Viegas et al v. Partner Colorado Credit Union et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 24-cv-00415-PAB-STV
KERI L. VIEGAS, and
JAMES VIEGAS,
Plaintiffs,
v.
PARTNER COLORADO CREDIT UNION,
HARRY L. SIMON,
DANIELLE L. RAMOS,
SARA M. GARRIDO, and
DIANA COFFEY,
Defendants.
ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION
This matter is before the Court on the Recommendation of United States
Magistrate Judge [Docket No. 48]. Plaintiffs also object to the magistrate judge’s order
to strike their surreply brief [Docket No. 42]. The Court has jurisdiction pursuant to 28
U.S.C. § 1331. Plaintiffs Keri L. Viegas’s and James Viegas’s claims arise out of a
Jefferson County, Colorado state lawsuit that defendant Partner Colorado Credit Union
(“PCCU”) brought against plaintiffs for a “bad check arising out of a breach of a retail
installment contract for a motor vehicle.” Docket No. 6 at 1. Defendant Harry L. Simon
was PCCU’s attorney, Danielle L. Ramos was Mr. Simon’s process server, Judge Sara
M. Garrido was the presiding judge, and Diana Coffey was Judge Garrido’s clerk. Id. at
3.
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I. 	BACKGROUND
The facts are set forth in the magistrate judge’s recommendation. Docket No. 48
at 2–5. To the extent that plaintiffs dispute how the magistrate judge construed certain
facts, the Court considers and resolves those arguments below.
On February 12, 2024, plaintiffs filed this case against Ms. Coffey, Judge
Garrido, PCCU, Ms. Ramos, and Mr. Simon. Docket No. 1. Plaintiffs’ complaint asserts
claims under the Fourth, Fifth, and Seventh Amendments of the U.S. Constitution
against all defendants pursuant to 42 U.S.C. § 1983. Id. at 4–7, ¶¶ 1, 3, 5, 7,10.
Plaintiffs’ complaint also claims that Ms. Ramos and Judge Garrido violated 18 U.S.C.
§§ 241 and 242. Id. at 5, ¶¶ 3, 5. Plaintiffs seek the following damages from each
defendant: Judge Garrido ($8 million), Ms. Coffey ($4 million), Ms. Ramos ($4 million),
Mr. Simon ($8 million), and PCCU ($8 million). Id. at 6–7, ¶¶ 1–6.
On March 6, 2024, PCCU filed a motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6). Docket No. 6. On April 25, 2024, Mr. Simon filed a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Docket No. 28. Plaintiffs filed responses
to the motions. Docket Nos. 9, 33. PCCU and Mr. Simon filed replies. Docket
Nos. 14, 37. On May 14, 2024, plaintiffs filed a surreply in support of their response to
the motion to dismiss. Docket No. 40.
On August 23, 2024, Magistrate Judge Dominguez Braswell issued a
recommendation to grant the motions to dismiss. Docket No. 48. On May 15, 2024,
she also struck plaintiffs’ surreply for failure to comply with D.C.COLO.LCivR 7.1(d).
Docket No. 41. The magistrate judge recommends dismissing plaintiffs’ Fourth and
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Fifth Amendment claims because those claims are barred under the Rooker-Feldman
doctrine, see Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v.
Feldman, 460 U.S. 462 (1983). Id. at 8–11. She recommends dismissing plaintiffs’
Seventh Amendment claim because the claim lacks the explanation and support that is
required for a cognizable claim under Fed. R. Civ. P. 12(b)(6). Docket No. 48 at 11–12.
Furthermore, the magistrate judge recommends dismissing Ms. Ramos and Ms. Coffey
from this action because plaintiffs failed to properly serve these defendants. Id. at 12–
14.
The magistrate judge recommends dismissing the Fourth and Fifth Amendment
claims without prejudice because the Rooker-Feldman doctrine implies the Court’s
subject matter jurisdiction. Id. at 15. She recommends dismissing the Seventh
Amendment claim with prejudice because “Plaintiffs have caused Defendants and the
Court to expend significant time and resources on what appears to be a meritless
claim.” Id. at 15 n.12. The recommendation states that any objections must be filed
within fourteen days after service on the parties. Id. at 15. Plaintiffs filed timely
objections. Docket Nos. 42, 51.
