Bellinsky v. Galan et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-03163-PAB-STV
JACOB BELLINSKY,
Plaintiff,
v.
RACHEL ZINNA GALAN;
STEVEN JAMES LAZAR;
ANDREW NEWTON HART;
TERRI MEREDITH;
RYAN PAUL LOEWER;
BRYCE DAVID ALLEN;
JEFFREY RALPH PILKINGTON;
BRIAN DALE BOATRIGHT; and
STATE OF COLORADO,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This matter comes before the Court on the State Defendants’ Motion to Dismiss1
[#27], Defendant Andrew Newton Hart’s Motion to Dismiss [#30], Defendant Rachel Zinna
Galan’s Motion to Dismiss [#38], and Defendant Steven James LaZar’s Motion to Dismiss
[#44] (collectively, the “Motions”). The Motions have been referred to this Court. [##28,
31, 39, 45] This Court has carefully considered the Motions and related briefing, the entire
1 The State Defendants include the State of Colorado, Terri Meredith, Judge Ryan Paul
Loewer, Judge Jeffrey Pilkington, Magistrate Bryce David Allen, and Justice Brian Dale
Boatright (collectively, the “State Defendants”). [#27 at 1]
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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 Motions be GRANTED with respect to Plaintiff’s
federal claims and that the district court DECLINE supplemental jurisdiction over
Plaintiff’s state claim.
I. 	FACTUAL BACKGROUND2
This action arises out of actions taken related to a domestic relations case, Case
No. 2015DR7, in the Gilpin County District Court (the “State Proceedings”). [#1 at ¶¶ 19,
26] Plaintiff asserts that after he attained primary custody of his six minor children in his
divorce case, his ex-wife, Defendant Rachel Zinna Galan, her fiancé, Defendant Steven
James LaZar, and an attorney, Defendant Andrew Newton Hart, conspired to “kidnap”
Plaintiff’s children and “interfere[ ] with [Plaintiff’s] parenting time.” 	[Id. at ¶¶ 27-28]
Plaintiff refers to Defendants Galan, LaZar, and Hart as “the trio” throughout his
Complaint. [See, e.g., id. at ¶¶ 28, 42, 45 49] Plaintiff alleges that these three individuals,
along with the Gilpin County Court clerk, several state court judges, and the Chief Justice
2 The facts are drawn from the allegations in Plaintiff’s Complaint (the “Complaint”) [#1],
which the Court accepts as true at this early stage of the proceedings. 	See Wilson v.
Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152,
1162 (10th Cir. 2011)). The facts are also drawn from the related state court proceedings,
of which the Court takes judicial notice. 	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)). 	Moreover, the Complaint extensively
references the related state court proceedings. [See generally #1]; see also Tellabs, Inc.
v. Makor Issues & Rts., 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”).
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of the Colorado Supreme Court engaged in a “crime spree” against Plaintiff in the State
Proceedings. [Id. at ¶¶ 4-8, 31, 48]
Specifically, the Complaint asserts the following: on May 31, 2023, Defendant Hart
filed a motion to withdraw as counsel of record for Defendant Galan in the State
Proceedings. 	[Id. at ¶ 41] 	The next day, Defendant Galan filed three motions, titled:
“Amended: Motion to Relocate Children,” “Amended: Parenting Plan,” and “Amended:
Motion and Affidavit to Change Decision-Making.” 	[Id. at ¶ 42] 	Plaintiff argues these
motions are fraudulent because they appear to have been drafted by Defendant Hart,
who had moved to withdraw. 	[Id. at ¶ 43] 	Plaintiff therefore objected to the attorney’s
motion to withdraw. 	[Id. at ¶ 44] 	Plaintiff also filed responses objecting to the three
motions. 	[Id. at ¶ 46] 	Plaintiff simultaneously sent a copy of his objections and a
“Renewed Demand for Due Relief” to the Chief Justice of the Colorado Supreme Court,
Defendant Brian Dale Boatright, and the Chief Judge of the First Judicial District,
Defendant Jeffrey Ralph Pilkington. [Id. at ¶ 47] These Defendants did not do anything
in response. [Id. at ¶¶ 47, 33-34]
Defendant 	Ryan 	Paul 	Loewer, 	the 	then-presiding 	Magistrate 	in 	the 	State
Proceedings,3 overruled Plaintiff’s objections to the attorney’s motion to withdraw. [Id. at
¶ 48] 	Plaintiff alleges that several of the other Defendant judges “knowingly joined in
Hart’s [ ] conspiracy.” [Id. at ¶¶ 48-49] Plaintiff appears to allege that the clerk of court,
Defendant Terri Meredith, was similarly involved in the conspiracy by failing to timely
notify Plaintiff of several filings. [Id. at ¶¶ 45, 51]
3 Defendant Loewer has since been appointed as a district judge for the First Judicial
District. [#27 at 2 n.2]
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On July 17, 2023, Plaintiff removed the State Proceedings to federal court. [Id. at
¶¶ 	50-53] 	On September 27, 2023, a hearing was held in state court. 	[Id. at ¶ 51] 	At
the hearing, Defendant Magistrate Bryce David Allen stayed the State Proceedings,
anticipating a remand of the case to state court, and reset a motion hearing regarding
relocation of Plaintiff’s children for January 30, 2024. [Id. at ¶ 56; #27-1] On November
21, 2023, this District remanded the case to the Gilpin County District Court due to the
Court’s lack of subject matter jurisdiction. Galan v. Bellinsky, No. 23-cv-01799-PAB (D.
Colo. Nov. 21, 2023), ECF No. 25.
