Casper v. Pitkin

24CA0719 Casper v Pitkin 05-15-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0719
Pitkin County District Court No. 22CV10
Honorable Denise K. Lynch, Judge

Jeremiah Casper,

Plaintiff-Appellant,

v.

Pitkin County Sheriff’s Office, Joe DiSalvo, Kim Vallario, Brad Gibson, Levi
Borst, Zane Sisneros, and Richard Y. Neiley III,

Defendants-Appellees.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE MOULTRIE
Lipinsky and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 15, 2025

Jeremiah Casper, Pro Se

Richard Y. Neiley III, County Attorney, Aspen, Colorado, for Defendants-
Appellees
¶1 Plaintiff, Jeremiah Casper, appeals the district court’s

dismissal of his civil contempt action filed against defendants, the

Pitkin County Sheriff’s Office, Joe DiSalvo, Kim Vallario, Brad

Gibson, Levi Borst, and Zane Sisneros (collectively, the Sheriff

Defendants).1 We affirm in part and reverse in part and remand

with directions.

I. Background

A. The 2020 Lawsuit

¶2 In 2020, Casper filed a complaint in the Pitkin County District

Court (the 2020 lawsuit) alleging that he suffered “a multitude of

constitutional deprivations” while in the custody of the Pitkin

County Sheriff’s Office for presentence confinement related to a

theft and burglary case. Casper further alleged that the Sheriff

1 Casper later sought to add “Aspen Mayor Torre” and Richard Y.

Neiley III (Attorney Neiley) as defendants. Casper added “Aspen
Mayor Torre” by amending his complaint as a matter of course
pursuant to C.R.C.P. 15(a). Casper later filed a motion for leave to
amend to add as an additional defendant Attorney Neiley, the
assistant county attorney who represented Pitkin County in Pitkin
County Case No. 20CV20 and the contempt action underlying this
appeal. The court never granted Casper leave to add Attorney
Neiley to the case, however.

1
Defendants were liable to him for $8,005,219 in damages because

they deprived him of his constitutional rights.2

¶3 Upon Casper’s motion, the court issued an order granting

summary judgment on liability in Casper’s favor in July 2022 (the

July 2022 order) based on the court’s finding that the defendants in

the 2020 lawsuit had neither filed an answer nor a response to

Casper’s summary judgment motion. After the court issued the

July 2022 order, Casper filed several requests to set a damages

hearing. About a week after the court issued the July 2022 order,

the Sheriff Defendants filed a “Motion to Set Aside Summary

Judgment” that the court granted in March 2023 (the March 2023

order). The March 2023 order thus set aside the July 2022 order.

The court never set a hearing on damages or otherwise determined

the amount of damages, if any, to which Casper was entitled in the

2020 lawsuit. The 2020 lawsuit remains pending.

B. The 2022 Contempt Lawsuit

¶4 In November 2022, Casper filed a separate civil action seeking

contempt of court against the Sheriff Defendants (the 2022

2 Casper did not name Attorney Neiley or “Aspen Mayor Torre” as

defendants in the 2020 lawsuit.

2
contempt lawsuit), which is the basis for this appeal. Casper

alleged that the Sheriff Defendants were in contempt of court for

failing to pay him the $8,005,219 in damages that he claimed the

court awarded to him in the 2020 lawsuit. He also sought an

additional $4,400,000 in financial compensation — $400,000 of

which he asserted was for his “mental anguish,” while the other

$4,000,000 was “financial leverage” to compel the Sheriff

Defendants to comply with the July 2020 order.

C. The Judgment in the 2022 Contempt Lawsuit

¶5 In March 2024, the court entered an order dismissing the

2022 contempt lawsuit with prejudice (the judgment) on the

grounds that Casper’s contempt complaint was not ripe for

adjudication, and therefore, the court lacked subject matter

jurisdiction. To support its conclusion that Casper’s contempt

complaint wasn’t ripe, the court found:

• The March 2023 order set aside the July 2022 order,

which Casper sought to enforce.

• The July 2022 order wasn’t valid or enforceable because

of the March 2023 order.

3
• Casper’s claims were “neither real, nor fit for judicial

decision, because they involve speculation about the

future actions of another district court judge and the

future actions of the defendants in [the 2020 lawsuit]

when/if there is ultimately a monetary award of damages

entered.”

• Until an order for damages was entered in the 2020

lawsuit, Casper wasn’t entitled to any of the remedies he

sought in the 2022 contempt lawsuit — garnishment of

wages and judgment liens against property.

