Warrington v. Department of Homeland Security et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22-cv-02792-NYW-NRN
SCOTT THOMAS WARRINGTON,
Plaintiff,
v.
KRISTI NOEM, in her official capacity as Secretary of the DHS,
Defendant.
REPORT AND RECOMMENDATION ON
PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT AND
CLARIFING MOTION REGARDING REGULATORY NONCOMPLIANCE AND
RESULTING STRUCTURAL CARDIAC INJURY
(ECF No. 168)
N. REID NEUREITER
United States Magistrate Judge
This matter is before the Court pursuant to an Order issued by Judge Nina Y.
Wang, ECF No. 169, referring Plaintiff Thomas Warrington’s (“Plaintiff” or “Mr.
Warrington”) Motion for Leave to File Second Amended Complaint and Clarifying Motion
Regarding Regulatory Noncompliance and Resulting Cardiac Injury (“Motion to
Amend”), filed January 5, 2026. ECF No. 168. The Court has taken judicial notice of the
Court file, considered the applicable Federal Rules of Procedure and case law. Now,
being fully informed and for the reasons discussed below, the Court recommends the
Plaintiff’s Motion be DENIED in its entirety.
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I. 	BACKGROUND
The Court has set forth the relevant facts and history of this case in three prior
Reports and Recommendations (“R&R”), see ECF Nos. 77, 126 & 164, and will repeat it
here only as necessary.
Plaintiff filed the operative Employment Discrimination Complaint (“Amended
Complaint”), ECF No. 11, on December 1, 2022, bringing three claims against the
Department of Homeland Security (“DHS”), Alejandro Nicholas Mayorkas (Secretary of
DHS), Secretary Transportation Security Administration (“TSA”), and David Peter
Pekoske (Administrator of TSA). First, he claimed he was terminated from his
employment as a TSA Transportation Security Officer due to age discrimination in
violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §
621 et seq. In his second and third claims, he alleged that the employment termination
process violated his substantive and procedural due process rights under the Fifth
Amendment.
In a September 20, 2024 Order on Defendants’ Motion to Dismiss, Judge Wang
dismissed both of Plaintiff’s due process claims. ECF No. 83. On October 23, 2024,
Judge Wang ordered that, consistent with the September 20, 2024 Order, Defendants
DHS, TSA, Pekoske (in his official and individual capacities), and Mayorkas (in his
individual capacity) were dismissed from the case, and Defendant Mayorkas (in his
official capacity) was the only remaining Defendant. ECF No. 89. Because Defendant
Mayorkas was sued in his official capacity only, and Kristi Noem is Defendant
Mayorkas’ successor and the current Secretary of DHS, she has been automatically
substituted for Defendant Mayorkas pursuant to Fed. R. Civ. P. 25(d).
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The Court entered a Scheduling Order on November 21, 2024. ECF No. 98.
Under the Scheduling Order, the deadline for joinder of parties and amendment of
pleadings was December 11, 2024, and the discovery cut-off was May 20, 2025. Id. at
13.
On May 14, 2025, Plaintiff moved to amend his complaint to “add back into his
original filing” at least fifteen defendants, including eight current or former TSA
employees, certain TSA Office of Professional Responsibility Appellate Board members,
three individuals in the DHS Office for Civil Rights and Civil Liberties, and two
individuals in the American Federation of Government Employees (“AFGE”). See ECF
No. 110. None of those defendants were previously named in this lawsuit. This Court
recommended that Plaintiff’s request be denied for failure to satisfy the requirements of
Rules 15 and 16. ECF No. 126. This Court concluded that Plaintiff had not
demonstrated good cause for modifying the Scheduling Order and that the proposed
amendment would be untimely and unduly prejudice Defendant.
On June 20, 2025, Defendant moved for summary judgment. ECF No. 130. After
the matter was fully briefed, this Court recommended that Defendant’s motion for
summary judgment be granted. ECF No. 164. Plaintiff objected to the R&R on
December 25, 2025 and then subsequently filed the subject Motion to Amend.
Plaintiff’s proposed Second Amended Complaint seeks to join over twenty new
defendants across various agencies in their individual and official capacities. The
proposed amendment also seeks to re-add two claims for violations of his substantive
and procedural due process rights under the Fifth Amendment.
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II. 	LEGAL STANDARDS
a. 	Pro se Plaintiff
Plaintiff proceeds pro se. Accordingly, the Court will “review his pleadings and
other papers liberally and hold them to a less stringent standard than those drafted by
attorneys.” Trackwell v. U.S., 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted).
However, a pro se litigant’s “conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 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. Associated Gen. Contractors of Cal., Inc. v. Cal.
State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. N. M., 113
F.3d 1170, 1173–74 (10th Cir. 1997) (the 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”). A plaintiff’s pro se status
does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d
952, 957 (10th Cir. 2002).
b. Rule 16
Plaintiff requests to amend the Complaint after the deadline for amendment set
forth in the Scheduling Order. When a party seeks to amend pleadings after the
deadline set in the scheduling order, the Court’s consideration is subject to a two-prong
analysis. First, the party must establish good cause under Federal Rule of Civil
Procedure 16(b)(4). See Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d
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1230, 1240 (10th Cir. 2014). Second, if the party has established good cause, the Court
turns to whether amendment is proper under Federal Rule of Civil Procedure 15(a). Id.
at 1242; Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001).
