Henderson v. Burrows et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24–cv–00123–PAB–MDB
MAGGIE MAE HENDERSON,
Plaintiff,
v.
LEAH BURROWS, Division of Education, Colorado Department of Corrections, in her
individual and official capacities,
TOM WERLICH, Warden, La Vista Correctional Facility, in his individual and official
capacities,
TAMARA GOLD, Operations Major, Colorado Department of Corrections, in her individual and
official capacities,
CHERYL MAES, Programs Major, Colorado Department of Corrections, in her individual and
official capacities,
VANESSA ORNALES, Major, Colorado Department of Corrections, in her individual and
official capacities,
SUSAN PRIETO, Lieutenant, Colorado Department of Corrections, in her individual and official
capacities, and
JOHN/JANE DOE #7–17,
Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
This matter is before the Court on Defendants’ Partial Motion to Dismiss Plaintiff’s
Second Amended Complaint Pursuant to Rule 12(b)(1) and 12(b)(6). ([“Motion”], Doc. No. 67.)
Plaintiff has not filed a response and the time to do so has lapsed.1After reviewing the Motion
1 The Motion was filed August 8, 2025, making Plaintiff’s presumptive response deadline
August 29, 2025. Plaintiff failed to respond, but on September 9, 2025, filed a motion to appoint
counsel. (Doc. No. 69.) The Court denied Plaintiff’s motion on December 4, 2025, but extended
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and relevant law, the Court respectfully RECOMMENDS that Defendants’ Motion be
GRANTED.
SUMMARY FOR PRO SE PLAINTIFF
The Court is recommending that Defendants’ Partial Motion to Dismiss be granted. First,
the Court finds the request for injunctive relief is moot because you are no longer incarcerated.
Second, your requests for compensatory and hedonic damages are barred by the Prison Litigation
Reform Act. Third, the allegations in the complaint are too vague and general to support a
defamation or intentional infliction of emotional distress claim nor do they support a claim of
willful and wanton conduct which is necessary to overcome the Defendants’ sovereign immunity
challenge. Additionally, the complaint does not allege enough facts to support a retaliation claim
against Defendants Burrows, Werlich, Gold, and Prieto, who do not appear to have personally
participated in the challenged actions. Finally, the Court recommends dismissal of the equal
protection claims because the allegations are insufficient to demonstrate that you were
differently than a similarly situated individual. This is only a high-level summary of the Court’s
Recommendation. The entire Recommendation is set forth below along with information about
your right to object to it.
BACKGROUND
Plaintiff’s Allegations
her deadline to file a response to the Motion to Dismiss to January 9, 2026. Plaintiff has not
responded.
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Plaintiff, who during the relevant period was an inmate and member of the “Honor
House” at La Vista Correctional Facility (“LVCF”),2 alleges that on December 13, 2022, she
witnessed two fellow inmates in an intimate embrace. (Doc. No. 39 at 6.) She further alleges that
on December 16, 2022, one of the inmates in question admitted to Plaintiff that she was in a
romantic relationship with the other inmate. (Id.)
Plaintiff reported the incident to Defendant Prieto because she believed it violated
“Honor House Program policy” and the Prison Rape Elimination Act. (Id. at 6–7.) Defendant
Prieto allegedly did not take action or notify her supervisor. (Id.) Plaintiff says that in February
2023, she sent a letter to Colorado Department of Corrections (“CDOC”) official Amanda
Clausen, describing the incident in question and LVCF’s lack of action. (Id. at 7.) Ms. Clausen
allegedly alerted her supervisor, Defendant Burrow, who also took no action. (Id.) Plaintiff then
met with Defendant Maes and Ms. Clausen about her letter on March 29, 2023. (Id. at 8.)
Plaintiff says she thought the meeting “fully resolved” the letter, but instead it was the start of a
retaliatory campaign against Plaintiff because Defendant Maes allegedly determined that
Plaintiff’s accusations were false. (Id. at 7–8.)
