Fortner v. United States of America et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 24–cv–01037–MDB
DARRELL FORTNER, and
DOES 1-5,
Plaintiffs,
v.
CHRISTOPHER FREEMAN, P.T., individually, and
DOES 1 through 20,
Defendants.
ORDER
This matter is before the Court on Defendant Christopher Freeman’s Motion to Dismiss
Pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure. ([“Motion”], Doc. No. 149.)
Plaintiff has filed a response in opposition ([“Response”], Doc. No. 153) to which Defendant
Freeman has replied (Doc. No. 154). After reviewing the Motion, briefing, and relevant law the
Court GRANTS the Motion, in part.
SUMMARY FOR PRO SE PLAINTIFF
The Court is dismissing your claims because even accepting all factual allegations in
your complaint as true, and drawing all inferences in your favor, the allegations are insufficient
and do not support the legal claims you are making in this case. Additionally, because it has been
over a year since you filed this action and you still have not identified the Doe Defendants, and
because the claims against the Doe Defendants are premised on the same insufficient allegations
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against Defendant Freeman, those claims are dismissed as well. Finally, Defendant Freeman has
asked the Court to order you to pay the costs and fees he expended to defend against your claims.
The Court will not do that at this time but cautions you against pressing meritless claims.
BACKGROUND
This action arises out of a previous lawsuit in El Paso County Court (the “El Paso County
case”). (Doc. No. 68 at ¶ 27.) Plaintiff initiated the El Paso County case on February 5, 2021,
“[a]gainst At Home Health Care and another home care service for not providing any home care
medical service.” (Id.) In this case, Plaintiff appears to allege that Defendant Freeman—who is a
physical therapist ostensibly involved in Plaintiff’s past treatment—presented “fabricated
medical records” in order to deceive the El Paso County Court into believing certain home care
services were rendered. (Id. at ¶¶ 30, 45.) Plaintiff specifically alleges Defendant Freeman,
“made false representations,” and “cop[ied] and paste[d]” Plaintiff’s name on to the allegedly
fabricated records. (Id. at ¶¶ 35, 41, 64.) Plaintiff brings claims for (1) defamation; (2) aiding and
abetting defamation; (3) “forgery/fraud”; and (4) civil conspiracy. (Id. at ¶¶ 46–74.)
Defendant Freeman has moved to dismiss all claims. (Doc. No. 149.) He also asks the
Court to award him the attorney’s fees and costs incurred in defending against this action. (Id. at
8–10.)
LEGAL STANDARD
I. 	Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss
a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the
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parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003) (quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Plausibility, in the context of a Rule 12(b)(6) motion to dismiss,
means that the plaintiff pleaded facts that allow “the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs
of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the
assumption of truth,” i.e., those allegations which are legal conclusions, bare assertions, or
merely conclusory. Id. at 679–81. Second, the court considers the factual allegations “to
determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a
plausible claim for relief, the claim survives the motion to dismiss. Id. at 679.
That being said, the Court need not accept conclusory allegations without supporting
factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he
tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
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of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id. (citation omitted). “Where a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Id. (citation omitted).
II. 	Pro Se Plaintiff
Plaintiff is proceeding pro se. The Court, therefore, “review[s] his pleadings and other
papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”
Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see Haines
v. Kerner, 404 U.S. 519, 520–21 (1972) (holding the allegations of a pro se complaint “to less
stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant’s
“conclusory allegations without supporting factual averments are insufficient to state a claim
upon which relief can be based.” Hall, 935 F.2d at 1110. A court may not assume that a plaintiff
can prove facts that have not been alleged or that a defendant has violated laws in ways that a
plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173–74
(10th Cir. 1997) (stating that a court may not “supply additional factual allegations to round out a
plaintiff’s complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the
court may not “construct arguments or theories for the plaintiff in the absence of any discussion
of those issues”). The plaintiff’s pro se status does not entitle him to an application of different
rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
ANALYSIS
I. 	Defamation Claims
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Colorado defines defamation as “(1) a defamatory statement concerning another; (2)
published to a third party; (3) with fault amounting to at least negligence on the part of the
publisher; and (4) either actionability of the statement irrespective of special damages or the
existence of special damages to the plaintiff caused by publication.” Brokers’ Choice of Am., Inc.
v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014).
