Williams-Berrien v. Wilson et al

Filing 140

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kristen L. Mix on 8/13/18 re 125 Motion for Leave to Amend Complaint. The Court respectfully RECOMMENDS that the Motion 125 be DENIED. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00948-REB-KLM
DERICK LAMAR WILLIAMS-BERRIEN,
Plaintiff,
v.
DAVID WILSON, Officer, individually, and
ROBERT PETREE, Officer, individually,
Defendants.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Leave to Amend
Complaint [#125]1 (the “Motion”). Defendants filed a Response [#133] in opposition to the
Motion [#125]. No Reply was timely filed.2 Plaintiff proceeds in this matter as a pro se
litigant.3 Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion

1

“[#125]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Recommendation.
2

Pursuant to D.C.COLO.LCivR 7.1(d), the Court may rule on a motion at any time after it

is filed.
3

The Court is mindful that it must construe the filings of a pro se litigant liberally. 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 is not a pro se litigant's advocate, nor shall the Court “supply additional
factual allegations to round out [a pro se litigant's] complaint or construct a legal theory on [his]
behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at
1110). In addition, Plaintiff, as a pro se litigant, must follow the same procedural rules that govern
other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

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[#125] has been referred to the undersigned for recommendation.4 See [#126]. The Court
has reviewed the Motion [#125], the Response [#133], the entire case file, and the
applicable law, and is sufficiently advised in the premises. For the reasons set forth below,
the Court respectfully RECOMMENDS that the Motion [#125] be DENIED.
I. Background
On May 4, 2015, Plaintiff filed this lawsuit. Compl. [#1]. On October 13, 2015,
Plaintiff filed an Amended Complaint [#33]. Defendants subsequently filed a Motion to
Dismiss the Amended Complaint [#39]. The Court granted in part and denied in part the
Motion to Dismiss the Amended Complaint [#39], leaving only excessive force claims
against Defendants Wilson and Petree. Order [#49] at 3. Defendants then filed a Motion
for Summary Judgment [#78] on August 21, 2017. The Motion for Summary Judgment
[#78] was denied without prejudice because Plaintiff’s Motion to Compel [#109] had not yet
been fully briefed and Defendants had not yet produced relevant evidence which Plaintiff
sought in discovery. Order [#116] at 1. Following the production of the evidence, Plaintiff
filed the present Motion [#125] seeking to amend the Amended Complaint [#33].
II. Standard of Review
“After a scheduling order deadline, a party seeking leave to amend must
demonstrate (1) good cause for seeking modification under Fed. R. Civ. P. 16(b)(4); and
4

A magistrate judge may issue orders on nondispositive motions only. Ocelot Oil Corp. v.
Sparrow Indus., 847 F.2d 1458, 1462-63 (10th Cir. 1988). Whether motions to amend are
dispositive is an unsettled issue in the Tenth Circuit. Hatten v. Freeborn, No. 09-cv-02729-CMAMJW, 2010 WL 1677772, at *2 (D. Colo. Apr. 26, 2010) (citing Chavez v. Hatterman, No. 06-cv02525-WYD-MEH, 2009 WL 82496, at *1 (D. Colo. Jan. 13, 2009)). When an order denying a
motion to amend removes a defense or claim from the case it may be dispositive. Sunflower
Condo. Ass’n, Inc. v. Owners Ins. Co., No. 16-cv-2946-WJM-NYW, 2018 WL 1755784, at *1 (D.
Colo. Apr. 12, 2018) (quoting Cuenca v. Univ. of Kan., 205 F. Supp 2.d 1226, 1228 (D. Kan. 2002).
For the purposes of resolving the present Motion, it is assumed that the issue is dispositive and
requires a recommendation.

