Roque v. Bayne et al

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In the United States District Court
for the District of Kansas
_____________
Case No. 25-cv-04097-TC
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MARIBEL ROQUE,
Plaintiff
v.
WILLIAM BAYNE, ET AL.,
Defendants
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ORDER ADOPTING REPORT & RECOMMENDATION
Maribel Roque filed this pro se action against several individual
defendants alleging that the defendants violated the civil rights of her
husband, Carlos Diaz. See Doc. 1. Roque objects to Magistrate Judge
Angel Mitchell’s Report and Recommendation that the claims be dis-
missed without prejudice pursuant to Rule 4(m) for failure to perfect
service. Doc. 31 at 1. For the following reasons, the R&R is adopted.
Objections to a magistrate judge’s recommended disposition must
be “both timely and specific to preserve an issue for de novo review
by the district court . . . .” United States v. 2121 E. 30th St., 73 F.3d 1057,
1060 (10th Cir. 1996); accord Coomer v. Make Your Life Epic, LLC, 140
F.4th 1269, 1277 (10th Cir. 2025). To be timely, the objection must be
made within 14 days after service of a copy of the recommended dis-
position. Fed. R. Civ. P. 72(b)(2). Objections are sufficiently specific if
they “focus[ ] specifically ‘on the factual and legal issues that [are] truly
in dispute.’” Wahpekeche v. Pettigrew, 169 F.4th 1176, 1184 (10th Cir.
2026) (quoting 2121 E. 30th St., 73 F.3d at 1060).
Once a party timely files a written objection to an R&R, a de novo
review is required of “those portions of the report” to which an objec-
tion is lodged. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Summers
v. Utah, 927 F.2d 1165, 1167–68 (10th Cir. 1991) (“De novo review is
statutorily and constitutionally required when written objections to a
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magistrate’s report are timely filed with the district court.”). But for
any portion of an R&R to which a party fails to make a proper objec-
tion, district courts have discretion to review the recommendation un-
der any standard they deem appropriate. Summers, 927 F.2d at 1167–
68; cf. Jones v. Salt Lake Cnty., 503 F.3d 1147, 1152 (10th Cir. 2007)
(holding failure to object firmly waives appellate review of R&R).
Roque is proceeding pro se, which requires a generous construc-
tion of her pleadings. See Smith v. United States, 561 F.3d 1090, 1096
(10th Cir. 2009). That generosity means a court should overlook the
failure to properly cite legal authority, confusion of various legal theo-
ries, and apparent unfamiliarity with pleading requirements. Id. But it
does not permit a court to construct legal theories on the plaintiff’s
behalf or assume facts not plead. See id.; Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Roque’s claims stem from an April 9, 2024, traffic stop. On that
date, Corporal Evan Macklin of the Franklin County Sheriff’s Office
attempted to stop Diaz for a speeding violation. See Doc. 23 at 10.
During the encounter, Diaz fled the scene, and a high-speed pursuit
ensued. See id. at 9. Diaz eventually lost control of the vehicle, crashed
it into a tree line and fence, and then ran away on foot. See id. at 5. Law
enforcement eventually located him and took him into custody. Id.
Roque initially filed the Complaint in Spanish, Doc. 1, but she sub-
sequently filed a version that translated the allegations into English,
Doc. 17. It principally describes the alleged circumstances that led to
Diaz’s arrest and prosecution while being generally devoid of any facts
or legal claims on behalf of Roque. Doc. 17 at 3–12. Roque also filed
a motion for leave to proceed in forma pauperis, Doc. 2, and a motion
for appointment of counsel, Doc. 3.
Diaz, whose name appears in the caption of the Complaint, was
initially added to the docket. The Clerk’s office subsequently removed
him as a litigant because no lawyer entered an appearance to represent
his interests, he did not sign or file any pleadings on his own behalf,
and he may not be represented by another pro se litigant. See Doc. 4.
As a result, Roque is the only plaintiff in this case.
Judge Mitchell initially denied Roque’s motion to proceed in forma
pauperis without prejudice and directed her to resubmit the motion in
English. Doc. 6. Judge Mitchell also denied Roque’s motion for ap-
pointment of counsel because the motion did not include any
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“information on which [the court] could find appointing counsel to be
justified.” Doc. 7. Once Roque resubmitted the motion to proceed in
forma pauperis in English, Doc. 8, that motion was granted, Doc. 13.
Serving the Complaint has been a problem. Roque initially at-
tempted to effect service by personally delivering the Complaint to the
defendants. Docs. 18–21. But recognizing that Federal Rule of Civil
Procedure 4(c)(2) prevents a party from personally serving the defend-
ant(s), Judge Mitchell issued a Notice and Order to Show Cause direct-
ing Roque to show cause by March 20, 2026, why the claims should
not be dismissed without prejudice pursuant to Federal Rule of Civil
Procedure 4(m). Doc. 24 at 3; see also Docs. 7, 8, and 13 (detailing ef-
forts Judge Mitchell took to accommodate Roque’s procedurally im-
proper submissions). Roque did not respond. Thereafter, Judge Mitch-
ell issued a Report and Recommendation recommending that Roque’s
claims be dismissed without prejudice pursuant to Rule 4(m) for failure
to perfect service. Doc. 30 at 2. Roque timely filed an objection. Doc.
31.
Roque’s objection is overruled. It fails to identify any factual or
legal error. In fact, Roque expressly admits that she has failed to com-
ply with Judge Mitchell’s prior orders to effect service consistent with
Rule 4. Doc. 31 at 1. The only response she offers is a request for
guidance on how to “properly fulfill the proof of service requirement.”
Id. But courts may not provide aid or counsel to pro se litigants. See
Xingfei Luo v. Wang, 71 F.4th 1289, 1291 n.1 (10th Cir. 2023). Moreover,
it is unlikely that any advice would be followed: Judge Mitchell previ-
ously explained that Roque was responsible “for ensuring that sum-
mons and a copy of the English-language amended complaint is served
on each defendant, as mandated by Federal Rule of Civil Procedure
4(c).” Doc. 16 at 1. Despite that, no curative action has been taken.
And, even if it would be followed, it would be futile because the time
in which to complete service has expired. Doc. 30 at 1; cf. Constien v.
United States, 628 F.3d 1207, 1217 (10th Cir. 2010) (affirming district
court’s dismissal of the case where the plaintiff failed to properly effect
service on any defendant after receiving notice from the court and the
government that service was faulty). Accordingly, Judge Mitchell’s
R&R is adopted in full.
IT IS THEREFORE ORDERED that Roque’s Objection to
the Report and Recommendation, Doc. 31, is overruled. The Report
and Recommendation, Doc. 30, is adopted in its entirety. Accordingly,
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Roque’s claims are dismissed without prejudice for failure to comply
with Rule 4(m).
It is so ordered.
Date: April 15, 2026 s/ Toby Crouse
Toby Crouse
United States District Judge
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