Viegas et al v. Braswell et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-02175-PAB-STV
KERI L. VIEGAS and
JAMES VIEGAS,
Plaintiffs,
v.
MARITZA DOMINGUEZ BRASWELL;
TOYOTA FINANCIAL SERVICES; and
DAFNEY DUBUISSON STOKES,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This matter is before the Court on Defendants Toyota Financial Services and
Dafney Dubuisson Stokes’ Motion to Dismiss (the “Motion”) [#44] which has been referred
to this Court. [#45] This Court has carefully considered the Motion and related briefing,
the case file, and the applicable case law, and has determined that oral argument would
not materially assist in the disposition of the Motion. For the following reasons, the Court
respectfully RECOMMENDS that the Motion be GRANTED IN PART.
I. 	BACKGROUND1
For clarity and context, the Court begins with a discussion of Plaintiffs’ previously
filed civil case and then turns to the instant action.
1 The facts are largely drawn from the allegations in Plaintiffs’ Complaint [#1], which must
be taken as true when considering a motion to dismiss. 	Wilson v. Montano, 715 F.3d
847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir.
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A. 	The March 11, 2024 Civil Case (the “Initial Action”)
On March 11, 2024, Plaintiffs Keri and James Viegas filed a case against Toyota
Financial Services (“Toyota”) and Predator Recovery Inc. (“PRI”). Viegas et al. v. Toyota
Financial Services et al., No. 24-cv-00668-PAB-STV (D. Colo. 2024), ECF No. 1. There,
Plaintiffs allege that Toyota “tried to force extortion payments for a nonexistent lien” on
Plaintiffs’ vehicle; that PRI trespassed and stole Plaintiffs’ vehicle from their property; and
that Toyota ordered PRI to seize the vehicle. 	Id. at 4-5. 	Plaintiffs contend Defendants
violated 42 U.S.C. §§ 1983, 1988; 18 U.S.C. §§ 241, 242; and the Fourth, Fifth and
Seventh Amendments to the United States Constitution. Id.
On March 25, 2024, Magistrate Judge Maritza Dominguez Braswell issued an
order to show cause to Plaintiffs regarding the Court’s subject matter jurisdiction. Viegas,
No. 24-cv-00668-PAB-STV, ECF No. 13. 	Judge Dominguez Braswell noted that “it is
unclear whether there is federal question jurisdiction” in this case because Plaintiffs’
“allegations of unlawful repossession, in light of the facts pled, do not appear to fall under
2011)). The Court also finds it appropriate to take judicial notice of docket materials and
facts from the record of Plaintiffs’ earlier-filed civil case, as they bear directly upon the
disposition of the case at hand. Brickert v. Deutsche Bank Nat’l Tr. Co., 380 F. Supp. 3d
1127, 1133 n.1 (D. Colo. 2019) (“[A] court can take judicial notice of ‘documents and
docket materials filed in other courts.’”) (quoting Stan Lee Media, Inc. v. Walt Disney Co.,
774 F.3d 1292, 1298 n.2 (10th Cir. 2014)); Hodgson v. Farmington City, 675 F. App’x
838, 841 (10th Cir. 2017) (finding the court may take judicial notice of another court’s
publicly filed records concerning “matters that bear directly upon the disposition of the
case at hand” (quotation omitted)). Moreover, the Complaint extensively references the
earlier civil case. 	[See generally #1]; see also Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007) (holding a court “must consider the complaint in its entirety
. . . [and] documents incorporated into the complaint by reference”). The Court, however,
does not consider any additional factual allegations raised by Plaintiffs in briefing. See In
re Qwest Commc’ns Int’l, Inc., 396 F. Supp. 2d 1178, 1203 (D. Colo. 2004) (disregarding
additional factual claims asserted in briefing on a motion to dismiss, explaining that
“plaintiffs may not effectively amend their Complaint by alleging new facts in their
response to a motion to dismiss”).
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any recognized legal claim created by federal law.” 	Id. at 3. 	That same day, Plaintiffs
filed a response to the order to show cause, arguing the Court had subject matter
jurisdiction because the action arose under the Fourth and Fifth Amendments. 	Viegas,
No. 24-cv-00668-PAB-STV, ECF No. 14.
