Kuciapinski v. Ennis et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 24-cv-02181-PAB-MDB
MYKHAEL KUCIAPINSKI,
Plaintiff,
v.
DONNA F. ENNIS,
DANA M. GRANT,
LYNN J. MATESI,
JEFFEREY A. JOHNSON,
NICHOLAS A. BUDENZ,
JESSE NEWHART,
TERRELL HARRIS,
STEVE KERLEY,
DEBORAH MCCABE,
KEITH M. GIVEN,
ANTHONY (LAST NAME UNKNOWN), Resident Agency DCIS Supervisor,
UNKNOWN WASHINGTON DC AREA FEDERAL AGENTS 1-3,
UNKNOWN FEDERAL AGENTS 1-12,
DERMOT O’REILLY,
KELLY MAYO,
JEREMY SIBERT, and
JASON DUNN,
Defendants.
ORDER
This matter comes before the Court on the Recommendation of United States
Magistrate Judge [Docket No. 97]. The recommendation addresses the Motion to
Dismiss [Docket No. 53] and Plaintiff’s Motion for Return of Property Using Other Tools:
Civil Equitable Action 41(g) and 5 U.S.C. § 702 [Docket No. 94]. The Court has
jurisdiction pursuant to 28 U.S.C. § 1331.
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I. BACKGROUND
The facts are set forth in the magistrate judge’s recommendation, Docket No. 97
at 3-6, and the Court adopts them for purposes of ruling on the objection. To the extent
that plaintiff disputes how the magistrate judge construed certain facts, the Court
considers and resolves those arguments below.
On August 5, 2024, plaintiff filed this case. Docket No. 1. The complaint brings
claims for malicious prosecution, violation of the Posse Comitatus Act (“PCA”), 18
U.S.C. § 1385, illegal search and seizure, violation of procedural due process, violation
of the right to a speedy trial and proper venue, and cruel and unusual punishment. Id.
at 6-9. Plaintiff sues defendants in their individual and official capacities. Docket No. 20
at 2. Plaintiff’s claims arise out of the investigation and prosecution of criminal charges
that were brought against her. See Docket No. 1 at 6-9. On September 2, 2025,
defendants filed a motion to dismiss. Docket No. 53. On May 29, 2026, plaintiff filed a
motion for return of property under Federal Rule of Criminal Procedure 41(g). Docket
No. 94. On June 30, 2026, Magistrate Judge Martiza Dominguez Braswell issued a
recommendation to grant the motion to dismiss, deny the motion for return of property,
dismiss plaintiff’s official capacity claims without prejudice, dismiss plaintiff’s individual
capacity claims with prejudice, and close the case. Docket No. 97. On July 28, 2026,
after the Court granted a motion for an extension of time, Docket No. 100, plaintiff timely
objected to the June 30, 2026 recommendation. Docket No. 102. On September 1,
2026, defendants filed a response. Docket No. 109. On September 8, 2026, plaintiff
filed what she titled a motion for leave to file a surreply. Docket No. 110.
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II. LEGAL STANDARD 1
A. Objections to the Magistrate Judge Recommendation
The 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). An objection is “proper” if
it is both timely and specific. United States v. One Parcel of Real Prop. Known as 2121
E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (“One Parcel”). A specific objection
“enables the district judge to focus attention on those issues – factual and legal – that
are at the heart of the parties’ dispute.” Id.
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’s
factual or legal conclusions, under a de novo or any other standard, when neither party
objects to those findings.”). The Court therefore reviews the non-objected to portions of
a recommendation to confirm there is “no clear error on the face of the record.” Fed. R.
Civ. P. 72(b), Advisory Committee Notes. 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). Because plaintiff is
proceeding pro se, the Court will construe her objections and pleadings liberally without
serving as her advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
1 The magistrate judge recommends the dismissal of some of plaintiff’s claims
under Rule 12(b)(1) for lack of subject matter jurisdiction. See Docket No. 97 at 21
n.14. Plaintiff does not object to this part of the recommendation, so the Court does not
set out the standard for Rule 12(b)(1).
