1

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02224-WJM-CBS

TERENCE J. HANKINS,

Plaintiff,

v.

JOHN E. HUSBAND, individually + as Manager Little Snake Resource Area, 

U.S. BLM, and

AXIS STEEL, INC., 

Defendants. 

_________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

_________________________________________________________________________

Magistrate Judge Craig B. Shaffer

This civil action comes before the court on: (1) Defendant Husband’s “Motion to

Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1)” (filed December 23, 2011) (Doc. # 24); (2)

Defendant Axis Steel, Inc.’s (“Axis”) “Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)

or, in the Alternative, Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56” (filed

January 13, 2012) (Doc. # 30); and (3) Defendant Federal Bureau of Land Management’s

(“BLM”) “Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1)” (filed February 23, 2012)

(Doc. # 35). Pursuant to the Order of Reference dated October 21, 2011 (Doc. # 9) and the

memoranda dated December 28, 2011 (Doc. # 25), January 13, 2012 (Doc. # 31), and

February 23, 2012 (Doc. # 37), these matters were referred to the Magistrate Judge. The

court has reviewed the Motions, Mr. Hankins’ “More Definite Statement of Claims . . .” (filed

March 29, 2012 ) (Doc. # 57) (docketed by the Clerk of the Court as a “Supplement”), Mr.

Hankins’ Response to Axis’ Motion to Dismiss (filed May 18, 2012) (Doc. # 59), Axis’ Reply

(filed May 21, 2012) (Doc. # 60), and Mr. Hankins’ Responses (filed May 22, 2012) (Docs. #

61 and # 62). The court has also reviewed the pleadings, the entire case file, the

proceedings held on January 5, 2012 and May 15, 2012 (see Amended Courtroom

Minutes/Minute Order (Doc. # 28), Courtroom Minutes/Minute Order (Doc. # 58)), and the

applicable law and is sufficiently advised in the premises. 

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I. Statement of the Case 

Mr. Hankins is currently incarcerated at the Sterling Correctional Facility (“SCF”) of the

Colorado Department of Corrections (“CDOC”) in Sterling, Colorado, serving a life sentence

without parole for a murder conviction. (See Complaint (Doc. # 1) at 2 of 12; People v.

Hankins, 201 P.3d 1215 (Colo. 2009)). Mr. Hankins brings this lawsuit pursuant to 42 U.S.C.

§ 1983. (See id. at 3 of 12). Mr. Hankins alleges that in or about August of 2010, Defendant

Axis, “under contract from BLM,” entered property that he possessed pursuant to an

unpatented mining claim, and damaged and removed mining equipment and personal

property “without the benefit of due process.” (See Doc. # 1 at 4, 7 of 12). See also United

States v. Locke, 471 U.S. 84, 86 (1985) (citing 30 U.S.C. § 26) (allowing “United States

citizens to go onto unappropriated, unreserved public land to prospect for and develop

certain minerals,” the discovery of which, followed by minimal procedures, “gives an

individual the right of exclusive possession of the land for mining purposes.”)). Mr. Hankins

seeks monetary and “punitive compensation” for the loss of and damage to his property and

the loss of future earnings from his mining activities. (See Doc. # 1 at 6-7, 9, 12 of 12). 

II. Standard of Review

Defendants Husband and the BLM move to dismiss the Complaint pursuant to Fed. R.

Civ. P. 12(b)(1). Defendant Axis moves to dismiss the Complaint pursuant to Rule 12(b)(6)

or in the alternative for summary judgment pursuant to Fed. R. Civ. P. 56. 

Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of jurisdiction over the

subject matter.” Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on

the merits of a plaintiff's case, but only a determination that the court lacks authority to

adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)

(recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction

when specifically authorized to do so). A Rule 12(b)(1) motion to dismiss “must be

determined from the allegations of fact in the complaint, without regard to mere conclusory

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allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). See

also Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994) (“Mere conclusory allegations of

jurisdiction are not enough; the party pleading jurisdiction must allege in his pleading the

facts essential to show jurisdiction.”) (internal quotation marks and citations omitted). As the

party asserting jurisdiction, Mr. Hankins bears the burden of establishing that this court has

jurisdiction to hear his claims against Defendants Husband and the BLM. American Fair

Credit Ass'n v. United Credit Nat. Bank, 132 F. Supp. 2d 1304,1308-09 (D. Colo. 2001)

(citation omitted). 

