                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                          July 5, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JON STEPHAN VAUPEL,

             Plaintiff-Appellant,

v.                                                         No. 11-1348
                                              (D.C. No. 1:07-CV-01443-PAB-KLM)
UNITED STATES OF AMERICA,                                   (D. Colo.)

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, PORFILIO, Senior Circuit Judge, and MURPHY,
Circuit Judge.



      Jon Stephan Vaupel appeals from the district court’s denial of his motion to

file a second amended complaint and its dismissal of his action. We have jurisdiction

under 28 U.S.C. § 1291 and affirm.




*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.    BACKGROUND1

      Vaupel is an Australian citizen. He entered the United States a number of

times between 1995 and 2003 under the Visa Waiver Program.2 In 2002, he married

an American citizen, Stacey Schwab, in Australia. Schwab became pregnant and

returned to the United States in late 2002 so that the couple’s son could be born there.

When she encountered serious complications with her pregnancy, Vaupel flew to the

United States. On January 31, 2003, he applied for admission under the Visa Waiver

Program but was denied due to an overstay in 1997. He was, however, granted

humanitarian parole through March 7, 2003. Vaupel and his wife then filed

documents to change his immigration status to lawful permanent resident (LPR). On

March 12, 2003, the couple’s son was born. In October 2003, the family moved from

Texas to Denver, Colorado. In February 2004, Vaupel was granted temporary LPR

status.3 In April, Schwab was charged with child abuse and harassment against


1
       We draw the facts largely from Vaupel’s first amended complaint in this
action, Doc. 10, see Supp. App. at 1-83, as supplemented or corrected by public
documents elsewhere in the record. Although not captioned as such, we refer to this
complaint as Vaupel’s first amended complaint because he filed it in response to the
district court’s order stating that he had not filed his initial complaint on the proper
form.
2
       Under the Visa Waiver Program, nonimmigrant visitors from certain
participating countries may enter and remain in the United States for a period not
exceeding 90 days without having to obtain and present a visa. See 8 U.S.C.
§ 1187(a).
3
      In his second proposed amended complaint, Vaupel alleged that he was
granted a conditional permanent residency valid until February 5, 2006.


                                          -2-
Vaupel and their son. She pleaded guilty to harassment. In June, Vaupel was

arrested on multiple charges based on false allegations by Schwab. He was released

on bond.

      On the same day Vaupel was released on bond, Schwab withdrew her

immigration sponsorship for his application to adjust status to LPR. Mario Ortiz,

who was then the District Director of the Denver District Office of the United States

Customs and Immigration Service (USCIS), signed a letter explaining that Vaupel’s

application was denied because Schwab had withdrawn her visa petition. In early

July, Vaupel filed for divorce after discovering that Schwab was having an affair

with Ortiz.4

      In October 2004, Vaupel filed a petition to adjust his status to LPR under the

Violence Against Women Act as an abused spouse of a United States citizen. The

next day, Vaupel was arrested and detained by officers of Immigration and Customs

Enforcement (ICE). ICE issued a Determination of Inadmissibility and a Notice and

Order of Expedited Removal. In November, Vaupel was transferred to the custody of

the Jefferson County, Colorado, Sheriff’s Office to answer the criminal charges

Schwab had filed. ICE officer John Samson placed a no-hold bond on Vaupel and

argued to the state-court judge that unless the court revoked Vaupel’s bond, ICE

would promptly remove Vaupel. The judge then revoked Vaupel’s bond. Ultimately,


4
      According to Vaupel’s proposed second amended complaint, Ortiz and Schwab
married in July 2007.


                                         -3-
Vaupel pleaded guilty to one count of disorderly conduct, and the remaining charges

were dismissed.5

      Next, Vaupel, still in ICE custody, sought federal habeas relief in February

2005. The district court denied his petition, and Vaupel was removed on February

25, 2007. We dismissed his appeal from the denial of his habeas petition for lack of

jurisdiction. Vaupel v. Ortiz, 244 F. App’x 892, 893 (10th Cir. 2007). Meanwhile, in

2006, Vaupel was found not guilty on charges of attempted murder one and

solicitation of murder one, which allegedly were based on fabrications by Ortiz.

      Vaupel filed his complaint in this civil action pro se in July 2007 and an

amended complaint in September 2007. He asserted five claims against the United

States under the Federal Tort Claims Act (FTCA) arising from the denial of his

application to adjust to LPR status, his detention, and his removal: negligence, false

arrest, false imprisonment, abuse of process, and malicious prosecution. He named

only the United States as a defendant, presumably under the principle that “[t]he

United States is the only proper defendant in an FTCA action,” Oxendine v. Kaplan,

241 F.3d 1272, 1275 n.4 (10th Cir. 2001). But he repeatedly referred in the body of

his first amended complaint to other government actors, including Ortiz and Samson,

as defendants or respondents.