II. 	LEGAL STANDARD
The Court must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is “proper” if
it is both timely and specific. United States v. One Parcel of Real Prop. Known as 2121
E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (“One Parcel”). A specific objection
“enables the district judge to focus attention on those issues - factual and legal - that are
at the heart of the parties’ dispute.” Id.
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In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It
does not appear that Congress intended to require district court review of a magistrate’s
factual or legal conclusions, under a de novo or any other standard, when neither party
objects to those findings.”). The Court therefore reviews the non-objected to portions of
a recommendation to confirm there is “no clear error on the face of the record.” Fed. R.
Civ. P. 72(b), Advisory Committee Notes. This standard of review is something less
than a “clearly erroneous” or “contrary to law” standard of review, Fed. R. Civ. P. 72(a),
which in turn is less than a de novo review. Fed. R. Civ. P. 72(b). Because plaintiffs
are proceeding pro se, the Court will construe their objections and pleadings liberally
without serving as their advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
III. 	ANALYSIS
The Court construes plaintiffs’ filings as raising five objections. Docket Nos. 42;
Docket No. 51.
A. Objection One
Plaintiffs’ first objection appears to argue that Judge Dominguez Braswell has
demonstrated bias against plaintiffs. Plaintiffs assert that Judge Dominguez Braswell is
engaging in “judicial activism from the bench,” “display[s] a continued pattern of
disregard for the Constitution,” is committing “Treason” against plaintiffs, and is violating
plaintiffs’ due process rights, as well as §§ 241 and 242, by recommending dismissal of
this case. Docket No. 42 at 6, 8–10. Plaintiffs also contend that Judge Dominguez
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Braswell is “masquerading as a Magistrate Judge” and is not “in good behavior.” Id. at
12. The Court construes this objection as requesting the recusal of Judge Dominguez
Braswell.
As the Court has previously explained in this case,
Under 28 U.S.C. § 455(a), a federal judge is required to recuse herself “in any
proceeding in which [her] impartiality might reasonably be questioned.” 28
U.S.C. § 455(a). “Section 455 establishes ‘an objective standard: disqualification
is appropriate only where the reasonable person, were he to know all the
circumstances, would harbor doubts about the judge’s impartiality.’” United
States v. Mobley, 971 F.3d 1187, 1205 (10th Cir. 2020) (quoting United States v.
Wells, 873 F.3d 1241, 1251 (10th Cir. 2017)). “In conducting this review, [the
court] must ask how these facts would appear to a well informed, thoughtful and
objective observer, who is an average member of the public, not a
hypersensitive, cynical, and suspicious person.” Id. (internal quotations and
citation omitted). “Though judges ‘have a strong duty to recuse when
appropriate,’ they also have ‘a strong duty to sit,’ and § 455 must not be so
broadly construed as to make recusal mandated ‘upon the merest
unsubstantiated suggestion of personal bias or prejudice.’” Id. (quoting Wells,
873 F.3d at 1251). The “statute is not intended to give litigants a veto power over
sitting judges, or a vehicle for obtaining a judge of their choice.” Switzer v. Berry,
198 F.3d 1255, 1258 (10th Cir. 2000) (citation omitted). The party moving to
disqualify a judge has the burden of proof. Davis v. U.S. Dep’t of Justice, 2024
WL 3617343, at *3 (10th Cir. Aug. 1, 2024) (collecting cases).
“[J]udicial rulings alone almost never constitute a valid basis for a bias or
partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994); see also
Lammle v. Ball Aerospace & Techs. Corp., 589 F. App’x 846, 849 (10th Cir.
2014) (unpublished) (“Unfavorable judicial rulings and ordinary efforts at
courtroom administration are insufficient grounds for recusal.”). Rather, recusal
based on a judge’s decisions, opinions, or remarks “is necessary when a judge’s
actions or comments ‘reveal such a high degree of favoritism or antagonism as to
make fair judgment impossible.’” United States v. Nickl, 427 F.3d 1286, 1298
(10th Cir. 2005) (quoting Liteky, 510 U.S. at 555). Adverse rulings that do not
evidence such favoritism or antagonism “are grounds for appeal, not recusal.” Id.
(citation omitted).
Docket No. 50 at 2–3. The recommendation, although adverse to plaintiffs, is
insufficient alone to raise a question about Judge Dominguez Braswell’s impartiality.
