IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer
Civil Action No. 24-cv-00123-PAB-MDB
MAGGIE MAE HENDERSON,
Plaintiff,
v.
LEAH BURROWS, TOM WERLICH, TAMARA GOLD, CHERYL MAES, VANESSA ORNALES, SUSAN PRIETO, and JOHN/JANE DOE #7-17,
Defendants.
ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION
This matter is before the Court on the Recommendation of United States Magistrate Judge [Docket No. 76]. The Recommendation states that objections to the Recommendation must be filed within fourteen days after its service on the parties. Docket No. 76 at 15-16; see also 28 U.S.C. § 636(b)(1)(C). The Recommendation was served on February 25, 2026. No party has objected to 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) (“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.”). In this matter, the Court has reviewed the Recommendation to satisfy itself that there is “no clear error on the face of the record.”1 Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, the Court has concluded that the Recommendation is a correct application of the facts and the law. The Court adopts the recommendation’s summary of plaintiff’s claims, which no
party has objected to. See Docket No. 76 at 4-5. Plaintiff brings Claims One and Two, alleging First Amendment retaliation and violation of “equal protection”; Claim Four, alleging defamation (via libel and slander) and intentional infliction of emotional distress; and Claim Six, alleging violations of the Equal Protection Clause. See id. at 4. Claim One is asserted against the Leigh Burrows, Tom Werlich, Tamara Gold, Cheryl Maes, Vanessa Ornelas, and Susan Prieto (collectively, “the Moving Defendants”); Claim Two is asserted against the Moving Defendants, except for Ms. Prieto; Claim Four is asserted against the Moving Defendants, except for Mr. Werlich; and Claim Six is asserted against Mr. Werlich, Ms. Gold, Ms. Ornales, and “John/Jane Doe Defendants.”
See id. at 4 n.4-6. Plaintiff’s claims are asserted against the Moving Defendants in their individual and official capacities. See Docket No. 39 at 2-5. A. Claims One, Two, and Six – Retaliation and Equal Protection Claims The Court agrees that the portions of Claims One and Two that assert retaliation claims against Ms. Burrows, Mr. Werlich, Ms. Gold, and Ms. Prieto should be dismissed
1 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). 2 for failure to state a claim pursuant to Rule 12(b)(6).2 See Docket No. 76 at 10-13. “A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.” Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006). Although the Court finds that plaintiff fails to state a claim under Rule 12(b)(6), the Court does not find, and defendants do not
argue, that amendment would be futile. Thus, the Court will dismiss the retaliation claims against Ms. Burrows, Mr. Werlich, Ms. Gold, and Ms. Prieto without prejudice. Turning to the portions of Claim One and Two that assert equal protection claims, the Court agrees that plaintiff fails to state a claim pursuant to Rule 12(b)(6) against the Moving Defendants. See Docket No. 76 at 13-14. Thus, the Court will dismiss the equal protection claims without prejudice, for the reasons discussed previously. The Court also agrees that Claim Six, which is an equal protection challenge to Honor House Program Rules, is appropriately dismissed without prejudice pursuant to Rule 12(b)(6). See id. at 14.
B. Claim Four – State Law Claims The Court agrees that Claim Four should be dismissed for lack of subject matter jurisdiction. See id. at 9-10. As noted by the magistrate judge, under the Colorado Government Immunity Action (“CGIA”), Colorado “public employees” are immune from liability in tort actions that “arise[] out of an act or omission of such employee occurring during the performance of his duties and within the scope of his employment unless the act or omission causing injury was willful and wanton.” See id. at 9 (quoting Colo. Rev.