¶6 Casper’s primary contention on appeal is that the court

improperly dismissed the 2022 contempt lawsuit because of judicial

bias. Specifically, he asserts that Chief Judge John Neiley

“intercepted jurisdiction of [the 2022 contempt lawsuit]” and

reassigned the case to Judge Denise Lynch, who was biased against

him, in violation of C.R.C.P. 97. Casper further argued that Judge

Lynch improperly “dismissed [the 2022 contempt lawsuit] for

personal reasons.” In sum, he asserts that the court “prematurely”

dismissed the 2022 contempt lawsuit and did so only to benefit

Attorney Neiley because of his familial relation to Chief Judge

4
Neiley.3 He also asserts that he was entitled to a default judgment

because the Sheriff Defendants defaulted under C.R.C.P. 12(a)

when they failed to respond to his complaint after being properly

served.

¶7 As an initial matter, we decline to address Casper’s contention

that he was entitled to a default judgment in the 2022 contempt

lawsuit because, as discussed below, he didn’t properly preserve

this issue for our review. Then we discuss the legal principles

applicable to the disqualification of a judge and allegations of

judicial bias. Applying these principles, we conclude that Chief

Judge Neiley didn’t violate Rule 97 when he transferred the 2022

contempt lawsuit to Judge Lynch, and we reject Casper’s assertion

that Judge Lynch dismissed his contempt complaint because of

actual bias. Finally, while we disagree with Casper’s contention

that the court erred by “prematurely” dismissing his complaint, we

conclude the court erred by dismissing it with prejudice.

3 Attorney Neiley is the nephew of Ninth Judicial District Chief

Judge John Neiley. Casper also appears to allege various errors
related to the court’s handling of the 2020 lawsuit. To the extent
that Casper is asking us to review alleged errors arising out of that
case, we lack jurisdiction to do so because that case is not before
us.

5
II. Casper Didn’t Properly Preserve His Argument That He Is
Entitled to Default Judgment

¶8 We have an “independent, affirmative duty to determine

whether a claim is preserved.” Forgette v. People, 2023 CO 4, ¶ 15

(citation omitted). And in civil cases, we will not review

insufficiently preserved issues. Ortiz v. Progressive Direct Ins. Co.,

2024 COA 54, ¶ 40 (cert. granted Apr. 14, 2025).

¶9 Casper filed a motion for default judgment4 in which he argued

that Mayor Torre defaulted under C.R.C.P. 12(a) by failing to file a

response to Casper’s complaint. But Casper doesn’t direct us to

any place in the record where the court ruled on his motion for

default judgment, nor have we been able to find any place in the

record where the court made factual findings or legal conclusions

regarding that motion. Thus, this issue is not properly preserved,

and we decline to address it further. See Forgette, ¶ 21 (“[A] party

must present the trial court with ‘an adequate opportunity to make

4 Casper’s motion is titled “Motion for summary judgement [sic] per

CRCP 56 due to defendant non answer provision per CRCP
12(a)(1).” Notwithstanding the title of Casper’s motion, his
argument concerns whether the court erred by not entering default
judgment against Mayor Torre. Alpha Spacecom, Inc. v. Hu, 179
P.3d 62, 65 (Colo. App. 2007) (“The substance of a [pleading], rather
than the title applied to it, is controlling.”).

6
findings of fact and conclusions of law on any issue before [an

appellate court] will review it.’”) (citation omitted).

III. Casper Hasn’t Demonstrated that Chief Judge Neiley Violated
Rule 97 or that Judge Lynch was Actually Biased

A. Additional Background

¶ 10 The judicial officer who originally presided over the 2020

lawsuit and two prior criminal proceedings involving Casper —

Judge Christopher Seldin — also initially presided over the 2022

contempt lawsuit. Because of Casper’s expressed concerns

regarding retaliation and unfairness, Judge Seldin issued an order

in February 2024 disqualifying himself (the disqualification order)

from presiding over the 2022 contempt lawsuit to “promote

confidence in the judiciary and eliminate any perceived appearance

of impropriety.”

¶ 11 In the disqualification order, Judge Seldin noted Casper’s

concerns about Chief Judge Neiley’s involvement in reassigning the

2022 contempt lawsuit because Chief Judge Neiley is related to

Attorney Neiley. The following week, Chief Judge Neiley reassigned

the 2022 contempt lawsuit to Judge Lynch for all future

proceedings.

