United States District Court, D. Colorado
ORDER ACCEPTING MAGISTRATE JUDGE'S
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Report and Recommendation
on Defendant's Motion to Dismiss (“the
recommendation”) filed by United States Magistrate
Judge N. Reid Neureiter on August 22, 2019 [Docket No. 20].
Magistrate Judge Neureiter recommends that the Court grant
defendants' Motion to Dismiss Complaint [Docket No. 12]
and dismiss all claims against defendants without prejudice
because the Court lacks subject-matter jurisdiction.
Plaintiff filed written objections. Docket Nos. 21,
Court will “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 specific enough to enable the Court “to
focus attention on those issues - factual and legal - that
are at the heart of the parties' dispute.”
United States v. 2121 East 30th Street, 73 F.3d
1057, 1059 (10th Cir. 1996). In light of plaintiff's
pro se status, the Court reviews her filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n.3
(10th Cir. 1991).
claim arises out of a restitution order entered against her
following a guilty plea in a criminal case in this District.
Docket No. 1 at 1-2, ¶¶ 4-5. Plaintiff's
restitution obligation was “joint and several”
with that of her co-defendants - Robert McAllister, Richard
Neiswonger, and Shannon Neiswonger. Id. at 2, ¶
5. Plaintiff alleges that her co-defendants have made
restitution in excess of the amount ordered to be paid by
her, yet defendants continue to make efforts to collect
restitution from her. Id. at 2-3, ¶¶ 9-11.
Plaintiff requests (1) an order directing defendants to
refund any funds collected from her in excess of the amount
of restitution ordered by the Court, (2) an order directing
the release of a lien on her property, and (3) an award of
attorney's fees and costs. Id. at 3. In the
recommendation, the magistrate judge concluded that
plaintiff's claims are properly construed as being
brought against the United States, as defendant Roger Wenthe
is sued in his official capacity as an Assistant United
States Attorney. Docket No. 20 at 3, n.3 (citing Hafer v.
Melo, 502 U.S. 21, 25 (1991), for the proposition that
“suits brought against governmental officers in their
official capacity should be treated as suits against the
government”). The magistrate judge further concluded
that, for claims challenging restitution orders through the
Mandatory Victims Restitution Act, 18 U.S.C. §§
3663A and 3664, the United States has not w aived sovereign
immunity. Docket No. 20 at 4-5. As a result, the magistrate
judge recommends that the Court rule that it does not have
subject-matter jurisdiction over plaintiff's claims.
objects to the recommendation, contending that her claims are
authorized by Bivens v. Six Unknown Agents, 403 U.S.
388 (1971). Docket No. 21 at 2, ¶ 4; Docket No. 25 at 2.
Plaintiff argues that, under Bivens, sovereign
immunity does not bar a lawsuit against a government official
who violated her rights in his individual capacity.
Id. The Court construes this as an argument that she
brings her claim against Wenthe in his individual capacity
and therefore her claim should be allowed to proceed. See
Smith v. United States, 561 F.3d 1090, 1099 (10th Cir.
2009) (“Bivens claims cannot be asserted
directly against the United States, federal officials in
their official capacities, or federal agencies.”
(citations omitted)). The only act that plaintiff alleges
Wenthe took was that he “filed a lien against
[plaintiff] in Arapahoe County.” Docket No. 1 at 1,
¶ 2. Plaintiff fails to explain how her complaint states
a Bivens claim against Wenthe in his individual
capacity. “At a minimum, in order to state a
Bivens claim, a plaintiff must show that the
defendant: (1) acted under color of federal law; and (2)
caused the plaintiff to be deprived of a right secured by the
constitution or laws of the United States.”
Terrell-Bey v. Crank, No. 15-cv-00668-GPG, 2015 WL
2106211, at *2 (D. Colo. May 4, 2015) (citing Brady v.
Robinson, 77 F.3d 488 (9th Cir. 1996)). The only
available remedy in a Bivens action is “money
damages.” See Correctional Servs. Corp. v.
Malesko, 534 U.S. 61, 66-68 (2001) (tracing the Supreme
Court's Bivens jurisprudence). Here,
plaintiff's complaint is devoid of any allegation that
Wenthe caused plaintiff to be deprived of a right secured by
the constitution or laws of the United States. Moreover,
plaintiff does not seek damages from Wenthe personally.
Instead, she seeks injunctive relief in the form of orders
directing the United States to return funds collected in
excess of the amount of restitution to her and to release a
lien on her property. See Docket No. 1 at 3. These
are not compensatory damages that could be recovered from
Wenthe in a Bivens action. Thus, the complaint
cannot be construed to assert an individual-capacity suit
against Wenthe under Bivens.
the remainder of the recommendation, in the 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”). In this matter, the Court has
reviewed the non-objected-to portions of the recommendation
to satisfy itself that there is “no clear error on the
face of the record.” Fed.R.Civ.P. 72(b), Advisory
Committee Notes. This standard of review is something less
than a “clearly erroneous or contrary to law”
standard of review, Fed.R.Civ.P. 72(a), which in turn is less
than a de novo review. Fed.R.Civ.P. 72(b). Based on this
review, the Court has concluded that the remainder of the
recommendation is a correct application of the facts and the
It is therefore
that the Report and Recommendation on Defendant's Motion
to Dismiss [Docket No. 20] is accepted. It is further
that plaintiff's Motion for Summary Judgment [Docket No.
21], construed as an objection, is overruled. It is further
that plaintiff's Objection to Magistrate Judge
Neureiter's Report and Recommendation [Docket No. 25] is
overruled. It is further
that defendants' Motion to Dismiss Complaint [Docket No.
12] is granted. It is further
that plaintiff's claims are dismissed without prejudice
for lack of subject matter jurisdiction pursuant to
Fed.R.Civ.P. 12(b)(1). It is further
that defendants' Motion to Strike the Portions of ECF No.
21 Concerning Summary Judgment and to Stay Briefing on
Summary Judgment [Docket No. 24] is denied as moot. It is
that plaintiff's Revised Motion for Summary Judgment
[Docket No. 26] is denied as moot. It is further
that, within 14 days of the entry of judgment, defendants may
have their costs by filing a bill of costs with ...