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(2) satisfaction of the Rule 15(a) standard.” Birch v. Polaris Indus., Inc., 812 F.3d 1238,
1247 (10th Cir. 2015) (quoting Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771
F.3d 1230, 1240 (10th Cir. 2014)) (internal quotations omitted); see, e.g., Petekeiwicz v.
Stembel, No. 13-cv-1865-RM-KLM, 2015 WL 1740386, at *4 (D. Colo. Apr. 14, 2015);
Nicastle v. Adams Cty. Sheriff’s Office, No. 10-cv-816-REB-KMT, 2011 WL 1465586, at *3
(D. Colo. Mar. 14, 2011), adopted by 2011 WL 1464588 (D. Colo. Apr. 18, 2011); Colo.
Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 688 (D. Colo. 2000). If the movant
meets the Rule 16(b)(4) good cause standard and the Rule 15(a) standard to amend the
pleadings, the movant has met the requirements to amend the pleadings. Birch, 812 F.3d
at 1247. However, if a plaintiff fails “to show good cause under Rule 16(b), there is no
need for the Court to move on to the second step of the analysis, i.e., whether [a plaintiff
has] satisfied the requirements of Rule 15(a).” Carriker v. City & Cty. of Denver, Colo., No.
12-cv-02365-WJM-KLM, 2013 WL 2147542, at *2 (D. Colo. May 16, 2013) (citing Nicastle,
2011 WL 1465586, at *3).
If a party has met the Rule 16(b)(4) good cause standard, the Court has discretion
to grant a party leave to amend its pleadings pursuant to Rule 15(a). See Foman v. Davis,
371 U.S. 178, 182 (1962); Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave
when justice so requires.”). “In the absence of any apparent or declared reason—such as
undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of the amendment, etc.—the leave sought
should, as the rules require, be ‘freely given.’” Foman, 371 U.S. at 182.
III. Analysis
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A.

Request for Leave to Amend
The first issue to address is the timeliness of the Motion [#125]. See Carriker, 2013

WL 2147542, at *1. There was no deadline set for joinder of parties and amendment of
pleadings at the Scheduling Conference. See Minute Entry [#52]. Thus, the Court finds
that the amendment is timely. See Carriker, 2013 WL 2147542, at *1. Therefore, the Court
turns to Rule 15(a)(2).
1.

Futility

Defendants argue in part that leave to amend should not be granted because
Plaintiff’s new claims are futile. Response [#133] at 4. It is well settled that a proposed
amendment is futile only if the complaint, as amended, would not survive a motion to
dismiss. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (citing Jefferson Cty.
Sch. Dist. v. Moody’s Investor’s Servs., 175 F.3d 848, 859 (10th Cir. 1999)).

“In

ascertaining whether plaintiff’s proposed amended complaint is likely to survive a motion
to dismiss, the court must construe the complaint in the light most favorable to plaintiff, and
the allegations in the complaint must be accepted as true.” Murray v. Sevier, 156 F.R.D.
235, 238 (D. Kan. 1994). Moreover, “[a]ny ambiguities must be resolved in favor of plaintiff,
giving him the benefit of every reasonable inference drawn from the well-pleaded facts and
allegations in his complaint.” Id. (quotations omitted).
In the Proposed Second Amended Complaint [#129], Plaintiff brings eleven claims
for relief. As an initial matter, claims two and five appear to be functionally the same claims
as the remaining claims already asserted against Defendants Wilson and Petree, i.e.,
claims for excessive force in relation to Defendant Wilson allegedly tasing Plaintiff and
Defendant Petree allegedly placing Plaintiff in a leg lock. See generally Am. Compl. [#33].
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Plaintiff alleges that “[Defendant] Wilson needlessly TASED Plaintiff” and that “[Defendant]
Petree applied the painful leg lock on Plaintiff while he was effectively subdued.” Second.
Am. Compl. [#129] at 23, 26 (emphasis in original). These are the same facts that underlie
the remaining excessive force claims against Defendants Wilson and Petree in the First
Amended Complaint [#33]. Thus, because the second and fifth claim for relief are entirely
duplicative of claims that have already been brought against Defendants, the Court treats
them accordingly.
With regard to the fifth claim for relief, the Court notes that in the Proposed Second
Amended Complaint, Plaintiff alleges that Defendant Petree’s actions were in violation of
the Fifth Amendment. [#129] at 26. However, because the claim is functionally the same
as the one already brought against Defendant Petree, and because the Court has already
stated that “the appropriate excessive force analysis is pursuant to the Fourth Amendment,
and only the Fourth Amendment,” the Court treats Plaintiff’s fifth claim for relief as being
brought pursuant to the Fourth Amendment. See Recommendation [#48] at 9. Regardless,
to the extent Plaintiff’s claim is brought pursuant to the Fifth Amendment, the claim would
still be futile because the Fifth Amendment only guarantees rights against the federal
government, and Defendants are municipal government employees. See Fleury v. Collins,
No. 10-cv-01361-LTB-KLM, 2011 WL 1706835, at *4 n.2 (D. Colo. Apr. 14, 2011).
The Court next addresses Defendants’ futility argument with respect to Plaintiff’s first
claim for relief. The first claim for relief asserts a claim for “Unauthorized Use of Potentially
Deadly Force” against Defendant Wilson. Proposed Second Am. Compl. [#129] at 20. The
Court notes that Plaintiff’s claim is essentially the same excessive force claim that has
already been dismissed with prejudice. See generally Am. Compl. [#33]. Plaintiff asserts