7
B. Applicable Legal Principles

1. Judicial Disqualification

¶ 12 Rule 97, which governs judicial disqualification, states that

“[a] judge shall be disqualified in an action in which [they are]

interested or prejudiced” or in which they are “so related or

connected with any party . . . as to render it improper for [the judge]

to sit on the trial, appeal, or other proceeding therein.” Rule 97 also

authorizes judges to disqualify themselves on their own motion. If a

judge decides to disqualify themself, the recusing judge must notify

the chief judge of the district. C.R.C.P. 97. The chief judge must

then assign another judge in the district to hear the action. Id.

¶ 13 When a judge considers disqualifying themself from presiding

over a matter, they “must consider not only the reality but also the

appearance of bias,” as the perception of partiality impairs the

judicial process. Wilkerson v. Dist. Ct., 925 P.2d 1373, 1376 (Colo.

1996). With respect to an appearance of bias, Colorado Code of

Judicial Conduct Rule 2.11(A)(1) requires that a judge disqualify

themself if their impartiality might reasonably be questioned.

Sanders v. People, 2024 CO 33, ¶ 45. Appearance of bias exists

when the facts show that a judge’s involvement with a case might

8
create the appearance of impropriety. People in Interest of A.G., 262

P.3d 646, 650 (Colo. 2011). However, while a judge’s involvement

in a case may create an appearance of impropriety warranting

recusal, that alone doesn’t imply the judge was biased. People in

Interest of A.P., 2022 CO 24, ¶ 29. Only when there is evidence of

actual bias will the reliability of a result of a proceeding be

questioned. Id.

¶ 14 Assessing whether a judge is actually biased focuses on the

subjective motivations of the judge and exists when the judge “will

be unable to deal fairly with a party.” Id. at ¶ 28. To prove actual

bias, a party must demonstrate that the judge had a “substantial

bent of mind” against them. Id. at ¶ 30 (citation omitted). The

record must clearly demonstrate the alleged bias, and “[b]are

assertions and speculative statements are insufficient” to prove

actual bias. Id. “Unless a reasonable person could infer from the

facts that the judge would in all probability be prejudiced against

the party, the judge must preside over the case.” Wilkerson, 925

P.2d at 1376.

9
2. Standard of Review

¶ 15 In civil cases, a judge’s decision to disqualify themself is

discretionary. Spring Creek Ranchers Ass’n v. McNichols, 165 P.3d

244, 245 (Colo. 2007). We won’t reverse a judge’s recusal decision

in the absence of an abuse of discretion. Id. A court abuses its

discretion when its ruling is “manifestly arbitrary, unreasonable, or

unfair” or when it misapplies the law. Rains v. Barber, 2018 CO 61,

¶ 8 (citation omitted).

C. Analysis

1. Chief Judge Neiley Didn’t Violate Rule 97

¶ 16 Relying on Aaberg v. District Court, 319 P.2d 491 (Colo. 1957),

Casper asserts that Chief Judge Neiley “intercepted jurisdiction of

[the 2022 contempt lawsuit]” to appoint Judge Lynch in violation of

Colorado law. We disagree.

¶ 17 Casper relies on the supreme court’s reasoning in Aaberg to

argue that when a judge presiding over a case recuses themself

because of a party’s assertion that the judge is biased, the judge

may not select their own successor. See Aaberg, 319 P.2d at 493.

Casper therefore argues that Chief Judge Neiley violated Rule 97

when he reassigned the case to Judge Lynch.

10
¶ 18 A disqualified judge is prohibited from performing adjudicative

functions related to the proceeding from which they are disqualified.

See C.R.C.P. 97. But the reassignment of cases is an

administrative function, not an adjudicatory function. See People v.

Rodriguez, 799 P.2d 452, 453 (Colo. App. 1990) (“The power of

assignment relates to the procedure by which the judicial system

functions. It involves none of the substantive rights of the

litigants.”). Thus, Casper’s reliance on Aaberg is misplaced.

¶ 19 Unlike the judge in Aaberg, the record doesn’t indicate that

Chief Judge Neiley ever presided over the 2022 contempt lawsuit.

Instead, the 2022 contempt lawsuit was initially assigned to Judge

Seldin, and upon his self-disqualification, Chief Judge Neiley

exercised his administrative authority as the chief judge of the

judicial district to reassign the case to Judge Lynch, as required by

Rule 97. Accordingly, we reject Casper’s assertion.

