United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX, MAGISTRATE JUDGE
matter is before the Court on the following motions: (1)
Defendant Lawrence E. Castle's Motion to Dismiss
Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P.
12(b)(6) [#29] (“Castle's Motion”), (2)
Defendant Weishaupl's Motion to Dismiss the First Amended
Complaint [#33] (“Weishaupl's Motion”), (3)
Defendant Deutsche Bank National Trust Company's Motion
to Dismiss Plaintiff's First Amended Verified Complaint
[#35] (“Deutsche Bank's Motion”), (4)
Defendant Christina Whitmer's Motions to Dismiss the
First Amended Complaint Pursuant to F.R.Civ.P. 12(b)(6) [#40]
(“Whitmer's Motion”), (5) Defendant Robert J.
Hopp's Joining in the Castle Motion to Dismiss
Plaintiff's First Amended Complaint [#43]
(“Hopp's Motion”), (6) Defendant Cynthia
Mares' Motion to Dismiss First Amended Complaint [#58]
(“Mares' Motion”), and (7) Plaintiff's
Motion to Withdraw Judge Weishaupl's Status as Nominal
Defendant for Cause [#66] (“Motion to Change
Status”). Plaintiff filed a combined Response [#63] to
Defendants Deutsche Bank, Castle, and Hopp's Motions.
These Defendants' Replies are at [#73, #75, and #76],
respectively. Plaintiff appears to have attempted to file a
Response to Weishaupl's Motion, but the document attached
is solely the Certificate of Service. See [#57].
Plaintiff filed a Response [#60] to Defendant Mares'
Motion, to which she filed a Reply [#71]. Defendant Weishaupl
filed a Response [#78] in opposition to the Motion to Change
Status, and Plaintiff filed a Reply [#81]. No Response or
Reply was filed with respect to Defendant Whitmer's
to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c)(3),
the Motions have been referred to the undersigned for
recommendation. See [#30, #34, #36, #41, #45, #59,
#67]. Having reviewed all motions and related briefing, the
entire case file, the relevant law, and being sufficiently
advised in the premises, the Court respectfully
RECOMMENDS that all Defendants' Motions
be GRANTED, all claims be
DISMISSED, and that Plaintiff's Motion
to Change Status be DENIED.
who is a pro se litigant,  claims an interest in residential
property that has been foreclosed on and sold. See Order
Approving Sale [#35-7]. Plaintiff initiated these
proceedings on September 6, 2016, see Complaint
[#1], and filed the Amended Complaint [#26] on October 18,
2016. Plaintiff filed a Motion for Temporary Restraining
Order and Preliminary Injunction on December 12, 2016.
See [#61]. On December 16, 2016, the Court denied
the portion of Plaintiff's motion seeking a temporary
restraining order. See [#64]. On December 30, 2016,
the Court denied the portion of Plaintiff's motion
seeking a preliminary injunction. See [#77].
was given two opportunities to amend the Amended Complaint.
On October 26, 2016, Plaintiff filed a Motion to File a
Second Amended Complaint [#31], which was denied without
prejudice on November 14, 2016, because the Motion was
incomplete, as it was obviously missing pages and lacked
Plaintiff's signature block. See Minute Order
[#52]. Plaintiff was told in the Minute Order that “he
may re-file a complete version” of the motion. He did
not do so. Plaintiff was again advised in a Minute Order
entered on April 12, 2017, that his Amended Complaint [#26]
remained the operative pleading, and he was allowed until May
3, 2017, to file a proper motion for leave to amend. See
Minute Order [#96]. To date, Plaintiff has not done so.
raises eight claims for relief in the Amended Complaint: (1)
violation of the Fourteenth Amendment pursuant to 42 U.S.C.
§ 1983, (2) conspiracy pursuant to § 1983, (3)
fraud, (4) unjust enrichment, (5) a request for injunctive
relief pursuant to Ex Parte Young, (6) violation of
the Fair Debt Collection Practices Act, (7) adverse
possession, and (8) malicious abuse of process. Plaintiff
alleges that § 38-38-101 of the Colorado Revised
Statutes as amended by HB-1387, as well as Colorado's
foreclosure procedures under Rule 120, violate due process
and equal protection pursuant to the Fourteenth Amendment.
