Romero v. Gallegos-Cervantes et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 22–cv–01602–NYW–MDB
RICHARD ROMERO,
Plaintiff,
v.
F. CERVANTES GALLEGOS, Officer #2044, and
ALLEN, Lieutenant,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
This matter is before the Court on Defendants’ Motion to Dismiss Complaint for Failure
to Prosecute. ([“Motion to Dismiss” or “Motion”], Doc. No. 145.) Plaintiff filed a Response to
the Motion. ([“Response”], Doc. No. 159). Defendants have not replied, and the time to do so
has lapsed. After reviewing the Motion, briefing, and relevant law, the Court RECOMMENDS
that the Motion to Dismiss be GRANTED.
SUMMARY FOR PRO SE PLAINTIFF
The Court is recommending that Defendants’ Motion to Dismiss be granted. You have
not responded to the discovery requests provided by Defendants on June 6, 2023, despite several
Court orders to do so and warnings that your failure to do so could result in dismissal. The Court
weighs several factors in determining whether to dismiss a case under these circumstances, and
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here, all of those factors weigh in favor of dismissal. This is only a high-level summary of the
Court’s Recommendation. The full Recommendation, including information about your right to
object to it, is set forth below.
BACKGROUND
Plaintiff initiated this action on June 27, 2022, alleging Jefferson County Jail, Officer
Gallegos-Cervantes, and Lieutenant Allen violated 42 U.S.C. § 1983 by (1) using excessive force
and (2) violating his Fourteenth Amendment due process rights. (Doc. No. 1 at 3-11.) In October
2022, the Honorable Lewis T. Babcock dismissed all claims against Jefferson County Jail and
the claims against Gallegos-Cervantes and Allen for violations occurring in their official
capacities. (Doc. No. 12 at 1-2.) Thus, only Plaintiff’s Section 1983 claims against Gallegos-
Cervantes and Allen in their individual capacities remain at this time. (Id.)
On August 15, 2023, Defendants moved to compel Plaintiff to respond to their First Set
of Written Discovery Responses, which had been delivered to Plaintiff on June 6, 2023. (Doc.
No. 95.) On September 11, 2023, the Court ordered Plaintiff to respond to Defendants’ discovery
requests by September 25, 2023. (Doc. No. 105.) After Plaintiff failed to respond by the required
deadline, Defendants filed a Motion for Sanctions on October 5, 2023. (Doc. No. 116.) Although
Plaintiff sent Defendants’ counsel a HIPAA-compliant information release form, as noted in his
November 15, 2023 letter to the Court, (Doc. No. 131), he did not otherwise respond to the
Motion for Sanctions or the outstanding discovery requests. (Doc. No. 145 at 2.)
The Court issued its Recommendation on Defendants’ Motion for Sanctions on
November 17, 2023. (Doc. No. 135.) The Recommendation detailed the discovery issue and
recommended that Plaintiff, once again, be ordered to comply with Defendants’ discovery
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requests.1 (Id. at 10.) The Court noted, “Although some information sought in these requests can
be obtained using the medical authorization already provided to Defendants, the discovery
requests call for additional information that is material to the defense of claims.” (Id. at 9.) In
other words, Plaintiff’s HIPAA-compliant release form, by itself, was an insufficient response to
Defendants’ discovery requests. The presiding judge adopted the Recommendation on December
12, 2023, and ordered Plaintiff to comply with Defendants’ discovery requests by January 12,
2024. (Doc. No. 138 at 3.) Moreover, the presiding judge advised Plaintiff that his failure to
comply could result in the dismissal of the action. (Id.)
To date, Plaintiff has not complied with the presiding judge’s December 12, 2023 Order.
(Doc. No. 145 at 2.) Accordingly, the Court now considers whether to recommend dismissal of
Plaintiff’s case for failure to prosecute.
LEGAL STANDARD
Rule 41(b) provides, in part, “[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.” Fed.
R. Civ. P. 41(b). Courts consider the five Ehrenhaus v. Reynolds factors when determining
whether to dismiss a case under Rule 41(b): (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 916, 921 (10th
Cir. 1992); see also Mobley v. McCormick, 40 F.3d 337, 341 (10th Cir. 1994) (directing courts to
1 Defendants have issued interrogatories, requests for production, and requests for admission, as
outlined in Page 8 of the Recommendation. (Doc. No. 135 at 8.)
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apply Ehrenhaus factors in analyzing Rule 41(b) involuntary dismissals). Dismissal is an
appropriate sanction if, after considering all the factors, the court “concludes that dismissal alone
would satisfy the interests of justice.” Ehrenhaus, 965 F.2d at 921.
Rule 41(b) dismissal “operates as an adjudication on the merits,” thus, dismissal is with
prejudice, unless “the dismissal order states otherwise.” Fed. R. Civ. P. 41(b); 9 Charles Alan
Wright & Arthur R. Miller, Fed. Prac. and Proc. § 2372 (4th ed. 2023). Still, dismissal with
prejudice “represents an extreme sanction appropriate only in cases of willful misconduct,” and
should be used “as a weapon of last, rather than first, resort.” Ehrenhaus, 965 F.2d at 920.