Rule 12(b)(6) states that a court may dismiss a complaint for "failure to state a claim

upon which relief can be granted." To withstand a motion to dismiss, a complaint must

contain enough allegations of fact “to state a claim to relief that is plausible on its face.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The burden is on the plaintiff to frame

“a complaint with enough factual matter (taken as true) to suggest” that he or she is entitled

to relief. Twombly, 550 U.S. at 556. “Factual allegations must be enough to raise a right to

relief above the speculative level.” Id. 

Summary judgment is warranted under Federal Rule of Civil Procedure

56 if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law. When, as here, the

moving party does not bear the ultimate burden of persuasion at trial, it may

satisfy its burden at the summary judgment stage by identifying a lack of

evidence for the nonmovant on an essential element of the nonmovant's claim. 

The nonmoving party may not rest solely on the allegations in the pleadings,

but instead must designate specific facts showing that there is a genuine issue

for trial. 

Only disputes over material facts can create a genuine issue for trial and

preclude summary judgment. A disputed fact is material if under the relevant

substantive law it is essential to proper disposition of the claim. An issue is

genuine if the evidence is such that it might lead a reasonable jury to return a

verdict for the nonmoving party. When reviewing a motion for summary

judgment, a court must view the evidence in the light most favorable to the

non-moving party. 

Llewellyn v. Allstate Home Loans, Inc., 795 F. Supp. 2d 1210, 1222 (D. Colo. 2011) (internal

quotation marks and citation omitted). 

Because Mr. Hankins appears pro se, the court “review[s] his pleadings and other

papers liberally and hold[s] them to a less stringent standard than those drafted by

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attorneys.” Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations

omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a

pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”).

“The Haines rule applies to all proceedings involving a pro se litigant, including . . . summary

judgment proceedings.” Hall Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir. 1991) (citations

omitted). However, a court may not assume that a plaintiff can prove facts that have not

been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. 

See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (court’s role is not to act as

pro se litigant’s advocate); Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th

Cir. 1997) (court may not “supply additional factual allegations to round out a plaintiff’s

complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court

may not “construct arguments or theories for the plaintiff in the absence of any discussion of

those issues"). 

As the Complaint has been sworn to under penalty of perjury (see Doc. # 1 at 12 of

12), the court may treat it as an affidavit. Green v. Branson, 108 F.3d 1296, 1301 n. 1 (10th

Cir. 1997). Where the court treats a verified complaint as an affidavit, whether a party's

affidavit in opposition to summary judgment is "sufficient to create a genuine issue of

material fact must be evaluated in light of the principle that conclusory allegations without

specific supporting facts have no probative value." Nichols v. Hurley, 921 F.2d 1101, 1113

(10th Cir. 1990) (internal quotation marks and citation omitted). See also Abdulhaseeb v.

Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) (“[A] verified complaint may be treated as an

affidavit for purposes of summary judgment if it satisfies the standards for affidavits set out in

Rule 56(e).”) (internal quotation marks and citation omitted). “[T]here may be cases where

the sole reliance on a verified complaint would be insufficient to meet a nonmoving party’s

burden . . . , especially when the allegations contained in the pleading are merely

conclusory.” Conaway v. Smith, 853 F.2d 789, 792-93 (10th Cir. 1988). 

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III. Background

In approximately June of 1987, plaintiff acquired an interest in the Ace #

7 association placer mining claim in Moffat County, Colorado. 

. . . The Ace # 7 mining claim was inspected in 1998, 1999, and 2000 by

the Bureau of Land Management (“BLM”), and it was determined that plaintiff's

activities on the claim did not comply with the use and occupancy regulations of

the United States Department of Interior (“Interior”) set forth at 43 C.F.R.

subpart 3715. On September 26, 2000, the BLM issued a Notice of

Noncompliance (“NON”) to the plaintiff. Citing to 43 C.F.R. § 3715.2, the BLM

stated that prior site visits had revealed that although there was ancillary work

being performed on the Ace # 7 mining claim, “no appreciable mining activity

was documented as having occurred” involving “significant regular extraction

and processing of mineral bearing earth materials.” The NON directed that

plaintiff had 30 days in which to remove his trailer, outbuildings, mining

equipment, materials, supplies, septic system, and debris from the public lands.

