McKowen v. Harrington et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-00708-PAB-NRN
JOHN R. MCKOWEN,
Plaintiff,
v.
GREG HARRINGTON et al.,
Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTIONS TO DISMISS
(ECF Nos. 203, 205, 206, 209, 211) AND PLAINTIFF’S MOTION FOR SUMMARY
JUDGEMENT (ECF No. 262)
N. REID NEUREITER
United States Magistrate Judge
This matter is before the Court on six motions referred to the undersigned by
Chief Judge Philip A. Brimmer:
1. 	Defendant Charles F. Kirby’s (“Kirby”) Motion to Dismiss Pursuant to Fed. R.
Civ. P. 12(b)(6) and 9(b). ECF No. 203. Plaintiff John R. Mckowen (“Plaintiff”
or “Mckowen”) filed a response on September 15, 2025. ECF No. 218. Kirby
filed a reply on September 29, 2025. ECF No. 244.
2. 	Defendant Wistar Morris’s (“Morris”) Motion to Dismiss Pursuant to Federal
Rules of Civil Procedure 12(b)(6) and 9(b). ECF No. 2025. Plaintiff filed a
response on September 15, 2025. ECF No. 221. Morris filed a reply on
October 14, 2025. ECF No. 255.
3. 	Defendant Jeffrey Ploen’s (“Ploen”) Motion to Dismiss Pursuant to Federal
Rules of Civil Procedure 12(b)(6) and 9(b). ECF No. 206. Plaintiff filed a
response on September 15, 2025. ECF No. 222. Ploen filed a reply on
October 14, 2025. ECF No. 254.
4. 	Defendants State of Colorado, Colorado Attorney General’s Office, Attorney
General Philip Weiser, Colorado Securities Commissioner Tung Chan, First
Assistant Attorney General Robert Finke, and Senior Assistant Attorney
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General Jennifer Hunt’s (collectively “State Defendants”) Motion to Dismiss
Amended Complaint. ECF No. 209. Plaintiff filed a response on September
10, 2025. ECF No. 215. State Defendants filed an amended reply on October
9, 2025. ECF No. 250.
5. 	Defendant Greg Harrington’s (“Harrington”) Motion to Dismiss. ECF No. 211.
Plaintiff filed a response on September 12, 2025. ECF No. 217. Harrington
filed a reply on September 26, 2025. ECF No. 242.
6. 	Plaintiff’s Motion for Summary Judgment. ECF No. 262. Briefing on Plaintiff’s
Motion for Summary Judgment was stayed as to all Defendants by this Court
on December 12, 2025. ECF No. 270; see also ECF No. 276.
The Court conducted a motion hearing on the motions to dismiss on October 9,
2025. See ECF No. 252. The Court has taken judicial notice of the case file and
considered the applicable federal and state statutes and case law. Now, being fully
informed and for the reasons discussed below, the Court makes the following
recommendations.
I. 	BACKGROUND
The history of this case is intertwined with an underlying Colorado state court
action. On December 10, 2021, Tung Chan, the Securities Commissioner for the State
of Colorado, filed a civil action against 21 defendants in Denver District Court, including
against Plaintiff, Defendant Wayne Harding (“Harding”), Two Rivers Water & Farming
Company (“Two Rivers”), and TR Capital Partners, LLC (“TR Capital”), asserting three
claims for violations of the Colorado Securities Act (“Enforcement Action”). See Chan v.
Two Rivers Water & Farming Co., Case No. 2021CV33922, Compl. (Denver Dist. Ct.
Dec. 10, 2021).1 Harrington, who became CEO and a managing member of Two Rivers
1 The Court takes judicial notice of the docket in the Enforcement Action. See Tal v.
Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006) (holding that a court may take judicial
notice of facts which are a matter of public record when considering a motion to
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and TR Capital on September 19, 2019, was not personally named in the Enforcement
Action.
On May 4, 2023, Harrington, acting in his capacity as CEO of Two Rivers and
managing member of TR Capital, signed a Stipulation for Injunction and Other Relief
(the “Stipulation”) with the Securities Commissioner to resolve the Enforcement Action
with respect to those entities. See ECF No. 49-2 (Stipulation). In the Stipulation, the
Commissioner noted that new management, including Harrington,
had no prior knowledge of the fraud perpetrated by the Defendants and
other unnamed parties who acted as co-conspirators. New management
has 	worked diligently 	to unwind the 	convoluted accounting web 	and
deliberately intricate and complex system of business entity structure
specifically 	created 	by 	Prior 	Management 	in 	its 	scheme 	to 	defraud
investors.