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B. Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the
facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken
Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam)
(quoting Twombly, 550 U.S. at 555) (alterations omitted). A court, however, does not
need to accept conclusory allegations. See, e.g., Hackford v. Babbit, 14 F.3d 1457,
1465 (10th Cir. 1994) (“[W]e are not bound by conclusory allegations, unwarranted
inferences, or legal conclusions.”).
“[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not shown—that
the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations
and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his]
claims across the line from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then
plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).
Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still
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must contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at
1286 (alterations omitted).
III. ANALYSIS
A. Objections to Rule 41(g) Findings
The recommendation notes that, “[u]nder Rule 41(g), a person aggrieved by an
unlawful search and seizure of property or by the deprivation of property may move for
the property’s return. Where criminal proceedings against the movant have already
been completed, a district court should treat a Rule 41(g) motion as a civil complaint.”
Docket No. 97 at 19 (internal quotations, citation, and alterations omitted). The
recommendation finds that “Plaintiff files the Rule 41(g) Motion after criminal
proceedings have been completed, and the Court must treat it as a civil complaint.” Id.
(citing United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996)). Thus, the
recommendation concludes that, “given the procedural posture of this case, and the fact
that the operative Complaint does not seek Rule 41(g) relief or the return of any
property . . . , the Rule 41(g) Motion is, in a sense, a motion to amend the Complaint.”
Id. (footnote omitted). Construing the Rule 41(g) motion as a motion to amend, the
recommendation finds that the motion should be denied, id. at 20, but states that
“Plaintiff remains free to pursue the relief she seeks by filing a separate civil action
under Rule 41(g) against the United States.” Id. n.13.
Plaintiff objects to construing her Rule 41(g) motion as a motion to amend,
arguing that the motion should be “treated as a civil complaint.” Docket No. 102 at 3.
The recommendation, however, did treat the Rule 41(g) motion as a civil complaint.
See Docket No. 97 at 19. The problem for plaintiff is that “there can only be one
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operative complaint in an action.” Gallagher v. Nat’l Sec. Agency, No. 18-cv-01525-
GPG, 2018 WL 10854582, at *1 (D. Colo. July 12, 2018). Thus, the recommendation
construes the Rule 41(g) motion, treated as a civil complaint, as a motion to amend the
existing complaint in the action. Docket No. 97 at 19. Plaintiff seems to argue that she
can permissibly have two operative complaints in the same civil action, but provides no
argument as to why this is permissible. Docket No. 102 at 3-5. The Court finds that this
is impermissible, and that the recommendation was correct in treating the Rule 41(g)
motion as a motion to amend. See Gallagher, 2018 WL 10854582, at *1. Petitioner
asserts that any denial of the Rule 41(g) motion should be without prejudice, but the
recommendation already states that plaintiff may file the motion as a separate civil
action under Rule 41(g). Docket No. 97 at 20 n.13.
Plaintiff also seems to argue that her Rule 41(g) motion is meritorious. See
Docket No. 102 at 6-9. The Court construes this as an objection to the recommendation
to deny the Rule 41(g) motion. But plaintiff does not address the recommendation’s
finding that amendment is improper because “a Rule 41(g) claim is typically brought
against the United States, . . . but the United States itself is not a Defendant in this
action.” Docket No. 97 at 20 (citations omitted). Thus, The Court finds that plaintiff
does not overcome the recommendation’s finding that amendment, through the Rule
41(g) motion, would be improper. Therefore, the Court will overrule plaintiff’s objections
regarding the Rule 41(g) motion.
B. Prospective Injunctive Relief
The recommendation finds that the majority of plaintiff’s official capacity claims
for injunctive relief seek retrospective relief, which is impermissible. Id. at 9-10.
