 n.7 (10th Cir. 1988)). See also Link v. Wabash R.R. Co., 370 U.S.
626, 629–30 (1962) (courts have inherent power to dismiss cases for lack of prosecution);
D.N.M.LR-Civ. 41.1 (“A civil action may be dismissed if, for a period of ninety (90) days, no
2
“Although the language of Rule 41(b) requires that the defendant file a motion to dismiss, the Rule has long been
interpreted to permit courts . . . to dismiss actions sua sponte for a plaintiff's failure to . . . comply with the rules of
civil procedure or court’s orders.” Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cnty. Justice Ctr., 492 F.3d
1158, 1161 n.2 (10th Cir. 2007).
3
steps are taken to move the case forward.”); Fed. R. Civ. P. 16(f) (authorizing sanctions against a
party who fails to comply with court orders).
Analysis
Through counsel, Plaintiff initiated his claims in August 2016. See [Doc. 1]. For nearly
four years, Plaintiff worked with counsel to move the case forward, but Defendants were granted
multiple stays. See [Docs. 21, 24, 35, 41, 50]. However, counsel withdrew on August 10, 2020,
because Plaintiff was unresponsive for several months. [Docs. 74, 75]. Since proceeding pro se,
Plaintiff failed to appear for a hearing, see [Doc. 76], and failed to respond to the Court’s Order to
Show Cause, see [Doc. 77]. Thus, Plaintiff has taken no action to prosecute his case, either through
counsel or when proceeding pro se, in nearly six months, see [Doc. 72].
As a result of Plaintiff’s complete absence from the litigation, “the degree of actual
prejudice to the defendant” is great; Defendants cannot defend a claim against absent Plaintiff. See
Ehrenhaus, 965 F.2d at 921. For the same reason, “the amount of interference with the judicial
process is significant” because the process cannot proceed without Plaintiff’s participation. See id.
Additionally, based on the record before me, I find that Plaintiff is culpable for his lack of
participation. See id. Moreover, the Court’s Order to Show Cause notified Plaintiff that if he failed
to respond, his case could be dismissed without further notice, [Doc. 77]. See Ehrenhaus, 965 F.2d
at 921. Finally, the Court is not convinced that lesser sanctions would be effective, see id., because
Plaintiff is not participating in the case. He is not responding to court orders, participating in
hearings, or prosecuting his claims in any way. Although the Court prefers to resolve disputes on
their merits, the aggravating factors in this case outweigh such preference. Therefore, pursuant to
Fed. R. Civ. P. 41, dismissal without prejudice is warranted. See id.
4
IT IS THEREFORE RESPECTFULLY RECOMMENDED that this action be
dismissed without prejudice for failure to prosecute.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN FOURTEEN DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition, they may file
written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A
party must file any written objections with the Clerk of the District Court within the
14-day period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be allowed.
______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
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