Nelson v. Hart

25CA0268 Nelson v Hart 06-18-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0268
Gunnison County District Court No. 24CV3
Honorable Matthew D. Barrett, Judge

Brett Andrew Nelson,

Plaintiff-Appellant,

v.

William Hart, Midge Barton, and Adam Murdie,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE SCHUTZ
Lipinsky and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 18, 2026

Brett Andrew Nelson, Pro Se

Dagner Schluter Werber LLC, Leslie L. Schluter, Greenwood Village, Colorado,
for Defendants-Appellees
¶1 This case arises from a complaint filed by plaintiff, Brett

Andrew Nelson, against defendants, William Hart, Midge Barton,

and Adam Murdie (collectively, the sheriffs), all of whom were

employees of the Gunnison County Sheriff’s Office.1 Barton and

Hart removed the case to federal court, which remanded the case to

the district court after Nelson dismissed his federal claims.

Following the remand, the sheriffs moved for dismissal of Nelson’s

remaining claims. The district court granted the sheriffs’ motion.

Nelson filed a motion to reconsider, which the court denied.

¶2 Nelson now appeals the order dismissing his claims. We

affirm.

I. Background

¶3 The alleged incident that formed the basis of Nelson’s

complaint took place while Nelson was in custody at the Gunnison

County Detention Center, awaiting trial. Nelson alleged that he was

handcuffed during a meeting with his attorney at the detention

center and that both Nelson and his attorney requested that Sherrif

1 David Kosin was also named as a defendant in Nelson’s complaint.

From our review of the record, it does not appear that Kosin was
served or appeared in the case. In addition, Kosin is not named,
and has not appeared, in this appeal.

1
Hart remove the handcuffs. Hart refused. In response, Nelson

called Hart “incompetent,” after which Hart allegedly tightened the

cuffs on Nelson’s wrists. Another guard later loosened the

handcuffs.

¶4 Nelson alleged that he experienced pain for several hours after

the incident. Nelson filed a grievance against Hart. Nelson also

sought criminal charges against Hart and asked the office’s

supervisory staff (specifically, Burton and Murdie) for “court forms

for protection orders and to communicate with the investigating

officer in the criminal investigation.” According to Nelson, the

supervisors “consistently ignored” his requests.

¶5 Nelson then filed a civil complaint in Gunnison County District

Court, which included claims under both state and federal law. The

sheriffs removed the case to federal court. The appellate record

does not contain the record of the federal court proceedings. But

according to the federal court’s order remanding the case to state

court — which is contained in the record — Nelson filed a motion to

return the case to state court, stating that he intended to pursue

only state law claims, and Nelson later filed an amended complaint

containing only those claims. In its remand order, the federal court

2
noted that it lacked subject matter jurisdiction over Nelson’s state

law claims.

¶6 After the case returned to state court, the sheriffs filed a

motion for a more definite statement or, alternatively, requested

that the district court dismiss Nelson’s claims pursuant to C.R.C.P.

8. Nelson never filed an amended complaint in state court.

¶7 It appears that, for a period of time in the state court

proceedings, Nelson did not receive the sheriff’s filings, apparently

due to a change in the place of his incarceration. Eventually,

Nelson filed an updated mailing address with the court. The record

does not show that any filings directed to Nelson were subsequently

returned.2

¶8 After Nelson filed his updated address, the sheriffs re-served

their motion for a more definite statement on him. Nelson filed a

response that included a more definite statement of his claims. The

sheriffs then moved to dismiss Nelson’s claims under C.R.C.P.

12(b)(5). Nelson did not respond to the motion to dismiss.

2 The only returned-to-sender mail that appears in the record after

this point was addressed to Kosin.

3
¶9 Because Nelson did not file an amended complaint in the state

court case, the district court evaluated the motion to dismiss in

reference to both Nelson’s original complaint and his more definite

statement. Ultimately, the court granted the motion to dismiss.

II. Issues on Appeal

¶ 10 Nelson raises several contentions on appeal. First, he

contends that he was not served with the motion to dismiss,

making the district court’s dismissal improper. Second, he

contends that the district court erred by evaluating the claims from

his original complaint, rather than those in the amended complaint

filed in federal court. Third, Nelson contends, when evaluating his

excessive force claim, the district court should have applied Eighth

Amendment standards — rather than those from the Fourth and

Fourteenth Amendments and the Colorado Constitution. Lastly,

Nelson contends that the district court applied the wrong standards

to Hart’s conduct, Barton’s and Murdie’s inaction, and his free

speech retaliation claim.

¶ 11 We address each contention in turn.

4
A. Nelson’s Appellate Briefing

¶ 12 Before analyzing the substance of Nelson’s appellate

arguments, we first turn to the sheriffs’ procedural argument that

Nelson’s appellate briefs should not be considered because they fail

to comply with C.A.R. 28.

