Knellinger et al v. Young et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:22-cv-01379-CNS-STV
DAVID KNELLINGER and
ROBERT STOREY, individually and on behalf of all persons similarly situated,
Plaintiffs,
v.
DAVID YOUNG, in his official capacities as Colorado Treasurer, Colorado Office of
Treasury; and
BIANCA GARDELLI, in her individual and official capacities as Director of Colorado
Department of Treasury, Unclaimed Property Division,
Defendants.
ORDER
Before the Court is the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and
12(b)(6) filed by Defendants David Young, in his individual and official capacity, as
Colorado Treasurer and Bianca Gardelli, in her individual and official capacity, as Director
of the Colorado Department of Treasury. ECF No. 60. Plaintiffs David Knellinger and
Robert Storey responded opposing Defendants’ dismissal motion. ECF No. 66. Also
before the Court is Defendants’ Objections to Magistrate Judge’s Order re Motion to Stay
[Doc. 69], ECF No. 73, to which Plaintiffs have filed no response. For the reasons
explained below, Defendants’ dismissal motion is DENIED IN PART with respect to
Plaintiffs’ due process claims, and GRANTED IN PART, with respect to Plaintiffs’ takings
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 1 of 31

2
claims, which are DISMISSED WITHOUT PREJUDICE.1 Defendants’ objections to the
Magistrate Judge’s order denying Defendants’ motion to stay are OVERRULED AS
MOOT.
I. 	BACKGROUND
Plaintiffs 	bring 	this 	putative 	class 	action 	under 	42 	U.S.C. 	§ 	1983 	against
Defendants Young and Gardelli regarding their unclaimed property held in trust by the
state of Colorado under the Revised Uniform Unclaimed Property Act, Colorado Revised
Statute § 38-13-101, et. seq. (RUUPA). Plaintiffs allege that Defendants’ seizure of their
unclaimed 	property, 	without 	notice, 	violates 	Plaintiffs’ 	rights 	under 	the 	Fifth 	and
Fourteenth Amendments. See generally ECF No. 1 ¶¶ 1–13.
Defendants previously moved to dismiss Plaintiffs’ claims, which the Court did,
concluding that Plaintiffs did not have standing to bring their claims. ECF No. 43. at 11–
12. Plaintiffs then appealed, arguing that (1) they alleged facts sufficient to state a claim
that the state of Colorado took their property for public use without just compensation,
and (2) they need not exhaust their administrative remedies in state court prior to filing a
takings claim in federal court. See Knellinger v. Young, 134 F.4th 1034, 1038 (10th Cir.
2025). The Tenth Circuit agreed and reversed the Court’s dismissal decision, holding that
(1) Plaintiffs sufficiently “stated a plausible claim for damages and therefore adequately
pleaded an injury sufficient to confer standing,” and (2) “[p]roperty owners who plausibly
allege that Colorado has taken custody of their property under RUUPA, and used it for
1 See Colby v. Herrick, 849 F.3d 1273, 1278 (10th Cir. 2017) (“Because Eleventh Amendment immunity is
jurisdictional,” dismissal is “without prejudice.”) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 100 (1984)).
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 2 of 31

3
public purposes, need not file administrative claims with Colorado before they may sue
for just compensation.” Id. The Tenth Circuit also affirmed this Court’s finding that
Plaintiffs’ request for equitable relief stemming from their takings claims was properly
dismissed. Id.
Following remand, Defendants filed the instant motion to dismiss now before the
Court. ECF No. 60. In it, Defendants assert multiple defenses, including that: (1) Eleventh
Amendment immunity bars Plaintiffs’ claims; (2) Plaintiffs fail to plausibly state a claim
that Defendants violated their constitutional rights; and (3) Defendants in their individual
capacities are entitled to qualified immunity. See generally id. Plaintiffs responded with
arguments opposing each of Defendants’ purported bases for dismissal. See generally
ECF No. 66.2
The same day the instant dismissal motion was filed, Defendants also moved to
stay discovery and all other proceedings pending the Court’s ruling on Defendants’
immunity arguments. ECF No. 61. The Court referred the motion to stay to Magistrate
Judge Scott T. Varholak, ECF No. 62, who subsequently denied Defendants’ request,
2 It is proper for the Court to consider Defendants’ immunity-related defenses at this stage. “[A]n assertion
of Eleventh Amendment immunity concerns the subject matter jurisdiction of the district court,” Ruiz v.
McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002), and a “jurisdictional defect is not subject to waiver or
forfeiture and may be raised at any time in the court of first instance and on direct appeal,” Hamer v.
Neighborhood Hous. Servs. of Chicago, 583 U.S. 17, 20 (2017). See also Handy v. Cummings, No. 11-cv-
00581-WYD-KMT, 2014 WL 2206391, at *2 (D. Colo. 2014) (“Subject matter jurisdiction is the court’s
authority to hear a case or claim; thus, it cannot be waived and may be raised at any stage of the
proceedings.”) (citing Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995)). Defendants’ remaining
arguments, which were asserted in their first motion to dismiss but which this Court and the Tenth Circuit
declined to reach, are also properly asserted now. See, e.g., MacArthur v. San Juan Cnty., 495 F.3d 1157,
1162 (10th Cir. 2007) (“We have consistently held . . . that ‘qualified immunity can be raised at any time
and a district court may enter . . . judgment on that ground at any point before trial at which it is
appropriate.’”) (citing Langley v. Adams County, 987 F.2d 1473, 1481 n. 3 (10th Cir. 1993)); cf. Fed. R. Civ.
P. 12(g)(2).
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 3 of 31

