Sturgell v. Holmes

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

judgment of dismissal . . . .” Hoen v. Dist. Ct., 159 Colo. 451, 455,

412 P.2d 428, 430 (1966). Thus, such an order “is not a final order

that is immediately appealable.” Willhite v. Rodriguez-Cera, 2012

CO 29, ¶ 8, 274 P.3d 1233, 1236 (citing Hoen, 159 Colo. at 455,

412 P.2d at 430); see Cranmer v. Olin Ski Co., 35 Colo. App. 371,

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 at 501 (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

endeavored to do so itself. Id.; see People v. Hicks, 262 P.3d 916,

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,

2019 COA 118, ¶ 8, 461 P.3d 575, 580. Accordingly, we give effect

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

for relief. Warne v. Hall, 2016 CO 50, ¶ 9, 373 P.3d 588, 591

(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,

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). A

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

established at the time of the violation. Pearson, 555 U.S. at 232;

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

24

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

purview of this court. See In re Kamada, 2020 CO 83, ¶ 13, 476

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.