23CA0983 Sturgell v Holmes 07-11-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0983
City and County of Denver District Court No. 22CV110
Honorable Kandace C. Gerdes, Judge
Abade Irizarry and Frank Sturgell,
Plaintiffs-Appellants,
v.
Ryan Holmes, Colorado State Trooper; Harold Johnson, Colorado State
Trooper; Colorado State Patrol; Cindi Markwell, Secretary of the Senate; Office
of the President of the Senate; Jack Wegert, Sergeant-At-Arms; Stephen
Rosenthal, Sergeant-At-Arms; Jon Judson, Sergeant-At-Arms; Dennie G.
Hancock, III, Sergeant-At-Arms; Michael Fohrd, Sergeant-At-Arms; James
Davis, Sergeant-At-Arms; James Eichman, Sergeant-At-Arms; Roger Pankau,
Sergeant-At-Arms; Frank Lombardi, Chief Sergeant-At-Arms; Matthew Flora,
Sergeant-At-Arms; and Theodore Abad, Sergeant-At-Arms,
Defendants-Appellees.
APPEAL DISMISSED IN PART
AND JUDGMENT AFFIRMED
Division I
Opinion by JUDGE TAUBMAN*
Welling and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 11, 2024
Abade Irizarry, Pro Se
Frank Sturgell, Pro Se
Philip J. Weiser, Attorney General, Amy C. Colony, Senior Assistant Attorney
General, Danielle Lewis, Senior Assistant Attorney General, Gregory R. Bueno,
Senior Assistant Attorney General, Denver, Colorado, for Defendants-Appellees
Ryan Holmes, Colorado State Trooper, Harold Johnson, Colorado State
Trooper, and Colorado State Patrol
The Law Offices of Eric J. Moutz, LLC, Eric J. Moutz, Boulder, Colorado, for
Defendant-Appellee Cindi Markwell, Secretary of the Senate
Office of Legislative Legal Services, Jeremiah B. Barry, Edward A. DeCecco,
Denver, Colorado, for Defendants-Appellees Office of the President of the
Senate, Jack Wegert, Sergeant-At-Arms, Stephen Rosenthal, Sergeant-At-Arms,
Jon Judson, Sergeant-At-Arms, Dennie G. Hancock, III, Sergeant-At-Arms,
Michael Fohrd, Sergeant-At-Arms, James Davis, Sergeant-At-Arms, James
Eichman, Sergeant-At-Arms, and Roger Pankau, Sergeant-At-Arms
Achieve Law Group, LLC, Jerome A. DeHerrera, Aaron A. Boschee, Denver,
Colorado, for Defendants-Appellees Frank Lombardi, Chief Sergeant-At-Arms,
Matthew Flora, Sergeant-At-Arms, and Theodore Abad, Sergeant-At-Arms
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
1
¶ 1 In this case regarding an inability to serve process against
numerous government officials, plaintiffs, Frank Sturgell and Abade
Irizarry, appeal the district court’s judgment dismissing their claims
against the Colorado State Patrol, the Office of the President of the
Senate, thirteen law enforcement officers, and Cindi Markwell, the
Secretary of the Colorado Senate. We dismiss the appeal in part
and otherwise affirm.
I. Factual Background
¶ 2 One afternoon in March 2020, plaintiffs entered the Colorado
State Capitol building with a “box of lawsuits” that they intended to
serve on various members of the Colorado General Assembly.
1
They
alleged in their complaint that, in three separate incidents, several
law enforcement officers of the Colorado State Patrol and Capitol
Sergeants-at-Arms prevented them from serving civil process on
legislators in the House and Senate chambers that day.
¶ 3 The first incident took place shortly after plaintiffs entered the
Capitol. When they tried to serve their complaint to a legislator, the
Colorado State Patrol intervened and asked plaintiffs to show their
1
Sturgell was, allegedly, the plaintiff in the lawsuits, and Irizarry
was acting as his “process server.”