However, the recommendation notes that one of plaintiff’s requests for injunctive relief
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seeks that “her [name] and her company’s ‘name . . . be cleared and restored’ in certain
unspecified databases.” Id. at 10 (quoting Docket No. 1 at 10). The recommendation
finds that “this request appears to concern prospective harm,” but that it “lacks
specificity.” Id. The recommendation finds that plaintiff fails to “provide sufficient
information to suggest that her entitlement to the requested relief is plausible,” id., and
therefore recommends dismissing this request for injunctive relief without prejudice. Id.
at 21 n.14.
Plaintiff objects to this finding on the basis that the lack of specificity is “curable”
and that plaintiff should therefore be given “leave to amend.” Docket No. 102 at 8. As
an initial matter, the recommendation finds that the deficiency is curable through
recommending dismissal without prejudice. 2 Docket No. 97 at 21 n.14. However, it is
improper for plaintiff to request leave to amend in her objection to the recommendation.
Pursuant to the Local Rules, a “motion shall not be included in a response or reply to
the original motion. A motion shall be filed as a separate document.” D.C.COLO.LCivR
7.1(d). The Tenth Circuit “ha[s] held that normally a court need not grant leave to
amend when a party fails to file a formal motion.” 3 Calderon v. Kan. Dep't of Soc. &
Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999); see also Barnett v. Hall, Estill,
Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1236 (10th Cir. 2020)
(“[C]ases are not to be litigated piecemeal. The court should not have to address
repeated ‘improvements’ to the complaint.”); Johnson v. Spencer, 950 F.3d 680, 721
2 Plaintiff seems to misconstrue this finding, arguing that “dismissal with
prejudice” is inappropriate. Docket No. 102 at 9.
3 While the Court acknowledges that plaintiff’s Rule 41(g) motion was construed
as a motion to amend, that motion does not indicate that it was filed to cure any
deficiencies in her claim for prospective injunctive relief. See generally Docket No. 94.
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(10th Cir. 2020) (“A district court may deny leave to amend when a plaintiff fails to file a
written motion and instead merely suggest[s] she should be allowed to amend if the
court conclude[s] her pleadings [a]re infirm.”) (quotations and citation omitted).
Plaintiff also objects on the basis that more specific information regarding her
request for prospective injunctive relief is “already of record,” including in plaintiff’s Rule
41(g) motion. Docket No. 102 at 8-9. “However, on a motion to dismiss the Court
considers only the allegations contained in the Complaint and documents attached to or
referenced in the Complaint.” Running Foxes Petroleum, Inc. v. Nighthawk Prod. LLC,
No. 14-cv-01466-MSK-MJW, 2015 WL 13614116, at *3 (D. Colo. Mar. 13, 2015); see
also Schwarman v. Lopez, 2013 WL 12330117, at *3 n.3 (D.N.M. May 22, 2013) (“In
reviewing a motion to dismiss, the Court is ‘limited to assessing the legal sufficiency of
the allegations contained within the four corners of the complaint’ and may not consider
allegations asserted in briefing or otherwise outside the complaint.”) (quoting Archuleta
v. Wagner, 523 F.3d 1278, 1281 (10th Cir. 2008)). Plaintiff points to no allegations in
the complaint or documents referenced in the complaint that add supporting facts to her
claim for prospective injunctive relief. Therefore, the Court will overrule the objection.
C. Bivens Claims
The recommendation finds that plaintiff brings her claims under Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Docket No. 97 at 11. The
recommendation discusses Bivens claims as follows:
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the
U.S. Supreme Court established “an implied private action for damages
against federal officers alleged to have violated a citizen’s constitutional
rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). The
Supreme Court has recognized a Bivens remedy in only three cases: (1)
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (a
Fourth Amendment unreasonable search and seizure claim); (2) Davis v.
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Passman, 442 U.S. 228 (1979) (a Fifth Amendment equal protection claim
concerning gender discrimination); and (3) Carlson v. Green, 446 U.S. 14
(1980) (an Eighth Amendment failure to provide adequate medical
treatment claim). “These three cases—Bivens, Davis, and Carlson—
represent the only instances in which the [Supreme] Court has approved
of an implied damages remedy under the Constitution itself.” Ziglar v.