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that “[Defendant] Wilson’s posture, demeanor, and tone-of-voice coupled with the threat
upon Plaintiff’s life, immediately compelled an otherwise compliant, surrendering Plaintiff
to flee for his life. [Defendant] Wilson needlessly shot Plaintiff twice in-his-back [sic] while
fleeing empty-handed, and while NO ONE was in harms way.” Proposed Second Am.
Compl. [#129] at 21 (emphasis in original). These are the same facts that underlie the
excessive force claim in the First Amended Complaint [#33]. Because this claim has
already been dismissed with prejudice, See Order [#49] at 3, it is subject to dismissal under
Rule 12(b)(6) and therefore is futile. See Styskal v. Weld Cty. Bd. of Cty. Comm’rs, 365
F.3d 855, 859 (10th Cir. 2004) (explaining that dismissal with prejudice by a district court
means that the plaintiff cannot refile the dismissed claim in that same district).
The Court next turns to the fourth claim for relief. The fourth claim for relief asserts
a claim for “Respondeat Superior Liability” against Sergeant Bryan Butler (“Butler”).
Proposed Second Am. Compl. [#129] at 25. Specifically, Plaintiff asserts that Sergeant
Butler is liable for Defendant Petree’s and Officer Gary Oliver’s (“Oliver”) allegedly wrongful
acts under the doctrine of respondeat superior. Proposed Second Am. Compl. [#129] at
25. Plaintiff alleges that “[Sergeant] Butler placed a directive to [Officer] Oliver to ‘stop’
Plaintiff from ‘rolling around,’ and [Defendant] Petree re-acted [sic] by placing Plaintiff in a
figure-4 leg lock.” Id. Plaintiff further alleges that “[Sergeant] Butler’s directive was
unnecessary and wanton.” Id. However, “[g]overnment officials may not be held liable for
the unconstitutional conduct of their subordinates under a theory of respondeat superior.”
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (emphasis in original). Accordingly, the Court
finds that Plaintiffs fourth claim for relief is futile. See id.
Although far from clear, Plaintiff also brings claims which appear to assert municipal

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liability against the Aurora Police Department and the City of Aurora. See Proposed
Second Am. Compl. [#129] at 29-33. Specifically, these claims are the eighth through
eleventh claims for relief. Id. First, as the Court has already held in this case, under
Colorado law, police departments are “not juridical entities subject to suit.”
Recommendation [#48] at 9 (citing Gash v. City of Denver, No. 12-cv-00929-REB-MJW,
2012 WL 3638798, at *1 (D. Colo. Aug. 23, 2012)). Therefore, to the extent these claims
are asserted against the Aurora Police Department, they are futile. See id. Second, any
municipal liability claims against the City of Aurora have been dismissed with prejudice.
See Order [#49] at 3. Thus any claims for municipal liability brought against the City of
Aurora at this juncture are futile. See Styskal, 365 F.3d at 859.
2.