II. 	PROCEDURAL BACKGROUND
On November 30, 2023, Plaintiff initiated this lawsuit. [#1] Plaintiff asserts three
claims for relief. 	[Id.] 	First, Plaintiff asserts a claim for relief under 42 U.S.C. §§ 1983,
1981, and 1985 against all individual Defendants. 	[Id. at ¶¶ 58-85] 	Second, Plaintiff
asserts a claim for relief under 42 U.S.C. § 1986 against Defendant Hart, the State
Defendants, and the State of Colorado. 	[Id. at ¶¶ 86-89] 	Third, Plaintiff asserts an
intentional infliction of emotional distress (“IIED”) claim against all individual Defendants
and the State of Colorado. 	[Id. at ¶¶ 90-95] 	Plaintiff seeks compensatory and punitive
damages. [Id. at ¶ 96]
On December 26, 2023, the State Defendants filed a Motion to Dismiss. 	[#27]
That same day, Defendant Hart filed a Motion to Dismiss. 	[#30] On January 12, 2024,
Defendant Galan, pro se, filed a Motion to Dismiss. 	[#38] On January 17, 2024,
Defendant LaZar, pro se, filed a Motion to Dismiss. [#44] Plaintiff has responded to the
Motions [##41, 42, 43, 46] and some Defendants have filed replies [##47, 54, 61].
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On April 16, 2024, this Court recommended that Defendants’ four Motions to
Dismiss be granted because the Court found that it should abstain from asserting subject
matter jurisdiction under the principles of the Rooker-Feldman doctrine or Younger
abstention. [#75] This recommendation was adopted. [#81] After a ruling by the Tenth
Circuit reversing this holding on the issue of abstention, the Order dismissing Plaintiff’s
Complaint for lack of subject matter jurisdiction was vacated. 	[#112] 	Thus, the four
Motions at issue in this recommendation were reinstated. 	[Id.] 	Accordingly, the Court
now addresses Defendants’ remaining arguments regarding dismissal of Plaintiff’s
Complaint.
III. 	STANDARD OF REVIEW
A. 	Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) empowers 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 only a determination that
the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576,
1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may
only exercise jurisdiction when specifically authorized to do so). 	A court lacking
jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes
apparent that jurisdiction is lacking.” 	Basso v. Utah Power & Light Co., 495 F.2d 906,
909 (10th Cir. 1974).
Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving
party may (1) facially attack the complaint’s allegations as to the existence of subject
matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting
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evidence to challenge the factual basis upon which subject matter jurisdiction rests.”
Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004)
(quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). 	When reviewing a
facial attack on subject matter jurisdiction, the Court “presume[s] all of the allegations
contained in the amended complaint to be true.” Ruiz v. McDonnell, 299 F.3d 1173, 1180
(10th Cir. 2002).
B. 	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).
“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
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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).
C. 	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)).
IV. 	ANALYSIS4
A. 	Claim One: 42 U.S.C. § 1981
Plaintiff alleges that the individual Defendants to this action deprived him of “equal
rights under the law” in violation of 42 U.S.C. § 1981. [#1 at ¶¶ 76-80] According to the
Complaint, the state actors in this case have “seen [Plaintiff’s] criminal complaints” and
have “in conspiracy together and with the trio” deprived Plaintiff of his rights to redress
and to the equal benefit of all laws and proceedings. [Id. at ¶¶ 78] Plaintiff alleges that
4 As an initial matter, the Court notes that Plaintiff, in his [#42] Response, argues that
Colorado Attorney General Philip J. Weiser has a conflict of interest which prevents him
from representing any of the State Defendants. [#42 at 2-4] But as Chief Judge Brimmer
has previously explained, “it is common for the government to represent state or local
employees sued in their individual capacities.” [#73 at 11 (collecting cases)]
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Defendants Hart, Galan, and LaZar have impaired Plaintiff’s rights by “pretending as
though they are doing nothing wrong” in addition to pretending that evidence of their
“crimes” does not exist, and pretending that Plaintiff does not have “patriarchal duties” to
“protect his children from further harm and secure his family’s well-being.” 	[Id. at ¶ 79]
Defendants argue that Plaintiff has not stated a claim under Section 1981.5 [##27 at 9-
10; 30 at 6-7; 38 at 1; 44 at 2]
Section 1981 provides:
All persons within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981(a) “Section 1981 prohibits racial discrimination in the making and
enforcement of contracts.” 	Muller v. Islands at Rio Rancho Homeowners Ass’n, 564 F.
App’x. 411, 413-14 (10th Cir. 2014). 	“Accordingly, § 1981 ‘offers relief when racial
discrimination blocks the creation of a contractual relationship, as well as when racial
discrimination impairs an existing contractual relationship.’” Id. at 414 (quoting Domino’s
Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006)). In enacting section 1981, “Congress
intended to protect from discrimination identifiable classes of persons who are subjected
5 Plaintiff repeatedly argues that because Defendants did not explicitly admit or deny each
of Plaintiff's allegations in their Motions to Dismiss, the allegations are now uncontested.
[See, e.g., ##41 at 4-5; 42 at 6-7] This is a misunderstanding of the Federal Rules of Civil
Procedure. 	A plaintiff “is incorrect in arguing that by filing motions to dismiss instead of
answers, the defendants admitted all the claims” in the complaint. 	Carrillo v. Coffman,
663 F. App'x. 680, 684 (10th Cir. 2016). “Parties may assert the 'failure to state a claim
upon which relief can be granted' by motion 'made before pleading if a responsive
pleading is allowed.’” Id. (quoting Fed. R. Civ. P. 12(b)). Defendants have all chosen to
file a motion to dismiss prior to the filing of any responsive pleading in this case.