Id. at 4.
On July 9, 2025, following a jury trial, the state court entered a 113-page
judgment, finding that Plaintiff violated the Colorado Securities Act. See Chan, Case No.
2021CV33922, Order of Judgment. The state court judgment ruled that Plaintiff and
Harding were “enjoined from any participation in private securities transactions in or
from the state of Colorado for twenty (20) years from the date of this Order,” and
entered judgment against the defendants, including Plaintiff, in the amount of
$16,578,690.33. Id. at 1.
On March 3, 2025—after the trial but before the entry of judgment by the state
court—Plaintiff filed the instant suit. ECF No. 1. On May 13, 2025, Plaintiff filed an
amended complaint against all defendants, bringing claims for (1) “Violation of Due
dismiss); Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1298 n.2 (10th Cir.
2014) (noting that a court may “take judicial notice of documents and docket materials
filed in other courts”).
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Process” pursuant to 42 U.S.C. § 1983; (2) “Violation of Equal Protection” pursuant to §
1983; (3) “Retaliation for Protected Activity” pursuant to 42 U.S.C. § 1983; (4) “Civil
Conspiracy to Deprive Constitutional Rights” pursuant to §§ 1983 and 1985; (5) “Fraud
and Constructive Fraud”; (6) “Declaratory Relief – Invalidity of Stipulation, Bankruptcy
Filings and Adversary Proceedings”; and (7) “Civil RICO” pursuant to 18 U.S.C. § 1962.
ECF No. 49 at 19–25.
One of Plaintiff’s objectives in the instant lawsuit is to stay enforcement of the
Colorado Chan judgment on the basis that the judgment was obtained “through fraud,
political retaliation, and constitutional violations.” ECF No. 140 at 3.
Plaintiff’s claims arise out of an asserted “multi-tiered scheme” that was
“executed or enabled” by defendants. ECF No. 49 at 2, ¶ 1. Plaintiff alleges that
defendants “misappropriat[ed] . . . investor capital through a Ponzi-like scheme,”
improperly transferred “control of corporate assets,” “misuse[d] a federally-approved
settlement agreement . . . to suppress and eliminate preserved investor rights,” and
were involved in “unauthorized dissolution and asset redistribution.” Id. Plaintiff’s
Amended Complaint is 30 pages long, has 116 paragraphs, and attaches 19 exhibits
totaling 963 pages purportedly in support of the allegations. ECF No. 49 and ECF No.
49-1 through 49-19.
In terms of relief, Plaintiff seeks (1) compensatory damages; (2) treble damages
for “racketeering conduct”; (3) punitive damages against all defendants “found to have
acted with malice, fraud, or reckless disregard for [Plaintiff’s ] constitutional and
statutory rights”; (4) declaratory relief that (a) “the Stipulation for Injunction and Other
Relief is void ab initio”; (b) the bankruptcy filings and adversary proceedings based on
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that Stipulation are without legal force; and (c) Plaintiff retains enforcement rights under
the Paulsen Settlement and Colorado law; (5) injunctive relief “permanently enjoining
Defendants from asserting or enforcing any right, claim, or proceeding, based on the
fraudulent Stipulation or its derivatives”; and (6) restitution and restoration of Plaintiff’s
“secured interests, including the GrowCo Deed of Trust . . ., and all related capital
account rights.” ECF No. 49 at 26–27. Plaintiff’s claims and the requested relief are
discussed in further detail in the following sections.
II. 	LEGAL STANDARDS
a. 	Pro Se Plaintiff
Mckowen 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. U.S., 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted).
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 v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 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 also Whitney v. N.M., 113
F.3d 1170, 1173–74 (10th Cir. 1997) (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”). A plaintiff’s pro se status
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does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d
952, 957 (10th Cir. 2002).
b. Rule 12(b)(6)
Rule 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 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) (citations and 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 motion to dismiss, means that the plaintiff pleaded
facts which 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,” that is, 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
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the allegations state a plausible claim for relief, such claim survives the motion to
dismiss. Id. at 679.
c. 	Rule 8
Under Rule 8(a)(2), a complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8(d)(1)
additionally provides that “[e]ach allegation must be simple, concise, and direct.” Fed. R.
