Manning v. McGahey, 1:21-cv-03129

Sitges Manning, proceeding pro se, filed three related civil actions in the District of Colorado in November 2021 (21-cv-03129, 21-cv-03186, 21-cv-03187), each assigned to the same magistrate judge.
The court scheduled telephonic status conferences for February 3, 2022 and set a January 20, 2022 deadline for filing Consent/Non-Consent forms; the orders were mailed to Manning and not returned as undeliverable.
Manning did not appear at any February 3 status conferences, did not file the Consent forms, and did not contact the court; the court issued Orders to Show Cause on February 3 requiring a written response by February 25, 2022.
The Order to Show Cause was returned as undeliverable on February 14, 2022; Manning had not filed a notice of change of address and had indicated in her filings that she is unhoused.
The court found Manning’s failures to update her address, to appear, and to respond to court orders prevented progression of the litigation; no defendants appear to have been served within the 90-day service period.
The magistrate judge ordered reassignment to a district judge and recommended that all three actions be dismissed without prejudice for failure to prosecute, failure to follow the Local Rules, and failure to comply with court orders; the recommendation included instructions on filing objections.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal for failure to prosecute is appropriate	No responsive filings; implied hardship from being unhoused	Court/defendants: dismissal appropriate when plaintiff fails to prosecute or comply with orders	Recommended dismissal without prejudice for failure to prosecute
Whether failure to update mailing address violates Local Rule 5.1 and supports dismissal	Manning indicated she is unhoused, which may impede maintaining an address	Failure to file a change of address burdens court and defendants and frustrates case progression	Court found violation of Local Rule 5.1 and treated it as a basis for dismissal
Whether dismissal under Fed. R. Civ. P. 41(b) is proper for failure to comply with orders and rules	No substantive opposition; no response to the OSC	Court may dismiss under Rule 41(b) for failure to prosecute or comply with orders	Recommendation to dismiss without prejudice under court’s authority and Rule 41 principles
Whether failure to serve defendants under Rule 4(m) warrants dismissal	N/A (no service occurred; no response)	Rule 4(m) permits dismissal if not served within 90 days, but notice is required	Court noted failure to serve but did not rely on Rule 4(m) as basis because OSC issued before service deadlines expired

Reed v. Bennett, 312 F.3d 1190 (10th Cir. 2002) (district court has discretion to sanction for failure to prosecute)
Gripe v. City of Enid, 312 F.3d 1184 (10th Cir. 2002) (dismissal permissible for failure to comply with orders)
Murray v. City of Tahlequah, 312 F.3d 1196 (10th Cir. 2002) (pro se status does not excuse compliance with procedural rules)
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998) (court will not act as advocate for pro se litigants)
Shotkin v. Westinghouse Elec. & Mfg. Co., 169 F.2d 825 (10th Cir. 1948) (district court’s inherent power to dismiss for failure to prosecute)
In re Griego, 64 F.3d 580 (10th Cir. 1995) (procedures for objections to magistrate judge recommendations)
United States v. One Parcel of Real Prop. Known As 2121 E. 30th St., 73 F.3d 1057 (10th Cir. 1996) (objections must put district court on notice to preserve de novo review)
Vega v. Suthers, 195 F.3d 573 (10th Cir. 1999) (timely objections required to avoid waiver of de novo review)
Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901 (10th Cir. 1995) (failure to object to portions of a magistrate’s ruling can waive appeal)
Ayala v. United States, 980 F.2d 1342 (10th Cir. 1992) (failure to file objections waives right to appeal)
Morales-Fernandez v. INS, 418 F.3d 1116 (10th Cir. 2005) (firm waiver rule has exceptions when interests of justice require review)