Burnam et al v. Weld County Sheriffs, The et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 23-cv-00151-NYW-NRN
ERIC BURNAM,
ERIN CIENFUEGOS, and
MICHELLE ERICKSON,
Plaintiffs,
v.
THE WELD COUNTY SHERIFFS,
THE DEPARTMENT OF HUMAN SERVICES OF WELD COUNTY,
THE COUNTY ATTORNEY’S OFFICE OF WELD COUNTY,
ASHLEY HUGHES,
ANGELA TIMOTHY-FLEECE,1
DONOVAN PECORELLA,
TRAVIS DENNING,
PETE JONES,
JARED PATTERSON,
DANIEL CHAPMAN,
DANIEL TRUJILLO, and
LARRY NUEGEBAUER,
Defendants.
ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION
This matter is before the Court on the Report and Recommendation of United
States Magistrate Judge N. Reid Neureiter issued on November 17, 2023. 	[Doc. 46].
Judge Neureiter recommends that the Motion to Dismiss Plaintiffs’ Complaint (the “Motion
to Dismiss”), [Doc. 12], be granted and that Plaintiffs’ Complaint, [Doc. 1], be dismissed,
1 The Court notes that Defendants spell this Defendant’s surname as “Timothy-Fleece,”
see [Doc. 12 at 1], while the Complaint spells it as “Timothy-Felice.” Although no Party
has moved to amend the case caption, the Court uses the spelling reflected by this
Defendant’s counsel, and DIRECTS the Clerk of Court to amend the caption and the
docket to reflect this spelling.
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see [Doc. 46 at 28]. Judge Neureiter also recommends that the Motion to Quash Alleged
Service of Process of, or in Alternative to Dismiss, Plaintiffs’ Complaint from Defendant
Pete Jones (the “Motion to Quash”), [Doc. 37], be granted, see [Doc. 46 at 28]. Plaintiffs
filed objections to the Recommendation on December 26, 2023, [Doc. 53],2 and
Defendants responded, [Doc. 54].3 	For the reasons set forth in this Order, Plaintiffs’
objections are OVERRULED and the Recommendation is ADOPTED.
LEGAL STANDARDS
I. 	Rule 72(b)
A 	district 	court 	may 	refer 	a 	dispositive 	motion 	to 	a 	magistrate 	judge 	for
recommendation. 28 U.S.C. § 636(b)(1)(B). The district court “must determine de novo
any part of the magistrate judge’s disposition that has been properly objected to.” 	Fed.
R. Civ. P. 72(b)(3). 	“[A] party’s objections to the magistrate judge’s report and
2 Plaintiff Burnam signed and submitted the objections “on behalf of all the Plaintiffs.” See
[Doc. 53 at 36]. It is well settled that “one pro se plaintiff may not sign or submit materials
on behalf of another.” Stine v. Lappin, No. 08-cv-00164-WYD-KLM, 2008 WL 3992712,
at *2 (D. Colo. Aug. 22, 2008); see also Fymbo v. State Farm Fire & Cas. Co., 213 F.3d
1320, 1321 (10th Cir. 2000) (“A litigant may bring his own claims to federal court without
counsel, but not the claims of others.”). However, based on a review of the docket, it is
not clear whether Plaintiffs have received this admonishment before. 	Accordingly, the
Court will construe Plaintiffs’ objections as having been filed by all Plaintiffs. 	However,
Plaintiffs are expressly advised that all future filings submitted to the Court must
contain each Plaintiff’s signature, and all filings will be deemed as being filed only
by the Plaintiff(s) who sign the submission.
3 Mr. Burnam purported to file “Plaintiff’s Response and Objection to the Defendant’s
Response 	to 	the 	Plaintiff’s 	Comlaint 	[sic] 	Based 	upon 	the 	Magistrates 	[sic]
Recommendation” on January 26, 2024. 	See [Doc. 55]. 	However, Rule 72 does not
contemplate a reply in support of objections, see Fed. R. Civ. P. 72, and this Court does
not permit the filing of a reply in this context “absent leave of Court and good cause
shown,” see NYW Civ. Practice Standard 72.3(c). 	Because Mr. Burnam did not obtain
leave of Court prior to filing the reply brief, “Plaintiff’s Response and Objection to the
Defendant’s Response to the Plaintiff’s Comlaint [sic] Based upon the Magistrates [sic]
Recommendation” [Doc. 55] is STRICKEN as improperly filed.
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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.,
73 F.3d 1057, 1060 (10th Cir. 1996). 	Such specific objections permit “the district judge
to focus attention on those issues—factual and legal—that are at the heart of the parties’
dispute.” Id. at 1059 (quotation omitted).
II. 	Rule 12(b)(6)
Under Rule 12(b)(6), 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 deciding a motion under
Rule 12(b)(6), the Court must “accept as true all well-pleaded factual allegations . . . and
view these allegations in the light most favorable to the plaintiff.” 	Casanova v. Ulibarri,
595 F.3d 1120, 1124 (10th Cir. 2010). 	The 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). Rather, “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) (quotation omitted); see also Robbins v.
Oklahoma, 519 F.3d 1242, 1247, 1249 (10th Cir. 2008) (explaining that plausibility refers
“to the scope of the allegations in a complaint” and that the allegations must be sufficient
to nudge a plaintiff’s claims “across the line from conceivable to plausible” (quotation
omitted)).
III. 	Service of Process
Rule 4 of the Federal Rules of Civil Procedure sets out the various permissible
methods of serving parties to a case. 	An individual may be served via delivery of the
complaint and summons to (1) the individual to be served; (2) the residence of that
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individual, if the documents are left with a person over the age of 18 who resides there;
or (3) the individual’s agent. Fed. R. Civ. P. 4(e)(2). In the alternative, an individual may
be served through means permitted by Colorado law. Fed. R. Civ. P. 4(e)(1). In addition
to the methods permitted by federal law, Colorado law also permits personal service on
an individual by delivering a copy of the complaint and summons to the individual’s usual
workplace. Colo. R. Civ. P. 4(e)(1).
Rule 12(b)(5) permits a party to move for dismissal of a case due to insufficient
service of process. 	Fed. R. Civ. P. 12(b)(5). 	“A Rule 12(b)(5) motion challenges the
mode or lack of delivery of a summons and complaint.” Gallan v. Bloom Bus. Jets, LLC,
480 F. Supp. 3d 1173, 1178 (D. Colo. 2020) (cleaned up). When a defendant challenges
the sufficiency of service, the plaintiff “bears the burden of making a prima facie case that
he has satisfied statutory and due process requirements so as to permit the court to
exercise personal jurisdiction over the defendant.” Sarnella v. Kuhns, No. 17-cv-02126-
WYD-STV, 2018 WL 1444210, at *1 (D. Colo. Mar. 23, 2018) (quotation omitted). 	The
Court may consider affidavits and other documentary evidence in ruling on a Rule
12(b)(5) motion, and all factual disputes must be resolved in the plaintiff’s favor. 	Kelley
v. City of Atchison, No. 2:21-cv-02123-JAR-TJJ, 2021 WL 5140320, at *1 (D. Kan. Nov.
4, 2021).
IV. 	Pro Se Filings
Because 	Plaintiffs 	proceed 	pro 	se, 	the 	Court 	affords 	their 	filings 	a 	liberal
construction. Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (per curiam). But the Court
cannot and does not act as their advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991), and applies the same procedural rules and substantive law to Plaintiffs as to
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represented parties, see Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir.