On May 7, 2024, Judge Dominguez Braswell issued a recommendation to dismiss
Plaintiffs’ claims without prejudice for lack of subject matter jurisdiction. Viegas, No. 24-
cv-00668-PAB-STV, 	ECF 	No. 	40. 	In 	the 	recommendation, 	she 	reiterated 	that
“repossession is generally governed by state law” and as to any constitutional violation,
she found that “Plaintiffs have not asserted that Defendants are government actors.” Id.
at 4. Plaintiffs filed a timely objection to the recommendation, arguing that the Court did
have jurisdiction. Viegas, No. 24-cv-00668-PAB-STV, ECF No. 41.
On August 9, 2024, Chief Judge Philip A. Brimmer reviewed the recommendation
and found that the Court had subject matter jurisdiction because the complaint raised a
due process claim under the Fifth Amendment pursuant to 42 U.S.C. § 1983, based on
the Defendants’ alleged confiscation of Plaintiffs’ automobile. Viegas, No. 24-cv-00668-
PAB-STV, ECF No. 47. That matter is set for status on April 2, 2025. Viegas, No. 24-cv-
00668-PAB-STV, ECF No. 61.
B. 	The August 6, 2024 Civil Case (the “Instant Action”)
Plaintiffs, proceeding pro se, initiated the Instant Action on August 6, 2024 against
three Defendants: Judge Dominguez Braswell, Toyota and Dafney Dubuisson Stokes
(“Stokes”). [#1] In the Instant Action, Plaintiffs allege that Judge Dominguez Braswell’s
May 7, 2024 recommendation in the Initial Action was an “unconstitutional order” made
to force Plaintiffs “to obtain redress in a lower court without proper due process” and was
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made in collusion with the other two defendants. 	[#1 at 4] 	Plaintiffs also allege that
Defendants Toyota and Stokes continue to collude and retain stolen private property
without providing Plaintiffs with remedy or relief, after Toyota and Stokes were provided
with Notarized True Bills by Affidavits dated June 17, 2024 and July 23, 2024. [Id. at 5]
Plaintiffs assert several causes of action, including violations of: 18 U.S.C. § 242; 42
U.S.C. §§ 1983 and 1988; the Fourth, Fifth and Seventh Amendments to the United
States Constitution; and Article III, Section 2 of the United States Constitution. [Id. at 3-
5]
Defendants Toyota and Stokes filed the Motion on December 24, 2024 seeking
dismissal with prejudice of all of Plaintiffs’ claims. [#44] Plaintiffs have responded to the
Motion. [#522] Defendants Toyota and Stokes did not file a reply.
II. 	STANDARD OF REVIEW
A. 	Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” In deciding a motion under
Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and
view these allegations in the light most favorable to the plaintiff.” Cassanova v. Ulibarri,
595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009)). 	Nonetheless, a plaintiff may not rely on mere labels or
conclusions, “and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
2 Plaintiffs filed two briefs in response to the Motion. [##47, 52] The Court considers the
later-filed version for purposes of resolving the Motion.
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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the
scope of the allegations in a complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims
across the line from conceivable to plausible.’” 	Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff
to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she
is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court
is to “determine whether the complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief under the legal theory proposed.”
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
B. 	Pro Se Litigants
“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). “The
Haines rule applies to all proceedings involving a pro se litigant.” 	Id. at 1110 n.3. 	The
Court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008). 	Moreover, pro se parties must “follow the same rules of
procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
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III. 	ANALYSIS
In construing the Complaint liberally, it appears Plaintiffs allege that Defendants
Toyota and Stokes violated: (1) 18 U.S.C. § 242, (2) 42 U.S.C. § 1988, and (3) the Fourth,
Fifth, and Seventh Amendments pursuant to 42 U.S.C § 1983 (“Section 1983”)3. 	[See
generally #1] 	Defendants Toyota and Stokes argue that Plaintiffs have failed to state a
claim. [#44-1 at 3-8] The Court will address each claim in turn.
A. 	18 U.S.C. § 242
Plaintiffs plead a cause of action under 18 U.S.C. § 242 based on the purported
collusion between Defendants. 	[#1 at 5] 	But 18 U.S.C. § 242 is a criminal statute and
cannot be enforced in a private civil action. Houck v. Gurich, 515 F. App'x 724, 724 (10th
Cir. 2013). “Additionally, 42 U.S.C. § 1983 impliedly forecloses civil relief pursuant to [18
U.S.C.] § 242 by providing a private right of action for similar misconduct.” Zamarron v.
