Opinion
Civil Action No. 20-cv-01806-RM-KMT
02-25-2021
HONGWEI YANG, Plaintiff, v. ALEJANDRO MAYORKAS, Secretary of the United States Department of Homeland Security, JOHN FABBRICATORE, Denver Field Office Director, United States Immigration and Customs Enforcement, JOHNNY CHOATE, Warden, Aurora Contract Detention Facility, and ELIZABETH H. MCGRAIL, Immigration Judge, presiding at Immigration Court at Aurora Detention Center, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Before the court are four motions: (1) "Immigration Judge Elizabeth McGrail's Motion to Dismiss;" (2) "DHS Defendants' Motion to Dismiss;" (3) "Defendant Choate's Motion to Dismiss Plaintiff's Fifth Claim for Relief;" and (4) "DHS Defendants' Motion to Dismiss Based on Mootness." (["McGrail Motion"], Doc. No. 22; ["DHS First Motion"], Doc. No. 23; ["Choate Motion"], Doc. No. 25; ["DHS Second Motion"], Doc. No. 45.) Plaintiff has responded to the first three Motions, and Defendants have replied. (Doc. Nos. 26-27, 29-31.) No response has been filed to the fourth Motion, and the time to do so has lapsed.
STATEMENT OF THE CASE
Pro se Plaintiff Hongwei Yang ["Yang"], a nonresident alien detained by United States Immigration Customs and Enforcement ["ICE"] at the Aurora Detention Facility ["ADF"], brings this lawsuit, purportedly pursuant to 42 U.S.C. § 1983, asserting deprivations of his Fifth Amendment rights by the Secretary of Homeland Security, the ICE Denver Field Office Director, the ADF Warden, and a United States immigration judge—respectively, Defendants Alejandro Mayorkas, John Fabbricatore, Johnny Choate, and Elizabeth M. McGrail. (["Complaint"], Doc. No. 9 at 1-8.) I. Claims 1-3 —Conditions of Confinement
Plaintiff has reportedly been held at ADF, an ICE-contracted detention facility, since November 30, 2018. (Id. at 6.) He complains that "the pod in which [he] is forced to stay" while there is akin to "a chicken cage," in that it is too small, overly crowded, and offers only "limited sunshine at day time [sic]." (Id.) Plaintiff alleges that he "cannot see the outside except the limited sky," and he complains that "[s]uch a bad condition is the same as for a death penalty inmate." (Id.) Yang further complains that, due to his "19-month long indoor detention," he suffers from numerous ailments, including depression, lethargy, difficulty sleeping, body spasms, headaches, poor eyesight, nosebleeds, a sore throat, a runny nose, and chronic ear infections. (Id. at 7.) Plaintiff states that he has caught a "very bad cold" at the detention facility on three separate occasions, and complains that, on one occasion, ADF refused to provide him with "a long-sleeve shirt," even though "it was winter time [sic]." (Id.)
Yang, who is over fifty years of age and reportedly suffers from hypertension, further alleges that ADF has taken inadequate steps to prevent the spread of COVID-19 within its facility. (Id. at 6-7.) Plaintiff complains that, due to the cramped conditions of his confinement, he has been unable to practice effective social distancing to protect himself from COVID-19 infection. (Id. at 6.) Plaintiff further complains that, even though he "is at higher risk of death or serious illness from COVID-19 due to his health conditions," ADF officials sometimes do not wear masks when "working in [his] pod." (Id. at 6-7.) Yang recounts that, on one occasion, an unmasked ADF official coughed "within just one foot" of his person. (Id. at 6.) Plaintiff likewise complains that, on another occasion, an ADF official entered his "pod," while wearing a face mask improperly lowered around his neck. (Id.) When Plaintiff "questioned this officer why his mask did not cover his mouth and nose," the official reportedly became "angry" and threatened to "put [Plaintiff] in the hole." (Id.) Plaintiff complains that he was then "handcuffed for a while." (Id.) II. Claim 4 —Immigration Proceeding
In this lawsuit, Yang also alleges that he has been unlawfully detained "for [an] additional nine months," due to the "fault" of a United States immigration judge, Defendant Elizabeth McGrail. (Id. at 7.) Specifically, the Complaint alleges as follows:
In Mr. Yang's individual hearing on August 28, 2019, the Immigration Judge (Elizabeth H. McGrail) denied his asylum application. After his appeal, Board of Immigration Appeals (BIA) found that the Immigration Judge's oral decision was missing, and no written decision [was issued], because she went off the record. Then BIA remanded the case. Thus, it caused Mr. Yang [an] additional nine months [of] detention, and it made his depression worse.(Id.) III. Claim 5 —Use of Image
Finally, Plaintiff alleges that his "pictures" have been "put on TV news for ICE/Geo's propaganda," despite the fact that he never gave "any person or any organization" the permission to do so. (Id. at 7-8.) Yang is adamant that this action violated his "privacy rights." (Id. at 8.) Plaintiff reports that he first "found his picture was put on TV news," in March 2020. (Id. at 7.) He alleges that the "warden assistant" at ADF, when notified of the issue, "admitted it is not right to use his picture." (Id.) Following these events, Plaintiff reportedly "fil[]ed a grievance," but even so, his "picture still appeared on TV news again and again." (Id. at 7-8.) According to the Complaint, Yang's image was most recently displayed on a July 2, 2020 Univision television newscast. (Id. at 8.) Yang complains that "[m]any detainees recognized [him] on TV," which "ma[de] him sad, and his depression worse." (Id.) IV. Procedural History
Plaintiff appears to be referencing GEO Group, Inc., the private contractor that runs ADF on behalf of ICE. (See DHS First Mot. 2 n.1.)