2
identification, which they refused to do. Trooper Johnson and
Sergeant Holmes “placed plaintiffs under arrest and detention” until
the Denver Police Department arrived and “allowed [plaintiffs] to
carry on.” Based on this incident, plaintiffs claimed that Trooper
Johnson, Sergeant Holmes, and the Colorado State Patrol
(collectively, the State Patrol Defendants) violated plaintiffs’ “right to
serve a lawsuit,” right to petition the government for redress of
grievances, and right to be free from unreasonable government
searches. They also claimed that the State Patrol Defendants
“fail[ed] to train to protect rights.”
¶ 4 The second incident took place about an hour later, when
plaintiffs entered the House chamber. According to the complaint,
a sergeant-at-arms told plaintiffs to leave but that they could serve
lawsuits at the legislators’ offices. Based on this incident, plaintiffs
claimed that eleven sergeants-at-arms and the “Office of the
Sergeant-At-Arms” (collectively, the Sergeant-at-Arms Defendants)
unlawfully obstructed their ability to serve process on legislators.
They also asserted a claim of “failure to protect or train to protect
rights” against the Sergeant-at-Arms Defendants and Markwell.
3
¶ 5 The third incident occurred about an hour later. According to
the complaint, “As [plaintiffs] walked to the Senate Chamber with
their box filled with lawsuits, they noticed [the] door was locked,”
and “[t]he Sergeant-At-Arms assigned to the door . . . refused to
acknowledge” them. Based on this incident, plaintiffs claimed that
the Sergeant-at-Arms Defendants violated their statutory and
constitutional “right to serve a lawsuit”; were not properly trained in
serving lawsuits; and were told to disobey the laws, duties, and
procedures attendant to their duties.
II. Procedural Background
¶ 6 The district court quashed service of the complaint as to the
Office of the President of the Senate and eight Sergeant-at-Arms
Defendants (collectively, the Improperly Served Defendants). In two
separate orders, the district court dismissed plaintiffs’ claims as to
the State Patrol Defendants and the remaining Sergeant-at-Arms
Defendants under C.R.C.P. 12(b)(1) and, in the alternative, under
C.R.C.P. 12(b)(5). In a third order, it dismissed plaintiffs’ claims
against Markwell under C.R.C.P. 12(b)(5).
4
III. Discussion
¶ 7 We conclude that we lack jurisdiction to review the district
court’s order quashing service as to the Improperly Served
Defendants. As to the remaining defendants, we affirm the district
court’s orders dismissing plaintiffs’ claims.
A. Quashing of Service
¶ 8 The Office of the President of the Senate and Sergeant-at-Arms
Defendants filed a limited appearance and motion to quash service
of process. They alleged that Nellie Moran — whom plaintiffs’
affidavit of service had named as the person served on behalf of the
Office of the President of the Senate — was not in the building on
the date of alleged service, and that service upon the Office of the
President of the Senate was therefore invalid.
2
They further alleged
that plaintiffs had not validly served the Sergeant-at-Arms
Defendants by leaving the complaint and summons with Markwell
because she was not the managing agent for any of those
defendants.
2
According to Moran’s affidavit attached to the motion to quash,
she is the Chief of Staff of the Colorado Senate Democrats and “has
never been the secretary of the President of the Senate nor of the
Office of the President of the Senate.”
5
¶ 9 The district court granted the motion to quash service of
process with respect to the Office of the President of the Senate and
the sergeants-at-arms who worked for the House (Wegert,
Rosenthal, Judson, Hancock, Fohrd, and Davis), concluding that
“[s]ervice through Ms. Markwell was ineffective for these
individuals.” It also quashed service as to Eichman and Pankau
because they were no longer employed as sergeants-at-arms at the
time of the alleged service and therefore could not be served
through Markwell. However, the court denied the motion as to the
Senate sergeants-at-arms who remained employed at the time of
service — Lombardi, Flora, and Abad (collectively, the Senate
Sergeants-at-Arms Defendants) — noting that even though
Markwell was not the “managing agent” of those defendants, she
was their supervisor and could be served on their behalf under
C.R.C.P. 4(e)(1).
