Williams v. Carbajol

THOMAS JEFFERSON WILLIAMS IV, Plaintiff, v. CARBAJOL, Defendant.

Civil Action No. 20-cv-02119-NYW

United States District Court, D. Colorado

April 12, 2022

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Nina Y. Wang United States Magistrate Judge

This matter is before the court on the failure of Plaintiff Thomas Jefferson Williams IV (“Plaintiff” or “Mr Williams”) to respond to this court's Order to Show Cause dated March 15, 2022. [Doc. 56]. This civil action was directly assigned to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c) and the Order of Reference for all purposes dated May 20, 2021. [Doc. 40].

BACKGROUND

Mr Williams initiated this civil action pro se on July 20, 2020, naming eight Defendants: Deputy Sackett, Deputy Kriswonzki, Sergeant Farrell, and Mr. Carbajol, the El Paso County Jail, Trinity Food Services, and two individuals identified as Mr. Dave and Ms. Victoria. [Doc. 1 at 1-3]. The Honorable Gordon P. Gallagher granted Plaintiff leave to proceed in forma pauperis, see [Doc. 4] and directed Plaintiff to file an Amended Complaint see [Doc. 5], which Plaintiff did on August 10, 2020. [Doc. 6]. In the Amended Complaint, Mr. Williams named Mr. Carbajol, Mr. Dave, Ms. Victoria, Trinity Food Services, El Paso County, Deputy Sackett, Sergeant Farrell, and Deputy Kriswonzki as Defendants. [Id. at 3]. On December 14, 2020, Judge Gallagher recommended that Plaintiff's claims against Deputy Sackett, Sergeant Farrell, and Deputy Kriswonzki be drawn to a presiding judge. [Doc. 16 at 10]. In addition, Judge Gallagher recommended that Plaintiff's claim against Mr. Carbajol, only to the extent it alleges a claim of negligent infliction of emotional distress, be drawn to a presiding judge. [Id.]. Judge Gallagher recommended that the remaining claims and Defendants be dismissed without prejudice for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. [Id.]. On February 26, 2021, the Honorable Lewis T. Babcock accepted the Recommendation and dismissed Plaintiff's claims accordingly. [Doc. 20 at 2]. The case was then directly assigned to the undersigned. [Id.].

On March 9, 2021, Deputy Sackett, Deputy Kriswonzki, and Sergeant Farrell (the “State Defendants”) waived service of the Amended Complaint. [Doc. 23]. On March 29, 2021 and May 19, 2021, Plaintiff and State Defendants consented to the jurisdiction of a Magistrate Judge, [Doc. 27; Doc. 39], and the case was referred to the undersigned for all purposes. [Doc. 40].

The State Defendants filed a Motion to Dismiss on April 30, 2021, seeking dismissal of all claims against them. [Doc. 36]. This court granted the Motion to Dismiss on November 30, 2021, dismissing all claims against the State Defendants. See [Doc. 49]. Noting that Plaintiff proceeds pro se, and in light of the Tenth Circuit's directive that if “it is at all possible that the party against whom the dismissal is directed can correct the defect in the pleading or state a claim for relief, the court should dismiss with leave to amend, ” see [id. at 35 (quoting Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990))], the court granted Plaintiff leave to file a Second Amended Complaint on or before December 28, 2021. [Id. at 37].

In addition, the court noted that, as an incarcerated litigant, Mr. Williams could rely on the United States Marshals Service (“USMS”) to serve process. [Id. at 36]. Because it was not clear from the docket that the USMS had attempted service on Mr. Carbajol, the lone remaining Defendant, the court ordered the USMS to attempt service on Mr. Carbajol at the address provided by Plaintiff-a business address for Trinity Food Services. [Id. at 36-37].

Mr. Williams did not file a Second Amended Complaint by the December 28, 2021 deadline, nor did Mr. Williams seek an extension of this deadline. Accordingly, the court entered a Minute Order on January 11, 2022, recognizing that “Plaintiff's claims against Deputy Sackett, Sergeant Farrell, and Deputy Kriswonski were dismissed as of the November 30, 2021 Order.” [Doc. 51 at 1]. A copy of the January 11, 2022 Minute Order was mailed to Plaintiff at his provided address: Roberts Road Residential Facility. [Doc. 52].