4
ECF No. 69. Defendants objected and filed a motion requesting that this Court set aside
Magistrate Judge Varholak’s order. ECF No. 73. Plaintiffs did not file any objections.
Defendants’ dismissal motion and objection are addressed below.
II. 	LEGAL STANDARD
Defendants move for dismissal under Rule 12(b)(1) and Rule 12(b)(6). Dismissal
is proper under Rule 12(b)(1) if a court lacks authority to adjudicate the matter. Castaneda
v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994). Where the court relies “only on the allegations
in Plaintiffs’ complaint,” it may construe a “Rule 12(b)(1) motion as a motion to dismiss
for failure to state a claim under Rule 12(b)(6).” Knellinger, 134 at 1042 (citing Bell v.
United States, 127 F.3d 1226, 1228 (10th Cir. 1997)). Under Rule 12(b)(6), “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) (quotation omitted).
“The question is whether, if the allegations are true, it is plausible and not merely possible
that plaintiff is entitled to relief under the relevant law.” Christy Sports, LLC v. Deer Valley
Resort Co., 555 F.3d 1188, 1192 (10th Cir. 2009). “While courts must accept well-pled
factual 	allegations 	as 	true, 	purely 	conclusory 	statements 	are 	not 	entitled 	to 	this
presumption.” WildEarth Guardians v. Extraction Oil & Gas, Inc., 457 F. Supp. 3d 936,
945 (D. Colo. 2020) (citation omitted).
III. 	ANALYSIS
A. RUUPA
The Court assumes the parties’ familiarity with RUUPA, Colorado’s Revised
Uniform Unclaimed Property Act, C.R.S. §§ 38-13-201–220, given the Court and the
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 4 of 31

5
Tenth Circuit have previously outlined its purpose and mechanisms. See Knellinger, 134
F.4th at 1038–39; Knellinger, 2023 WL 120976, at *1. Thus, before turning to Defendants’
various dismissal arguments, a brief review of RUUPA suffices.
RUUPA is the statutory scheme outlining Colorado’s procedures for unclaimed
property. Under RUUPA, after a statutorily prescribed time, the Colorado’s Treasurer shall
hold any unclaimed property he receives “in custody for the benefit of the owner.” Colo.
Rev. Stat. § 38-13-803. In theory, such property “is not owned by the state,” id., and it
“does not revert to the general fund” automatically, id. § 38-13-801. However, money from
the unclaimed property trust fund can be reappropriated to the state’s general fund, or to
specific public uses, such as the Colorado state fair. See id. §§ 38-13-801, 38-13-801.5.
B. Jurisdictional Challenges
Defendants’ 	dismissal 	motion 	presents 	numerous 	jurisdictional 	challenges.
Specifically, Defendants argue that Plaintiffs’ takings and due process claims alleged
against Defendants in both their official and individual capacities must be dismissed
because Eleventh Amendment immunity and/or qualified immunity applies to each. See
generally ECF No. 66, 74. In response, Plaintiffs take issue with each of Defendants’
immunity defenses, arguing that immunity is inapplicable or otherwise excepted based on
Defendants’ conduct. See generally ECF No. 66.
Before turning to the parties’ arguments, however, the Court acknowledges the
potential tension between Defendants’ asserted immunity defenses and the Tenth
Circuit’s conclusion that “[Plaintiffs] ‘may pursue a suit for compensation’ under § 1983[.]”
Knellinger, 134 F.4th at 1045. Although the Tenth Circuit determined that Plaintiffs
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 5 of 31

6
“pleaded facts sufficient to state a plausible claim that Colorado took their property for
public use and did not compensate them for it, in violation of the Fifth and Fourteenth
Amendments,” id. at 1042, it did not address the application of any immunity defense.
Indeed, the Tenth Circuit’s opinion, in which the word “immunity” never appears, was
limited in its scope and did not address the issue of any immunity or whether it barred
Plaintiffs’ claims: “The only disagreement is whether Defendants took Plaintiffs’ property
in the first place.” Id. (emphasis added). This line, taken from the Tenth Circuit’s
discussion of the applicable standard of review, bolsters the conclusion that it did not
consider immunity as part of its analysis. See also Ellis v. Salt Lake City Corp., 147 F.4th
1206, 1220 (10th Cir. 2025) (“[A] claim of immunity is conceptually distinct from the merits
of the plaintiff’s claim.” (citation modified)). The Court’s own independent review of the
Tenth Circuit’s docket confirms the same, as the parties’ appellate briefing was essentially
limited to the Court’s standing analysis and did not raise any immunity-related arguments
for the Tenth Circuit’s consideration. See Case No. 23-1018, Dkt. No. 31 at 9;3 id., Dkt.
Nos. 36, 41.
Accordingly, the Court proceeds with its analysis below, first assessing whether
any immunity bars Plaintiffs’ claims against Defendants in their official capacity, and then
turning to Plaintiffs’ claims against Defendants in their individual capacity.
3 The “Statement of the Issue” before the Tenth Circuit articulated in Plaintiffs’ Brief of Appellants was
“[w]hether the district court erred in dismissing Plaintiffs’ claims for lack of standing at the pleading stage
by failing to accept Plaintiffs’ allegations as true.” Case No. 23-1018, ECF No. 31 at 9 (emphasis added).
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 6 of 31