¶ 10 When a defendant moves to quash service, the plaintiff has the
burden to establish “by competent evidence all facts essential to
jurisdiction.” Harvel v. Dist. Ct., 166 Colo. 520, 523, 444 P.2d 629,
631 (1968). Whether personal service has been properly effectuated
is a question of fact to be resolved by the trial court. Stubblefield v.
6
Dist. Ct., 198 Colo. 569, 572, 603 P.2d 559, 561 (1979). “[A]n order
quashing a purported service of process is not tantamount to a
that is immediately appealable.” Willhite v. Rodriguez-Cera, 2012
372, 533 P.2d 501, 501 (1975). Rather, “the trial court should, in
such a case, merely hold the service invalid and allow the action to
stand so that the plaintiff can continue to seek proper service.”
Bolger v. Dial-A-Style Leasing Corp., 159 Colo. 44, 47, 409 P.2d 517,
518 (1966).
¶ 11 Here, plaintiffs do not assert that they attempted to re-serve
the Improperly Served Defendants after the district court quashed
service. See id. Nor do they explain how this court has jurisdiction
to review the order quashing service, given our well-established
jurisprudence that such an order is not “subject to review by writ of
error.” Hoen, 159 Colo. at 455, 412 P.2d at 430; Cranmer, 35 Colo.
App. at 372, 533 P.2d at501 (the trial court’s order quashing
7
service was “not an appealable order within the provisions of C.A.R.
1(a)”).
¶ 12 Accordingly, we conclude that we lack jurisdiction to review
the district court’s order quashing service as to the Improperly
Served Defendants and dismiss this part of the appeal. See Rea v.
Corr. Corp. of Am., 2012 COA 11, ¶ 12, 272 P.3d 1143, 1146
(“[U]nless the procedural requirements of effective service of process
have been satisfied, the court lacks personal jurisdiction to act with
respect to [an unserved] defendant at all.” (quoting Cambridge
Holdings Grp., Inc. v. Fed. Ins. Co., 489 F.3d 1356, 1361 (D.C. Cir.
2007))).
B. Dismissal Orders
1. Senate Sergeant-at-Arms Defendants
¶ 13 In their answer brief, the Senate Sergeant-at-Arms Defendants
(Lombardi, Flora, and Abad) argue that this court “need not address
any alleged arguments against [them]” because plaintiffs’ amended
opening brief (1) presents “only bald factual or legal assertions
without argument or development”; (2) “rarely or never cites any
portion of the trial court record”; (3) is “difficult or impossible to
navigate, especially because it is not organized in a fashion at all
8
married to the trial court’s reasoning”; (4) “does little or nothing to
address the trial court’s reasoning with respect to the Sergeant-At-
Arms”; and (5) “only quote[s] a portion of the trial court’s reasoning
and, even then, [does] not cite any law or authority contrary to the
authority cited by the trial court.” We agree.
¶ 14 “The appellate rules are not mere technicalities, but are
designed to facilitate appellate review.” Cikraji v. Snowberger, 2015
COA 66, ¶ 10, 410 P.3d 573, 576. We recognize that “[p]leadings by
pro se litigants must be broadly construed to ensure that they are
not denied review of important issues because of their inability to
articulate their argument like a lawyer.” Jones v. Williams, 2019
CO 61, ¶ 5, 443 P.3d 56, 58. However, plaintiffs must still comply
with C.A.R. 28. Finegold v. Clarke, 713 P.2d 401, 403 (Colo. App.
1985).
¶ 15 First, in violation of C.A.R. 28(a)(5), plaintiffs’ amended
opening brief is devoid of any citations to the record. Apart from
several points at which plaintiffs allegedly quote a ruling by the
district court (with no citation to the record), they do not specify the
9
underlying court order to which they refer.
3
See id. Plaintiffs’
failure to comply with these rules significantly impedes our ability
to trace their arguments to a particular finding or ruling by the
district court, or to a specific claim against a specific defendant.