¶ 13 When considering a pro se appellant’s filings, we “must

broadly construe” them “to effectuate the substance, rather than

the form,” of those filings. Warnick v. Ct. Admin., 2025 COA 7, ¶ 16

(quoting People v. Cali, 2020 CO 20, ¶ 34). This latitude ensures

that a pro se litigant is not denied review of the issues they raise

simply because of their inability to articulate arguments like a

lawyer. Arnold v. Brent, 2024 COA 104, ¶ 8. However, a pro se

litigant is still bound by the same procedural rules that an attorney

is. Cornelius v. River Ridge Ranch Landowners Ass’n., 202 P.3d

564, 572 (Colo. 2009).

¶ 14 The sheriffs take issue with the fact that Nelson did not cite

the record in his appellate briefs. C.A.R. 28(a)(7)(A) requires

appellate parties to indicate “the precise location in the record

where the issue was raised and where the court ruled.” Nelson’s

failure to cite the record at any point in his briefs, they argue, is

5
justification for us to deem his arguments waived and affirm the

district court’s dismissal on that basis alone.

¶ 15 Generally, citations to the record are crucial to our informed

review of a case, and the appellate rules clearly require such

citations. But the record before us is comparatively modest — it

does not contain any transcripts and is a few hundred pages,

comprised of filings in the state district court. While we won’t

develop Nelson’s arguments for him or search the record for

supporting facts that are not cited in his briefs, see Cornelius, 202

P.3d at 572, his briefing, coupled with the available record, is

sufficient for us to review the issues. We therefore decline to

dismiss the appeal solely because Nelson failed to comply with

C.A.R. 28(a)(7)(A).

B. Motion to Dismiss

¶ 16 We turn now to Nelson’s substantive arguments.

1. Service of Motion

¶ 17 Nelson contends that he was not served with the sheriffs’

motion to dismiss, and, therefore, the district court erred by

granting it. We disagree.

6
a. Standard of Review

¶ 18 We review the district court’s ruling on a motion to dismiss de

novo. Walker v. Van Laningham, 148 P.3d 391, 394 (Colo. App

2006). “In doing so, we accept as true all averments of material fact

contained in the complaint and view the allegations of the

complaint in the light most favorable to the plaintiff.” Id. To

survive a motion to dismiss, the plaintiff must allege facts that

“raise a right to relief ‘above the speculative level,’ and provide

‘plausible grounds’” for the asserted claim. Warne v. Hall, 2016 CO

50, ¶¶ 9, 25 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-

56 (2007)).

¶ 19 We review preserved errors under the harmless error standard.

In re Estate of Fritzler, 2017 COA 4, ¶ 7. For purposes of appellate

review, “[a]n error is harmless if the court reached the correct

outcome.” In re Mendy Brockman Disability Tr., 2022 COA 75, ¶ 45.

¶ 20 Under C.R.C.P. 5, parties must serve their filings on all parties

and service may be completed by “[m]ailing a copy [of the filing] to

the last known address of the person served.” C.R.C.P. 5(a),

C.R.C.P. 5(b)(2)(B). In those instances, “[s]ervice by mail is

complete on mailing.” Id.

7
b. Analysis

¶ 21 Nelson argues that he did not respond to the sheriffs’ motion

to dismiss because he was never served with the motion. And,

because he was not served, he says, the district court erred by

ruling on the motion to dismiss at all. Whether Nelson was properly

served is a factual determination that we are generally unsuited to

make. See Owners Ins. Co. v. Dakota Station II Condo. Ass’n., 2021

COA 114, ¶ 28. However, Nelson provides no record support for his

claim that he did not receive the motion, and our thorough review of

the record reveals none.

¶ 22 The record does reflect that several filings were returned to the

court as undeliverable, some of which were addressed to Nelson.

However, after he updated his address with the court, the record

and the court’s register of actions show that no mail addressed to

Nelson — including the sheriffs’ motion to dismiss — was returned.

Thus, the record does not support Nelson’s claim that he did not

receive the motion to dismiss. See In re Marriage of Carey, 2026

COA 3, ¶ 55 n.14 (we make take judicial notice of court records).

¶ 23 Moreover, Nelson filed a motion for reconsideration in which

he addressed both the sheriffs’ motion to dismiss and the court’s

8
dismissal order. Thus, even if Nelson had not been served with the

sheriffs’ motion to dismiss, Nelson was able to address the motion

and resulting order in his motion to reconsider. Therefore, Nelson

was able to articulate his claim that he had not been served with

the motion to dismiss, respond to the sheriffs’ arguments in their

motion to dismiss, and raise his objections to the district court’s

reasons for dismissing his claims.

2. Complaint and More Definite Statement

¶ 24 Nelson next contends that the district court erred by granting

the dismissal because it considered the incorrect complaint. Again,

we disagree.

