Viegas v. Kane

1

KERI LYNN VIEGAS, the individual, and JAMES VIEGAS, the individual, Plaintiffs, v. THOMAS K. KANE, CHUCK BROERMAN, SCOTT D. TOEBBEN, ARICYN DALL, MATRIX FINANCIAL SERVICES CORPORATION, ROUNDPOINT MORTGAGE SERVICING LLC, and MORTGAGE ELECTRONIC REGISTRATION SYSTEM, a/k/a “MERS,” Defendants.

Civil Action No. 23-cv-03291-PAB-MDB

United States District Court, D. Colorado

September 10, 2024

ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION

PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on the Recommendation of United States Magistrate Judge [Docket No. 38]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

I. BACKGROUND

The facts are set forth in the magistrate judge's recommendation, Docket No. 38 at 2-4, and the Court adopts them for purposes of ruling on the objections. To the extent that plaintiffs Keri Lynn Viegas and James Viegas (collectively, the “plaintiffs”) dispute how the magistrate judge construed certain facts, the Court considers and resolves those arguments below.

On December 14, 2023, plaintiffs filed this case against Judge Thomas K. Kane, El Paso County Treasurer Chuck Broerman Scott D. Toebben, Aricyn Dall, Matrix Financial Services Corporation (“Matrix”), Roundpoint Mortgage Servicing LLC (“Roundpoint”), and Mortgage Electronic Registration Systems (“MERS”). Docket No. 1. Plaintiffs assert claims under the Fourth and Fifth Amendments of the U.S. Constitution against all defendants pursuant to 42 U.S.C. § 1983. Id. at 4-5. Plaintiffs claim that all defendants violated 18 U.S.C §§ 241 and 242. Id. at 5. Furthermore, plaintiffs claim that Matrix, Roundpoint, and MERS violated 15 U.S.C. § 1641(g) and 18 U.S.C. §§ 474, 1341, and 1021, and request that those defendants “return all monies from the security instrument, extinguish the Deed of Trust from the property, [and provide] a Quiet Title.” Id. at 5-6. Plaintiffs seek $28 million in damages from defendants. Id. at 6.

On January 8, 2024, Matrix, Roundpoint, and MERS filed a motion to dismiss pursuant to Fed.R.Civ.P. 8(a), 9(b), and 12(b)(6). Docket No. 9.^[1]On January 26, 2024, Mr. Toebben and Ms. Dall filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Docket No. 18. On February 13, 2024, Mr. Broerman filed a motion to dismiss pursuant to Fed. R. Civ. 12(b)(6), asserting that he is entitled to qualified immunity. Docket No. 27. On February 21, 2024, Judge Kane filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), asserting that he is entitled to absolute immunity and that plaintiffs' claims are barred by the Eleventh Amendment and the Rooker-Feldman doctrine. Docket No. 32. Plaintiffs filed responses to the motions. Docket Nos. 12, 20, 26, 29, 33. Defendants filed replies. Docket Nos. 17, 31, 35, 36.

On August 23, 2024, Magistrate Judge Maritza Dominguez Braswell issued a recommendation to grant the motions to dismiss. Docket No. 38. Judge Dominguez Braswell recommends dismissing any claims brought under 18 U.S.C. §§ 241, 242, 474, 1021, and 1341 because those federal criminal statutes do not create private rights of action. Id. at 7-8 (collecting cases). Furthermore, Judge Dominguez Braswell recommends dismissing plaintiffs' claim under 15 U.S.C. § 1641(g) against Matrix, Roundpoint, and MERS because the complaint contains no allegations suggesting how the defendants violated that statute. Id. at 8.

