United States District Court, D. Colorado
GILBERT T. TSO, a natural person and an American, Plaintiff,
REBECCA MURRAY, a/k/a Tso, individually, TANYA AKINS, individually, SHERR PUTTMANN AKINS LAMB PC, law firm, JEANNIE RIDINGS, individually, KILILIS RIDINGS & VANAU PC, a law firm, RUSSELL MURRAY, individually, DENA MURRAY, individually, JOANNE JENSEN, individually, RICHARD F. SPIEGLE, PSY.D., individually, ELIZABETH A. STARRS, individually, DAVID P. BRODSKY, individually, CHARLES D. JOHNSON, individually, ROSS B.H. BUCHANAN, individually, DAVID H. GOLDBERG, individually, MONICA JACKSON, individual and official capacity, LARA DELKA, individual and official capacity, CHRISTIAN MADDY, individual and official capacity, JENNIFER ADELMANN, individual and official capacity, DON MARES, official capacity, BARRY PARDUS, official capacity, MICHAEL DIXON, official capacity, CYNTHIA COFFMAN, official capacity, 19th JUDICIAL CIRCUIT COURT, LAKE CO., IL, 2nd DISTRICT COURT, DENVER COUNTY, CO, DENVER DEPT. OF HUMAN SERVICES, COLORADO DEPT. OF HUMAN SERVICES, COLORADO DIVISION OF MOTOR VEHICLES, and CITY AND COUNTY OF DENVER, Defendants.
ORDER ADOPTING RECOMMENDATION OF MAGISTRATE
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's Objections
to Magistrate Judge's Recommendations and Motion for
Court Review of Magistrate's Order [Docket No. 162],
wherein plaintiff Gilbert T. Tso seeks review of United
States Magistrate Judge Scott T. Varholak's Order and
Recommendation [Docket No. 158] dated September 26, 2018.
This matter also comes before the Court on plaintiff's
Motion for Leave to Amend Complaint [Docket No. 161] dated
October 9, 2018.
Varholak recommends granting six motions to dismiss
(collectively, the “motions to dismiss”), filed
by: (1) defendants the 19th Judicial Circuit Court, Lake
County, State of Illinois (the “Illinois 19th Judicial
Circuit”), Charles D. Johnson, and David P. Brodsky
(collectively, the “Illinois judicial
defendants”) [Docket No. 98]; (2) defendants Elizabeth
A. Starrs, Ross B.H. Buchanan, David H. Goldberg, Barry
Pardus, Michael Dixon, Cynthia Coffman, the 2nd District
Court, Denver County, Colorado (the “Denver District
Court”), the Colorado Department of Human Services
(“CO DHS”), and the Colorado Division of Motor
Vehicles (“DMV”) (collectively, the
“Colorado defendants”) [Docket No. 100]; (3)
defendants Tanya Akins, Sherr Puttmann Akins Lamb, P.C.,
Jeannie Ridings, and Kililis Ridings & Vanau, P.C.
(collectively, the “attorney defendants”) [Docket
No. 102]; (4) defendants City and County of Denver
(“Denver”), Denver Department of Human Services
(“Denver DHS”), Monica Jackson, Lara Delka,
Christian Maddy, Jennifer Adelmann, and Don Mares
(collectively, the “Denver defendants”) [Docket
No. 103]; (5) defendant Dr. Richard F. Spiegle [Docket No.
105]; and (6) defendants Rebecca Murray, Russell Murray, Dena
Murray, and Joanne Jensen (collectively, the “Murray
defendants”) [Docket No. 107]. Judge Varholak
recommends denying plaintiff's Motion to Set Aside the
Scheduling Order for Amendments to the Complaint and Motion
for Leave to Amend and Supplement Complaint (the
“motion to amend”) [Docket No. 117]. Judge
Varholak also ordered that plaintiff's Motion for
Judicial Notice [Docket No. 137] be granted in part and
denied in part.
filed a timely Objection to the Magistrate Judge's
Recommendation and Motion for Court Review of
Magistrate's Order [Docket No. 162]. The defendants filed
timely Responses to the Objection. Docket Nos. 165, 168, 169,
170, 171, 172.
parties object to the facts as set forth by Judge Varholak in
his recommendation [Docket No. 158]. See Docket Nos.
162, 165. Those facts are drawn from the allegations in
plaintiff's Third Amended Verified Complaint [Docket No.
96], which are to be taken as true in considering a motion to
dismiss. Brown v. Montoya, 662 F.3d 1152, 1162 (10th
Cir. 2011). Accordingly, the Court adopts and incorporates
those facts as if set forth herein. See Docket No.
158 at 3-17. The Court briefly restates background relevant
to this case's procedural history here.
Prior federal litigation (Tso I)
October 3, 2016, Mr. Tso filed a lawsuit against many of the
same defendants named in this case, asserting similar claims
and arising out of the same domestic proceedings in Illinois
and Colorado. See Tso v. Murray, No.
16-cv-02480-WJM-STV (“Tso I”). Mr. Tso
alleged that defendants violated his Fifth and Fourteenth
Amendment rights, that defendants violated and conspired to
violate the Racketeer Influenced and Corrupt Organizations
Act (“RICO”), 18 U.S.C. § 1961 et
seq., and that Colorado Revised Statute § 14-10-124
is unconstitutional. Docket No. 158 at 9. Magistrate Judge
Shaffer recommended that Mr. Tso's claims be dismissed,
and Judge Martinez adopted his recommendation in its
entirety. Id. at 10. Though all claims have been
dismissed, an appeal is currently pending before the Tenth
Circuit, and a motion for relief filed by Mr. Tso is
currently pending before Judge Martinez. Id.