2 The Moving Defendants do not seek dismissal of the retaliation claims against Ms. Maes and Ms. Ornelas. Docket No. 67 at 17 n.6-7. 3 Stat. § 24-10-118(2)(a)). Because plaintiff’s allegations do not show willful or wanton conduct, the Court will dismiss Claim Four without prejudice for lack of subject matter jurisdiction. C. Plaintiff’s Requests for Relief The Court agrees with the recommendation that plaintiff’s request for injunctive
relief and compensatory and hedonic damages must be dismissed. See id. at 7-9. Plaintiff’s request for injunctive relief that seeks reform of various Honor House Program policies is moot in light of plaintiff’s release on parole. See id. at 8. Plaintiff’s request for compensatory and hedonic damages is barred by the Prison Litigation Reform Act because plaintiff does not allege physical injuries resulting from defendants’ alleged conduct. See id. at 9. Thus, the Court will deny these requests for relief. D. Qualified Immunity The Moving Defendants ask that all individual-capacity claims asserted against Ms. Prieto, Ms. Gold, Mr. Werlich, and Ms. Burrows be dismissed on the basis of
qualified immunity. Docket No. 67 at 22. They ask that Claims Four, Five, and Six against the Moving Defendants in their individual capacities be dismissed on the basis of qualified immunity. Id.3 Because the complaint fails to allege a constitutional violation on these claims, the Court will dismiss with prejudice these claims on the basis of qualified immunity. See Clark v. Wilson, 625 F.3d 686, 692 (10th Cir. 2010) (instructing the district court to grant defendants’ motion to dismiss based on qualified
3 The Court will not consider Moving Defendants’ request that individual-capacity claims asserted under Claim Five be dismissed on the basis of qualified immunity because Claim Five is only asserted against the Jane/John Doe Defendants. See Docket No. 39 at 11. 4 immunity “with prejudice”); McCrary v. Jones, 2015 WL 873641, at *6 (W.D. Okla. Feb. 27, 2015) (dismissing claim with prejudice where defendant was entitled to qualified immunity). Accordingly, it is ORDERED that the Recommendation of United States Magistrate Judge [Docket
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer
Civil Action No. 24-cv-00123-PAB-MDB
MAGGIE MAE HENDERSON,
Plaintiff,
v.
LEAH BURROWS, TOM WERLICH, TAMARA GOLD, CHERYL MAES, VANESSA ORNALES, SUSAN PRIETO, and JOHN/JANE DOE #7-17,
Defendants.
ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION
This matter is before the Court on the Recommendation of United States Magistrate Judge [Docket No. 76]. The Recommendation states that objections to the Recommendation must be filed within fourteen days after its service on the parties. Docket No. 76 at 15-16; see also 28 U.S.C. § 636(b)(1)(C). The Recommendation was served on February 25, 2026. No party has objected to 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) (“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.”). In this matter, the Court has reviewed the Recommendation to satisfy itself that there is “no clear error on the face of the record.”1 Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, the Court has concluded that the Recommendation is a correct application of the facts and the law. The Court adopts the recommendation’s summary of plaintiff’s claims, which no
party has objected to. See Docket No. 76 at 4-5. Plaintiff brings Claims One and Two, alleging First Amendment retaliation and violation of “equal protection”; Claim Four, alleging defamation (via libel and slander) and intentional infliction of emotional distress; and Claim Six, alleging violations of the Equal Protection Clause. See id. at 4. Claim One is asserted against the Leigh Burrows, Tom Werlich, Tamara Gold, Cheryl Maes, Vanessa Ornelas, and Susan Prieto (collectively, “the Moving Defendants”); Claim Two is asserted against the Moving Defendants, except for Ms. Prieto; Claim Four is asserted against the Moving Defendants, except for Mr. Werlich; and Claim Six is asserted against Mr. Werlich, Ms. Gold, Ms. Ornales, and “John/Jane Doe Defendants.”
See id. at 4 n.4-6. Plaintiff’s claims are asserted against the Moving Defendants in their individual and official capacities. See Docket No. 39 at 2-5. A. Claims One, Two, and Six – Retaliation and Equal Protection Claims The Court agrees that the portions of Claims One and Two that assert retaliation claims against Ms. Burrows, Mr. Werlich, Ms. Gold, and Ms. Prieto should be dismissed
1 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). 2 for failure to state a claim pursuant to Rule 12(b)(6).2 See Docket No. 76 at 10-13. “A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.” Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006). Although the Court finds that plaintiff fails to state a claim under Rule 12(b)(6), the Court does not find, and defendants do not
argue, that amendment would be futile. Thus, the Court will dismiss the retaliation claims against Ms. Burrows, Mr. Werlich, Ms. Gold, and Ms. Prieto without prejudice. Turning to the portions of Claim One and Two that assert equal protection claims, the Court agrees that plaintiff fails to state a claim pursuant to Rule 12(b)(6) against the Moving Defendants. See Docket No. 76 at 13-14. Thus, the Court will dismiss the equal protection claims without prejudice, for the reasons discussed previously. The Court also agrees that Claim Six, which is an equal protection challenge to Honor House Program Rules, is appropriately dismissed without prejudice pursuant to Rule 12(b)(6). See id. at 14.