On June 18, 2020, Plaintiff initiated this federal action by filing an Emergency Motion for Release, seeking release from ICE custody "to abate the imminent harm of COVID-19." (Doc. No. 1 at 24.) Plaintiff thereafter filed a Complaint, on July 21, 2020, asserting various claims against the four named Defendants. (Compl. 1-10.) The Complaint's first three claims, which relate to the conditions of Yang's confinement at ADF, appear to be asserted against Defendants Choate, Fabbricatore, and Mayorkas [collectively, the "DHS Defendants"], in their official capacities only. (Id. at 2-3, 6-7, 10.) The fourth claim, which pertains to Yang's immigration proceeding, is lodged against Defendant McGrail, in both her individual and official capacities. (Id. at 4, 7, 10.) The fifth claim, which alleges a violation of Yang's "privacy rights," looks to be asserted against the DHS Defendants, in their official capacities, and against Defendant Choate, in his individual capacity, as well. (Id. at 2-3, 7-8, 10.) In the Complaint, Plaintiff demands the following forms of relief: (1) "Issue an order to immediately release him;" (2) "Issue an order that his pictures be deleted and not be used on TV again;" (3) "Award him restitution, pursuant to the federal law, caused by additional detention and his pictures used on TV;" and (4) "Grant him any other reliefs [sic] this court deems just and proper." (Id. at 10.)
The court notes that Plaintiff, in his Complaint, checked the box indicating that he was suing Defendant Choate in his official capacity, only. (Compl. 3.) However, in his prayer for relief, Plaintiff requests "restitution" as compensation for "his pictures used on TV." (Id. at 10.) Further, Defendant Choate, himself, construes the fifth claim to be asserted against him, in his individual capacity. (Choate Mot. 2; see DHS First Mot.15 n.8.) Therefore, affording the requisite liberal construction, and having carefully considered "the context of the complaint," as well as "the relief sought," the court concludes that the fifth claim is asserted against Defendant Choate, in both his individual and official capacities. See Trapp v. U.S. Marshals Serv., 139 F. App'x 12, 15 (10th Cir. 2005) (holding that, even though the plaintiff had "in his form complaint . . . checked the box indicating that he was suing each of the defendants in their official capacities . . . the context of the complaint and accompanying documents indicate[d] that [he] was also raising claims against the individual defendants in their individual capacities").
On August 14, 2020, the DHS Defendants responded to the Complaint's allegations by filing a motion to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), contending that Yang lacks any viable cause of action against them, or in the alternative, that Yang has failed to plausibly allege a violation of his constitutional rights. (DHS First Mot. 5-20.) That same day, Defendant Choate filed a separate motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), with respect to the fifth claim only, while Defendant McGrail filed her own motion to dismiss, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and inadequate pleading. (Choate Mot. 1, 4-6; McGrail Mot. 1, 4-16.) All three motions are fully briefed and pending. (See Doc. Nos. 26-27, 29-31.)
In the interim, on January 4, 2021, Plaintiff was released from ICE custody, pursuant to an Order of Supervision. (DHS Second Mot. 5, Ex. A.) Three weeks later, on January 26, 2021, the DHS Defendants filed an additional motion to dismiss, under Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiff's first three claims are now moot, given that he is no longer confined at ADF. (Id. at 6-8.) Plaintiff has not responded to the DHS Defendants' most recent motion to dismiss, and the time to do so has lapsed.
The docket shows that a litigation document sent to Plaintiff's address of record, at ADF, was returned to the Clerk of Court with a notation reading "not here." (Doc. No. 47.) As such, the court does not currently have a valid mailing address for Plaintiff. See D.C.COLO.LCivR 5.1(c) (stating that litigants must promptly notify the court of any change of address).
STANDARDS OF REVIEW
I. Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding the allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating that a court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues"). The plaintiff's pro se status does not entitle him to an application of different rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002). II. Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure Rule 12(b)(1) empowers a court to dismiss a complaint for a 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. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. 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). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction "must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Id. at 909. The dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006).
A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however, the Court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). If a party challenges the facts upon which subject matter jurisdiction depends, a court may not presume the truthfulness of the complaint's "factual allegations . . . [and it] has wide discretion to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id. III. Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quotation marks omitted).
"A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). "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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S at 678. Moreover, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the court may consider documents incorporated by reference, documents referred to in the complaint that are central to the claims, and matters of which a court may take judicial notice. Tellabs, Inc, 551 U.S. at 322; Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records, including court transcripts, are subject to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007); Trusdale v. Bell, 85 F. App'x 691, 693 (10th Cir. 2003).
