Romero v. Gallegos-Cervantes et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 22-cv-01602-NYW-MDB
RICHARD ROMERO,
Plaintiff,
v.
F. GALLEGOS-CERVANTES, Officer #2044, and
LT. ALLEN,
Defendants.
ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION
This 	matter is 	before the Court 	on 	the Recommendation of United States
Magistrate Judge Maritza Dominguez Braswell issued on December 31, 2024. 	[Doc.
166]. 	Judge Dominguez Braswell recommends that (1) Defendants’ Motion to Dismiss
Complaint [ECF 1] for Failure to Prosecute (“Motion to Dismiss”), [Doc. 145], be granted;
and (2) Plaintiff Richard Romero’s (“Plaintiff” or “Mr. Romero”) Complaint, [Doc. 1], be
dismissed 	with 	prejudice. 	See 	generally 	[Doc. 	166 	(the 	“Recommendation”)].
Specifically, Judge Dominguez Braswell determined that the dismissal of Plaintiff’s
Complaint with prejudice is appropriate in light of his ongoing failure to comply with the
Court’s orders compelling him to respond to the Defendants’ discovery requests, see
[Doc. 109; Doc. 138], and upon consideration of the factors set forth in Ehrenhaus v.
Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). [Doc. 166 at 3–9].
The Recommendation states that objections to the Recommendation must be filed
within 14 days after its service on the Parties. 	[Id. at 9–10]; see also 28 U.S.C.
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§ 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2). Before the 14-day period for objections expired,
Mr. Romero filed a Notice of Appeal, [Doc. 169], which divested this Court of jurisdiction,
see Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir. 1998) (observing
that the filing of a notice of appeal generally divests the district court of jurisdiction over
the issues on appeal).1 	On February 11, 2025, the United States Court of Appeals for
the Tenth Circuit dismissed Mr. Romero’s appeal, issued its Mandate, and transferred
jurisdiction back to this Court. See [Doc. 175; Doc. 176].
After filing his Notice of Appeal and before the 14-day period expired, Mr. Romero
also filed a letter to the Court,2 wherein he writes to “inform [the Court]” of various issues,
including that Mr. Romero (1) is disabled; (2) recently suffered a lower back injury for
which he is now medicated; (3) is worried and scared because the “defendants co-
worker’s are now bulling [him], provoking [him] and retaliating on [him] everyday since
[he] filed [his] prisoner complaint against the defendants”; and (4) “fear[s] for [his] safety
. . . at Jefferson County Jail.” 	[Doc. 170 at 1]. 	Mr. Romero also explains that Judge
Dominguez Braswell denied his requests for the appointment of counsel and “denied [his]
subpoena of [his] witnesses and the chiropractor.” 	[Id.]. 	Finally, Mr. Romero asks that
this Court refrain from dismissing his case. [Id. at 1–2].
The 	Court 	does 	not 	construe 	Mr. 	Romero’s 	letter 	as 	an 	Objection 	to 	the
Recommendation because the letter contains no substantive arguments directed at the
1 	Because 	Mr. 	Romero’s 	filing 	expressly 	indicated 	that 	he 	was 	appealing 	Judge
Dominguez Braswell’s Recommendation to the United States Court of Appeals for the
Tenth Circuit, this Court did not construe it as an Objection to the Recommendation. [Doc.
168; Doc. 169].
2 This Court recognizes that Plaintiff is proceeding without an attorney. 	Because Mr.
Romero is pro se, this Court reads his filings liberally. 	See Haines v. Kerner, 404 U.S.
519, 520–21 (1972).
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Recommendation—let alone any arguments that address Mr. Romero’s failure to provide
discovery ordered. 	See [Doc. 170]. 	Even if the Court did construe the letter as an
Objection, a general objection that does not put the district court on notice of the basis of
a specific objection does not preserve the objection for de novo review by the district
court. See United States v. One Parcel of Real Prop. Known As 2121 E. 30th St., Tulsa,
Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). 	And while the Court acknowledges the
difficulties for any litigant to proceed without an attorney in federal court, the law is clear
that Mr. Romero is still bound by the same procedural rules and substantive law as a
represented party. Garret v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005). 	Thus, the Court concludes that no Party has objected to the Recommendation
and the time to do so has elapsed.
In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It
does not appear that Congress intended to require district court review of a [magistrate
judge’s] factual or legal conclusions, under a de novo or any other standard, when neither
party 	objects 	to 	those 	findings.”). 	In 	this 	matter, 	the 	Court 	has 	reviewed 	the
Recommendation to satisfy itself that there is “no clear error on the face of the record.”3
Fed. R. Civ. P. 72(b), advisory committee’s note to 1983 amendment. 	Based on this
review, the Court has concluded that the Recommendation is thorough, well-reasoned,
and a correct application of the facts and the law, including Judge Dominguez Braswell’s
3 This standard of review is something less than a “clearly erroneous or contrary to law”
standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review.
Fed. R. Civ. P. 72(b).
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recommendation that this action be dismissed with prejudice.
Accordingly, it is ORDERED that:
(1) 	The Recommendation of United States Magistrate Judge Maritza Dominguez
Braswell [Doc. 166] is ADOPTED;
(2) 	Defendants’ Motion to Dismiss Complaint [ECF 1] for Failure to Prosecute
[Doc. 145] is GRANTED;
(3) 	Plaintiff Richard Romero’s Complaint [Doc. 1] is DISMISSED with prejudice;
(4) 	The Clerk of Court is directed to close this case; and
(5) 	The Clerk of Court shall mail a copy of this Order to:
Richard Romero
#P01114119
Jefferson County Detention Facility
P.O. Box 16700
Golden, CO 80402-6700
DATED: February 11, 2025 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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