Kuciapinski v. Ennis et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24–cv–02181–PAB–MDB
MYKHAEL KUCIAPINSKI,
Plaintiff,
v.
DONNA F. ENNIS,
DANA M. GRANT,
LYNN J. MATESI,
JEFFEREY A. JOHNSON,
NICHOLAS A. BUDENZ
JESSE NEWHART,
TERRELL HARRIS,
STEVE KERLEY,
DEBORAH MCCABE,
KEITH M. GIVEN,
ANTHONY (LAST NAME UNKNOWN), Resident Agency DCIS Supervisor,
UNKNOWN WASHINGTON DC AREA FEDERAL AGENTS 1-3,
UNKNOWN FEDERAL AGENTS 1-12
DERMOT O’REILLY,
KELLY MAYO,
JEREMY SIBERT, and
JASON DUNN
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
This matter is before the Court on Defendants Donna Ennis, Dana Grant, Lynn Matesi,
Nicholas A. Budenz, Jesse Newhart, Terrell Harris, Steve Kerley, Deborah McCabe, Keith M.
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 1 of 23

2
Given,1 Dermot O’Reilly, Kelly Mayo, Jeremy Sibert, and Jason Dunn’s (“the Moving
Defendants”) Motion to Dismiss.2 ([“Motion to Dismiss”], Doc. No. 53.) Plaintiff has responded
in opposition to the Motion3 ([“Response”], Doc. No. 68) and the Moving Defendants have
replied in support ([“Reply”], Doc. No. 70). For the following reasons, the Court respectfully
RECOMMENDS that the Motion to Dismiss be GRANTED.
Also before the Court is Plaintiff’s Motion for Return of Property Unsing Other Tools:
Civil Equitable Action 41(g) and 5 U.S.C. § 702. ([”Rule 41(g) Motion”], Doc. No. 94.) The
Moving Defendants have responded in opposition to the Rule 41(g) Motion. (Doc. No. 96.) To
date, Plaintiff has not replied in support of the Rule 41(g) Motion, but the Court finds no further
briefing is necessary. For the following reasons, the Court respectfully RECOMMENDS that
the Rule 41(g) Motion be DENIED.
SUMMARY FOR SELF-REPRESENTED PLAINTIFF
The Court is recommending that the Motion to Dismiss be granted and your case be
closed. The official capacity claims that seek monetary damages are barred by sovereign
immunity. The injunctive relief you request is either for past harm, which is not permitted, or for
future harm that is not specific enough to be addressed. The individual capacity claims must also
1 The Complaint refers to this Defendant as “Keith Given,” while the Motion to Dismiss uses
“Givens.” For simplicity and clarity, the Court will defer to the Complaint and this docket’s
caption and use “Given.”
2 The Motion to Dismiss is not joined by Defendant Johnson or the unidentified Defendants, who
have not appeared in this action.
3 Plaintiff has also filed several motions since the instant Motion to Dismiss was filed. (See Doc.
Nos. 77; 80; 83; 86.) To the extent those filings directly or tangentially were intended to buttress
Plaintiff’s Response argument, the Court has considered them. (See Doc. No. 79.)
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 2 of 23

3
be dismissed because they are not viable under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), or the Posse Comitatus Act, and because several
defendants are only named but there are no specific allegations made against them.
The Court is also recommending that your Rule 41(g) Motion be denied. That Motion is
effectively a request to amend your Complaint, which the Court declines to recommend because
it would not cure the deficiencies in your current Complaint, and it would be unduly prejudicial
to Defendants.
This is only a high-level summary of the Court’s Recommendation, which is set for the
below along with information about your right to object to this Recommendation.
BACKGROUND
This case arises out of the now-dismissed criminal prosecution of Plaintiff in this District.
(See generally Doc. No. 1); see also 1:18-cr-00429-WJM.4 In this action, Plaintiff alleges she
was subjected to various constitutional and statutory violations in connection with that
prosecution.
According to Plaintiff, despite being advised by superiors that the “speculative claims
they [were] attempting to prosecute [were] non-criminal in nature,” Air Force Office of Special
Investigations agents Defendants Grant, Newhart, Harris, Ennis, and certain Doe Defendants,
began investigating Plaintiff in 2014 after she filed a “Whistleblower complaint.” (Doc. No. 1 at
4 The Court takes judicial notice of the criminal proceedings underlying this action. See St. Louis
Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (“[F]ederal
courts, in appropriate circumstances, may take notice of proceedings in other courts, both within
and without the federal judicial system, if those proceedings have a direct relation to matters at
issue.”).
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 3 of 23