Rule 16(b) provides that a scheduling order “may be modified only for good
cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “In practice, this standard
requires the movant to show the ‘scheduling deadlines cannot be met despite [the
movant’s] diligent efforts.’” Gorsuch, 771 F.3d at 1240 (citing Pumpco, 204 F.R.D. at
668). This burden is satisfied, for example, when a party learns of new information in a
deposition or that the governing law has changed. Id. “Rule 16(b) does not focus on the
bad faith of the movant, or the prejudice to the opposing party. Rather, it focuses on the
diligence of the party seeking leave to modify the scheduling order.” Colo. Visionary
Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000).
c. 	Rule 15
If good cause to amend the scheduling order exists, the Court then turns to Rule
15(a) which states that leave to amend “shall be freely given when justice so requires.”
Fed. R. Civ. P. 15(a). The standard under Rule 15(a) is “more lenient” than that under
Rule 16(b). Pumpco, 204 F.R.D. at 668. However, the Court may exercise its discretion
to deny a motion to amend upon a showing of undue delay, undue prejudice to the
opposing party, bad faith or dilatory motive, failure to cure deficiencies by previously
allowed amendments, or futility of the amendment. Frank v. U.S. West, Inc., 3 F.3d
1357, 1365 (10th Cir. 1993). “A proposed amendment is futile if the complaint, as
amended, would be subject to dismissal. . . . The relevant standard in determining
whether claims are futile is the same standard that is applied to a motion to dismiss
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under Fed. R. Civ. P. 12(b)(6).” Dorough v. Am. Family Mut. Ins. Co., No. 15-cv-02388-
MSK-KMT, 2016 WL 1426968, at *2 (D. Colo. Apr. 11, 2016). Whether to allow
amendment is within the trial court’s discretion. Burks v. Okla. Publ’g Co., 81 F.3d 975,
978– 79 (10th Cir. 1996).
III. 	ANALYSIS
a. 	Proposed Second Amended Complaint
This Court recommends that Plaintiff’s Motion to Amend be denied for failure to
satisfy the requirements of Rule 16, as he has failed to demonstrate that good cause
would support modification of the Scheduling Order. The deadline for amendment of
pleadings passed on December 11, 2024. Plaintiff’s Motion comes over a year after the
deadline to amend and join parties. In his motion, Plaintiff has not shown that he
discovered new information during the course of discovery which caused him to realize
that the additional defendants or claims should be added. Nor has he shown that a
change in governing law has occurred.
Furthermore, Plaintiff seeks to re-add claims of violations of his procedural and
substantive due process rights which were previously dismissed. Judge Wang
dismissed Plaintiff’s procedural due process claim because he had failed to identify a
constitutionally protected interest. Plaintiff’s substantive due process claim was likewise
dismissed because the Court found that the operative pleading did not sufficiently allege
conscience-shocking conduct. Id. at 16–17. Plaintiff’s proposed amendments do not
attempt to cure either of these deficiencies. Therefore, this Court finds that Plaintiff’s
proposed amendments are futile and should be denied for this reason alone.
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The aforementioned deficiencies aside, the Court may also deny a motion to
amend based on undue delay. Minter v. Prime Equip. Co., 451 F3d 1196, 1205 (10th
Cir. 2006). “The longer the delay, the more likely the motion to amend will be denied”
because of the burdens placed on the opposing party and the Court. Id. The Court may
deny leave to amend when the movant “has no adequate explanation for the delay.” Id.
at 1206. Untimeliness alone is sufficient reason to deny leave to amend. Hayes v.
Whitman, 264 F.3d 1017, 1026 (10th Cir. 2001); see also Barrett v. Qual-Med, Inc., 153
F.R.D. 653, 655 (D. Colo. 1994) (“Although untimeliness alone may support a trial
court’s decision to deny a plaintiff’s motion to amend, it is within the discretion of the trial
court whether to grant such a motion.”). Plaintiff’s Motion should be denied because it is
untimely, as Plaintiff has already been given ample opportunity to amend his complaint.
There has been a motion to dismiss which has been ruled upon, and a fully briefed
motion for summary judgement that is currently pending. Allowing the amendment
would require a new scheduling order. This would necessarily further delay these
proceedings, adding to the burdens on Defendant, this Court, and Judge Wang.
Therefore, the Court concludes that Plaintiff’s Motion to Amend should independently be
denied for undue delay.
b. Other Requested Relief
As a final point, Plaintiff requests certain additional relief—he asks the Court to
take judicial notice of certain “permanent” injuries that have resulted to Plaintiff from the
“prolonged duration” of the ongoing litigation, decline to adopt this Court’s Report and
Recommendation on Defendant’s Motion for Summary Judgement, and find that
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Defendant has failed to comply with its obligations under 29 C.F.R. § 1614.501.1 ECF
No. 168 at 2–4. The Court construes these requests as a general objection to this
Court’s Report and Recommendation issued on December 16, 2025. ECF No. 164.
Given that this matter is currently pending before Judge Wang, Plaintiff’s additional
requests for relief are DENIED.
IV. 	RECOMMENDATION
For the reasons set forth above, the Court RECOMMENDS that Defendant’s
“Motion for Leave to File Second Amended Complaint and Clarifying Motion Regarding
Regulatory Noncompliance and Resulting Structural Cardiac Injury,” ECF No. 168, be
DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.
1 Under 29 C.F.R. § 1614.501(a), “[w]hen an agency, or the Commission, in
an individual case of discrimination, finds that an applicant or an employee has been
discriminated against,” it is required to implement certain corrective actions.
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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).
Dated at Denver, Colorado this 22nd Day of January 2026
N. Reid Neureiter
United States Magistrate Judge
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