23CA1459 Halper v San Miguel 07-18-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1459
San Miguel County District Court No. 23CV4
Honorable Keri A. Yoder, Judge
Mark L. Halper,
Plaintiff-Appellant,
v.
San Miguel County Sheriff,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE J. JONES
Welling and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 18, 2024
Mark L. Halper, Pro Se
Amy T. Markwell, County Attorney, Rachel J. Allen, Assistant County Attorney,
Telluride, Colorado, for Defendant-Appellee
1
¶ 1 Plaintiff, Mark L. Halper, appeals the district court’s judgment
dismissing his complaint against three employees of the San Miguel
County Sheriff’s Office — Sheriff William S. Masters, Undersheriff
Dan Covault, and Deputy Lane Masters. We affirm.
I. Background
¶ 2 Deputy Lane Masters served Halper with a summons and
complaint charging him with reckless driving. Halper filed a
“Complaint for Conspiracy to Frame Mark L. Halper,” asserting that
Deputy Masters did so “after having been ordered to do so, or
approved by San Miguel County Undersheriff Dan Covault acting
and working under the command of San Miguel County Sheriff
William ‘Bill’ S. Masters.” Halper’s complaint alleges, in purely
conclusory fashion, that the defendants violated the criminal
conspiracy statute, section 18-2-201, C.R.S. 2023. According to
attachments to the complaint, Halper believes that the other driver
involved in the underlying incident — with whom Halper has had
an acrimonious relationship — “set [him] up.”
¶ 3 The defendants answered the complaint and simultaneously
moved to dismiss it for failure to state a claim under C.R.C.P.
2
12(b)(5).
1
Halper responded to the motion by asserting generally
that his complaint met the plausibility standard of Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556
U.S. 662 (2009); expressing a need to conduct discovery to obtain
documents from the sheriff’s office that might support his claim;
accusing the sheriff’s office, Sherriff Masters, and Undersheriff
Covault of acting dishonorably and unprofessionally by telling him
not to call the sheriff’s office unless there is a “life or death
emergency”; and recounting his history of disputes with the other
driver (none of which is in the complaint).
¶ 4 The district court granted the defendants’ motion to dismiss,
concluding that Halper’s “bare bones complaint is so void of factual
assertions to support a legal claim, the Court cannot discern any
1
Because the defendants didn’t move to dismiss under C.R.C.P.
12(b)(5) before filing their answer, the district court should have
treated the motion as one for judgment on the pleadings under
C.R.C.P. 12(c). Barnes v. State Farm Mut. Auto. Ins. Co., 2021 COA
89, ¶ 19. But the test is the same for both motions, BSLNI, Inc. v.
Russ T. Diamonds, Inc., 2012 COA 214, ¶ 13, so this glitch doesn’t
affect our analysis.
3
portion of it,” and that the complaint’s conclusory allegation of a
“frame-up” fails to plead a civil claim.
2
II. Discussion
¶ 5 On appeal, Halper contends that (1) the defendants violated
certain of the “Shared Ten Principles” of the sheriff’s office; (2) they
conspired in violation of section 18-2-201; and (3) the district court
judge gave the defendants “preferential treatment” by granting the
motion and terminating the litigation. His opening brief consists
almost entirely of unsupported allegations of something like
collusion between the defendants, their counsel, and the district
court to have this case dismissed. In it he makes no effort to
explain how the complaint states a plausible claim for relief. See
Warne v. Hall, 2016 CO 50, ¶¶ 9, 12, 24 (the factual allegations of
the complaint must be enough to raise a right to relief above the
speculative level and provide plausible grounds for relief); see also
Jagged Peak Energy Inc. v. Okla. Police Pension & Ret. Sys., 2022
CO 54, ¶ 25.
2
The court also noted Halper’s failure to adhere to the pleading
requirements of C.R.C.P. 8(a) and 10.
4
¶ 6 Though we could end our analysis here, we briefly explain why
dismissal was proper.
• The complaint contains one factual allegation — that
Deputy Masters cited Halper for reckless driving after being
told to do so by, or with the approval of, Undersheriff
Covault, while working under Sheriff Masters. That sole
factual allegation is plainly insufficient to state a claim —
for conspiracy or anything else. Halper’s bare assertion
that the defendants violated the criminal conspiracy statute
can’t save Halper’s complaint because it is a legal
conclusion not entitled to a presumption of truthfulness.
See Norton v. Rocky Mountain Planned Parenthood, Inc.,
2018 CO 3, ¶ 7 (in ruling on a motion to dismiss for failure
to state a claim, the court is “not required to accept bare
legal conclusions as true”); Denver Post Corp. v. Ritter, 255
P.3d 1083, 1088 (Colo. 2011) (same).
• Halper doesn’t cite any legal authority, and we aren’t aware
of any, supporting the proposition that a person can assert
a civil cause of action based on the criminal conspiracy
statute.
5
• Halper doesn’t cite any authority, and we aren’t aware of
any, supporting the proposition that the sheriff’s office’s
“Shared Ten Principles” create any legal duty enforceable in
a civil action against sheriff’s office employees.
• We may only consider the allegations of the complaint, and
the documents attached thereto, in determining whether
Halper’s complaint states a claim upon which relief can be
granted. Yadon v. Lowry, 126 P.3d 332, 335-36 (Colo. App.
2005). Therefore, we can’t consider any of the factual
assertions in Halper’s response to the defendants’ motion to
dismiss and brief on appeal that aren’t contained in his
complaint.
¶ 7 In sum, having reviewed the district court’s dismissal for
failure to state a claim de novo, Bly v. Story, 241 P.3d 529, 533
(Colo. 2010), we conclude that the district court didn’t err by
granting the defendants’ motion to dismiss.
3
3
We deny the defendants’ motion to dismiss the appeal. Halper’s
failure to clearly argue any basis for reversing the judgment is a
valid basis for affirming the judgment, but it isn’t a reason to
dismiss the appeal.
6
III. Disposition
¶ 8 The judgment is affirmed.
JUDGE WELLING and JUDGE SCHOCK concur.