Civ. P. 8(d)(1). Under these Rules, claims must be presented clearly and concisely in a
manageable format that allows a court and a defendant to know what claims are being
asserted and enables a defendant to respond to the claims. New Home Appliance Ctr.,
Inc., v. Thompson, 250 F.2d 881, 883 (10th Cir. 1957). To fulfill his or her obligations
under Rule 8 and state a claim in federal court, a plaintiff must explain what each
defendant did to him, when the defendant did it, how the defendant’s action harmed
him, and what specific legal right he believes the defendant violated. Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). “After all, these are,
very basically put, the elements that enable the legal system to get weaving—permitting
the defendant sufficient notice to begin preparing its defense and the court sufficient
clarity to adjudicate the merits.” Id. A decision to dismiss a complaint pursuant to Rule 8
is within the trial court’s sound discretion. See Windsor v. Colo. Dep’t of Corr., 9 F.
App’x 967, 969 (10th Cir. 2001). “If a complaint fails to meet these basic pleading
requirements, a district court may dismiss the action sua sponte for failure to comply
with Rule 8.” Rodriguez v. Nationwide Homes, Inc., 756 F. App’x 782, 785 (10th Cir.
2018).
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III. 	ANALYSIS
a. 	Defendants Kirby, Morris, and Ploen’s Motions to Dismiss. ECF Nos.
203, 205, & 206.
The Court will consider Defendants Kirby, Morris, and Ploen’s Motions to
Dismiss, ECF Nos. 203, 205, and 206, together, as all three individual defendants raise
nearly identical objections.
In the amended complaint, Plaintiff describes Kirby as a “[b]arred securities
professional who used proxies to raise and redirect funds. On information and belief,
[he] supported the Vaxa transaction knowing Harrington’s record.” ECF No. 49 at 6.
Morris is described as a “[b]oard member and legal counsel to his brother” who “[f]ailed
to act against capital diversion whole holding fiduciary responsibility.” Id. Ploen is
described as a “GrowCo board member who blocked internal audit requests and
enabled concealment of misclassified investor capital.” Id. Apart from this section
describing the parties involved, Kirby, Morris, and Ploen are not mentioned anywhere
else in the pleading. As Kirby points out in his motion, he is not specifically referenced in
the amended complaint’s “Factual Background” section, nor is he referenced in any of
the seven counts. ECF No. 203 at 2. The same is true for Morris and Ploen.
The Court first considers whether the amended complaint satisfies Fed. R. Civ.
P. 8 before considering whether the complaint states a claim upon which relief may be
granted pursuant to Rule 12(b)(6). See 5 Wright & Miller’s Federal Practice & Procedure
§ 1203 (4th. ed. 2008) (“[T]he form and sufficiency of a statement of a claim for relief
under Rule 8(a)(2) may be tested by a motion to dismiss for failure to state a claim upon
which relief can be granted . . . .”).
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As previously noted, under Rule 8, a plaintiff must explain what each defendant
did to him, when the defendant did it, how the defendant’s action harmed him, and what
specific legal right he believes the defendant violated. Nasious, 492 F.3d at 1163. “The
purpose behind Rule 8 is to ‘give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.’” McNamara v. Brauchler, 570 F. App’x 741, 743
(10th Cir. 2014) (quoting Leatherman v. Tarrant Cnty. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168 (1993)). “It is not the role of either the court or the
defendant to sort through a lengthy, poorly drafted complaint and voluminous exhibits in
order to construct plaintiff’s causes of action.” Id. (quoting Schupper v. Edie, 193 Fed.
App’x 744, 746 (10th Cir. 2006)). Plaintiff’s 30-page amended complaint, which divides
the factual background into four “eras” and narrates conduct dating back to 2002, fails
to satisfy even the low Rule 8 standard. For example, under Count I for “Violation of
Due Process” pursuant to 42 U.S.C. § 1983, Plaintiff indiscriminately claims
“Defendants acting under color of state law deprived Plaintiff of constitutionally
protected property interests—including security rights under a recorded Deed of Trust
and contractual rights under the Paulson Settlement—without notice or hearing,” and
that “the Stipulation accepted by the State and used to authorize bankruptcy filings was
not adjudicated, voted on, or authorized by any corporate governance procedure.
Plaintiff was never provided an opportunity to be heard.” ECF No. 49 ¶¶ 73–74. Plaintiff
does not state how each of these individual defendants allegedly violated Plaintiff’s due
process rights.
The same can be said for Count II for “Violation of Equal Protection” pursuant to
§ 1983. Under Count II, Plaintiff alleges that “Defendants, including the Colorado
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Attorney General’s Office and the Colorado Securities Division, selectively enforced
state power to pursue Plaintiff while actively protecting Greg Harrington—a known
securities felon,” and that “[t]he State took no action against Harrington, despite clear
evidence of securities fraud, conversion of public assets, and use of falsified filings.” Id.