. . . On October 25, 2000, the plaintiff appealed the NON to the Interior

Board of Land Appeals (“IBLA”).

. . . The IBLA issued its ruling on plaintiff's appeal on July 22, 2004. In

reviewing the BLM's finding that the plaintiff was not in compliance with 43

C.F.R. § 3715.2, the IBLA found that plaintiff did not meet the requirements of

the regulation in maintaining a residence on the claim and affirmed the BLM on

the residence issue. However, the IBLA did reverse the 2000 NON on the issue

of plaintiff's use of the mining claim for storage purposes, and also found that

the notice improperly ordered the plaintiff to immediately cease all activity and

reclaim the site. The IBLA determined that the BLM should have given the

plaintiff a period of 60 days within which to demonstrate that he had taken

corrective action to bring his mining operation into compliance with the law. The

matter was remanded to the BLM “to issue an amended NON that will establish

a period of 60 days for Hankins to demonstrate that he has taken corrective

action to bring his mining operation into compliance.”

On September 22, 2004, the BLM issued an Amended Notice of

Noncompliance (“Amended NON”), in accordance with the IBLA ruling. Under

the Amended NON, plaintiff was given 60 days in which to demonstrate that he

had taken corrective action with regard to the mining claim which would comply

with 43 C.F.R. § 3715. Plaintiff was warned in the Amended NON that if he

failed to demonstrate compliance within the allowed time, the BLM “may take

appropriate action to require removal of the residence facilities and appropriate

reclamation of the site.” 

Hankins v. Norton, No. 04-cv-02196-PSF-OES, 2005 WL 2141007, at ** 1-2 (D. Colo. Sept. 

2, 2005), Report and Recommendation Adopted, 2005 WL 2372834 (D. Colo. Sept. 27,

2005). 

On October 22, 2004, Mr. Hankins, acting pro se, filed his Complaint in Hankins v.

Norton, Civil Action No. 04-cv-02196-PSF-OES. On September 27, 2005, the court

dismissed the action in its entirety without prejudice pursuant to Fed. R. Civ. P. 12(b)(1),

finding that Mr. Hankins failed to meet his burden of showing a waiver of sovereign immunity

Case 1:11-cv-02224-WJM-CBS Document 63 Filed 06/05/12 USDC Colorado Page 5 of 16
 In the Complaint, Mr. Hankins refers to his mining claim as “Mindy Rae No. 1.” (See 1

Doc. # 1 at 4 of 12). However, at the time that the Cessation Order was issued, his

unpatented mining claim on the land at issue was located under the name “Ace No. 7.” BLM

terminated the Ace No. 7 mining claim on April 21, 2008. (See Exhibit D (serial register

pages for Ace No. 7) (Doc. # 24-4) at 2 of 4). In March 2009, nearly a year after the

Cessation Order was issued, Mr. Hankins located “Mindy Rae No. 1” on the same land on

which Ace No. 7 had been located. (Compare Exhibit A to Defendant Husband’s Motion

(Ace No. 7 Placer Mining Claim Location Notice) (Doc. # 24-1) with Exhibit C (Mindy Rae No.

1 Location Notice) (Doc. # 24-1 at 3 of 3) (describing same location of claim: “Sec. 8, T11N,

R91W, 6th P.M.”). 

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or allege any basis on which subject matter jurisdiction could be found to exist for the claims

he sought to bring and no other basis for subject matter jurisdiction was “apparent from the

record.” Id., at * 13. 

The BLM’s removal of property from Mr. Hankins’ mining claim was part of the BLM’s

reclamation of the land pursuant to regulations concerning use and occupancy of federal

land under the mining laws, 43 C.F.R. § 3715, et seq., and a Cessation Order issued to

Plaintiff on April 4, 2008. (See Exhibit B to Defendant Husband’s Motion (Cessation Order)

(Doc. # 24-2)). The Cessation Order was issued based on BLM’s determination that Mr.