2002); Dodson v. Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
BACKGROUND
At the time the events underlying this lawsuit took place, Plaintiffs Eric Burnam
(“Plaintiff Burnam” or “Mr. Burnam”), Erin Cienfuegos (“Plaintiff Cienfuegos” or “Ms.
Cienfuegos”), 	and 	Michelle 	Erickson 	(“Plaintiff 	Erickson” 	or 	“Ms. 	Erickson,” 	and
collectively with Mr. Burnam and Ms. Cienfuegos, “Plaintiffs”) lived together in a home in
Weld County, Colorado. 	[Doc. 1 at ¶ 1]. 	The events underlying this lawsuit took place
over various dates in late 2020 and early 2021:
December 9, 2020. On this date, Defendant Angela Timothy-Fleece (“Defendant
Timothy-Fleece”), a child protection permanency caseworker for the Weld County
Department of Human Services, arrived at Plaintiffs’ residence with multiple police
officers. 	[Id. at ¶¶ 4, 9]. 	She explained to Mr. Burnam that they had received an
“ano[]nymous tip” that there were “guns, methamphetamine[,] and a sex ring going on
inside the home” and that they needed to see Mr. Burnam’s and Ms. Cienfuegos’s
children. [Id. at ¶¶ 10–11]. Plaintiffs allege that the anonymous tip was a false allegation
made by the biological mother of one of Mr. Burnam’s children. [Id. at ¶¶ 22–23, 31].
Mr. Burnam began to drive to Lakewood, Colorado to gather his children. 	[Id. at
¶¶ 17–18]. 	He turned around when Ms. Cienfuegos told him over the phone that there
were several cars parked outside Plaintiffs’ residence. 	[Id. at ¶ 18]. When Mr. Burnam
arrived 	back at 	the home, 	he 	was 	surrounded 	by 	Defendant Donovan 	Pecorella
(“Defendant Pecorella”) and Defendant Pete Jones (“Defendant Jones”), two sheriff’s
deputies in the Weld County Sheriff’s Office, as well as several other deputies. 	[Id. at
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¶¶ 2, 19]. Defendant Pecorella informed Mr. Burnam that he had a warrant for his arrest
and attempted to taser him, but the taser malfunctioned and Mr. Burnam acquiesced to
his arrest. 	[Id. at ¶ 19]. 	Ms. Cienfuegos was also arrested on a misdemeanor warrant
and the children were taken into the custody of Child Protective Services. 	[Id. at ¶ 21].
While Mr. Burnam was detained at the Weld County Jail, Defendants Pecorella and Jones
searched Plaintiffs’ home with Weld County Sheriff’s Office employees Daniel Chapman
(“Defendant Chapman”), Jared Patterson (“Defendant Patterson”), and Daniel Trujillo
(“Defendant Trujillo”); the officers confiscated approximately $2 million worth of property.
[Id. at ¶ 2; id. at 13 ¶ 24].
December 15, 2020. 	Another search of Plaintiffs’ residence was conducted by
Defendants Pecorella, Patterson, Chapman, and Trujillo on December 15, 2020, when
Plaintiffs were not present. 	[Id. at 13 ¶ 26]. 	Plaintiffs allege that, on this date, officers
seized Mr. Burnam’s vehicle, $2.3 million in gold and silver, and $5.3 million in cash. [Id.].
December 29, 2020. 	Mr. Burnam was released on bond and on December 29,
2020, he was fitted with a GPS ankle monitor. 	[Id. at 14 ¶¶ 24–25]. 	On the way home
from receiving his ankle monitor, Mr. Burnam was pulled over by Defendants Pecorella,
Chapman, Trujillo, and Patterson. [Id. at 14 ¶ 25]. Plaintiffs allege that Defendant Larry
Nuegebauer (“Defendant Nuegebauer”), an officer with the Weld County Sheriff’s Office,
told Defendant Pecorella to “find something” in Mr. Burnam’s vehicle that would permit
them to take Mr. Burnam back to jail. [Id. at ¶ 2; id. at 14 ¶ 25]. Mr. Burnam was again
detained after Defendants located a “tool that was inventoried on December 9, 2020 in
the same vehicle.” [Id. at 14 ¶ 25].
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December 30, 2020. 	On this date, Mr. Burnam was charged with “a total of 31
[criminal] charges in the form of 9 different cases.” [Id. at ¶ 26]. Plaintiffs do not specify
the nature of the charges. Plaintiffs allege that the charges were dismissed on September
29, 2022. [Id. at ¶ 34]. Plaintiffs also allege that “[t]he Courts failed to address bond” on
one of Mr. Burnam’s cases, which left Mr. Burnam “with no bond on a F-4 felony theft for
42 days.” [Id. at ¶ 26].
January 15, 2021. 	Plaintiffs allege that on January 15, 2021, the “Weld County
Sheriffs Strike Force Team” waited for Ms. Erickson to leave for work, cut the locks on
Plaintiffs’ property, and searched the property to “look[] for an unidentified child corpse.”
[Id. at ¶ 27].
January 29, 2021. On January 25, 2021, the “Weld County Sheriffs Strike Force
Team” secured a warrant “to exhume an unidentified child corpse” on Plaintiffs’ property.
[Id. at ¶ 28]. On January 29, Defendants waited until Ms. Erickson and Ms. Cienfuegos
left the property, “came onto the property,” and “dug up a miscarriage of the Plaintiff Erin
Cienfuegos and Eric Burnam.” [Id.].
Plaintiffs 	allege 	generally 	that 	their 	First, 	Fourth, 	Fifth, 	Sixth, 	Eighth, 	and
Fourteenth Amendment rights were violated by Defendants. See [id. at ¶ 6]. However,
Plaintiffs do not clearly set forth any claims for relief, and as such, do not specify which
claims are asserted by which Plaintiffs or against which Defendants. See generally [id.].4
Judge Neureiter liberally construed Plaintiffs’ Complaint as potentially asserting the
following claims under 42 U.S.C. § 1983: 	a First Amendment free exercise claim; an
4 The Court refers to each claim as being asserted by all Plaintiffs, following the practice
of Plaintiffs and Judge Neureiter, notwithstanding any potential issues of standing.
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Eighth Amendment excessive bail claim; an Eighth Amendment cruel and unusual
punishment 	claim; 	a 	Fourth 	Amendment 	unreasonable 	search 	claim; 	a 	Fourth
Amendment malicious prosecution claim; a Fourteenth Amendment civil conspiracy
claim; a Fourteenth Amendment procedural due process claim; a Fourteenth Amendment
substantive due process claim; and a Fourteenth Amendment equal protection claim.
[Doc. 46 at 12–23].
On April 10, 2023, Defendants Hughes, Timothy-Fleece, Pecorella, Denning,
Patterson, Chapman, Nuegebauer, the Weld County Sheriff’s Office, the Department of
Human Services of Weld County, and the County Attorney’s Office of Weld County filed
their Motion to Dismiss. 	See [Doc. 12].5 	And on May 31, 2023, Defendant Jones filed
the Motion to Quash. See [Doc. 37]. Both Motions were referred to Judge Neureiter, see
[Doc. 18; Doc. 39], who issued a Recommendation on the Motions on November 17,
2023, see [Doc. 46].