7
1. 	Official Capacity Claims
i. 	Takings Claims
Under the Fifth Amendment, “private property [shall not] be taken for public use,
without just compensation.” U.S. Const. amend. V. “[T]o make out a Takings Clause
claim, a plaintiff must plead that: (1) something was ‘taken’ by the government; (2) it was
‘property’; (3) it was the plaintiff's property; and (4) it was taken ‘for public use, without
just compensation.’” Knellinger, 134 F.4th at 1043 (citation omitted). A Takings Clause
claim brought against a state or state officials may be subject to Eleventh Amendment
immunity, which “has been interpreted to bar suits against states and state agencies for
money damages in federal court.” Tarrant Reg’l Water Dist. v. Sevenoaks, 545 F.3d 906,
911 (10th Cir. 2008) (citing Hans v. Louisiana, 134 U.S. 1, 20–21 (1890)). In the Tenth
Circuit, Fifth Amendment takings claims for monetary damages brought against state
officials in their official capacities are “barred by Eleventh Amendment immunity . . . as
long as a remedy is available in state court.” Williams, 928 F.3d at 1213–14.
In certain circumstances, an exception to Eleventh Amendment immunity may
apply and permit claims against state officials to proceed. For instance, a state may waive
immunity, see Higganbotham v. Okla. Transp. Comm’n, 328 F.3d 638, 644 (10th Cir.
2003), or under the doctrine of Ex parte Young, 209 U.S. 123 (1908), claims against state
officials may survive if “a state official [is] sued in his official capacity [and] the plaintiff
seeks only prospective, injunctive relief,” Tarrant, 545 at 911 (citing Hill v. Kemp, 478 F.3d
1236, 1255–56 (10th Cir. 2007)). “The fact that prospective relief could have financial
consequences does not give rise to immunity, but when the requested relief is akin to a
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 7 of 31

8
retrospective 	damages 	award, 	Ex 	Parte 	Young 	is 	inapplicable 	and 	the 	Eleventh
Amendment prohibits the federal suit.” Id. (citing Edelman v. Jordan, 415 U.S. 651, 667–
69 (1974)). Additionally, “the doctrine of sovereign immunity does not apply if (1) the
actions of the officers are beyond their statutory authority; and (2) although acting within
the scope of their authority, the powers exercised or the manner in which they are
exercised are constitutionally void.” McQueary v. Laird, 449 F.2d 608, 610 (10th Cir.
1971); see also Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir. 2002) (“A court
may regard a government officer’s conduct as so ‘illegal’ as to permit a suit for specific
relief against the officer as an individual if (1) the conduct is not within the officer’s
statutory powers or, (2) those powers, or their exercise in the particular case, are
unconstitutional.”) (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682,
702 (1949)).
Defendants first argue that Plaintiffs’ taking claims against Defendants in their
official capacities are barred by the Eleventh Amendment because they are essentially
claims against the State itself, and Colorado has not waived Eleventh Amendment
immunity. ECF No. 60 at 5–7. In response, Plaintiffs argue that Eleventh Amendment
immunity does not apply because (1) the Tenth Circuit’s statement that Plaintiffs may
pursue a suit for compensation under § 1983 means that their claims must now survive;
(2) returning Plaintiffs’ property would not operate against the state; and (3) Plaintiffs have
alleged that their property was unconstitutionally taken and, as a result, sovereign
immunity does not apply. See ECF No. 66 at 4–5 (citing Knellinger, 134 F.4th at 1045).
With respect to Plaintiffs’ takings claims against Defendants in their official capacity, the
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 8 of 31

9
Court agrees with Defendants that Eleventh Amendment immunity applies. The Court
addresses the parties’ arguments and explains its thinking below.
First, as to Plaintiffs’ argument that Eleventh Amendment immunity does not apply
in light of Tenth Circuit’s statement that Plaintiffs “may ‘pursue a suit for compensation,’”
Knellinger, 134 F.4th at 1045, the Court is not persuaded. As noted above, the Tenth
Circuit did not consider this question. Despite this, Plaintiffs contend that their takings
claims should survive, Defendants’ immunity defenses notwithstanding, given the Tenth
Circuit’s reliance on “Knick for its holding that equitable relief was unavailable because
Plaintiffs could seek monetary relief in federal court.” Id. at 6 (citing Knellinger, 134 F.4th
at 1045) (emphasis in original). But this conclusion does not control or bind the Court’s
analysis of Defendants’ instant immunity arguments for two reasons.
As an initial matter, the claims in Knick are distinguishable from those presented
here. Knick “involved a suit against a town,” and not a state or state officials. Pavlock v.
Holcomb, 35 F.4th 581, 589 (7th Cir. 2022) (citing Knick, 588 U.S. at 2167, 2170). Here,
Plaintiffs’ claims are brought against Defendants in their official capacities as officers of
the state of Colorado. This difference is material because “states enjoy sovereign
immunity,” while local municipalities do not. Id. (citation omitted); see also Jinks v.
Richland County, 538 U.S. 456, 466 (2003) (“[M[unicipalities, unlike States, do not enjoy
a constitutionally protected immunity from suit[.]”).
In Williams v. Utah Dep’t of Corr., decided in the wake of Knick, the Tenth Circuit
considered whether a takings claim against Utah state officials was barred by the
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 9 of 31

10
Eleventh Amendment. 928 F.3d 1209, 1214 (10th Cir. 2019). In concluding that Eleventh
Amendment immunity applied, the Tenth Circuit reasoned that
Knick did not involve Eleventh Amendment immunity, which is the basis of
our holding in this case. Therefore, we hold that the takings claim against
the UDOC Defendants must be dismissed based on Eleventh Amendment
immunity, and we remand this claim to the district court with instructions to
dismiss it without prejudice.
Id. (citation omitted). The Tenth Circuit’s approach in Williams is consistent with
other appellate courts who have considered this issue; indeed, “[e]very circuit to consider
the question has held that Knick did not change states’ sovereign immunity from takings
claims for damages in federal court, so long as state courts remain open to those claims.”
Pavlock, 35 F.4th at 589 (collecting cases); see also Ladd v. Marchbanks, 971 F.3d 574,
579 (6th Cir. 2020) (“Knick says nothing about sovereign immunity. And as Plaintiffs
concede, the defendant in Knick was a municipality, so it had no sovereign immunity to
assert.”).
Moreover, even if the takings claims are barred, there are still avenues available
for Plaintiffs to pursue relief. Plaintiffs have the option to either (a) bring a § 1983 claim
against State officials in their individual capacities, so long as such claims are not
otherwise barred by immunity,4 or (b) pursue relief in state court, as they are permitted to
do under Colorado law, see C.R.S. § 38-13-906 (a “claimant may commence an action
against the administrator in the district court for the city and county of Denver to establish
4 Although such claims may provide a basis for relief so long as no other jurisdictional bar applies, as
discussed further below, qualified immunity bars Plaintiffs’ takings claims against Defendants in their
individual capacities in this instance. However, as noted, this does not leave Plaintiff without an avenue to
pursue relief, as Colorado permits Plaintiffs to bring such claims in state court. See C.R.S. § 38-13-906.
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 10 of 31