B. Claim Four – State Law Claims The Court agrees that Claim Four should be dismissed for lack of subject matter jurisdiction. See id. at 9-10. As noted by the magistrate judge, under the Colorado Government Immunity Action (“CGIA”), Colorado “public employees” are immune from liability in tort actions that “arise[] out of an act or omission of such employee occurring during the performance of his duties and within the scope of his employment unless the act or omission causing injury was willful and wanton.” See id. at 9 (quoting Colo. Rev.
2 The Moving Defendants do not seek dismissal of the retaliation claims against Ms. Maes and Ms. Ornelas. Docket No. 67 at 17 n.6-7. 3 Stat. § 24-10-118(2)(a)). Because plaintiff’s allegations do not show willful or wanton conduct, the Court will dismiss Claim Four without prejudice for lack of subject matter jurisdiction. C. Plaintiff’s Requests for Relief The Court agrees with the recommendation that plaintiff’s request for injunctive
relief and compensatory and hedonic damages must be dismissed. See id. at 7-9. Plaintiff’s request for injunctive relief that seeks reform of various Honor House Program policies is moot in light of plaintiff’s release on parole. See id. at 8. Plaintiff’s request for compensatory and hedonic damages is barred by the Prison Litigation Reform Act because plaintiff does not allege physical injuries resulting from defendants’ alleged conduct. See id. at 9. Thus, the Court will deny these requests for relief. D. Qualified Immunity The Moving Defendants ask that all individual-capacity claims asserted against Ms. Prieto, Ms. Gold, Mr. Werlich, and Ms. Burrows be dismissed on the basis of
qualified immunity. Docket No. 67 at 22. They ask that Claims Four, Five, and Six against the Moving Defendants in their individual capacities be dismissed on the basis of qualified immunity. Id.3 Because the complaint fails to allege a constitutional violation on these claims, the Court will dismiss with prejudice these claims on the basis of qualified immunity. See Clark v. Wilson, 625 F.3d 686, 692 (10th Cir. 2010) (instructing the district court to grant defendants’ motion to dismiss based on qualified
3 The Court will not consider Moving Defendants’ request that individual-capacity claims asserted under Claim Five be dismissed on the basis of qualified immunity because Claim Five is only asserted against the Jane/John Doe Defendants. See Docket No. 39 at 11. 4 immunity “with prejudice”); McCrary v. Jones, 2015 WL 873641, at *6 (W.D. Okla. Feb. 27, 2015) (dismissing claim with prejudice where defendant was entitled to qualified immunity). Accordingly, it is ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 76] is ACCEPTED. It is further ORDERED that Defendants’ Partial Motion to Dismiss Second Amended Complaint Pursuant to Rule 12(b)(1) and 12(b)(6) [Docket No. 67] is GRANTED. It is further ORDERED that the portions of Claim One and Two that assert retaliation claims are DISMISSED without prejudice to the extent it is brought against Ms. Burrows, Mr. Werlich, Ms. Gold, and Ms. Prieto. It is further ORDERED that the portions of Claim One and Two that assert equal protection claims are DISMISSED without prejudice. It is further
ORDERED that Claim Four is DISMISSED without prejudice for lack of subject matter jurisdiction. It is further ORDERED that Claim Six is DISMISSED without prejudice. It is further ORDERED that plaintiff’s request for injunctive relief and compensatory and hedonic damages is denied. It is further ORDERED that plaintiffs’ claims against Ms. Prieto, Ms. Gold, Mr. Werlich, and Ms. Burrows in their individual capacities are DISMISSED with prejudice. It is further
5 ORDERED that plaintiffs’ claims against the Moving Defendants in their individual capacities under Claims Four and Six are DISMISSED with prejudice. DATED March 17, 2026. BY THE COURT: oa eS PHILIP A. BRIMMER United States District Judge