See Liteky, 510 U.S. at 555. Plaintiffs identify no portions of the recommendation that
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“reveal such a high degree of favoritism or antagonism as to make fair judgment
impossible.” See Nickl, 427 F.3d at 1298. Plaintiffs’ suggestions that Judge Dominguez
Braswell is engaging in “judicial activism from the bench” and is not “in good behavior,”
Docket No. 51 at 6, 12, are too vague to suggest bias and, even if they so suggest, are
merely “unsubstantiated suggestion[s] of personal bias or prejudice.” See Mobley, 971
F.3d at 1205. Plaintiffs provide no facts in support of these arguments. As a result, the
Court overrules plaintiffs’ first objection.
B. Objection Two
Plaintiffs object to the magistrate judge’s order that their surreply to Mr. Simon’s
reply in support of his motion to dismiss be stricken for failure to comply with
D.C.COLO.LCivR 7.1(d). Docket No. 42. Plaintiffs argue that “[t]here is nothing in [the
Local Rules] that states permission must be asked or provides validations for striking
We the People’s replies to lies by officers of the court.” Id. at 2. Under
D.C.COLO.LCivR 7.1(d) , a responding party has “21 days after the date of service of a
motion . . . in which to file a response.” The “moving party may file a reply no later than
14 days after the date of service of the response.” D.C.COLO.LCivR 7.1(d). Local Rule
7.1(d) does not say anything about the responding party filing a surreply. After plaintiffs
filed their response to Mr. Simon’s motion to dismiss, Docket No. 33, Mr. Simon filed his
reply in support of his motion to dismiss on May 9, 2024. Docket No. 37. Plaintiffs filed
a surreply on May 14, 2024 without leave of court. Docket No. 40. Although plaintiffs
called their filing a “reply,” it nonetheless constitutes a surreply. See id. Plaintiffs have
demonstrated no error on the magistrate judge’s part in construing Local Rule 7.1(d) as
requiring permission to file a surreply. In any event, the Court’s Practice Standards
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require that a party obtain leave of court to file a surreply, which plaintiffs did not comply
with. See Practice Standards (Civil cases), Chief Judge Philip A. Brimmer, § III.B.2 (“No
surreply or supplemental briefs shall be filed without leave of court.”). Thus, the Court
overrules plaintiffs’ second objection and will not consider the surreply. 1
C. Objection Three
Plaintiffs argue that the magistrate judge erred in concluding that plaintiffs’ Fourth
and Fifth Amendment claims are barred by the Rooker-Feldman doctrine. Docket
No. 51 at 4–5. The Rooker-Feldman doctrine is “tied to Congress’s decision to vest
federal appellate jurisdiction over state court judgments exclusively in the United States
Supreme Court.” Graff v. Aberdeen Enterprizes, II, Inc., 65 F.4th 500, 514 (10th Cir.
2023) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005);
28 U.S.C. § 1257). The Rooker-Feldman doctrine implicates a court’s subject matter
jurisdiction and applies where “(1) the plaintiff lost in state court, (2) the state court
judgment caused the plaintiff’s injuries, (3) the state court rendered judgment before the
plaintiff filed the federal claim, and (4) the plaintiff is asking the district court to review
and reject the state court judgment.” Bruce v. City & Cnty. of Denver, 57 F.4th 738, 746
(10th Cir. 2023). The Rooker-Feldman doctrine applies when a litigant’s claim seeks to
“modify or set aside a state court judgment.” Graff, 65 F.4th at 515; see also Williams v.
1 Plaintiffs also state that Judge Dominguez Braswell and defendants “have not
responded line by line by Affidavit to any of the Responses/Objections by Affidavits
entered into the Court of Record and therefore agree to the Unrebutted Facts stated in
those Responses/Objections.” Docket No. 51 at 2 (citing Docket Nos. 9, 33, 34, 40).
Plaintiffs argue that the magistrate judge “must accept [their responses] as FACT.” Id.
Plaintiffs provide no legal authority, and the Court is unaware of any authority,
suggesting that a magistrate judge is required to respond “line by line” to every
argument raised in a response to a motion to dismiss. See id.