Madrid, Civ. No. 21-919 RB/GJF, 2024 WL 4389770, at *3 (D.N.M. Oct. 3, 2024), report
and recommendation adopted, 2024 WL 4635226 (D.N.M. Oct. 31, 2024). 	For these
reasons, the Court respectfully RECOMMENDS that Plaintiffs’ claim against Defendants
Toyota and Stokes for violations of 18 U.S.C. § 242 be DISMISSED WITH PREJUDICE.4
3 The Complaint appears to allege a separate cause of action for violations of Section
1983. [#1 at 4-5] But, “Section 1983 is not itself a source of substantive rights, but merely
provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver,
510 U.S. 266, 271 (1994) (quotation omitted). Therefore, the Court construes Plaintiffs’
claims for violation of rights under the Constitution as civil rights claims brought under
Section 1983.
4 Dismissal with prejudice is proper under these circumstances, as further amendment to
the Complaint would be futile. 	See Zamarron, 2024 WL 4389770, at *3 (dismissing 18
U.S.C. § 242 claim with prejudice).
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B. 	42 U.S.C. § 1988
Plaintiffs argue Defendants Toyota and Stokes violated 42 U.S.C. § 1988. 	[#1 at
3] Defendants argue that Section 1988 does not create an independent cause of action.
[#44-1 at 6] 	The Court agrees as 42 U.S.C. § 1988 “simply ‘defines procedures under
which remedies may be sought in civil rights actions.’” Schroder v. Volcker, 864 F.2d 97,
99 (10th Cir. 1988) (finding the district court properly dismissed the plaintiffs’ 42 U.S.C. §
1988 claim) (quoting Brown v. Reardon, 770 F.2d 896, 907 (10th Cir. 1985)). Accordingly,
the Court respectfully RECOMMENDS that Plaintiffs’ claim against Defendants Toyota
and Stokes for violations of 42 U.S.C. § 1988 be DISMISSED WITH PREJUDICE.5
C. 	Fourth, Fifth, and Seventh Amendments
Plaintiffs allege that Defendants Toyota and Stokes violated: the Fourth, Fifth, and
Seventh Amendments pursuant to Section 1983. 	[#1 at 3-5] 	To allege a claim against
an individual under Section 1983, a plaintiff must allege “that [the] person has deprived
him of a federally protected right and [ ] the person who has deprived him of that right
acted under the color of state law.” Houston v. Reich, 932 F.2d 883, 890 (10th Cir. 1991).
When suing an individual under Section 1983 in their individual or personal capacity, “the
complaint [must] make clear exactly who is alleged to have done what to whom . . . as
distinguished from collective allegations.” Brown v. Montoya, 662 F.3d 1152, 1165 (10th
Cir. 2011) (quoting Kansas Penn Gaming, L.L.C. v. Collins, 656 F.3d 1210, 1215 (10th
Cir. 2011)).
5 Dismissal with prejudice is proper, as further amendment to the Complaint would be
futile. See Desai v. Garfield Cnty. Gov't, No. 2:17-cv-00024-JNP-EJF, 2018 WL 1627205,
at *10 (D. Utah Feb. 16, 2018) (recommending dismissal of Section 1988 claim with
prejudice), report and recommendation adopted, 2018 WL 1626521 (D. Utah Mar. 30,
2018).
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Upon review of the Complaint, the Court finds there are no facts supportive of a
constitutional 	violation 	by 	Defendants 	Toyota 	or 	Stokes. 	Regarding 	these 	two
Defendants, Plaintiff merely alleges: (1) “Defendant [Dominguez] Braswell acted . . . in
collusion with the other Defendants to violate the unalienable rights of the Plaintiffs to
redress and obtain property that was taken without due process” and (2) “Defendants
[Toyota] and Stokes continue to collude and retain stolen private property” despite the
fact that Plaintiffs provided Defendants with Notarized True Bills by Affidavit dated June
17, 2024 and July 23, 2024. [#1 at 4-5] Plaintiffs do not allege any specific dates, nor do
they specify what actions each Defendant took, how they were involved in stealing the
private property, or how they colluded. And the Court is not required to accept conclusory,
unsupported allegations. Twombly, 550 U.S. at 555; [see also #1 at 5 (“All Defendants
continue to collude. . . . 	All Defendants have violated the Constitutional rights of the
Plaintiffs.”] Furthermore, while courts construe pro se pleadings liberally, courts “will not
supply additional factual allegations to round out a plaintiff's complaint.” Whitney v. State
of N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997); see also Truby v. Denham, No. 1:16-
cv-02764-CMA-CBS, 2017 WL 8942573, at *2 (D. Colo. Oct. 16, 2017) (“A plaintiff may
not defeat a motion to dismiss by alluding to facts that have not been alleged, or by
suggesting violations that have not been plead”), report and recommendation adopted,
2017 WL 5898598 (D. Colo. Nov. 30, 2017). 	Plaintiffs’ conclusory allegations that their
constitutional rights were violated are insufficient to establish a plausible claim that
Defendants 	are 	liable 	under 	Section 	1983.6 	Accordingly, 	the 	Court 	respectfully
6 Although not raised by Defendants Toyota and Stokes in their Motion to Dismiss,