Plaintiff brings these claims against the following
Defendants: (1) the lender (Defendant Deutsche Bank), (2) the
State Court District Judge who presided over his foreclosure
proceedings (Defendant Weishaupl), (3) two Public Trustees
(Defendants Whitmer and Mares), and (4) two private attorneys
(Defendants Castle and Hopp).
Federal Rule of Civil Procedure 12(b)(1)
purpose of a motion to dismiss pursuant to Rule 12(b)(1) is
to test whether the Court has jurisdiction to properly hear
the case before it. Because “federal courts are courts
of limited jurisdiction, ” the Court must have a
statutory basis to exercise its jurisdiction. Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P.
12(b)(1). Statutes conferring subject-matter jurisdiction on
federal courts are to be strictly construed. F & S
Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir.
1964). “The burden of establishing subject-matter
jurisdiction is on the party asserting jurisdiction.”
Id. (citing Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994)).
motion to dismiss pursuant to Rule 12(b)(1) may take two
forms: facial attack or factual attack. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). When
reviewing a facial attack on a complaint, the Court accepts
the allegations of the complaint as true. Id. By
contrast, when reviewing a factual attack on a complaint, the
Court “may not presume the truthfulness of the
complaint's factual allegations.” Id. at
1003. With a factual attack, the moving party challenges the
facts upon which subject-matter jurisdiction depends.
Id. The Court therefore must make its own findings
of fact. Id. In order to make its findings regarding
disputed jurisdictional facts, the Court “has wide
discretion to allow affidavits, other documents, and a
limited evidentiary hearing.” Id. (citing
Ohio Nat'l Life Ins. Co. v. United States, 922
F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman,
825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's
reliance on “evidence outside the pleadings” to
make findings concerning purely jurisdictional facts does not
convert a motion to dismiss pursuant to Rule 12(b)(1) into a
motion for summary judgment pursuant to Rule 56. Id.
Federal Rule of Civil Procedure 12(b)(6)
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test “the sufficiency of the allegations within the
four corners of the complaint after taking those allegations
as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a
complaint may be dismissed for “failure to state a
claim upon which relief can be granted”). “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.” Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(citation omitted). To withstand a motion to dismiss pursuant
to Rule 12(b)(6), “a complaint must contain enough
allegations of fact ‘to state a claim to relief that is
plausible on its face.'” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Bell Atlantic Co. v. Twombly, 550 U.S. 544, 570
(2007)); see also Shero v. City of Grove, Okla., 510
F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must
plead sufficient facts, taken as true, to provide
‘plausible grounds' that discovery will reveal
evidence to support the plaintiff's allegations.”
(quoting Twombly, 550 U.S. at 570)). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “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. (brackets in original;
internal quotation marks omitted).
survive a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint “must be enough to
raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, ” a factual
allegation has been stated, “but it has not show[n][
]that the pleader is entitled to relief, ” as required
by Fed.R.Civ.P. 8(a). Iqbal, 552 U.S. at 679 (second
brackets added; citation and internal quotation marks
Defendant Weishaupl's Motion to Dismiss
Amended Complaint, Plaintiff alleges that Defendant
Weishaupl, the State Court District Judge who presided over
his foreclosure proceeding, made a misstatement with respect
to the rule governing the proceeding, violated principles of
due process, ignored case law, and engaged in
“taking” Plaintiff's property. See,
e.g., Am. Compl. [#26] ¶¶ 8, 14, 16,
59-65, 70, 107-119, 130.
extent that Plaintiff sues Defendant Weishaupl in her
official capacity, “[s]uits against state officials in
their official capacit[ies] should be treated as suits
against the state.” Hafer v. Melo, 502 U.S.
21, 25 (1991) (citing Kentucky v. Graham, 473 U.S.
159, 166 (1985)); see also Duncan v. Gunter, 15 F.3d
989, 991 (10th Cir.1994) (stating that state officers sued in
their official capacity are not “persons” subject
to suit under 42 U.S.C. § 1983). Pursuant to the
Eleventh Amendment, the Court lacks subject matter
jurisdiction to adjudicate an action brought by a citizen of
a state against the state itself, its agencies, or its
officials in their official capacities. See Johns v.
Stewart, 57 F.3d 1544, 1552 (10th Cir.1995). Further,
Eleventh Amendment immunity bars claims against individuals
sued in their official capacities “for money damages
and relief for prior acts.” See Hunt v. Colo.