4
6.) Plaintiff says that in 2016, Assistant United States Attorney Defendant Sibert “agreed to
prosecute the fictitious scenario[.]” (Id.)
Plaintiff alleges that on October 4, 2018, the “third party residence” that she was staying
at was raided by certain unidentified federal agents and Defendant Harris. (Id.) Plaintiff says the
agents did not produce any warrants or identify themselves. (Id.) Plaintiff alleges she was forced
to change clothes into “jail acceptable garments” in front of some of the agents, and was then
arrested and transported to a jail in Colorado Springs. (Id.) Plaintiff then alleges the residence
was searched for several hours on October 23, 2018, and again on May 16, 2019. (Id. at 7.)
Plaintiff says these searches were based on warrants procured by Defendant Sibert based on the
affidavit of Defendant Matesi. (Id.) Plaintiff says Defendants Grant, Harris, Anthony, Ennis,
Matesi, and several unidentified agents took part in one or both of these raids. (Id.) According to
Plaintiff, no evidence of wrongdoing was ever discovered and “several personal and computer
property items” were taken and never returned. (Id.)
Plaintiff also alleges prosecutorial misconduct, including that the “Presumption of
Innocence” was not afforded to her, certain unidentified “exculpatory evidence” was not
disclosed, that the allegations against her were “fabricated” based on the government’s “malice”
towards her, her bank accounts were closed and “real estate assets” were “froze[n], and that her
phones were wiretapped, mail was opened, and she was “stalked.” (Id. at 7–9.)
Plaintiff brings six claims: malicious prosecution under the Fourth Amendment (Claim
1), a Posse Comitatus Act (“PCA”) violation under 18 U.S.C. § 1385 (Claim 2), illegal search
and seizure under the Fourth Amendment (Claim 3), Fifth Amendment procedural due process
violation (Claim 4), violation of the right to a speedy trial and proper venue under the Sixth
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 4 of 23

5
Amendment (Claim 5), and cruel and unusual punishment under the Eighth Amendment (Claim
6).5 (Id. at 6–9.) Defendants are sued in their individual and official capacities. (See Doc. No. 20
(“Plaintiff ... elects to sue the current and former officials of the United States in both their
official and individual capacities.”).) Plaintiff seeks monetary damages and that her “name ... be
cleared and restored in data bases (sic) where the United States Government disqualified,
disbarred, and excluded my company and me.” (Id. at 10.) Plaintiff also requests that certain
unspecified individuals be held “accountab[le] by being “terminat[ed], reprimand[ed], and or
fine[d].”6 (Id.)
The Moving Defendants seek dismissal of all claims against them. (Doc. No. 53.) First,
they argue that Plaintiff’s official capacity claims fail because the Court lacks subject matter
jurisdiction over Plaintiff’s request for monetary relief. (Id. at 4–5.) They further argue Plaintiff’s
injunctive relief request cannot be granted because it is primarily for retrospective harm, and the
remedy sought for the prospective harm lacks specificity. They also argue the injunctive relief
5 Though the Complaint does not specify, each Defendant appears to be sued on each claim. (See
Doc. No. 1.)
6 The Complaint does not specify the mechanism by which Plaintiff asserts her constitutional
claims. However, given Plaintiff’s pro se status, the Court construes her pleadings liberally and
presumes Plaintiff’s request for monetary damages implicates Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and her requests for injunctive relief
implicate the Court’s equity powers. See Gess v. USMS, 2020 WL 8838280, at *11 (D. Colo.
Dec. 10, 2020) (“[A]lthough ‘Bivens suits are limited to damages, ... equitable relief is available
in the nature of injunction and/or mandamus under 28 U.S.C. §§ 1331 and/or 1361.’” (quoting
Arocho v. Nafziger, 367 F. App’x 942, 946 n.3 (10th Cir. 2010)), report and recommendation
adopted in part sub nom. Gess v. USMS & 10th Cir. Dist. Ct., 2021 WL 423436 (D. Colo. Feb.
5, 2021); see also id. at n.14 (“[I]njunctive relief technically is not an available remedy under
Bivens, but instead must be pursued pursuant to the court’s powers of equity.”).
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 5 of 23