Regarding plaintiffs' constitutional claims, the magistrate judge recommends dismissing the Fourth and Fifth Amendment claims against all defendants. Id. at 9-15. Judge Dominguez Braswell found that the complaint fails to plausibly allege that Matrix, Roundpoint, MERS, Mr. Toebben, or Ms. Dall were acting under “color of state law” during the foreclosure proceedings. Id. at 9-11. Furthermore, Judge Dominguez Braswell found that the complaint's “sparse and conclusory allegations” against Mr. Broerman, the El Paso County Treasurer, were insufficient to state a Fourth or Fifth Amendment claim against him. Id. at 11. Finally, the magistrate judge concluded that the official capacity claims brought against Judge Kane were barred under the Eleventh Amendment. Id. at 12-13. To the extent that plaintiffs assert any claims against Judge Kane in his individual capacity, the magistrate judge found that Judge Kane is entitled to absolute immunity for those claims. Id. at 14-15.^[2] Judge Dominguez Braswell recommends dismissing the constitutional claims against Judge Kane without prejudice and recommends dismissing all other claims against the other defendants with prejudice. Id. at 16. Additionally, Judge Dominguez Braswell recommends denying Matrix, Roundpoint, and MERS' request for attorneys' fees without prejudice for failure to comply with D.C.COLO.LCivR 54.3. Id. at 15-16. The recommendation states that any objections must be filed within fourteen days after service on the parties. Id. at 17. Plaintiffs filed a timely objection on August 30, 2024. Docket No. 41.

II. LEGAL STANDARD

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 Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (“One Parcel”). A specific objection “enables the district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute.” Id.

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) (“It 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.”). The Court therefore reviews the non-objected to portions of a recommendation to confirm 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). Because plaintiffs are proceeding pro se, the Court will construe their objections and pleadings liberally without serving as their advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

III. ANALYSIS

The Court construes plaintiffs' filing as raising nine objections. See Docket No. 41 at 2-15.

A. Objection One

Plaintiffs' first objection appears to argue that Judge Dominguez Braswell has demonstrated bias against plaintiffs. Plaintiffs assert that Judge Dominguez Braswell is engaging in judicial “activism” from the bench, uses “prosecutor type descriptions” in the recommendation, “display[s] a continued practice of disregard for the Constitution,” and is violating plaintiffs' due process rights by recommending dismissal of this case. Id. at 6-7, 10. Plaintiffs also contend that Judge Dominguez Braswell is “masquerading as a Magistrate Judge” and is not “in good behavior.” Id. at 14. The Court construes this objection as requesting the recusal of Judge Dominguez Braswell.

As the Court has previously explained in this case,

Under 28 U.S.C. § 455(a), a federal judge is required to recuse herself “in any proceeding in which [her] impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “Section 455 establishes ‘an objective standard: disqualification is appropriate only where the reasonable person, were he to know all the circumstances, would harbor doubts about the judge's impartiality.'” United States v. Mobley, 971 F.3d 1187, 1205 (10th Cir. 2020) (quoting United States v. Wells, 873 F.3d 1241, 1251 (10th Cir. 2017)). “In conducting this review, [the court] must ask how these facts would appear to a well informed, thoughtful and objective observer, who is an average member of the public, not a hypersensitive, cynical, and suspicious person.” Id. (internal quotations and citation omitted).

“Though judges ‘have a strong duty to recuse when appropriate,' they also have ‘a strong duty to sit,' and § 455 must not be so broadly construed as to make recusal mandated ‘upon the merest unsubstantiated suggestion of personal bias or prejudice.'” Id. (quoting Wells, 873 F.3d at 1251). The “statute is not intended to give litigants a veto power over sitting judges, or a vehicle for obtaining a judge of their choice.” Switzer v. Berry, 198 F.3d 1255, 1258 (10th Cir. 2000) (citation omitted). The party moving to disqualify a judge has the burden of proof. Davis v. U.S. Dep't of Justice, 2024 WL 3617343, at *3 (10th Cir. Aug. 1, 2024) (collecting cases).

“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994); see also Lammle v. Ball Aerospace & Techs. Corp., 589 Fed.Appx. 846, 849 (10th Cir. 2014) (unpublished) (“Unfavorable judicial rulings and ordinary efforts at courtroom administration are insufficient grounds for recusal.”). Rather, recusal based on a judge's decisions, opinions, or remarks “is necessary when a judge's actions or comments ‘reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.'” United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005) (quoting Liteky, 510 U.S. at 555). Adverse rulings that do not evidence such favoritism or antagonism “are grounds for appeal, not recusal.” Id. (citation omitted).

Docket No. 40 at 2-3. The recommendation, although adverse to plaintiffs, is insufficient alone to raise a question about Judge Dominguez Braswell's...