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March 6, 2026 Get Citation Alerts Download PDF Add Note

Mykhael Kuciapinski v. Donna F. Ennis, Dana M. Grant, Lynn J. Matesi, Jefferey A. Johnson, Nicolas A. Budenz, Jesse Newhart, Terrell Harris, Steve Kerley, Deborah McCabe, Keith M. Given, Anthony (Last Name Unknown), Resident Agency DCIS Supervisor, Unknown Washington DC Area Federal Agents 1-3, Unknown Federal Agents 1-12, Dermot O’Reilly, Kelly Mayo, Jeremy Sibert, and Jason Dunn

District Court, D. Colorado

• Citations: None known
• Docket Number: 1:24-cv-02181

• Precedential Status: Unknown Status

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (6.5K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Magistrate Judge Maritza Dominguez Braswell

Civil Action No. 24–cv–02181–PAB–MDB

MYKHAEL KUCIAPINSKI,

Plaintiff,

v.

DONNA F. ENNIS,

DANA M. GRANT,

LYNN J. MATESI,

JEFFEREY A. JOHNSON,

NICOLAS A. BUDENZ

JESSE NEWHART,

TERRELL HARRIS,

STEVE KERLEY,

DEBORAH MCCABE,

KEITH M. GIVEN,

ANTHONY (LAST NAME UNKNOWN), Resident Agency DCIS Supervisor,

UNKNOWN WASHINGTON DC AREA FEDERAL AGENTS 1-3,

UNKNOWN FEDERAL AGENTS 1-12

DERMOT O’REILLY,

KELLY MAYO,

JEREMY SIBERT, and

JASON DUNN

Defendants.

                 MINUTE ORDER                                    

The Court construes Plaintiff’s Motion for Clarity and Request for Written Order as a
request for reconsideration of the Court’s Minute Orders at ECF 791 and 82.2 ([“Motion for
Reconsideration”], Doc. No. 83.) After careful review of the arguments, issues, relevant
documents, and applicable law, the Motion for Reconsideration is DENIED.

SUMMARY FOR PRO SE PLAINTIFF

The Court construes your request as a Motion for Reconsideration of the Court’s prior
orders. Under the high standard applicable to Motions for Reconsideration, the Motion is denied.
First, the Westfall certification arguments are based on a misunderstanding of that law. The
Westfall Act applies in the context of the United States substituting itself as a party, not in the
context of the United States providing counsel to the parties. Second, the Court does not see a
basis for reconsidering its decision on the Immunities Motion, which is in essence, a
supplemental brief on the pending Motion to Dismiss. And to the extent the Immunities Motion
seeks relief, you will have an opportunity to seek that relief if the claims survive the motion to
dismiss phase.

LEGAL STANDARD

The bases for granting reconsideration are extremely limited and 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. Gabriel v. Colorado Mountain Med.,
P.C., 2014 WL 7336789, at *1 (D. Colo. Dec. 23, 2014), aff'd, 628 F. App’x 598 (10th Cir.
2015); Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations
omitted). Thus, a motion for reconsideration may be appropriate where the court has
misapprehended the facts, a party’s position, or the controlling law. Id. “Because the conditions
that justify granting a motion to reconsider are rarely present, such motions are disfavored and
should be equally rare.” Smith v. BNSF Ry. Co., 2019 WL 5104461, at *1 (D. Colo. Oct. 11,

1The Court’s Order at ECF 79 denied Plaintiff’s Motion Contesting Immunities and Prayer for
Relief ([“Immunities Motion”], Doc. No. 77.)

2 The Court’s Order at ECF 82 denied Plaintiff’s Motion Contesting DOJ Representation of
DOD Defendants ([“Representation Motion”], Doc. No. 80.)

2019) (citing Skyline Potato Co. v. Rogers Bros. Farms, 2011 WL 5992788, at *1 (D. Colo. Nov.
30, 2011), as amended (Dec. 1, 2011).

ANALYSIS

Plaintiff argues that the Court erred by not requiring the Assistant United States Attorney
to file Westfall Act scope-of-employment certifications (“Westfall certification”) before he
entered an appearance on Defendants’ behalf. (Doc. No. 83 at 3–6.) This argument rests on a
fundamental misunderstanding of Westfall certifications. A Westfall certification is required
when the United States seeks to be “substituted” in place of the federal officer or employee as a
defendant in a tort action. 28 U.S.C. § 2679 (d)(1) (emphasis added). Here, the United States has
not purported to substitute itself for any Defendant; the U.S. Attorney’s office is merely
representing the federal defendants. Thus, a Westfall certification is not required.3 4See Park v.
Parker, 2025 WL 2495583, at n.5 (S.D.N.Y. Aug. 29, 2025) (“The Westfall Act permits the
Attorney General to certify that claims made against an official in their individual capacity relate
to conduct ‘within the scope of his [or her] office or employment’ and to substitute the United
States as defendant in the action. The Westfall Act does not require certification or substitution in
every case in which federal officials secure government representation.” (emphasis added)
(internal citation omitted)).

3 Every case Plaintiff cites addresses Westfall certification in the context of the United States
substituting itself as a defendant, or involves FTCA claims brought directly against the United
States. None involves a challenge to the government’s decision to provide counsel to federal
defendants. See De Martinez v. Lamagno, 515 U.S. 417 (1995); Osborn v. Haley, 549 U.S. 225 (2007); Hockenberry v. United States, 42 F.4th 1164 (10th Cir. 2022); Fowler v. United States, 647 F.3d 1232, 1234 (10th Cir. 2011); Johnson v. United States, 534 F.3d 958, 960 (8th Cir.
2008); Singleton v. United States, 277 F.3d 864 (6th Cir. 2002); Arbour v. Jenkins, 903 F.2d 416 (6th Cir. 1990); see also Brownback v. King, 592 U.S. 209 (2021); United States v. Gaubert, 499
U.S. 315 (1991).