Accordingly, the rules for responsive pleading outlined in Federal Rule of Civil Procedure
8(b)(6) are inapplicable.
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to intentional discrimination solely because of their ancestry or ethnic characteristics.”
Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987).6
“Any claim brought under § 1981 . . . must initially identify an impaired ‘contractual
relationship’, § 1981(b), under which the plaintiff has rights.” 	Domino’s Pizza, Inc., 546
U.S. at 476. 	To establish a prima facie case of discrimination under Section 1981, a
plaintiff must show: “(1) that the plaintiff is a member of a protected class; (2) that the
defendant 	had 	the 	intent 	to 	discriminate 	on 	the 	basis 	of 	race; 	and 	(3) 	that 	the
discrimination interfered with a protected activity.” Hampton v. Dillard Dep’t Stores, Inc.,
247 F.3d 1091, 1101-02 (10th Cir. 2001) (citations omitted). 	Plaintiff has not plausibly
alleged any of these elements. 	Plaintiff does not identify any contract between himself
and any other party to this action which was impaired due to racial discrimination. Plaintiff
does not allege that any Defendant took the actions they did because of Plaintiff’s race.
Indeed, Plaintiff never identifies his race or his membership within any protected class in
the Complaint. And though Plaintiff states in his Responses that his Complaint contains
“numerous sets of irrefutable facts” proving that Plaintiff is entitled to relief under Section
6 Plaintiff argues that he need not allege racial discrimination to seek relief under Section
1981. [#41 at 17] He contends that Section 1981 does not refer to race [id.], though the
statute itself grants all persons the same right to contract “as is enjoyed by white citizens.”
42 U.S.C. § 1981. Plaintiff provides no case law supporting his theory that section 1981
broadly provides relief to individuals experiencing any interference with a right to contract.
And though Plaintiff argues in a Response that he and his family have been “repeatedly
subjected to anti-Semetic slurs, bias and discrimination” [#41 at 17], he does not allege
this in his Complaint, nor does he allege that any Defendant discriminated against Plaintiff
because of his race or other protected characteristic. Fuqua v. Santa Fe Cnty. Sheriff’s
Off., 157 F.4th 1288, 1303 (10th Cir. 2025). Because Plaintiff does not allege that he was
subjected to anti-Semetic slurs, bias, or discrimination in his Complaint, references to
such discrimination within Plaintiff’s Responses will not be considered when assessing
these Motions to Dismiss. 	In re Qwest Commc'ns Int'l, Inc. Securities Litigation, 396 F.
Supp. 2d 1178, 1203 (D. Colo. 2004) (A plaintiff may not amend the complaint “by alleging
new facts in their response to a motion to dismiss.”).
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1981, Plaintiff fails to identify any of those facts. [##41 at 7; 42 at 7; 43 at 6] Accordingly,
Plaintiff has not plausibly alleged a Section 1981 claim and the Court respectfully
RECOMMENDS that Claim One be DISMISSED to the extent that it requests relief under
Section 1981.7
B. 	Claim One: 42 U.S.C. § 1983
Plaintiff alleges that all individual Defendants to this action deprived Plaintiff of his
rights under color of law in violation of 42 U.S.C. § 1983. [#1 at ¶¶ 66-75] Section 1983
provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage . . . subjects or causes to be subjected, any citizen . . . to
the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured.
42 U.S.C. § 1983. 	To state a viable Section 1983 claim, a plaintiff must allege (1) “that
some person has deprived him of a federal right” and (2) “that the person who has
deprived him of that right acted under color of state or territorial law.” Gomez v. Toledo,
446 U.S. 635, 640 (1980).
1. 	Defendants Galan, LaZar, and Hart
Defendants Galan, LaZar, and Hart argue that Plaintiff has not stated a claim
against them under Section 1983. [##30 at 5-6; 38 at 1; 44 at 2] “The traditional definition
of acting under color of state law requires that the defendant in a [42 U.S.C.] § 1983 action
have exercised power possessed by virtue of state law and made possible only because
the wrongdoer is clothed with the authority of state law.” Marin v. King, 720 F. App’x. 923,
7 Plaintiff additionally appears to allege that all Defendants committed crimes by filing their
Motions to Dismiss. [##41 at 8, 24; 42 at 21; 43 at 6; 46 at 12] The filing of a motion to
dismiss, which is permitted by Rule 12(b) of the Federal Rules of Civil Procedure, does
not constitute criminal conduct.
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934 (10th Cir. 2018) (quoting West v. Atkins, 487 U.S. 42, 49 (1988)). Thus, a defendant
to a Section 1983 action must “fairly be said to be a state actor.” Johnson v. Rodrigues,
293 F.3d 1196, 1202 (10th Cir. 2002) (quoting Lugar v. Edmondson Oil Co., 457 U.S.
922, 937 (1982)). 	“This may be because he is a state official, because he has acted
together with or has obtained significant aid from state officials, or because his conduct
is otherwise chargeable to the State.” Id. (quoting Lugar, 457 U.S. at 937).
The Tenth Circuit uses four tests to determine whether private parties should be
deemed state actors for the purpose of a Section 1983 action. Id. The tests include: “(1)
the public function test, (2) the nexus test, (3) the symbiotic relationship test and (4) the
joint action test.” Id. The public function test requires a showing that a private entity has
exercised powers “traditionally exclusively reserved to the State.” Id. at 1203 (quotation
omitted). 	The nexus test requires a showing that “there is a sufficiently close nexus
between the State and the challenged action of the regulated entity so that the action of
the latter may be fairly treated as that of the State itself.” Id. at 1202 (quoting Gallagher
v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995)). 	The symbiotic
relationship test requires a showing that the state has “so far insinuated itself into a
position of interdependence with the private party that there is a ‘symbiotic relationship’
between them.” 	Id. at 1202-03. 	(quoting Gallagher, 49 F.3d at 1447). 	Finally, the joint
action test requires a showing that the private party is a “willful participant in joint activity
with the State or its agents.” 	Id. at 1203 (quoting Gallagher, 49 F.3d at 1447). 	Under
each of these tests, the conduct must be “fairly attributable to the State.” 	Id. (quoting
Gallagher, 49 F.3d at 1447).