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HSBC Bank USA, N.A., 681 F. App’x 693, 695 (10th Cir. 2017) (unpublished) (“the type
of judicial action barred by Rooker-Feldman consists of a review of the proceedings
already conducted by the lower tribunal to determine whether it reached its result in
accordance with law” (internal quotation, alteration, and citation)); Kline v. Biles, 861
F.3d 1177, 1180 (10th Cir. 2017) (holding that Rooker-Feldman applies to “claims
actually decided by a state court, and claims inextricably intertwined with a prior state-
court judgment” (citation omitted)). However, “Rooker-Feldman does not bar a federal
court claim merely because it seeks relief inconsistent with a state court judgment.”
Graff, 65 F.4th at 515.
The magistrate judge concludes that the Rooker-Feldman doctrine would bar
plaintiffs’ Fourth and Fifth Amendment claims. Docket No. 48 at 8–11. The magistrate
judge finds that “Plaintiffs appear to invoke the unreasonable search and seizure
provision of the Fourth Amendment, the Fifth Amendment’s Due Process Clause, and
the right to a jury trial found in the Seventh Amendment to the United States
Constitution.” Id. at 10. The magistrate judge finds that, to the extent that plaintiffs
assert a “Fifth Amendment due process claim based on the fairness of the Jefferson
County proceeding,” such a claim would “necessarily challenge the adjudication in state
court” and is thus barred by Rooker-Feldman. Id. at 11 (citing Tal v. Hogan, 453 F.3d
1244, 1256 (10th Cir. 2006)). As a result, the magistrate judge recommends dismissing
the Fourth and Fifth Amendment claims without prejudice for lack of jurisdiction. Id. at
15.
Plaintiffs assert that the “Rooker-Feldman doctrine does not apply to this case”
because “no judgment exist[ed] on February 12, 2024” and that “the Federal case [was]
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filed February 12, 2024.” Docket No. 51 at 5. Plaintiffs’ objection appears to challenge
the magistrate judge’s finding on the third element of the Rooker-Feldman doctrine,
namely, whether “the state court rendered judgment before the plaintiff filed the federal
claim.” Bruce, 57 F.4th at 746. The Court reviews that finding de novo. The final
judgment in the Jefferson County proceeding against plaintiffs was entered on April 12,
2024, see Partner Colorado Credit Union v. Viegas et al, Case No. 2023C033567, 2
while plaintiffs filed the instant suit two months before, on February 12, 2024. Docket
No. 1.
In Exxon Mobil Corp., 544 U.S. at 291, the Court held that Rooker-Feldman bars
federal courts from exercising subject matter jurisdiction over claims that challenge a
state court judgment only after the state proceeding has concluded. The Tenth Circuit
considers a state proceeding concluded and thus the judgment final for Rooker-
Feldman purposes “(1) ‘when the highest state court in which review is available has
affirmed the judgment below and nothing is left to be resolved’; (2) ‘if the state action
has reached a point where neither party seeks further action’; or (3) ‘if the state court
proceedings have finally resolved all the federal questions in the litigation, but state law
or purely factual questions (whether great or small) remain to be litigated.’” Guttman v.
Khalsa, 446 F.3d 1027, 1032 n.2 (10th Cir. 2006) (quoting Federacion de Maestros de
Puerto Rico v. Junta de Relaciones del Trabajo de Puerto Rico, 410 F.3d 17, 24 (1st
2 The Court takes judicial notice of the state court docket in Case No.
2023C033567. See Tal, 453 F.3d at 1264 n.24 (holding that a court may take judicial
notice of facts which are a matter of public record when considering a motion to
dismiss); Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1298 n.2 (10th Cir.
2014) (noting that a court may “take judicial notice of documents and docket materials
filed in other courts”).
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Cir. 2005)). In Bear v. Patton, 451 F.3d 639, 642 (10th Cir. 2006), the court clarified
that a state proceeding has ended for Rooker-Feldman purposes only when the
plaintiff’s window to appeal the judgment has closed.