Undue Delay

The Court next turns to Defendants’ undue delay argument, in which Defendants
assert that “Plaintiff has not provided any adequate explanation for the delay in seeking to
amend.” Response [#133] at 7. The Tenth Circuit has held that “denial of leave is
appropriate ‘when the party filing the motion has no adequate explanation for the delay.’”
Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006) (quoting Frank v. U.S.
West, 3 F.3d 1357, 1365-66 (10th Cir. 1993)). Here, Plaintiff asserts that his new
allegations and claims are based on a compact disc containing Officer Oliver’s and
Defendant Wilson’s “post-incident video interviews.” Motion [#125] ¶ 1. According to
Plaintiff, the compact disc was “a long and overdue” discovery request from Defendants,
which he received February 26, 2018. Id. at 1. Plaintiff argues that:
[d]ue to Defendants’ needlessly redacting Officials’ names in police reports
from previous discovery requests, it was literally impossible to develope [sic]
circumstances to whom did what, and when during Officers’ use of excessive
force, and to whom the authors were [sic] of the police reports. Still, to this
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day, not enough information is available to place all the needless draconian
[sic] pieces together. Said video substantially assisted in generated [sic]
Names and circumstances, hence newly discovered evidence.
Id. ¶¶ 7-8.
As best the Court can tell, it appears that Plaintiff is arguing that he is now able to
match officers’ names to their actions after watching the post-incident interviews. However,
in the Proposed Second Amended Complaint only the fourth and seventh claims for relief
relate to proposed new parties to the lawsuit, and the Court has already determined that
Plaintiff’s fourth claim is futile. [#129] at 25, 28. The other nine claims for relief relate either
to Defendants Wilson and Petree, or to parties who have since been dismissed. Id. at 1933. It is thus reasonable to infer that Plaintiff already had knowledge of these parties. See
generally First Am. Compl. [#33].
With respect to the seventh claim for relief, Plaintiff asserts that:
[Defendant] Wilson, and [Officer] Oliver deliberately failed to describe
[Defendant] Petree’s use of a leg lock, upon the effectively subdued, severely
injured Plaintiff, during a Official factfinding investigation that concerns
Officers’ Use of Excessive Force. Mark Colin, [Defendant] Wilson, and
[Officer] Oliver, individually and collectively, acted in concert and knowingly
conspired to OMIT material FACTS from the official, permanent record, and
likewise proffered a reckless or deliberate falsehood during an Official
investigation.
Proposed Second Am. Compl. [#129] at 28 (emphasis in original). The Proposed Second
Amended Complaint [#129] lacks non-conclusory allegations regarding this claim which
would allow the Court to determine the specific factual basis for this claim. The other ten
claims all flow from the July 8, 2013 arrest, while, although far from clear, the seventh claim
appears to flow from an alleged “factfinding investigation” that occurred after the bank
robbery and arrest incident. Id. at 28.
Regardless, on its face, the seventh claim for relief appears to be barred on the
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basis of undue delay, as are the other nine claims for relief that all flow from the July 8,
2013 arrest. See generally Proposed Second Am. Compl. [#129]. Plaintiff conclusorily
states that “said video Substantiates [Sergeant] Butler’s personal involvement on
cognizable Respondeat Superior Liability,” and that “[e]vidence further generated, alleges
attorney Mark Colin conspired with [Officers] Wilson and Gary Oliver to omit (cover-up)
FACTS from the Official record, during a FACTFINDING inquiry.” Motion [#125] ¶¶ 9-10
(emphasis in original). However, Plaintiff offers no further clarification as to how the video
interviews or other recently-produced evidence supposedly support the claims in the
Proposed Second Amended Complaint [#129]. Therefore, the Court finds that, regardless
of whether these claims are futile, Plaintiff has not demonstrated reliance on the new
evidence, and thus has not offered an adequate explanation for the delay in filing claims
one through three, five and six through eleven. See Minter, 451 F.3d at 1206.
Because the Court finds that all claims are futile or the delay in asserting them is
inadequately explained, the Court cannot find that Plaintiff has provided the Court sufficient
reason to grant leave to amend. Accordingly, the Court respectfully recommends that the
Motion [#125] be denied to the extent it is asserted pursuant to Rule 15(a).
B.

Alteration of Judgment and Relief From Judgment
Plaintiff also moves for a new trial pursuant to Rule 59(b), seeks to alter the

judgment on Order [#49] pursuant to Rule 59(e), and requests relief from the judgment
pursuant to Rule 60(b). Motion [#125] at 5.

Plaintiff argues that the “Magistrate’s

Recommendation [#48] and District Court’s ORDER ADOPTING [#49] are in err [sic] when
claiming that Officer Gary Oliver did NOT participate in the aprehension [sic] and arrest of
the Plaintiff. Evidence clearly suggests this is completely without merit.” Id. (emphasis in
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original).
1.

Rule 59(b)

The Court first addresses Rule 59(b). Rule 59(b) is complementary to Rule 59(a)
and states “a motion for a new trial must be filed no later than 28 days after the entry of
judgment.” Rule 59(a)(2) states “[t]he court may, on motion, grant a new trial on all or
some of the issues.” Trial has not yet occurred in this case. Therefore, to the extent
Plaintiff moves for a new trial, the Court finds the motion premature. Accordingly, the Court
respectfully recommends that the Motion [#125] be denied to the extent it is asserted
pursuant to Rule 59(b).
2.

Rule 59(e)