ANALYSIS
Defendants argue the Ehrenhaus factors overwhelmingly support dismissing Plaintiff’s
claims against Defendants with prejudice.2 (See generally Doc. No. 145.) The Court agrees.
Prejudice to Defendants
As to the first factor, courts have found prejudice where a party is “causing delay and
mounting attorney’s fees.” Ehrenhaus, 965 F.2d at 921; see also Jones v. Thompson, 996 F.2d
261, 264 (10th Cir. 1993) (“Plaintiffs have prejudiced the [d]efendants by causing delay and
mounting attorney’s fees.”). Prejudice may also exist where a party’s conduct “create[s]
uncertainty around defense strategy.” Ellis-Hall Consultants, LLC v. Hofmann, No. 20-4040,
2022 WL 3972093, at *4 (10th Cir. Sept. 1, 2022).
2 Plaintiff’s Response does not address the Ehrenhaus factors, or otherwise respond to the
arguments presented by Defendants in their Motion. Plaintiff instead urges the Court to deny
dismissal because “[t]here is burden of proof in this case, as well as probable cause.” (Doc. No.
159 at 1.)
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Here, the record reveals Defendants have suffered prejudice as a result of Plaintiff’s
failure to respond to Defendants’ discovery requests. First, Plaintiff’s conduct has significantly
delayed proceedings. This matter has been before the Court for over two years, and Defendants
have been seeking this discovery for nearly eighteen months. (See Docs. No. 1; 95.) The case
cannot move forward until Plaintiff provides Defendants with information regarding his claims,
alleged injuries, witnesses, medical records, and more. (See Doc. No. 135 at 8 (outlining
Defendants’ discovery requests).) Second, Plaintiff’s failure to respond has created uncertainty
about how Defendants should litigate the case. (Doc. No. 145 at 4; see also Ellis-Hall
Consultants, 2022 WL 3972093, at *4 (finding prejudice where “plaintiffs’ conduct . . . created
uncertainty about how defendants would litigate the case.”).) Without knowing the complete
substance of Plaintiff’s claims, Defendants cannot prepare a defense against them. (Doc. No. 145
at 4.) In other words, Plaintiff’s conduct has brought the case to a standstill.
Thus, the first Ehrenhaus factor weighs in favor of dismissal.
Inference with Judicial Process
Causing a district court to expend unnecessary resources typically satisfies the second
Ehrenhaus factor. Ellis-Hall Consultants, 2022 WL 3972093, at *5. Here, Plaintiff’s failure to
answer Defendants’ discovery requests has caused the Court to expend unnecessary time and
resources reviewing filings and issuing orders. (See, e.g., Docs. No. 95; 104; 107 (briefing for
motion to compel discovery); Doc. No. 109 (ordering Plaintiff to respond to discovery); Doc.
No. 116 (motion for sanctions); Doc. No. 135 (recommending motion for sanctions be granted
and plaintiff be ordered to comply with discovery requests).)
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Even if Plaintiff’s conduct had not directly caused the Court to expend resources, a party
failing to comply with discovery orders can still form the basis for interference with judicial
process. See EBI Sec. Corp. v. Hamouth, 219 F.R.D. 642, 648 (D. Colo. 2004) (finding
defendants’ failure to comply with discovery order “inevitably interfered with the judicial
process”); Lewis v. Erikson, No. 17-cv-03154-RM-NYW, 2019 WL 7630634, at *3 (D. Colo.
Dec. 13, 2019), report and recommendation adopted, No. 17-cv-03154-RM-NYW, 2020 WL
364566 (D. Colo. Jan. 22, 2020) (finding judicial interference where plaintiff “willfully failed to
comply with a direct court order” regarding discovery). Thus, the second Ehrenhaus factor
weighs in favor of dismissal.
Plaintiff’s Culpability
As to the third factor, establishing culpability requires willfulness, bad faith, or some
fault, rather than a simple inability to comply. Lee v. Max Int’l, LLC, 638 F.3d 1318, 1321 (10th
Cir. 2011). To determine whether a failure to comply with an order is willful, courts look to
whether there is an “intentional failure[,] as distinguished from involuntary compliance.” In Re
Standards Metals Corp., 817 F.2d 625, 628-29 (10th Cir. 1987) (citation omitted). A showing of
wrongful intent is not required. Id.
Here, Plaintiff has failed to comply with two direct Court orders regarding discovery,
(see Docs. No. 109; 138), despite numerous reminders from the Court. (See Docs. No. 153; 163.)
And while Plaintiff has sent defense counsel a HIPAA-compliant information release form, (see
Doc. No. 131), the Court has explicitly stated this medical authorization form does not relieve
him of his remaining discovery obligations. (Doc. No. 135 at 9.) Plaintiff’s ability to provide this
form indicates he is capable of understanding Defendants’ discovery requests and the Court’s
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orders. Defendants also point out that Plaintiff has initiated and litigated another federal case in
this district—Romero v. Wellpath, et al., Civ. Act. No. 23-cv-00328-NYW-MDB. This suggests
Plaintiff is familiar court procedures. (Doc. No. 145 at 5.) So, while the Court acknowledges
Plaintiff’s pro se status and the attendant challenges, his failure to respond to Defendants’
discovery requests and comply with Court orders, appears to be closer to an “intentional failure.”