ANALYSIS
I. Section 1983
As a preliminary matter, the Complaint is styled as an action under 42 U.S.C. § 1983, even though Plaintiff asserts his claims solely against federal actors. (See Compl. 2-4.) "Section 1983 provides a federal civil remedy for the 'deprivation of any rights, privileges, or immunities secured by the Constitution' by any person acting under color of state law." McCarty v. Gilchrist, 646 F.3d 1281, 1285 (10th Cir. 2011) (quoting 42 U.S.C. § 1983). "[I]t does not, however, authorize redress against federal officials who act under federal law." Van Sickle v. Holloway, 791 F.2d 1431, 1435 n.4 (10th Cir. 1986); accord Campbell v. Amax Coal Co., 610 F.2d 701, 702 (10th Cir. 1979) (Section 1983 "does not apply to federal officers acting under color of federal law."); Peterson v. Timme, 621 F. App'x 536, 540 (10th Cir. 2015) (stating that "§ 1983 is not an appropriate vehicle to bring claims against a federal official").
Here, because the Complaint names only federal officials as defendants, and in light of Plaintiff's pro se status, the court liberally construes the action as if filed, instead, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (explaining that a Bivens action, which "provides a private action for damages against federal officers who violate certain constitutional rights," is "the federal analog to a § 1983 suit") (alterations omitted); see also Dry v. United States, 235 F.3d 1249, 1253 (10th Cir. 2000) ("Despite Plaintiffs' failure to cite Bivens at any point in their brief, we construe their constitutional claims against the tribal defendants—alleged to be agents of the federal government—as Bivens claims."); Peterson, 621 F. App'x at 541-42 (construing a pro se plaintiff's § 1983 claims against a federal judge as Bivens claims). II. Official Capacity Claims
A. Monetary Damages
Plaintiff seeks monetary damages against Defendants, all of whom are officers and agents of the United States. (Compl. 2-4, 10.) In Bivens, the United States Supreme Court recognized an implied cause of action for damages against federal officers who were alleged to have violated an individual's constitutional rights. 403 U.S. at 397; accord Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). However, "[t]here is no such animal as a Bivens suit against a public official tortfeasor in his or her official capacity." Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001); see also Nat'l Commodity & Barter Ass'n v. Gibbs, 886 F.2d 1240, 1247 (10th Cir. 1989) (holding that the doctrine of sovereign immunity bars Bivens claims against federal officials in their official capacities). "Instead, any action that charges such an official with wrongdoing while operating in his or her official capacity as a United States agent operates as a claim against the United States." Farmer, 275 F.3d at 963 (citation omitted). Absent a waiver, a suit for damages against the United States is barred by the doctrine of sovereign immunity. Atkinson v. O'Neill, 867 F.2d 589, 590 (10th Cir. 1989) (citing Kentucky v. Graham, 473 U.S. 159, 165-67 (1985)).
In this case, Plaintiff's claims for monetary relief against Defendants, in their official capacities, constitute claims against the United States. Because the United States has not waived sovereign immunity in this case, Plaintiff's official capacity claims for monetary relief against Defendants are, in fact, barred by sovereign immunity. See Kyler v. Everson, 442 F.3d 1251, 1252 (10th Cir. 2006) ("[T]o the extent this suit for damages is against the [IRS] Commissioner in his official capacity, it is barred by sovereign immunity."). Therefore, it is recommended that those claims be dismissed for lack of subject matter jurisdiction.
B. Injunctive Relief
1. Request for Release
In the Complaint, Plaintiff requests injunctive relief, in the form of "an order to immediately release him." (Compl. 10.) Since the filing of this lawsuit, however, Plaintiff has been released from ICE custody, subject to "certain post-release requirements, including that [he] must wear an ankle monitor, report regularly to [Enforcement and Removal Operations], and not violate the laws of the United States." (DHS Second Mot. Ex. A ["Ketels Declaration"], at ¶ 8.)
Article III's requirement that federal courts adjudicate only live cases and controversies requires a court to decline to exercise jurisdiction, if the award of any requested relief would be moot. Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994), superseded by statute on other grounds. A claim is "deemed moot unless a proper judicial resolution settles some dispute which affects the behavior of the defendant toward the plaintiff." McAlpine v. Thompson, 187 F.3d 1213, 1216 (10th Cir. 1999) (internal quotation marks omitted). Given that Yang is no longer in the custody of ICE, an award of injunctive relief in his favor, with respect to his claims seeking "immediate[] release," would, in essence, "amount to nothing more than a declaration that he was wronged, and would have no effect on the defendants' behavior towards him." Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011) (quoting Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997)). Further, a party cannot maintain an action for injunctive relief, unless a substantial likelihood of being injured in the future is demonstrated. Facio v. Jones, 929 F.2d 541, 544 (10th Cir. 1991). Here, no such demonstration has been made.
An exception to the mootness doctrine exists when the wrongdoing alleged is "capable of repetition, yet evading review." Marks v. Colo. Dep't of Corr., 976 F.3d 1087, 1093 (10th Cir. 2020) (citation omitted). However, "[t]his exception is 'narrow' and 'only to be used in exceptional situations.'" Id. (quoting Jordan v. Sosa, 654 F.3d 1012, 1034-35 (10th Cir. 2011)). "This exception only applies where two narrow conditions are present: '(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again." Hale v. Ashcroft, 683 F. Supp. 2d 1189, 1198 (D. Colo. 2009) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). Here, there is nothing to suggest a "reasonable expectation" or "demonstrated probability" that the same controversy will recur. See Murphy v. Hunt, 455 U.S. 478, 482 (1982); see also McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir. 1999) ("[W]hen an inmate's claim for prospective injunctive relief regarding conditions of confinement becomes moot due to the inmate-plaintiff's release from confinement, the inmate's parole or supervised release status does not, absent some exceptional showing, bring that claim under the narrow 'capable of repetition, yet evading review' exception to the mootness doctrine."); Patrick v. Gonzales, No. 07-cv-00470-MSK-MJW, 2008 WL 496288, at *1 (D. Colo. Feb. 19, 2008) (holding that an ICE detainee's "release subject to certain stated conditions" did not implicate the "capable of repetition yet evading review" exception).
