United States District Court, D. Colorado
Brooke Jackson Judge
December 9, 2016 a United States Postal Service supervisor
called 911 to report an unknown man was sleeping on the floor
of the Wellshire Post Office lobby with a knife sitting on a
nearby desk. The man, later determined to be the plaintiff,
Mr. Mark Alan Strepka, was subsequently arrested by Sergeant
Marcus Vigil. Mr. Strepka filed this 42 U.S.C § 1983
action against Sergeant Vigil, as well as Mathew Thompson,
the emergency medical technician dispatched to the post
office to perform a “welfare check” on Mr.
Strepka. Mr. Strepka alleges that the defendants searched and
seized him without reasonable suspicion or probable cause in
violation of his Fourth Amendment rights. He also claims that
Sergeant Vigil used excessive force in restraining him under
the circumstances. Finally, Mr. Strepka alleges that his
arrest was unlawful because Sergeant Vigil lacked probable
cause and had no jurisdiction to arrest Mr. Strepka on
federal post office property.
matter is before the Court on the July 24, 2019
Recommendation of Magistrate Judge Scott T. Varholak, ECF No.
64. The recommendation addresses defendants' motions to
dismiss, ECF No. 18, ECF No. 22, filed by defendants Marcus
Vigil and Mathew Thompson, respectively. Judge Varholak
recommends that I grant defendants' motions to dismiss
with regard to all of plaintiff's claims. The
recommendation is incorporated herein by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P.
recommendation advised the parties that specific written
objections were due within fourteen (14) days after being
served with a copy of the recommendation, and that failure to
make timely objections may bar de novo review by the district
judge of the magistrate judge's proposed findings and
recommendations. ECF No. 64. On August 12, 2019, the day that
objections were due, Mr. Strepka filed a request for
extension of time to file objections. In his request Mr.
Strepka stated that he was unable to file objections within
the original time limit because he was in medical isolation
on July 29, 2019. ECF No. 65. He also indicated that he
needed more time due to closures of the law library at the
Sterling Correctional Facility where he resides. Id.
Mr. Strepka asked this Court to grant a 30-day extension.
Because Mr. Strepka did not indicate how long he was in
medical isolation, how it affected his ability to object, how
long he was unable to access the law library, or how it
affected his ability to object, this Court granted Mr.
Strepka 14 additional days, rather than 30. ECF No. 66.
Despite this extension, Mr. Strepka did not file any
objections by the extended August 26, 2019 deadline.
the absence of timely objection, the district court may
review a magistrate . . . [judge's] report under any
standard it deems appropriate.” Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing
Thomas v. Arn, 474 U.S. 140, 150 (1985)) (stating
that “[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”).
Court has reviewed the Recommendation. Based on this review,
the Court concludes that the Magistrate Judge's analyses
and recommendations are correct, and that “there is no
clear error on the face of the record.” Fed.R.Civ.P. 72
advisory committee's note. Within its discretion, the
Court has also conducted a de novo review of Judge
Varholak's recommendation. Based upon that review, which
involved reading Mr. Strepka's complaint, ECF No. 1,
defendants' motions to dismiss, ECF No. 18, ECF No. 22,
Mr. Strepka's response to both motions, ECF No. 48, ECF
No. 49, and defendants' replies, ECF No. 51, ECF No. 52,
watching submitted body camera footage and the 911 call, ECF
No. 21, and reviewing relevant case law, I agree with
Judge Varholak's conclusions.
recommendation of Magistrate Judge Varholak, ECF No. 64, is
ACCEPTED and ADOPTED.
Defendants' motions to dismiss, ECF No. 18 and ECF No.
22, are GRANTED. Plaintiffs first claim is dismissed WITHOUT
PREJUDICE. Plaintiffs second and third claims are dismissed
 The court reviewed Heck v.
Humphrey, 512 U.S. 477 (1994), precluding § 1983
claims that would undermine a currently valid conviction or
sentence; McDonough v. Smith, 139 S.Ct. 2149 (2019)
and McCarty v. Gilchrist, 646 F.3d 1281 (10th Cir.
2011), holding that a § 1983 action does not accrue
until after a conviction or sentence has been invalidated;
Ross v. Neff, 905 F.2d 1349 (10th Cir. 1990),
finding a search unreasonable when conducted on tribal land,
outside the jurisdiction of the officer, and subsequent
cases, United States v. Jones, 701 F.3d 1300 (10th
Cir. 2012) and United States v. Sawyer,441 F.3d 890
(10th Cir. 2006), limiting Ross to those facts;
United States v. Bute, 43 F.3d 531 (10th Cir. 1994),
limiting the community caretaking warrant exception to
automobile searches, and United States v. Garner,
416 F.3d 1208 (10th Cir. 2005) revising the exception to
apply more broadly; United States v. Novitsky, 58
Fed.Appx. 432 (10th Cir. 2003), finding that a reasonable
officer would not have applied a pain compliance hold to an
individual who was complying with an officer request to exit
a vehicle and was not suspected of committing any crime nor
perceived as a threat to officer safety; Hawker v. Sandy
City Corp., 591 Fed.Appx. 669 (10th Cir. 2014), finding
officer did not use excessive force when she applied pain
compliance hold to a recently combative nine-year-old who was
grabbing her arm and not complying with verbal commands;
United States v. Soza, 686 Fed.Appx. 564 (10th Cir.
2017), finding that officers' brandishing weapons and
ordering defendant to put his hands on his head escalated an
investigative stop to an arrest, given ...