1:23-cv-03163•Bellinsky v. Galan et al
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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] Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 1 of 26
2 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”). Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 2 of 26
3 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] Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 3 of 26
4 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]. Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 4 of 26
5 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 Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 5 of 26
6 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 Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 6 of 26
7 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)] Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 7 of 26
8 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. Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 8 of 26
9 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.”). Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 9 of 26
10 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. Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 10 of 26
11 934 (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). Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 11 of 26
12 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 Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 12 of 26
13 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. Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 13 of 26
14 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 Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 14 of 26
15 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.” Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 15 of 26
16 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 Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 16 of 26
17 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 Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 17 of 26
18 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. Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 18 of 26
19 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] Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 19 of 26
20 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. Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 20 of 26
21 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; Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 21 of 26
22 (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. Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 22 of 26
23 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 Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 23 of 26
24 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. Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 24 of 26
25 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)). Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 25 of 26
26 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). Case No. 1:23-cv-03163-PAB-STV Document 132 filed 12/12/25 USDC Colorado pg 26 of 26
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