Specifically, Plaintiff alleges that on April 14, 2023, Defendant Maes and Ornales
requested, and Defendants Burrows and Werlich approved, Plaintiff’s suspension from the
Honor House Program. (Id. at 7.) Plaintiff contends Defendant Maes and Ornales made “false
accusations” when making their request, and that Defendant Ornales allowed Honor House
inmates to vote to remove Plaintiff from the program. (Id. at 8, 13–14.) On May 11, 2023,
2 Plaintiff was transferred to the Denver Women’s Correctional Facility in August 2024 (see
Doc. No. 21), and was later released on parole in March 2025. (See Doc. No. 55.)
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Plaintiff was allegedly denied acceptance into the “Incentive Unit Program,” by a committee that
included Defendants Gold and Ornales, among others. (Id. at 7.) On May 23, 2023, Plaintiff was
allegedly “excluded” from a “Restorative Justic Program interview” by Defendants Maes and
Ornales, even though she had initially been selected for an interview. (Id.)
On June 11, 2023, Plaintiff requested an interview with Defendant Maes and Ornales to
“report intimidation, harassment, and retaliation,” but received no response. (Id.) Plaintiff also
contends that Defendants Werlich and Gold denied any retaliation, and that Plaintiff was told her
“negative behavior” was causing the adverse actions taken against her. (Id. at 8-10.)
Plaintiff’s Claims3
In Claims 1 and 2, Plaintiff alleges First Amendment retaliation and violation of equal
protection based on her report to LVCF staff and letter to CDOC.4 (Id. at 6, 8.) In Claim 4,
Plaintiff alleges defamation (via libel and slander) and intentional infliction of emotional
distress.5 (Id. at 9.) In Claim 6, Plaintiff alleges that certain Honors House policies violate the
Equal Protection Clause.6 (Id. at 13.)
3 The Court does not address Claims 3 or 5 here because Claim 3 was dismissed during initial
review, (see Doc. Nos. 18; 24), and the moving Defendants do not seek dismissal of Claim 5,
which was brought solely against unidentified “John/Jane Doe Defendants 7–13.” (Doc. No. 39
at 11.)
4 Claim 1 is asserted against each of the moving Defendants and Claim 2 is asserted against each
of the moving Defendants with the exception of Defendant Prieto Plaintiff also references Eighth
Amendment deliberate indifference in these claims, but the Court cannot make out any Eighth
Amendment theories underpinning the claims. (Doc. No. 39 at 6–9.)
5 Claim 4 is asserted against each of the moving Defendants with the exception of Defendant
Werlich.
6 Claim 6 is asserted against Defendants Werlich, Gold, Ornales, and “John/Jane Doe Defendants
14–17.” (Id. at 6–14.) Plaintiff also references “deliberate indifference” in this claim, but the
allegations do not sound in deliberate indifference. (Doc. No. 39 at 13–14.)
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Plaintiff seeks punitive, compensatory, and hedonic monetary relief, as well as injunctive
relief in the form of: (a) the removal of the Honor House Program at La Vista Correctional
Facility, (b) the removal of any inaccurate or false documentation in her “prison record,” (c) that
all CDOC Peer-Led Programs be monitored by an independent outside agency, and (d) the
abolishment of certain Honors House rules. (Id. at 16–17.)
The moving Defendants say Plaintiff’s request for injunctive relief is moot due to
Plaintiff being paroled. (Doc. No. 67 at 5–6.) Defendants also argue Plaintiff’s request for
compensatory and hedonic damages are barred by the Prison Litigation Reform Act (“PLRA”)
(Id. at 20–21.) Defendants also seek dismissal of Claim 4, arguing the claim is barred by the
Colorado Government Immunity Action (“CGIA”) and that Plaintiff has failed to state a claim
for relief. (Id. at 6–12.) Additionally, Defendants argue that Plaintiff fails to state retaliation
claims against Defendants Burrow, Werlich, Gold, and Pietro. (Id. at 13–17.) Defendants also
argue that Plaintiff fails to state any equal protection claims. (Id. at 19–20.)