4 Additionally, Plaintiff’s reliance on 28 C.F.R. § 50.15 appears misplaced. Plaintiff seems to
contend that the regulation requires the government to file scope-of-employment certifications
for representation on the docket, but “28 C.F.R. § 50.15 does not require counsel to file proof of
an approved representation. The regulation merely governs the procedures for federal officials to
obtain representation with respect to individual-capacity claims.” Park v. Parker, 2025 WL
2495583, at *1 (S.D.N.Y. Aug. 29, 2025) (citing 28 C.F.R. § 50.15 (a)).

Plaintiff next challenges the Court’s denial of her Immunities Motion, which the Court
characterized as a supplemental response to the pending Motion to Dismiss filed without
conferral. (Doc. No. 83 at 6–7; see Doc. No. 79.) The Court sees no basis for reconsideration.
First, Plaintiff does not contest that she indeed failed to confer with Defendants’ counsel prior to
filing the Motion. (See Doc. Nos. 77; 83.) This alone warranted denial. See D.C.COLO.LCivR
7.1 (“Before filing a motion, ... an unrepresented party shall confer or make reasonable, good
faith efforts to confer with any opposing counsel ... to resolve any disputed matter. The moving
party shall describe in the motion, or in a certificate attached to the motion, the specific efforts to
fulfill this duty.”). Moreover, even if Plaintiff had conferred with Defendants prior to filing the
Immunities Motion, the Court still would have denied it. The Immunities Motion is a 15-page,
single spaced, prolix document, much of which reads like a narrative of Defendants’ alleged
misconduct during the underlying criminal investigation and prosecution. (See Doc. No. 77 at 1–
10.) Further, the Immunities Motion specifically seeks an order “[d]eny[ing] Defendants’ Motion
to Dismiss in its entirety,” and purports to provide “three (3) independent frameworks
overcoming [the] immunity defenses,” which is directly in line with the Court’s determination
that the Immunities Motion was essentially a supplemental brief in opposition to the motion to
dismiss.5 (Id. at 4.) Finally, to the extent the Immunities Motion does make certain specific
requests for relief—such as the return of certain property and the destruction of Plaintiff’s DNA
sample (Doc. No. 77 at 4)—the requests are far too underdeveloped at this time. They are also
misplaced. To the extent Plaintiff seeks equitable relief, there will be other tools available to
Plaintiff—such as a motion to amend the complaint—but only if and when this case survives the
motion to dismiss stage.

Finally, Plaintiff contends the Court violated Federal Rule of Civil Procedure 72(a) by
denying her motions via Minute Order, because Rule 72(a) requires a magistrate judge to “issue
a written order stating the decision.” (Doc. No. 83 at 3 (citing Rule 72(a)).) But text entry on the
docket is a “written order.” Moreover, the purpose of Rule 72(a) is to allow a district court judge

5 Indeed, though Plaintiff did not seek leave of Court to file this supplement, the Court did not
strike it and in fact expressly noted that it would consider Plaintiff’s arguments in connection
with the pending Motion to Dismiss. (Doc. No. 79.)

to review a party’s objection to a magistrate judge’s non-dispositive ruling. See Fed. R. Civ. P.
72(a) (advisory committee notes) (saying “[t]he rule calls for a written order of the magistrate’s
disposition to preserve the record and facilitate review”). The Court’s Minute Orders gave
Plaintiff notice of its decision, explained its reasoning, and provided Plaintiff the opportunity to
object.6 To the extent Plaintiff simply seeks more explanation, she now has it.7

The Clerk of Court is directed to mail a copy of this Minute Order to Plaintiff:

Mykhael Kuciapinski

5136 Community Center Drive

69

USAF Academy, CO 80840

Dated this 6th day of March, 2026.

                     BY THE COURT:                               

                     ___________________________                 

                     Maritza Dominguez Braswell                  
                     United States Magistrate Judge              

6 Moreover, even assuming a text entry on a docket does not constitute a “written order,”
Plaintiff ignores that Rule 72(a) says that a magistrate judge should issue a written order “when
appropriate.” See Hildebrand v. Steck Mfg. Co., Inc., 2005 WL 8160065, at *5 (D. Colo. Oct. 5,
2005) (citing Rule 72(a)); see also Fed. R. Civ. P. 72(a) (advisory committee notes) (saying “[a]n
oral order read into the record by the magistrate will satisfy this requirement”). Here, the Court
determined that an order longer and more detailed than a text entry was not appropriate.

7 Plaintiff also appears to argue her motions were actually dispositive motions, and thus required
recommendations rather than orders, because they were connected to the Motion to Dismiss and
Westfall certification. (See Doc. No. 83 at 7–8.) This is incorrect. First, the Court made no
substitution determination under the Westfall Act; it simply found the certification requirement
inapplicable. Moreover, the Court’s Minute Orders did not have any dispositive impact on any
claim or defense in the action. They did not resolve the pending Motion to Dismiss, nor did they
foreclose any argument available to Plaintiff. If anything, by permitting Plaintiff to file a second
response to the Motion to Dismiss (see Doc. No. 79), the Court expanded her arguments rather
than curtailed them.