6
claims are implausibly pled. (Id. at 24–25.) Next, the Moving Defendants argue Plaintiff’s
individual capacity claims fail because there are no specific allegations against certain
Defendants(id. at 17), Plaintiff lacks a Bivens remedy for Claims 1, 3, 4, 5, and 6 (id. at 8–16),
and the PCA does not create a private right of action (id. at 18).7
LEGAL STANDARD
I. 	Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure Rule 12(b)(1) allows a court to dismiss a complaint for
lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not
a judgment on the merits of a plaintiff’s case but a determination that the court lacks authority to
adjudicate the matter, attacking the existence of jurisdiction rather than the complaint’s
allegations. Creek Red Nation, LLC v. Jeffco Midget Football Ass’n., Inc., 175 F. Supp. 3d 1290,
1293 (D. Colo. 2016).
II. 	Federal Rule of Civil Procedure 12(b)(6)
Rule 12(b)(6) provides that a court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In ruling on a Rule 12(b)(6) motion,
a court must accept all well-pleaded facts as true and view these allegations in the light most
favorable to the plaintiff. Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010). However,
the “burden [remains] on the plaintiff to frame a ‘complaint with enough factual matter to
suggest’ that [she is] entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
7 The Moving Defendants also argue that certain Defendants or agencies have not been properly
served under Fed. R. Civ. P. 12(b)(5), that Defendants Dunn, Sibert, and Matesi are entitled to
absolute immunity, and that all Defendants are entitled to qualified immunity under Fed. R. Civ.
P. 12(b)(6). (Doc. No. 53 at 5–8, 16–24.) In light of the Court’s other findings, it need not reach
these arguments.
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 6 of 23

7
2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)). Indeed, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 667 (2009)). Ultimately, the Court must “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).
III. 	Self-Represented Plaintiff
In applying the above principles, this Court is mindful that Plaintiff is self-represented
and thus affords her papers and filings a liberal construction. Smith v. Allbaugh, 921 F.3d 1261,
1268 (10th Cir. 2019). But the Court cannot and does not act as her advocate, United States v.
Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019), and applies the same procedural rules and
substantive law to Plaintiff as to a represented party. See Requena v. Roberts, 893 F.3d 1195,
1205 (10th Cir. 2018); Dodson v. Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo.
2012).
ANALYSIS
I. 	Official Capacity Claims
A. Monetary Relief Request
The Moving Defendants assert sovereign immunity on Plaintiff’s official capacity claim
request for monetary damages.
“Sovereign immunity generally shields the United States, its agencies, and its officers
acting in their official capacity from suit.” Normandy Apartments, Ltd. v. U.S. Dep’t of Hous. &
Urb. Dev., 554 F.3d 1290, 1295 (10th Cir. 2009) (citing Wyoming v. United States, 279 F.3d
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 7 of 23

8
1214, 1225 (10th Cir. 2002)). “The defense of sovereign immunity is jurisdictional in nature,
depriving courts of subject-matter jurisdiction where applicable.” Id. [A] party seeking to assert a
claim against the government ... must ... point to a specific waiver of immunity in order to
establish jurisdiction.” Id.
Here, Plaintiff does not point to any applicable waiver of sovereign immunity. (See Doc.
Nos. 1; 68.) Indeed, no such waiver is applicable here. Plaintiff’s official capacity monetary
damages claims appear to be asserted under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), and such claims are barred by sovereign immunity.
See Shepard v. Rangel, 2014 WL 7366662, at *11 (D. Colo. Dec. 24, 2014) (“Plaintiff’s Bivens
claims for any form of monetary damages against Defendants in their official capacities are
barred by sovereign immunity[.]”); see also Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir.
2001) (describing an “official capacity Bivens suit” as an “oxymoron”); Simmat v. U.S. Bureau
of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005) (“[A] Bivens claim lies against the federal
official in his individual capacity—not ... against officials in their official capacity.”); Millbrook
v. Spitz, 2019 WL 5790701, at *7 (D. Colo. Aug. 26, 2019), report and recommendation
adopted, 2019 WL 4594275 (D. Colo. Sept. 23, 2019).
Further, to the extent Plaintiff purports to assert official capacity claims for monetary
damages under the PCA, she has likewise failed to point to any waiver of sovereign immunity
for such a claim, and the Court has not found one.8 See Mitrano v. United States, 2017 WL
8 And regardless, as the Court finds, infra, the PCA does not create a private right of action. See
infra at 18.
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 8 of 23