Judge Shaffer's recommendation in Tso I was
pending, Mr. Tso filed the instant lawsuit. Id. He
has amended his complaint three times, with the operative
complaint being the Third Amended Complaint [Docket No. 96].
In granting Mr. Tso leave to file his then-proposed Third
Amended Complaint, the Court set May 4, 2018, as the deadline
to file any further amendments to the complaint. Docket No.
Tso's Third Amended Complaint, filed on April 17, 2018,
asserts five causes of action arising out of the Illinois and
Colorado domestic proceedings. See Docket No. 96.
Mr. Tso's first claim alleges that the Denver defendants,
Goldberg, Pardus, and the CO DHS violated the Fifth
Amendment's Takings Clause. Docket No. 158 at 11. Mr.
Tso's second, third, and fourth claims, all under RICO,
allege that the defendants engaged in three separate
racketeering schemes aimed at maximizing the amount of child
support obligations owed by Mr. Tso. Id. at 12-13.
Finally, Mr. Tso's fifth claim is a 42 U.S.C. § 1983
civil rights claim, alleging that the state and local
agencies in Colorado, along with the defendants sued in their
official capacities, violated Mr. Tso's substantive,
procedural, and statutory rights. Id. at 13. Mr. Tso
seeks a combination of damages and prospective and injunctive
relief. Id. at 11-13.
filed six motions to dismiss. See Docket Nos. 98,
100, 102, 103, 105, and 107. Defendants assert that (1) the
Court lacks subject-matter jurisdiction over Mr. Tso's
claims pursuant to both the domestic relations exception and
the Rooker-Feldman doctrine; (2) the Court lacks
personal jurisdiction over the Illinois judicial defendants
and the Illinois attorneys; (3) some defendants are entitled
to judicial immunity, quasi-judicial immunity, qualified
immunity, or are immune from suit under the 11th Amendment;
(4) Mr. Tso's allegations fail to state a valid Fifth
Amendment, RICO, or Fourteenth Amendment claim; (5) Mr.
Tso's § 1983 claim is barred by the statute of
limitations; (6) Mr. Tso's claims are barred by res
judicata and collateral estoppel because they are identical
to those raised in Tso I; and (7) Mr. Tso's
Third Amended Complaint fails to comply with the “short
and plain statement” requirement of Fed.R.Civ.P. 8(a).
Docket No. 158 at 13-16. Mr. Tso filed responses to each
motion to dismiss. See Docket Nos. 119, 120, 121,
122, 123, 124, and 129-1.
31, 2018, Mr. Tso filed a Motion to Amend [Docket No. 117].
He filed a supplemented/amended version of that motion
[Docket No. 128] seven days later.
September 26, 2018, Judge Varholak issued his Recommendation
that the Court grant the motions to dismiss, deny Mr.
Tso's motion to amend, and dismiss the action as to all
defendants and all claims. Docket No. 158. On October 9,
2018, Mr. Tso filed another Motion for Leave to Amend his
complaint. Docket No. 161. On October 10, 2018, Mr. Tso filed
his Objection to the Recommendation. Docket No. 162.
STANDARD OF REVIEW
Pro se status
Court construes papers filed by Mr. Tso liberally because he
is not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court should not be an advocate for a pro se
litigant, who must still comply with the fundamental
requirements of the Federal Rules of Civil Procedure. See
Hall, 935 F.2d at 1110.
reviewing magistrate judge orders on non-dispositive matters,
“[t]he district judge in the case must consider timely
objections and modify or set aside any part of the order that
is clearly erroneous or is contrary to law.” Fed R.
Civ. P. 72(a).
magistrate judge issues a recommendation on a dispositive
matter, 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 Property Known As
2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996).
To be sufficiently specific, an objection must
“enable the district judge to focus attention on
those issues - factual and legal - that are at the heart of
the parties' dispute.” See id. (quoting
Thomas v. Arn, 474 U.S. 140, 147 (1985)). In
conducting its review, “[t]he district court judge may
accept, reject, or modify the recommended decision, receive
further evidence, or recommit the matter to the magistrate
judge with instructions.” Id.
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) (“[i]t 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”).
motion under Fed.R.Civ.P. 12(b)(1) is a request for the Court
to dismiss a claim for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). A plaintiff bears the burden of
establishing that the Court has jurisdiction. Basso v.
Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974). When the Court lacks subject matter jurisdiction over
a claim for relief, dismissal is proper under Rule 12(b)(1).
See Jackson v. City and Cty. of Denver, No.
11-cv-02293-PAB-KLM, 2012 WL 4355556 at *1 (D. Colo. Sept.
12(b)(1) challenges are generally presented in one of two
forms: “[t]he moving party may (1) facially attack the
complaint's allegations as to the existence of subject
matter jurisdiction, or (2) go beyond allegations contained
in the complaint by presenting evidence to challenge the
factual basis upon which subject matter jurisdiction
rests.” Merrill Lynch Bus. Fin. Servs., Inc. v.
Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting
Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir.
2003)). The court may review materials outside the pleadings
without converting the Rule 12(b)(1) motion to dismiss into a
motion for summary judgment. Davis ex rel. Davis v.
U.S., 343 F.3d 1282, 1296 (10th Cir. 2003).