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Plaintiff does not plausibly allege that Defendants Galan, LaZar, and Hart acted
under color of state law. Plaintiff alleges that Defendants Galan and LaZar conspired with
Defendant Hart to “kidnap” Plaintiff’s minor children. 	[#1 at ¶ 28] 	In addition, Plaintiff
alleges 	that 	Defendant 	Hart 	“masterminded” 	a 	plan 	to 	“criminalize” 	Plaintiff 	by
“orchestrat[ing] a series of false reports” by Defendants Galan and LaZar. 	[Id. at ¶ 38]
As part of this plan, Plaintiff alleges that Defendant Hart filed a motion to withdraw in the
State Proceedings. 	[Id. at ¶ 41] 	After Defendant Hart filed his motion to withdraw,
Defendants Galan and LaZar filed a motion to relocate the minor children, an amended
parenting plan, and a motion and affidavit to change decision making regarding the minor
children in the State Proceedings. 	[Id. at ¶ 42] 	Plaintiff surmises that Defendant Hart
wrote these filings and thus infers that Defendant Hart’s motion to withdraw from the case
was “fraudulent.” 	[Id. at ¶ 43] 	Plaintiff further alleges that Defendant Hart prepared a
witness list, a sworn financial statement, a Trial Management Certificate, exhibits, and
other court documents for one hearing. [Id. at ¶ 54] Plaintiff alleges that Defendant Galan
filed these documents. [Id.]
Plaintiff does not allege that any of these Defendants ever held an official position
for the state of Colorado or any other government. Defendant Hart was a private attorney
for Defendant Galan in the State Court Proceeding. [Id. at ¶ 41] All allegations against
Defendant Hart relate to his role as a 	private attorney. 	[See generally #1] 	And private
attorneys do not act under color of law for purposes of Section 1983. 	Elibee v. Hazlett,
122 F. App’x. 932, 934 (10th Cir. 2004) (citations omitted). 8
8 Though Plaintiff argues that Defendant Hart must be “deemed to act with the authority
of the government” and that Plaintiff has alleged Defendant Hart did more than perform
traditional lawyer functions [#41 at 15], Plaintiff does not provide any allegations of any
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Nor can Plaintiff satisfy any of the four tests outlined above for deeming private
parties to be state actors. 	Under the public function test, Plaintiff does not allege that
Defendants Galan, LaZar or Hart exercised powers traditionally exclusively reserved to
the State. 	These types of functions include activities like holding elections, performing
necessary municipal functions, or running a nursing facility. Johnson, 293 F.3d at 1203.
Activities such as relocating children, filing reports, and filing court documents are not
functions traditionally exclusively reserved to the State.
Under the nexus test, Plaintiff does not allege any nexus between the government
and Defendants’ conduct. Generally, the nexus test requires a showing that a state “has
exercised coercive power or has provided such significant encouragement, either overt
or covert, that the choice must in law be deemed that of the State.” Id. (quoting Gallagher,
49 F.3d at 1448). 	Plaintiff does not allege that any state actor coerced or encouraged
Defendants to relocate the minor children, file reports, or file court documents.
conduct that Defendant Hart engaged in outside of the traditional functions of drafting and
filing legal documents. 	Plaintiff cites to Edmonson in support of his contention that
Defendant Hart must be deemed to have acted with the authority of the government. See
Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). 	The question presented by
Edmonson was whether it was permissible under the constitution for a private litigant or
his attorney to use peremptory strikes to remove individuals from the jury because of their
race. 	Id. at 619. 	The United States Supreme Court began its analysis by noting that it
had previously held that criminal defendants could object to a prosecutor's race-based
exclusion of persons from a jury. Id. at 618. The court then found that state-action could
be inferred when a private litigant engages in racially discriminatory peremptory strikes
because: (1) peremptory challenges exist only because they are permitted by statute and
(2) the government is extensively involved with the jury system in that Congress
establishes qualifications for jury service and has outlined procedures by which jurors are
selected, among other things. Id. at 620-22. In addition, the court found that peremptory
challenges are used to select an entity that is a quintessential governmental body: the
jury. 	Id. at 624. 	Plaintiff’s allegations have nothing to do with jury selection or racial
discrimination. Accordingly, Edmonson is irrelevant.
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Under the symbiotic relationship test, Plaintiff does not allege that the government
insinuated itself into a position of interdependence with Defendants Galan and LaZar.
The Tenth Circuit has defined this test as the State having “insinuated itself into a position
of long-term interdependence with” the private actor. Johnson, 293 F.3d at 1204. And in
addressing this test, the Tenth Circuit noted that “a private party's mere invocation of state
legal procedures [does not] constitute[ ] joint participation or conspiracy with state officials
satisfying the § 1983 requirement of action under color of law.” 	Id. (quoting Lugar, 457
U.S. at 939 n.21). Here, Plaintiff has not alleged the type of long-term interdependence
and entwinement between the private actors and the State of Colorado that would turn
Defendants Galan, Lazar and Hart into state actors.
