Halper v. San Miguel

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

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¶ 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.

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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.

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• 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.

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III. Disposition

¶ 8 The judgment is affirmed.

JUDGE WELLING and JUDGE SCHOCK concur.