S. KATO CREWS, Magistrate Judge.
This Report and Recommendation ("Recommendation") addresses Defendant Sygma Network's ("Sygma") Motion to Dismiss for Failure to Prosecute (the "Motion") [#56].
Proceeding pro se, Wallin filed his Complaint alleging Title VII discrimination based on race and color and alleging retaliation in the form of a "constructive discharge." [#1.] Wallin sued Sygma, Jesse Staley, and Jon Stanley (collectively "Defendants").
Sygma hired Wallin as a delivery driver in February 2017. [#1 at p.3.] While employed, Defendants harassed Wallin, an African American, by falsely accusing him of failing to return undelivered products to the warehouse, and by altering, falsifying, and manipulating his work performance documents to portray his performance as "very poor in comparison to his assigned white counterpart." [Id.] While on bereavement leave, Wallin was discharged from his scheduled route and placed on an on-call status while "his white . . . counterpart was placed on another high paying . . . route." [Id.] After he reported this treatment to Sygma's human resources department, Defendants retaliated against Wallin by increasing their harassment. Defendants subsequently demoted Wallin, which effectively cut his wages by more than half. [Id.]
Since filing the Complaint on May 8, 2018, Wallin has exhibited a proclivity for non-compliance with Court orders and discovery deadlines. To document the issues raised by Sygma's Motion, the following description of events are taken from the record.
Jon Stanley ("Stanley") is a named Defendant. [See #1.] However, the United States Marshals Service was unable to serve Stanley using the address provided by Wallin. [#17] On August 9, 2018, Magistrate Judge Scott T. Varholak ordered Wallin "to provide a valid address for [Stanley] on or before August 24, 2018." [#18 (reminding Wallin that "[i]t is the [pro se] plaintiff's responsibility to provide the United States Marshal with the address of the person to be served.").] On August 13, 2018, Magistrate Judge Varholak vacated the scheduling conference, in part, because Wallin had yet to provide a proper address for Stanley. [See #19.] Wallin did not meet his court-ordered, August 24 deadline or seek an extension of time.
After this matter was re-assigned to the undersigned, the Court raised the issue of service on Stanley at the October 30, 2018 Scheduling Conference. [#37 at p.2.] At the Scheduling Conference, Wallin acknowledged that this was
Wallin missed his court-ordered deadline to file his notice or a status report regarding the status of service on Stanley. He instead filed his notice
On September 28, 2018, Jesse Staley ("Staley"), a Defendant at the time, filed a Motion to Dismiss. [#25.] Wallin failed to respond to Staley's Motion to Dismiss by the October 19, 2018 deadline. [See #37.] The Court raised Wallin's failure to respond at the October 30, 2018 Scheduling Conference. [Id.] Wallin stated that he did not respond because he was unaware of the Motion to Dismiss being filed. The Court ordered defense counsel to email that Motion to Dismiss to Wallin and granted him until November 20, 2018 to respond to the motion. [Id.] Wallin filed his response
On March 26, 2019, Sygma filed the current Motion. [#56.] On April 18, 2019, Sygma filed a Notice of Non-Response and Filing of Supplemental Information [#60] informing the Court of Wallin's failure to respond to the Motion. Wallin then filed his response eleven days later, which was
After Wallin did not appear at the January 8, 2019, Status Conference, the Court issued an Order to Show Cause "why this case should not be dismissed with prejudice for failure to prosecute, and why the Court should not order sanctions against Mr. Wallin in the form of attorneys fees incurred by Defendants' for the preparation and participation at the Status Conference." [#48.] The Court ordered Wallin to respond by January 18, 2019. [Id.] This time, Wallin did meet his filing deadline. [See #51.] He stated his reasons for not appearing at the Status Conference were: (1) "that he totally confused the dates for the Status Conference;" and (2) "that he has been undergoing some serious medical issues that also may have contributed to his mental state, which includes his kidney failure and his recent battle with pneumonia. . . ." [Id. at ¶¶2-3.]
