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Smith v. Martinez

United States District Court, D. Colorado

December 9, 2015

ADRIAN A. SMITH, Plaintiff,
v.
MARTINEZ, Correctional Officer, and GODFREY, Correctional Officer, Defendants.

ORDER

RAYMOND P. MOORE United States District Judge

This matter is before the Court on the Recommendation of United States Magistrate Judge (“Recommendation”) (ECF No. 28) issued on November 4, 2015, to dismiss Plaintiff’s case for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. For the reasons stated below, the Court has conducted a de novo review of the matter and, upon such review, modifies the Recommendation and dismisses this case.

I. BACKGROUND

Plaintiff, proceeding pro se, filed this action on July 21, 2015, complaining Defendants violated his Eighth Amendment Right to be free from cruel and unusual punishment. (ECF No. 1 at 3.) The Court file shows the following.

1. On July 21, 2015, Plaintiff filed a motion for leave to proceed under 28 U.S.C. § 1915. (ECF No. 3.) Magistrate Judge Gallagher granted Plaintiff’s motion for leave to proceed under 28 U.S.C. § 1915. That order was returned as undeliverable, with markings indicating Plaintiff was “Paroled” and the facility “REFUSED” to accept the returned envelope. (ECF No. 15.);
2. On July 24, 2015, Magistrate Judge Michael E. Hegarty set the matter for a preliminary scheduling/status conference on October 8, 2015. (ECF No. 9.) That order was returned as undeliverable, with markings indicating Plaintiff was “Paroled” and the facility “REFUSED” to accept the returned envelope. (ECF No. 13.);
3. On July 24, 2015, Magistrate Judge Hegarty granted service of the Complaint via United States Marshal. (ECF No. 11.);
4. On August 25, 2015, the summonses to Defendants were returned as unexecuted. (ECF Nos. 18; 19; 20.);
5. On September 9, 2015, the unexecuted summonses to Defendants were returned as undeliverable to Plaintiff. (ECF No. 21.);
6. On October 8, 2015, Magistrate Judge Hegarty held a status conference in this matter. (ECF No. 22.) Plaintiff did not appear. (ECF No. 22.);
7. On October 9, 2015, Magistrate Judge Hegarty ordered Plaintiff to show cause as to why the court should not recommend dismissal of the matter for Plaintiff’s failure to prosecute. (ECF No. 24.) Plaintiff was given until October 30, 2015 to respond to this show cause order. (ECF No. 24.);
8. The orders reflecting the status conference and show cause order were returned as undeliverable. (ECF Nos. 26; 27.) The envelopes were returned as undeliverable, with markings indicating Plaintiff was “Paroled” and the facility “REFUSED” to accept the returned envelope. (ECF Nos. 26; 27.);
9. By recommendations dated November 4, 2015, the Magistrate Judge recommended that Plaintiff’s Complaint be dismissed with prejudice for failure to prosecute. (ECF No. 28.) This recommendation was returned as undeliverable with markings indicating Plaintiff was “Paroled” and the ...

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