LEGAL STANDARD
I. 	Fed. R. Civ. P. 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). A challenge to subject matter jurisdiction may take one of two forms: a
facial attack or a factual attack. When reviewing a facial attack on a complaint under Rule
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12(b)(1), the Court accepts the allegations of the complaint as true. Holt v. United States, 46 F.3d
1000, 1002 (10th Cir. 1995). When reviewing a factual attack on a complaint supported by
affidavits and other documents, the Court makes its own factual findings and need not convert
the motion to one brought pursuant to Rule 56. Id. at 1003.
II. 	Fed. R. Civ. P. 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 [they are] entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
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. 	Pro se Plaintiff
In applying the above principles, this Court is mindful Plaintiff proceeds pro se 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
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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. 	Plaintiff’s Requests for Injunctive Relief
Defendants first argue that Plaintiff’s injunctive relief requests are moot in light of her
parole. (Doc. No. 67 at 5–6); see supra note 2. The Court agrees.
“Mootness is a threshold issue because the existence of a live case or controversy is a
constitutional prerequisite to federal court jurisdiction.” McClendon v. City of Albuquerque, 100
F.3d 863, 867 (10th Cir. 1996). “Because federal courts can only adjudicate actual controversies,
a case becomes moot ‘when it is impossible to grant any effectual relief.’” Simpson v. Lewis,
2021 WL 467340, at *2 (D. Colo. Jan. 19, 2021) (quoting Cody Labs., Inc. v. Sebelius, 446 F.
App'x 964, 967 (10th Cir. 2011)), report and recommendation adopted, 2021 WL 463632 (D.
Colo. Feb. 9, 2021).
As is relevant here, “an inmate’s claim for prospective injunctive relief regarding
conditions of confinement becomes moot due to the inmate-plaintiff’s release from
confinement.” McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir. 1999); see Jordan v. Sosa,
654 F.3d 1012, 1027 (10th Cir. 2011) (“Where the prisoner’s claims for declaratory or injunctive
relief relate solely to the conditions of confinement at the penal institution at which the prisoner
is no longer incarcerated, courts have concluded that they are unable to provide the prisoner with
effective relief.”). Moreover, “the hypothetical possibility that [the plaintiff], a former inmate on
supervised release, will violate the terms of that supervised release and be returned to the same
prison and same conditions of confinement cannot save an otherwise moot claim for prospective
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injunctive relief relating to prison conditions.” McAlpine, 187 F.3d at 1217; see Edmond v.
Raemisch, 2013 WL 5443938, at *5 (D. Colo. Sept. 30, 2013) (“[C]ourts do not presume that a
parolee will violate his parole conditions, causing him to be placed back into the same prison of
which he complained.”).
Here, Plaintiff seeks an order reforming various policies related to LCVF’s Honor House,
and other CDOC peer-led programs. See supra at 2. She also seeks edits to her “prison record.”
Id. But these issues are rendered moot by Plaintiff’s parole, as she no longer has a personal stake
in the Honor House program or other peer-led programs within CDOC facilities, nor does she
have any current stake in whatever may be written in her prison record. See Edmond, 2013 WL
5443938, at *5. As such, the Court recommends the dismissal of Plaintiff’s requests for
injunctive relief against all Defendants in Claims 1, 2, and 6.
II. 	Plaintiff’s Request for Compensatory and Hedonic Damages
Defendants also argue that Plaintiff’s request for compensatory and hedonic is barred by
the PLRA.7
Under the PLRA, “[n]o Federal civil action may be brought by a prisoner confined in a
jail, prison, or other correctional facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). “The statute limits
the remedies available, regardless of the rights asserted, if the only injuries are mental or
emotional.” Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001), cert. denied, 536 U.S.
904 (2002).
7 Plaintiff is now on parole, but because she was an inmate when she initiated this action and
filed the operative Complaint, the PLRA applies. See May v. Segovia, 929 F.3d 1223, 1227 (10th
Cir. 2019).