Judge Neureiter recommends that the Motion to Dismiss and the Motion to Quash
be granted and that Plaintiffs’ Complaint be dismissed. 	[Id. at 28]. 	Broadly, Judge
Neureiter recommends that all of Plaintiffs’ claims based on events occurring before
January 18, 2021 be dismissed as untimely under the applicable statute of limitations.
[Id. at 10–11]. He goes on to address the merits of Plaintiffs’ claims, recommending that
Plaintiffs’ First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment claims be
dismissed for failure to state a claim under Rule 12(b)(6), notwithstanding any timeliness
5 Originally, Defendants Pecorella and Trujillo were not signatories to the Motion to
Dismiss because they had not been properly served with the Complaint. See [Doc. 12 at
1–2 n.1]. On May 24, 2023, Defendants Pecorella and Trujillo filed a Notice of Joinder in
Motion to Dismiss Plaintiffs’ Complaint. See [Doc. 32]. Defendant Jones does not join in
the Motion to Dismiss.
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issues. 	[Id. at 12–21]. 	Judge Neureiter then concluded that, because Plaintiffs cannot
state a claim for any constitutional violation, the individual Defendants are entitled to
qualified immunity. 	[Id. at 21–22]. 	Judge Neureiter also recommends that Plaintiffs’
claims against the individual Defendants in their official capacities be dismissed as
duplicative, 	[id. 	at 	22], 	and 	that 	their 	municipal 	liability 	claims 	against 	the 	entity
Defendants be dismissed for failure to state a claim, [id. at 22–24]. 	Finally, Judge
Neureiter recommends that the Motion to Quash be granted and that Plaintiffs’ claims
against Defendant Jones be dismissed for insufficient service of process. [Id. at 24–28].
ANALYSIS
I. 	Motion to Dismiss
A. 	Unchallenged Portions of the Recommendation
The Court first addresses the portions of Judge Neureiter’s Recommendation to
which Plaintiffs do not specifically object.
Judge Neureiter concluded that Plaintiffs’ Fourteenth Amendment substantive due
process claim6 should be dismissed because (1) Defendant Hughes is entitled to absolute
immunity, [id. at 18–19]; (2) Plaintiffs fail to allege personal participation on the part of
Defendant Denning as to this claim, [id. at 19–20]; and (3) as for Defendant Timothy-
Fleece, Plaintiffs fail to allege that she engaged in conscience-shocking conduct, as
required to state a substantive due process claim, [id. at 20]. Plaintiffs do not specifically
object to these findings.7
6 Plaintiffs clarified in their Response to the Motion to Dismiss that this claim was asserted
against Defendants Timothy-Fleece, Denning, and Hughes. See [Doc. 23 at 9–10].
7 To the extent Plaintiffs reiterate that their Fourteenth Amendment rights were violated
or reiterate that they have a Fourteenth Amendment right to familial association, see, e.g.,
[Doc. 53 at 14, 21], these generalized assertions that fail to point out any specific error in
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In addition, Plaintiffs do not object to Judge Neureiter’s recommendation that
Plaintiffs’ equal protection claim be dismissed for failure to allege that Plaintiffs were
discriminated against, [id. at 21]; that Plaintiffs’ claims against the individual Defendants
in their official capacities be dismissed as duplicative of Plaintiffs’ claims against the
municipal entities, [id. at 22]; or that Plaintiffs’ claims against the municipal Defendants
should be dismissed for failure to adequately allege the existence of a municipal policy or
custom, as required for municipal liability claims under Monell v. Department of Social
Services of City of New York, 436 U.S. 658 (1978), [Doc. 46 at 22–24].
The Recommendation states that objections must be filed within fourteen days
after service on the Parties. See [Doc. 46 at 28–29]; see also 28 U.S.C. § 636(b)(1)(C).
The Recommendation was served on the Parties on November 17, 2023, see [Doc. 46 at
29], and no Party has objected to the above-listed portions of the Recommendation. 	In
the 	absence 	of 	an 	objection, 	the 	district 	court 	may 	review 	a 	magistrate 	judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It
does not appear that Congress intended to require district court review of a [magistrate
judge’s] factual or legal conclusions, under a de novo or any other standard, when neither
party objects to those findings.”).
Judge Neureiter’s analysis are insufficient to present an objection necessitating de novo
review. See Jones v. United States, No. 22-cv-02854-PAB-MDB, 2024 WL 358098, at *3
(D. Colo. Jan. 31, 2024) (“Mr. Jones’s objection disputes only the correctness of the
recommendation and does not point to specific errors made by Judge Dominguez
Braswell. Mr. Jones’s objection is therefore insufficient.”); see also Schupper v. Cafasso,
708 F. App’x 943, 946 (10th Cir. 2017) (“[A] generalized objection [to a magistrate judge’s
recommendation] is insufficient.”).
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The Court has reviewed the above portions of the Recommendation to satisfy itself
that there is “no clear error on the face of the record.”8 	Fed. R. Civ. P. 72(b) advisory
committee’s note to 1983 amendment. 	Based on this review, the Court has concluded
that this portion of the Recommendation is thorough, well-reasoned, and a correct
application of the facts and the law. Accordingly, these portions of the Recommendation
are ADOPTED. 	Plaintiffs’ Fourteenth Amendment substantive due process claim and
Fourteenth Amendment equal protection claim are DISMISSED without prejudice under
Rule 12(b)(6), and Plaintiffs’ claims against the official capacity Defendants and the
municipal Defendants are also DISMISSED without prejudice under Rule 12(b)(6).9
B. 	Plaintiffs’ Objections
The Court has carefully reviewed Plaintiffs’ objections and finds that the objections
are largely conclusory, vague, and/or fail to identify specific portions of Judge Neureiter’s
Recommendation that Plaintiffs believe are erroneous. See generally [Doc. 53 at 1–36].
“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.” 	Strepka v. Sailors, 494 F.
Supp. 2d 1209, 1230 (D. Colo. 2007); see also Jones v. United States, No. 22-cv-02854-
PAB-MDB, 2024 WL 358098, at *3 (D. Colo. Jan. 31, 2024). 	Nevertheless, the Court
8 This standard of review is something less than a “clearly erroneous or . . . contrary to
law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review.
Fed. R. Civ. P. 72(b).
9 In their Motion to Dismiss, Defendants request that Plaintiffs’ claims be dismissed with
prejudice. See, e.g., [Doc. 12 at 17]. The Tenth Circuit has instructed that the dismissal
of a pro se plaintiff’s claim under Rule 12(b)(6) should typically be without prejudice,
unless granting leave to amend would be futile. 	Gee v. Pacheco, 627 F.3d 1178, 1186
(10th Cir. 2010). 	Defendants do not raise any argument explaining why dismissal with
prejudice is appropriate, and the Court declines to undertake a futility analysis sua sponte.
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discerns the nature of Plaintiffs’ objections to the best of its ability and addresses those
objections below.
1. 	The Statute of Limitations
Judge Neureiter concluded in his Recommendation that “most” of Plaintiffs’
constitutional claims are barred by the applicable statute of limitations. See [Doc. 46 at
10]. He first determined that a two-year statute of limitations applies to Plaintiffs’ claims.
[Id.]. 	And because Plaintiffs filed this lawsuit on January 18, 2023, see [Doc. 1], Judge
Neureiter concluded that any of their claims that accrued prior to January 18, 2021 are
time-barred, [Doc. 46 at 11]. In other words, Judge Neureiter found that Plaintiffs cannot
maintain claims based on (1) the December 9, 2020 search and arrest; (2) the December
15, 2020 search and seizure of their property; (3) the December 29, 2020 traffic stop and
subsequent detention; (4) the filing of charges on December 30, 2020; or (5) the January
15, 2021 search of Plaintiffs’ property. [Id.].