However, it is not clear whether Rooker-Feldman prevents a federal court from
exercising subject matter jurisdiction when a federal lawsuit is filed before the state
appellate window has closed. Toney v. Keil, No. 13-cv-03386-CMA-MJW, 2014 WL
4800275, at *3 (D. Colo. Sept. 26, 2014). In Guttman, 446 F.3d at 1032, the court found
that, because the plaintiff “filed his federal suit while his petition for certiorari to the New
Mexico Supreme Court was pending” “[h]is state suit was not final.” Consequently, the
court found that the Rooker-Feldman doctrine did “not apply and the district court did
have subject matter jurisdiction.” Id. at 1031. On the other hand, in Tal, 453 F.3d at
1257, the court held that the plaintiff’s federal claim that a state condemnation action
was fraudulent was unreviewable under Rooker-Feldman. Tal reasoned that “[t]he state
condemnation proceeding need not be final in order to serve as grounds for Rooker-
Feldman preclusion.” Id.
Moreover, the Tenth Circuit has held that, even if Rooker-Feldman does not
apply because the state proceeding at issue has not ended, there are other principles of
abstention that may preclude subject matter jurisdiction. For instance, in D.A.
Osguthorpe Fam. P’ship v. ASC Utah, Inc., 705 F.3d 1223, 1232 (10th Cir. 2013), the
court found that, although Rooker-Feldman did not prevent the federal court from
hearing a federal claim while the state case was ongoing, “principles of abstention”
dictated that jurisdiction must be declined. Likewise, in Chapman v. Okla., 472 F.3d
747, 749–750 (10th Cir. 2006), the court held that, although the plaintiff’s state court
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proceedings had “not reached the end of the state courts’ appeal process . . . and the
district court therefore erred by dismissing his complaint under Rooker-Feldman,” the
district court had to abstain under Younger v. Harris, 401 U.S. 37, 91 (1971), from
hearing the plaintiff’s claims. See also Bear, 451 F.3d at 643 (“Furthermore, if the
district court determines that the judgment was not final and, therefore, that Rooker–
Feldman does not apply, it can consider the alternate bases for dismissal urged by
Judge Patton, namely, abstention under Younger v. Harris”).
In light of the ambiguity within Tenth Circuit precedent, “[c]ourts in [the District of
Colorado] have concluded that the Rooker-Feldman doctrine precludes claims seeking
to invalidate state foreclosure proceedings that have become final, even if the claims
are brought before the foreclosure sale occurs.” Wehr v. U.S. Bank, Nat’l Ass’n, No. 18-
cv-02691-RM-GPG, 2020 WL 1242945, at *2 (D. Colo. Mar. 16, 2020). Courts in this
district have applied this principle when the state foreclosure sale has concluded by the
time the court hears the case, regardless of when the plaintiffs filed their federal claim.
See, e.g., McDonald v. J.P. Morgan Chase Bank, N.A., No. 12–cv–02749–MSK, 2014
WL 334813, at *4 (D. Colo. Jan. 30, 2014) (dismissing the plaintiff’s federal claims on
Rooker-Feldman grounds, despite the federal claim being filed before the state
foreclosure proceeding was complete, because there was “little justification for allowing
a party to forever circumvent the Rooker-Feldman doctrine simply by commencing suit
in federal court prior to state court proceeding reaching its conclusion” and the state
proceeding had become final at the time of the court’s holding); Zeller v. Ventures Tr.
2013-I-NH, No. 15-cv-01077-PAB-NYW, 2016 WL 745373, at *6 (D. Colo. Feb. 1, 2016)
(finding that, “[a]lthough [the plaintiff] initiated [the federal action] several days before
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the foreclosure sale, that sale became final and was confirmed by a state court order
during the pendency of this case” and to hold that Rooker-Feldman did not bar
jurisdiction “would allow this court to completely undo the foreclosure proceedings.”)
(citing Dillard v. Bank of New York, 476 F. App’x 690, 692 (10th Cir. 2012)
(unpublished)); Driskell v. Thompson, 971 F. Supp. 2d 1050, 1064 (D. Colo. 2013)
(“[R]egardless of the fact that Plaintiff initiated this lawsuit prior to the foreclosure sale of
the Property, the Rooker–Feldman doctrine precludes this Court’s subject matter
jurisdiction over review of the Rule 120 proceeding for two reasons: first, because the
foreclosure proceeding has fully concluded, and second, due to the nature of Plaintiff’s
request for injunctive relief, i.e., an order that would completely undo the foreclosure
proceeding.”).