¶ 16 Second, in violation of C.A.R. 28(a)(7), plaintiffs’ amended
opening brief lacks statements of preservation, standards of review,
or — with few exceptions — applicable headings.
4
¶ 17 Third, the amended opening brief fails to provide “clear and
concise discussion[s] of the grounds upon which [plaintiffs rely] in
seeking a reversal or modification of the judgment or the correction
of adverse findings, orders, or rulings of the lower court.” C.A.R.
28(a)(7)(B). Plaintiffs’ amended opening brief refers only passingly
and conclusively to the inapplicability of governmental immunity
3
As discussed, the district court issued three dismissal orders
separately addressing the motions to dismiss by the three different
groups of defendants — the State Patrol Defendants, the Sergeant-
at-Arms Defendants, and Markwell — and quashed service as to
some of the defendants. Plaintiffs do not distinguish among these
orders in making their arguments.
4
While plaintiffs added several headings in response to this court’s
order striking the initial opening brief, the headings are largely
unrelated to the discussions they contain and do not aid us in
tracing plaintiffs’ arguments to any specific ruling as to any specific
claim.
10
laws, violations of their asserted constitutional and statutory “right
to serve lawsuits,” and a general failure to train law enforcement
officers “in laws basic to the happenings of the State Capitol.” It
does not provide coherent legal arguments as to why the district
court erred by dismissing each claim under Rules 12(b)(1) and
12(b)(5). Rather, plaintiffs’ briefs largely consist of sweeping and
inflammatory accusations that the district court’s legal analyses
and conclusions constitute “perjury”; that various state institutions
are corrupt; that the “government is just a racketeering agency” or a
“crime syndicate”; and that opposing counsel “knowingly lied for the
purpose of destroying rights.” They also repeatedly refer to other
alleged incidents unrelated to the factual allegations in this case.
¶ 18 “Such rhetoric hinders the court in deciding the merits of the
appeal . . . .” Martin v. Essrig, 277 P.3d 857, 860 (Colo. App. 2011)
(dismissing the appeal because the appellant’s briefs did not
“coherently explain why the district court erred: the analysis is
obscured by irrelevant digressions, lack of structure, and use of a
rhetorical style that is verbose, derogatory, and sarcastic”).
Moreover, “[i]t is not this court’s function to speculate as to what a
party’s argument might be.” Gravina Siding & Windows Co. v.
11
Gravina, 2022 COA 50, ¶ 71, 516 P.3d 37, 50 (quoting People v.
Palacios, 2018 COA 6M, ¶ 29, 419 P.3d 1014, 1019). Nor may we
make or develop a party’s argument when that party has not
920 (Colo. App. 2011) (declining to address the appellant’s
contention “because [the] defendant has neither articulated a
cogent argument for review nor provided supporting legal
authority”).
¶ 19 We thus affirm the district court’s order as to the Senate
Sergeant-at-Arms Defendants on these grounds.
5
2. State Patrol Defendants
¶ 20 The district court dismissed plaintiffs’ claims as to the State
Patrol Defendants (Holmes, Johnson, and the Colorado State Patrol)
for lack of subject matter jurisdiction, C.R.C.P. 12(b)(1), and failure
to state a plausible claim for relief, C.R.C.P. 12(b)(5). Plaintiffs, as
we understand their arguments, contend that the district court
erred by doing so. We disagree.
5
We do not address whether plaintiffs’ noncompliance with the
appellate rules requires the same result as to the other defendants
because none of the other defendants argued as much in their
respective answer briefs.
12
a. Standard of Review
¶ 21 We review de novo a district court’s order granting a motion to
dismiss for failure to state a claim under C.R.C.P. 12(b)(5). Colo.
Ethics Watch v. Senate Majority Fund, LLC, 2012 CO 12, ¶ 16, 269
P.3d 1248, 1253. In doing so, we must accept all averments of
material fact as true and view the allegations in the light most
favorable to plaintiffs. Lobato v. State, 218 P.3d 358, 367 (Colo.