Finally, under the joint action test, Plaintiff has not sufficiently alleged that
Defendants Galan, Lazar or Hart were willful participants in joint activity with the State or
its agents such that their conduct could be fairly attributable to the State. 	“[W]hen a
plaintiff attempts to assert the state action required for a § 1983 claim against private
actors based on a conspiracy with government actors, mere conclusory allegations with
no supporting factual averments are insufficient.” Beedle v. Wilson, 422 F.3d 1059, 1073
(10th Cir. 2005) (quotation omitted). 	Here, Plaintiff’s conclusory allegations of a
widespread 	conspiracy against 	him 	are insufficient 	to establish joint 	activity fairly
attributable to the State. 	[#1 at ¶¶ 31 (“Colorado First Judicial Chief Judge [Pilkington]
was, and still is, orchestrating widespread racketeering in his district, some (or most or
all) of his judges and magistrates and clerks, including [Defendant Meredith], are ‘fixing’
court records and cases, and the rogue judges and magistrates assigned by [Judge
Pilkington] 	to 	2015DR7, 	and 	[Defendant 	Meredith] 	and 	other 	clerks, 	‘fixed’ 	every
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proceeding, hearing, action and appeal against [Plaintiff] to facilitate [Defendant Hart’s]
known-diabolical plan, culminating now in the ‘Relocation Crime Spree.’”); 52 (“At this
point it became clear to [Plaintiff] that the individual Defendants in this action and many
others would now terrorize [Plaintiff] under color of law and would weaponize the judicial
branch of government in Colorado until [Plaintiff] backed down and gave up his pursuit of
justice.”)] 	Indeed, the only non-conclusory allegations against the state actors are that
the judges overruled Plaintiff’s objections to the non-state actors crimes sprees. [Id. at ¶
33-35, 47-50] But such allegations do not plausibly allege joint action between the private
actors and these judges such that the private actors’ allegedly criminal actions can be
deemed fairly attributable to the state. 	See generally Lugar, 457 U.S. at 939 n.21 (“[A]
private party’s mere invocation of state legal procedures [does not] constitute[] ‘joint
participation’ or ‘conspiracy’ with state officials satisfying the § 1983 requirement of action
under color of law.”).
Accordingly, Plaintiff has not plausibly alleged that Defendants Galan, LaZar, or
Hart acted under color of state law and thus they have not plausibly stated a Section 1983
claim against these Defendants. Accordingly, the Court respectfully RECOMMENDS that
Claim One be DISMISSED to the extent that it asserts a claim for relief under Section
1983 against Defendants Galan, LaZar, and Hart.
2. 	Defendants Loewer and Allen
Defendants Loewer and Allen assert absolute judicial immunity in response to
Plaintiff’s Section 1983 claim. 	[#27 at 8-9] 	“[J]udges of courts of superior or general
jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in
excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.”
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Stump v. Sparkman, 435 U.S. 349, 355-56 (1978) (quoting Bradley v. Fisher, 800 U.S.
335, 351 (1871)). This doctrine applies to Section 1983 suits. Id. at 356.
“[I]mmunity is overcome in only two sets of circumstances.” Mireles v. Waco, 502
U.S. 9, 11 (1991). “First, a judge is not immune from liability for nonjudicial actions, i.e.,
actions not taken in the judge’s judicial capacity.” 	Id. (citations omitted). 	“[W]hether an
act by a judge is a ‘judicial’ one relate[s] to the nature of the act itself, i.e., whether it is a
function normally performed by a judge, and to the expectations of the parties, i.e.,
whether they dealt with the judge in his judicial capacity.” Id. at 12 (quoting Stump, 435
U.S. at 362). 	“Second, a judge is not immune for actions, though judicial in nature, taken
in the complete absence of all jurisdiction.” 	Id. (citations omitted). 	“[T]he scope of the
judge’s jurisdiction must be construed broadly where the issue is the immunity of the
judge.” Stump, 435 U.S. at 356. “A judge will not be deprived of immunity because the
action he took was in error, was done maliciously, or was in excess of his authority; rather,
he will be subject to liability only when he has acted in the ‘clear absence of all
jurisdiction.’” Id. at 356-57 (citing Bradley, 13 Wall. at 351).
Stump illuminates the meaning of “clear absence of all jurisdiction.” In that case,
an Indiana circuit court judge approved a petition to sterilize a minor who later sued the
judge under Section 1983. 	Id. at 351-53. 	The Supreme Court found it significant that
there was no Indiana statute or case law prohibiting a circuit court from considering such
a petition. Id. at 358. And the Supreme Court’s recognized that even if the circuit judge
erred in approving the petition, the circuit judge was not clearly without jurisdiction to
entertain the petition. 	Id. at 359. 	In short, “because the court over which the judge
presided was one of general jurisdiction, neither the procedural errors he may have
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committed nor the lack of a specific statute authorizing his approval of the petition in
question rendered him liable in damages for the consequences of his actions.” Moss v.
Kopp, 559 F.3d 1155, 1164 (10th Cir. 2009) (citing Stump, at 435 U.S. at 359-60).