¶ 25 As previously noted, the records from the federal court —

including the amended complaint — were not filed with the district

court. As a result, the district court did not — and could not —

consider the amended complaint when ruling on the motion to

dismiss. The district court had only Nelson’s original complaint

and his more definite statement. The district court found that

Nelson had “defined his four claims for relief” within his more

definite statement, and, therefore, the court properly decided the

motion to dismiss based on the original complaint and Nelson’s

9
more definite statement. See Bernstein v. Dun & Bradstreet, Inc.,

368 P.2d 780, 783 (Colo. 1962) (evaluating both the complaint and

a more definite statement when resolving a motion to dismiss).

3. The District Court Applied the Correct Standards

¶ 26 Nelson next argues that the district court applied the incorrect

legal standards when reviewing his excessive force allegations

against the sheriffs. Specifically, Nelson argues that the district

court should have relied on Eighth Amendment standards, rather

than those grounded in the Fourth and Fourteenth Amendments or

the analogous provisions of the Colorado Constitution. We are not

persuaded.

a. Standard of Review

¶ 27 As stated above, we review de novo a district court’s dismissal

for failure to state a claim. Walker, 148 P.3d at 394. We also

review a district court’s legal conclusions de novo. Am. Fam. Mut.

Ins. Co. v. Ashour, 2017 COA 67, ¶ 11.

b. Constitutional Claims

¶ 28 Nelson argues that the district court erred by failing to apply

the “wantonly sadistic” standard to the de minimis injury he

received from the handcuffs. He also contends that any wantonly

10
sadistic act that causes even de minimis pain should be actionable,

under either the cruel and unusual punishment or the excessive

force standard. This reasoning is misguided.

¶ 29 The wantonly sadistic standard is articulated in Hudson v.

McMillian, 503 U.S. 1 (1992). The district court concluded that

Hudson was inapplicable to Nelson’s claims because that case was

rooted in the Eighth Amendment and Nelson did not plead an

Eighth Amendment claim.

¶ 30 Nelson’s claims were grounded in the Fourth and Fourteenth

Amendments, and the similar provisions of article II, section 7, of

the Colorado Constitution. The Fourth Amendment “covers only

‘searches and seizures’ and is relevant only where a seizure has

occurred.” Roybal-Mack v. N.M. Dept. of Pub. Safety, 286 F. Supp.

3d 1226, 1234 (D.N.M. 2017). By contrast, the Eighth Amendment

applies to punishments imposed by the State after a criminal

conviction. Smith v. Matthews, 793 F. Supp. 998, 1002 n.6 (D.

Kan. 1992); Liberty Bankers Life Ins. Co. v. First Citizens Bank & Tr.

Co., 2014 COA 151, ¶ 10 n.3 (While we are not bound by the

decisions of the lower federal courts when interpreting federal law,

“we may look to federal [trial court] decisions for guidance and

11
follow the analysis that we find persuasive.”). Therefore, cases

related to claims made under the Eighth Amendment are not

relevant to Nelson’s claims arising from an event that occurred

before he was convicted.

¶ 31 The district court correctly concluded that Nelson failed to

allege sufficient facts to plausibly support his excessive force claim.

Without excusing Hart’s alleged conduct, the case law from the

Tenth Circuit Court of Appeals — which we consider persuasive

authority — is clear: “An excessive force claim that includes a

challenge to the manner or course of handcuffing requires the

plaintiff to show both that the force used was more than reasonably

necessary and some non-de minimis actual injury.” Mglej v.

Gardner, 974 F.3d 1151, 1167 (10th Cir. 2020) (citation modified).

The Tenth Circuit has held that injuries such as superficial

abrasions, numbness in wrists and forearms, and redness and

swelling are typically insufficient to establish an excessive force

claim. Id.; see Koch v. City of Del City, 660 F.3d 1228, 1248-49

(10th Cir. 2011); Cortez v. McCauley, 478 F.3d 1108, 1129 (10th

Cir. 2007); Fisher v. City of Las Cruces, 584 F.3d 888, 899-900

(10th Cir. 2009).

12
¶ 32 Even considering Hudson, as Nelson urges us to do, the

Supreme Court specifically noted therein that not “every malevolent

touch by a prison guard gives rise to a federal cause of action,” in

part because the Eighth Amendment does not protect against “de

minimis uses of physical force, provided that the use of force is not

of a sort ‘repugnant to the conscience of mankind.’” Hudson, 503

U.S. at 10-11 (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)).

¶ 33 Moreover, Nelson appears to acknowledge that his injuries

were de minimis. He alleged that the handcuffs were painful and

left marks on his wrists and that he sought an over-the-counter

pain reliever for the injury. Taking these allegations as true, the

district court determined that they were insufficient to state a

plausible claim for relief that Nelson suffered an actual injury from

the handcuffing. As a result, Nelson failed to plead a sufficient

claim for excessive force. We perceive no error in the district court’s

determination that Nelson’s injuries were de minimis and were

therefore insufficient to establish a plausible claim for excessive

force against Hart.