¶¶ 78–79. To satisfy Rule 8, the complaint must clearly state how each defendant
allegedly violated Plaintiff’s rights. “Neither the defendants nor the district court should
be required to sort through hundreds of paragraphs in an effort to identify the operative
facts and theories of the complaint.” Proenza v. Greco, 3 F. App’x 742, 745 (10th Cir.
2001). Count II fails to ascribe specific conduct to any of these three individual
defendants.
Likewise, Counts III–VI do not seem to implicate Kirby, Morris, or Ploen. Under
Plaintiff’s final claim for civil RICO (Count VII), he alleges that “Defendants engaged in a
pattern of racketeering activity, coordinated through an enterprise, which directly injured
Plaintiff’s property interests.” ECF No. 49 ¶ 100. “Beginning no later than 2017 and
continuing through the present,” Plaintiff claims that “Defendants formed an association-
in-fact enterprise, including Greg Harrington, Wayne Harding, TR Capital Partners, LLC,
certain state actors within the Colorado Attorney General’s Office, and others, with the
shared purpose of stripping secured investor assets, relitigating barred claims, and
diverting value through fabricated litigation.” Id. ¶ 101. Without describing any specific
acts committed by Kirby, Morris, or Ploen that were in furtherance of the conspiracy,
Plaintiff conclusory states “[e]ach Defendant conspired to violate 18 U.S.C. §1962(c)
and is liable under 18 U.S.C.§1962(d) for conspiracy to engage in racketeering activity.”
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In his responses to each of the motions to dismiss by Kirby, Morris, and Ploen,
Plaintiff purports to include specific allegations related to each of the three defendants.
However, these additional allegations were not included in the amended complaint.
Plaintiff also points the Court to a myriad of exhibits that, together, allegedly tie all three
individuals to fraudulent and conspiratorial conduct. However, many of these exhibits
were not referenced in or attached to the amended complaint. Additionally, as Kirby
points out, some of the cited exhibits do not exist in the record.2 ECF No. 244 at 2. The
Court has no obligation to scour the record in search of evidence to support factual
assertions. See Mitchell v. City of Moore, 218 F.3d 1190, 1199 (10th Cir. 2000) (“The
district court was not obligated to comb the record in order to make [the plaintiff’s]
arguments for him.”). As has often been said, judges “are not like pigs, hunting for
truffles buried in briefs.” Gross, 53 F.3d at 1546 (quotation omitted).
For all these reasons, the Court finds that each of Plaintiff’s claims fail under
Rule 8 with respect to Defendants Kirby, Morris, and Ploen. Furthermore, because
Plaintiff’s amended complaint “consistently fails to identify what specific actions the
defendants took to violate [the plaintiff’s] rights,” Gottorff, 2025 WL 1482719, at *2, the
Court finds that Plaintiff’s claims also fail under Rule 12(b)(6). See 5 Wright & Miller’s
Federal Practice & Procedure § 1203 (4th. ed. 2008) (“[I]t is readily apparent that Rules
8 and 12 are closely related and interdependent. . . . Each provision both complements
and supplements the other.”).
2 Along with his response to Kirby’s Motion to Dismiss, Plaintiff filed a separate “Notice
of Supplement Exhibits.” ECF No. 220. However, it does not appear that Plaintiff
actually filed the exhibits described in the supplement.
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Accordingly, the Court recommends that Defendants Kirby, Morris, and Ploen’s
Motions to Dismiss, ECF Nos. 203, 205, and 206, be GRANTED.
b. State Defendants and Harrington’s Motions to Dismiss. ECF No. 209
& 211.
i. 	Count I: Violation of Due Process—Denial of Notice and
Hearing (42 U.S.C. § 1983)
To state a claim for a violation of Section 1983, a plaintiff must plead that (1) he
was deprived of a right secured by the Constitution or laws of the United States, and (2)
the alleged deprivation was committed under color of state law. Barnett v. Hall, Estill,
Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1235 (10th Cir. 2020). Under
Count I for “Violation of Due Process” pursuant to 42 U.S.C. § 1983, Plaintiff claims
“Defendants acting under color of state law deprived Plaintiff of constitutionally
protected property interests—including security rights under a recorded Deed of Trust
and contractual rights under the Paulson Settlement—without notice or hearing,” and
that “the Stipulation accepted by the State and used to authorize bankruptcy filings was
not adjudicated, voted on, or authorized by any corporate governance procedure.