With respect to Defendant Loewer, Plaintiff alleges that Defendant Loewer, acting
as magistrate, overruled Plaintiff’s objections to Defendant Hart’s withdrawal from the
state proceedings, referred to Plaintiff as “respondent,” found no meritorious basis for
Plaintiff’s objections to Defendant Hart’s withdrawal, and entered an order in the State
Proceedings which Plaintiff alleges Defendant Loewer knew was “void.” 	[#1 at ¶ 48]
Defendant Loewer later entered a “Post-Decree Case Management Order” in the State
Proceedings and set a hearing on September 27, 2023, related to these proceedings. [Id.
at ¶ 51]
With respect to Defendant Allen, Plaintiff alleges that Defendant Allen presided
over the September 27, 2023 hearing in state court even though Plaintiff had filed a notice
of removal of the matter on July 30, 2023. [Id. at ¶¶ 53, 56] Defendant Allen stated that
he believed the federal court would remand the matter back to the state court. 	[Id. at ¶
56] 	After the hearing, Defendant Allen entered a minute order in which he referred to
Plaintiff as “respondent,” concluded that proceedings must be stayed because the Court’s
jurisdiction was suspended, stated that the court would continue the hearing on its own
motion, reset the hearing regarding relocation of Plaintiff’s minor children to January
2024, established rules for this hearing, and stated that the order was issued in a
proceeding where consent was unnecessary.9 [#1 at ¶ 56]
9 The Complaint also alleges that Defendant Allen “knowingly commit[ed] several state
and federal crimes” without providing any specifics as to which crimes were committed or
how they were committed. [Id.] Because these are conclusory allegations, as opposed
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All allegations against Defendants Loewer and Allen implicate judicial actions both
Defendants took in their judicial capacities.10 	Actions such as overruling objections,
holding 	hearings, 	scheduling 	hearings, 	and 	issuing 	orders 	are 	functions 	normally
performed by judges. 	At the time these acts were taken, Plaintiff was interacting with
Defendants Loewer and Allen in their judicial capacities.
Plaintiff nevertheless describes Defendants’ argument that Defendants Loewer
and Allen were engaged in normal and expected judicial acts as “nonsense.” [#42 at 17]
According to Plaintiff, judicial immunity “does not shield enablement of violations merely
because they occur in a legal setting.” 	[Id.] But Plaintiff does not point to any case law
which has denied judicial immunity in a similar setting.
The Gilpin County District Court is a court of general jurisdiction. Thus, even if any
of Defendants Loewer’s or Allen’s judicial actions were taken in error, their actions are
still protected unless they were taken in the clear absence of all jurisdiction. Mireles, 502
U.S. at 11-12. 	And Plaintiff has not plausibly alleged that Defendants Loewer or Allen
took any action where it was clear that they did not have jurisdiction over the matter.
Accordingly, even if Defendants Loewer or Allen committed procedural errors, the Court
to well-pleaded facts, the Court need not accept them as true. 	SeedX, Inc. v. Lincoln
Strategy Grp. LLC, 158 F.4th 1166, 1174 (10th Cir. 2025).
10 Plaintiff also alleges that Defendants Loewer and Allen conspired with the non-judicial
Defendants in this case and should face liability for that non-judicial conspiracy. 	[See,
e.g., id. at ¶ 48A] However, Plaintiff simultaneously asserts that he did not plead an action
for a Section 1983 conspiracy. 	[See #42 at 19] In addition, the facts as alleged fail to
plausibly plead any conspiracy on the part of either Defendant Loewer or Defendant Allen.
Plaintiff does not plead that either of these Defendants entered an explicit or implicit
agreement with any other Defendant, nor does the Complaint identify a shared objective
held by Defendants Loewer or Allen or any motive that either of these Defendants may
have had. 	There is thus insufficient factual content to support the existence of a
conspiracy. As a result, the only acts of the judicial Defendants at issue in this case are
the acts taken in their judicial capacities.
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cannot find that either Defendant acted in the clear absence of all jurisdiction. 	Thus,
Defendants Loewer and Allen are entitled to absolute judicial immunity. Therefore, the
Court respectfully RECOMMENDS that Claim One be DISMISSED to the extent that it
asserts a claim for relief under Section 1983 against Defendants Loewer and Allen.
3. 	Defendants Meredith, Pilkington, and Boatright
Defendants Meredith, Pilkington, and Boatright contend that Plaintiff has failed to
state a Section 1983 claim and that they are entitled to qualified immunity as to this
Claim.11 	[Id. at 10-13] Plaintiff’s alleges that these Defendants knew that the State
Proceedings were invalid and that Plaintiff still had primary custody of his minor children.
[#1 at ¶ 70] Plaintiff reported Defendants Hart, Galan, and LaZar’s “crimes” to Defendants
Pilkington and Boatright but Defendants Pilkington and Boatright did not stop the “crimes.”
[Id. at ¶¶ 33-35, 37, 46-47, 49] 	Additionally, Defendant Meredith failed to send Plaintiff
various documents related to the State Proceedings. [Id. at ¶¶ 45, 51, 54-55] Based on
these allegations, Plaintiff concludes that Defendants Pilkington and Boatright have
“act[ed] in aid to the trio to continue their crimes and to cover up their ongoing crime
sprees.” [Id. at ¶ 72] In addition, Plaintiff alleges that all Defendants knew that the “trio’s
. . . crimes” caused the court presiding over the State Proceedings to lose jurisdiction and
thus the State Proceedings were void, and that the Defendants’ “conspiracies” were
crimes. [Id. at ¶ 74]
With respect to Defendants Pilkington and Boatright, Plaintiff has not sufficiently
alleged that these Defendants deprived Plaintiff of a federal right. All these Defendants
11 Defendants Loewer and Allen also make this argument in the alternative to their
argument that they are entitled to absolute judicial immunity. [#27 at 10-11]
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are alleged to have done is not stopped Defendants Hart’s, Galan’s, and Lazar’s crimes.
