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Busch v. Gillian F., 18-cv-02871-RM-KMT. (2020)

Court: District Court, D. Colorado Number: infdco20200106613 Visitors: 19
Filed: Jan. 03, 2020
Latest Update: Jan. 03, 2020
Summary: ORDER RAYMOND P. MOORE , District Judge . This matter is before the Court upon review of this matter. Upon such review, the Court finds and orders as follows. Plaintiff, proceeding pro se, filed this 42 U.S.C. 1983 action on November 7, 2018, for alleged violations of his Fourth Amendment rights. The action was originally filed as a prisoner complaint but then subsequently amended once Plaintiff was released from custody. Plaintiff was granted leave to appear in forma pauperis and, a
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ORDER

This matter is before the Court upon review of this matter. Upon such review, the Court finds and orders as follows.

Plaintiff, proceeding pro se, filed this 42 U.S.C. § 1983 action on November 7, 2018, for alleged violations of his Fourth Amendment rights. The action was originally filed as a prisoner complaint but then subsequently amended once Plaintiff was released from custody. Plaintiff was granted leave to appear in forma pauperis and, after initial review, Senior Judge Lewis T. Babcock dismissed the amended complaint in part pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Based on Judge Babcock's order, all claims but the Fourth Amendment excessive force claim against Defendant Gillian in her individual capacity were dismissed. (ECF No. 12.) This case was then drawn to me, Judge Raymond P. Moore, as the presiding judge, and to Magistrate Judge Kathleen M. Tafoya.

Judge Tafoya entered an order setting a scheduling conference for June 4, 2019 at 9:00 a.m., which order was not returned to the court as undeliverable.1 Plaintiff participated with preparing the proposed scheduling order but did not appear at the scheduling conference. As reflected in the Courtroom Minutes, Judge Tafoya did not receive any phone call from Plaintiff or a motion to appear by phone for the scheduling conference. Plaintiff inexplicably failed to appear.

Thereafter, as permitted under this District's Local Rules, Judge Tafoya issued an Order to Show Cause ("OSC") due to Plaintiff's failure to appear at the scheduling conference. See D.C.COLO.LCivR 41.1. As set forth in the OSC, Plaintiff bears the responsibility of complying with court orders and cooperating with opposing counsel. And, the Federal Rules of Civil Procedure allow the court, on it own, to enter sanctions if a party fails to appear at a scheduling conference or fails to obey a scheduling order. See Fed. R. Civ. P. 16(f), 37(b)(2)(A)(ii)-(vii), 37(f). Such sanctions include dismissal of the case. Fed. R. Civ. P. 37(b)(2)(A)(v).

The OSC ordered Plaintiff "to show cause in writing no later than June 18, 2019, why this court should not recommend dismissal of this case for failure to comply with this court's orders and failure to prosecute his case." (ECF No. 33, emphasis in original.) Plaintiff failed to respond and more than six months have passed. Thus, this case has sat dormant waiting for Plaintiff to provide some explanation and to take some action. But, he has not. On this record, the Court finds Plaintiff has been given ample notice and opportunity to address why he failed to comply with the scheduling order, why he failed to appear at the scheduling conference, why he failed — and continues to fail — to prosecute this action, and why this case should not be dismissed. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018) (a pro se plaintiff must comply with the same rules of civil procedure as other litigants). Having failed to do so, the Court ORDERS as follows:

(1) That the Order to Show Cause (ECF No. 33) is adopted by this Court and made ABSOLUTE; (2) That this action against Defendant Gillian, in her individual capacity, is hereby DISMISSED WITHOUT PREJUDICE; and (3) That, there being no claims or parties remaining, the Clerk shall enter JUDGMENT in favor of Defendants and against Plaintiff in accordance with this Order and Judge Babcock's Order of January 11, 2019 (ECF No. 12); (4) That the Clerk shall mail a copy of this Order to Plaintiff's address of record and email a copy to his email address set forth in the proposed scheduling order: tombusch83@gmail.com; and (5) That the Clerk shall close this case.

FootNotes


1. No mail to Plaintiff has been returned as undeliverable.
Source:  Leagle

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