Plaintiff was never provided an opportunity to be heard.” ECF No. 49 ¶¶ 73–74.
Even if Plaintiff can identify a recognized property interest that is protected by the
Fourteenth Amendment, he fails to allege facts demonstrating that the State Defendants
deprived him of those interests. The State Defendants argue, and the Court agrees, that
Plaintiff has failed to demonstrate that “‘Stipulations’ or ‘agreements’ between the State
and other parties to a state court action, that prejudice yet another party’s financial
interests, violate the constitution.” ECF No. 209 at 25. Plaintiff provides no legal basis
for the notion that he was entitled to an opportunity to be heard with respect to the
Stipulation and does not otherwise identify what process he should have received to
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challenge the Stipulation. Accordingly, the Court finds that Count I should be dismissed
pursuant to Rule 12(b)(6) as to the State Defendants.
Additionally, the Court agrees with Harrington that Plaintiff “wholly fail[s] to plead
any action by Harrington ‘under color of state law.’” ECF No. 211 at 4. Therefore, Count
I should also be dismissed as to Harrington.
ii. 	Count II: Violation of Equal Protection—Selective Enforcement
(42 U.S.C. § 1983)
The Equal Protection Clause of the Fourteenth Amendment guarantees that “[n]o
State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
U.S. Const. amend. XIV, § 1. “The Equal Protection Clause ‘keeps governmental
decision makers from treating differently persons who are in all relevant respects alike.’”
Soskin v. Reinertson, 353 F.3d 1242, 1247 (10th Cir.2004) (quoting Nordlinger v. Hahn,
505 U.S. 1, 10 (1992)); see also Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d
1219, 1233 (10th Cir. 2009) (“Equal protection ‘is essentially a direction that all persons
similarly situated should be treated alike.’”) (quoting City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985)). To state a claim under Section 1983 for violation of the
Equal Protection Clause, Plaintiff must show Defendants acted under color of law and
somehow discriminated against him.
In support of his equal protection claim, Plaintiff alleges that the State
Defendants treated Harrington, “a known securities felon,” with more leniency in the
underlying state court proceedings. ECF No. 49 ¶ 78. Even if this were true, Plaintiff
fails to allege any facts showing that the State Defendants’ conduct was motivated by
animus towards Plaintiff’s membership in a protected class. Nor does Plaintiff plead any
facts that would show that he and Harrington are similarly situated. For these reasons,
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Plaintiff fails to state a claim under the Equal Protection Clause of the Fourteenth
Amendment as to the State Defendants. See Brown v. Montoya, 662 F.3d 1152, 1172–
73 (10th Cir. 2011) (“[i]n each instance, ‘to assert a viable equal protection claim,
plaintiffs must first make a threshold showing that they were treated differently from
others who were similarly situated to them.’”) (quoting Barney v. Pulsipher, 143 F.3d
1299, 1312 (10th Cir.1998)). Count II should also be dismissed as to Harrington, as the
allegations do not attribute any conduct to him.
iii. 	Count III: Retaliation for Protected Activity (42 U.S.C. § 1983)
Under Count III, Plaintiff alleges that by deciding to prosecute Plaintiff while
“shielding” Harrington, the State Defendants retaliated against him because he is a
known “Republican precinct leader.” ECF No. 49 ¶¶ 82–83. Plaintiff further self-identifies
as a “whistleblower” and claims that the State Defendants brought the enforcement
action against him because he engaged in “protected efforts to enforce investor rights.”
Id.
To state a First Amendment retaliation claim, Plaintiff must demonstrate: (1) he
was engaged in constitutionally protected activity, (2) Defendants’ actions caused him to
suffer an injury that would chill a person of ordinary firmness from continuing to engage
in that activity, and (3) Defendants’ adverse action was substantially motivated as a
response to Plaintiff’s constitutionally protected activity. See Shero v. City of Grove, 510
F.3d 1196, 1203 (10th Cir. 2007). Though Plaintiff claims that he was selectively
prosecuted by the State Defendants due to his political affiliation or “whistleblower”
activity, the amended complaint is devoid of any non-conclusory factual allegations to
back up these claims. In his response to the State Defendants’ motion, Plaintiff argues,
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Plaintiff’s political activity is a matter of public record. He served as a
precinct committee person, county and state representative, and the sole
poll watcher in Denver during the 2022 election in support of President
Donald J. Trump. The timing and tenor of the State’s actions—proceeding
with a stipulation that falsely branded Plaintiff as fraudulent, refusing to
produce fact witnesses, excluding exculpatory evidence, and ultimately
securing a $16.5 million judgment unsupported by the Colorado Securities
Act—evidence 	retaliation 	against 	Plaintiff 	for 	his 	protected 	political
association and speech. This constitutes a violation of the First Amendment.