9
499905, at *1 (D. Mont. Feb. 7, 2017) (“Neither 28 U.S.C. § 1331, nor the Posse Comitatus Act
waive the United States’ sovereign immunity. This Court therefore lacks subject matter
jurisdiction over Mitrano’s claim under the Posse Comitatus Act.” (internal citations omitted)),
aff’d, 723 F. App’x 518 (9th Cir. 2018).
B. Injunctive Relief Requests
That said, “[s]overeign immunity is not a bar to [Plaintiff’s] claims for injunctive relief,”
and the Moving Defendants do not assert sovereign immunity against these claims. Matthews v.
Wiley, 744 F. Supp. 2d 1159, 1167 (D. Colo. 2010); (see Doc. No. 53); Simmat, 413 F.3d at 1233
(saying Congress has waived sovereign immunity in most suits for nonmonetary relief in the
Administrative Procedures Act (“APA”), regardless of whether or not the claim actually arises
under the APA). Still, the Court finds Plaintiff’s official capacity injunctive relief claims
properly dismissed.
First, to the extent Plaintiff seeks accountability through “termination[s], reprimands
and/or fines,” the Court finds such relief cannot be awarded. (Doc. No. 1 at 10.) “[I]njunctive
relief is not designed to remedy past injuries, Intelligent Off. Sys., LLC v. Virtualink Canada,
LTD., 2016 WL 687348, at *6 (D. Colo. Feb. 18, 2016), instead, injunctive relief is designed to
address ongoing or future harm. See O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974) (“Past
exposure to illegal conduct does not in itself show a present case or controversy regarding
injunctive relief, however, if unaccompanied by any continuing, present adverse effects.”). Said
another way, injunctions remedy prospective rather than retrospective harms, and Plaintiff’s
requests aimed at “accountability,” are by definition requests to remedy past (retrospective)
harm. See Buchheit v. Green, 705 F.3d 1157, 1159 (10th Cir. 2012) (affirming dismissal where
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 9 of 23

10
the plaintiff was “merely seeking to address alleged past harms rather than prevent prospective
violations of federal law” and thus the court could “only reasonably categorize such relief as
retrospective”).
Plaintiff also requests that her and her company’s “name ... be cleared and restored” in
certain unspecified databases. (Doc. No. 1 at 10.) While this request appears to concern
prospective harm, it lacks specificity. A request for injunctive relief must “be specific enough to
satisfy ... notice pleading standards.” Shook v. Bd. of Cnty. Commissioners of Cnty. of El Paso,
543 F.3d 597, 606, n.4 (10th Cir. 2008). While this standard is not particularly burdensome, a
plaintiff still must provide sufficient information to suggest that her entitlement to the requested
relief is plausible. Here, the Complaint fails to meet this bar. As the Moving Defendants note,
Plaintiff does not specify what databases she is referring to, what “cleared and restored” means,
which Defendants are responsible for removing her from these databases, or how the requested
relief can be awarded. It is also not entirely clear which claim(s) this request is tied to, or what
violation of law is tied to this request. Accordingly, the Court recommends dismissal.9
II. 	Individual Capacity Claims
A. Plaintiff does not make any allegations against Defendants Budenz, Kerley,
McCabe, Given, O’Reilly, Mayo, and Dunn.
At the outset, the Court notes that though Plaintiff’s Complaint names Budenz, Kerley,
McCabe, Given, O’Reilly, Mayo, and Dunn as Defendants (Doc. No. 1 at 3), it does not include
a single specific factual allegation regarding those Defendants’ purported actions. (Id. at 6–9.)
9 Even assuming this request was sufficiently specific, it would likely fail under Fed. R. Civ. Pro.
12(b)(6). The Complaint is full of conclusory statements that do not detail the specific conduct at
issue or plausibly establish any particular Defendant’s personal participation in the alleged
violations.
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 10 of 23

11
Accordingly, Plaintiff does not state plausible claims against these Defendants, and they must be
dismissed from this action. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cnty.
Just. Ctr., 492 F.3d 1158, 1163 (10th Cir. 2007) (“[T]o state a claim in federal court, a complaint
must explain what each defendant did to [the plaintiff]; when the defendant did it; how the
defendant’s action harmed him or her; and, what specific legal right the plaintiff believes the
defendant violated.”); see, e.g., Dwire v. Toth, 215 F. Supp. 2d 1128, 1130 (D. Colo. 2002)
(dismissing defendants where “[t]he Complaint fail[ed] to identify or even mention [the
defendants], and set[ ] forth no allegations of misconduct specific to them”), aff’d, 64 F. App’x
668 (10th Cir. 2003).
B. Claims 1, 3, 4, 5, and 6 lack Bivens remedies.
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the U.S. Supreme
Court established “an implied private action for damages against federal officers alleged to have
violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001).
The Supreme Court has recognized a Bivens remedy in only three cases: (1) Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (a Fourth Amendment unreasonable
search and seizure claim); (2) Davis v. Passman, 442 U.S. 228 (1979) (a Fifth Amendment equal
protection claim concerning gender discrimination); and (3) Carlson v. Green, 446 U.S. 14
(1980) (an Eighth Amendment failure to provide adequate medical treatment claim). “These
three cases—Bivens, Davis, and Carlson—represent the only instances in which the [Supreme]
Court has approved of an implied damages remedy under the Constitution itself.” Ziglar v.
Abbasi, 582 U.S. 120, 131 (2017).
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 11 of 23

