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March 4, 2026 Get Citation Alerts Download PDF Add Note

Miquel Avery and Cecil Avery v. The Board of County Commissioners of the County of El Paso Colorado

District Court, D. Colorado

• Citations: None known
• Docket Number: 1:25-cv-02470

• Precedential Status: Unknown Status

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Nina Y. Wang

Civil Action No. 25-cv-02470-NYW-MDB

MIQUEL AVERY, and

CECIL AVERY,

Plaintiffs,                                                          

v.

THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EL PASO

COLORADO,

Defendant.                                                           

ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION AS MODIFIED

This  matter  is  before  the  Court  on  the  Recommendation  of  United  States 

Magistrate Judge issued by the Honorable Maritza Dominguez Braswell on January 12,
2026 (the “Recommendation”). [Doc. 12]. Judge Dominguez Braswell recommended
that this matter be dismissed without prejudice because Plaintiffs failed to effectuate
timely service on Defendant and failed to respond to an order to show cause pertaining
thereto. [Id. at 1, 3]. Plaintiffs timely objected to the Recommendation on January 26,
2026. [Doc. 14]. For the reasons set forth in this Order, while the findings of fact set forth
in the Recommendation are ADOPTED, Plaintiffs’ Objection is respectfully SUSTAINED
in part.

LEGAL STANDARDS

I. Rule 72(b)

When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district court “determine de novo
any part of the magistrate judge’s disposition that has been properly objected to.” Fed.
R. Civ. P. 72(b)(3). In conducting its review, “[t]he district judge may accept, reject, or
modify the recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Id. “[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., 73 F.3d 1057, 1060 (10th Cir. 1996). Such specific objections permit “the
district judge to focus attention on those issues—factual and legal—that are at the heart
of the parties’ dispute.” Id. at 1059 (quotation omitted).

II. Pro Se Filings

Because Plaintiffs proceed pro se, the Court affords their filings a liberal
construction. Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (per curiam). But the Court
cannot and does not act as their advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991), and applies the same procedural rules and substantive law to Plaintiffs as to

represented parties, see Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir.
2002); Dodson v. Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).

BACKGROUND

On September 8, 2025, Plaintiffs, proceeding pro se, initiated this action by filing
an Amended Complaint against Defendant. [Doc. 5]. The Complaint alleges that
Defendant unlawfully seized and destroyed Plaintiffs’ property in violation of the Fourth,
Fifth, and Fourteenth Amendments to the United States Constitution, resulting in
damages of approximately $1.1 million. [Id. at 4–6].

Plaintiffs were required to serve Defendant with the Amended Complaint within 90
days. Fed. R. Civ. P. 4(m). When Plaintiffs did not, Judge Dominguez Braswell issued
an Order to Show Cause directing Plaintiffs to show cause why this matter should not be
dismissed without prejudice for lack of service. [Doc. 11 at 1]. Judge Dominguez Braswell

gave Plaintiffs until January 9, 2026 to respond, and warned Plaintiffs that if a response
is not timely filed, “the Court may recommend the dismissal of this action without further
notice.” [Id.]. The Order to Show Cause was then mailed to Plaintiffs at the address that
they provided in the Amended Complaint. [Id. at 2].

Plaintiffs did not file a response by January 9, 2026. Accordingly, on January 12,
2026, Judge Dominguez Braswell issued the instant Recommendation recommending
that this case be dismissed without prejudice pursuant to Federal Rule of Civil Procedure
4(m). [Doc. 12 at 1–3]. In the Recommendation, Judge Dominguez Braswell explained
to the Plaintiffs that they have 14 days to file written objections, and those objections must
be specific. [Id. at 1, 3–4].

On  January  26,  2026,  Plaintiffs timely  filed  Plaintiffs’  Objection to  Magistrate 

Judge’s Recommendation of Dismissal and Motion for Extension of Time to Effect Service
(“Objection”).1 [Doc. 14].

ANALYSIS

Plaintiffs do not object to any of Judge Dominguez Braswell’s findings in the
Recommendation; indeed, they acknowledge that they have not served Defendant and

1 The Court notes that the Amended Complaint bears the signatures of both Miquel and
Cecil Avery. [Doc. 5 at 6]. But Plaintiffs’ Objection does not bear the signature of either
Plaintiff. [Doc. 14 at 4]. Pursuant to this District’s Local Rules of Civil Practice, papers
filed by parties must bear the signatures of the filing parties. D.C.COLO.LCivR 5.1(a).