2009). Because plaintiffs appear pro se, “we liberally construe
[their] filings while applying the same law and procedural rules
applicable to a party represented by counsel.” Gandy v. Williams,
to the substance, rather than the form, of their pleadings. See
People v. Cali, 2020 CO 20, ¶ 34, 459 P.3d 516, 522. However, we
may not rewrite their pleadings or advocate on their behalf. See id.
¶ 22 To survive a motion to dismiss for failure to state a claim, a
complaint must include factual allegations sufficient to raise a right
to relief “above the speculative level” and provide plausible grounds
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007));
accord Houser v. CenturyLink, Inc., 2022 COA 37, ¶ 11, 513 P.3d
13
395, 399. Mere “‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’” Ashcroft v. Iqbal,
claim may also be dismissed under Rule 12(b)(5) if the substantive
law does not support it. W. Innovations, Inc. v. Sonitrol Corp., 187
P.3d 1155, 1158 (Colo. App. 2008).
¶ 23 We review qualified immunity determinations de novo, viewing
the evidence in the light most favorable to the plaintiff as the
nonmoving party. Felders v. Malcom, 755 F.3d 870, 877 (10th Cir.
2014). Qualified immunity “protects government officials ‘from
liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Pearson v. Callahan, 555
U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). It may be claimed by a public official sued in his or
her individual capacity. See Churchill v. Univ. of Colo., 2012 CO 54,
¶ 32, 285 P.3d 986, 997-98.
¶ 24 The court must dismiss an action against a defendant with
qualified immunity unless the plaintiff shows that (1) the defendant
violated a constitutional right and (2) the right was clearly
14
see Brosseau v. Haugen, 543 U.S. 194, 198 (2004). A complaint
attempting to overcome a qualified immunity defense must meet the
minimal standard of pleading articulated in Twombly. Robbins v.
Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008). Thus, bare
allegations that an individual defendant “knew of, condoned, and
willfully and maliciously agreed” to violate a plaintiff’s rights are
conclusory and therefore may not be assumed to be true. Iqbal,
556 U.S. at 680-81.
¶ 25 Last, we may affirm the court’s dismissal for any reason
supported by the record, even one not considered by the district
court. Steamboat Springs Rental & Leasing, Inc. v. City & Cnty. of
Denver, 15 P.3d 785, 786 (Colo. App. 2000).
b. Statutory Right to Serve Process
¶ 26 We conclude that plaintiffs’ claim that the State Patrol
Defendants violated their right under section 13-1-125, C.R.S.
2023, to serve process on state legislators in the Senate and House
chambers fails to state a plausible claim for relief. Sonitrol Corp.,
187 P.3d at 1158 (a claim may be dismissed under Rule 12(b)(5) if
the substantive law does not support it).
15
¶ 27 “The law does not supply a remedy for every wrong, and the
courts may redress a right abridged or a duty breached only if the
plaintiff has standing — the right to raise a legal argument or
claim.” City of Arvada ex rel. Arvada Police Dep’t v. Denver Health &
Hosp. Auth., 2017 CO 97, ¶ 18, 403 P.3d 609, 613. “When a
statute does not specify what constitutes an actionable injury, we
look to the law of implied private rights of action to determine
whether the statute might still create a claim conferring standing.”
Id. at ¶ 21, 403 P.3d at 613.
¶ 28 In their amended opening brief, plaintiffs argue:
Colorado Rules of Civil Procedure imply the
right of service of process by allowing anyone
over 18 to perform the right. It is not a
privilege for a select few. It is a right afforded
to all. Without this right, the courts could not
function. Why is a court committing perjury to
remove a right demanded by Court rules?
C.R.S. § 13-1-125(3) states very clearly that
service of process is an explicit right that
cannot be limited or affected.
¶ 29 However, the statute’s reference to process service under the
procedural rules as a “right” is not dispositive as to whether
plaintiffs have an actionable claim for relief, under the statute or
procedural rules in a civil suit based on alleged obstacles to serving
16
process.