[Id. at ¶¶ 33-35, 37, 46-47, 49] But Defendants Pilkington and Boatright are not alleged
to have affirmatively done anything to deprive Plaintiff of a federal right. 	Moreover, any
inaction by Defendants Pilkington and Boatright were either taken in these Defendants’
unofficial capacities as civilians (in which case they were not taken under color of state
law) or were taken in their capacity as Chief Judge and Chief Justice.12 But if the actions
were taken in Defendants Pilkington’s and Boatright’s capacity as judicial officers, then
these Defendants are entitled to absolute immunity—ruling or not ruling on objections and
appeals is a quintessential judicial act. 	And they either had jurisdiction to rule on the
objections (and thus any actions were not taken in the clear absence of all jurisdiction) or
they did not have jurisdiction to act on the objections in which case their failure to rule did
not violate Plaintiff’s constitutional rights.
With respect to Defendant Meredith, Plaintiff alleges that she failed to send him
various documents related to the State Proceedings. [Id. at ¶¶ 45, 51, 54-55] But Plaintiff
has not alleged any deprivation of a federal right resulting from that failure. For example,
Plaintiff has not alleged that he missed a court filing deadline and was thus denied access
to the courts. Thus, Plaintiff has not alleged that Defendant Meredith deprived Plaintiff of
any federal rights.
Thus, because Plaintiff has failed to plausibly plead a Section 1983 claim against
Defendants Meredith, Pilkington, and Boatright, the Court respectfully RECOMMENDS
12 It is entirely unclear from the Complaint why Plaintiff believes Defendants Pilkington
and Boatright had an obligation to intervene to protect against Defendants Hart’s, Galan’s,
and Lazar’s alleged crimes or what these Defendants were supposed to do in response
to those crimes.
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that Claim One be DISMISSED to the extent that it asserts a Section 1983 claim against
Defendants Meredith, Pilkington, and Boatright.
C. 	Claim One: 42 U.S.C. § 1985
Plaintiff alleges that all individual Defendants conspired to interfere with Plaintiff’s
rights in violation of 42 U.S.C. § 1985. [#1 at ¶¶ 81-85] In particular, Plaintiff alleges that
Defendants Hart, Galan, and LaZar entered into a conspiracy to obtain “known-void
orders granting their known-fraudulent” Motion to Relocate Plaintiff’s children to Florida.
[Id. at ¶ 84] 	Plaintiff describes these activities as a plan to “kidnap the minor children”
and “abscond to Florida,” among other things. 	[Id.] 	Plaintiff’s allegations against
Defendants Meredith, Loewer, Allen, and Pilkington include activities such as filing and
processing documents, adjudicating on the subject matter of the Motion to Relocate,
issuing the Order requested in that case, and “aiding the trio in their very-obvious crime
spree.” [Id.] Plaintiff’s allegations against Defendants Pilkington and Boatright in relation
to this claim for relief include “looking the other way,” “ignoring [Plaintiff’s] criminal
complaints,” “denying [Plaintiff’s] repeated petitions for redress,” and “aiding the trio in
their very-obvious crime spree.” 	[Id.] 	Defendants argue that Plaintiff has not stated a
claim under Section 1985. [##27 at 9-10; 30 at 6-8; 38 at 1; 44 at 2]
Section 1985 provides:
If two or more persons . . . conspire or go in disguise on the highway or on
the premises of another, for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws
. . . the party so injured or deprived may have an action for the recovery of
damages.
42 U.S.C. § 1985(3). The essential elements of a section 1985(3) claim are thus: “(1) a
conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and immunities;
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(3) an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting
therefrom.” 	Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (citing Griffin v.
Breckenridge, 403 U.S. 88, 102-03 (1971)). 	Section 1985(3) provides relief “only [for]
conspiracies motivated by ‘some racial, or perhaps otherwise class-based, invidiously
discriminatory animus.’” Id. (quoting Griffin, 403 U.S. at 101-02).13
Plaintiff has not plausibly alleged a claim against any Defendant under Section
1985. 	As previously mentioned, Plaintiff never identifies his race or his membership
within any protected class in the Complaint. Nor does Plaintiff allege that any Defendant
was motivated by Plaintiff’s race or other protected characteristic to take any action.
Accordingly, Plaintiff has not plausibly alleged a claim under Section 1985 and the Court
respectfully RECOMMENDS that Claim One be DISMISSED to the extent that it asserts
a claim for relief under Section 1985.
D. 	Claim Two: 42 U.S.C. § 1986
1. 	Defendant State of Colorado
Plaintiff alleges that Defendant State of Colorado had knowledge of the conspiracy
Plaintiff outlined in his Section 1985 claim and that it had the power to stop the conspiracy
yet failed to do so. [#1 at ¶ 88] Defendant State of Colorado asserts that Plaintiff’s Section
1986 claim is barred by the Eleventh Amendment of the United States Constitution. [#27
at 4-5]
13 Plaintiff argues that he need not allege racial discrimination because Griffin held that
Section 1985(3) provides relief for private conspiracies beyond racial discrimination. [#41
at 17 (purportedly quoting Griffin, 403 U.S. at 97)] 	However, the Griffin court explicitly
held the opposite: Section 1985(3)’s language requires that a plaintiff allege “some racial,
or 	perhaps 	otherwise 	class-based, 	invidiously 	discriminatory 	animus 	behind 	the
conspirators’ action.” Id. at 102.
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The Eleventh Amendment provides that “[t]he judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” 	U.S. Const. amend. XI. 	The United States Supreme Court has
construed the Eleventh Amendment as prohibiting federal courts from entertaining suits
against states brought by their own citizens.14 	See Port Auth. Trans-Hudson Corp. v.
Feeney, 495 U.S. 299, 304 (1990). 	However, “Eleventh Amendment Immunity is not
absolute.” Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012). The
three exceptions to Eleventh Amendment immunity include: (1) state consent; (2)
Congressional abrogation under Section 5 of the Fourteenth Amendment; and (3) suits
against individual state officials for prospective injunctive relief. Id.