Plaintiff’s allegations that Defendant submitted falsified medical records in the El Paso
County case does not state a claim for defamation. Plaintiff does not allege that any of the
purportedly false information in those records harmed his reputation. Rather, he claims the
records were falsified to deceive the state court into believing Defendant provided care. Cf.
DeRito v. United States, 851 F. App’x 860, 863 (10th Cir. 2021) (finding that allegations of
falsified medical records could support a defamation claim where the plaintiff alleged that the
records included inaccurate diagnoses that harmed his reputation). While such an allegation
might theoretically support a fraud claim (which the Court addresses below), it does not satisfy
the legal standard for defamation. Accordingly, Plaintiff’s defamation claim is dismissed.
Because Plaintiff’s defamation claim fails, Plaintiff’s claim for aiding and abetting
defamation is likewise dismissed. See Jogan Health, LLC v. Scripps Media, Inc., 565 P.3d 1160,
1167 (Colo. Ct. App. 2025) (holding that dismissal of a defamation claim requires dismissal of
any ancillary claims that “rise and fall” with it); Fry v. Lee, 408 P.3d 843, 855–56 (Colo. Ct.
App. 2013) (collecting cases).
II. 	Fraud Claim
To state a plausible fraud claim under Colorado law, a plaintiff must show the defendant
made a false representation of a material fact, knowing that representation to be false; that the
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person to whom the representation was made was ignorant of the falsity; that the representation
was made with the intention that it be acted upon; and that the reliance resulted in damage to the
plaintiff. Brody v. Bock, 897 P.2d 769, 775–76 (Colo.1995). Moreover, under Fed. R. Civ. P.
9(b), a plaintiff alleging fraud must “state with particularity the circumstances constituting
fraud.” Fed. R. Civ. P. 9(b).
Plaintiff merely alleges, in conclusory fashion, that Defendant Freeman and others
submitted false documents to the El Paso County Court. He fails to identify the content of the
alleged misrepresentations, explain why they were false, or describe how they were relied upon
by the El Paso County Court. In short, Plaintiff’s generalized and conclusory accusations are
insufficient to meet the elements of fraud under Colorado law or the heightened pleading
standard required by Rule 9(b). See United States ex rel. Schwartz v. Coastal Healthcare Group,
Inc., 2000 WL 1595976, at *3 (10th Cir. Oct. 26, 2000) (“At a minimum, Rule 9(b) requires that
a plaintiff set forth the who, what, when, where and how of the alleged fraud.” (internal
quotation omitted)); Goode v. Gaia, Inc., 2022 WL 596292, at *13 (D. Colo. Feb. 28, 2022) (“In
order to state a claim with sufficient particularity under this heightened standard, the complaint
must ‘set forth the time, place and contents of the false representation[.]’” (quoting Lawrence
Nat’l Bank v. Edmonds (In re Edmonds), 924 F.2d 176, 180 (10th Cir. 1991))). This Claim is
dismissed.1
1 Additionally, to the extent Plaintiff attempts to assert a separate, forgery-specific claim (see
Doc. No. 68 at 11 (labeling this claim as one for “forgery/fraud”)), Plaintiff has not articulated,
nor has the Court found, any authority suggesting that Colorado recognizes a civil cause of
action for forgery. See Knapp v. Acad. Dist. 20, 2020 WL 12584130, at *4 (D. Colo. Mar. 31,
2020) (“declin[ing] to conclude that a private cause of action exists under [Colorado’s criminal]
forgery statute”); Trujillo v. Ramirez, 2008 WL 5369033 (Colo. Dist. Ct. Aug. 05, 2008) (“The
court has been unable to locate any authority for a private cause of action for forgery.”).
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III. 	Civil Conspiracy Claim2
Under Colorado law, an actionable civil conspiracy claim requires: “(1) two or more
persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of
action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof.”
Am. Muckrakers PAC, Inc. v. Boebert, 2024 WL 3738932, at *23 (D. Colo. June 9, 2024)
(quoting Rosenblum v. Budd, 538 P.3d 354, 367 (Colo. App. 2023)).