Plaintiffs object to Judge Neureiter’s Recommendation insofar as it recommends
that the majority of Plaintiffs’ claims be dismissed as untimely. See, e.g., [Doc. 53 at 7–
9, 22, 30]. Plaintiffs do not dispute or object to Judge Neureiter’s conclusion that a two-
year statute of limitations applies to Plaintiffs’ claims. 	See generally [id.]. 	Instead, they
assert that
The statute of limitations begins when the plaintiffs acquire knowledge of
the criminal acts and fraudulent activities perpetrated upon the courts, which
resulted in the plaintiffs being deceived out of their child[.] To ascertain the
truth, 	the 	plaintiffs 	diligently 	undertook 	a 	comprehensive 	review 	of
procedural policies, federal laws, and conducted extensive research and
investigation. 	Consequently, it became evident that Defendant Angela
Timothy-Felice [sic] flagrantly and maliciously violated numerous federal
and 	state 	laws, 	specifically 	infringing 	upon 	the 	plaintiffs[’] 	civil 	and
constitutional rights.
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[Id. at 7]. They also state that they “later discovered the first two raids,” which the Court
believes refers to the December 9 and 15, 2020 searches, “were done with illegal
warrants.” [Id. at 8]; see also [id. at 22]. Plaintiffs assert that they “invoke[] the application
of the ‘discovery rule’ in relation to the statute of limitations,” and argue that the statute of
limitations began to run when they had actual knowledge or reason to know of the
constitutional injury. [Id. at 9]. Plaintiffs do not raise any specific arguments directed at
their claims based on the events occurring on December 29, 2020; December 30, 2020;
or January 15, 2021. See generally [id.].
Federal law governs when a cause of action accrues. Chrisco v. Holubek, 711 F.
App’x 885, 888 (10th Cir. 2017). A claim under § 1983 accrues when the plaintiff knows
or has reason to know of the injury that forms the basis of the cause of action. Price v.
Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005). 	“[C]laims arising out of police actions
toward a criminal suspect, such as arrest, interrogation, or search and seizure, are
presumed to have accrued when the actions actually occur.” Eikenberry v. Seward Cnty.,
734 F. App’x 572, 576 (10th Cir. 2018) (quoting Beck v. City of Muskogee Police Dep’t,
195 F.3d 553, 558 (10th Cir. 1999)).10
While Plaintiffs insist that Judge Neureiter’s timeliness analysis is “incorrect,” see
[Doc. 53 at 30], and they suggest that they did not learn of some of their alleged
constitutional injuries until a “later” date, they critically do not specify the date that they
believe their constitutional claims accrued, see generally [id.]. 	Nor did they identify any
10 The Court notes, however, that malicious prosecution claims accrue “only once the
underlying criminal proceedings have resolved in the plaintiff’s favor.” 	McDonough v.
Smith, 139 S. Ct. 2149, 2156 (2019). Plaintiffs’ malicious prosecution claim is discussed
below.
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specific discovery date in their Complaint, see generally [Doc. 1], or in their Response to
the Motion to Dismiss, see [Doc. 23 at 5 (Plaintiffs arguing that they can “show [through]
documentation that the Date of Discovery is within the statute of limitations” but not
specifying when the alleged discovery was)]. 	Plaintiffs’ conclusory argument that they
discovered the alleged constitutional violations—at least with respect to the events of
December 9 and 15, 2020—at an unspecified later date is insufficient to overcome the
presumption that their claims accrued when the challenged actions occurred. 	See
Eikenberry, 734 F. App’x at 576.
Accordingly, Plaintiffs have not identified any error in Judge Neureiter’s timeliness
analysis and their objections are OVERRULED. Plaintiffs’ claims, to the extent they are
based on the events of December 9, 15, 29, or 30, 2020, or January 15, 2021, except to
the extent Plaintiffs assert a malicious prosecution claim, are DISMISSED without
prejudice.11
2. 	Plaintiffs’ First, Fifth, Sixth, and Eighth Amendment Claims
While 	the 	majority 	of 	Plaintiffs’ 	claims 	are 	time-barred, 	for 	purposes 	of
completeness, the Court addresses the remainder of Plaintiffs’ objections, even with
respect to those claims that are untimely. 	The Court turns first to Judge Neureiter’s
recommendation that Plaintiffs’ claims arising under the First, Fifth, Sixth, and Eighth
Amendments be dismissed.
11 See supra note 9. 	The Court is mindful that “a dismissal without prejudice can have
the practical effect of a dismissal with prejudice if the statute of limitations has expired.”
AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236
(10th Cir. 2009). 	Given the procedural posture of this case, Plaintiffs’ belated and
unsuccessful attempts to argue that the statute of limitations did not begin to run until a
later date, and Plaintiffs’ pro se status, the Court will dismiss Plaintiffs’ untimely claims
without prejudice at this juncture.
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First Amendment Claim. Noting that Plaintiffs argued in their Response that their
free exercise rights were violated when Defendants exhumed the miscarriage, Judge
Neureiter construed Plaintiffs’ Complaint as asserting a First Amendment free exercise
claim. 	[Doc. 46 at 12 (citing Doc. 23 at 12)]. 	However, Judge Neureiter reasoned that
“[e]ven giving it the most liberal construction possible, a Free Exercise claim cannot be
gleaned from the Complaint” because Plaintiffs did not identify their religious beliefs or
allege that Defendants were aware of Plaintiffs’ religion or were motivated by any religious
animus. [Id.]. Judge Neureiter recommends that this claim be dismissed. See [id.].
Plaintiffs take issue with Judge Neureiter’s ultimate conclusion and argue that their
First Amendment rights were indeed violated, see [Doc. 53 at 9–11], but they fail to
actually identify any error in Judge Neureiter’s analysis or direct the Court to allegations
that support a free exercise claim. Their objections are thus insufficient to trigger de novo
review, Strepka, 494 F. Supp. 2d at 1230, and the Court observes no clear error in Judge
Neureiter’s analysis. Furthermore, to the extent that Plaintiffs suggest in their objections
that their rights to free speech, free assembly, or to petition the government were violated,
see [Doc. 53 at 10], the Complaint invokes none of these theories, see generally [Doc. 1],
and Plaintiffs similarly made no attempt to assert these theories in their Response to the
Motion to Dismiss, see [Doc. 23 at 12 (Plaintiffs arguing only that they have a First
Amendment right “to religious freedom and to be free of religious persecution”)]. Plaintiffs
may not introduce new theories of relief in their objections. See Russo v. Hickenlooper,
No. 15-cv-01740-WJM-NYW, 2016 WL 67568, at *4 (D. Colo. Jan. 6, 2016) (“[A] party
cannot amend his pleadings through the contents of an objection.”). Plaintiffs’ objections
with respect to their First Amendment claim are OVERRULED.