On March 7, 2022, the January 11, 2022 Minute Order was returned to the court as undeliverable. [Doc. 54]. The court's independent review of the CDOC's “Offender Search” indicates that Mr. William's “Current Facility Assignment” is “INTENSIVE SUPERVISION - INMATE;” the CDOC's website represents that the Intensive Supervision Program “is the structured supervision, monitoring, and guidance of the activities of an offender living in an approved private residence such as a house or apartment.” See Intensive Supervision Program-Inmate, Colorado Department of Corrections, https://cdoc.colorado.gov/parole-and-re-entry-services/supervision/community-corrections/intensive-supervision-program-inmate (last visited April 12, 2022). Thus, it appears that Mr. Williams has been released from CDOC custody or otherwise no longer resides at the Roberts Road Residential Facility. Additionally, a summons directed at Mr. Carbajol was returned unexecuted on March 9, 2022, stating that “Mr. Carbajol [n]o longer works for [t]his company” and that Mr. Carbajol had last worked for Trinity Food Services in October of 2021. [Doc. 55].

Finding that Plaintiff had failed to comply with the Local Rules and the Federal Rules of Civil Procedure, this court issued an Order to Show Cause on March 15, 2022 directing Plaintiff to show cause, on or before April 6, 2022, why the court should not recommend dismissal of his remaining claim against Mr. Carbajol for failure to prosecute, failure to comply with the Local Rules, and failure to serve Mr. Carbajol. [Doc. 56]. This court specifically advised Plaintiff that the “failure to meaningfully respond to this Order to Show Cause may result in this court recommending dismissal of this case without further notice from the court.” [Id. at 6-7]. Plaintiff did not respond to the Order to Show Cause by the court's deadline. On March 28, 2022, the Order to Show Cause was returned to the court as undeliverable. [Doc. 58]. This Recommendation follows.

ANALYSIS

The Local Rules of Practice for the District of Colorado provide that all unrepresented parties must file a notice of change of mailing address within five days of the date of any such change. See D.C.COLO.LCivR 5.1(c). Additionally Rule 4 of the Federal Rules of Civil Procedure directs that “[i]f a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m). Further, under Local Rule 41.1,

[a] judicial officer may issue an order to show cause why a case should not be dismissed for lack of prosecution or for failure to comply with these rules, the Federal Rules of Civil Procedure, or any court order. If good cause is not shown within the time set in the show cause order, a district judge or a magistrate judge exercising consent jurisdiction may enter an order of dismissal with or without prejudice.

D.C.COLO.LCiv R 40.1.

“A district court undoubtedly has discretion to sanction a party for failing to prosecute or defend a case, or for failing to comply with local or federal procedural rules.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002); see also Gripe v. City of Enid, 312 F.3d 1184, 1188 (10^th Cir. 2002).

Further, a party's pro se status does not exempt him from complying with the procedural rules that govern all civil actions filed in this District-namely, the Federal Rules of Civil Procedure and the Local Rules of Practice for the District of Colorado. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008). The court plays a neutral role in the litigation process and cannot assume the role of an advocate for the pro se party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998).

Mr. Williams has failed to comply with Local Rule 5.1 by not informing the court of any change in his mailing address within five days of that change. Because the court received mail sent to Plaintiff on January 11, 2022 returned undeliverable on March 7, 2022, see [Doc. 52; Doc. 54], and because the Order to Show Cause was returned as undeliverable on March 28, 2022, see [Doc. 58], the court can only assume that five days have passed since Plaintiff's address changed. Although the court is mindful of the difficulties that may accompany the transition from incarceration, Plaintiff's failure to keep the court informed of his current contact information has resulted in the court's inability to contact Plaintiff and has rendered the progression of this litigation impossible. See Birdsall v. Lee, No. 08-cv-00081-WDM-MEH, 2008 WL 4080194, at *2 (D. Colo. Aug. 28, 2008) “[T]he matter is at a standstill without Plaintiff's presence in the case and [she] is the only one who can change the situation.”).

“Just as Defendant[] [is] burdened by Plaintiff's failure to provide a current address . . . so, too, is the Court.” Almeyda v. Peterson, No. 08-cv-01778-ZLW-KLM, 2009 WL 1396262, at *3 (D. Colo. May 15, 2009). Plaintiff's failure to follow the Local Rules provides a basis for dismissal of his claim against Mr. Carbajol without prejudice. See Fogle v. Bonner, No. 09-cv-00962-WYD-BNB, 2010 WL 1780825, at *1 (D. Colo. Feb. 23, 2010), report and recommendation adopted, 2010 WL 1780820 (D. Colo. Apr. 30, 2010) (recommending that a case be dismissed due to, in part, the plaintiff's failure to file a notice of change of address).

Additionally Mr. Williams has failed to comply with Rule 4 of the Federal...