2. Casper Hasn’t Demonstrated that Judge Lynch was Actually
Biased

¶ 20 Casper asserts that “Judge Lynch has a history of

misadministrating [sic] cases involving [him] in which she has

demonstrated a bias toward [him].” He asserts she was actually

11
biased in this case because she dismissed the 2022 contempt

lawsuit to benefit the Neiley family. In support of his claim that

Judge Lynch was biased against him, Casper points to another

case — Garfield County Case No. 21CV5 (the Garfield County

case) — over which Judge Lynch presided, and a division of this

court reversed in part. Casper also asserts that Chief Judge Neiley

reassigned the 2022 contempt lawsuit to Judge Lynch because of

her previous involvement in the Garfield County case and its

outcome on appeal. We are unpersuaded.

¶ 21 Casper relies on conclusory statements and speculative

allegations to assert that Judge Lynch was biased against him in

this case because she issued rulings against him in the Garfield

County case that a division of this court reversed. Nothing in our

review of Judge Lynch’s rulings in the 2022 contempt case

demonstrates that she had a subjective motivation for Casper’s

claims to fail or that she had a “substantial bent of mind” against

him. A.P., ¶ 30 (citation omitted). And Casper provides no legal

authority in support of his argument that a judge’s adverse rulings

equate to actual bias or prejudice.

12
¶ 22 Indeed, Casper’s argument is contrary to case law that says a

judge’s prior adverse rulings, even if erroneous, numerous, and

continuous, aren’t sufficient in themselves to show bias or

prejudice. See A.P., ¶ 32 (citing Schupper v. People, 157 P.3d 516,

521 n.5 (Colo. 2007)); People v. Lanari, 926 P.2d 116, 119 (Colo.

App. 1996) (“[A] judge’s rulings on issues presented in prior

proceedings, even if erroneous, are insufficient by themselves to

demonstrate disqualifying bias or prejudice.”); Goebel v. Benton, 830

P.2d 995, 1000 (Colo. 1992) (rejecting contention that a judge’s

delay and unfavorable rulings were bases for disqualification); see

also Prefer v. PharmNetRx, LLC, 18 P.3d 844, 851 (Colo. App. 2000)

(rejecting contention that the judge was biased against the plaintiff

because of the plaintiff’s numerous pro se pleadings).

¶ 23 Accordingly, we conclude that the record doesn’t support, nor

do Casper’s conclusory assertions demonstrate, that Judge Lynch

was actually biased against Casper. See People v. Drake, 748 P.2d

1237, 1249 (Colo. 1988) (mere speculative statements and

conclusions are insufficient to prove bias).

13
IV. The Court Didn’t Err by “Prematurely” Dismissing the 2022
Contempt Complaint, but It Did Err by Dismissing It with
Prejudice

¶ 24 It is the plaintiff’s burden to prove that a court has subject

matter jurisdiction to hear a case; a court lacks subject matter

jurisdiction to decide an issue that is not ripe for adjudication.

DiCocco v. Nat’l Gen. Ins. Co., 140 P.3d 314, 316 (Colo. App. 2006).

¶ 25 Recall that the court determined that Casper’s claims were

“neither real, nor fit for judicial decision” because they were

speculative claims related to the 2020 lawsuit. In other words, the

court determined that Casper’s claims were unripe. Casper

concedes that the outcome of the 2022 contempt lawsuit is reliant

on the outcome of the 2020 lawsuit, and that the court in the 2020

lawsuit hasn’t resolved his request for damages. Despite

recognizing this procedural posture, Casper argues that Judge

Lynch prematurely dismissed the 2022 contempt lawsuit.

¶ 26 But Casper doesn’t present any arguments challenging the

court’s determination that it lacked subject matter jurisdiction

because his claims were unripe. Thus, his argument is

undeveloped, and we decline to further review it. See People v.

Thompson, 2017 COA 56, ¶ 199.

14
¶ 27 Nevertheless, we disagree with the court’s dismissal of the

2022 contempt lawsuit with prejudice.

¶ 28 “It is well-settled in Colorado that a dismissal for lack of

subject matter jurisdiction is not a judgment on the merits, and

therefore does not preclude a subsequent action on the same claim

in a proper forum.” In re Estate of Murphy, 195 P.3d 1147, 1153

(Colo. App. 2008). And “[a] dismissal under C.R.C.P. 12(b)(1) is not

an adjudication on the merits, but rather is the result of a court

lacking the power to hear the claims asserted.” Grant Bros. Ranch,

LLC v. Antero Res. Piceance Corp., 2016 COA 178, ¶ 35. “[T]he

words ‘with prejudice’ in [an] order of dismissal are a nullity and

would in no way bar a subsequent action asserting the same claim

for relief” when the dismissal was not an adjudication on the

merits. Morehart v. Nat’l Tea Co., 485 P.2d 907, 908 (Colo. App.