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Fifth and Sixth Amendment Claims. 	Judge Neureiter recommends that any
claims asserted under the Fifth and Sixth Amendments be dismissed because Plaintiffs
“do not even mention the Fifth or Sixth Amendment in their response,” [Doc. 46 at 13],
i.e., Plaintiffs failed to clarify their claims or respond to Defendants’ argument that “[t]o the
extent Plaintiffs invoke the . . . Fifth [or] Sixth . . . Amendments in their Complaint, they
must give a more definite statement of their factual and legal theories under those
Amendments,” [Doc. 12 at 10 n.3]. In their objections, Plaintiffs argue only that they “have
presented overwhelmingly a ‘preponderance’ of evidence in this civil rights complaint
showing that the Defendant[s] violated the Plaintiffs[’] constitutional rights under the First,
Fourth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and
it would be a ‘grave injustice[]’ for these civil rights violations by the Defendant[s] to go
unsettled without impunity [sic] under the Law.” 	[Doc. 53 at 12]. 	Plaintiffs’ conclusory
objections, which are not directed at Judge Neureiter’s analysis and do not identify any
basis to assert claims under the Fifth or Sixth Amendments, are OVERRULED.
Eighth Amendment Claim. 	Attempting to discern a basis for a potential Eighth
Amendment claim, Judge Neureiter noted that, in Plaintiffs’ Response, they argued that
their 	Eighth 	Amendment 	rights 	were 	violated 	because 	they 	were 	subjected 	to
“unnecessary and wanton infliction of pain” and because Mr. Burnam was denied bond.
[Doc. 46 at 12 (quoting Doc. 23 at 13)]. 	Judge Neureiter noted, however, that the
Complaint contains no allegations that any Plaintiffs were subjected to physical force. [Id.
at 12–13]. 	In light of this deficiency, Judge Neureiter construed Plaintiffs’ Eighth
Amendment claim as asserting only an excessive bail theory, and concluded that Plaintiffs
could not succeed on an Eighth Amendment claim based on the denial of bail because
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Plaintiffs did not allege that Defendants were the reason that Mr. Burnam was held without
bail. [Id. at 13]; see also Masad v. Nanney, No. 14-cv-00577-MJW, 2014 WL 4265848,
at *6 (D. Colo. Aug. 27, 2014) (“[A]n excessive-bail claim can only succeed where the
defendants ‘deliberately or recklessly misled the judicial officer who set bail’ and ‘bail
would 	not 	have 	been 	unconstitutionally 	excessive 	but 	for 	the 	officers’
misrepresentations.’” (cleaned up) (quoting Galen v. Cnty. of Los Angeles, 477 F.3d 652,
664 (9th Cir. 2007))).
Plaintiffs reference the Excessive Bail Clause in their objections, see [Doc. 53 at
32], but they do not argue that Judge Neureiter’s conclusion on this theory is incorrect.
Accordingly, Plaintiffs have not properly objected to Judge Neureiter’s conclusion to the
extent Plaintiffs attempt to assert an excessive bail claim.
Plaintiffs do argue in their objections that their Eighth Amendment rights were
violated when the miscarriage was exhumed from their property because “[t]he intrusion
upon the Plaintiff[s’] personal tragedy and the emotional distress caused by the sheriff’s
actions do constitute a violation of the Plaintiff[s’] rights under the . . . Eighth . . .
Amendment[] to the United States Constitution.” [Id. at 6].12 But Plaintiffs did not clearly
assert this theory in their Response to the Motion to Dismiss; at best, they argued that
12 Plaintiffs also assert that their “claims are Constitutional in nature and are in direct
violation of the Eighth Amendment to cruel and unusual punishment with deliberate
indifference to their human and medical needs [sic],” referencing a number of separate
events that they believe violated their Eighth Amendment rights. See [Doc. 53 at 33–34].
Almost all of the events referenced by Plaintiffs occurred prior to January 18, 2021, and
the Court has already concluded that Plaintiffs’ claims based on those events are
untimely. 	Even setting this aside, Plaintiffs did not clearly assert any of these Eighth
Amendment theories in their Complaint, see generally [Doc. 1], or in their Response to
the Motion to Dismiss, see generally [Doc. 23], and many of them overlap with the theories
underlying their other constitutional claims.
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the “demonstration in the exhibits show[s] cruel and unusual punishment quoting:
Ingraham v. Wright, 430 U.S. 651 (1977) ‘unnecessary and wanton infliction of pain’
constitutes cruel and unusual punishment. . . . 	Plaintiffs reflect on all the Constitutional
Violations to date and [through] the exhibits see nothing but malicious behavior and would
ask the Courts to apply Ingraham v. Wright.” 	[Doc. 23 at 13]. 	But as Judge Neureiter
pointed out, Plaintiffs do not allege that they were subject to any physical harm, as
contemplated in the quoted passage of Ingraham v. Wright,13 and Plaintiffs’ undeveloped
assertions in their objections are not sufficient to articulate any viable theory under the
Eighth Amendment, which prohibits the infliction of “cruel and unusual punishments.”
U.S. Const. amend. VIII (emphasis added); see also Napoletano v. Sessions, No. 17-cv-
00837-CMA, 	2017 	WL 	11696395, 	at 	*4 	(D. 	Colo. 	Nov. 	3, 	2017) 	(“The 	Eighth
Amendment’s Cruel and Unusual Punishments Clause is self-evidently concerned with
punishment.”). 	In sum, Plaintiffs have not identified anything objectionable in Judge
Neureiter’s Recommendation, and Plaintiffs’ objections with respect to their Eighth
Amendment claim are OVERRULED.
3. 	Plaintiffs’ Fourth Amendment Claims
Judge Neureiter identified two potential Fourth Amendment theories in Plaintiffs’
Complaint: 	(1) a claim based on an unlawful search and (2) a malicious prosecution
claim.
13 In Ingraham v. Wright, the Supreme Court explained that “[t]he protection afforded by
the Eighth Amendment is limited,” and with respect to physical force, “[a]fter incarceration,
only the ‘unnecessary and wanton infliction of pain[]’ constitutes cruel and unusual
punishment forbidden by the Eighth Amendment.” 	430 U.S. at 669–70 (quoting Estelle
v. Gamble, 429 U.S. 97, 103 (1976)).
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Unlawful Search Claim. The Fourth Amendment protects the right to be free from
unreasonable searches and seizures. 	U.S. Const. amend. IV. 	“The touchstone of the
Fourth Amendment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250 (1991). “In
order to state a claim for an unlawful search or seizure under the Fourth Amendment, the
facts asserted in a complaint must show that it is plausible that there was a search or
seizure and that the search or seizure was unreasonable.” 	Est. of Israel ex rel. Russell
v. City & Cnty. of Denver, 643 F. Supp. 3d 1221, 1228–29 (D. Colo. 2022). “A search or
seizure is presumptively reasonable under the Fourth Amendment if it is based on a
warrant supported by probable cause.” 	United States v. Johnson, 43 F.4th 1100, 1110
(10th Cir. 2022) (quotation omitted).
In addressing Plaintiffs’ Fourth Amendment claim based on an unlawful search,
Judge Neureiter first noted that the only portion of Plaintiffs’ claim that is timely is the
portion based on the events of January 29, 2021. 	[Doc. 46 at 13]. 	Judge Neureiter
concluded that Plaintiffs cannot state a Fourth Amendment claim based on this search
because the search was conducted pursuant to a warrant, and Plaintiffs do not allege that
the warrant lacked probable cause or was otherwise invalid. [Id. at 13–14]; see also [Doc.
1 at ¶ 28 (Plaintiffs alleging that on January 25, 2021, “the Weld County Sheriffs Strike
Force Team had a warrant signed to exhume an unidentified child corpse” on Plaintiffs’
property)].