12
Today, “Bivens is…all but dead.” Rowland v. Matevousian, 121 F.4th 1237, 1243 (10th
Cir. 2024); see Logsdon v. United States Marshal Serv., 91 F.4th 1352, 1355 (10th Cir. 2024)
(calling Bivens “a relic of the 20th century”). In the decades since Bivens was decided, the Court
has “progressively chipped away at the decision—to the point that very little of its original force
remains.” Silva v. United States, 45 F.4th 1134, 1139 (10th Cir. 2022); see also Egbert v. Boule,
596 U.S. 482, 491–93 (2022) (listing cases where the Court has declined to extend Bivens).
While not “dispens[ing] with Bivens altogether,” the Supreme Court has made clear that
recognizing a cause of action under Bivens is a “disfavored judicial activity.” Egbert, 596 U.S. at
491. Similarly, the Tenth Circuit has said, “expanding Bivens is...an action that is impermissible
in virtually all circumstances.” Silva, 45 F.4th at 1140; see id. at 1136 (saying “lower courts
expand Bivens claims at their own peril”).
The analysis of whether a Bivens remedy exists involves a two-part inquiry where “a
court asks first whether the case presents a new Bivens context—i.e., is it meaningfully different
from the three cases in which the Court has implied a damages action.” Egbert, 596 U.S. at 483.
That inquiry is strict, and “[t]he [Supreme] Court has said in effect that almost any difference
between the case at hand and the three Court precedents can justify rejecting a cause of action.”
Logsdon, 91 F.4th at 1355.
Second, if the case does arise in a new context, the Court considers whether there are
“special factors” indicating the judiciary is at least arguably less equipped than Congress “to
weigh the costs and benefits of allowing a damages action to proceed.” Egbert, 596 U.S. at 492
(quotation omitted). “If there is even a single ‘reason to pause before applying Bivens in a new
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 12 of 23

13
context,’ a court may not recognize a Bivens remedy.” Id. (quoting Hernandez v. Mesa, 140 S.
Ct. 735, 743 (2020)).
1. 	The claims arise in a new context
a. 	Claim 1: Fourth Amendment malicious prosecution
“Plaintiffs’ malicious prosecution claim differs in meaningful ways from the Supreme
Court’s previous Bivens cases.” Boudette v. Sanders, 2019 WL 3935168, at *7 (D. Colo. Aug.
19, 2019). At most, Claim 1 draws upon the Fourth Amendment, the same constitutional
provision as was at issue in Bivens. However, the similarities between this case and Bivens “start
and end there.” Rowland, 121 F.4th at 1243; see Hernandez, 589 U.S. at 102 (“A claim may arise
in a new context even if it is based on the same constitutional provision as a claim in a case in
which a damages remedy was previously recognized.”). Bivens was predicated on an illegal
seizure and excessive force connected to “FBI agents ... handcuffing a man in his own home
without a warrant.” Ziglar v. Abbasi, 582 U.S. 120, 140 (2017). Though this case involves
Plaintiff’s detainment, a malicious prosecution theory is different from an illegal seizure theory
and thus necessarily presents a new Bivens context. See Rowland, 121 F.4th at 1243 (quoting
Ziglar, 582 U.S. at 147) (noting a court need find only “small” differences between the facts
alleged and the facts in Bivens, Davis, or Carlson to determine a complaint presents a new
Bivens context); see Logsdon, 91 F.4th at 1355 (“The [Supreme] Court has said in effect that
almost any difference between the case at hand and the three Court precedents can justify
rejecting a cause of action.”).
b. 	Claim 3: Illegal search and seizure under the Fourth Amendment
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 13 of 23

14
Of Plaintiff’s claims, Claim 3 comes closest to a recognized Bivens context: like Bivens
itself, it involves an allegedly unlawful seizure. Still, however, given the strictness by which it
must undertake the analysis, the Court finds that Claim 3 also presents a new Bivens context.
First, this claim presents a “new category of defendants” distinct from the defendants in
Bivens. See Egbert, 596 U.S. at 492 (involvement of a “new category of defendants” is a new
context that presents “potential special factors that previous Bivens cases did not consider”
(internal quotation marks omitted)). Bivens “concerned the actions of agents of the Federal
Bureau of Narcotics,” while the Defendants here are federal prosecutors and Department of
Defense investigators and agents. Logsdon, 91 F.4th at 1358. And though both Bivens and this
claim seem to primarily involve “rank-and-file” federal agents, the Tenth Circuit has made clear
that an agent’s operational context, not solely his rank, informs the “new category of defendant
analysis.” See id. (holding that rank-and-file United States Marshal Service agents were a new
category of defendants); see also Cain v. Rinehart, 2023 WL 6439438, at *4 (6th Cir. July 25,
2023).
Moreover, the Defendants here were undertaking a different legal duty than the narcotics
officers in Bivens. See id. at 1358–59; see Ziglar v. Abbasi, 582 U.S. 120, 140 (2017) (saying
“the statutory or other legal mandate under which the officer was operating” is a relevant
consideration in the new context inquiry). The agents here were investigating potential violations
of law connected to military contracts. That is a fundamentally different mandate than the one
the narcotics officers carried out in Bivens. See Mejia v. Miller, 61 F.4th 663, 668 (9th Cir. 2023)
(rejecting Bivens claim against Bureau of Land Management (“BLM”) officers, in part because
the plaintiff did “not point to any reason to believe ... that BLM has the same mandate as
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 14 of 23