11
a claim that has been denied or deemed denied under section 38-13-904”). And although
the Tenth Circuit found improper the imposition of “a de facto requirement that a plaintiff
must file an administrative claim with Colorado prior to proceeding in federal court,”
Knellinger, 134 F.4th at 1044, no such requirement is imposed here. That a “property
owner has no obligation to seek a remedy through state administrative proceedings or
through litigation in state court” prior to pursuing a takings claims in federal court, id. (citing
Knick, 588 U.S. at 185), does not mean that their claims may proceed regardless of
whether some immunity independently applies.
As the Tenth Circuit recognized in Williams, “circuits that have considered whether
a claim under the Fifth Amendment Takings Clause is barred by Eleventh Amendment
immunity have held that it is barred, as long as a remedy is available in state court.” 928
F.3d at 1213 (emphasis added) (collecting cases). In Williams, the Tenth Circuit
dismissed plaintiff’s § 1983 takings claim after concluding that Eleventh Amendment
immunity applied and plaintiff’s takings claim could be brought in Utah state court. Id. at
1213–14. There, like here, the consideration was whether plaintiffs were able to pursue
relief via an alternative pathway when relief is otherwise unavailable in federal court. It is
not a requirement that Plaintiffs exhaust their state court remedies before they pursue
their federal claims. Accordingly, the Tenth Circuit’s statement that Plaintiffs “may pursue
a suit for compensation under § 1983,” Knellinger, 134 F.4th at 1045, does not preclude
consideration of Defendants’ immunity defenses now.
Second, turning to Plaintiff’s argument that Eleventh Amendment immunity should
not apply because returning Plaintiffs’ property would not operate against the state, the
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 11 of 31

12
Court notes Plaintiffs’ allegations that Defendants engaged in an unconstitutional taking
of their property at two distinct times: first, when Plaintiffs’ unclaimed property was taken
pursuant to RUUPA and held by the State “in custody for the benefit of the owner,” see
C.R.S. § 38-13-803, and second, when their property was transferred from the unclaimed
property fund and reappropriated to the State’s general fund (or to specific public uses,
such as the Colorado state fair), see id. §§ 38-13-801, 38-13-801.5. See ECF No. 1 ¶¶
29, 31. As the theory behind each “taking” is distinct, the Court addresses each
separately.
Insofar as Plaintiffs pleaded that Defendants took their unclaimed property and
transferred it into the state’s general fund, the Court acknowledges the Tenth Circuit’s
determination that Plaintiffs have alleged a “quintessential taking” in violation of Plaintiffs’
constitutional rights. Knellinger, 134 F.4th at 1043. However, Plaintiffs also argue that by
transferring their unclaimed property to the state’s general fund, their property was “taken”
and “appropriated” by the state, ECF No. 66 at 9–10, such that those funds became state
property. The Tenth Circuit’s articulation of RUUPA comports with this understanding.
Knellinger, 134 F.4th at 1043 (“Taking money that is not owned by the state and
transferring it to state ownership, for state use, is a quintessential taking.”) (emphasis
added). This is significant because even though there is a “constitutional exception to the
doctrine 	of 	sovereign 	immunity” 	that 	allows 	plaintiffs 	to 	allege 	“a 	claim 	that 	the
[government’s] holding [of plaintiff’s property] constitutes an unconstitutional taking of
property without just compensation,” Malone v. Bowdoin, 369 U.S. 643, 648 (1962) (citing
Larson, 337 U.S. at 697), that exception is not available where, as here, “the relief
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 12 of 31

13
requested cannot be granted by merely ordering the cessation of the conduct complained
of but will require affirmative action by the sovereign or the disposition of unquestionably
sovereign property,” Painter v. Shalala, 97 F.3d 1351, 1358 (10th Cir.1996) (quoting
Larson, 337 U.S. at 691 n.11).5
Because ordering Defendants to compensate Plaintiffs for the alleged takings
“would require [the Court] to order [Defendants] to take various forms of affirmative
action,” such as returning property that has been taken for use by the state, the argument
that Defendants acted unconstitutionally does not apply to or override Defendants’
sovereign immunity defense. See Painter, 97 F.3d at 1358–59 (finding the “ultra vires
doctrine [] inapplicable for several reasons,” including because “the requested relief would
require [the court] to go well beyond ordering the Secretary to cease doing something”
and instead “would require [the court] to order the Secretary to take various forms of
affirmative action and would require an outlay of federal funds”).6
5 Because the Court has “an independent obligation to determine whether subject-matter jurisdiction exists,
even in the absence of a challenge from any party,” 1mage Software, Inc. v. Reynolds & Reynolds Co., 459
F.3d 1044, 1048 (10th Cir. 2006), it has fully assessed and considered Plaintiffs’ allegations to ensure that
subject matter jurisdiction exists. See also, e.g., V–1 Oil Co. v. Utah State Dep’t of Pub. Safety, 131 F.3d
1415, 1419–20 (10th Cir. 1997) (a federal court may raise Eleventh Amendment immunity sua sponte).
6 This prohibition arises from a footnote in the Supreme Court’s opinion Larson v. Domestic & Foreign
Commerce Corp., which provides that “a suit may fail, as one against the sovereign, even if it is claimed
that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested
cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative
action by the sovereign.” 337 U.S. at 691 n. 11 (citing North Carolina v. Temple, 134 U.S. 22 (1890)). Since
then, other courts, including the Tenth Circuit, have found that a suit does not fall within the ultra vires
exception to Eleventh Amendment immunity where the “requested relief would require . . . order[ing] federal
officials to take various forms of affirmative action.” United Tribe of Shawnee Indians v. United States, 253
F.3d 543, 548 (10th Cir. 2001); see also Saine v. Hospital Authority, 502 F.2d 1033, 1036 (5th Cir. 1974)
(concluding that although “footnote 11 of Larson does not bar all actions seeking affirmative action by
governmental officials,” it bars plaintiffs from seeking injunctions that would require the government to pay
retrospective monetary relief). The Second Circuit affirmed a district court’s determination in Nat’l R.R.
Passenger Corp. v. McDonald, that Larson’s prohibition “precludes claims that a state taking is
unconstitutional where that claim is brought after the taking has been effected,” as it would require “ordering
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 13 of 31