Hankins’ occupancy of the claim was not in compliance with the use and occupancy

regulations. (See id. at 2, 5 of 8). Pursuant to the use and occupancy regulations, any

property that Mr. Hankins failed to remove became property of the United States and was

subject to removal and disposition by the BLM. See 43 C.F.R. § 3715.5-2. Mr. Hankins

alleges that his property was removed in or about August of 2010. (See Doc. # 1 at 4, 6, 9 of

12). 

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IV. Analysis 

A. Defendants Husband’s and BLM’s Motions to Dismiss

Mr. Hankins brings his claims pursuant to 42 U.S.C. § 1983. (See Doc. # 1 at 3 of 12).

Section 1983 does not create any substantive rights; rather, it creates only a remedy for

violations of rights secured by federal statutory and constitutional law. Chapman v. Houston

Welfare Rights Org., 441 U.S. 600, 616-18 (1979). “In order to successfully state a cause of

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action under section 1983, [Mr. Hankins] must allege . . . the deprivation of a federal right

and that the alleged action was taken under color of state law.” Southern Disposal, Inc. v.

Texas Waste Management, 161 F.3d 1259, 1265 (10th Cir. 1998) (internal quotation marks

and citation omitted). 

Mr. Hankins brings his claims against the BLM, a federal agency, and Mr. Husband,

an employee of the BLM, in his official capacity, alleging misconduct related to the

performance of their duties. Defendants BLM and Mr. Husband hold authority and acted only

pursuant to federal law. No action under § 1983 lies against federal officials acting pursuant

to federal law. See, e.g., District of Columbia v. Carter, 409 U.S. 418, 424–25 (1973)

(“actions of the Federal Government and its officers are at least facially exempt from [§

1983's] proscriptions”); Jackman v. United States, 604 F. Supp. 2d 84, 89 (D.D.C. 2009)

(cause of action under § 1983 cannot be maintained against the United States or its officers

because “[s]ection 1983 does not apply to federal officials acting under color of federal law”)

(citation omitted); Campbell v. Amax Coal Company, 610 F.2d 701, 702 (10th Cir. 1979) (§

1983 does not apply to federal officers acting under color of federal law); Albajon v.

Gugliotta, 72 F. Supp. 2d 1362, 1369 (S.D. Fla. 1999) (§ 1983 applies only to a violation of a

federal or constitutional right while acting under color of state law). Without facts alleged to

demonstrate action under color of state law, Mr. Hankins’ § 1983 claims against the BLM and

Mr. Husband do not state a claim upon which relief can be granted. 

1. Claims against BLM and Mr. Husband in his Official Capacity

Even if the court liberally construes Mr. Hankins' claims as something other than §

1983 claims, “[t]he United States, as sovereign, is immune from suit save as it consents to be

sued. . . .” United States v. Sherwood, 312 U.S. 584, 586–87 (1941). See also United States

v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may not be sued

without its consent and that the existence of consent is a prerequisite for jurisdiction.”). A

claim for damages against a federal defendant in his official capacity is treated as a claim

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against the United States. Weaver v. United States, 98 F.3d 518, 520 (10th Cir. 1996). See

also Atkinson v. O'Neill, 867 F.2d 589, 590 (10th Cir.1989) (“when an action is one against

named individual defendants, but the acts complained of consist of actions taken by

defendants in their official capacity as agents of the United States, the action is in fact one

against the United States.” (citations omitted)). "It is well settled that the United States and

its employees, sued in their official capacities, are immune from suit, unless sovereign

immunity has been waived." Atkinson, 867 F.2d at 590 (citing Kentucky v. Graham, 473 U.S.

159, 165-67, 105 S. Ct. 3099, 3105 (1985). As to Mr. Hankins’ claim for violation of due

process, Congress has not waived the federal government's sovereign immunity with respect

to constitutional torts, and therefore the United States is immune from a damages suit for a

constitutional tort. See F.D.I.C. v. Meyer, 510 U.S. 471 (1994) (holding that the United

States may not be sued under the Federal Tort Claims Act for a constitutional tort and that

federal agencies may not be sued under Bivens v. Six Unknown Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971)); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002)

(doctrine of sovereign immunity precludes a Bivens action against the United States or any

agency thereof). 