In Re Standards Metals, 817 F.2d at 628-29. The culpability factor therefore weighs in favor of
dismissal.
Notice of Potential Dismissal
In its December 12, 2023 Order, the presiding judge expressly warned Plaintiff that
failure to comply with her order and respond to Defendants’ discovery requests may result in
dismissal. (Doc. No. 138 at 3.) There is nothing to indicate Plaintiff did not receive, or is not
aware of, that order and warning. This factor weighs in favor of dismissal as well.
Availability of Lesser Sanctions
Finally, “the sanction of dismissal is not ordinarily warranted if lesser sanctions would be
effective.” Ehrenhaus, 965 F.2d at 922. Fed. R. Civ. P. 37(b) provides several possible sanctions
for violating a discovery order, but here, these sanctions would be ineffective. Plaintiff has had
several opportunities to fulfill his discovery obligations. First, when Defendants hand-delivered
discovery requests. (See Doc. No. 72.) Second, when the Court warned it was inclined to grant
Defendants’ Motion to Compel. (Doc. No. 97.) Third, when the Court granted Defendants’
Motion to Compel. (Doc. No. 109.) Fourth, when the Court recommended that Defendants’
Motion for Sanctions be granted. (Doc. No. 135.) And finally, when the presiding judge issued
her December 12, 2023 Order. (Doc. No. 138.) Moreover, the Court has reminded Plaintiff of his
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obligations twice since the presiding judge issued her Order. (See Docs. No. 153; 163.) The
months of delay, multiple opportunities to provide the discovery, and outright failure to comply
with court orders, warrants dismissal. See Lee, 638 F.3d at 1321 (finding district court did not
abuse its discretion by dismissing a case after giving plaintiffs three chances to comply with
discovery obligations); Villanueva Echon v. Sackett, 809 F. App’x 468, 473 (10th Cir. 2020)
(affirming district court’s dismissal where defendants refused to answer plaintiff’s interrogatories
despite the court’s repeated warnings).
Because the Ehrenhaus factors are satisfied, a dismissal with prejudice is appropriate.
See, e.g., Swan Glob. Invs., LLC v. Young, No. 18-cv-03124-CMA-NRN, 2020 WL 5204293, at
*8 (D. Colo. June 5, 2020), report and recommendation adopted, No. 18-cv-03124-CMA-NRN,
2020 WL 9432880 (D. Colo. Dec. 10, 2020) (dismissing with prejudice where all factors were
met); Valdez v. Liberty Mutual Insurance Company, No. 19-cv-01382-PAB-KMT, 2020 WL
4882436, at *4 (D. Colo. Aug. 19, 2020) (same). Still, the Court will separately consider whether
to recommend dismissal with or without prejudice.
“Dismissing a case with prejudice serves at least two purposes. It penalizes the party
whose conduct warrants the sanction and discourages ‘those who might be tempted to such
conduct in the absence of such a deterrent.’” Jones, 996 F.2d at 266 (quoting National Hockey
League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976) (per curiam)). Here,
Plaintiff has demonstrated an understanding of Defendants’ discovery requests and the Court’s
orders, as evidenced by him submitting medical authorization forms to Defendant. Additionally,
Plaintiff has demonstrated he is a capable litigant by filing a motion to recuse, motions for
subpoenas, and a letter from the Colorado Medical Board. (See Docs. No. 150; 155; 161; 164.)
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Moreover, during Court conferences Plaintiff demonstrated he understands procedures, rules,
and discovery tools. This, combined with Plaintiff’s prior experience with litigation, leads the
Court to believe Plaintiff is well-aware of his litigation obligations, and understands the
important role discovery plays in a case. Thus, Plaintiff’s failure to respond to Defendants’
discovery requests, and his failure to comply with court orders, reflects a level of disregard that
warrants dismissal with prejudice. Moreover, dismissal without prejudice would only prolong the
matter, and if Plaintiff re-files then abandons his discovery obligations once again, it will be
another waste of judicial resources. And finally, a dismissal with prejudice will deter this and
other claimants from similar conduct in the future. For these reasons, the Court finds it
appropriate to recommend dismissal with prejudice.
CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that Defendants’
Motion to Dismiss for Failure to Prosecute pursuant to Fed. R. Civ. P. 41(b) (Doc. No. 145) be
GRANTED.
The Clerk of Court is directed to mail a copy of this Recommendation to Plaintiff:
Richard Romero
#P01114119
Jefferson County Detention Facility
6C-35
P.O. Box 16700
Golden, CO 80402-6700
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
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28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court or for appellate
review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
the magistrate judge’s ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 31st day of December, 2024.
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BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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