The Court finds persuasive the reasoning of these orders. Plaintiffs in this case
similarly filed a federal claim while state proceedings were ongoing, and state
proceedings have since concluded as the state court issued a final judgment after
plaintiffs failed to appear at trial. Partner Colorado Credit Union v. Viegas et al., Case
No. 2023C033567. Moreover, even if judgment was not final, Younger abstention
would preclude the Court from exercising jurisdiction over plaintiffs’ federal case. See
Chapman, 472 F.3d at 749–50. Thus, the Court overrules plaintiffs’ objection.
Next, plaintiffs seem to challenge the magistrate judge’s finding on the fourth
element of the Rooker-Feldman doctrine, namely, whether plaintiffs are “asking the
district court to review and reject the state court judgment.” See Bruce, 57 F.4th at 746.
Plaintiffs argue that “any challenge to any judgment of any amount including $12,231.46
does not exist.” Docket No. 51 at 5. They also argue that an “Article III court is the only
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jurisdiction to address We the People’s grievances and therefore must allow due
process of claims for attempted seizure of property and civil rights and constitutional
violations by all Defendants.” Id. at 11. Plaintiffs’ arguments seem to suggest that they
are not attempting to challenge the state court’s judgment. Accordingly, the Court will
review that element de novo.
Plaintiffs’ complaint alleges that “[d]ue process was not followed” during
mediation. Docket No. 1 at 5, ¶ 5. Furthermore, plaintiffs allege that “[f]alsified
documents were provided to the court,” that plaintiffs did not receive a “proof of claim
with a Bill of Particulars and also a meeting with the Trustee or Doug Fagan regarding
the status of 1099 forms,” and that Ms. Coffey violated due process by requiring that
plaintiffs abide by the court’s procedures. Id. at 5–6, ¶¶ 4, 6, 8, 9. Plaintiffs further
allege that they did not receive proper service. Id. at 5, ¶ 3. In sum, plaintiffs allege that
“[a]ll Defendants have violated the Constitutional rights of the Plaintiffs regarding due
process and to be secure in their persons and papers.” Id. at 6, ¶ 10.
The Court finds that plaintiffs’ Fifth Amendment due process and Fourth
Amendment unreasonable search and seizure claims 3 are “[a]ttempts to recast state
court losses as deprivations of constitutional rights [that] do not overcome the Rooker-
Feldman jurisdictional bar.” Bruce, 57 F.4th at 749. Plaintiffs’ challenge to the
Jefferson County proceedings “would impermissibly involve a reexamination of the
3 Even if plaintiffs’ Fourth Amendment claim did not seek to challenge the
$12,231.46 judgment as a form of unreasonable search and seizure – and thus such
claim was not barred by the Rooker-Feldman doctrine – the magistrate judge found that
plaintiffs fail to assert any other discernable claim under the Fourth Amendment.
Docket No. 48 at 16. Plaintiffs do not object to this portion of the recommendation. See
Docket No. 51.
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underlying state court proceeding judgments, which is barred by the Rooker-Feldman
Doctrine.” Driskell, 917 F. Supp. 2d at 1065. See also Dillard, 476 F. App’x at 691–92
(holding that the plaintiff’s due process claim was barred by the Rooker-Feldman
doctrine because she “unquestionably sought review and rejection of the state court
foreclosure and eviction proceedings”); Castro v. Kondaur Cap. Corp., 541 F. App’x
833, 837–38 (10th Cir. 2013) (unpublished) (affirming district court’s conclusion that
plaintiffs’ due process claim arising out of a Rule 120 foreclosure proceeding was
barred by the Rooker-Feldman doctrine because “reviewing Plaintiffs’ due process claim
would impermissibly involve a reexamination of the underlying state court proceedings
and judgment”); Driskell, 971 F. Supp. 2d at 1065 (dismissing plaintiff’s Fifth
Amendment due process claim and Fourth Amendment unlawful seizure claim arising
out of a Rule 120 hearing because reviewing those claims “would impermissibly involve
a reexamination of the underlying state court proceedings and judgments, which is
barred by the Rooker-Feldman doctrine”); Bishop v. JP Morgan Chase Bank, Nat’l
Ass’n, 2018 WL 4368614, at *3 (D. Colo. Mar. 6, 2018) (holding that plaintiff’s due
process claim – alleging “a host of defects in Rule 120 proceedings, including a lack of
discovery, the inability to present evidence of fraud, and the inability to appeal Rule 120
orders” – was barred by the Rooker-Feldman doctrine). As a result, the Court agrees
with the magistrate judge’s recommendation that plaintiffs’ Fourth and Fifth Amendment
claims are “inextricably intertwined” with the state court proceeding and thus barred
under the Rooker-Feldman doctrine. Docket No. 48 at 10–11. The Court therefore
overrules plaintiffs’ third objection.