In this case, Plaintiff is no longer housed at an ICE detention facility, and he is no longer under Defendants' custody and control. As such, his claims for "an order to immediately release him" are moot. See Green, 108 F.3d at 1300 (holding that an inmate plaintiff's claims for declaratory and injunctive relief were mooted by his release from incarceration); Cohen Ma v. Hunt, 372 F. App'x 850, 851 (10th Cir. 2010) (affirming the dismissal of an immigrant detainee's claims for injunctive relief, where that individual "was not merely transferred from one facility to another, but rather he was released from ICE's custody and [was] now being held, not awaiting removal, but pending the resolution of criminal charges"); Wamala v. Gonzales, No. 07-cv-00289-LTB-CBS, 2007 WL 3256716, at *2 (D. Colo. Nov. 1, 2007) (adopting recommendation to dismiss a habeas petition, given that the plaintiff, who had been in ICE custody, had "since received the relief sought in the Petition, release from his continued detention").
Accordingly, all of Plaintiff's official capacity claims, with the exception of Claim Five, should be dismissed under Federal Rule of Civil Procedure 12(b)(1).
Plaintiff requests additional injunctive relief, with respect to his fifth claim, in the form of "an order that his pictures be deleted and not be used on TV again." (Compl. 10.) That claim remains viable, notwithstanding Plaintiff's release from ICE custody, and shall be addressed infra.
2. Claim Five
Plaintiff's fifth claim alleges a violation of his "privacy rights" by the DHS Defendants, in connection with the unauthorized use of his image on television newscasts. (Compl. 7-8.) The DHS Defendants move to dismiss this claim, arguing that Plaintiff lacks any viable cause of action with which to seek redress for his alleged injuries. (DHS First Mot. 15-20.) Because Plaintiff does not clearly specify the authority under which he claims entitlement to relief, the court considers the two most likely causes of action for this claim.
i. Privacy Act
In his fifth claim, Plaintiff could be intending to allege a violation of the Privacy Act, 5 U.S.C. § 552a. The Privacy Act provides, in relevant part, that: "No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains." 5 U.S.C. § 552a(b). "For a plaintiff to succeed on a Privacy Act claim, he must demonstrate the following four elements: (1) the information is a record within a system of records, (2) the agency disclosed the information, (3) the disclosure adversely affected the plaintiff, and (4) the disclosure was willful or intentional." Wilkerson v. Shinseki, 606 F.3d 1256, 1268 (10th Cir. 2010) (citing Pierce v. Dep't of U.S. Air Force, 512 F.3d 184, 186 (5th Cir. 2007)).
In this case, Plaintiff alleges that his "pictures" were improperly disclosed. (Compl. 7-8.) However, the Complaint is devoid of any facts concerning the nature of these "pictures," for purposes of determining whether they fall within "a system of records." See Gowan v. U.S. Dep't of Air Force, 148 F.3d 1182, 1191 (10th Cir. 1998) ("[O]nly 'records' kept in a 'system of records' are subject to the provisions of [the Privacy Act]."); see also 5 U.S.C. § 552a(a)(5) ("[T]he term 'system of records' means a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual[.]"). And, even more importantly, Plaintiff, as a nonresident alien, cannot bring an action under the Privacy Act. See 5 U.S.C. § 552a(a)(2) ("[T]he term 'individual' means a citizen of the United States or an alien lawfully admitted for permanent residence[.]"); accord Soto v. U.S. Dep't of State, 244 F. Supp. 3d 207, 208 (D.D.C. 2017) (holding that the plaintiffs, who were "neither U.S. citizens nor lawful permanent residents," were not entitled to bring suit under the Privacy Act). Accordingly, to the extent that the fifth claim is asserted under the Privacy Act, the claim should be dismissed.
ii. Federal Tort Claims Act
Plaintiff's Complaint might also be read as asserting a claim for relief under the Federal Tort Claims Act ["FTCA"], 28 U.S.C. §§ 2671-2680. The FTCA abrogates the United States' sovereign immunity, and allows the federal government to be held liable, to the same extent as a private individual, for certain torts committed by federal employees acting within the scope of their employment. See 28 U.S.C. § 1346(b)(1); Sosa v. Alvarez-Machain, 542 U.S. 692, 700 (2004). The FTCA "provides the exclusive avenue to assert a claim sounding in tort against the United States." In re Franklin Savings Corp., 385 F.3d 1279, 1286 (10th Cir. 2004) (citing 28 U.S.C. § 2679(a)).