Abbasi, 582 U.S. 120, 131 (2017).
Today, “Bivens is . . . all but dead.” Rowland v. Matevousian, 121 F.4th
1237, 1243 (10th Cir. 2024); see Logsdon v. United States Marshal Serv.,
91 F.4th 1352, 1355 (10th Cir. 2024) (calling Bivens “a relic of the 20th
century”). In the decades since Bivens was decided, the Court has
“progressively chipped away at the decision—to the point that very little of
its original force remains.” Silva v. United States, 45 F.4th 1134, 1139
(10th Cir. 2022); see also Egbert v. Boule, 596 U.S. 482, 491-93 (2022)
(listing cases where the Court has declined to extend Bivens). While not
“dispens[ing] with Bivens altogether,” the Supreme Court has made clear
that recognizing a cause of action under Bivens is a “disfavored judicial
activity.” Egbert, 596 U.S. at 491. Similarly, the Tenth Circuit has said,
“expanding Bivens is . . . an action that is impermissible in virtually all
circumstances.” Silva, 45 F.4th at 1140; see id. at 1136 (saying “lower
courts expand Bivens claims at their own peril”).
The analysis of whether a Bivens remedy exists involves a two-part inquiry
where “a court asks first whether the case presents a new Bivens
context—i.e., is it meaningfully different from the three cases in which the
Court has implied a damages action.” Egbert, 596 U.S. at 483. That
inquiry is strict, and “[t]he [Supreme] Court has said in effect that almost
any difference between the case at hand and the three Court precedents
can justify rejecting a cause of action.” Logsdon, 91 F.4th at 1355.
Second, if the case does arise in a new context, the Court considers
whether there are “special factors” indicating the judiciary is at least
arguably less equipped than Congress “to weigh the costs and benefits of
allowing a damages action to proceed.” Egbert, 596 U.S. at 492
(quotation omitted). “If there is even a single ‘reason to pause before
applying Bivens in a new context,’ a court may not recognize a Bivens
remedy.” Id. (quoting Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020)).
Id. at 11-13. Plaintiff does not object to the recommendation’s general description of a
Bivens claim. Instead, plaintiff raises objections to the manner in which the
recommendation analyzes her specific Bivens claims. Docket No. 102 at 15-18.
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1. 	Claim Three
Plaintiff first objects to the recommendation’s analysis of her third claim—
unlawful search and seizure in violation of the Fourth Amendment. Docket No. 102 at
15-17. The recommendation notes that “Claim 3 comes closest to a recognized Bivens
context: like Bivens itself, it involves an allegedly unlawful seizure.” Docket No. 97 at
14. However, the recommendation finds that plaintiff’s third claim nevertheless presents
a new Bivens context because it presents “a new category of defendants” who were
“undertaking a different legal duty.” Id. Specifically, the recommendation notes that, in
Bivens, the defendants were agents of the Federal Bureau of Narcotics, which presents
a different context than the defendants here, who are federal prosecutors and
Department of Defense investigators and agents who were investigating potential
violations of law connected to military contracts. Id. The recommendation finds that
there is no basis for expanding Bivens into a new context because Congress has
already provided an alternative remedial structure, noting that “both the Department of
Justice and Department of Defense have grievance-reporting procedures allowing
individuals to report alleged misconduct to the relevant agency.” Id. at 16. The
recommendation also finds that it is inappropriate to expand Bivens in this case
because the underlying criminal prosecution involved a matter of national security. Id.
at 17.
Plaintiff objects on the basis that her third claim for relief and Bivens both state
Fourth Amendment violations. Docket No. 102 at 15. Moreover, plaintiff argues that a
Bivens case does not present a new context just because the defendants work for
different federal agencies undertaking different duties. Id. at 16. Plaintiff provides no
caselaw in support of this assertion. See id. As to plaintiff’s first argument, “[a] claim
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may arise in a new context even if it is based on the same constitutional provision as a
claim in a case in which a damages remedy was previously recognized.” Nally v.
