United States District Court, D. Colorado
JOSHUA J. MARTINEZ Plaintiff,
DAN WARWICK, KEN WILSON, JAMES KNIGHT, MICHAEL AVILA, NICK, SHERIFF ROBERT JACKSON, MAEZ, SANCHEZ, DEPUTY RAMIREZ, BIRCH, INVESTIGATOR STAMBAUGH, and SERGEANT MONDRAGON, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. Wang United States Magistrate Judge.
matter comes before the court on the Second Order to Show
Cause dated August 21, 2019. See [#68]. This court
considers this matter pursuant to 28 U.S.C. § 636(b) and
the Order Referring Case dated May 7, 2019 [#36]. For the
following reasons, this court respectfully
RECOMMENDS that this civil action be
DISMISSED without prejudice pursuant to
D.C.COLO.LCivR 41.1 for Plaintiff Joshua J. Martinez’s
(“Plaintiff” or “Mr. Martinez”)
failure to prosecute and maintain up-to-date contact
information, and further that the pending Motions to Dismiss
be DENIED AS MOOT, subject to re-filing if
initiated this action by filing his pro se Complaint on
December 18, 2018, see [#1], and he has since filed
an Amended and Second Amended Complaint, see [#6;
#25]. As Defendants, Plaintiff names several state actors,
including law enforcement officers and jail personnel,
alleging that each violated Plaintiff’s constitutional
rights by transferring Plaintiff to a new jail, pepper
spraying Plaintiff, and retaliating against him for filing
grievances, among other alleged misconduct. See
generally [#25]. The Honorable Gordon P. Gallagher had
this matter originally drawn to the undersigned Magistrate
Judge. See [#8].
status conference was then set for April 29, 2019 by the
Order dated February 4, 2019. [#13]. On April 10, 2019,
Defendants Michael Avila, James Knight, Nick, and Ken Wilson
filed a Motion to Dismiss. [#28]. Plaintiff failed to appear
at the status conference on April 29. [#30]. The court issued
an Order to Show Cause directing Plaintiff to show cause why
the case should not be dismissed for failure to prosecute
given his failure to appear. [#31]. Shortly thereafter, the
parties declined to consent to the exercise of magistrate
judge jurisdiction and the matter was drawn to an Article III
judge and referred to the undersigned pursuant to 28 U.S.C.
§ 636(b) and the Order Referring Case dated May 7, 2019.
[#33; #34; #36].
did not directly respond to the Order to Show Cause, but
Plaintiff did file a Letter with the court that was docketed
as a Notice of Address Change on May 9. [#39]. Based on the
representations contained in that letter regarding a
competency evaluation scheduled for Plaintiff, the court
ordered Mr. Martinez to file a further status report by May
31 to indicate the status of the evaluation. [#40]. That
Order was returned undeliverable due to Plaintiff’s
movement between facilities, but Defendants provided
pertinent information in response. [#45]. Given the
circumstances before the court, the court discharged the
Order to Show Cause, warning Plaintiff that “failures
to appear for court hearings without explanation and failures
to notify the court of a change of address within five (5)
days of such change may lead to this court recommending
dismissal of this action for failure to comply and/or
prosecute.” [#46 at 2]. That Order was not returned
5, 2019, Plaintiff submitted another letter to the court
concerning his address, informing the court that if he were
to be released, he intended to use the provided address of
P.O. Box 278, Center, Colorado 81125. [#50]. Despite
informing the court that he anticipated being released during
a bond hearing, Mr. Martinez provided no further
correspondence to confirm that he had been released. Nor has
the court received a change of address from Mr. Martinez, but
the court has received numerous returns indicating that the
address on file at the Sagauche County Jail is not the
correct address. [#55; #58; #59; #61; #65]. Defendants have
represented to the court that Mr. Martinez remains
incarcerated and so the court presumes that the address
provided if he was released is not valid. See, e.g.,
[#62 at 2]. But Mr. Martinez, despite previously timely
updating his address and despite this court’s explicit
admonition that he must do so, has not informed the court of
any new address.
this time, Mr. Martinez has failed to fully participate in
this case. Plaintiff did not file a timely response, or any
response, to Defendant Dan Warwick’s Motion to Dismiss,
filed June 28, 2019 [#60], and the time to do so expired over
one month ago. That motion was served on Mr. Martinez at an
address in Pueblo, Colorado, and P.O. Box 2780, Center,
Colorado 81125. [Id. at 11]. Nor has Mr. Martinez
made any substantive filing on the court’s docket since
June 12, 2019 when he filed a response to the
Defendants’ Motion to Strike. [#53]. That filing
contains the same Sagauche County Jail address Mr. Martinez
has been consistently using in this case and which has
consistently proven inadequate as the court’s letters
to that address have been returned as discussed above.
[#53-2]. And on August 19, 2019, Defendants Jackson,
Mondragon, Ramirez, and Stanbaugh filed their Motion to
Dismiss. See [#66]. That Motion to Dismiss was
served on Mr. Martinez at his Saguache County Jail address,
as well as P.O. Box 2780, Center, Colorado 81125.
[Id. at 16].
Plaintiff’s apparent lack of diligence in pursuing this
matter, this court issued a Second Order to Show Cause on
August 21, 2019, returnable by Plaintiff on or before
September 3, 2019. See [#68]. This court again
advised Mr. Martinez of his need to actively participate in
this matter under Local Rule of Civil Practice 41.1 and of
his need to timely inform the court of any change in his
contact information under Local Rule of Civil Practice
5.1(c). See [id. at 3-4].
Specifically, this court explained, it appears that Mr.
Martinez is failing to prosecute this case by not responding
to pending Defense Motions and has violated Local Rule 5.1(c)
by failing to keep his contact information up to date despite
his demonstrated ability to do so when he was undergoing the
competency evaluation. These failures frustrate the
court’s ability to “secure the just, speedy, and
inexpensive determination” of this matter under Federal
Rule of Civil Procedure 1. In the presence of extended,
unexplained inaction from Plaintiff and failure to abide by
the procedural rules applicable in this court, dismissal
without prejudice for failure to prosecute appears proper.
[Id. at 4].
court further ordered Defendants to attempt service of the
Second Order to Show Cause on Plaintiff, to the extent they
were aware of a contact address for Plaintiff. [#68 at 5]. To
date, Mr. Martinez has not responded to the Second Order to
Show Cause, this being despite this court’s order to
Defendants attempt service of the Second Order to Show Cause
on Mr. Martinez at any address they may have. Defendants
Jackson, Mondragon, Ramirez, and Stanbaugh attest that they
attempted service of the Second Order to Show Cause at two
different mailing addresses (including P.O. Box 278, Center,
Colorado 81125 – the address that appears to be what is
written in Mr. Martinez’s June 5, 2019 correspondence
[#50] – as well as with Mr. Martinez’s attorney
in an unrelated criminal matter. See [#70].
Defendants Warwick, Wilson, Avila, Knight, and Huffman also
notified the court that they sent the Second Order to Show
Cause to the Saguache County Jail upon learning that Mr.
Martinez had recently been arrested. See [#71].
Plaintiff has not filed a Response to the Second Order to
Show Cause. The time to do so lapsed on September 3, 2019.
Further, Plaintiff’s time to respond to the Motion to
Dismiss filed by Defendants Jackson, Mondragon, ...