Dep't. of Corr., 271 F. App'x 778, 781 (10th
Cir. 2008). Therefore, the Court respectfully
recommends that any claims made against
Defendant Weishaupl in her official capacity be
dismissed without prejudice for lack of
subject matter jurisdiction on the basis of Eleventh
Amendment immunity. See Brereton v. Bountiful City
Corp., 434 F.3d 1213, 1216 (10th Cir. 2006)
(“[W]here the district court dismisses an action for
lack of jurisdiction, . . . the dismissal must be without
prejudice.” (citations omitted)).
principles of judicial and quasi-judicial immunity apply to
individual-capacity claims. Crowe & Dunlevy, P.C. v.
Stidham, 640 F.3d 1140, 1156 (10th Cir. 2011) (citation
omitted). “[A]bsolute immunity is necessary so that
judges can perform their functions without harassment or
intimidation.” Van Sickle v. Holloway, 791
F.2d 1431, 1435 (10th Cir. 1986). A judge will lose judicial
immunity only for (1) “nonjudicial actions,
i.e., actions not taken in the judge's judicial
capacity” or (2) judicial actions “taken in the
complete absence of all jurisdiction.” Mireles v.
Waco, 502 U.S. 9, 11-12 (1991). “[T]he factors
determining whether an act by a judge is a
‘judicial' one relate 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.” Stump v. Sparkman, 435
U.S. 349, 362 (1978).
Defendant Weishaupl's actions were indisputably judicial
in nature, as Plaintiff has only challenged the propriety of
her actions in connection with the foreclosure proceeding
over which she presided. See Brackhahn v. Eder, No.
13-cv-00141-CMA-KMT, 2013 WL 2394980, at *5 (D. Colo. May 31,
2013) (allegations arising out of a judge's official
duties in handling a foreclosure action and authorizing a
sale constitute judicial acts normally performed by a judge).
Additionally, “the doctrine of judicial immunity now
extends to suits against judges where a plaintiff seeks not
only monetary relief, but injunctive relief as well[,
]” except where “a declaratory decree was
violated or declaratory relief was unavailable.”
Lawrence v. Kuenhold, 271 F. App'x 763, 766 n.6
(10th Cir. 2008); Brackhahn, 2013 WL 2394980, at *4.
Plaintiff does not allege, nor does it otherwise appear, that
a declaratory decree was violated or that declaratory relief
was unavailable to Plaintiff. Therefore, the Court
respectfully recommends that the individual-capacity claims
against Defendant Weishaupl be dismissed with prejudice on
the basis of judicial immunity. See Flanders v. Snyder
Bromley, No. 09-cv-01623-CMA-KMT, 2010 WL 2650025, at *6
(D. Colo. Apr. 9, 2010) (stating that judicial immunity
applies to both monetary and injunctive relief sought against
a judicial officer); Brereton v. Bountiful City
Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A
dismissal with prejudice is appropriate where a complaint
fails to state a claim under Rule 12(b)(6) and granting leave
to amend would be futile.”).
§ 1983 Claims
state a claim under § 1983, Plaintiff must allege
deprivation of a right secured by the Constitution or laws of
the United States and that the deprivation was committed
“under color of state law.” See Brokers'
Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d
1125, 1143 (10th Cir. 2014) (citing Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)).
Claim One: Individual § 1983 Claims
Plaintiff's first claim brought pursuant to § 1983,
he alleges that Defendants violated his Fourteenth Amendment
procedural and due process rights. In essence, Plaintiff
alleges that the legislation amending Colorado's
foreclosure statute lowered creditors' standard of proof
and thereby violated Plaintiff's - and other
homeowners' - due process rights, that Rule 120 is
procedurally defective under the Fourteenth Amendment, and
that his own Rule 120 proceedings were conducted “in a
manner inconsistent with due process.” Am.
Compl. [#26] at 9, 10, 15. As relief, Plaintiff seeks an
order voiding the foreclosure, a declaration that Rule 120 is
procedurally defective, and a declaration that the amendments
to Colorado's foreclosure statute are unconstitutional.
See Am. Compl. [#26] at 34-35. These aspects of
Claim One will be addressed in turn.
Defendants argue that Plaintiff's claims are barred by
the Rooker-Feldman doctrine. See Weishaupl's
Motion [#33] at 9-11; Deutsche Bank's
Motion [#35] at 7-8; Mares' Motion [#58] at
7. The Rooker-Feldman doctrine prevents
“state-court losers” from seeking review and
rejection of a state-court judgment “rendered before
the district court proceedings commenced.” Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284 (2005); see also Miller v. Deutsche Bank Nat'l
Trust Co., 666 F.3d 1255, 1261 (10th Cir. 2012).