1971).

¶ 29 Because the court dismissed Casper’s 2022 contempt lawsuit

for lack of subject matter jurisdiction, we conclude it erred by

dismissing it with prejudice.

15
V. The Sheriff Defendants’ Request for Appellate Attorney Fees

A. Applicable Legal Principles

¶ 30 Section 13-17-102(6), C.R.S. 2024, governs the court’s

authority to assess attorney fees against a self-represented litigant

and says that attorney fees shall not be assessed against a party

appearing without a lawyer “unless the court finds that the party

clearly knew or reasonably should have known that the party’s

action . . . was substantially frivolous, substantially groundless, or

substantially vexatious.”

¶ 31 An appeal may be frivolous if it is “taken in a case in which

‘the judgment by the tribunal below was so plainly correct and the

legal authority contrary to appellant’s position so clear that there is

really no appealable issue.’” Castillo v. Koppes-Conway, 148 P.3d

289, 292 (Colo. App. 2006) (citation omitted). However, an appeal

should not be considered frivolous merely because it is ultimately

unsuccessful or it advances a claim that is not recognized under

existing law. W. United Realty, Inc. v. Isaacs, 679 P.2d 1063, 1069

(Colo. 1984). If an appellate court determines that an appeal is

frivolous, it may award damages it deems appropriate, including

attorney fees. C.A.R. 38(b); Castillo, 148 P.3d at 292 (“[A]n appeal

16
‘lacks substantial justification’ and is ‘substantially frivolous’ under

[section] 13-17-102[] when the appellant’s briefs fail to set forth, in

a manner consistent with C.A.R. 28, a coherent assertion of error,

supported by legal authority.”).

B. Analysis

¶ 32 The Sheriff Defendants request an award of their appellate

attorney fees pursuant to section 13-17-102, arguing that Casper’s

appeal is frivolous because his notice of appeal “demonstrates

expressly that Casper is aware and knows that the district court set

aside the judgment that he claims forms the basis of his contempt

claim.” We agree.

¶ 33 As explained above, Casper has presented no rational

argument based on the law to support his claims on appeal.

Instead, he heavily relies on conclusory and speculative statements

unsupported by the case law to which he cites. And based on our

review of the record, we conclude Casper clearly knew or reasonably

should have known that his appeal in this matter was frivolous.

¶ 34 Casper has represented himself in at least one other lawsuit

against some of the Sheriff Defendants — the 2020 lawsuit. In that

case and this one, he has filed many pleadings, often articulating

17
the same allegations of wrongdoing by the Sheriff Defendants.

Much of his opening brief rehashes events that occurred in the

2020 lawsuit, which is not the subject of this appeal. In

articulating the issues on appeal in this case, he conceded that the

court set aside the July 2022 order and that the 2020 lawsuit

remains pending. And he acknowledged in a pleading filed in the

2022 contempt lawsuit that this court dismissed a prior appeal in

which he claimed that the July 2022 order was an enforceable

judgment. See Casper v. DiSalvo, (Colo. App. No. 23CA890, July

20, 2023) (unpublished order). Thus, Casper clearly knew or

reasonably should have known that this appeal was frivolous

because the claims he asserted — which were based on the

still-pending 2020 lawsuit and the unenforceable July 2022

order — weren’t yet ripe. See Castillo, 148 P.3d at 292. Therefore,

we conclude that awarding the Sheriff Defendants their reasonable

attorney appellate fees is warranted under section 13-17-102(6) and

C.A.R. 38(b), and we remand this case to the district court for

determination of the amount of such fees. See C.A.R. 39.1; see also

SG Ints. I, Ltd. v. Kolbenschlag, 2019 COA 115, ¶¶ 40, 46

18
(remanding case to the district court for a determination and award

of reasonable appellate attorney fees arising out of frivolous appeal).

VI. Disposition

¶ 35 The portion of the judgment dismissing Casper’s complaint for

lack of subject matter jurisdiction is affirmed in part. The portion

of the judgment dismissing Casper’s complaint with prejudice is

reversed, and the case is remanded to the district court to amend

the judgment to reflect that the case is dismissed without prejudice

and to determine the amount of the Sheriff Defendants’ reasonable

appellate attorney fees.

JUDGE LIPINSKY and JUDGE JOHNSON concur.

19