United States District Court, D. Colorado
MICHAEL W. BRUZGA, and CAROLE A. ZOLNICK, Plaintiffs,
COUNTY OF BOULDER, acting by and through the Board of County Commissioners, DEB GARDNER, in her official capacity as a Boulder County Commissioner, CINDY DOMENICO, in her official capacity as a Boulder County Commissioner, and ELISE JONES, in her official capacity as a Boulder County Commissioner, Defendants.
ORDER ADOPTING THE OCTOBER 19, 2018 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE MICHAEL E. HEGARTY
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
matter is before the Court on the Recommendation (Doc. # 55)
of United States Magistrate Judge Michael E. Hegarty, wherein
he recommends that this Court grant Defendants County of
Boulder, Deb Gardner, Cindy Domenico, and Elise Jones'
(collectively, “the County” or
“Defendants”) Motion to Dismiss First Amended
Complaint for Deprivation of Civil Rights (Doc. # 23).
Plaintiffs Michael Bruzga and Carole Zolnick filed an
Objection (Doc. # 56) to the Recommendation on November 2,
2018, and Defendants filed a Response (Doc. # 58) on November
16, 2018. For the reasons that follow, the Court adopts the
Recommendation and grants Defendants' Motion.
Magistrate Judge's Recommendation provides a recitation
of the factual and procedural background of this dispute and
is incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(B); Fed.R.Civ.P. 72(b). Accordingly, this
Order will reiterate only what is necessary to address
September 2013, Plaintiffs' home was damaged by heavy
rainfall and flooding that caused Boulder County to be
designated a local and federal disaster area. On December 4,
2014, Plaintiffs were awarded $32, 812 in Community
Development Block Grant-Disaster Recovery (CDBG-DR)
funds for the purpose of repairing the
flood-related damage. (Doc. 14-4 at 2.) Based on
conversations Plaintiffs had with personnel involved with the
CDBG-DR program, Plaintiffs believed that the remainder of
the $100, 000 maximum per residence had been reserved for
them as well. (Doc. # 14 at 6.)
February 3, 2015, Plaintiff Bruzga signed a Beneficiary
Agreement, which provided, inter alia, that
“Grantee's obligation under this Agreement to
provide funds for housing rehabilitation funding is expressly
made contingent on [Plaintiff Bruzga's] continued
eligibility for and compliance with Grantee's CDBG-DR
program.” (Doc. # 14-17.)
by letter dated March 11, 2016, the Board of County
Commissioners informed Plaintiff Bruzga that the CDBG-DR
award had been canceled. (Doc. # 14-22 at 1.) The letter
indicated that the reason for cancelation was Plaintiff
Bruzga's failure to comply with various CDBG-DR program
conditions. Specifically, the letter noted that Plaintiff
Bruzga had not complied with the Beneficiary Agreement
because he allegedly failed to: (1) “[r]emedy any
existing Land Use Code and Building Code violations relating
to unauthorized work at [Plaintiffs'] home”; (2)
“[r]epair . . . any damage or unauthorized work on
[Plaintiffs'] home”; and (3) submit a “signed
Contractor Addendum and . . . project schedule that would
assure the County that [Plaintiffs'] project was making
progress toward completion.” At that point, the County
had made payments to various contractors totaling $6, 869.58.
dispute the factual assertions in the termination letter,
arguing that the County's revocation of their benefits
was wrongful. (Doc. # 14 at 24.) In the operative First
Amended Complaint, Plaintiffs claim that the remainder of the
CDBG-DR award, and other funding they discussed with the
County, constitutes an entitlement which was deprived by the
County without due process of law. (Doc. # 14 at 22.)
Plaintiffs also seek injunctive relief under the Americans
with Disabilities Act (“ADA”). (Id. at
26.) In his Recommendation, Magistrate Judge Hegarty
concluded that that both claims should be dismissed. (Doc. #
55 at 2.)
Objection to the Recommendation specifically pertains to the
magistrate judge's analysis of Plaintiffs' due
process claim. (Doc. # 56.) Plaintiffs do not object to the
Recommendation regarding their ADA claim.
STANDARDS OF REVIEW
REVIEW OF A RECOMMENDATION
magistrate judge issues a recommendation on a dispositive
matter, Fed.R.Civ.P. 72(b)(3) requires that the district
judge “determine de novo any part of the magistrate
judge's [recommended] disposition that has been properly
objected to.” An objection is properly made if it is
both timely and specific. United States v. One Parcel of
Real Property Known As 2121 East 30th Street, 73 F.3d
1057, 1059 (10th Cir. 1996). Additionally, “[i]ssues
raised for the first time in objections to [a] magistrate
judge's recommendation are deemed waived.”
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.
1996). In conducting its review, “[t]he district judge
may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed.R.Civ.P.
MOTION TO DISMISS
Court may dismiss a complaint for failure to state a claim
upon which relief can be granted. Fed. R. Civ. Pro. 12(b)(6).
To withstand a Rule 12(b)(6) motion to dismiss, “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is facially plausible
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). The scope of the
allegations may not be “so general that they encompass
a wide swath of conduct, much of it innocent” or else
the plaintiff has “‘not nudged [his] claims
across the line from conceivable to plausible.'”
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (quoting Twombly, 550 U.S. at 570). A
plaintiff may not rely on mere labels or conclusions,
“and a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 ...