In their objections, Plaintiffs argue generally that their Fourth Amendment rights
were violated because the warrants issued in this case were “fraudulent” and because an
anonymous tip, standing alone, does not provide probable cause for a search. [Doc. 53
at 13–16]. But many of these arguments go to events occurring before January 18, 2021,
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and Plaintiffs do not clearly address Judge Neureiter’s conclusion with respect to the
January 29, 2021 search of their property or identify any particular problem with Judge
Neureiter’s conclusion that Plaintiffs fail to allege that that search was unreasonable. See
generally [id.]. At best, Plaintiffs argue that “[i]n this case, the Well [sic] County Sheriffs
cut the locks and entered the property without valid warrant or probable cause, thereby
unlawfully depriving the plaintiff [sic] of their property,” [id. at 16], which could be a
reference to the January 29, 2021 search, see [Doc. 1 at ¶ 28 (Plaintiffs alleging that
Defendants “cut the locks” and “came onto the property with no one home and dug up a
miscarriage of the Plaintiff Erin Cienfuegos and Eric Burnam”)]. 	But the Complaint
contains no allegations that the warrant supporting the January 29 search was invalid or
unsupported by probable cause, see generally [id.], and Plaintiffs cannot amend their
pleading by adding new facts in their objections, see Russo, 2016 WL 67568, at *4.
Accordingly, Plaintiffs’ objections are OVERRULED.
Malicious 	Prosecution 	Claim. 	Judge 	Neureiter 	also 	construed 	Plaintiffs’
Complaint liberally to assert a Fourth Amendment malicious prosecution claim. [Doc. 46
at 14]. A malicious prosecution claim consists of five elements: (1) the defendant caused
the plaintiff’s continued confinement or prosecution; (2) the original action terminated in
the 	plaintiff’s 	favor; 	(3) no 	probable 	cause 	supported 	the 	arrest, 	confinement, 	or
prosecution; (4) the defendant acted maliciously; and (5) the plaintiff sustained damages.
Shrum v. Cooke, 60 F.4th 1304, 1310 (10th Cir. 2023). Judge Neureiter concluded that
Plaintiffs cannot state a Fourth Amendment malicious prosecution claim because (1) Ms.
Cienfuegos was arrested pursuant to a misdemeanor warrant that she does not contest,
such that she does not allege a lack of probable cause for her arrest; and (2) Mr. Burnam
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does not allege that the original action terminated in his favor, taking judicial notice of the
fact that Mr. Burnam entered a guilty plea which resolved all of his criminal cases. [Doc.
46 at 14–15].
Plaintiffs object to Judge Neureiter’s conclusions with respect to Mr. Burnam, but
not as to Ms. Cienfuegos. 	See [Doc. 53 at 27–28]. 	They argue that the charges Mr.
Burnam pleaded guilty to were filed “on May 12th, 2020 and May 26th, 2020, almost
seven months prior to any matter before the Honorable courts” and that these charges
“were unrelated to the events and aftermath of December 9th 2020.” [Id. at 28].
In their response to Plaintiffs’ objections, Defendants ask this Court to take judicial
notice of “Weld County Case Nos. 2020CR1088 and 2020CR1096, wherein Mr. Burnam
entered a plea of guilty to various counts as part of a global plea agreement and
disposition, which included criminal matters previously consolidated into Case Nos.
2020CR1088 and 2020CR1096.” [Doc. 54 at 7]. Defendants note that these two cases
were consolidated with nine other Weld County criminal cases in which Mr. Burnam was
a defendant: 	2020CR2010, 2020CR2011, 2020CR2273, 2020CR2294, 2020CR2321,
2020CR2322, 2020CR2399, 2020CR2447, and 2021CR407. [Id. at 7 n.7].14 Defendants
argue that Mr. Burnam cannot succeed on a malicious prosecution claim because his
guilty plea precludes him from demonstrating that the original action terminated in Mr.
Burnam’s favor. [Id. at 7].
As Judge Neureiter did, see [Doc. 46 at 15 n.6], the Court now takes judicial notice
of the Weld County criminal cases, their docket sheets, and the filings therein. See Pace
14 The Court has confirmed with the Tenth Circuit research library that there are no other
criminal cases in Weld County, Colorado naming Mr. Burnam from 2020 or 2021.
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v. Swerdlow, 519 F.3d 1067, 1072–73 (10th Cir. 2008) (a federal court may take judicial
notice of state court documents and may properly consider them when ruling on a motion
to dismiss). 	The Court observes that case numbers 2020CR1088, 2020CR1096,
2020CR2010, 2020CR2011, 2020CR2273, 2020CR2294, 2020CR2321, 2020CR2322,
2020CR2399, 2020CR2447, and 2021CR407, all of which name Mr. Burnam as a
defendant, were consolidated by the Honorable Marcelo A. Kopcow on December 29,
2021, and that, after the December 29, 2021 consolidation order, the docket sheets
across the various cases reflect largely identical docket entries.
Colorado courts may order that two or more charging documents “be tried together
if the offenses, and the defendant[] . . . could have been joined in a single” charging
document. 	Colo. R. Crim. P. 13. 	“Whether the offenses could have been joined in a
single information depends upon whether all of the offenses were of the same or similar
character and were tied to a single scheme and plan.” Brown v. Dist. Ct. in and for First
Jud. Dist., 591 P.2d 99, 101 (Colo. 1979); see also Colo. R. Crim. P. 8(a)(2) (“Two or
more offenses may be charged in the same indictment or information in a separate count
for each offense if the offenses charged, whether felonies or misdemeanors or both, are
of the same or similar character or are based on two or more acts or transactions
connected together or constituting parts of a common scheme or plan.”).
The Court also takes judicial notice of the fact that, on September 29, 2022, Mr.
Burnam entered a guilty plea to one count of motor vehicle theft under Colo. Rev. Stat.
§ 18-4-409 in case 2020CR1088 and to one count of possession of a weapon by a
previous offender under Colo. Rev. Stat. § 18-12-108 in case 2020CR1096. 	The plea
agreements are attached to Defendants’ Reply in support of their Motion to Dismiss, see
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[Doc. 33-1; Doc. 33-2], and each states that “20CR2010, 20CR2011, 20CR2273,
20CR2294, 	20CR2321, 	20CR2322, 	20CR2399, 	20CR2447, 	and 	21CR407 	will 	be
dismissed at sentencing in exchange for the guilty pleas in 20CR1088 and 20CR1096,
however, restitution will be reserved for all of those cases and the defendant will stipulate
to a factual basis and proximate causation as to all charged counts for the purpose of
restitution,” [Doc. 33-1 at 6; Doc. 33-2 at 4]. 	The docket sheets reflect that all charges
against Mr. Burnam were dismissed on September 29, 2022.
The question before the Court is whether Mr. Burnam has adequately alleged that
the original action terminated in his favor, as required to state a claim of malicious
prosecution. Shrum, 60 F.4th at 1310. For many years, the Tenth Circuit held that this
element required that the charges against the plaintiff be dismissed “in a manner
indicative of innocence.” See, e.g., Margheim v. Buljko, 855 F.3d 1077, 1086 (10th Cir.
2017). But in 2022, the Supreme Court held that a malicious prosecution claim “does not
require the plaintiff to show that the criminal prosecution ended with some affirmative
indication of innocence,” but requires only that the plaintiff “show that the criminal
prosecution ended without a conviction.” Thompson v. Clark, 596 U.S. 36, 49 (2022); see
also Shrum, 60 F.4th at 1311 (recognizing that, after Thompson, “our precedents applying
the favorable termination element are no longer good law”).