In this case, Plaintiff has not alleged that the State of Colorado has consented to
suit, nor is the Court able to find any indication that the State of Colorado has consented
to a suit of this nature. 	In addition, there is no allegation nor any other indication that
Congress has abrogated immunity for suits of this nature. 	“In order to invoke the
Fourteenth Amendment exception to the Eleventh Amendment’s bar to federal court
jurisdiction, [a plaintiff] must show that Congress, in clear and unmistakable terms,
intended to abrogate a State’s Eleventh Amendment immunity.” Ellis v. Univ. of Kansas
Med. Ctr., 163 F.3d 1186, 1196 (10th Cir. 1998). 	Plaintiff has not done so here.15
14 Plaintiff is thus incorrect when he argues that because he is a Colorado citizen, the
Eleventh Amendment does not bar his claims against the State of Colorado. [#42 at 10-
11]
15 Plaintiff argues that he is suing the State of Colorado “corporately,” implying that this
type of suit is not entitled to Eleventh Amendment immunity. 	[#42 at 12] 	Plaintiff does
not identify any legal authority granting him the ability to evade Eleventh Amendment
immunity simply by characterizing his suit as corporate in nature. 	Regardless of the
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Gutierrez v. New Mexico, No. 24-cv-01165-KWR-JMR, 2025 WL 326566, at *3 (D.N.M.
Jan. 29, 2025) (finding that the plaintiff had not shown that Congress had abrogated
Eleventh Amendment immunity for a Section 1986 claim); Kurtz v. New Jersey Dep’t of
Labor & Workforce Dev. Div. of Workers Comp., No. 12-cv-00147-CMA-KLM, 2012 WL
2370087, at *2 (D. Colo. May 31, 2012) (same), report and recommendation adopted,
2012 WL 2369253 (D. Colo. June 21, 2012). 	Accordingly, the Court may not entertain
this Section 1986 claim against the State of Colorado and the Court respectfully
RECOMMENDS that Claim Two against Defendant State of Colorado be DISMISSED
WITHOUT PREJUDICE.
2. 	Defendant Hart and State Defendants
Plaintiff alleges that Defendant Hart and the State Defendants had knowledge of
the conspiracy Plaintiff outlined in his Section 1985 claim and that these actors had the
power to stop the conspiracy yet failed to do so. 	[#1 at ¶ 88] 	Defendant Hart and the
State Defendants argue that Plaintiff has not stated a claim under Section 1986. 	[##27
at 9-10; 30 at 6-8]
Section 1986 provides:
Every person who, having knowledge that any of the wrongs conspired to
be done, and mentioned in section 1985 of this title, are about to be
committed, 	and 	having 	power 	to 	prevent 	or 	aid 	in 	preventing 	the
commission of the same, neglects or refuses so to do, if such wrongful act
be committed, shall be liable to the party injured.
42 U.S.C. § 1986. 	“[T]here can be no valid claim under § 1986 of neglect to prevent a
known conspiracy, in the absence of a conspiracy under § 1985.” 	Santistevan v.
manner in which Plaintiff characterizes his lawsuit, he is still a citizen suing a State that
has not consented to suit nor had its immunity abrogated by Congress.
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Loveridge, 732 F.2d 116, 118 (10th Cir. 1984). 	“Along with establishing a § 1985
conspiracy, a plaintiff asserting a § 1986 claim must show (1) the defendant had
knowledge of the conspiracy, (2) the defendant had the power to prevent or aid in
preventing the commission of a violation of § 1985, (3) the defendant neglected or refused
to prevent the violation, and (4) a violation of § 1985 occurred.” Ganzy on behalf of J.G.
v. Douglas Cnty. Sch. Dist. RE-1, 744 F. Supp. 3d 1187, 1192-93 (D. Colo. 2024) (citing
42 U.S.C. § 1986).
For the aforementioned reasons, Plaintiff has not plausibly alleged a conspiracy
under Section 1985. 	As a result, he has not plausibly alleged a Section 1986 claim.
Accordingly, the Court respectfully RECOMMENDS that Claim Two against Defendant
Hart and the State Defendants be DISMISSED.
E. 	Claim Three: IIED
28 U.S.C. § 1367(c)(3) expressly authorizes the court to decline to exercise
supplemental jurisdiction over Plaintiff’s final state law claim. 	“Whether to exercise
supplemental jurisdiction under such circumstances lies within the discretion of the court”
and “[n]otions of comity and federalism demand that a state court try its own lawsuits,
absent compelling reasons to the contrary.” Sauer v. McGraw-Hill Cos., No. 99 N 1898,
2001 WL 1250099, at *18 (D. Colo. June 12, 2001) (citations and quotations omitted). As
a result, a district court will generally decline the exercise of supplemental jurisdiction
when all federal claims have been eliminated prior to trial. See id.; see also Aery v. Bd.
of Cnty. Comm’rs of Tulsa Cnty., 696 F. App’ x 360, 361 (10th Cir. 2017) (“When all
federal claims have been dismissed, the court may, and usually should, decline to
exercise jurisdiction over any remaining state claims.” 	(citation and quotation omitted)).
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Here, given that Plaintiff has failed to state a federal claim, the Court respectfully
RECOMMENDS that supplemental jurisdiction over Plaintiff’s state claim be DECLINED.
IV. 	CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that the Motions
[## 27, 30, 38, 44] be GRANTED and that the Complaint be DISMISSED.16
DATED: December 12, 2025 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
16 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 Refin. 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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