“In all courts of the United States the parties may plead and conduct their own cases
personally or by counsel as, by the rules of such courts, respectively, are permitted to
failed to timely respond to the Order to Show Cause. [Doc. 14 at 2–3]. Instead, they
request that the Court reject the Recommendation and grant Plaintiffs a 60-day extension
to effect service on Defendant. [Id. at 2–4]. Plaintiffs explain that they “did not receive or
timely understand the December 15, 2025 Order to Show Cause” and their “lack of

response was not willful neglect or intentional disregard for the Court’s authority.” [Id. at
2]. They further argue that there is good cause not to dismiss this case, on account of
Plaintiffs’ pro se status, “[t]he substantial constitutional violations alleged, the lack of
prejudice to Defendant, and the strong federal policy favoring decision on the merits.” [Id.
at 2, 4].

As an initial matter, upon de novo review, this Court finds that there is no basis to
reject Judge Dominguez Braswell’s Recommendation. Since the Plaintiffs did not
respond to the Order to Show Cause and there is nothing otherwise on the docket to
indicate that Plaintiffs have made any efforts to serve Defendant, Judge Dominguez
Braswell did not have the benefit of Plaintiffs’ current arguments or evidence when

recommending dismissal.

But there is also nothing in the record to suggest Plaintiffs are not acting in good
faith, and this Court notes that the Court “must extend the time for service” if a “plaintiff
shows good cause.” Fed. R. Civ. P. 4(m). Courts routinely find that a plaintiff’s pro se
status constitutes good cause to extend the time for service under Rule 4. See, e.g.,

manage and conduct causes therein.” 28 U.S.C. § 1654. Accordingly, a plaintiff has the
right to appear on his or her own behalf, but he or she cannot represent other pro
se plaintiffs in federal court. See Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320,
1321 (10th Cir. 2000) (“A litigant may bring his own claims to federal court without
counsel, but not the claims of others.”). Thus, both Miquel and Cecil Avery must sign
any submission for it to apply to both of them. The Court will extend a one-time exception
to Plaintiffs for the purpose of their Objection, but any future submission that does not
comply with this requirement will be struck without substantive consideration.
Austin v. Robinson, No. 22-cv-00823-RMR-MDB, 2023 WL 1069488, at *5 (D. Colo. Jan.
27, 2023), recommendation adopted, 2023 WL 2570244 (D. Colo. Feb. 16, 2023); Lin v.
Peters, No. 98-cv-01470-JEC-DJS, 2000 WL 36739570, at *3 (D.N.M. Dec. 21, 2000);
Taylor v. Frank, No. 90-cv-02410-DES-GLR, 1991 WL 261756, at *1 (D. Kan. Nov. 21,

1991). Here, the Court finds that there is good cause to extend the service deadline given
Plaintiffs’ pro se status.

Accordingly, while the Court ADOPTS the Recommendation, the Court
respectfully SUSTAINS Plaintiffs’ Objection in part, GRANTS the Motion for Extension of
Time to Effect Service, and MODIFIES the Recommendation accordingly. Plaintiffs shall
have until May 1, 2026 to properly serve Defendant. This matter has been pending since
August 8, 2025, and by May 1, 2026, will have been pending over eight months without
any progress. If service is not effectuated by then, the Court may dismiss this action
without prejudice without further notice.

                      CONCLUSION                                     
For the reasons explained above, IT IS ORDERED that:                 
(1)  Plaintiffs’ Objection to Magistrate Judge’s Recommendation of Dismissal 
     and Motion for Extension of Time to Effect Service [Doc. 14] is SUSTAINED 
     in part;                                                        
(2)  Based on the additional information provided in Plaintiffs’ Objection [Doc. 
     14], the Recommendation of United States Magistrate Judge [Doc. 12] is 
     ADOPTED as modified;                                            
 (3)    Plaintiffs  SHALL  SERVE  Defendant  by  May  1,  2026.  If service  is  not 
       effectuated by May 1, 2026, the Court may dismiss this action without 
       prejudice without further notice; and 
 (4)    The Clerk of the Court will MAIL a copy of this Order to: 
       Miquel Avery 
       Cecil Avery 
       953 Oakmont Court 
       Union, KY 41091. 

DATED: March 4, 2026 BY THE COURT: yh
iy Y. Wang □ )
United States District Judge