5
        Vaupel alleged that all charges were dismissed due to lack of evidence, but
this allegation is contradicted by court records attached to a motion to dismiss filed
by the United States. In any event, what actually happened is immaterial to our
disposition of this appeal.


                                          -4-
      The United States filed a motion to dismiss, which the district court denied on

June 12, 2008, concluding that the better course was “to request the Clerk of Court to

canvass interested counsel as to their willingness to represent Mr. Vaupel, and to

allow Mr. Vaupel to amend his complaint.” App. at 249. The court ordered that if no

attorney entered an appearance on Vaupel’s behalf by September 30, 2008, Vaupel

would have until October 30, 2008, to file an amended complaint or face dismissal

for failure to prosecute. In December 2008, after Vaupel had failed to find an

attorney or file an amended complaint by the October 30 deadline, the magistrate

judge issued a recommendation that the case be administratively closed for six

months, subject to reopening upon a showing of good cause.

      The district court rejected the recommendation as moot after counsel entered

an appearance on behalf of Vaupel in September 2010. Counsel then filed a

proposed second amended complaint in December 2010. The magistrate judge struck

that complaint because it was not accompanied by a motion for leave to file an

amended complaint, as previously ordered. Vaupel then filed both a motion for leave

and a shorter version of his proposed second amended complaint in which he added

Ortiz and Samson as defendants and asserted eight FTCA claims. He invoked a

number of bases for jurisdiction, including the FTCA and Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).6 The


6
       “Under Bivens, an individual has a cause of action against a federal official in
his individual capacity for damages arising out of the official’s violation of the
                                                                             (continued)
                                         -5-
government filed an opposition, Vaupel replied, and the government was permitted to

file a surreply.

       The motion to file the amended complaint was referred to the magistrate judge,

who recommended that the motion be denied and the action be dismissed. The

district court adopted the recommendation over Vaupel’s objections. The court first

concluded that Vaupel had not properly pleaded a Bivens claim. The court observed

that although Vaupel had alluded to the denial of due process two times in his factual

allegations, he had not included a claim for denial of due process and failed to

identify what process he was allegedly denied. The court declined to look for

missing factual allegations supporting a Bivens claim in either the stricken proposed

amended complaint or Vaupel’s reply to the government’s opposition.

       Turning to the FTCA claims, the district court concluded that two of the

intentional tort claims—fraud and interference with contract—were subject to

dismissal because the United States had not waived its sovereign immunity for such

claims. See 28 U.S.C. § 2680(h). As to the other two intentional tort claims—abuse

of process and false imprisonment—the court observed that the FTCA waives the

United States’ sovereign immunity to the extent such claims are based on the “acts or

omissions of investigative or law enforcement officers of the United States


United States Constitution under color of federal law or authority.” Dry v. United
States, 235 F.3d 1249, 1255 (10th Cir. 2000) (emphasis omitted). “Similarly, the
FTCA allows injured persons to sue for torts committed by federal employees while
acting within the scope of their office or employment. 28 U.S.C. § 1346(b)(1).” Id.


                                         -6-
Government,” defined as “any officer of the United States who is empowered by law

to execute searches, to seize evidence, or to make arrests for violations of Federal

law.” Id. Thus, the viability of those claims depended on whether Ortiz or Samson,

the only federal officers identified in the proposed second amended complaint, were

investigative or law enforcement officers.

      The court concluded that Oritz was not an investigative or law enforcement

officer based on an affidavit from Ortiz attesting as much. The court rejected

Vaupel’s argument that it was precluded from considering such evidence unless it

was in the context of summary judgment, noting that under Holt v. United States,

46 F.3d 1000, 1003 (10th Cir. 1995), it had discretion to consider a wide variety of

affidavits and other documents pertaining to subject matter jurisdiction without the

necessity of a summary judgment proceeding.7 The court also considered a job

description Vaupel submitted for a Supervisory Adjudications Officer at the USCIS

but concluded that the description did not show that such officers are investigative or

law enforcement officers under § 2680(h).

      Regarding Samson, the court noted that he had admitted in an affidavit that he

was an investigative or law enforcement officer but concluded that it would be futile

to allow the abuse of process claim against him, as amended, because it was subject


7
      This standard is typically cited in the context of converting a motion to dismiss
to a motion for summary judgment. Here however, there was no pending motion to
dismiss with regard to the proposed second amended complaint, only the
government’s opposition to amendment.


                                          -7-
to dismissal. See Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Investor’s Servs.,

Inc., 175 F.3d 848, 859 (10th Cir. 1999) (explaining that “[a] proposed amended

complaint is futile if the complaint, as amended, would be subject to dismissal”).

One element of an abuse of process claim under Colorado law is “an ulterior purpose

for the use of a judicial proceeding,” Walker v. Van Laningham, 148 P.3d 391, 394

(Colo. App. 2006),8 and Vaupel had not alleged any facts showing that Samson had

an ulterior motive in placing a detainer on Vaupel and convincing the Jefferson

County judge to revoke his bond. The court reached the same conclusion with

respect to the amended false imprisonment claim against Samson, concluding that it

lacked factual support for the essential element of unlawfulness. See McDonald v.