ECF No. 215 ¶ 28. However, Plaintiff has failed to put forth any non-conclusory
allegations demonstrating that the State Defendants’ actions were motivated by any
constitutionally protected activity that Plaintiff engaged in. As the State Defendants
argue in their motion, “[Plaintiff]’s unsupported, speculative, and conclusory claim of
retaliation is insufficient to withstand a motion to dismiss.” ECF No. 209 at 20 (citing
Merritt v. Hawk, 153 F.Supp.2d 1216, 1224 (D. Colo. 2001)). Therefore, the Court finds
that Count III should be dismissed as to the State Defendants for failure to satisfy Rule
12(b)(6). Count III should also be dismissed as to Harrington as the allegations do not
concern him.
iv. 	Count IV: Civil Conspiracy to Deprive Constitutional Rights (42
U.S.C. § 1983 and § 1985)
Under Count IV – Civil Conspiracy to Deprive Constitutional Rights (42 U.S.C. §
1983 and § 1985), Plaintiff alleges that “Defendants Greg Harrington, TR Capital
insiders, and public officers of the State of Colorado jointly conspired to execute a plan
that deprived Plaintiff of constitutionally protected rights.” ECF No. 49 ¶ 86. According to
Plaintiff, the civil conspiracy involves the “fabrication of a Stipulation, unlawful
bankruptcy filings, the misuse of privilege to block testimony, and the denial of access to
a fair hearing.” Id. ¶ 87.
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To bring a claim under § 1985(3), a plaintiff must show the following: (1) a
conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and immunities;
(3) an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting
therefrom. Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (citing Griffin v.
Breckenridge, 403 U.S. 88, 102–03 (1971)). Furthermore, for a § 1985(3) claim
specifically, a plaintiff is required to allege that the conspiracy is motivated by racial or
other class-based animus. See id.; Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.
1993). While Plaintiff alleges that the State of Colorado retaliated against him due to his
membership in the Republican party, the Tenth Circuit has not interpreted § 1985(3) to
cover animus directed at political groups. See Brown v. Reardon, 770 F.2d 896, 905–06
(10th Cir. 1985) (employees suffering political discrimination not members of a class for
purposes of § 1985(3)); Bauge v. Jernigan, 669 F. Supp. 348, 354 (D. Colo. 1987)
(“Plaintiff’s alleged status as a member of the Libertarian Party therefore avails him
naught in stating a claim under § 1985(3).”). Even if political affiliation were to constitute
a protected class for the purposes of § 1985(3), as this Court previously noted, Plaintiff
does not offer any non-conclusory allegations that would demonstrate that Defendants
acted out of animus towards Plaintiff’s political leanings. Thus, Plaintiff’s claim for civil
conspiracy under § 1985(3) necessarily fails under Rule 12(b)(6). Accordingly, Count IV
should be dismissed as to all Defendants.
v. 	Count VII: CIVIL RICO (18 U.S.C. §§ 1962(c), 1962(d))
In Count VII – Civil Rico (18 U.S.C. §§ 1962(c), 1962(d)), Plaintiff alleges that
“Defendants engaged in a pattern of racketeering activity, coordinated through an
enterprise, which directly injured Plaintiff’s property interests.”
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RICO provides a cause of action for those injured in business or property by
reason of prohibited racketeering activities. 18 U.S.C. § 1964(c). “A RICO claim must
allege a violation of 18 U.S.C. § 1962, which consists of four elements: (1) conduct (2)
of an enterprise (3) through a pattern (4) of racketeering activity.” Bixler v. Foster, 596
F.3d 751, 760– 61 (10th Cir. 2010). To withstand a Rule 12(b)(6) challenge, civil RICO
claimants must set forth with particularity the predicate acts they allege give rise to a
cause of action. Cayman Exploration Corp. v. United Gas Pipeline Co., 873 F.2d 1357,
1362 (10th Cir. 1989).