However, “Thompson did not address whether a proceeding can ever terminate in
a plaintiff’s favor when the prosecution did not end without a conviction on every charge.”
Alburg v. Jones, No. 21-2580, 2023 WL 2823895, at *3 n.13 (3d Cir. Apr. 7, 2023). Post-
Thompson, a small number of courts have considered whether the disposal of a criminal
proceeding pursuant to a plea agreement, wherein a defendant agrees to plead guilty to
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some charges in exchange for the dismissal of others, amounts to a favorable termination.
Based on the Court’s research, the weight of authority concludes that such a scenario
does not constitute a favorable termination. 	See, e.g., Amigon v. Luzon, No. 7:21-cv-
02029-PMH, 2023 WL 316487, at *3 (S.D.N.Y. Jan. 19, 2023) (“A prosecution ends in a
conviction for these purposes where a plaintiff has pled guilty to one charge in satisfaction
of all against him, even where the guilty plea encompasses only a lesser included
charge. . . . 	The Supreme Court’s decision in Thompson did not alter this outcome.”);
Curry v. Alabama, No. 7:22-cv-00395-LCB-JHE, 2023 WL 9103056, at *8 (N.D. Ala. Nov.
14, 2023) (distinguishing Thompson and concluding that it does not apply where “the
plaintiff entered into a plea agreement and pled guilty to some charges in exchange for
the dismissal of others”), report and recommendation adopted, 2024 WL 54737 (N.D. Ala.
Jan. 4, 2024); Daulatzai v. Maryland, 606 F. Supp. 3d 252, 274 n.16 (D. Md. 2022)
(“Thompson appears to reject the proposition that mixed verdicts can lay the groundwork
for a malicious prosecution claim by stating that a Plaintiff ‘need only show that the
criminal prosecution ended without a conviction.’” (quoting Thompson, 596 U.S. at 49)),
appeal docketed, No. 22-1816 (4th Cir. Aug. 2, 2022). 	Indeed, if criminal charges are
dismissed pursuant to a guilty plea which results in the defendant’s conviction of at least
some charges, the prosecution did not end “without a conviction.” Thompson, 596 U.S.
at 49 (emphasis added).
Here, the state court dockets reflect that the criminal charges against Mr. Burnam
were consolidated and treated as one criminal prosecution. 	Mr. Burnam ultimately
entered guilty pleas with respect to two charges—and was convicted of those charges—
in exchange for the dismissal of the remaining charges against him. Although Mr. Burnam
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argues that the charges to which he pleaded guilty were “unrelated to the events and
aftermath of December 9th 2020,” [Doc. 53 at 28], there has already been a state-court
judicial determination that the subject charges against Mr. Burnam were “of the same or
similar character and were tied to a single scheme and plan,” Brown, 591 P.2d at 101,
and the Court cannot disturb this ruling. Accordingly, Mr. Burnam cannot “show that the
criminal prosecution ended without a conviction,” as required by Thompson, see 596 U.S.
at 49, and he therefore cannot state a malicious prosecution claim. Plaintiffs’ objections
are respectfully OVERRULED as to this claim.
4. 	Plaintiffs’ Fourteenth Amendment Claims
Judge Neureiter liberally construed the Complaint as asserting a Fourteenth
Amendment conspiracy claim and a Fourteenth Amendment procedural due process
claim. 	[Doc. 46 at 15, 17]. 	Judge Neureiter recommends that both of these claims be
dismissed for failure to state a claim. [Id. at 16, 18].
Conspiracy Claim. 	The Tenth Circuit recognizes a conspiracy claim under
§ 1983. See Bledsoe v. Carreno, 53 F.4th 589, 609 (10th Cir. 2022). A § 1983 conspiracy
claim requires (1) a combination of two or more persons, (2) acting in concert, and (3) a
meeting of the minds or a general conspiratorial objective. 	Frasier v. Evans, 992 F.3d
1003, 1024 (10th Cir. 2021). 	To plausibly state a conspiracy claim, the plaintiff must
allege 	“specific 	facts 	showing 	an 	agreement 	and 	concerted 	action 	amongst 	the
defendants.” 	Id. 	(quotation 	omitted). 	“Conclusory 	allegations 	of 	conspiracy 	are
insufficient to state a valid § 1983 claim.” 	Id. (quotation omitted). 	Judge Neureiter
concluded that Plaintiffs fail to state a conspiracy claim because “Plaintiffs completely fail
to allege who conspired with whom to do what.” [Doc. 46 at 16].
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As best as the Court can ascertain, Plaintiffs attempt to object to this portion of the
Recommendation. 	They state that “[o]n or about December 9th 2020 Defendant Felice
[sic] in her official capacity and acting under color of state law. In [sic] collusion with the
weld county strike force team named Defendant’s [sic],” [Doc. 53 at 21], and that “[t]he
collusion of these two governmental agencies have had a ‘meeting of the minds,’” [id. at
27]. 	However, Plaintiffs do not make any specific objections to Judge Neureiter’s
Recommendation that would permit this Court to “focus attention on those issues—factual
and legal—that are at the heart of the parties’ dispute.” 	One Parcel of Real Prop., 73
F.3d at 1059 (quotation omitted). And in any event, the Court agrees with Judge Neureiter
that the Complaint fails to allege facts plausibly suggesting a specific agreement amongst
specific Defendants, Frasier, 992 F.3d at 1024, and because Plaintiffs’ conspiracy claim
appears to be based on the events of December 9, 2020, it is time-barred. 	Plaintiffs’
objections are OVERRULED.
Procedural Due Process Claim. 	The Fourteenth Amendment to the United
States Constitution provides that a State shall not “deprive any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1. Two questions guide
the Court’s analysis on a procedural due process claim: 	“(1) Did the plaintiff possess a
protected property or liberty interest to which due process protections apply? And if so,
(2) was the plaintiff afforded an appropriate level of process?” 	Al-Turki v. Tomsic, 926
F.3d 610, 614 (10th Cir. 2019) (quotation omitted). 	“When a state agency seeks to
remove children from the home, due process requires that the parents receive prior notice
and a hearing, except in extraordinary situations where some valid governmental interest
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is at stake that justifies postponing the hearing until after the event.” 	Gomes v. Wood,
451 F.3d 1122, 1128 (10th Cir. 2006) (quotation omitted).
Judge Neureiter recommends that Plaintiffs’ procedural due process claim be
dismissed both because it is untimely and because Plaintiffs fail to state a claim under
Rule 12(b)(6), concluding that Plaintiffs fail to allege facts showing that their due process
rights were violated when Ms. Cienfuegos’s and Mr. Burnam’s children were placed with
Child Protective Services. 	[Doc. 46 at 17–18]. 	As explained above, Plaintiffs fail to
identify any error in Judge Neureiter’s timeliness analysis, and this is a sufficient basis to
dismiss Plaintiffs’ procedural due process claim. 	Furthermore, Plaintiffs do not identify
any error in Judge Neureiter’s analysis that Plaintiffs fail to state a viable procedural due
process claim. In their objections, they repeatedly reiterate or imply that their due process
rights were violated, see, e.g., [Doc. 53 at 5, 15, 20, 21, 34–35], but they do not address
Judge Neureiter’s recommendation or explain why his analysis is incorrect. 	Thus, any
objections Plaintiffs have to Judge Neureiter’s Recommendation on this claim are
OVERRULED. Jones, 2024 WL 358098, at *3.