15
agencies enforcing federal anti-narcotics law [as in Bivens]” (internal quotation marks omitted))
Accordingly, Claim 3 presents a new Bivens context.
c. 	Claim 4: Fifth Amendment violation of procedural due process
Claim 4’s only connection to the recognized Bivens contexts is its citation to the Fifth
Amendment, the same Amendment at issue in Davis. But that is the only similarity to Davis,
which involved a congressional staffer’s claim that she was terminated on the basis of sex.
Hernandez, 589 U.S. at 102; see McEntee v. Beth Israel Lahey Health, Inc., 715 F. Supp. 3d 182,
188 (D. Mass. 2024) (“The plaintiff in Davis worked as an administrative assistant for the
defendant, a United States Congressman. Although the defendant was more than satisfied with
the plaintiff’s work, he nonetheless fired her because he decided it was crucial that the person
occupying the plaintiff's position be a man.”) (internal citation omitted). Here, Plaintiff’s
contention that she was denied procedural due process in connection with her criminal
prosecution is a far cry from the circumstances of Davis, and presents a new Biven’s context.
d. 	Claim 5: Sixth Amendment right to a speedy trial
Claim 5, which alleges a violation of Plaintiff’s speedy trial rights, also presents a new
context. The Supreme Court has never recognized a Bivens remedy under the Sixth Amendment.
See Cohen v. Busch, 2010 WL 2593937, at *9 (D. Colo. May 10, 2010) (“The Supreme Court
has not expressly extended Bivens liability to Sixth Amendment claims”), report and
recommendation adopted, 2010 WL 2585345 (D. Colo. June 23, 2010). Moreover, Plaintiff’s
Sixth Amendment claim has no similarity with the factual circumstances raised in Bivens,
Carlson, or Davis. Accordingly, Claim 5 presents a new Biven’s context.
e. 	Claim 6: Eighth Amendment Cruel and Unusual Punishment
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 15 of 23

16
Claim 6’s only connection to the recognized Bivens contexts is its citation to the Eighth
Amendment, the same Amendment at issue in Carlson. But Carlson involved the failure to
provide prisoners with adequate medical care. See Carlson , 446 U.S. at 16 n.1, 18–19. Here,
Plaintiff was never a convicted prisoner—and thus cannot maintain an Eighth Amendment claim
in the first place10—and moreover, even if Plaintiff could maintain an Eighth Amendment claim,
Claim 6 does not involve allegedly inadequate medical care and thus presents a different Bivens
context. See Silva, 45 F.4th at 1137 (rejecting excessive force claim that “would require an
expansion of Bivens to move forward even though it originates under the Eighth Amendment”).
2. 	There is no basis for expanding Bivens
Finding Claims 1, 3, 4, 5, and 6 arise in new Bivens contexts, the Court turns to consider
whether it should expand Bivens relief to these new contexts.
Importantly, “a court may not fashion a Bivens remedy if Congress already has provided
... an alternative remedial structure.” Egbert, 596 U.S. at 493 (internal quotation omitted). “If
there are alternative remedial structures in place, that alone, like any special factor, is reason
enough to limit the power of the Judiciary to infer a new Bivens cause of action.” Id. (internal
quotation omitted). Here, as pointed out by the Moving Defendants, both the Department of
Justice and Department of Defense have grievance-reporting procedures allowing individuals to
report alleged misconduct to the relevant agency. See OIG Hotline, DOJ, oig.justice.gov/hotline;
DoD Hotline, Department of Defense, https://www.dodig.mil/Components/Administrative-
Investigations/DoD-Hotline/. And though one may understandably question the efficacy of these
10 The Eighth Amendment bans cruel and unusual punishments “on those convicted of
crimes.” Wilson v. Seiter, 501 U.S. 294, 296–97 (1991); see also U.S. Const. amend. VIII.
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 16 of 23