The Court finds that Plaintiff’s civil RICO claim fails under Rule 12(b)(6) because
Plaintiff has failed to plausibly allege, among other elements, the existence of an
“pattern” of racketeering activity. “[T]o prove a pattern of racketeering activity a plaintiff
or prosecutor must show that the racketeering predicates are related, and that they
amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co.,
492 U.S. 229, 239 (1989). As the Tenth Circuit has explained, “to establish continuity,
the plaintiff must demonstrate either a closed period of repeated conduct or past
conduct that by its nature projects into the future with a threat of repetition.” SIL-FLO,
Inc. v. SFHC, Inc., 917 F.2d 1507, 1516 (10th Cir. 1990) (internal quotation and citation
omitted).
The basis for Plaintiff’s civil RICO claim lies in the allegedly “fraudulent”
Stipulation entered into by Harrington and the Securities Commissioner, and the
“selective” prosecution of Plaintiff in the underlying state court proceedings that Plaintiff
felt was unfair to him. Even if it were assumed that Plaintiff had sufficiently pled the
existence of an “enterprise” between the State Defendants and Harrington, “there
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certainly is no open-ended threat of future illegal activity.” Id. The acts alleged by
Plaintiff constitute, at most, no more than a “single scheme to accomplish one discrete
goal, directed at one individual with no potential to extend to other persons or entities.”
Id. (internal quotation and citation omitted). While a single scheme may be sufficient to
show a pattern of racketeering activity under certain circumstances, here there are no
well-pled facts that could demonstrate a threat of continuing illegal activity by the
alleged enterprise. Thus, Plaintiff’s civil RICO claim should be dismissed for failure to
satisfy Rule 12(b)(6) as to all Defendants.
vi. 	Count V: Fraud and Constructive Fraud (State Law)
Lastly, because the Court recommends that Plaintiff’s federal claims be
dismissed pursuant to Rule 12(b)(6), the Court declines to exercise supplemental
jurisdiction over Plaintiff’s state law claim for fraud. Accordingly, Count V should be
dismissed as to all Defendants.
vii. 	Younger Abstention bars Plaintiff’s Claims against State
Defendants
In their motion, the State Defendants argue “[Plaintiff]’s federal claims expressly
attempt to interfere with ongoing Colorado state court proceedings. [Plaintiff] seeks that
this Court either overturn or enjoin the state court judgment awarding sixteen million
dollars against him and halting him from selling securities in Colorado for twenty years.”
The Court agrees.
Previously, Plaintiff filed a “Corrected Emergency Motion for Stay of State Court
Judgment Based on RICO Predicates, Selective Enforcement, and Due Process
Violations,” filed July 28, 2025. ECF No. 140. The Court construed this motion as a
request for a preliminary injunction. By Order dated August 22, 2025, Chief Judge
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Brimmer denied Plaintiff’s motion on the basis that the Court must abstain from
interfering in ongoing state court proceedings pursuant to Younger v. Harris, 401 U.S.
37 (1971). ECF No. 193 at 6.
On August 12, 2025, Plaintiff filed a Notice of Appeal in the Enforcement Action.
See McKowen v. Chan, Case No. 2025CA001513 (Colo. Ct. App. Aug. 12, 2025).3 The
Colorado Court of Appeals action remains pending. Given that the state court
proceedings are still ongoing, the Court finds persuasive State Defendants’ argument
that “[t]his Court’s denial of [Plaintiff]’s previously sought preliminary injunctive relief
applies equally to his claims against State Defendants seeking to enjoin them from
using the Stipulation ‘or its derivatives’ in any fashion and his claims that such an
injunction should also lead to damages payments.” ECF No. 209 at 8 (citing ECF No. 49
at 26–27).
At the heart of Plaintiff’s claims under Section 1983, for conspiracy to interfere
with civil rights, and civil RICO, is Plaintiff’s assertion that the Stipulation and any
adversary proceedings based on the Stipulation (i.e. the state court proceedings) are
“without legal force.” ECF No. 49 at 26. Plaintiff’s amended complaint seeks injunctive
relief invalidating the state court proceedings and damages payments based on alleged
injury caused by the Stipulation and state court proceedings.
“Younger requires federal courts to refrain from ruling when it could interfere with
ongoing state proceedings.” Columbian Fin. Corp. v. Stork, 811 F.3d 390, 393 (10th Cir.