6
See City of Arvada, ¶¶ 18, 20, 403 P.3d at 613. Rather, if
the statute “‘is totally silent on the matter of remedy,’ then the court
‘must determine whether a private civil remedy reasonably may be
implied.’” Id. at ¶ 26, 403 P.3d at 614 (quoting Allstate Ins. Co. v.
Parfrey, 830 P.2d 905, 910 (Colo. 1992)). Plaintiffs offer no cogent,
nonconclusory argument to that end. Instead, they argue that
“[t]here is no doubt that the General Assembly created a right of
action of service of process as all citizens can become the long arm
of the Court through this statute.” Because this argument does not
establish a plausible claim for relief, we conclude that the district
court did not err by dismissing plaintiffs’ statutory claims against
the State Patrol Defendants.
c. First Amendment Right to Serve Process
¶ 30 Plaintiffs’ claims against the State Patrol Defendants for
violating their right to petition the government for grievances under
the First Amendment also fails under C.R.C.P. 12(b)(5).
6
We also note that, counter to plaintiffs’ assertion, the statute does
not say that serving process “is an explicit right that cannot be
limited or affected.” Instead, it says, “Nothing in this section shall
limit or affect the right to serve any process as prescribed by the
Colorado rules of civil procedure.” § 13-1-125(3), C.R.S. 2023.
17
¶ 31 The federal civil rights statute, 42 U.S.C. § 1983, allows a
party to bring a cause of action for an alleged violation of federally
guaranteed constitutional rights. N. Colo. Med. Ctr., Inc. v. Nicholas,
27 P.3d 828, 834 (Colo. 2001); see 42 U.S.C. § 1983. To prevail on
a § 1983 claim, a plaintiff must show that “the defendant, under
color of state law, deprived the plaintiff of a right secured by the
Constitution and laws of the United States.” Jaffe v. City & Cnty. of
Denver, 15 P.3d 806, 811 (Colo. App. 2000). However, neither a
state, nor an “arm of the state,” Churchill, ¶ 33, 285 P.3d at 998,
nor a state official in his or her official capacity can be liable for
damages under § 1983 because the Supreme Court has concluded
that they are not “persons” under that statute. Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71 (1989).
i. Personal Capacity
¶ 32 In their motion to dismiss, the State Patrol Defendants
asserted a qualified immunity defense as to plaintiffs’ claims of
violations of federal constitutional provisions. They reassert that
argument on appeal.
¶ 33 To the extent that plaintiffs sued Holmes and Johnson for
damages in their individual capacities, they do not point to
18
anywhere in the record where they argued that Holmes or Johnson
was not protected from a suit for damages in his individual capacity
by the qualified immunity doctrine.
7
¶ 34 To show that qualified immunity did not apply to Holmes and
Johnson, plaintiffs were required to establish that (1) these
defendants violated a constitutional right and (2) the right was
clearly established at the time of the violation. See Pearson, 555
U.S. at 232.
¶ 35 Plaintiffs’ complaint does not plausibly allege that Holmes’ or
Johnson’s conduct violated a “clearly established statutory or
constitutional right[] of which a reasonable person would have
known.” Id. at 231 (quoting Harlow, 457 U.S. at 818). While
plaintiffs frame the “right” allegedly violated as a “right to serve
lawsuits” in general, they alleged only that the named defendants
prevented them from serving lawsuits on legislators on the floor of
7
The district court did not discuss qualified immunity as to Holmes
or Johnson, instead finding broadly that “sovereign immunity from
the suit applies to the action against Defendants Colorado State
Patrol.” Again, we may affirm the court’s dismissal for any reason
supported by the record, even one not considered by the district
court. Steamboat Springs Rental & Leasing, Inc. v. City & Cnty. of
Denver, 15 P.3d 785, 786 (Colo. App. 2000).
19
the House and Senate.