Lakewood Country Club, 461 P.2d 437, 440 (Colo. 1969) (listing elements of false

imprisonment claim, including unlawfulness of restraint).

      The district court then addressed the other four FTCA claims—negligence,

intentional infliction of emotional distress (IIED), conspiracy, and breach of

fiduciary duty. As to the negligence claim, the court concluded that Vaupel failed to

exhaust administrative remedies, which is a jurisdictional bar to judicial review under

the FTCA, see Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 270

(10th Cir. 1991); see also 28 U.S.C. § 2401(b) (“A tort claim against the United


8
        FTCA claims are governed by “the law of the state in which the allegedly
tortious act or omission occurred. 28 U.S.C. § 1346(b)(1).” Staggs v. United States
ex rel. Dep’t of Health & Human Servs., 425 F.3d 881, 884 n.3 (10th Cir. 2005).
Thus, Colorado law governs Vaupel’s FTCA claims.


                                         -8-
States shall be forever barred unless it is presented in writing to the appropriate

Federal agency within two years after such claim accrues . . . .”). Next, the court

agreed with the magistrate judge that Vaupel failed to allege extreme and outrageous

conduct necessary to support his IIED claim. See Han Ye Lee v. Colo. Times, Inc.,

222 P.3d 957, 963 (Colo. App. 2009) (requiring extreme and outrageous conduct for

IIED claim). The court observed that the district court in Vaupel’s habeas

proceeding had found that his detention was lawful, and although the habeas court

was troubled by the affair between Ortiz and Schwab, it found that Ortiz had not

improperly denied Vaupel’s application to adjust status because the denial occurred

after Schwab had withdrawn her petition in support. See Vaupel v. Ortiz,

No. 05-cv-00327-WDM-MJW, 2005 WL 1799360, at *1-*2 (D. Colo. July 28, 2005)

(unpub.). Finally, the district court concluded that Vaupel failed to allege any facts

showing a conspiracy between two or more persons, see Magin v. DVCO Fuel Sys.,

Inc., 981 P.2d 673, 674 (Colo. App. 1999) (stating that civil conspiracy requires

“agreement by two or more persons”), or that the United States or any of the

immigration officers involved in the case owed him any fiduciary duty.

      Because the proposed amended complaint was futile, the district court denied

Vaupel’s motion for leave to file it. The court then concluded that the case should be

dismissed because a prior order instructed Vaupel to file an amended complaint after

he was appointed counsel, and Vaupel had admitted that his first amended complaint

was deficient. This appeal followed.


                                          -9-
II.    DISCUSSION

       We review the “denial of a motion to amend a pleading for abuse of

discretion.” Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d

1232, 1249 (10th Cir. 2009). But “when denial is based on a determination that

amendment would be futile, our review for abuse of discretion includes de novo

review of the legal basis for the finding of futility.” Id.

       We first agree with the district court’s conclusion that Vaupel failed to

adequately plead a Bivens claim in the proposed second amended complaint. Vaupel

did not assert any constitutional claims, even in the formulaic manner in which he

pleaded his eight FTCA claims, and his isolated jurisdictional reference to Bivens is

insufficient to adequately present a constitutional claim. Further, as the district court

noted, he made only two passing references to constitutional rights in the entirety of

the proposed second amended complaint, both of which occurred before any mention

of Ortiz’s or Samson’s alleged conduct. In the first, Vaupel alleged that “[r]escission

of [his legal permanent] residency required due process of law.” App. at 282. In the

second, he alleged that “it was unlawful to divest him of his residency without due

process of law.” Id. Vaupel did not allege that Ortiz, Samson, or any other federal

officer violated his due process rights, and he did not identify any process to which

he claimed entitlement. Vaupel did allege that Ortiz lacked authority to rescind his

lawful permanent residency and that ICE lacked authority to subject him to

mandatory detention and expedited removal, but he never tied that alleged lack of


                                          - 10 -
authority to any constitutional deprivation. In sum, we see no abuse of discretion in

the district court’s determination that Vaupel failed to include a Bivens claim.

      As to the district court’s refusal to permit amendment of the FTCA claims, the

government argues that Vaupel has waived appellate review of many of them by

failing to make adequately specific objections to the magistrate judge’s

recommendation (and as to the negligence claim, to make any objection at all). The

government also argues that Vaupel’s appellate arguments are insufficient to invoke

appellate review on a number of the FTCA claims. While we might be inclined to

agree with the government’s position, we need not conclusively decide these matters,

for we agree with the district court’s rulings regarding sovereign immunity and

futility, and therefore affirm those rulings for substantially the same reasons set forth

in the district court’s order dismissing the case.

      The judgment of the district court is AFFIRMED.


                                                   Entered for the Court


                                                   Michael R. Murphy
                                                   Circuit Judge




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