Ultimately, the Court discharged the Order to Show Cause without recommending sanctions against Wallin. [#54.] The Court cautioned Wallin that his medical issues and "mistaking the date of a Court ordered hearing do not excuse Wallin of his duties to prosecute this matter." [Id. at p.2.] The Court again stated: "[p]ro se parties are obligated to comply with the Federal Rules of Civil Procedure, the Local Rules of this District, and this Court's Practice Standards, and all Court Orders." [Id. (citing Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2009)).]
Sygma served Wallin with its First Set of Discovery Requests ("Discovery Requests") on December 21, 2018, making his responses due January 22, 2019. [#55 at p. 1.] Wallin failed to respond to the Discovery Requests by the deadline. [Id. at p. 2.] Sygma emailed Wallin on January 30 and February 11, 2019, requesting responses, but Wallin did not respond to either email. [Id.] He finally served his responses to the Discovery Requests
As a result, Sygma filed a Motion to Compel on March 26, 2019. [See generally id.] Wallin did not file a response to the Motion to Compel. He instead filed his own Motion to Compel [#67] on June 12, 2019, and the Court set a Discovery Hearing to address both motions.
In a separate pre-trial discovery matter, Wallin walked out of his deposition an hour early. Sygma deposed Wallin on April 16, 2019. [#59.] He arrived at his deposition
As mentioned above, by minute order dated December 17, 2018 [#44], the Court ordered a status conference for January 8, 2019 at 9:00 a.m. Wallin was a
By order dated June 14, 2019, the Court ordered a discovery hearing for July 18, 2019 at 2:00 p.m. [#70.] The hearing did not commence until 2:27 p.m. because Wallin arrived
[#78 at p.8 ll.12-25, p.9 l.1.]
By order dated October 4, 2019, the Court set a Motion Hearing (on Defendant's Motion to Dismiss for Failure to Prosecute) for October 31, 2019 at 1:30 p.m. [#79.] The hearing did not commence until 1:54 p.m. because Wallin arrived
A federal court must construe a pro se plaintiff's pleadings "liberally" and hold the pleadings "to a less stringent standard than formal pleadings filed by lawyers." Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009). "[The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Id. (citing Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)). The Tenth Circuit has interpreted this rule to mean:
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). This interpretation is qualified in that it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." Id.; see also Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) ("[W]e will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded.").
Federal Rule of Civil Procedure 41(b) allows a district court to dismiss an action with prejudice if the plaintiff fails "to comply with [the Federal Rules of Civil Procedure] or any order of the Court." Fed. R. Civ. P. 41(b); see also Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003). District courts must consider certain enumerated criteria to determine if dismissal under Rule 41(b) is appropriate. Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003). This criteria includes: "(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 actions would be likely sanction for noncompliance; and (5) the efficacy of lesser sanctions." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994) (citation omitted).
Wallin has stymied Sygma's ability to obtain discovery in this matter by his repeated failures to meet response deadlines set by the Federal Rules of Civil Procedure and this Court. [See #55 at p.4 (Wallin failed to respond to Sygma's discovery requests within 30 days); and #75 at p. 1 (Sygma's Notice of Wallin's Non-Compliance with Court's Discovery Hearing Order)]. Since filing this case, Wallin has exhibited a pattern of untimely disclosures and filings. "When a pro se litigant's errors or failings become continuous or regular, the actions have a much greater impact on the adverse party than infrequent missteps in the judicial process." Brewer v. DKD Elec. Co., Civ. No. 02-0407 LH/RLP, 2004 WL 6218811, at *2-3 (D.N.M. June 14, 2004) (holding that such circumstances warrant a dismissal for failure to prosecute "despite the pro se status of a plaintiff").