14
Equally unavailing is Plaintiffs’ argument that the Ex Parte Young doctrine saves
their takings claims, ECF No. 66 at 6, because that doctrine only applies if Plaintiffs
“allege[] an ongoing violation of federal law and . . . seek[] prospective relief.” Williams,
928 F.3d at 1214 (citing Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th
Cir. 2012)) (emphasis added). The Tenth Circuit has already determined that equitable
relief is not available to remedy Plaintiffs’ takings claims. See Knellinger, 134 F.4th at
1045. And although this Court previously acknowledged that Plaintiffs sought injunctive
relief, ECF No. 43 at 8, as a matter of describing the nature of the remedy they sought, it
also concluded that Plaintiffs’ allegations were conjectural, and that “there is no continuing
injury” to sustain a claim for declaratory or injunctive relief, id. at 11. Reviewing again the
nature of the relief sought in connection with Plaintiffs’ takings claim, “the sole question
for [the Court] becomes whether the relief sought . . . is prospective . . . in its substance.”
Hill, 478 F.3d at 1259.
Considering 	“whether 	the 	relief 	requested 	is 	‘properly’ 	characterized 	as
prospective or is indeed the functional equivalent of impermissible retrospective relief,”
id. (citing Verizon Maryland v. Public Service Commission of Maryland, 535 U.S. 635, 645
(2002)), the Court concludes that Plaintiffs seek retrospective relief for a past harm in
connection with their takings claim. For example, Plaintiffs request “restitution of the value
of Plaintiffs’ property,” ECF No. 1 at 29; “[t]o the extent that private funds have been
affirmative action by either the state or federal government employees in their official capacities[.]” 978 F.
Supp. 2d 215, 233 (S.D.N.Y. 2013), aff’d, 779 F.3d 97 (2d Cir. 2015) (citations omitted and emphasis in
original). Likewise here, because Plaintiffs seek to remedy a taking after it has already been effected, and
because their requested relief would require the Court to order “affirmative action by the [state],” Painter,
97 F.3d at 1358 (quoting Larson, 337 U.S. at 691 n.11), the ultra vires exception does not help Plaintiffs
overcome the Defendants’ sovereign immunity.
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 14 of 31

15
converted to public use, restitution of such funds, or damages equal to the value of the
private property taken for public use,” id. at 30; and “[r]estitution and disgorgement of all
ill-gotten gains,” id. at 32. Each of these requests seek compensation for Defendants’
alleged past, improper takings. See Ambriz v. Hancock, No. 23-50582, 2025 WL
2945681, at *3 (5th Cir. Oct. 17, 2025) (“The residual effects of a prior taking do not
constitute an ongoing violation for Ex parte Young purposes[.]” (citing Papasan v. Allain,
478 	U.S. 	265, 	277–78 	(1986) 	(unpublished)). 	Accordingly, 	Eleventh 	Amendment
immunity applies, and Plaintiffs’ claims must be dismissed. Cf. Hill, 478 F.3d at 1257
(“claims [that] seek prospective relief, no damages, and are directed (at least nominally)
against state officials rather than the [s]tate” meet the requirements for Ex Parte Young)
(emphasis added).
Finally, Plaintiffs’ third argument that Defendants acted unconstitutionally by taking
possession of Plaintiffs’ unclaimed property and holding it in a separate, unclaimed
property fund likewise fails, but for a different reason. There is no dispute that, under
RUUPA, unclaimed property is first held in custody by the State for the property owner’s
benefit. See ECF No. 60 at 2, 12; ECF No. 66 at 4. While Plaintiffs argue that this supports
the conclusion that Plaintiffs’ takings claims should survive, the case law they cite
suggests otherwise. In Taylor v. Westly, the Ninth Circuit considered an unclaimed
property statute similar to RUUPA where unclaimed property was held “in trust” by the
state of California for the unclaimed property owners. See 402 F.3d 924, 931 (9th Cir.
2005). Although the Ninth Circuit determined that plaintiffs’ due process claims could
proceed, it explicitly declined to “decide on the issue of sovereign immunity in the context
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 15 of 31