Mr. Hankins alleges jurisdiction based also on the “Mining Law of 1865 (Placer

Mining)”, the “Multiple Use Act (1947),” and 43 C.F.R 3800. (See Doc. # 1 at 3 of 12). The

Mining Law of 1872 does not contain an express waiver of sovereign immunity. See

Hankins, 2005 WL 2141007, at * 6 (citing 30 U.S.C. §§ 22 et seq.). Mr. Hankins has not

pointed out and the court has not located an express waiver of sovereign immunity related to

the “Mining Law of 1865 (Placer Mining)” alleged in the Complaint. Neither the Multiple Use

Mining Act of 1955 nor the Materials Act of 1947 contains an express waiver of sovereign

immunity. See 30 U.S.C. §§ 601 et seq. Nor do the regulations of mining claims under the

general mining laws contain an express waiver of sovereign immunity. See 43 C.F.R. Part

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 As Mr. Hankins seeks only monetary relief in this action, he does not argue that 2

sovereign immunity would not preclude a request for injunctive relief. 

 in his Supplement, Mr. Hankins challenges the BLM’s agency Notices, Orders, and 3

Decisions between January 1, 2000 and October 10, 2010 as fraudulent. (See Doc. # 57).

However, fraud is excepted from the FTCA's waiver of sovereign immunity. See 28 U.S.C. §

2680(h) (provisions of FTCA do not apply to “any claim arising out of . . . deceit”); Haney v.

Castle Meadows, Inc., 868 F. Supp. 1233, 1237 (D. Colo. 1994). 

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3800. 

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In his Response to Defendant Husband’s Motion to Dismiss, Mr. Hankins argues that

“[r]esolution of the dispute was to be based on the provisions of the Federal Tort Claims Act

(FTCA), which waives sovereign immunity for wrongs to individuals by federal agents.” (See

Doc. # 61). The FTCA “provides the exclusive avenue to assert a claim sounding in tort 3

against the United States.” See In re Franklin Sav. Corp., 385 F.3d 1279, 1286 (10th Cir.

2004) (citing 28 U.S.C. § 2679(a)); 28 U.S.C. § 1346(b). The Complaint does not allege

jurisdiction under the FTCA. Further, while the United States has consented to be sued for

torts in the FTCA, as a prerequisite to suit under the Act, the claim must first be presented to

the appropriate federal agency and be finally denied by the agency. Three-M Enterprises,

Inc. v. United States, 548 F. 2d 293, 294 (10th Cir. 1977) (citations omitted). “This

requirement is jurisdictional and cannot be waived.” Id. Mr. Hankins has not alleged that he

filed an administrative claim which fully complied with the FTCA. 

“Waiver of sovereign immunity must be explicit and cannot be implied.” High Country

Citizens Alliance v. Clarke, 454 F.3d 1177, 1181 (10th Cir. 2006). Mr. Hankins bears the

burden of establishing that the United States waived sovereign immunity regarding the claims

in this matter in order for the court to exercise subject matter jurisdiction. McMillan v. Wiley,

813 F. Supp. 2d 1238, 1245 (D. Colo. 2011) (citations omitted). Mr. Hankins has not

demonstrated that the United States has waived sovereign immunity for the circumstances 

he alleges. The Complaint fails to state a claim against the BLM and its agent sued in his

official capacity, Mr. Husband, because they are immune from suit. Defendants BLM and Mr.

Husband in his official capacity are properly dismissed from the case. 

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2. Claims against Mr. Husband in his Individual Capacity

Mr. Hankins has indicated that he is suing Defendant Husband in both his official and

individual capacities. (See audio recording of hearing held on January 5, 2012). Under

certain circumstances, an action can be maintained against federal officials or agents in their

individual capacities for violations of constitutional rights under color of federal law. See

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388

(1971). In Bivens, the Supreme Court recognized "an implied private right of action for

damages against federal officers alleged to have violated a citizen's constitutional rights."

Correctional Services Corporation v. Malesko, 534 U.S. 61, 66 (2001). See also Simmat v.

U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005) (“a Bivens claim lies against

the federal official in his individual capacity – not . . . against officials in their official

capacity”); Applewhite v. U.S. Air Force, 995 F.2d 997, 999 n.8 (10th Cir. 1993) (Bivens suits

seek to impose personal liability upon a federal government official for damages “arising out

of the federal official’s violation of federal constitutional law.”). 