8
Plaintiffs do not point to any legal
authority suggesting that the First Amendment right to petition the
government creates an unlimited right to access any person in any
place to serve civil process upon that person. Thus, a statutory or
First Amendment right to serve process at the time of their choosing
upon legislators in restricted areas of the State Capitol Building
could not have been “clearly established,” and qualified immunity
shields Holmes and Johnson, in their personal capacities, against
the plaintiffs’ First Amendment claims. See Pearson, 555 U.S. at
232.
ii. Official Capacity and Arm of the State
¶ 36 That leaves us with the Colorado State Patrol (as an entity)
and — broadly construing plaintiffs’ complaint — Holmes and
Johnson in their official capacities. These defendants cannot be
liable for damages under § 1983 because they are not “persons”
8
We also note that, because the complaint states that the House
and Senate were “not in formal session,” it is highly questionable
whether the plaintiffs actually pleaded that the alleged actions by
the defendants in fact prevented them from serving the intended
recipients in the first place. The complaint does not mention which
legislators they were attempting to serve or whether those
legislators were present in the building that day.
20
under that statute. See Will, 491 U.S. at 71; Churchill, ¶ 33, 285
P.3d at 998; Freedom from Religion Found., Inc. v. Romer, 921 P.2d
84, 89 (Colo. App. 1996).
d. Fourth Amendment Rights
¶ 37 Plaintiffs’ claims against the State Patrol Defendants for
violating their Fourth Amendment right (for “illegal detainment” and
“secure in their papers and person”) also fail under C.R.C.P.
12(b)(5).
¶ 38 Again, to show that Holmes and Johnson, in their personal
capacities, were not entitled to qualified immunity, plaintiffs were
required to establish that (1) these defendants violated a
constitutional right and (2) that right was clearly established at the
time of the violation. See Pearson, 555 U.S. at 232.
¶ 39 The Fourth Amendment protects individuals against
unreasonable searches and seizures. Hoffman v. People, 780 P.2d
471, 473 (Colo. 1989). A “search” occurs “when the government
violates a subjective expectation of privacy that society recognizes
as reasonable.” People v. Tafoya, 2021 CO 62, ¶ 25, 494 P.3d 613,
618 (quoting Kyllo v. United States, 533 U.S. 27, 33 (2001), in turn
quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
21
concurring)). A seizure of property is a “meaningful interference
with an individual’s possessory interests” in the property. People v.
Ortega, 34 P.3d 986, 990 (Colo. 2001) (quoting United States v.
Jacobsen, 466 U.S. 109, 113 (1984)). “Unless the circumstances of
the encounter are so intimidating as to demonstrate that a
reasonable person would believe he is not free to leave if he does not
comply, one cannot say that questioning results in a seizure
protected by the Fourth Amendment.” People v. Paynter, 955 P.2d
68, 72 (Colo. 1998) (the defendant was not subjected to a Fourth
Amendment seizure when an officer approached his vehicle and
asked him for identification).
¶ 40 Plaintiffs’ complaint alleged that Johnson’s “demanding of ID’s
without a crime being committed” violated plaintiffs’ Fourth
Amendment right to be free from unreasonable government
searches. Plaintiffs also list “Illegal Detainment/Arrest [Without] a
Crime” in the caption of this claim, but it is unclear from the
complaint whether plaintiffs alleged that they were formally
22
arrested, were prevented from entering, or were asked to leave the
building.
9
¶ 41 These allegations are insufficient to render the Fourth
Amendment claim plausible. They do not include allegations that
Holmes or Johnson searched an area in which they had a
constitutionally protected reasonable expectation of privacy. Nor do
they plausibly allege that the officers’ request for their identification
was “so intimidating as to demonstrate that a reasonable, innocent
person would have believed he was not free to leave if he had not
responded.” Id. at 73 (quoting Immigr. & Naturalization Serv. v.
Delgado, 466 U.S. 210, 217 (1984)). Indeed, they alleged that they
refused to show their identifications, and that they were asked to
leave the building. These allegations undermine their argument.