To bring an action under the FTCA, a plaintiff must first exhaust all available remedies. 28 U.S.C. § 2675(a) (prohibiting an action against the United States "unless the claimant shall have first presented the claim to the appropriate Federal agency"); Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 967 (10th Cir. 1994) ("Under the FTCA, filing an administrative claim with the appropriate federal agency is a prerequisite to bringing a civil action against the United States for damages for the negligence or wrongful act of any United States employee."); see McNeil v. United States, 508 U.S. 106, 113 (1993) (affirming the dismissal of an FTCA claim by a pro se plaintiff who failed to exhaust administrative remedies).
The FTCA's exhaustion requirement "is jurisdictional and cannot be waived." Lopez v. United States, 823 F.3d 970, 976 (10th Cir. 2016) (quoting Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991)). Yang, therefore, bears the burden of proving the exhaustion requirement has been met. See Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994) ("If jurisdiction is challenged, the burden is on the party claiming jurisdiction to show it by a preponderance of the evidence."); Durham v. Lappin, No. 05-cv-01282-MSK-MEH, 2006 WL 2724091, at *6 (D. Colo. Sept. 21, 2006) ("The burden of showing exhaustion is on the Plaintiff, to be established by either attaching copies of documents showing complete exhaustion, or by identifying with specificity the procedures invoked and their outcome.").
To satisfy the FTCA's exhaustion requirement, a plaintiff must file an administrative claim with the "appropriate federal agency and be finally denied by the agency." Three-M Enters., Inc. v. United States, 548 U.S. 293, 294 (10th Cir. 1977) (citing 28 U.S.C. § 2675(a)). The administrative claim must include: "(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim." Est. of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir. 2005) (quoting Bradley, 951 F.2d at 270). A proper administrative claim provides "notice of the facts and circumstances underlying a claim rather than the exact grounds upon which [a] plaintiff seeks to hold the government liable." Id. at 853 (citations omitted). An administrative claim need not apprise a federal agency of "every conceivable legal theory or cause of action that could potentially be brought in relation to an injury described in that claim." Bethel v. United States ex rel. Veterans Admin. Med. Ctr. of Denver, Colo., 495 F. Supp. 2d 1121, 1125 (D. Colo. 2007); accord Trentadue, 397 F.3d at 853 (cautioning that "the FTCA's notice requirements should not be interpreted inflexibly"). However, "[i]f the facts surrounding a possible cause of injury are not discussed in the administrative claim, then the possible cause of injury cannot support a later claim in federal court." Bowling v. United States, 740 F. Supp. 2d 1240, 1246 (D. Kan. 2010) (citation omitted).
Here, Plaintiff appears to have submitted a grievance to ADF on July 6, 2020. (["Grievance"], Doc. No. 23-1, at 4-6.) In that grievance, Plaintiff alleged that his "picture appeared on TV many times" without his permission, and he demanded that ADF "forward [the] grievance to the Warden." (Id. at 4.) However, the grievance does not include a "sum certain" request for damages. See Bradley, 951 F.2d at 271 ("Failure to comply with the sum certain requirement results in the case being treated as if no administrative claim had ever been filed.") (alterations omitted). Further, the record shows that, although ADF responded to Plaintiff's grievance on July 7, 2020, Plaintiff did not then pursue any further appeal to the ADF's Grievance Appeal Board, or to ICE. (["Andrews Declaration"], Doc. No. 23-1, at ¶¶ 9-11; Grievance at 6.) Moreover, the DHS Defendants have submitted a sworn declaration from an employee at the Office of the Principal Legal Advisor for ICE, confirming that "ICE has no records of any administrative tort claim" filed by Plaintiff. (["Kirksey Declaration"], Doc. No. 24, at ¶ 5.) Plaintiff, for his part, alleges only that he "fil[]ed [a] grievance" regarding the unauthorized use of his image. (Compl. 7-8.)
In opposing the DHS Defendants' motion to dismiss, Plaintiff argues that the FTCA's exhaustion requirement "do[es] not apply" to this case, because GEO, the private contractor that runs ADF on behalf of ICE, "does not belong to the government." (Doc. No. 27 at 5.) However, the FTCA's exhaustion requirement is jurisdictional and cannot be waived. See Est. of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir. 2005) ("Because the FTCA constitutes a waiver of the government's sovereign immunity, the notice requirements established by the FTCA must be strictly construed."). As such, Plaintiff's argument is without merit.
On this record, then, Plaintiff has not met his burden to show that he exhausted his administrative remedies under the FTCA. See D'Addabbo v. United States, 316 F. App'x 722, 725 (10th Cir. 2008) (holding that the FTCA's exhaustion requirement was not met, where the plaintiff's grievance letter "failed to assert a sum certain," and where the record showed that the federal agency "never denied the claim"); Alkadi v. Tancredo, No. 07-cv-00100-WYD-MEH, 2007 WL 3232205, at *7 (D. Colo. Oct. 29, 2007) (recommending the dismissal of FTCA claims, where the defendants submitted evidence that the plaintiff had not previously filed an administrative claim concerning the alleged torts, and where the plaintiff, in response, "utterly fail[ed] to address whether he ha[d] exhausted his administrative remedies under the FTCA"). Therefore, to the extent that the fifth claim is brought under the FTCA, the claim should be dismissed for lack of subject matter jurisdiction. See McNeil, 508 U.S. at 113 (affirming the dismissal of unexhausted FTCA claims).