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Here, Plaintiff does not allege any physical injuries resulting from Defendants’ alleged
actions. Instead, Plaintiff’s damages are grounded in allegations of “humiliation, mental anguish,
and emotional distress[.]” (Doc. No. 39 at 10.) Thus, the PLRA bars Plaintiff’s request for
compensatory and hedonic damages.8
III. 	Plaintiff’s State Law Claims
Defendants next argue that Plaintiff’s common-law tort claims against Defendants Gold,
Ornales, Prieto, Maes, and Burrows in Claim 4 are barred by the State’s sovereign immunity.
(Doc. No. 67 at 6–10.) Alternatively, Defendants argue Plaintiff fails to state a claim for relief.
(Id. at 10–12.)
Colorado “public employees” are immune from liability in tort actions that “arise[ ] out
of an act or omission of such employee occurring during the performance of his duties and
within the scope of his employment unless the act or omission causing injury was willful and
wanton[.]”9 Colo. Rev. Stat. § 24-10-118(2)(a) (emphasis added); see McKenzie v. City & Cnty.
of Denver, 2023 WL 5488465, at *8 (D. Colo. July 21, 2023) (“The CGIA allows suit against
public employees if their conduct is ‘willful and wanton.’”). “[U]nder general Colorado legal
principles, conduct is willful and wanton only when it is done in conscious or reckless disregard
of the rights of others.” Hurd v. Campbell, 2023 WL 9534581, at *9 (D. Colo. Sept. 18, 2023),
8 The Court notes that the PLRA does not “bar Plaintiff’s recovery of nominal or punitive
damages, even in the absence of a showing of physical injury.” Bueno v. Chekush, 355 F. Supp.
3d 987, 1000 (D. Colo. 2018) (citing Searles, 251 F.3d at 876).
9 The CGIA also waives sovereign immunity for claims arising out of the operations of a
correctional facility regardless of whether the conduct was willful and wanton, but convicted
inmates are exempted from this waiver. See Glasser v. King, 721 F. App'x 766, 770 (10th Cir.
2018); Colo. Rev. Stat. § 24-10-106(1.5)(a).
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report and recommendation adopted Hurd v. Cambell, 2024 WL 839359 (D. Colo. Feb. 28,
2024); see McDonald v. Wise, 769 F.3d 1202, 1218 (10th Cir. 2014) (interpreting the CGIA as
requiring that a plaintiff demonstrate that the defendant’s actions were calculated to cause harm
or done despite awareness that the actions would cause such harm).
Here, the allegations do not support a claim of willful and wanton conduct. (See Doc. No.
67 at 9–10). At most, Plaintiff repeatedly states Defendants made “defamatory statements,” and
“false accusations,” wrongly accused her of “negative behavior,” and accused her of “dropp[ing]
kites” on Defendant Pietro. But these allegations are too vague and conclusory to demonstrate
willful and wanton conduct. See Katz v. City of Aurora, 85 F. Supp. 2d 1012, 1033 (D. Colo.
2000), (finding the CGIA barred an IIED claim because the plaintiff “fail[ed] to set forth any
allegation that [the defendants] actions were willful and wanton”), aff’d, 13 F. App’x 837 (10th
Cir. 2001). Moreover, the allegations do not satisfy the pleading requirements for a defamation
or IIED claim. See Hayner v. Heavy, Inc., 2023 WL 9232945, at *3 (D. Colo. June 12, 2023)
(“[V]ague and conclusory references to defamation ... do not satisfy the pleading requirements of
Rule 8.”), report and recommendation adopted, 2023 WL 9232958 (D. Colo. July 7, 2023).
Indeed, the Amended Complaint provides little-to-no detail regarding the substance of the
statements, what Defendants knew or should have known, or the circumstances in which the
statements were made. Without additional detail, Plaintiff’s Defamation and IIED claims cannot
survive Defendants’ sovereign immunity or pleading challenge.
