Rodriguez v. Unknown Mesa County Sheriff's Deputies et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-02283-PAB-STV
ROBERTO RODRIGUEZ,
Plaintiff,
v.
UNKNOWN MESA COUNTY SHERIFF’S DEPUTIES, and
UNKNOWN S.W.A.T. AGENTS,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This matter comes before the Court on Defendants’ Motion to Dismiss Plaintiff’s
Amended Prisoner Complaint and Jury Demand (the “Motion”) [#92] which has been
referred to this Court [#93]. This Court has carefully considered the Motion and related
briefing, the entire case file, and the applicable case law, and has determined that oral
argument would not materially assist the Court. 	For the following reasons, the Court
respectfully RECOMMENDS that the Motion be GRANTED.
I. 	Background
Plaintiff, proceeding pro se, initiated this civil action on September 1, 2023. 	[#1]
After three orders directing Plaintiff to cure deficiencies in his Complaint [##4, 17, 21], on
August 29, 2024, Senior United States District Judge Lewis T. Babcock issued an Order
dismissing in part and drawing in part Plaintiff’s Second Amended Prisoner Complaint
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(the “Complaint”). [#29] As a result of Judge Babcock’s Order, Plaintiff’s Complaint brings
a single excessive force claim against Defendants Unknown Mesa County Sheriff’s
Deputies in their individual capacities and Unknown S.W.A.T. Agents in their individual
capacities (collectively, the “Unknown Defendants”). [##28, 29]
On October 30, 2024, this Court held a status conference. 	[#50] 	Plaintiff and
counsel for the Unknown Defendants appeared. [Id.] Because videos of the incident in
question did not appear to align with the allegations in Plaintiff’s Complaint such that
counsel for the Unknown Defendants could not identify the individuals alleged to have
violated Plaintiff’s rights, this Court ordered counsel for the Unknown Defendants to send
Plaintiff a copy of the videos. [Id.] The Court ordered Plaintiff, upon receipt of the videos,
to send a letter identifying in detail which officers violated his rights. [Id.] The Court also
informed Plaintiff that he may need to file a Third Amended Complaint once the officers
were identified. [Id.]
On March 4, 2025, this Court held another status conference. 	[#61] 	Because
Plaintiff had indicated that he had not received the videos, the Court discussed the matter
with 	Plaintiff’s 	case 	manager 	and 	eventually 	ordered 	counsel 	for 	the 	Unknown
Defendants to resend the videos as compact discs, which Plaintiff would be able to review
at the facility where he was housed. 	[##61, 66] 	The Court also appointed counsel to
represent Plaintiff. [#61] On March 24, 2025, counsel for the Unknown Defendants filed
a certificate of compliance confirming that the videos of the incident had been sent by
compact disc. [#66] On May 7, 2025, this Court held yet another status conference and
Plaintiff still had not reviewed the videos. [##71, 92]
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On May 30, 2025, the Clerk of Court filed notice that attorneys Rachel L. Burkhart
and Brittany Lynn Garza had been selected as counsel for Plaintiff. [#72] And on June
16, 2025, a fourth status conference was held. 	[#73] 	Because appointed counsel had
only recently been selected and needed time to meet with Plaintiff, the Court set a fifth
status conference for July 24, 2025. 	[##73, 92] 	Ultimately, on July 11, 2025, attorneys
Burkhart and Garza declined the appointment. [#76]
During the July 24, 2025 status conference, Plaintiff informed the Court that he
had reviewed the videos of the incident and intended to file a motion to amend his
complaint. [#77] Counsel for the Unknown Defendants advised that she did not oppose
such a motion. [Id.] The Court thus ordered Plaintiff to file a motion to amend by August
7, 2025. [Id.] The Court also set a status conference for September 24, 2025. [Id.]
On August 4, 2025, Plaintiff filed his Unopposed Motion to Amend Prisoner
Complaint but he did not attach a proposed amended complaint to that motion. 	[#79]
Two days later, this Court granted that motion and ordered Plaintiff to file an amended
complaint by August 25, 2025. [#80] Plaintiff did not do so.
At the September 24, 2025 status conference, this Court extended Plaintiff’s
deadline for filing an amended complaint to October 1, 2025. [#82] The Court also set a
further status conference for November 18, 2025. [Id.] Plaintiff did not file his amended
complaint by the October 1 deadline.