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D. Objection Four
Plaintiffs appear to argue that the magistrate judge is denying plaintiffs’ right to a
jury trial by dismissing plaintiffs’ claims. Docket No. 51 at 7–9. Plaintiffs state that they
have “a right to present witnesses and evidence on the Court of Record to a Jury of
Peers as afforded by the Constitution.” Id. at 9. Further, plaintiffs argue that the
magistrate judge “incorrectly applie[d] law in Section B Plaintiff’s Seventh Amendment
Claim. There was no judgment or order when Plaintiffs filed complaint/claim thus
voiding this entire section of recommendations.” Id. at 8. As discussed above, the fact
that plaintiffs filed their federal claim prior to the state court’s entry of final judgment
does not mean that Rooker-Feldman is inapplicable. Thus, the Court rejects plaintiffs’
argument that the magistrate judge’s recommendation “incorrectly applie[d]” the law in
ruling on plaintiffs’ Seventh Amendment claim. Id.
The Court construes the remaining objection as arguing that plaintiffs’ federal
case cannot be dismissed at the pleading stage because plaintiffs are entitled to a jury
trial under the Seventh Amendment. “The Tenth Circuit has repeatedly held, however,
that judges can dismiss a case at the pleading stage or at the summary judgment stage
without violating the Seventh Amendment right to a jury trial.” Harris v. City of Aurora,
No. 21-cv-02080-PAB-KLM, 2023 WL 2534859, at *2 (D. Colo. Mar. 16, 2023) (citing
Sutton v. Leeuwen, 708 F. App’x 514, 517 (10th Cir. 2017) (unpublished) (citing
Shannon v. Graves, 257 F.3d 1164, 1167 (10th Cir. 2001)); Smith v. Kitchen, 156 F.3d
1025, 1029 (10th Cir. 1997) (“The district court’s dismissal of Smith’s complaint under
Rule 12(b)(6) did not violate Smith’s right to a jury trial under the Seventh Amendment:
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When Smith failed to plead any facts that would overcome the defendants’ complete
defenses, there were no facts to be ‘tried’ by a jury.”)). Dismissal of plaintiffs’ complaint
at the pleading stage does not violate plaintiffs’ right to a jury trial. See Sutton, 708 F.
App’x at 517. Accordingly, the Court overrules plaintiffs’ fourth objection.
E. Objection Five
Plaintiffs’ fifth objection appears to challenge plaintiffs’ inability to bring suit under
18 U.S.C. §§ 241 and 242. Plaintiffs argue that the “Defendants together violate § 241
– Conspiracy against rights.” Docket No. 41 at 8–9. As an initial matter, the complaint
does not allege violations of §§ 241 and 242 against Mr. Simon and PCCU. 4 To the
extent plaintiffs argue that they can add new factual allegations to their complaint
through their responses to the motions to dismiss, the Court rejects that argument. See
4 Even if plaintiffs did properly allege claims under 18 U.S.C. §§ 241 and 242
against Mr. Simon and PCCU, these are federal criminal statutes that do create private
rights of action. See, e.g., Henry v. Albuquerque Police Dep’t, 49 F. App’x 272, 273
(10th Cir. 2002) (unpublished) (affirming district court’s finding that “18 U.S.C. §§ 241
and 242 . . . do not provide for a private civil cause of action”); Andrews v. Heaton, 483
F.3d 1070, 1076 (10th Cir. 2007) (affirming district court’s dismissal of claims alleging
violations of 18 U.S.C. § 241 because that criminal statute does “not provide for a
private right of action and [is] thus not enforceable through a civil action”); Rigler v.
Lampert, 248 F. Supp. 3d 1224, 1233 (D. Wyo. 2017) (dismissing claims under 18
U.S.C. §§ 241 and 242 because those federal criminal statutes “do not provide for a
private civil cause of action”); Willis v. Green Tree Servicing, LLC, 2015 WL 5139307, at
*6 n.7 (E.D. Mich. Sept. 1, 2015) (noting that 18 U.S.C. § 474 “explicitly prohibits
criminal conduct and does not provide [an individual] with a private right of action”).
