Avery et al v. Board of County Commissioners of the County of El Paso Colorado, The

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 25–cv–02470–NYW–MDB
MIQUEL AVERY, an individual, and
CECIL AVERY, an individual,
Plaintiffs,
v.
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO
COLORADO,
Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge, Maritza Dominguez Braswell
This matter comes before the Court sua sponte due to Plaintiffs’ failure to effectuate
service on Defendant in this matter and failure to respond to an order to show cause pertaining
thereto. In light of Plaintiffs’ failure to timely serve Defendant and failure to respond to the
Court’s Order to Show Cause, the Court RECOMMENDS dismissing this matter without
prejudice.
Summary for Pro Se Plaintiffs
The Court is recommending that your claims be dismissed and that this matter be closed
because you have not served the Defendant. You have fourteen (14) days to object to this
recommendation. This is only a summary of this Order. The full decision and recommendation
are set forth below.
BACKGROUND
Plaintiffs, proceeding pro se, initiated this action by filing an Amended Complaint against
Defendant on September 8, 2025. (Doc. No. 5.) The Complaint alleges that Defendant
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unlawfully seized Plaintiffs’ property. (Id.) To date, Plaintiffs have not demonstrated service of
the Amended Complaint on Defendant.
On December 15, 2025, the Court issued the Order to Show Cause, directing Plaintiffs to
show why this action should not be dismissed pursuant to Fed. R. Civ. P. 4(m). (Doc. No. 11.)
The Court ordered Plaintiffs to file a written response to the Order to Show Cause on or before
January 9, 2026. (Id.) The Court advised Plaintiffs that failure to comply with the Order to Show
Cause would result in a recommendation of dismissal without further notice. (Id.) The Order to
Show Cause was sent by mail to Plaintiffs at the address they provided and has not been returned
to the Clerk as undeliverable. As of this date, Plaintiffs have not filed a response.
ANALYSIS
Although Plaintiffs are proceeding in this case without an attorney, they bear the
responsibility of prosecuting this case with due diligence. Plaintiffs’ pro se status does not vitiate
their obligation to adhere to and comply with “the same rules of procedure that govern other
litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969
F.2d 915, 917 (10th Cir. 1992)); Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994)
(stating that a pro se litigant must “comply with the fundamental requirements of the Federal
Rules of Civil and Appellate Procedure”).
Fed. R. Civ. P. 4(m) provides in relevant part:
If 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. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Plaintiffs filed the operative complaint on September 8, 2025. (Doc. No. 5.) Thus, the 90-
day period for Plaintiffs to serve Defendants expired on December 7, 2025. On December 15,
2025, the Court ordered Plaintiffs to explain why they had not yet served Defendant. (Doc. No.
11.) Despite receiving an opportunity to do so, Plaintiff has not responded. Indeed, Plaintiffs
have not taken any action in this case since September 8, 2025. Accordingly, under Rule 4(m),
this matter may be dismissed without prejudice.
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CONCLUSION
Because the facts and circumstances in this case do not support a permissive extension of
time to serve, the Order to Show Cause is made absolute. Accordingly, it is
ORDERED that the Order to Show Cause (Doc. No. 11) is made ABSOLUTE. The Court
respectfully
RECOMMENDS that this case be DISMISSED without prejudice, pursuant to Federal
Rule of Civil Procedure 4(m).
The Clerk of Court is directed to mail a copy of this Recommendation to:
Miquel S. Avery and Cecil Avery
953 Oakmont Court
Union, KY 41091
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve
and file written objections to the Magistrate Judge’s proposed findings and recommendations
with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. '
636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general
objection that does not put the district court on notice of the basis for the objection will not
preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s report
and recommendation must be both timely and specific to preserve an issue for de novo review by
the district court or for appellate review.” United States v. One Parcel of Real Prop. Known As
2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely
objections may bar de novo review by the district judge of the magistrate judge’s proposed
findings and recommendations and will result in a waiver of the right to appeal from a judgment
of the district court based on the proposed findings and recommendations of the magistrate
judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s decision to
review a magistrate judge’s recommendation de novo despite the lack of an objection does not
preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at 1059-60 (a
party’s objections to the magistrate judge’s report and recommendation must be both timely and
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specific to preserve an issue for de novo review by the district court or for appellate review); Int’l
Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing
to object to certain portions of the magistrate judge’s order, cross-claimant had waived its right to
appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992)
(by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge’s
ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver
rule does not apply when the interests of justice require review).
Dated this 12th of January, 2026.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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