1:25-cv-02470•Avery et al v. Board of County Commissioners of the County of El Paso Colorado, The
Avery et al v. Board of County Commissioners of the County of El Paso Colorado, The
1:25-cv-02470Cod12 de jan. de 2026
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1 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 Case No. 1:25-cv-02470-NYW-MDB Document 12 filed 01/12/26 USDC Colorado pg 1 of 4
2 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. Case No. 1:25-cv-02470-NYW-MDB Document 12 filed 01/12/26 USDC Colorado pg 2 of 4
3 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 Case No. 1:25-cv-02470-NYW-MDB Document 12 filed 01/12/26 USDC Colorado pg 3 of 4
4 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 Case No. 1:25-cv-02470-NYW-MDB Document 12 filed 01/12/26 USDC Colorado pg 4 of 4
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