DAVID M. EBEL, District Judge.
This matter comes before the Court upon the recommendation (Doc. 30) of United States Magistrate Judge Kathleen M. Tafoya that Plantiff's complaint be dismissed in this case. That recommendation followed Plaintiff's failure to appear at a scheduling conference (Doc. 27), his indication that he wished to dismiss the case (
While Plaintiff was incarcerated in the Colorado Territorial Correctional Facility in Cañon City, Colorado, following conviction for credit card fraud and parole violations, he received a prison disciplinary conviction for sexual abuse based on a letter he wrote to an inmate at another prison facility. Plaintiff alleges that after he was released from prison, in October 2010, Defendants—employees of the Colorado Department of Parole—wrongly subjected him to initial sex-offender restrictions and forced him to undergo a demeaning sex-offender evaluation, though that evaluation did not result in Plaintiff being labeled a sex offender or being required to undergo sex offender treatment as a condition of parole.
Plaintiff filed his pro se amended complaint (Doc. 7)
On September 30, 2011, Defendants filed a motion to dismiss pursuant do Fed. R. Civ. P. 12(b)(1) and 12(b)(6), based respectively on lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted. Defendants also sought to invoke qualified immunity and the Colorado Governmental Immunity Act (in the event the Court exercised supplemental jurisdiction to consider Plaintiff's state-law claims). (Doc. 20.)
On October 31, 2011, the parties convened for a scheduling conference before the magistrate judge, but the conference was reset for November 18, 2011, because numerous mailings sent to Plaintiff had been returned as undeliverable. (Doc. 24.) Plaintiff did not appear at the rescheduled scheduling conference on November 18. The magistrate judge received a voicemail an hour before that hearing was scheduled to commence, indicating that Plaintiff had suffered an ulcer attack the previous evening and would not be able to attend. Accordingly, the hearing was again rescheduled, for November 28, 2011. (Doc. 26.) Plaintiff once again failed to appear at the rescheduled hearing. This time, the magistrate judge had received a voicemail from Plaintiff indicating that he did not have time to litigate the case and wanted to dismiss his lawsuit. The magistrate judge ordered defense counsel to contact Plaintiff to assist him with the process of dismissing the action. (Doc. 27.) On December 5, 2011, defense counsel informed the magistrate judge that counsel had called Plaintiff and left a voicemail recounting the events of the hearing and asking him to confirm his desire to dismiss the case, but that Plaintiff had not responded. (Doc. 28.)
Consequently, on December 14, 2011, the magistrate judge issued an order to show cause, pursuant to D.C.COLO.LCivR 41.1, no later than December 30, 2011, why his complaint should not be dismissed for failure to prosecute and failure to comply with court orders. The order warned Plaintiff that failure to respond or to show cause "will result in a recommendation that this case be dismissed, with prejudice, in its entirety ...." (Doc. 29.) Plaintiff never responded to the order to show cause.
As such, on January 4, 2012, the magistrate judge recommended that this Court dismiss, with prejudice, Plaintiff's case. The magistrate judge considered, pursuant to Tenth Circuit precedent, a non-exhaustive list of factors for evaluating the appropriateness of dismissal with prejudice,
To date, the Court has received no word from Plaintiff.
This Court has discretion to dismiss a case for failure to prosecute, although the Court must consider certain factors before applying that "severe" sanction.
"In applying such a sanction, the district court must consider: (1) the degree of actual prejudice to the opposing party; (2) the amount of interference with the judicial process; and (3) the culpability of the litigant."
Meanwhile, a party's failure to object to a magistrate judge's recommendation may result in waiver of the right to challenge the recommendation.
The Court agrees with the magistrate judge's conclusion that dismissal with prejudice of Plaintiff's complaint is appropriate. The Court determines that Defendants are prejudiced by Plaintiff's failure to prosecute this case; that Plaintiff's repeated non-appearances and delays interfere with the judicial process; and that Plaintiff is at fault for failing to respond to court orders.
The Court therefore adopts the recommendation of the magistrate judge and DISMISSES WITH PREJUDICE this case pursuant to D.C.Colo.LCivR 41.1. The Court also denies as moot Defendants' motion to dismiss.