Even assuming Plaintiff did exhaust his administrative remedies with respect to his fifth claim, he has failed to plausibly allege any basis for liability under the FTCA. Section 1346(b) of the FTCA makes clear that liability will only be found "under circumstances where the United States, if a private person, would be liable to the [plaintiff] in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b); accord Levin v. United States, 568 U.S. 503, 506-07 (2013). In other words, under the FTCA, the United States can be held liable, only to the extent that, in the same circumstances, the applicable state tort law would hold a private individual liable. Ayala v. United States, 49 F.3d 607, 610 (10th Cir. 1995) ("[T]he government is not liable under the FTCA unless state law recognizes a comparable liability for private persons."). "A claim that fails to allege facts sufficient to meet this requirement must be dismissed for lack of subject matter jurisdiction." Pappas v. United States, 617 F. App'x 879, 881 (10th Cir. 2015) (citing Dorking Genetics v. United States, 76 F.3d 1261, 1264 (2d Cir. 1996)).
In his Complaint, Plaintiff alleges a violation of his "privacy rights." (Compl. 8.) Colorado law, which controls here, recognizes three distinct "invasion of privacy" torts: (1) unreasonable intrusion upon the seclusion of another ("seclusion"); (2) unreasonable publicity given to another's private life ("disclosure"); and (3) appropriation of another's name or likeness ("appropriation"). Pearson v. Kancilia, 70 P.3d 594, 598-99 (Colo. App. 2003) (citing Denver Publishing Co. v. Bueno, 54 P.3d 893, 897 (Colo. 2002)). Only the latter two invasion of privacy torts appear to be relevant here. See id. at 599 (observing that a viable "seclusion" claim requires a showing that "another has intentionally intruded, physically or otherwise, upon the plaintiff's seclusion or solitude"). To state a claim for invasion of privacy through "disclosure," a plaintiff must allege the following: "(1) the fact or facts disclosed [were] private in nature; (2) the disclosure [was] made to the public; (3) the disclosure [was] one which would be highly offensive to a reasonable person; (4) the fact or facts disclosed [were not] of legitimate concern to the public; and (5) the defendant acted with reckless disregard of the private nature of the fact or facts disclosed." Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371, 377 (Colo. 1997) (en banc). The required elements of an invasion of privacy by "appropriation" claim are: "(1) the defendant used the plaintiff's name or likeness; (2) the use of the plaintiff's name or likeness was for the defendant's own purposes or benefit, commercially or otherwise; (3) the plaintiff suffered damages; and (4) the defendant caused the damages incurred." Joe Dickerson & Assocs., LLC v. Dittmar, 34 P.3d 995, 1002 (Colo. 2001) (en banc).
In determining whether the United States can be held liable under the FTCA, the court must apply "the law of the place where the act or omission complained of occurred." 28 U.S.C. § 1346(b). Here, there is no dispute that the conduct at issue took place in Colorado. (DHS First Mot. 19; Doc. No. 27 at 5.)
In this case, Plaintiff does not identify any facts upon which to base a claim of invasion of privacy by either disclosure or appropriation. To the extent that Yang attempts to bring a "disclosure" claim, he has failed to allege sufficient facts from which to infer that his "pictures" were private in nature. See Ozer, 940 P.2d at 377 (observing that an "arrest warrant which was part of court file is public record and could be disclosed without violating right of privacy"); see also Purzel Video GmbH v. Smoak, 11 F. Supp. 3d 1020, 1028 (D. Colo. 2014) ("Defendant Smoak has failed to plead [a disclosure] claim with specificity, as it remains unclear what fact or facts Plaintiff has disclosed that are private in nature."). To the extent that Yang is asserting an "appropriation" claim, his allegations fail to show that any DHS Defendant actually took action to disclose his "pictures." Further, Plaintiff's allegation that the disclosure of his image made "his depression worse" is a "bare assertion," which does not suffice at the pleading stage to establish the third or fourth elements of his claim. See Seale v. Peacock, No. 19-cv-03559-KMT, 2020 WL 5076749, at *3 (D. Colo. Aug. 27, 2020) (dismissing an invasion of privacy by appropriation claim, where the plaintiff failed to allege how the defendants' alleged access to his business software account caused him "mental anguish"); Quinn v. CCS Holding Bus. Trust, No. 19-cv-01417-STV, 2019 WL 6838953, at *4 (D. Colo. Dec. 16, 2019) ("The Complaint makes the conclusory allegation that Defendants' appropriation 'damaged Plaintiff in the sum certain amount of $7,650,000.000,' but fails to identify how Plaintiff was damaged by Defendants' use of Plaintiff's name in collection letters.").