Personal participation is an essential allegation in a Bivens action. See Ashcroft v.

Iqbal, 556 U.S. 662, 677 (2009) (“Absent vicarious liability, each Government official, his or

her title notwithstanding, is only liable for his or her own misconduct.”); Kite v. Kelley, 546

F.2d 334, 336-38 (10th Cir. 1976) (plaintiff suing federal officials for constitutional violations

under Bivens must show affirmative link between defendant’s conduct and the alleged

constitutional deprivation). See also Dalrymple v. Reno, 334 F.3d 991, 995 (11th Cir. 2003)

(no respondeat superior liability in Bivens actions), abrogation on other grounds recognized

by 814 F. Supp. 2d 1317 (M.D. Ala. 20011); Simpkins v. District of Columbia Gov't, 108 F.3d

366, 369 (D.C. Cir. 1997) (complaint must allege personal involvement by government official

in events giving rise to constitutional claim under Bivens); Del Raine v. Williford, 32 F.3d

1024, 1047 (7th Cir. 1994) (respondeat superior cannot be the basis of a Bivens claim, there

must be individual participation and involvement by the defendant). 

The Complaint contains no specific factual allegations of conduct by Mr. Husband that

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 In his Response, Mr. Hankins acknowledges that Mr. Husband has not yet been 4

served in his individual capacity and asks “the Court to remove his name from Complaints

and Motions so far filed and to substitute instead ‘[t]he Unknown Manager of the Little Snake

Resource area, or any presently Acting Manager, acting individually.’ ” (See Doc. # 62). Mr.

Hankins asks the court to “use the U.S. Marsha[l]’s Service to obtain jurisdiction over the new

unknown Manager . . . .” However, an unidentified individual cannot be served by the U.S.

Marshal. Further, Mr. Hankins provides no indication of any personal participation in any

alleged constitutional violation by an unknown or acting manager of the Little Snake

Resource area. 

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could be violative of Mr. Hankins’ federal civil rights. Mr. Husband is not mentioned

anywhere in the Complaint other than the caption. Mr. Hankins makes no allegations that

Defendant Husband personally participated in any constitutional deprivation. There are no

allegations that identify what actions Defendant Husband took that give rise to any

constitutional violation. As there are no facts alleged to support a claim against Mr. Husband

under Bivens, the Complaint is properly dismissed against Mr. Husband in his individual

capacity. 

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B. Axis’ Motion to Dismiss or, in the Alternative, Motion for Summary Judgment 

Mr. Hankins alleges destruction or removal of his property “without the benefit of due

process.” (See Doc. # 1 at 7 of 12). Where, as here, federal law provides the alleged basis

for jurisdiction, “the constitutional limits of due process derive from the Fifth, rather than the

Fourteenth, Amendment.” Republic of Panama v. BCCI Holdings (Luxemburg), 119 F.3d

935, 942 (11th Cir. 1997) (citation omitted). The Due Process Clause of the Fifth

Amendment provides that “[n]o person shall . . . be deprived of life, liberty, or property,

without due process of law.” U.S. Const. amend. V. 

To establish that his due process rights have been infringed, plaintiff must

demonstrate that the laws creating these rights give rise to a legitimate claim of

entitlement. In the case of a mining claim such as plaintiff possesses, the

United States Supreme Court has held that an unpatented mining claim is a

unique form of property which imparts a possessory mineral interest in land. A

mining claim has been described as property in the fullest sense of that term. 

Rogers v. United States, 575 F. Supp. 4, 6-7 (D. Mont. 1982). The court assumes without

deciding “that plaintiff's unpatented mining claim is sufficient to invoke the property strictures

Case 1:11-cv-02224-WJM-CBS Document 63 Filed 06/05/12 USDC Colorado Page 11 of 16
 Defendant notes that Mr. Hankins alleges the property in question was not removed 5

until approximately August 2010, which is several years after the April 4, 2008 Cessation

Order obtained by the BLM. If the BLM had the right to obtain possession or control of the

property that is the subject of Mr. Hankins’ claims, then he may not be able to establish a

legitimate claim of entitlement giving rise to a due process right. 