Plaintiffs also fail to plead the state action required for a Section 1983 claim. “Under
Section 1983, liability attaches only to conduct occurring ‘under color of law.’ Thus, under
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RECOMMENDS that Plaintiffs’ claim against Defendants Toyota and Stokes for violations
of their Fourth, Fifth, and Seventh Amendment rights, pursuant to Section 1983, be
DISMISSED WITHOUT PREJUDICE.7 See Oxendine v. Kaplan, 241 F.3d 1272, 1275
(10th Cir. 2001) (holding that when the plaintiff is proceeding pro se, dismissal with
prejudice is only appropriate “where it is obvious that the plaintiff cannot prevail on the
facts he has alleged and it would be futile to give him an opportunity to amend” (quotation
omitted)); Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding prejudice
should not attach to dismissal when plaintiff has made allegations “which, upon further
investigation and development, could raise substantial issues”).
IV. 	CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Defendants
Toyota Financial Services and Dafney Dubuisson Stokes’ Motion to Dismiss [#44] be
the state action doctrine, a proper defendant in a [Section] 1983 action is one who
represents the state in some capacity.” Schwab v. Kansas Dep’t of Child. & Fams., 851
F. App’x 110, 117 (10th Cir. 2021) (quotations omitted). However, a private actor may be
considered a state actor if the “state officials and private parties have acted in concert in
effecting a particular deprivation of constitutional rights.” Wittner v. Banner Health, 720
F.3d 770, 777 (10th Cir. 2013) (quoting Gallagher v. Neil Young Freedom Concert, 49
F.3d 1442, 1453 (10th Cir. 1995)). “[W]hen a plaintiff attempts to assert the state action
required for a [Section] 1983 claim against private actors based on a conspiracy with
government actors, mere conclusory allegations with no supporting factual averments are
insufficient. Rather, the plaintiff must specifically plead facts tending to show agreement
and concerted action.” Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (internal
citations and quotations omitted). Here, Plaintiffs have not pleaded facts with sufficient
specificity to show concerted action with any state actors.
7 Defendants Toyota and Stokes sought dismissal with prejudice. [#44-1 at 8] As these
cases 	demonstrate, 	dismissal 	should 	be 	without 	prejudice. 	Thus, 	the 	Court
RECOMMENDS that the Motion be DENIED to the extent it seeks dismissal with
prejudice. Nonetheless, Plaintiffs are advised that if they raise a duplicative suit as that
raised in the Initial Action, “[a]s part of its general power to administer its docket, a district
court may stay or dismiss a suit that is duplicative of another federal court suit.” Ford v.
Mischeviz, 68 F. App'x 877, 878 (10th Cir. 2003) (quoting Curtis v. Citibank, N.A., 226
F.3d 133, 138 (2nd Cir.2000)).
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GRANTED IN PART. It is further recommended that Plaintiffs’ claims against Defendants
Toyota and Stokes for violations of their Fourth, Fifth, and Seventh Amendment rights,
pursuant to Section 1983, be DISMISSED WITHOUT PREJUDICE and all other claims
be DISMISSED WITH PREJUDICE.8
DATED: March 21, 2025 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
8 Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations with the Clerk of the United States District Court for
the District of Colorado. 	28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla
(In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put
the district court on notice of the basis for the objection will not preserve the objection for
de 	novo 	review. 	“[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. 2121 East 30th Street, 73
F.3d 1057, 1060 (10th Cir. 1996). 	Failure to make timely objections may bar de novo
review by the district judge of the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations and will result in a waiver of the right to appeal from
a judgment of the district court based on the proposed findings of fact, legal conclusions,
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-
80 (10th Cir. 1999) (holding that the district court’s decision to review magistrate judge’s
recommendation de novo despite lack of an objection does not preclude application of
“firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d
901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain
portions of magistrate judge’s order by failing to object to those portions); Ayala v. United
States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to
appeal the magistrate judge’s ruling by failing to file objections). 	But see, Morales-
Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule
does not apply when the interests of justice require review).
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