See Delgado, 466 U.S. at 216 (“[I]nterrogation relating to one’s
9
Plaintiffs alleged, somewhat contradictorily, that “Trooper
Johnson . . . stated that [plaintiffs] were trespassing and demanded
they leave the building”; “Both Sergeant Holmes and Trooper
Johnson threatened both Mr. Irizarry and Mr. Sturgell with
arresting them for harassment multiple times”; and “Mr. Sturgell
and Mr. Irizarry remained under arrest and detained until Denver
Police arrived.”
23
identity or a request for identification by the police does not, by
itself, constitute a Fourth Amendment seizure.”).
e. Failure to Train
¶ 42 Plaintiffs’ claims that the State Patrol Defendants are liable for
failure to adequately train their employees also fail under C.R.C.P.
12(b)(5).
¶ 43 “[A] municipality’s failure to train its employees in a relevant
respect must amount to ‘deliberate indifference to the rights of
persons with whom the [untrained employees] come into contact.’”
Connick v. Thompson, 563 U.S. 51, 61 (2011) (alteration in original)
(citation omitted). Absent a pattern of prior constitutional
violations, a failure to train claim can proceed only “in a narrow
range of circumstances[] [where] a violation of federal rights may be
a highly predictable consequence of a failure to equip law
enforcement officers with specific tools to handle recurring
situations.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 409
(1997).
¶ 44 Plaintiffs do not allege a pattern of prior constitutional
violations by the State Patrol Defendants, nor do they explain how
their conduct was a “highly predictable consequence” of deficient
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training. Indeed, plaintiffs do not even identity which aspects of the
officers’ training were deficient. We agree with the State Patrol
Defendants that plaintiffs “are offended by the encounter they had
with law enforcement . . . and merely speculate[] [that] the conduct
must be the result of poor training.” Because plaintiffs’ failure to
train claims against the State Patrol Defendants are insufficiently
pleaded, we conclude that the district court did not abuse its
discretion by dismissing them.
3. Markwell
¶ 45 Plaintiffs also named Markwell in their claim of “failure to train
to protect rights” based on the second and third incidents. Their
allegations, however, pertain only to the Sergeant-at-Arms
Defendants — namely, that the Sergeant-at-Arms Defendants
“either did not understand that process serving was a right or [were]
told to disobey the laws and procedures of their duties.” Plaintiffs
do not allege any acts or omissions by Markwell. Apart from
naming her in their complaint, they do not reference her in their
allegations, let alone allege with sufficient factual detail that she
violated a cognizable right. Accordingly, the court did not abuse its
discretion by dismissing plaintiffs’ claims against Markwell.
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4. Remaining Claims
¶ 46 Plaintiffs also argue on appeal that (1) the district court judges
who dismissed their claims “have shown too extreme prejudice and
bias” and “need[] to be prosecuted”; (2) the appellate rules governing
the formatting and word count in appellate filings “violate free
speech rights”; and (3) the chief judge of the court of appeals “must
recuse himself for the harassment against the Plaintiffs in his
useless ‘Order of the Court’ dated October 17, 2023.”
¶ 47 We decline to review these arguments. As for the alleged
judicial misconduct, plaintiffs’ opening brief is replete with
unsupported allegations and derogatory remarks directed at the
judges who dismissed their claims. This sort of language has no
place in an appellate brief (or any other document filed with a
court). In any event, matters of judicial discipline are beyond the
P.3d 1146, 1149 (the Colorado Constitution entrusts such matters
to the Colorado Commission on Judicial Discipline and, ultimately,
to the supreme court). As for plaintiffs’ second and third
arguments, these were not issues on which the district court ruled.
“We do not consider ‘arguments never presented to, considered or
26
ruled upon by’ the district court.” Core-Mark Midcontinent Inc. v.
Sonitrol Corp., 2016 COA 22, ¶ 24, 370 P.3d 353, 359 (quoting Est.
of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5
(Colo. 1992)).
IV. Disposition
¶ 48 The appeal is dismissed in part and the judgment is affirmed.
JUDGE WELLING and JUDGE SCHOCK concur.