The Court next addresses Rule 59(e). As an initial matter, the Court finds that a
motion asserted pursuant to 59(e) is premature at this stage as no final judgment has been
entered in this case. See E.E.O.C. v. Outback Steak House of Fla., No. 06-cv-01935EWN-KLM, 2008 WL 3992171, at *2 (D. Colo. Aug. 20, 2008). The Court therefore
interprets this request as a motion for reconsideration. See id. (“Although the Federal
Rules of Civil Procedure do not explicitly provide for motions for reconsideration, these
motions are [normally] accepted as the offspring of [Rule] 59(e).”)
A motion to reconsider is the appropriate vehicle “to correct manifest errors of law
or to present newly discovered evidence.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th
Cir. 1997). “Grounds warranting a motion for reconsideration include: (1) an intervening
change in the controlling law, (2) new evidence previously unavailable, and (3) the need
to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000). “It is not appropriate to revisit issues already addressed
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or to advance arguments that could have been raised in prior briefing.” Id.
Plaintiff does not suggest that there has been any intervening change in the
controlling law, but does assert that the Court was incorrect when it held that Officer Oliver
did not participate in the arrest of Plaintiff. Motion [#125] at 5. Plaintiff argues that the
“[e]vidence clearly suggests” that Officer Oliver participated in the arrest. Id. The Court
notes, however, that it never held that Officer Oliver did not participate in the arrest.
Rather, the Court merely held that Plaintiff failed to adequately allege any constitutional
violation by Officer Oliver. See Recommendation [#48] at 12-15. Here, Plaintiff does not
clarify what evidence suggests that Officer Oliver participated in the arrest in a
constitutionally prohibited manner. Regardless, the Court is constrained to the allegations
within the complaint for the purpose of adjudicating a motion to dismiss and cannot take
evidence outside the complaint into account. See Iqbal, 556 U.S. at 678. In short, when
dismissing the claims against Officer Oliver, the Court held that Plaintiff sufficiently pled that
Officer Oliver was a witness to the arrest, but that all other allegations against him were
conclusory. Recommendation [#48] at 12-13. In the First Amended Complaint [#33], there
simply was nothing to suggest that the Court was incorrect in its finding that Plaintiff did not
sufficiently allege that Officer Oliver was involved in the arrest in a constitutionally
prohibited way. Thus the Court cannot find that there was clear error. See Sayed, 2014
WL 3862635, at *2.
Additionally, as already discussed, the Court does not find that Plaintiff has relied
on any new evidence, especially for claims relating to Officer Oliver. Thus, the Court finds
Plaintiff’s motion for reconsideration insufficient. See id. Accordingly, the Court respectfully
recommends that the Motion [#125] be denied to the extent it is asserted pursuant to Rule
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59(e).
3.

Rule 60(b)

The Court next turns to Rule 60(b). “A Rule 60(b) motion is appropriate for, among
other things, ‘mistake, inadvertence, surprise, or excusable neglect’ and ‘newly discovered
evidence that, with reasonable diligence, could not have been discovered in time to move
for a new trial.’”

Id. (quoting Fed. R. Civ. P. 60(b)(1), (2)).

“Rule 60(b) relief is

extraordinary and may be granted only in exceptional circumstances.”

Banks v.

Katzenmeyer, No. 13-cv-02599-KLM, 2015 WL 4467373, at *5 (D. Colo. July 22, 2015)
(quoting Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008)). “A litigant shows
exceptional circumstances by satisfying one or more of the grounds for relief enumerated
in Rule 60(b).” Martinez v. Red’s Towing, No. 14-cv-00458-KLM, 2015 WL 328304, at *2
(D. Colo. Jan. 23, 2015) (citing Van Skiver v. United States, 952 F.3d 1241, 1243 (10th Cir.
1991). The exceptional circumstances enumerated in Rule 60(b) are:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud . . . ,
misrepresentation, or misconduct by an opposing party; (4) the judgment is
void; (5) the judgment has been satisfied, released, or discharged; it is based
on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies
relief.
As already discussed, the Court does not find that Plaintiff has relied on any newly
discovered information. Plaintiff merely states in a conclusory fashion that the Order [#49]
was in error, but “Rule 60(b)(1) is not available to allow a party merely to reargue an issue
previously addressed by the court when the reargument merely advances new arguments
or supporting facts which were available for presentation at the time of the original
argument.” Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996) (citing Van
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Skiver, 98 F.3d at 577). Because Plaintiff does not rely on new evidence or any of the
other exceptional circumstances enumerated in Rule 60(b), the Court cannot find that it
offends justice to deny relief to Plaintiff under Rule 60(b). See Martinez, 2015 WL 328304,
at *5. Accordingly, the Court respectfully recommends that the Motion [#125] be denied
to the extent it is asserted to Rule 60(b).
IV. Conclusion
For the foregoing reasons, the Court respectfully RECOMMENDS that the Motion
[#125] be DENIED.
IT IS ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen
(14) days after service of this Recommendation to serve and file any written objections in
order to obtain reconsideration by the District Judge to whom this case is assigned. A
party’s failure to serve and file specific, written objections waives de novo review of the
Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S.
140, 147-48 (1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91
F.3d 1411, 1412-13 (10th Cir. 1996). A party’s objections to this Recommendation must
be both timely and specific to preserve an issue for de novo review by the District Court or
for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th
Cir. 1996).

Dated: August 13, 2018

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