In this instance, the resulting prejudice to Sygma is not limited to an inability to obtain discovery critical to its defense, although this alone is sufficient prejudice favoring dismissal. Wallin's delays and non-responses further prejudice Sygma by requiring it to expend time and incur attorney's fees to file otherwise unnecessary motions and notices with the Court. See Faircloth v. Hickenlooper, 758 F. App'x 659, 662 (10th Cir. 2018) (recognizing "prejudice from `delay and mounting attorney's fees'") (citing Jones v. Thompson, 996 F.2d 261, 266 (10th Cir. 1993)). The Court finds that Wallin's pattern and practice (documented above) of failing to meet his litigation obligations under the applicable rules and orders of this Court has caused Sygma to suffer actual prejudice. This favors dismissal.
"Courts have the inherent power to impose a variety of sanctions on both litigants and attorneys in order to regulate their docket, promote judicial efficiency, and deter frivolous filings." Martinez v. Internal Revenue Service, 744 F.2d 71, 73 (10th Cir. 1984). "This power allows the court to balance the furtherance of justice with judicial economy. In certain situations, a dismissal is advantageous to the efficiency and efficacy of the judicial system and is an appropriate remedy." See Kalkhorst v. Medtronic, Inc., No. 18-CV-00580-KLM, 2018 WL 6697072, at *3 (D. Colo. Dec. 19, 2018). Moreover, the Court has an obligation to construe, administer, and employ the Federal Rules of Civil Procedure "to secure the just speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1.
The Court concludes that Wallin's untimeliness in responding to discovery requests and motions, and in appearing late or not at all for Court-ordered hearings, has significantly interfered with the Court's ability to effectively administer justice. This Court has limited resources and an extensive docket, and "the time spent on a recalcitrant litigant such as Plaintiff takes time away from individuals in other cases who have meritorious claims and serious injuries that deserve to be redressed promptly. Accordingly, the consequences that result from Plaintiff's ongoing interference with the judicial system cannot be understated." Valentine v. PNC Fin. Servs. Group, et al., No. 18-cv-01934-CMA-SKC, 2019 WL 5957297, *3 (D. Colo. Nov. 13, 2019).
Wallin frames the issue of his litigation failures as simply Sygma's dissatisfaction with his ability to litigate his case with the knowledge and resources of an attorney. [Cf. #84.] But as the Court explained to Wallin during the October 31 hearing, that is not the issue at all. The Tenth Circuit has "repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (internal quotation marks omitted). A party's status as a pro se litigant
Moreover, this Court has gone to great lengths to afford Wallin leeway for his abundant transgressions and warn him of the potential consequences for his actions. Nevertheless, his lapses persist. These lapses have resulted in a docket clogged with filings by Sygma to address Wallin's failures, time spent in multiple hearings to address Wallin's conduct, and time spent by counsel and the Court waiting for Wallin to arrive on time for court appearances, if arrive at all. "The Court has had enough." Valentine, 2019 WL 5957297, at *2. This factor favors dismissal. Cf. Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992) ("[W]e have repeatedly upheld dismissals in situations where the parties themselves neglected their cases or refused to obey court orders.").
Pro se litigants should be afforded deference in the form of "[o]ccasional allowances by the court for honest mistakes [which] provide leeway for plaintiffs who are not trained in the law and do not have representation. This deference, though, should be balanced with potential abuse . . . and constant delays in the judicial system." Brewer, 2004 WL 6218811, at *2-3. The Court gave Wallin deference when it discharged the Order to Show Cause and warned him that continued non-compliance with Court orders and delays could result in this matter's dismissal for failure to prosecute. [#54 at p.2.] The Court has shown Wallin additional deference by heretofore tolerating and allowing his recalcitrant behavior, which has persisted after multiple warnings. Thus, Wallin is culpable for his conduct. This factor favors dismissal.