17
administrative remedies, “[t]he Supreme Court has made clear that it is not the judiciary's
function to assess the adequacy of executive orders or legislative remedies in deterring
constitutional violations that might be remedied through a Bivens-type suit.” Logsdon, 91 F.4th
at 1360; see Egbert, 596 U.S. at 498 (“So long as Congress or the Executive has created a
remedial process that it finds sufficient to secure an adequate level of deterrence, the courts
cannot second-guess that calibration by superimposing a Bivens remedy. That is true even if a
court independently concludes that the Government’s procedures are ‘not as effective as an
individual damages remedy.” (internal quotation marks omitted)).
Moreover, as the Supreme Court has held, “a Bivens cause of action may not lie where ...
national security is at issue.” That principle applies here. The underlying criminal prosecution
charged Plaintiff with conspiring to commit procurement fraud in connection with a signals-
intelligence government contract, see United States v. Kuciapinski, No. 18-cr-429, ECF No. 204
(D. Colo. Sept. 25, 2019)—that is, a contract related to “the collection, processing and
dissemination of foreign communications in order to obtain foreign intelligence necessary to the
national defense, national security or the conduct of the foreign affairs of the United States.” Id.
at ¶ 5. By the terms of her claims, Plaintiff asks this Court to scrutinize an investigation into
matters involving sensitive military intelligence, which, at a minimum, implicates national
security, counseling against the creation of a Bivens remedy. See Jackson v. Fed. Bureau of
Investigation, 784 F. Supp. 3d 1260, 1277 (D. Ariz. 2025) (finding national security was
implicated by the plaintiff’s claims that he was unlawfully targeted for his political views and
ideology in connection with his criminal prosecution for activities following the 2020 election,
which “counsel[ed] against a Bivens remedy”); Hernandez v. Dep’t of Homeland Sec., 2026 WL
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 17 of 23

18
795311, at *3 (C.D. Cal. Mar. 9, 2026) (“[N]ational security concerns provide a reason to believe
that Congress is at least arguably better equipped to create a damages remedy[.]”).
C. The Posse Comitatus Act does not create a private right of action.
Plaintiff cites the PCA, codified at 18 U.S.C. § 1385, as the basis for Claim 2. However,
the PCA is a criminal statute and there is no civil remedy for alleged violations of federal or state
criminal statute unless the criminal statute itself creates a private right of action. See Clements v.
Chapman, 189 Fed. App’x 688, 692 (10th Cir. 2006). The PCA does not create a private right of
action. See Panagacos v. Towery, 782 F. Supp. 2d 1183, 1190 (W.D. Wash. 2011) (“The PCA is
a criminal statute. It does not authorize a civil cause of action.”), aff’d, 501 F. App’x 620 (9th
Cir. 2012); Miale v. Tuolumne Cnty. Sheriff's Dep't, 2009 WL 3073922, at *5 (E.D. Cal. Sept.
22, 2009) (“[T]he Court is unable to find any [authority], that suggests that there exists a private
right of action to enforce the Posse Comitatus Act.”); Kervin v. City of New Orleans, 2006 WL
2849861, at *3 (E.D. La. Sept. 28, 2006) (“The plaintiff sued Governor Blanco alleging a
violation of the Posse Comitatus Act. This criminal statute does not provide a private right of
action.” (internal citation omitted)). Accordingly, this claim must be dismissed.
D. The Remaining Defendants
Finally, the Court addresses the Defendants who have not joined the Motion to Dismiss
or otherwise appeared in this action—Defendant Johnson and all unidentified Defendants.
Because the Court finds Plaintiff’s individual capacity claims lack Bivens remedies and are not
otherwise cognizable, and because Plaintiff’s official capacity remedies cannot be awarded or are
inadequately plead, the Court sua sponte recommends that the claims brought against the non-
appearing Defendants also be dismissed. See Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir.
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 18 of 23

19
2001) (“[S]ua sponte dismissal of a meritless complaint that cannot be salvaged by amendment
comports with due process and does not infringe the right of access to the courts.”).
III. 	Federal Rule of Criminal Procedure 41(g) Motion
Plaintiff has also filed a motion pursuant to Federal Rule of Criminal Procedure 41(g),11
in which she seeks the return of property allegedly seized and not returned in connection with the
underlying criminal proceedings, as well as the “destruction” of certain DNA samples she
submitted. (Doc. No. 94 at 1–3.) The Moving Defendants argue this Rule 41(g) Motion is
improperly presented and thus must be denied. The Court agrees.
Under Rule 41(g), “[a] person aggrieved by an unlawful search and seizure of property or
by the deprivation of property may move for the property’s return.” “Where criminal
proceedings against the movant have already been completed, a district court should treat a [Rule
41(g)] motion as a civil complaint.” United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996);
see United States v. Roberts, 282 F. App’x 735, 736 (10th Cir. 2008) (“Once the criminal
proceedings have ended, a Rule 41(g) motion is treated as a civil equitable proceeding.”).
Here, Plaintiff files the Rule 41(g) Motion after criminal proceedings have been
completed, and the Court must treat it as a civil complaint. Clark, 84 F.3d at 381. Moreover,
given the procedural posture of this case, and the fact that the operative Complaint does not seek
Rule 41(g) relief or the return of any property (see Doc. No. 1),12 the Rule 41(g) Motion is, in a
sense, a motion to amend the Complaint. Construed as such, the Court recommends denial.
11 Plaintiff also cites the Administrative Procedure Act, 5 U.S.C. § 702, as a basis for the Rule
41(g) Motion. (See Doc. No. 94 at 1.) This does not command a different result.
12 The Court acknowledges that the Complaint makes various references to property which was
“never returned.” (Doc. No. 1 at 7.) But the Complaint does not seek the return of such property.
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 19 of 23

