Free Order to Show Cause - District Court of Colorado - Colorado

Case 1:01-cv-00127-RPM-MJW

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Filed 08/12/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-00127-RPM-MJW VENNIE SCOTT THOMPSON, Plaintiff, v. DEBORAH PATCH, et al., Defendants.

ORDER TO SHOW CAUSE MICHAEL J. WATANABE United States Magistrate Judge This case is before this court pursuant to an Order of Reference to Magistrate Judge issued by Senior District Judge Richard P. Matsch on August 8, 2005 (Docket No. 193), following the Tenth Circuit Court of Appeal' dismissal of the plaintiff' appeal s s for lack of appellate jurisdiction (Docket No. 191). In a Minute Order dated August 8, 2005, this court set a status conference on August 12, 2005, at 9:00 a.m. to obtain an update as to the status of this case. That Minute Order provided that the pro se incarcerated plaintiff could participate by telephone. During that status conference, however, the court was advised by Mr. Thomas Kolle, the Custodian of Offender Records for the Colorado Department of Corrections, that the plaintiff was no longer incarcerated, having been discharged from DOC' custody (not paroled) on February 25, 2005. The only address Mr. Kolle had for s the plaintiff was one the plaintiff provided on February 2, 2005, when he was advised that he had to register as a sex offender. That last known address for the plaintiff is:

Case 1:01-cv-00127-RPM-MJW

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2 The Boulder Homeless Shelter, 4869 North Broadway, Boulder, Colorado 80304; telephone number (303) 449-2823. Plaintiff has not provided the court or defense counsel with a change of address as required by D.C.COLO.LCivR 10.1(M) (" Within ten days after any change of address, telephone number or e-mail address of any attorney or pro se party, notice of the new address, telephone number or e-mail address shall be filed." ). The court further notes that two of the named defendants, Shelly Pollit and Deborah Patch, have not been served with process. Rule 16(f) of the Federal Rules of Civil Procedure provides in relevant part: If a party . . . fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a . . . pretrial conference . . . the judge, upon motion or the judge' own initiative, may make such s orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney' fees, unless the judge s finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust. Fed. R. Civ. P. 16(f). Rule 37(b)(2)(B), (C), and (D), which is referenced in Rule 16(f), permits the following sanctions: (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an

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3 order to submit to a physical or mental examination. Fed. R. Civ. P. 37(b)(2)(B), (C), (D) (emphasis added). With regard to the unserved defendants, Fed. R. Civ. P. 4(m) provides in relevant part: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant and direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. . . . Fed. R. Civ. P. 4(m). Furthermore, Rule 41(b) provides in pertinent part: For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule . . . operates as an adjudication upon the merits. Fed. R. Civ. P. 41(b). Based upon the foregoing, it is hereby ORDERED that on August 25, 2005, at 8:30 a.m. in Courtroom A-502, Fifth Floor, Alfred A. Arraj U. S. Courthouse, 901 Nineteenth Street, Denver, Colorado, a Show Cause Hearing will be held at which the plaintiff shall appear in person and show cause (1) why this case should not be dismissed pursuant to Fed. R. Civ. P. 4(m) and/or 41(b) for failure to prosecute, failure to comply with court orders and Local Rules, and failure to appear, and (2) why the case should not be dismissed as against the unserved defendants pursuant to Fed. R. Civ. P. 4(m). It is further

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4 ORDERED that the plaintiff shall forthwith file a change of address with the Clerk of the Court, with a copy to defense counsel. It is further ORDERED that the Clerk of the Court shall serve a copy of this Order to Show Cause upon the plaintiff at the following address: The Boulder Homeless Shelter, 4869 North Broadway, Boulder, Colorado 80304.

Dated:

August 12, 2005 Denver, Colorado

s/Michael J. Watanabe Michael J. Watanabe United States Magistrate Judge

Case 1:01-cv-00127-RPM-MJW

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-127-RPM -M JW Vennie Scott Thompson v. Deborah Patch, et al.

CERTIFICATE OF SERVICE (CM /ECF)

I hereby certify that on August 12, 2005 , I mailed the Order to Show Cause dated August 12, 2005 using the CM /ECF system which will send notification of such filing to the following individuals: See Attached NEF

And I hereby further certify that I have mailed the above mentioned document to the following non CM /ECF participants: Vennie Scott Thompson at The Boulder Homeless Shelter, 4869 North Broadway, Boulder, Colorado 80304.

GREGORY C. LANGHAM , Clerk By s/Leslie M artin Deputy Clerk