To be fair, the Court is aware that Wallin claims to suffer from ailments that affect his memory. While the Court is sympathetic with any challenges these ailments may pose for Wallin, Wallin has never claimed that these challenges are the cause of his inability to arrive to Court on time (or at all), or timely comply with court orders, or otherwise meet his obligations under the applicable rules. [See #51 at ¶¶2-3 (suggesting his mental and physical ailments to be more akin to distractions than deterrents).] Even assuming Wallin were to now make that claim, it would not change the Court's view of dismissal considering the ample leeway and warnings the Court has provided Wallin over an extended period. If his ailments are indeed the cause of his litigation failures, it is reasonable to expect that Wallin would have requested accommodations in the face of the Court's many warnings, but he has not. He has instead only offered the excuse that he is trying his best and since he is not a trained lawyer, the Court should not expect him to comply with its orders, applicable rules, or arrive to court on time. Thus, he remains culpable. This factor favors dismissal.
The Court has warned Wallin numerous times, both in writing and orally during hearings, that his failure to comply with court orders or meet his obligations under the applicable rules may result in dismissal of his case for failure to prosecute. It warned him in the Order to Show Cause and in the Court's written order discharging the Order to Show Cause on March 29, 2019 [#48; #54]. The Court orally admonished him during the July 18, 2019 hearing and discussed the consequences of his conduct and its bearing on Defendant's then pending Motion to Dismiss. [See generally #78; see also id. at p.8 ll.12-25, p.9 l.1.] The Court again and extensively admonished and warned him during the October 31, 2019 hearing. [#84 (see generally the FTR for these proceedings).] This is in addition to the fact that Sygma's Motion to Dismiss for Lack of Prosecution [#56], which has been pending since March 26, 2019, further warned Wallin of the risk of dismissal over his litigation conduct. Thus, Wallin has been amply warned. This favors dismissal.
Sanctions less than dismissal with prejudice would not be effective. Wallin is proceeding pursuant to 28 U.S.C. § 1915 "on the basis of inability to prepay fees or give security therefor." [#7 at p.1.] Therefore, monetary sanctions are likely to be of no avail. Moreover, Wallin's conduct already includes multiple violations of court orders, and his behavior has persisted despite this Court's multiple direct warnings and verbal admonishments in open court. This suggests that sanctions other than dismissal with prejudice are unlikely to modify his behavior. This factor favors dismissal. Meade v. Grubbs, 841 F.2d 1512, 1520 n.6 (10th Cir. 1988).
The Court is keenly aware of Wallin's pro se status as well as the general view that the power of dismissal should be exercised lightly. The sanction of dismissal should be granted sparingly to preserve the adjudicatory rights of the plaintiff. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (involuntary dismissal is a harsh remedy to be utilized only in extreme situations, particularly when pro se litigants are involved). The Court is also aware that the Tenth Circuit has "long held that dismissal of an action with prejudice is a drastic sanction that should be employed only as a last resort." Davis v. Miller, 571 F.3d 1058, 1061 (10th Cir. 2009).
The Court does not make this recommendation lightly. But this is one of those extreme situations warranting dismissal, in this Court's view. The Court cannot continue to overlook Wallin's pattern of disrespect for the litigation process to the detriment of Defendant, Court resources, and the pursuit of justice. At some point, the cycle must be broken, and the Court cannot continue to "turn the other cheek" in the face of a litigant who has demonstrated a pattern of unwillingness to comply with court orders or litigation obligations. While Wallin suggested to the Court that he should get points for trying to comply with his obligations, in federal court there are no points for trying. Instead, in federal court a litigant must do. Cf. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2009). Under the circumstances of this case, where Wallin's efforts to comply have resulted in a consistent pattern of dereliction that heavily favors each of the factors discussed in Mobley, supra, the Court finds the extraordinary relief of dismissal for failure to prosecute appropriate in this matter.
For the above-reasons, the Court RECOMMENDS the Motion [#56] be GRANTED and that this matter be dismissed, in its entirety, with prejudice.
