United States District Court, D. Colorado
RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE
MAGISTRATE JUDGE NINA Y. WANG
matter is before the court on Plaintiff Isaac Gurule's
failure to appear at the March 16, 2018 Status Conference and
his failure to respond to the court's Order to Show Cause
issued the same day. See [#57, #58]. This court acts
under the authority of 28 U.S.C. § 636(b)(1)(A) and (B)
and the Order of Reference dated October 6, 2017 [#21].
initiated this action on April 3, 2017, by filing pro
se a form Prisoner Complaint asserting a single claim
pursuant to 42 U.S.C. § 1983 for excessive force in
violation of his Fourth Amendment rights under the
Constitution. [#1]. The court granted Mr. Gurule leave to
proceed in forma pauperis under 28 U.S.C. §
1915, [#7], and ordered Mr. Gurule to file an amended
pleading. [#8]. On September 15, 2017, Mr. Gurule filed an
Amended Complaint, adding two claims for violation of his
rights arising under the Eighth and Fourteenth Amendments.
[#17]. Pursuant to § 1915 and Local Rule 8.1, the court
dismissed all but the Fourth Amendment claim for excessive
force asserted against Defendants Brent Ambuehl and Michael
Finn in their individual capacity. The court then reassigned
the matter to the Honorable William J. Martinez, who referred
the case to the undersigned Magistrate Judge for pretrial
management. See [#20; #21].
November 20, 2017, Mr. Gurule alerted the court by letter
that he was no longer housed at the Fremont Correctional
Facility, and instructed the court to send all mail to a
private address in Colorado Springs. See [#35]. On
December 6, 2017, the undersigned presided over a Status
Conference at which Plaintiff was present, along with counsel
for Defendants. At that time, Plaintiff confirmed his current
address and the court set a second status conference for
February 8, 2018, for the purpose of discussing a pretrial
schedule. See [#43]. On December 12, 2017, Defendant
Finn filed a Motion to Dismiss. See [#45]. Service
was subsequently effected for Defendant Ambuehl, and he filed
a Motion to Dismiss on February 6, 2018. See [#45].
For each Motion, the court instructed Plaintiff as to the
deadline for filing his responses. See [#48, #54].
Mr. Gurule did not respond to either Motion, and copies of
the court's orders instructing as to the deadline were
not returned as undeliverable to Plaintiff's address.
January 22, 2018, this court reset the second Status
Conference to March 16, 2018. See [#51]. A copy of
this order was mailed to Plaintiff at his address of record,
and the copy was not returned to the court as undeliverable.
On March 9, 2018, Defendants filed a proposed scheduling
order, which described counsel's meet and conferral
attempts with Plaintiff but included no input from Plaintiff.
See [#55]. Mr. Gurule subsequently failed to appear
for the March 16, 2018 Status Conference. Following the
Status Conference, this court issued an Order to Show Cause
as to why this case should not be dismissed pursuant to
D.C.COLO.LCivR 41.1 for lack of prosecution and failure to
appear for the Status Conference. [#57]. This court also
issued a Recommendation that Defendant Ambuehl's Motion
to Dismiss be granted in part and denied in part, and that
Defendant Finn's Motion to Dismiss be granted.
See [#56]. Defendant Ambuehl filed an objection to
the Recommendation on March 30, 2018. See [#59]. Mr.
Gurule did not file an objection to the Recommendation, nor
has he responded in any way to Defendant Ambuehl's
objection to date.
Local Rule of Practice 41.1 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 prejudice.
undersigned specifically advised Plaintiff that failure to
timely show cause would result in this court recommending
that this lawsuit be dismissed without prejudice.
See [#57]. The docket reflects that the copy of the
Order to Show Cause addressed to Plaintiff was not returned
to the court, and, to date, Plaintiff has not filed a
response to the Order to Show Cause or otherwise indicated an
interest in prosecuting his claim.
I respectfully RECOMMEND that the court
DISMISS the entirety of this action without
prejudice. Additionally, IT IS
ORDERED that the Clerk of the Court amend the
caption to reflect that Brent Ambuehl is named as a
 Plaintiff named as a defendant Brent
Ambuebl, who has appeared in this matter as Brent Ambuehl.