“Rooker-Feldman precludes federal district
courts from effectively exercising appellate jurisdiction
over claims ‘actually decided by a state court' and
claims ‘inextricably intertwined' with a prior
state-court judgment.” Mo's Express, LLC v.
Sopkin, 441 F.3d 1229, 1233 (10th Cir. 2006) (citations
omitted). Such prohibited review of state court judgments
“includ[es] those that authorize and confirm the sale
of property.” Yokomizo v. Deutsche Bank Securities,
Inc., No. 11-cv-01630-CMA-KLM, 2011 WL 5024899, at *5
(D. Colo. Oct. 21, 2011).
application of the Rooker-Feldman doctrine to a Rule
120 foreclosure proceeding is dependent on a few variables,
including when the federal case was initiated and what relief
is sought by the plaintiff. The Tenth Circuit Court of
Appeals has applied the Rooker-Feldman doctrine to a
plaintiff's claim arising out of a Rule 120 proceeding,
where the plaintiff was “not seeking to enjoin the sale
of her home; rather, she [was] attempting to completely undo
the foreclosure and eviction proceedings, which were both
final before she ever initiated [the lawsuit].”
Dillard v. Bank of New York, 476 F. App'x 690,
692 n.3 (10th Cir. 2012). Here, the foreclosure sale was
approved by the state court on September 16, 2016, but
Plaintiff initiated this lawsuit several days prior, on
September 6, 2016. See Order Approving Sale
[#35-7]; Compl. [#1]. Similar to the
Dillard plaintiff, Plaintiff in this matter does not
request an injunction preventing the foreclosure of his
house; he asks for a declaratory judgment that the
foreclosure of his property was void ab initio, and
“[t]o vacate and set aside any foreclosure sale that
may occur . . . .” Am. Compl. [#26] at 34, 35.
Thus, in effect, Plaintiff is attempting to completely undo
the foreclosure proceeding, which became final during the
early stages of this litigation. Therefore, regardless of the
fact that Plaintiff initiated this lawsuit several days prior
to the entry of the Order Approving Sale, the
Rooker-Feldman doctrine precludes this Court's
subject matter jurisdiction over review of the Rule 120
proceeding in dispute because the foreclosure proceeding has
fully concluded, and because the relief that Plaintiff seeks,
i.e., declaring the foreclosure void and vacating
the foreclosure sale, would completely undo the foreclosure
proceeding. See Lewis v. Wells Fargo Bank NA, No.
11-CV-03387-CMA-KLM, 2012 WL 4097709, at *6-7 (D. Colo. Aug.
21, 2012) (finding that Rooker-Feldman applied where
order authorizing foreclosure sale entered after initiation
of federal court case because “entire foreclosure
process” had concluded), report and recommendation
adopted, No. 11-CV-03387-CMA-KLM, 2012 WL 4097739 (D.
Colo. Sept. 17, 2012).
Court now addresses Plaintiff's argument that, because
Rule 120 proceedings are limited in scope,
Rooker-Feldman does not apply because matters such
as due process claims cannot be raised in a Rule 120
proceeding. See Response [#63] at 8. Plaintiff's
argument misses the mark; the question is not whether the
same claims before this Court were considered by the state
court, but whether granting the relief that Plaintiff
requests would reverse the state court proceedings. Thus, for
the reasons discussed above, to the extent that Plaintiff
seeks to undo his foreclosure proceedings, he challenges the
judicial process previously undertaken by the state courts.
Accordingly, the Court respectfully recommends that Claim
One, to the extent that Plaintiff seeks to undo his
foreclosure proceeding, be dismissed without prejudice
pursuant to the Rooker-Feldman doctrine. See,
e.g., Driskell v. Thompson, 971 F.Supp.2d 1050,
1063 (D. Colo. 2013). On the contrary,
Rooker-Feldman does not generally bar the review of
a plaintiff's facial challenge to the constitutionality
of a state law. Kenman Engineering v. City of Union,
314 F.3d 468, 476 (10th Cir. 2002). Plaintiff's claims
that Rule 120 and the amendment to Colorado's foreclosure