On this record, then, Plaintiff has failed to plausibly allege any basis for the DHS Defendants' liability under Colorado tort law. Accordingly, to the extent that Plaintiff's fifth claim is lodged under the FTCA, the claim should be dismissed on that basis, as well. See Trentadue, 397 F.3d at 862 (affirming the dismissal of an FTCA claim on that basis). III. Individual Capacity Claims
A. Defendant McGrail
The Complaint's fourth claim, titled "Mr. Yang has been detained for [an] additional nine months due to the Immigration Judge's fault," is asserted against Defendant McGrail, in her individual capacity. (Compl. 7.) In the fourth claim, Yang appears to allege a violation of his Fifth Amendment due process rights. See Zahedi v. INS, 222 F.3d 1157, 1164 n.6 (9th Cir. 2000) (stating that "immigration proceedings as a whole" are governed "by the Fifth Amendment's Due Process Clause"). Specifically, Plaintiff alleges that Defendant McGrail "denied his asylum application" during his August 28, 2019 immigration hearing, and in doing so, failed to issue a written transcript of her ruling, "because she went off the record." (Id.) Plaintiff complains that, due to Defendant McGrail's actions, he was forced to undertake an unnecessary appeals process, which caused him to endure an extra nine months of detention, and "made his depression worse." (Id.) Defendant McGrail now moves to dismiss this claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that there is no recognized Bivens remedy for Plaintiff's alleged injuries. (McGrail Mot. 5-9.) In addition, Defendant McGrail invokes qualified immunity with respect to this claim. (Id. at 14-16.)
To the extent that the fourth claim is asserted against Defendant McGrail, in her official capacity, the claim should be dismissed for lack of subject matter jurisdiction, as discussed supra.
In Bivens, the United States Supreme Court recognized an implied cause of action for damages against federal officers who were alleged to have violated an inmate's Fourth Amendment rights. 403 U.S. at 397. Since Bivens, the Court has found such a remedy to be available in two additional contexts: (1) a Fifth Amendment Due Process claim against a United States Congressman by an administrative assistant who claimed she was fired because of her gender; and (2) an Eighth Amendment deliberate indifference claim against federal prison guards by a prisoner's estate for failing to treat the prisoner's asthma. See Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment); Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment). "These three cases—Bivens, Davis, and Carlson—represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself." Ziglar v. Abbasi, --- U.S. ----, 137 S. Ct. 1843, 1855 (2017). The Court has subsequently "urged caution before extending Bivens remedies into any new context." Id. at 1857 (quoting Corr. Services Corp. v. Malesko, 534 U.S. 61, 74 (2001)); see Peoples v. CCA Det. Centers, 422 F.3d 1090, 1096 (10th Cir. 2005) ("[T]he purpose of Bivens is only 'to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy' for harms caused by an individual officer's unconstitutional conduct.").
"Whether a Bivens action exists for a given constitutional violation must be decided on a case-by-case basis." Burton-Bey v. United States, 100 F.3d 967, 1996 WL 654457, at *1 (10th Cir. Nov. 12, 1996) (unpublished) (citing Beattie v. Boeing Co., 43 F.3d 559, 564 (10th Cir. 1994)). In evaluating whether a Bivens claim can proceed, the first step is to determine whether the case "presents a new Bivens context." Ziglar, 137 S. Ct. at 1859-60. The "proper test" for that inquiry is whether "the case is different in a meaningful way from previous Bivens cases decided by the Court." Id. at 1859. If so, "then the context is new." Id. "A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disrupted intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider." Id. at 1860.
In this case, there is no question that the Fifth Amendment issues raised by Plaintiff differ in meaningful ways from the previous Bivens contexts. Of the trio of Bivens cases, the only one that even addressed the Fifth Amendment was Davis, where an administrative assistant brought an equal protection claim against her former employer, a United States Congressman, alleging that she was fired, because she was a woman. 442 U.S. at 230-31. In this case, by contrast, Plaintiff asserts a due process claim against a federal immigration judge, based on the judge's purported failure to produce a written transcript with respect to an oral decision rendered at an immigration hearing. (Compl. 7.) Both the context of this case, which implicates immigration law, as well as the category of the defendant, are markedly different from Davis. See Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020) (finding "a world of difference" between Fifth Amendment claims brought by the parents of a Mexican child shot across the United States-Mexico border by Border Patrol agents, and the Fifth Amendment claims asserted in Davis); Tun-Cos v. Perrotte, 922 F.3d 514, 525 (4th Cir. 2019) (holding that the plaintiffs' Fifth Amendment claims against ICE agents had "no analogue in the Supreme Court's prior Bivens cases," and noting that the plaintiffs sought "to extend Bivens liability to a new category of defendants—ICE agents, who are charged with the enforcement of immigration laws"); Medina v. Danaher, 445 F. Supp. 3d 1367, 1371-72 (D. Colo. 2020) (finding a new Bivens context, where the plaintiff sought "to impose individual liability on an ICE officer for enforcing the federal immigration laws"); see also Ziglar, 137 S. Ct. at 1864 (observing that "even a modest extension" of the Bivens remedy "is still an extension").
Because this case presents a new Bivens context, the court must determine whether "special factors" counsel hesitation in expanding Bivens, including the existence of an alternative remedial structure. Ziglar, 137 S. Ct. at 1857-58. Defendant McGrail, in her motion to dismiss, presents two factors that she claims counsel hesitation here: (1) the availability of alternative remedies, as a means for Plaintiff to seek redress for his injuries; and (2) the unique nature of immigration issues. (McGrail Mot. 8-9.)