IV. 	Plaintiff’s Retaliation Claims
The Court next turns to Claims 1 and 2 (Plaintiff’s retaliation claims). These are brought
against all Defendants.
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“Government retaliation against a plaintiff for exercising his or her First Amendment
rights may be shown by proving the following elements: (1) that the plaintiff was engaged in
constitutionally protected activity; (2) that the defendant’s actions caused the plaintiff to suffer
an injury that would chill a person of ordinary firmness from continuing to engage in that
activity; and (3) that the defendant’s adverse action as substantially motivated as a response to
the plaintiff’s exercise of constitutionally protected conduct.” Shero v. City of Grove, Okl., 510
F.3d 1196, 1203 (10th Cir. 2007).
Plaintiff alleges she engaged in two constitutionally protected activities: (1) reporting
intimate contact between inmates to Defendant Prieto in December 2022, and (2) sending a letter
to a CDOC official regarding LVCF’s lack of action to her report in February 2022. (See
generally Doc. No. 39.) Plaintiff contends this reporting resulted in a campaign of retaliation by
Defendants including: (a) Defendant Maes, Ornales, and Burrows suspending Plaintiff from the
Honor House, (b) a committee that included Defendants Gold and Ornales denying Plaintiff
acceptance into the “Incentive Unit Program,” (c) Defendant Maes and Ornales excluding
Plaintiff from a “Restorative Justice Program interview,” and (d) Defendant Maes and Ornales
declining to respond to Plaintiff’s requests to speak with them. (See id.)
Defendants do not seek dismissal of the retaliation claims against Maes and Ornelas. (See
Doc. No. 67 at n.6, 7.) They do contend, however, that the retaliation claims against Burrows,
Werlich, Gold, and Prieto must be dismissed because Plaintiff has not alleged sufficient personal
involvement by these Defendants to establish a constitutional violation. The Court agrees.
“[T]o successfully assert any ... claim under section 1983, a plaintiff must show the
defendant personally participated in the alleged violation.” Pettigrew v. Long, 2024 WL
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5336648, at *3 (D. Colo. Aug. 15, 2024). This means there must be a direct link between the
alleged constitutional violation and the defendant’s participation. See Butler v. City of Norman,
992 F.2d 1053, 1055 (10th Cir. 1993); see also Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir.
2013) (“It is particularly important that plaintiffs make clear who is alleged to have done what to
whom, as distinguished from collective allegations.” (emphasis omitted)). And where a plaintiff
alleges a defendant is liable based on their supervisory responsibilities, the allegations must
demonstrate (1) personal involvement; (2) a causal connection to the constitutional violation; and
(3) a culpable state of mind. See Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760,
767–69 (10th Cir. 2013) (discussing standards for supervisory liability).
Here, the Amended Complaint is devoid of allegations that Defendant Prieto had any
involvement in the alleged retaliatory campaign. Plaintiff merely asserts that her initial report
was made to Defendant Prieto (Doc. No. 39 at 7), but she does not allege that Defendant Prieto
participated in the events that followed. (See id. at 6–9.) Similarly, Plaintiff merely asserts
Defendant Gold was a member of the committee that denied Plaintiff acceptance into the
“Incentive Unit Program,” but she does not allege that Defendant Gold personally took some
action.10 (See id.) Without more, neither set of allegations clears the bar for a retaliation claim.
The claims against Defendants Burrows and Werlich also fail. Plaintiff alleges that both
Defendants, in their respective capacities as a CDOC official and LVCF warden, approved
Plaintiff's removal from the Honor House Program. But the Amended Complaint demonstrates
10 Plaintiff also alleges that Defendant Gold, in a meeting with Plaintiff, denied any retaliation
was occurring. (Doc. No. 39 at 7.) However, that allegation, standing alone, does not establish
personal participation in the retaliation nor does it support a supervisory liability theory. See
Schneider, 717 F.3d at 767–69.
