McAllister-Ziegler v. CoreCivic Ulster Facility et al
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 10/10/19. This Court respectfully RECOMMENDS that this civil action be DISMISSED without prejudice pursuant to D.C.COLO.LCivR 41.1 for Plaintiffs failure to prosecute, comply with Orders of the court, and this Districts Local Rules of Civil Practice. A copy of this Recommendation shall be sent to: Nicholas M. McAllister-Ziegler, 4101 Pecos Street, Denver, CO 80211. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 19-cv-01333-RBJ-NYW
CORE CIVIC ULSTER FACILITY;
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Nina Y. Wang
This matter comes before the court on the Order to Show Cause dated September 25, 2019,
stemming from Plaintiff Nicholas McAllister-Ziegler’s (“Plaintiff” or “Mr. McAllister-Ziegler”)
failure to appear for the court-ordered Status Conference set for September 25, 2019. [#42]. The
undersigned Magistrate Judge considers the matter pursuant to 28 U.S.C. § 636(b) and the Order
Referring Case dated May 10, 2019, [#10].
For the following reasons, I respectfully
RECOMMEND that this civil action and Plaintiff’s Second Amended Complaint [#31] be
DISMISSED without prejudice for failure to prosecute under D.C.COLO.LCivR 41.1 and for
Plaintiff’s failure to comply with this District’s Local Rules of Civil Practice and Orders of the
Plaintiff initiated this civil action by filing his pro se prisoner Complaint in the District
Court of Denver County on or about March 26, 2019. See [#5]. According to Plaintiff, Defendants
violated his Eighth Amendment rights, and his Complaint asserted a single claim for deliberate
indifference. See generally [#5]. On May 8, 2019, Defendants removed this civil action from the
District Court for the County of Denver, invoking federal subject matter jurisdiction pursuant to
28 U.S.C. § 1331. See [#1].
On July 8 and 10, 2019, the court received notice that Plaintiff’s mail was being returned
to the court as undeliverable, see [#32; #33], prompting this court to direct the Clerk of the Court
to update Plaintiff’s mailing address as indicated in his Second Amended Complaint, see [#31].
The court then re-sent its previous filings to Mr. McAllister-Ziegler at the updated mailing address,
4101 Pecos Street, Denver, Colorado 80211. See [#36]. On July 19, 2019, this court conducted a
Status Conference, at which Plaintiff was not present, but given the recent update to Mr.
McAllister-Ziegler’s mailing address, this court set a further Status Conference for September 25,
2019, rather than issue an Order to Show Cause. See [#37].
Plaintiff failed to appear for the September 25, 2019 Status Conference. At the time, the
court’s filings were not returned undeliverable to Mr. McAllister-Ziegler, and thus this court
presumed Plaintiff had adequate notice of the Status Conference. However, shortly after the Status
Conference, the court’s Order [#39] on the pending Recommendation [#38] to deny Plaintiff’s
Motion for Remand was returned undeliverable with the notation, “Return to Sender. Attempted
– Not Known. Unable to Forward.” [#41]. Since filing his Second Amended Complaint, Plaintiff
has not informed the court of any change in his mailing address. And given Plaintiff’s failure to
appear at the Status Conference, this court issued an Order to Show Cause for lack of prosecution.
On October 8, 2019, this court’s Order to Show Cause [#42] was returned undeliverable,
with the notation “Return to Sender. Not Deliverable as Addressed. Unable to Forward.” [#47].
To date, Plaintiff has yet to update his mailing address with the court, and the Order to Show Cause
specifically advised Mr. McAllister-Ziegler that his “failure to comply with this Order may
result in this court recommending dismissal of this action.” [#42 at 3 (emphasis in original)].
Local Rule of Civil Practice 41.1, D.C.COLO.LCivR, provides:
A judicial officer may issue an order to show cause why a case should not be
dismissed for lack of prosecution or for failure to comply with these rules, the
Federal Rules of Civil Procedure, or any court order. If good cause is not shown
within the time set in the show cause order, a district judge or a magistrate judge
exercising consent jurisdiction may enter an order of dismissal with or without
Further, D.C.COLO.LAttyR 5(c) requires pro se parties to maintain current contact information
and states that “Notice of change of name, mailing address, or telephone number of an
unrepresented prisoner or party shall be filed not later than five days after the change.” A party’s
pro se status does not exempt her from complying with the procedural rules that govern all civil
actions filed in this District, namely, the Federal Rules of Civil Procedure and the Local Rules of
Practice for the District of Colorado. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2
(10th Cir. 2008). In addition, the court plays a neutral role in the litigation process and cannot
assume the role of an advocate for the pro se party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,
672 (10th Cir.1998).
As mentioned, Plaintiff has yet to update his mailing address with the court, resulting in
the court’s filings to be returned undeliverable. In addition, Plaintiff failed to appear for the courtordered Status Conference set for September 25, 2019, and the Order to Show Cause specifically
advised Mr. McAllister-Ziegler that his failure to respond may result in the court recommending
dismissal of this action without prejudice. Having not received a response and given Mr.
McAllister-Ziegler’s failure to abide by court Orders and this District’s Local Rules of Civil
Procedure and his lack of diligence in litigating this matter, dismissal of this civil action for lack
of prosecution is warranted. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161
(10th Cir. 2007) (providing that when dismissing a case without prejudice, “a district court may,
without abusing its discretion, enter such an order without attention to any particular procedures.”);
see also Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (“A district court undoubtedly has
discretion to sanction a party for failing to prosecute or defend a case, or for failing to comply with
local or federal procedural rules.”).
For the reasons stated herein, this court respectfully RECOMMENDS that:
D.C.COLO.LCivR 41.1 for Plaintiff’s failure to prosecute, comply with Orders of
the court, and this District’s Local Rules of Civil Practice. 1
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 Property Known As 2121 East 30th
Street, Tulsa, Oklahoma, 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) (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”); International Surplus Lines Insurance Co. v. Wyoming Coal Refining
Systems, 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 MoralesFernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when
the interests of justice require review).
A copy of this Recommendation shall be sent to:
Nicholas M McAllister-Ziegler
4101 Pecos St
Denver, CO 80211
DATED: October 10, 2019
BY THE COURT:
Nina Y. Wang
United States Magistrate Judge
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