Here, there is no question that Yang has, or has had, various alternative remedies available to him with respect to his fourth claim for relief. By Yang's own admission, the Board of Immigration Appeals, on his appeal, "found that the Immigration Judge's oral decision was missing," and then "remanded the case," consistent with agency procedures, so as to obtain a written transcript. (Compl. 7.) Further, to the extent that Plaintiff suffered a concrete injury stemming from the delay in obtaining that transcript, he could lodge his claim under the FTCA. See Robbins v. Wilkie, 300 F.3d 1208, 1213 (10th Cir. 2002) (holding that "the FTCA and a Bivens claim are alternative remedies"). In addition, if the written transcript had never ultimately been produced, Plaintiff could have sought injunctive relief. See Malesko, 534 U.S. at 74 (declining to extend Bivens remedy, where injunctive relief was available). The fact that some alternative remedies do not award monetary damages, or have different procedures, or ultimately do not prove successful, is irrelevant. Ziglar, 137 S. Ct. at 1865; Vega v. United States, 881 F.3d 1146, 1155 (9th Cir. 2018).
The written transcript of Defendant McGrail's August 28, 2019 ruling was apparently completed, and her decision was then reissued, on February 18, 2020, which was six months prior to Plaintiff's filing of this lawsuit. (McGrail Mot. Ex. A, Doc. No. 22-1, at ¶ 6.)
And, certain other factors counsel hesitation as to the expansion of Bivens in this case. Specifically, "immigration issues have the natural tendency to affect diplomacy, foreign policy, and the security of the nation, which [] counsels hesitation in extending Bivens." Mirmehdi v. United States, 689 F.3d 975, 982 (9th Cir. 2012) (quoting Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009)); see Medina, 445 F. Supp. 3d at 1373 ("[I]mmigration enforcement cases raise numerous special factors that counsel hesitation before expanding the Bivens remedy."). Further, immigration is "a context in which Congress has designed its regulatory authority in a guarded way, making it less likely that Congress would want the Judiciary to interfere." Tun-Cos, 922 F.3d at 526 (quoting Ziglar, 137 S. Ct. at 1858).
Accordingly, on this record, the Bivens remedy should not be extended to Yang's Fifth Amendment claim against Defendant McGrail. Therefore, Defendant McGrail's motion to dismiss that claim, under Rule 12(b)(6), should be granted.
Because no Bivens remedy exists, there is no need to address whether Defendant McGrail would be entitled to qualified immunity. See Sossaman v. Lone Star State of Tex., 560 F.3d 316, 327 (5th Cir. 2009) ("If no private right of action exists against the defendants in their individual capacities, then a qualified immunity . . . analysis would be unnecessary."); see also Medina, 445 F. Supp. 3d at 1370 ("Whether a Bivens remedy exists for Medina's claims is antecedent to the question of whether defendant is entitled to qualified immunity.") (alterations omitted).
B. Defendant Choate
Finally, liberally construed, the fifth claim, which alleges a violation of Yang's "privacy rights," is asserted against Defendant Choate, in his individual capacity. (Compl. 7-8.) However, to the extent that Yang brings this claim under Bivens, he has failed to allege adequate facts to "state a claim for violation of any rights secured . . . under the United States Constitution." Siegert v. Gilley, 500 U.S. 226, 227 (1991) (dismissing a Bivens claim, where the plaintiff alleged facts supporting only defamation, which "by itself, is a tort actionable under the laws of most States, but not a constitutional deprivation"); see Davis v. Bucher, 853 F.2d 718, 720-21 (9th Cir. 1988) (holding that a prison official's disclosure of an inmate's photographs of his nude wife did not implicate the federal constitution, and concluding that the allegations, instead, "present[ed] a controversy squarely within the ambit of state tort law protections"); Krasniqi v. Gonzales, 220 F. App'x 459, 464 (9th Cir. 2007) ("The DHS' disclosure of personal information does not constitute a wrong of constitutional magnitude."). Further, as explained supra, Yang has failed to allege any other basis for liability as to his fifth claim for relief. See Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009) ("The United States is the only proper defendant in an FTCA action."). Accordingly, to the extent that Plaintiff asserts his fifth claim against Defendant Choate, in his individual capacity, that claim should be dismissed, as well.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that "DHS Defendants' Motion to Dismiss Based on Mootness" (Doc. No. 45) be GRANTED. Specifically, Plaintiff's claims seeking "immediate release" should be denied as moot. It is further
RECOMMENDED that "DHS Defendants' Motion to Dismiss" (Doc. No. 23) be GRANTED, in part, and DENIED as moot, in part. Specifically, Plaintiff's claims seeking monetary damages against Defendants, in their official capacities, should be dismissed for lack of subject matter jurisdiction. Plaintiff's remaining claims for injunctive relief should also be dismissed for lack of subject matter jurisdiction. The Motion should be denied as moot in all other respects. It is further
RECOMMENDED that "Immigration Judge Elizabeth McGrail's Motion to Dismiss" (Doc. No. 22) be GRANTED, in part, and DENIED as moot, in part. Plaintiff's claim against Defendant McGrail, in her individual capacity, should be dismissed, with prejudice, for failure to state a claim. The Motion should be denied as moot in all other respects. It is further
RECOMMENDED that "Defendant Choate's Motion to Dismiss Plaintiff's Fifth Claim for Relief" (Doc. No. 25) be GRANTED. Plaintiff's claim against Defendant Choate, in his individual capacity, should be dismissed, with prejudice, for failure to state a claim. It is further
RECOMMENDED that this action be DISMISSED in its entirety.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 25th day of February, 2021.
BY THE COURT:
/s/_________
Kathleen M. Tafoya
United States Magistrate Judge