13
c. Deliberate Indifference Claims

¶ 34 Nelson also contends that the district court should have found

that the supervising sheriffs’ actions, or lack thereof, rose to the

level of “deliberate indifference.” But in his complaint and more

definite statement, Nelson did not cite a statute or common law

theory that would support a claim of deliberate indifference.

¶ 35 In their motion to dismiss, the sheriffs cited section

13-21-131, C.R.S. 2025, as a potential basis for Nelson’s deliberate

indifference claim. In its dismissal order, the district court noted

that Nelson had not cited section 13-21-131. The sheriffs appear to

have reasoned that Nelson may have intended to rely on the

“deprivation of rights” language that he used in his more definite

statement that is similar to the language in section 13-21-131(1),

which states that a peace officer who subjects “any other person to

the deprivation of any individual rights that create binding

obligations on government actors secured by the bill of rights,

article II of the state constitution, is liable to the injured party for

legal or equitable relief or any other appropriate relief.”

¶ 36 In any event, because Nelson did not reference section

13-21-131 or any other Colorado law and failed to allege facts

14
supporting a violation of his constitutional rights under article II of

the Colorado Constitution, the district court determined that Nelson

had not alleged a viable claim under that statute.

¶ 37 Nelson did, however, cite Gonzales v. Martinez, 403 F.3d 1179

(10th Cir. 2005). In Gonzales, the court stated that the Eighth

Amendment requires that prisons and their officials provide

humane conditions and take reasonable measures to guarantee the

inmate’s safety. Gonzales, 403 F.3d at 1186. Based on this

authority, the district court acknowledged that an inmate may

succeed on a deliberate indifference claim by proving that they are

incarcerated under “conditions posing a substantial risk of serious

harm” and that the prison official “knows of and disregards an

excessive risk to inmate health and safety.” Id. (citations omitted).

¶ 38 The claims in Gonzales are rooted in the Eighth Amendment.

As previously explained, the Eighth Amendment does not apply to

Nelson’s claims because, at the time of the handcuff incident, he

had not yet been convicted. Moreover, even if the Eighth

Amendment applied, we agree with the district court that Nelson

did not allege sufficient facts to support an Eighth Amendment

claim.

15
¶ 39 The district court also considered whether Nelson was

attempting to make a claim against Barton and Murdie under

article II, section 7, of the Colorado Constitution, which protects

against cruel and unusual punishment. The court concluded that

Nelson had not sufficiently alleged that Hart posed a “substantial

risk of serious harm” to him or that Barton and Murdie knew that

Hart posed a serious threat to Nelson’s safety and chose not to act.

Nelson alleged only that there was a risk that Hart would harm him.

¶ 40 Given the facts that Nelson alleged, and the lack of legal

grounding in Nelson’s complaint and more definite statement, we

perceive no error in the district court’s determination that Nelson

failed to plead a plausible deliberate indifference claim against

either Barton or Murdie.

4. Free Speech Retaliation

¶ 41 Lastly, Nelson alleges that the district court erred by

concluding that he had not sufficiently pleaded a claim for

retaliation against him for exercising his constitutional right of free

speech. We perceive no error.

A viable claim of retaliation in violation of the
First Amendment must plausibly allege three
elements: (1) the plaintiff engaged in

16
constitutionally protected activity; (2) the
defendant’s actions caused the plaintiff to
suffer an injury that would chill a person of
ordinary firmness from continuing to engage in
that activity; and (3) the adverse actions were
substantially motivated by the plaintiff’s
exercise of constitutionally protected activity.

Gandy v. Williams, 2019 COA 118, ¶ 46.

¶ 42 The district court concluded that none of the facts Nelson

alleged were sufficient to meet the factors set forth by Gandy. Even

accepting Nelson’s allegations as true, they merely show that he

called Hart “incompetent” and that Hart responded by tightening

Nelson’s handcuffs to a painful degree. We discern no error in the

district court’s conclusion that these facts were insufficient to

establish that Hart’s action was “substantially motivated” by

Nelson’s speech or that Nelson’s asserted injuries “would chill a

person of ordinary firmness from continuing to engage in that

activity.” Id.

5. Nelson’s Victim Rights Acts Claim

¶ 43 Although Nelson raised a Victim Rights Act claim, see

§ 24-4.1-302.5, C.R.S. 2025, in the district court and again on

appeal, he conceded in his briefing that such a claim was “not

17
adequate” to survive the sheriffs’ motion to dismiss. Therefore, we

do not address the matter further.

III. Disposition

¶ 44 The district court’s judgment is affirmed.

JUDGE LIPINSKY and JUDGE YUN concur.

18