Plaintiff’s civil conspiracy claim is conclusory and lacks the factual detail necessary to
nudge the claim from possible to plausible. (See, e.g., Doc. No. 68 at ¶¶ 54–55 (saying simply
that Mr. Freeman and the previously dismissed Defendants “conspired with each other to
fabricate the aforesaid false medical records” and that Mr. Osgood filed said documents in the El
Paso County Case).) Accordingly, these statements amount to nothing more than a “formulaic
recitation of the elements” of a conspiracy claim, which the Supreme Court in Twombly and
Iqbal made clear is insufficient to state a plausible claim for relief.
IV. 	Defendant Freeman’s Request for Costs and Attorney’s Fees
Defendant seeks an order awarding him “any and all recoverable costs and attorneys’ fees
incurred in seeking dismissal of Plaintiff’s claims.” (Doc. No. 149 at 10.)
A pro se litigant’s missteps often stem from a lack of experience with the litigation
process. While the Court cannot excuse the failure to plead plausible claims and strongly
disfavors contentious or obstructive behavior, it recognizes that such conduct frequently arises
2 In his Amended Complaint, Plaintiff cites 18 U.S.C. § 241 as a possible basis for this claim.
However, section 241 is a federal criminal statute and does not provide a private right of action.
See Jones v. Reg’l Transp. Dist., 2010 WL 3341205, at *1 (D. Colo. Aug. 23, 2010) (“18 U.S.C.
§ 241 does not provide [the plaintiff] with a private cause of action.”). Accordingly, the Court
reviews this claim solely under Colorado common law.
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from unfamiliarity with the federal rules, a sincere (if mistaken) belief that one has been
wronged, and the misguided view that success is best achieved by challenging every action taken
by opposing counsel rather than cooperating in good faith. With this in mind, courts frequently
decline to award fees and costs from unsophisticated pro se plaintiffs. See Homestake Mining
Co. v. Mid–Continent Exploration Co., 282 F.2d 787, 804 (10th Cir. 1960) (saying whether or
not a prevailing party shall be awarded fees and costs is “within the court’s sound discretion.”);
see, e.g., Serna v. City of Colorado Springs, 2025 WL 2433190, at *3 (D. Colo. Feb. 27, 2025);
Staggs v. City of Arvada, 2021 WL 365842, at *7 (D. Colo. Feb. 3, 2021). Here, the Court
declines to award fees and costs, and notes that the request does not comply with the Local Rules
requiring that it be “be supported by affidavit.” D.C.COLO.LCivR 54.3.
Still, the Court pauses to note caution Plaintiff against pressing meritless claims. See
Serna, 2025 WL 2433190 at * 3 (warning pro se plaintiffs that the Court’s leniency in the first
instance should not be misinterpreted as a green light to engage in frivolous litigation).
CONCLUSION
For the foregoing reasons, Defendant Christopher Freeman’s Motion to Dismiss Pursuant
to Rule 12(b)(6) of the Federal Rule of Civil Procedure (Doc. No. 149) is GRANTED and all
claims are dismissed without prejudice,3 and the Clerk of Court is directed to CLOSE this case.
3 The Court acknowledges the remaining unidentified Doe Defendants. However, given that the
claims against these individuals are predicated on the same allegations as the identified
Defendants, and given that Plaintiff has not attempted to identify these individuals during the
year and a half this case has been open, the Court finds that keeping this case open would be
futile. See Hall v. Bellmon, 935 F.2d 1106, 1109–10 (10th Cir. 1991) (“Although dismissals
under Rule 12(b)(6) typically follow a motion to dismiss ... a court may dismiss sua sponte when
it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing him an
opportunity to amend his complaint would be futile.” (internal quotation marks omitted)); see,
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The Clerk of Court is directed to mail a copy of this Order to Plaintiff:
Darrell Fortner
205 West Harp Street
Manchester, TN 37355
Dated this 19th day of November, 2025.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
e.g., Goodwin v. Hatch, 2018 WL 3454972, at *11 (D. Colo. July 18, 2018), aff'd, 781 F. App’x
754 (10th Cir. 2019); Horton v. Reeves, 2012 WL 1079150, *3 (D. Colo. March 30, 2012).
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