20
Although leave to amend should be “freely give[n] when justice so requires,” Fed. R.
Civ. P. 15(a)(2), a court may deny leave where amendment would be futile or unduly prejudicial.
See Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (saying leave to amend may be
denied upon “a showing of undue delay, undue prejudice to the opposing party, bad faith or
dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of
amendment.”). Such considerations counsel against amendment here. First, the Complaint’s
infirmities will not be resolved by grafting onto it this new claim. Second, this suit is nearly two
years old. Allowing Plaintiff to inject a claim for the return of property at this late stage would
unduly delay resolution of the case and cause meaningful prejudice to the existing Defendants,
on whose behalf the government has already spent meaningful resources defending claims that
are now subject to dismissal. Third, a Rule 41(g) claim is typically brought against the United
States, see, e.g., Eastman v. United States, 2022 WL 9346072, at *1 (D.N.M. Oct. 14, 2022);
Tafoya v. United States, 691 F. Supp. 3d 1329, 1330 (D.N.M. 2023), but the United States itself
is not a Defendant in this action. Thus, the Court recommends that the Rule 41(g) Motion be
denied.13
CONCLUSION
For the foregoing reasons the Court respectfully RECOMMENDS that the Motion to
Dismiss (Doc. No. 53) be GRANTED and that Plaintiff’s official capacity claims be dismissed
13 The Court also notes that if the Rule 41(g) Motion is, in effect, a motion to amend, it fails to
comply with this District’s local rule on amendments. See D.C.COLO.LCivR 15.1(b). Moreover,
declining to recommend amendment does not leave Plaintiff without recourse. Plaintiff remains
free to pursue the relief she seeks by filing a separate civil action under Rule 41(g) against the
United States. See Clark, 84 F.3d at 381.
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 20 of 23

21
without prejudice14 and her individual capacity claims be dismissed with prejudice.15 The Court
further
RECOMMENDS Plaintiff’s Motion for Return of Property Unsing Other Tools: Civil
Equitable Action 41(g) and 5 U.S.C. § 702 (Doc. No. 94.) be DENIED. Finally, the Court
RECOMMENDS that this case be closed.
The Clerk of Court is directed to mail a copy of this Recommendation to Plaintiff:
Mykhael Kuciapinski
5136 Community Center Drive
#69
USAF Academy, CO 80840
14 The Court recommends without prejudice dismissal on the official capacity claims because it
lacks subject matter jurisdiction over the monetary relief request and some of the injunctive relief
requests, and because the remaining injunctive relief request (the request to be restored to certain
databases) is too under-pled to be considered. See Brereton v. Bountiful City Corp., 434 F.3d
1213, 1216 (10th Cir. 2006) (“[W]here the district court dismisses an action for lack of
jurisdiction ... the dismissal must be without prejudice.”); Gee v. Pacheco, 627 F.3d 1178, 1186
(10th Cir.2010) ( “[O]rdinarily the dismissal of a pro se claim under Rule 12(b)(6) should be
without prejudice” (citation omitted)).
15 The Court recommends with prejudice dismissal on the individual capacity claims because
leave to amend would be futile. See Silva v. United States, 45 F.4th 1134, 1142 (10th Cir. 2022)
(“Plaintiff's Bivens claim is foreclosed .... [thus] we affirm the district court’s dismissal of
Plaintiff’s complaint with prejudice.” (cleaned up)); see Frost v. Med. Man Techs., Inc., 2025
WL 605259, at *15 (D. Colo. Feb. 25, 2025) (dismissing claims predicated on criminal statutes
with prejudice on futility grounds).
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 21 of 23

22
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings 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); 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. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 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 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 and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (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); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 22 of 23

23
the magistrate judge’s ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 30th day of June, 2026.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
Case No. 1:24-cv-02181-PAB-MDB Document 97 filed 06/30/26 USDC Colorado
pg 23 of 23