Graham, 551 F. Supp. 3d 1062, 1071 (D. Kan. 2021) (citation omitted). Therefore,
plaintiff has not stated a Bivens claim just because she alleges a violation of her Fourth
Amendment rights. As to plaintiff’s second argument, she fails to provide any caselaw
in support of her assertion and fails to contend with the recommendation’s citation of
binding caselaw that different defendants create a new Bivens context. See Docket No.
97 at 14. In Logsdon, 91 F.4th at 1358, the Tenth Circuit held that the case involved a
new Bivens context because it “involved the U.S. Marshals Service, while Bivens
concerned the actions of agents of the Federal Bureau of Narcotics.” Here, the Court
finds that plaintiff’s case presents a new context because the defendants are federal
prosecutors and Department of Defense investigators, not agents of the Federal Bureau
of Narcotics. See Egbert, 596 U.S. at 492 (noting that a case creates a new Bivens
context when it “involves a new category of defendants.”) (internal quotations and
citation omitted). Moreover, as the recommendation notes, Docket No. 97 at 14,
plaintiff’s case presents a new context because the defendants were operating under a
different mandate than the Federal Bureau of Narcotics agents in Bivens. See Ziglar,
582 U.S. at 139-40 (“A case might differ in a meaningful way because of . . . the
statutory or other legal mandate under which the officer was operating.”).
Plaintiff also objects to the recommendation’s finding that a new Bivens context
should not be created because there is an alternative remedial scheme. Docket No.
102 at 16. Specifically, plaintiff argues that the Department of Justice and Department
of Defense’s grievance-reporting procedures are insufficient because they “afford no
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damages remedy to the injured party.” Id. However, “it does not matter that ‘existing
remedies do not provide complete relief’ and instead, ‘the question whether a given
remedy is adequate is a legislative determination that must be left to Congress, not the
federal courts.’” Hill v. Wade, No. 20-cv-03658-CNS-MDB, 2023 WL 9375475, at *5 (D.
Colo. Dec. 27, 2023), report and recommendation adopted, 2024 WL 249099 (D. Colo.
Jan. 23, 2024) (quoting Egbert, 596 U.S. at 493, 498) (alterations omitted). Therefore,
the availability of the alternative remedial schemes foreclose plaintiff’s Bivens claims
regardless of whether plaintiff could recover any damages through such schemes. 4
Therefore, the Court will overrule plaintiff’s objection.
2. 	Claims One, Four, Five, and Six
Plaintiff objects to the recommendation’s Bivens analysis of her first, fourth, fifth,
and sixth claims under the same heading. Docket No. 102 at 17. However, for claims
one, four, and five, petitioner does not sufficiently state the basis of her objection,
merely asserting that she “objects to the new-context determination” and that she
“objects to preserve the determination for review.” Id. But to be entitled to de novo
review, an objection must be specific. One Parcel, 73 F.3d at 1059. “To be sufficiently
specific, the Objections must identify the particular finding by the Magistrate Judge that
the Petitioner opposes and set forth some meaningful argument that explains why the
Petitioner believes that finding is in error.” Vann v. Broaddus, No. 06-cv-01774-MSK-
4 Plaintiff also objects to the assertion that defendants were involved in a matter
of national security, Docket No. 102 at 16, but the Court need not address that
argument because the existence of alternative remedial schemes is sufficient to
foreclose creating a new Bivens context. See Rowland, 121 F.4th at 1244 (“The
existence of alternative remedial structures . . . is reason enough to limit the power of
the Judiciary to infer a new Bivens cause of action.”) (internal quotations and citation
omitted).