Thus, the Court rejects plaintiffs’ argument that they can assert claims under the federal
criminal statutes. Maehr v. United States, No. 18-cv-02273-PAB-NRN, 2019 WL
3940931, at *1 (D. Colo. Aug. 21, 2019) (quoting Price v. Hasly, 2004 WL 1305744, at
*2 (W.D.N.Y. June 8, 2004) (citing Leeke v. Timmerman, 454 U.S. 83 (1981))); see also
Keyter v. 535 Members of 110th Cong., 277 F. App’x 825, 827 (10th Cir. 2008)
(unpublished) (“a private citizen[ ] has no standing to initiate federal criminal
prosecutions”). The “United States and its attorneys have the sole power to prosecute
criminal cases in the federal courts.” Bellinsky v. Galan, No. 23-cv-03163-PAB-STV,
2024 WL 1330076, at *3 (D. Colo. Mar. 28, 2024) (quoting Maine v. Taylor, 477 U.S.
131, 136 (1986)).
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Abdulina v. Eberl’s Temp. Servs., Inc., 79 F. Supp. 3d 1201, 1206 (D. Colo. 2015)
(noting that a plaintiff “cannot amend her complaint by adding factual allegations in
response to Defendant’s motion to dismiss” (citing Jojola v. Chavez, 55 F.3d 488, 494
(10th Cir. 1995)). Thus, the Court will not consider these objections.
Plaintiffs also allege that they can bring claims under §§ 241 and 242 against Ms.
Ramos and Ms. Coffey; however, the magistrate judge recommends that both
defendants be dismissed. Docket No. 48 at 12. Plaintiffs have not objected to the
recommendation that Ms. Ramos and Ms. Coffey be dismissed due to plaintiffs’ failure
to properly serve both defendants. See Docket No. 51. The Court accepts this
recommendation and finds that any claims alleged against Ms. Ramos and Ms. Coffey
are moot. Thus, the Court overrules plaintiffs’ fifth objection.
F. Non-Objected to Portions of the Recommendation
The Court has reviewed the remainder of the recommendation to satisfy itself
that there are “no clear error[s] on the face of the record.” See Fed. R. Civ. P. 72(b),
Advisory Committee Notes. Based on this review, the Court has concluded that the
remainder of the recommendation is a correct application of the facts and the law.
IV. 	CONCLUSION
It is therefore
ORDERED that the Recommendation of the United States Magistrate Judge
[Docket No. 48] is ACCEPTED. It is further
ORDERED that Plaintiff’s Objection to Minute Order of United States Magistrate
Judge by Affidavit of Truth and Fact [Docket No. 42] is OVERRULED. It is further
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ORDERED that Plaintiffs Objection to Recommendations of United States
Magistrate Judge by Affidavit of Truth and Fact [Docket No. 51] is OVERRULED. It is
further
ORDERED that Defendant Partner Colorado Credit Union’s Motion to Dismiss
[Docket No. 6] is GRANTED. It is further
ORDERED that Defendant Harry L. Simon’s Motion to Dismiss [Docket No. 28] is
GRANTED. It is further
ORDERED that defendants Danielle L. Ramos, Diana Coffey, PCCU, and Harry
L. Simon are DISMISSED from this action. It is further
ORDERED that plaintiffs’ Fourth and Fifth Amendment claims are DISMISSED
without prejudice. It is further
ORDERED that plaintiffs’ Seventh Amendment Claim is DISMISSED with
prejudice against all defendants. 5
DATED January 31, 2025
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
5 The only remaining defendant is Judge Garrido, against whom the plaintiffs
bring claims under the Fourth Amendment, Fifth Amendment, Seventh Amendment, and
§§ 241 and 242. However, the magistrate judge recommends that plaintiffs’ Seventh
Amendment claim be dismissed against all defendants, Docket No. 48 at 15, and the
Court accepts that recommendation. Therefore, only the Fourth Amendment, Fifth
Amendment, and §§ 241 and 242 claims remain.
____	__	__	__	__	___	__	__	________	___	_____	___________	__	_______	__	__ _________________________________________________________________________
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