Accordingly, the remaining portions of Judge Neureiter’s Recommendation on the
Motion to Dismiss are ADOPTED. Plaintiffs’ remaining First, Fourth, Fifth, Sixth, Eighth,
and Fourteenth Amendment claims are DISMISSED without prejudice.
II. 	Motion to Quash
Judge Neureiter also recommends that Defendant Jones’s Motion to Quash be
granted on the basis that Plaintiffs have not met their burden of demonstrating that
Defendant Jones was actually served in this case. 	[Doc. 46 at 28]. 	Plaintiffs do not
expressly object to this portion of the Recommendation throughout their objections. See
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[Doc. 53 at 1–36]. However, Plaintiffs have also submitted a document titled “Motion to
Quash Alleged Service of Process, or in the Alternative, to Dismiss Plaintiff’s Complaint.”
See [id. at 38–39]. There, Plaintiffs do not reference Defendant Jones by name, but state:
10. Defendants Donovan Parella (sic) and Defendant [Defendant’s Name]
were located at their respective places of residence.
11. The process server, under sworn affidavit, states that both defendants
turned around upon the attempt of process service, walked back into their
homes, and locked the door.
12. The process server informed them that they were being served with a
federal lawsuit and provided them with a service date of May 10, 2023.
13. Defendant [Defendant’s Name] now claims that he was not present at
the time of service and submits an affidavit to the court, under penalty of
perjury, stating that the facts stated within are correct.
14. Defendant [Defendant’s Name] attempts to defraud the court with this
legal document, falsely claiming that the person with the gray beard in the
pictures provided by the process server is not him.
. . .
16. 	Plaintiff submitted pictures as fax (sic) of Defendant [Defendant’s
Name], taken one year prior and five days after the alleged service, clearly
showing Defendant [Defendant’s Name] with a very gray beard and very
gray hair.
. . .
20. 	The 	evidence 	presented 	by 	Plaintiff 	clearly 	demonstrates 	that
Defendant [Defendant’s Name] was properly served and is attempting to
mislead the court.
[Id. (brackets in original)]. 	The Court assumes that “Defendant [Defendant’s Name]”
refers to Defendant Jones.
Plaintiffs do not identify any error in, or even reference, Judge Neureiter’s
Recommendation in these pages, see [id.], and instead simply attempt to reargue points
raised in Plaintiffs’ Response to the Motion to Quash, see, e.g., [Doc. 42 at 4–9]. 	They
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thus have not raised an objection warranting de novo review by this Court. See Saleh v.
Silco Oil Co., No. 19-cv-02973-PAB-NRN, 2020 WL 4915604, at *3 (D. Colo. Aug. 20,
2020) (“In objecting to the magistrate judge’s recommendation, plaintiffs must raise
specific arguments addressing purported errors in the recommendation; plaintiffs may not
reiterate [their] identical arguments hoping to get a different outcome.”). The Court thus
reviews Judge Neureiter’s Recommendation on the Motion to Quash for clear error,
Summers, 927 F.2d at 1167, and finds none; Judge Neureiter’s analysis on the Motion to
Quash is thorough and well-reasoned. 	Plaintiffs’ objections as to the Motion to Quash
are OVERRULED, Judge Neureiter’s Recommendation on the Motion to Quash is
ADOPTED, and the Motion to Quash is GRANTED. Plaintiffs’ claims against Defendant
Jones are DISMISSED without prejudice for insufficient service of process under Rule
12(b)(5). See Est. of Goodwin ex rel. Alvarado v. Connell, 376 F. Supp. 3d 1133, 1144
(D. Colo. 2019) (“Federal Rule of Civil Procedure 12(b)(5) allows for dismissal of an action
without prejudice based on insufficient service of process.”).
III. 	Leave to Amend
Plaintiffs have not requested leave to amend their Complaint in this case, and the
Court declines to sua sponte grant leave to amend at this juncture. 	To the extent that
Plaintiffs wish to proceed with this litigation and replead their claims, they may file a
motion to amend on or before April 10, 2024. 	Any motion to amend must comply with
the Federal Rules and the Local Rules—particularly, D.C.COLO.LCivR 7.1(a), which
requires 	parties 	to 	confer 	with 	opposing 	counsel 	prior 	to 	filing 	any 	motion, 	and
D.C.COLO.LCivR 15.1, which requires that a motion to amend be accompanied by a
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proposed amended pleading in both clean and red-lined form. 	Any proposed amended
pleading must be signed by all Plaintiffs who attempt to assert claims in this case.
In addition, Plaintiffs are reminded that Rule 8 of the Federal Rules of Civil
Procedure requires that a plaintiff (1) articulate clear causes of action which clearly set
forth the legal basis for each claim, see Polovino v. Int’l Bhd. of Elec. Workers, No. 4:15-
cv-00023-JHP-PJC, 2015 WL 4716543, at *4 (N.D. Okla. Aug. 7, 2015) (“A complaint falls
short of Rule 8’s notice requirement when it fails to list or clearly articulate any causes of
action.”), and (2) set forth factual allegations supporting each claim, see Nasious v. Two
Unknown B.I.C.E. Agents, 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 [the plaintiff]; and[] what specific
legal right the plaintiff believes the defendant violated.”). 	“Claims must be presented
clearly and concisely in a manageable format that allows the Court and Defendants to
know what claims are being asserted and to be able to respond to those claims.” Moore
v. Cosarrubias, No. 18-cv-00259-GPG, 2018 WL 11145813, at *2 (D. Colo. Mar. 9, 2018).
In seeking amendment in compliance with Rule 8, Plaintiffs must also consider the Court’s
rulings herein. If Plaintiffs fail to file a motion to amend by the Court’s deadline, this
case will be closed without further warning from the Court.
CONCLUSION
For the above reasons, IT IS ORDERED that:
(1) 	Plaintiffs’ Objections [Doc. 53] are OVERRULED;
(2) 	Plaintiff’s Response and Objection to the Defendant’s Response to the
Plaintiff’s Comlaint [sic] Based upon the Magistrates [sic] Recommendation
[Doc. 55] is STRICKEN;
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(3) 	The Report and Recommendation of United States Magistrate Judge N.
Reid Neureiter [Doc. 46] is ADOPTED;
(4) 	The Motion to Dismiss Plaintiffs’ Complaint [Doc. 12] is GRANTED;
(5) 	The Motion to Quash Alleged Service of Process of, or in Alternative to
Dismiss, Plaintiffs’ Complaint from Defendant Pete Jones [Doc. 37] is
GRANTED;
(6) 	Plaintiffs’ Complaint [Doc. 1] is DISMISSED without prejudice;
(7) 	Defendant Pete Jones is DISMISSED as a Defendant in this matter;
(8) 	Plaintiffs may file a motion to amend on or before April 10, 2024. 	If
Plaintiffs fail to file a motion to amend by the Court’s deadline, the
Court will close this case without further warning from the Court; and
(9) 	A copy of this Order shall be sent to:
Eric Burnam
1287 South 8th Avenue
Apartment B-110
Brighton, CO 80601
Erin Cienfuegos
1287 South 8th Avenue
Apartment B-110
Brighton, CO 80601
Michelle Erickson
5568 Longs Peak Street
Brighton, CO 80601
DATED: March 11, 2024 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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