16
of a takings claim” based on its determination “that plaintiffs’ property has not been taken
at all,” but was “merely . . . held in trust for them.” Id. at 936 (emphasis added). The Ninth
Circuit reasoned that “sovereign immunity applies to the state’s money. Money that the
state holds in custody for the benefit of private individuals is not the state’s money, any
more than towed cars are the state’s cars.” Id. at 932. The same is true here. And that
determination leads to two distinct conclusions: first, that sovereign immunity does not
bar Plaintiffs’ claims because any relief “would not operate against the State,” as Plaintiffs
argue, ECF No. 66 at 4, and second, because Plaintiffs’ unclaimed property held in trust
“is not owned by the state,” C.R.S. § 38-13-803, that “property has not been taken at all,”
Taylor, 402 F.3d at 936, and thus, cannot support a takings claim.7
Accordingly, consistent with the above analysis, Plaintiffs’ takings claims alleged
against Defendants in their official capacities are dismissed.
7 The Ninth Circuit reiterated its position from Taylor, 402 F.3d 924, in a recent opinion, Garza v. Woods,
stating: “In Taylor I, we held that where unclaimed property is ‘held in trust’ by the state, the property ‘has
not been taken at all.’ Plaintiffs allege that the Department holds their unclaimed property in custody for
their benefit. Therefore, per Taylor I, Plaintiffs have failed to state a takings claim.” 150 F.4th 1118, 1127
(9th Cir. 2025), (citing 402 F.3d at 936). Although the court in Garza stated that the Tenth Circuit’s Knellinger
decision “reach[ed] the opposite conclusion,” respectfully, this Court does not agree and does not read
those decisions as incongruous. The Tenth Circuit’s conclusion in Knellinger that Plaintiffs pleaded a
“quintessential taking” was based on Plaintiffs’ allegations that “Defendants reappropriated money from the
unclaimed property trust fund to pay public expenses.” Knellinger, 134 F.4th at 1043 (discussing Plaintiffs’
allegations that “Defendants took money from a trust fund that ‘is not owned by the state’ and moved it into
Colorado’s coffers. Taking money that is not owned by the state and transferring it to state ownership, for
state use, is a quintessential taking.”) (citing Colo. Rev. Stat. § 38-13-803). By contrast, the Taylor and
Garza decisions are focused on whether plaintiffs could plead a takings claim at an earlier point in time:
when their property was taken by the state and held in trust. See Taylor, 402 F.3d at 936; Garza, 150 F.4th
at 1127. This is a question that the Tenth Circuit explicitly declined to address. See Knellinger, 134 F.4th
at 1043 n.3 (“Plaintiffs allege that Defendants took their property even earlier, when Colorado seized and
took custody of the abandoned property. This presents the question of whether a state may avoid a Takings
Clause claim by defining ownership such that a citizen remains the de jure ‘owner,’ even if the state takes
de facto ownership. . . . At this stage, we need not reach that question; we need only decide whether
Plaintiffs had a cognizable Takings Clause claim by the time they filed suit.”) (emphasis added).
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 16 of 31

17
ii. 	Due Process Claims
Like Plaintiffs’ taking claims, Defendants argue that Plaintiffs’ due process claims
against Defendants in their official capacities should be dismissed because they are
barred by the Eleventh Amendment. ECF No. 60 at 7–8. In response, Plaintiffs argue that
they have pleaded sufficient facts to establish that Defendants acted ultra vires and
without constitutional authority to violate Plaintiffs’ due process rights. ECF No. 66 at 4.
While it is a close call, “[a]ssuming that the plaintiffs’ allegations are true, as [the
Court] must,” plaintiffs’ official capacity due process claims survive because they have
sufficiently alleged that Defendants “failed to give ‘notice reasonably calculated, under all
the circumstances, to apprise interested parties’ of the fact that their property was being
taken and sold.” Taylor, 402 F.3d at 934 (citing Mullane, 339 U.S. at 314); see also Griffith
v. El Paso Cnty., Colorado, 129 F.4th 790, 836 (10th Cir. 2025) (“[A]mbiguity of the current
law and the high burden that must be met by a defendant who moves to dismiss at the
pleading stage” supports a determination that “the plaintiff has the right, and justice will
best be served by allowing her claims to continue at this pleading stage against the
potentially liable parties.”) (Ebel, J., concurring). Even though “[a] simple mistake of fact
or law does not necessarily mean that an officer of the government has exceeded the
scope of his authority,” id. at 933 (citations omitted), Plaintiffs’ pleading goes beyond that.
Plaintiffs allege that Defendants’ actions exceeded the scope of their constitutional
obligations and statutory authority with respect to RUUPA’s notice provisions. For
example, Plaintiffs plead that although “Defendants were responsible for ensuring
reasonable notice to the public in the form of direct email and publication notices to known
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 17 of 31

18
property owners” under RUUPA, ECF No. 1 ¶ 33(b), “Plaintiffs [] never received mail
notice, at their current addresses . . . before” their property was taken, even though
“Plaintiffs’ 	identities 	and 	locations 	were 	known, 	or 	should 	have 	been 	known, 	by
Defendants through reasonable due diligence.” Id. ¶¶ 39–40, 42.
Additionally, in connection with their claims arising from Defendants’ alleged
procedural due process violations, Plaintiffs appear to be seeking, e.g., a “permanent
injunction restraining Defendants from engaging in . . . [f]ailing to provide notice and due
process pursuant to, and in the form required by” statute, ECF No. 1 at 30, and a
declaration that Defendants “[f]ailed to provide notice and due process” under the relevant
statutes, id. at 29. Although Plaintiffs may seek such relief in connection with their
remaining claims, monetary damages are not available. See Fla. Dep’t of State v.
Treasure Salvors, Inc., 458 U.S. 670, 689 (1982) (“If the action is allowed to proceed
against the officer only because he acted without proper authority, the judgment may not
compel the State to use its funds to compensate the plaintiff for the injury.”).
Accordingly, because “[Colorado] did not and could not authorize its officer[s] to
take people’s property without notice and in the absence of any connection to the State
of [Colorado],” Taylor, 402 F.3d at 934, to the extent Plaintiffs allege that Defendants
acted “outside of the scope of [their] statutory authority,” id. at 935, Eleventh Amendment
immunity does not bar Plaintiffs’ due process claims alleged against Defendants in their
official capacities.8
8 To the extent the Court commented on the application of Eleventh Amendment immunity its order on
Defendants’ first motion to dismiss, it was referring only to Plaintiffs’ due process claims against Defendants
in their official capacity and to the extent Plaintiffs allege that Defendants acted ultra vires in failing to meet
RUUPA’s notice provisions. See ECF No. 43 at 8.
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 18 of 31