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that the approval form was submitted by Defendant Maes and Ornales and that it was they who
provided the “false statements” and “inaccurate, incomplete, and opinionated information,” to
Defendants Burrows and Werlich. (Doc. No. 39 at 8–9.) In other words, Plaintiff appears to
admit that Defendants Burrows and Werlich were not knowing participants. At best, they were
acting on information that was, unbeknownst to them, false. Thus, the retaliation claims against
Burrows and Werlich do not satisfy the personal participation requirement, and should be
dismissed.
V. 	Plaintiff’s Equal Protection Claims
Finally, Defendants seek dismissal of the equal protection claims in Claims 1, 2, and 6.11
The Equal Protection Clause of the Fourteenth Amendment states that “[n]o State ... shall
deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend.
XIV, § 1. “The Clause ‘creates no substantive rights. Instead, it embodies a general rule that
States must treat like cases alike but may treat unlike cases accordingly.’” Teigen v. Renfrow,
511 F.3d 1072, 1083 (10th Cir. 2007) (quoting Vacco v. Quill, 521 U.S. 793, 799, 117 S.Ct.
2293, 138 L.Ed.2d 834 (1997)). At bottom, to assert an equal protection claim, “plaintiffs must
first make a threshold showing that they were treated differently from others who were similarly
situated to them.” Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998).
Here, Plaintiff fails to allege that she was subjected to treatment that was different from
similarly situated inmates. The allegations connected to Claims 1 and 2 are focused on the
alleged retaliation against Plaintiff, but say almost nothing about how her treatment compared to
11 Claim 1 is brought against all Defendants, Claim 2 is brought against all Defendants except
Prieto, Claim 6 is brought against Defendants Werlich, Gold, Ornales, and John/Jane Doe
Defendants 14–17.
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that of a similarly situated individual. At most, Plaintiff makes the conclusory and unexplained
assertion that “the actions of the Defendants towards the Plaintiff have not been applied to all
inmates that write a letter to CDOC HQ expressing concerns.” (Doc. No. 39 at 9.) That bare
allegation, standing alone, is insufficient to plausibly allege an equal protection violation. See
Bixler 596 F.3d at 756. Moreover, Plaintiff’s allegation that other inmates “received minor
suspensions from Peer-led Programs” at least partially undermines her position. It suggests
Plaintiff was treated similarly to her peers.
Claim 6’s equal protection challenge to the Honor House Program rules fares no better.
Plaintiff does not allege that the policies treat similarly situated inmates differently from one
another. (Doc. No. 39 at 13–14.) At most, Plaintiff alleges Defendant Ornales violated Honor
House Policies in advocating for Plaintiff’s removal. But conclusory allegations that a defendant
deviated from a facially neutral policy in a single instance, are insufficient to support an equal
protection claim. See Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1995) (“Mr. Brown’s
allegations are merely conclusory in that they do not allege the factual basis for an equal
protection claim, and even pro se litigants must do more than make mere conclusory statements
regarding constitutional claims.”).
CONCLUSION
For the foregoing reasons the Court respectfully RECOMMENDS that Defendants’
Partial Motion to Dismiss Plaintiff’s Second Amended Complaint Pursuant to Rule 12(b)(1) and
12(b)(6) (Doc. No. 67) be GRANTED as follows:
• 	Claim 1 be dismissed to the extent it is brought against Defendants Burrows, Werlich,
Gold, and Pietro;
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• 	Claim 2 be dismissed to the extent it is brought against Defendants Burrows, Werlich,
and Gold;
• 	Claim 4 be dismissed in its entirety;
• 	Claim 6 be dismissed in its in entirety;
• 	Defendants Burrows, Werlich, Gold, Pietro, and John/Jane Doe Defendants 14–17 be
dismissed from this action; and
• 	Plaintiff’s requests for injunctive relief and compensatory and hedonic damages be
denied.
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
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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
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 25th day of February, 2026.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
Case No. 1:24-cv-00123-PAB-MDB Document 76 filed 02/25/26 USDC Colorado
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