2016). Younger only applies to three “exceptional” categories of cases: (1) state criminal
prosecutions, (2) civil enforcement proceedings, and (3) civil proceedings “involving
3 The Court takes judicial notice of the state court docket in Case No. 2025CA001513.
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certain orders that are uniquely in furtherance of the state courts’ ability to perform their
judicial functions.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 73 (2013) (citation
omitted). If the proceeding falls into a Sprint category, then the federal court must
abstain if the following conditions are met: (1) there is an ongoing state judicial, civil, or
administrative proceeding, (2) which implicates important state interests, and (3) in
which there is an adequate opportunity to raise constitutional challenges. Middlesex
Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431–32 (1982); Crown
Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir. 2003).
Chief Judge Brimmer previously found that “the state proceeding challenged by
plaintiff falls into the second Sprint category because it was brought by the Securities
Commissioner for the State of Colorado, Tung Chan, to sanction plaintiff for his violation
of the Colorado Securities Act.” ECF No. 193 at 8. After determining that the state
proceedings fell under one of the Sprint categories, Chief Judge Brimmer found that the
Middlesex County conditions were satisfied because there exists an ongoing state court
proceeding which implicates important state interests, and in which there is adequate
opportunity to raise constitutional challenges. Id. For the same reasons set forth in Chief
Judge Brimmer’s August 22, 2025 Order, this Court agrees. Accordingly, the Court finds
that Plaintiff’s claims should be dismissed as to the State Defendants pursuant to
Younger.
viii. 	The Eleventh Amendment Bars any Monetary Recovery
To the extent that Plaintiff seeks not to reverse or challenge the orders issued by
the state court, but instead seeks to be awarded money damages for the alleged
constitutional wrongs he has suffered, the Court agrees with Defendants that the
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Eleventh Amendment bars any monetary recovery against the State of Colorado and
the Office of the Attorney general and therefore bars Plaintiff’s official capacity claims.
The Eleventh Amendment provides: “The Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” U.S. Const. amend. XI. This means the Eleventh Amendment
bars suits in federal court for damages and injunctive relief against states unless the
state unequivocally waives its immunity or Congress expressly abrogates the state’s
immunity in creating a statutory cause of action. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 97–102 (1984). A state officer sued in his official capacity
enjoys similar protection. Colby v. Herrick, 849 F.3d 1273, 1276 (10th Cir. 2017). An
effectively raised Eleventh Amendment defense deprives a federal court of jurisdiction.
Harris v. Owens, 264 F.3d 1282, 1288 (10th Cir. 2001).
[I]t is ‘beyond dispute’ that the judicial branch of the State of Colorado has
Eleventh Amendment immunity from § 1983 claims.” Lucas v. The Bd. of Cnty Comm’s
of the Cnty. of Larimer Cnty. Colo., No. 19-cv-1251-WJM-SKC, 2020 WL 5642321 at *
12 (D. Colo. Sept. 22, 2020). Here, Plaintiff has brought suit against the State of
Colorado, the Office of the Attorney General, Attorney General Weiser, Commissioner
Chan, Jennifer Hunt, and Robert Finke in their official capacities for monetary damages.
No waiver of sovereign immunity applies, and therefore all claims for monetary
damages for the alleged wrongs done to Plaintiff by the State Defendants in connection
with the state court proceedings should also be dismissed for this reason alone.
IV. 	RECOMMENDATION
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Based on the foregoing, the Court RECOMMENDS that:
1. 	Defendant Charles F. Kirby’s Motion to Dismiss Pursuant to Fed. R. Civ. P.
12(b)(6) and 9(b), ECF No. 203, be GRANTED;
2. 	Defendant Wistar Morris’s Motion to Dismiss Pursuant to Federal Rules of
Civil Procedure 12(b)(6) and 9(b), ECF No. 2025, be GRANTED;
3. 	Defendant Jeffrey Ploen’s Motion to Dismiss Pursuant to Federal Rules of
Civil Procedure 12(b)(6) and 9(b), ECF No. 206, be GRANTED;
4. 	Defendants State of Colorado, Colorado Attorney General’s Office, Attorney
General Philip Weiser, Colorado Securities Commissioner Tung Chan, First
Assistant Attorney General Robert Finke, and Senior Assistant Attorney
General Jennifer Hunt’s Motion to Dismiss Amended Complaint, ECF No.
209, be GRANTED;
5. 	Defendant Greg Harrington’s Motion to Dismiss, ECF No. 211, be GRANTED;
and
6. 	Plaintiff’s Motion for Summary Judgment, ECF No. 262, be DENIED as moot.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
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(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412–13 (10th Cir. 1996).
Date at Denver, Colorado this 6th Day of February 2026
___________________________
N. Reid Neureiter
United States Magistrate Judge
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