19
2. 	Individual Capacity Claims
Having dispensed with the jurisdictional arguments over Plaintiffs’ official capacity
claims, the Court turns to Defendants’ argument that Plaintiffs’ claims against Defendants
in their individual capacities are barred because both Eleventh Amendment immunity and
qualified immunity apply. See ECF No. 60 at 8–9, 15. Plaintiffs disagree on both counts.
See ECF No. 66 at 6–7, 14–15. Below, the Court considers the application of each,
beginning with qualified immunity.
Government officials sued in their personal capacity are generally shielded from
liability for civil damages under the doctrine of qualified immunity if their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Cox v. Glanz,
800 F.3d 1231, 1239 n.1 (10th Cir. 2015) (qualified immunity only applies in “suits against
officials sued in their personal capacities”). “A § 1983 defendant’s assertion of qualified
immunity is an ‘affirmative defense [that] creates a presumption that the defendant is
immune from suit.’” Truman v. Orem City, 1 F.4th 1227, 1235 (10th Cir. 2021) (citing Est.
of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020)). “To overcome
this 	presumption, 	the 	plaintiff 	must 	show 	(1) 	the 	defendant’s 	actions 	violated 	a
constitutional or statutory right, and (2) that right was clearly established at the time of the
defendant's complained-of conduct.” Id. (citing Thomas v. Kaven, 765 F.3d 1183, 1194
(10th Cir. 2014)).
A right is clearly established “when a Supreme Court or Tenth Circuit decision is
on point, or if the clearly established weight of authority from other courts shows that the
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 19 of 31

20
right must be as the plaintiff maintains.” Id. Although “[d]istrict courts may grant a motion
to dismiss based on qualified immunity, . . . ‘[a]sserting a qualified immunity defense via
a Rule 12(b)(6) motion . . . subjects the defendant to a more challenging standard of
review than would apply on summary judgment,’” id. (citing Peterson v. Jensen, 371 F.3d
1199, 1201 (10th Cir. 2004)), because the Court must “analyze[] ‘the defendant's conduct
as alleged in the complaint,’” id. (citing Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir.
2014)) (emphasis in original). It is a plaintiff’s obligation to identify cases that satisfy his
burden to demonstrate that the asserted law is clearly established. Thomas v. Durastanti,
607 F.3d 655, 669 (10th Cir. 2010) (“The plaintiff bears the burden of citing to us what he
thinks constitutes clearly established law.”).
i. 	Takings Claims
Defendants contend that qualified immunity bars Plaintiffs’ takings claims against
Defendants in their individual capacities because Defendants’ alleged conduct did not
“violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” ECF No. 60 at 15 (citing Harlow, 457 U.S. at 818). Defendants further
argue that Plaintiffs “cannot maintain [] claims against Defendants in their individual
capacities because only the State can take private property.”9 Id. at 14–15 (citing Gerlach
v. Rokita, 95 F.4th 493, 501 (7th Cir. 2024), cert. denied, 145 S. Ct. 1044 (2025)); Hinkle
Family Fun Ctr., LLC v. Grisham, 586 F. Supp. 3d 1118, 1130 (D.N.M. 2022), aff’d, 22-
9 Plaintiffs argue that Defendants waived this argument by failing to raise it in their initial motion to dismiss.
See ECF No. 66 at 13 n.9. The Court disagrees, see ECF No. 31 at 18–19, and finds that Defendants may
properly raise this argument now. Moreover, “once an argument is before [the Court], it is our job to get the
relevant case law right, [and] we must use our ‘full knowledge of [our] own and other relevant precedents’”
to do so. Quintana v. Dodge, No. 23-1113, 2024 WL 1048959, at *4 n.4 (10th Cir. Mar. 11, 2024) (citations
omitted).
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 20 of 31

21
2028, 2022 WL 17972138 (10th Cir. Dec. 28, 2022) (unpublished)). Plaintiffs disagree
and argue that because they have plausibly alleged a “quintessential taking” under the
Fifth and Fourteenth Amendments, Defendants are not entitled to qualified immunity. ECF
No. 66 at 15 (citing Knellinger, 134 F.4th at 1043).
In support, Plaintiffs point to Loretto v. Telepromper Manhattan CTV. See ECF No.
66 at 15 (citing 458 U.S. 419, 434–35 (1982)). However, even though Loretto discusses
clearly established property rights in the context of a Fifth Amendment taking claim, that
case concerns the government’s “permanent physical occupation” of real property. Id.
(emphasis added); see also id. (“[W]hen the ‘character of the governmental action,’ is a
permanent physical occupation of property, our cases uniformly have found a taking . . .
The historical rule that a permanent physical occupation of another’s property is a taking
has more than tradition to commend it” and “is perhaps the most serious form of invasion
of 	an 	owner's 	property 	interests.”) 	(citation 	omitted). 	This 	sort 	of 	“broad 	general
proposition” about real property rights does not address the “specific context of [this]
case,” an inquiry into which is necessary to address “[t]he dispositive question [of]
‘whether the violative nature of particular conduct is clearly established.’” Mullenix v.
Luna, 577 U.S. 7, 12 (2015) (citing Ashcroft v. al–Kidd, 563 U.S. 731, 742 (2011))
(emphasis added). And as Defendants note, Plaintiffs fail to identify any other cases to
establish that the facts pleaded in Plaintiffs’ complaint violate a clearly established right.
Moreover, courts in this circuit and elsewhere have acknowledged that it is an open
question whether a takings claim can be brought “against Defendants in their individual
capacity” given that “takings actions sound against governmental entities rather than
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 21 of 31