On October 10, 2025, Plaintiff filed yet another Motion to Amend Prisoner
Complaint. [#84] For the first time, this motion identified three individuals that the Plaintiff
claimed were involved in the incident in question, but it still did not attach a separate
proposed amended complaint and only described the facts in a cursory fashion. [Id.] On
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October 16, 2025, this Court granted the motion and Ordered Plaintiff to file a new
complaint by October 30, 2025 “containing the names of each deputy, and the
detailed factual allegations describing the specific actions each deputy is alleged
to have taken.” [#87 (emphasis in original)] Plaintiff failed to meet that deadline.
As a result of Plaintiff’s repeated failures to meet deadlines for filing his amended
complaint, during a status conference held on November 18, 2025, this Court authorized
counsel for the Unknown Defendants to file the instant Motion. [#88] On November 24,
2025, the Unknown Defendants filed the instant Motion seeking to dismiss the matter for
failure to prosecute. 	[#92] 	Plaintiff did not timely respond to the Motion and this Court
sua sponte extended his deadline to do so until January 13, 2026. [#94] Despite being
granted this extension, Plaintiff did not respond to the Motion.
II. 	Analysis
Pursuant to Federal Rule of Civil Procedure 41(b), “[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.”1 	In considering dismissal under Rule 41(b) based on a party’s
failure to comply with a court order, courts in the Tenth Circuit have considered the
following five factors, initially set forth in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th
Cir. 1992): 	(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
1 Dismissal also is appropriate under Federal Rule of Civil Procedure 16(f)(1), which
provides, in part: “On motion or on its own, the court may issue any just orders,
including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: . . . (C)
fails to obey a scheduling or other pretrial order.” Rule 37(b)(2)(A)(v) permits the Court
to sanction a party by “dismissing the action or proceeding in whole or in part.”
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for noncompliance, and (5) the efficacy of lesser sanctions. 	See Quarrie v. N.M. Inst. of
Mining & Tech., 621 Fed. App’x 928, 931 (10th Cir. 2015). 	The Court finds that all of
these factors weigh in favor of dismissal.
First, Defendants have suffered actual prejudice as a result of Plaintiff’s failures to
attend Court hearings and comply with Court orders. Though Plaintiff has still not filed a
Complaint naming the specific individuals, in October 2025 he identified the individuals
who he had wanted to name. 	[#84] 	Those individuals continue to face uncertainty as
Plaintiff 	has 	repeatedly 	missed 	deadlines 	to 	actually 	file 	his 	amended 	complaint.
Moreover, Mesa County retained counsel for the Unknown Defendants, at the expense
of Mesa County, and that counsel has had to continually attend status conferences to
address Plaintiff’s failure to comply with deadlines. 	[#92] Second, the amount of
interference with the judicial process is significant as Plaintiff has, with no explanation,
failed to comply with the Court’s orders and file his amended complaint. The Court has
been forced to conduct seven status conferences in this matter and we still do not have
a complaint that names the Defendants. 	And while the early conferences were likely
necessary to provide Plaintiff with the video and ensure that he could review it, the last
several have been the result of Plaintiff’s failure to comply with deadlines. Third, Plaintiff
appears to be solely responsible for his failure to comply with the Court’s orders. 	Fourth,
while the Court had not previously warned Plaintiff that repeated failures to file an
amended complaint could result in dismissal, the issue of dismissal for failure to comply
was raised by Defendant at the last status conference and through the instant Motion.
[##88, 92] And despite this Court sua sponte extending Plaintiff’s deadline to respond to
the Motion [#94], Plaintiff has failed to respond or file the amended complaint. 	Finally,
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there does not appear to be any lesser sanction that would be effective, as Plaintiff has
repeatedly failed to file an amended complaint that would allow this case to proceed.
Accordingly, this Court respectfully RECOMMENDS that Defendants’ Motion to Dismiss
Plaintiff’s Amended Prisoner Complaint and Jury Demand [#92] be GRANTED and that
this action be DISMISSED.2
DATED: January 26, 2026 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
2 Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations with the Clerk of the United States District Court for
the District of Colorado. 	28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla
(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. 2121 East 30th Street, 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 of fact, legal
conclusions, 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 of fact, legal conclusions,
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-
80 (10th Cir. 1999) (holding that the district court’s decision to review magistrate judge’s
recommendation de novo despite lack of an objection does not preclude application of
“firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d
901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain
portions of magistrate judge’s order by failing to object to those portions); Ayala v. United
States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to
appeal the magistrate judge’s ruling by failing to file objections). 	But see, Morales-
Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule
does not apply when the interests of justice require review).
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