 Copies of unpublished cases cited are attached to this Recommendation. 

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of the Fifth Amendment's due process clause.” Id. 

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“[T]he Fifth Amendment limits only the conduct of government officials” and does not

apply to private parties. United States ex rel Nagy v. Patton, No. 11-267, 2012 WL 1858983,

at * 2 (E.D. Pa. May 22, 2012) (citation omitted). See also Public Utilities Comm’n v. Pollak,

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343 U.S. 451, 461 (1952) (Fifth Amendment applies to and restricts only the Federal

Government and not private persons); United States v. Balsys, 524 U.S. 666, 700 (1998)

(Stevens, J., concurring) (“Th[e] [Fifth Amendment] constrains the power of the Federal

Government to deprive any person ‘of life, liberty, or property, without due process of law,’

just as the Fourteenth Amendment imposes comparable constraints on the power of the

States.”); Gilmore v. Salt Lake Community Action Program, 710 F.2d 632, 635–36 (10th

Cir.1983) (requiring federal action to assert Fifth Amendment due process violation). 

“Nevertheless, in scenarios in which government officials actively direct or assist

private actors in causing harm to an individual, some courts have treated the government's

involvement as amounting to government conduct.” Velez-Diaz v. Vega-Irizarry, 421 F.3d 71,

79 (1st Cir. 2005). See also Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 486

(1988) (Courts have applied the Fifth Amendment due process clause to private individuals

when the private parties have made “use of state procedures with overt, significant

assistance of state officials.”); United States v. Garlock, 19 F.3d 441, 442 (8th Cir. 1994)

(Only where the government controlled or encouraged the conduct at issue, such that the

private individual “acted as an instrument or agent of the government,” will the Constitution

protect the defendant.) (internal quotation marks and citation omitted).

The Complaint asserts two claims for relief. Axis is not named or identified in Claim

One alleging a loss of equipment, mining improvements and personal property. (See Doc. #

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 On February 29, 2012, Mr. Hankins submitted an Amended Complaint which the court 7

struck for failure to seek leave of the court. (See Docs. # 56, # 47). Mr. Hankins has not

further sought to amend his pleadings. (See, e.g., Courtroom Minutes/Minute Order (Doc. #

58)).

13

1 at 5-7 of 12). While no specific cause of action is identified in Claim Two, Axis is named

with respect to loss of income from a 24-foot by 4-foot trommel that is alleged to have been

"stolen by the BLM in August 2010.” (See Doc. # 1 at 9 of 12). In the Nature of the Case,

Mr. Hankins alleges that Axis, acting "under contract from BLM, entered plaintiff's property at

Mindy Rae No. 1 placer mining claim and illegally damaged or removed mining equipment

and personal property . . . ." (See Doc. # 1 at 4 of 12). Mr. Hankins alleges that Axis, while

"acting for the BLM tried to remove the 24-foot by 4 foot Cedar Rapids trommel . . . ." (See

id.). 

First, the court may properly conclude that Mr. Hankins has confessed Axis' Motion. 

Mr. Hankins admitted in a letter filed with the court on February 29, 2012 that "Axis Steel is

no longer on the Complaint before this Court" and filed an Amended Complaint that did not

name Axis as a Defendant. (See Docs. # 46, # 47). In his Supplement, Mr. Hankins 7

conceded that “appar[e]ntly [Axis was] not contractually involved.” (See Doc. # 57 at 20 of

29). Appearing via telephone at the May 14, 2012 Status Conference, Mr. Hankins

conceded that Axis had been misidentified. (See Courtroom Minutes/Minute Order (Doc. #

58). The court directed Mr. Hankins to file a written response agreeing to or confessing Axis'

Motion to Dismiss. (See id.). On May 18, 2012, Mr. Hankins filed his Response to Axis’

Motion, indicating that he “agrees that Axis Steel, Inc. was ‘misidentified’ as the reclamation

contractor for the BLM at the Ace No. 7 (Mindy Rae No. 1) mining claim in Moffat County”

and “apologiz[ing] again for this mistake, caused by overly redacted Freedom of Information

response from the BLM and my inability to personally investigate due to my incarceration.” 

(See Doc. # 59). 

