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Walck v. Bernalillo County Board of Commissioners

United States District Court, D. New Mexico

February 22, 2019

JOHN WALCK, Plaintiff,
v.
BERNALILLO COUNTY BOARD OF COMMISSIONERS, LEONARD ARMIJO, and PATRICK RAEL, Defendants.

          MEMORANDUM OPINION AND ORDER DISMISSING CASE PURSUANT TO RULE 41(B).

         This matter comes before the Court on an Order to Show Cause Why Case Should Not Be Dismissed with Prejudice (Doc. 35), and on Defendants' Motion to Dismiss Plaintiff's Claims for Continued Non-Participation of Plaintiff in Case Management and Discovery, to Include Plaintiff's Failure to Appear for his Own Deposition, filed November 16, 2018 (Doc. 28). The Court issued the Order to Show Cause because Plaintiff failed to comply with Court orders and failed to prosecute this case or respond to dispositive motions. Plaintiff failed to respond to or comply with the Order to Show Cause. Therefore, Defendants' Motion is well-taken and is GRANTED, and this case is DISMISSED WITH PREJUDICE.

         BACKGROUND

         Plaintiff filed his complaint in state court on December 14, 2017. Doc. 1. Plaintiff alleges that on December 17, 2015, Defendants violated his New Mexico constitutional rights by using excessive force during a traffic stop and discriminating against him based on age. Doc. 1. Defendants removed this case to this Court on January 12, 2018. Id.

         United States Magistrate Judge Laura Fashing held a Rule 16 scheduling conference on March 2, 2018. Plaintiff failed to appear. Plaintiff also failed to participate in the meet and confer or cooperate in preparing the Joint Status Report. Doc. 8.

         Judge Fashing issued an order to show cause. Doc. 9. The order to show cause directed Plaintiff to provide a written explanation showing good cause why he should not be sanctioned. The order specified that “the failure to comply with this order may result in a recommendation that the Court dismiss Mr. Walck's complaint without further warning.” Id.

         Judge Fashing issued a second order to show cause on March 15, 2018, but it appears that Defendant's response to the first order to show cause arrived that same day. Doc. 10. That second order to show cause contained the same warning that “failure to comply with this order may result in a recommendation that the court dismiss Mr. Walck's complaint without further warning.” Id.

         Plaintiff explained in his response that he had approached four different law firms to take his case, but all refused. Notably, Plaintiff attached a declination letter from one of those attorneys, who warned him that he had failed to attend a Rule 16 conference or follow Court orders, and that he was still bound to attend his hearings even while searching for an attorney.

         Plaintiff attended a subsequent scheduling conference and at the hearing United States Magistrate Judge Laura Fashing accepted his explanations and entered an order providing as follows: “The Court accepts Mr. Walcks explanation and finds that Mr. Walck has fulfilled the requirements in the Orders to Show Cause to the Court's satisfaction. No. sanctions will be imposed at this time.” Doc. 16.

         On October 4, 2018, Defendants served a Notice of Videotaped Deposition for Plaintiff. Doc. 27. Plaintiff failed to appear at the scheduled deposition on October 19, 2018.

         Defendants subsequently filed a Motion to Dismiss for Continued Non-Participation of Plaintiff in Case Management and Discovery, to Include Plaintiff's Failure to Appear for his own Deposition, pursuant to Fed.R.Civ.P. 37(d) and 41(b), filed on November 16, 2018 (Doc. 28). According to Defendants, Plaintiff failed to seek any discovery in support of his claims or to attend his own deposition. Discovery is now closed. Doc. 14. Plaintiff failed to respond to the motion to dismiss or respond to the Notice of Briefing Complete filed by Defendants. Doc. 31.

         On November 29, 2018, Defendants filed a Motion for Summary Judgement on the Basis of Qualified Immunity and Lack of Evidence (Doc. 29). Plaintiff failed to respond to the motion or respond to the Notice of Briefing Complete filed by Defendants. Doc. 32.

         It appears that Plaintiff failed to send his portion of his pretrial order to Defendants by January 14, 2019. Plaintiff was directed to do so in the Court's scheduling order. Doc. 14.

         Finally, the Court issued the Order to Show Cause. Doc. 35. The Court directed Plaintiff to respond to the Order to Show Cause and provide good cause why he should not be sanctioned for failing to prosecute this case, respond to Defendants' motions, or attend his deposition. The Court also directed Plaintiff to respond to the two pending dispositive motions. The Court warned Plaintiff that his failure to comply with ...


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