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KLM, 2009 WL 1537955, at *2 (D. Colo. May 31, 2009) (citations omitted). Thus, the
Court finds that plaintiff stating that she objects to the new-context determination,
without explaining why, is insufficient to state a specific objection. Upon review, the
Court finds that the magistrate judge’s determination that plaintiff’s first, fourth, and fifth
claims for relief do not present a new Bivens context is correct, Docket No. 97 at 13, 15,
considering that the basis of these claims differs from the basis of the claims brought in
the three recognized Bivens contexts.
As to her sixth claim, petitioner argues that her Eighth Amendment cruel and
unusual claim should be construed as a Fifth Amendment due process claim. Docket
No. 102 at 17. Plaintiff provides little explanation for why it would be appropriate to do
so. See id. More importantly, the recommendation finds that plaintiff’s sixth claim does
not present a recognized Bivens context because the facts are not analogous to existing
Bivens claims, not because the claim is labeled as an Eighth Amendment violation.
Docket No. 97 at 16. Therefore, the Court will overrule plaintiff’s objections.
D. Closing the Case
Plaintiff objects on the basis that it is improper to dismiss some of her claims
without prejudice, yet still close the case. Docket No. 102 at 10. Plaintiff asserts that
closing the case leaves her “without recourse,” despite the fact the recommendation
found that some of her claims could be cured. Id. However, “dismissal without
prejudice means that Plaintiff may, if appropriate, file a new case.” Adair v. El Pueblo
Boys' & Girls' Ranch, Inc. Long Term Disability Plan, No. 06-cv-01343-WYD-CBS, 2010
WL 4392554, at *1 (D. Colo. Oct. 29, 2010); see also Crowe v. Servin, 723 F. App’x
595, 598 (10th Cir. 2018) (unpublished) (“A dismissal without prejudice just means that
the plaintiff isn’t barred from refiling the lawsuit within the applicable limitations period.”)
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(citation, internal quotations, and emphasis omitted). Thus, it is not improper to dismiss
some of plaintiff’s claims without prejudice but still close the case. Nor does it leave
plaintiff without recourse, as plaintiff may, if appropriate, file a new case. Therefore, the
Court will overrule this objection.
E. Dismissal With Prejudice
Plaintiff objects on the basis that the individual capacity claims should not be
dismissed with prejudice. Docket No. 102 at 10-11. Plaintiff argues that the
recommendation made no finding that amendment would be futile and therefore erred in
dismissing the claims with prejudice. Id. at 11. This is incorrect, as the
recommendation found that amendment would be futile. Docket No. 97 at 21 n.15. In
doing so, the recommendation cited cases where Bivens claims that did not fall within
an existing context or present a new context were dismissed with prejudice. Id. The
Court finds that it is appropriate to dismiss plaintiff’s individual capacity claims with
prejudice because amendment would not state a Bivens claim under the set of facts
alleged. Plaintiff does not assert that there are any facts she could add to an amended
complaint to sufficiently state a Bivens cause of action.
Plaintiff appears to argue that dismissal with prejudice is inappropriate because
she could potentially bring her constitutional claims on other grounds, rather than under
Bivens. Docket No. 102 at 19. However, that matter was not before the magistrate
judge, who recommended dismissal of the Bivens claims at issue in this case with
prejudice. Therefore, the Court will overrule this objection.
F. Lawful Scope
Plaintiff objects on the basis that “[n]o tribunal has determined that Defendants
acted within a lawful scope.” Id. at 13. It is not entirely clear what plaintiff means by this
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assertion, but she appears to argue that the Court should analyze whether defendants
acted unlawfully despite finding that plaintiff did not state a cause of action, noting that
“dismissing that label does not dispose of the facts pleaded under it.” Id. at 14. The
Court finds that this argument is vague and undeveloped. Courts “do not consider
unsupported and undeveloped issues.” Norton v. Ute Indian Tribe of the Uintah &
Ouray Rsrv., 862 F.3d 1236, 1250 n.5 (10th Cir. 2017) (citation omitted). Thus, the
Court will overrule this objection.