In his Response, Mr. Hankins also “states, however, that the patrol records of BLM

Ranger Barry Nelson, did show that Axis Steel, Inc., entered the Mindy Rae No. 1 claim on

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 “[D]ismissals for lack of jurisdiction should be without prejudice . . . .” Brereton v. 8

Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.2006) (citations omitted). 

14

June 23, 2009 (see Exhibit ‘AAA’) which was trespass without the owner’s permission . . . .” 

(See Doc. # 59 at 1-2 of 3). Even if Mr. Hankins is not confessing Axis’ Motion to Dismiss, 

the Motion is properly granted. The claims in the Complaint are based solely on the alleged

theft or destruction of property in August 2010. A trespass on June 23, 2009 is not related

on its face to the claims in the case, and Mr. Hankins does not explain any relationship

between a trespass in 2009 and the claims in his Complaint. Mr. Hankins has not alleged

sufficient facts in the Complaint to suggest that he is entitled to relief against Axis. See

Twombly, 550 U.S. at 570. 

Nor has Mr. Hankins disputed the summary judgment record submitted by Axis. Axis

presents evidence that it did not engage “in any contracts, written or otherwise, with respect

to removal of equipment on any mining claims located in Moffat County, Colorado, and

specifically with respect to the mining claim alleged in” the Complaint, and has never acted

on behalf of the BLM. (See Affidavit of Charles Dial (Exhibit A to Axis’ Motion) (Doc. # 30-1)).

There are no records showing that Axis was “awarded any contract or [had] any involvement

with respect to” Mr. Hankins’ mining claim. (See Declaration of Wendy Reynolds (Exhibit B

to Axis’ Motion) (Doc. # 30-2)). The evidence submitted by Axis and unrefuted by Mr.

Hankins demonstrates that Axis is not a proper party to this action. In his Response, Mr.

Hankins does not address the substance of Axis’ evidence. Mr. Hankins fails to carry his

burden to show, through affidavits or other competent evidence, that summary judgment

should not be granted in favor of Axis. 

Accordingly, IT IS RECOMMENDED that:

1. Defendant Husband’s “Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1)”

(filed December 23, 2011) (Doc. # 24) be GRANTED and Defendant Husband be dismissed

without prejudice from this civil action. 

8

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15

2. Defendant Axis Steel, Inc.’s (“Axis”) “Motion to Dismiss Pursuant to Fed. R. Civ.

P. 12(b)(6) or, in the Alternative, Motion for Summary Judgment Pursuant to Fed. R. Civ. P.

56” (filed January 13, 2012) (Doc. # 30) be GRANTED and summary judgment be entered on

the Complaint in favor of Axis Steel, Inc. and against Plaintiff. 

 3. Defendant Federal Bureau of Land Management’s (“BLM”) “Motion to Dismiss

Pursuant to Fed. R. Civ. P. 12(b)(1)” (filed February 23, 2012) (Doc. # 35) be GRANTED and

Defendant BLM be dismissed without prejudice from this civil action. 

Advisement to the Parties

Within fourteen days after service of a copy of the Recommendation, any party may

serve and file written objections to the Magistrate Judge’s proposed findings and

recommendations with the Clerk of the United States District Court for the District of

Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th

Cir. 1995). A general objection that does not put the District Court on notice of the basis for

the objection will not preserve the objection for de novo review. “[A] party’s objections to the

magistrate judge’s report and 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 Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d

1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by

the District Judge of the Magistrate Judge’s proposed findings and recommendations and will

result in a waiver of the right to appeal from a judgment of the district court based on the

proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195

F.3d 573, 579-80 (10th Cir. 1999) (District Court’s decision to review a Magistrate Judge’s

recommendation de novo despite the lack of an objection does not preclude application of

the “firm waiver rule”); International Surplus Lines Insurance Co. v. Wyoming Coal Refining

Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the

Magistrate Judge’s order, cross-claimant had waived its right to appeal those portions of the

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ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file

objections, plaintiffs waived their right to appeal the Magistrate Judge’s ruling). But see,

Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not

apply when the interests of justice require review). 

DATED at Denver, Colorado, this 5th day of June, 2012.

BY THE COURT:

 s/ Craig B. Shaffer 

United States Magistrate Judge 

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