G. Objections to Other Orders
Plaintiff appears to object to previous orders staying discovery, Docket No. 102
at 9, and refusing to reconsider a ruling on an “Immunities Motion,” which the magistrate
judge construed as a supplemental response to the motion to dismiss. Id. at 9, 11-13;
see also Docket Nos. 75, 85. However the order on the motion to stay was issued on
December 10, 2025, Docket No. 75, and the order on what the magistrate judge
construed as a motion for reconsideration was issued on March 6, 2026. Docket No.
85. “Objections are timely if filed by a party within 14 days after being served a copy of
the magistrate judge’s order.” Savajian v. Milyard, No. 09-cv-00354-CMA-BNB, 2010
WL 728219, at *5 (D. Colo. Feb. 25, 2010) (citation omitted); 28 U.S.C. § 636(b)(1)(C).
Therefore, plaintiff’s July 28, 2026 objections to these orders are untimely. Plaintiff
appears to argue that she should be able to file an untimely objection because the
recommendation relied on the prior orders. Docket No. 102 at 12. However, the
recommendation contains no discussion of the prior orders and plaintiff does not explain
why an untimely objection would be permitted even if the recommendation did rely on
the prior orders. Therefore, the Court will overrule this objection.
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H. Surreply
Finally, plaintiff filed what she calls a motion to file a surreply. Docket No. 110.
No reply was filed in this case. The Court construes the motion as a motion for leave to
file a reply. Notably, while Rule 72(b) contemplates filing a response to an objection, it
does not contemplate filing a reply. See Fed. R. Civ. P 72(b). Plaintiff argues that she
should be entitled to file a reply due to defendants citing various cases and arguing that
plaintiff’s objections regarding previous orders are untimely. Docket No. 110 at 1.
However, defendant’s citations and timeliness argument are in direct response to
arguments plaintiff raised in her objection. See generally Docket No. 109. A district
court has discretion to permit a surreply if the reply raises new material, including new
legal arguments or factual evidence. Collins v. BAC Home Loans Servicing LP, 912 F.
Supp. 2d 997, 1008 (D. Colo. 2012) (citing Green v. New Mexico, 420 F.3d 1189, 1196
(10th Cir. 2005)). “Merely responding to arguments and pointing out defects in those
arguments in a reply does not constitute new material.” Long v. Blue Shield of Calif., No.
24-cv-03352-PAB-CYC, 2025 WL 1397581, at *3 (D. Colo. May 14, 2025), report and
recommendation adopted, 2025 WL 2093287 (D. Colo. May 30, 2025). Thus, because
defendants are merely responding to arguments and pointing out defects in those
arguments, the Court will not permit plaintiff to file a reply. 5
I. 	Non-objected to Portions of the Recommendation
The Court has reviewed the rest of the recommendation to satisfy itself that there
are “no clear error[s] on the face of the record.” See Fed. R. Civ. P. 72(b), Advisory
5 Nevertheless, the Court has reviewed the proposed reply, Docket No. 110-1,
and finds that it would not change the Court’s ruling on the recommendation.
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Committee Notes. Based on this review, the Court has concluded that the
recommendation is a correct application of the facts and the law.
IV. CONCLUSION
Therefore, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 97] is ACCEPTED. It is further
ORDERED that the Motion to Dismiss [Docket No. 53] is GRANTED. It is further
ORDERED that plaintiff’s claims are DISMISSED without prejudice to the
extent they are brought against defendants in their official capacities. It is further
ORDERED that plaintiff’s claims are DISMISSED with prejudice to the extent
they are brought against defendants in their individual capacities. It is further
ORDERED that Plaintiff’s Motion for Return of Property Using Other Tools: Civil
Equitable Action 41(g) and 5 U.S.C. § 702 [Docket No. 94] is DENIED without
prejudice. It is further
ORDERED that this case is closed.
DATED September 29, 2026.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
United States District Judge
______	__________________________ __________	______________ ______________	__	_______	___	___________________	__	______	_____________________	________________
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