22
individual state employees in their individual capacities.” See Hinkle, 586 F. Supp. 3d at
1130 (citing Langdon v. Swain, 29 F. App’x 171, 172 (4th Cir. 2002)); see also O’Connor
v. Eubanks, 83 F.4th 1018, 1022 (6th Cir. 2023) (determining that “individual liability for
takings claims is not ‘clearly established’” and dismissing individual defendants “being
sued in their individual capacities for takings claims [because] they are entitled to qualified
immunity”) (citing Sterling Hotels, LLC v. McKay, 71 F.4th 463, 468 (6th Cir. 2023)); Vicory
v. Walton, 730 F.2d 466, 467 (6th Cir. 1984) (determining that an individual cannot
“commit, and be liable in damages for, a ‘taking’ under the fifth amendment”); Gerlach,
95 F.4th at 501 (acknowledging that the Seventh Circuit need “not resolve whether an
individual can be held liable for a Fifth Amendment takings violation” because plaintiff’s
takings claim was dismissed on other grounds).
In considering the district court’s opinion in Hinkle on appeal, the Tenth Circuit did
not directly address whether takings claims can be brought against state officials in their
individual capacity, but nonetheless “affirm[ed] the district court’s decision that it would
be futile . . . to add a takings claim on the ground that Defendants would be protected
from that claim by qualified immunity.” Hinkle Fam. Fun Ctr., LLC v. Grisham, No. 22-
2028, 2022 WL 17972138, at *4 (10th Cir. Dec. 28, 2022).10 At bottom, because takings
claims involve governmental appropriation of “private property for itself or a third party . . .
[t]he government must pay for what it takes.” Cedar Point Nursery v. Hassid, 594 U.S.
10 Although “‘[a]n unpublished opinion . . . provides little support for the notion that the law is clearly
established on [a] point,’ . . . [it] can be quite relevant in showing that the law was not clearly established.”
Grissom v. Roberts, 902 F.3d 1162, 1168 (10th Cir. 2018) (citing Mecham v. Frazier, 500 F.3d 1200, 1206
(10th Cir. 2007)).
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 22 of 31

23
139, 148 (2021) (emphasis added). Thus, although it is clearly established that a
governmental taking is constitutional violation, whether a state actor, as an individual, can
appropriate property under the Takings clause, is a distinct question that remains
unanswered. That such an open, unanswered question exists undermines the conclusion
that this right is clearly established.11
Accordingly, because qualified immunity bars Plaintiffs’ taking claims against
Defendants in their individual capacities, those claims must be dismissed.
i. 	Due Process Claims
Defendants likewise argue that Plaintiffs’ due process claims alleged against
Defendants in their individual capacity should be dismissed because they are also barred
by sovereign immunity and qualified immunity, as Plaintiffs cannot identify a clearly
established right that Defendants violated by following RUUPPA’s notice procedure for
unclaimed property. ECF No. 60 at 15–16. Defendants argue that “no federal court has
held that a state official violates a federally secured right by enforcing self-executing
provisions of valid state statutes that have never been declared unconstitutional,”
including where a state official is alleged to have exercised their discretionary authority
by, e.g., “limiting notice of the existence of the unclaimed property to a listing on a state
agency’s publicly available website.” Id. As noted in their response, Plaintiffs pleaded due
process violations based both on the Defendants’ actions in accordance with RUUPA,
11 Defendants assert qualified immunity to the extent there is no clearly established law to support Plaintiffs’
claim. See, e.g., ECF No. 60 at 15–16. This argument is sufficient to support the Court’s conclusion. See
Markley v. U.S. Bank Nat’l Ass’n, 142 F.4th 732, 742 (10th Cir. 2025) (“When an issue or claim is properly
before the court, the court is not limited to the particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the proper construction of governing law.” (citing United
States v. Perez, 127 F.4th 146, 166 (10th Cir. 2025)).
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 23 of 31

24
and also as a result of Defendants’ failure to follow RUUPA’s notice requirements. See
ECF No. 66 at 11 (citing ECF No. 1 ¶¶ 7-10, 16, 27–28). Plaintiffs argue that because
they have pleaded that RUUPA’s notice provisions are unconstitutional, and that
Defendants acted ultra vires of the authority granted to them under RUUPA, no immunity
should apply to bar Plaintiffs’ claims. See id.; see also id. at 4–5.
With respect to the allegations that Defendants violated Plaintiffs’ due process
rights by acting in accordance with the RUUPA’s notice requirements, the Court does not
agree and is unpersuaded by Plaintiffs’ invocation of Fuentes v. Shevin, 407 U.S. 67
(1972). See ECF No. 66 at 8. Fuentes concerned state “[p]rejudgment replevin statutes”
that were “most commonly used by creditors to seize goods allegedly wrongfully
detained—not wrongfully taken—by debtors,” Fuentes, 407 U.S. at 79, and the specific
issue the Court considered was “[w]hether procedural due process in the context of these
cases requires an opportunity for a hearing before the State authorizes its agents to seize
property in the possession of a person upon the application of another,” id. at 80
(emphasis added). In answering that question, Fuentes determined that “[i]f the right to
notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at
a time when the deprivation can still be prevented.” Id. at 81. However, Fuentes arose in
a very different context than the one presented here. And while Plaintiffs are not required
to identify a case “directly on point,” Kisela v. Hughes, 584 U.S. 100, 104 (2018) (citation
omitted), case law that merely states “a general proposition of applicable law” does not
demonstrate the existence of “clearly established” right sufficient to defeat a qualified
immunity defense, Grissom, 902 F.3d at 1168. A right is clearly established only if existing
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 24 of 31

25
precedent places “the statutory or constitutional question beyond debate.” Kisela, 548
U.S. at 104 (citation omitted).
In contrast, Defendants cite to Texaco, Inc. v. Short, 454 U.S. 516 (1982), and
argue that it supports concluding that Defendants’ execution of RUUPPA in accordance
with its statutory requirements does not constitute a due process violation. See ECF No.
74 at 11. Texaco concerned Indiana’s Mineral Lapse Act, which provided that “[a]ny
interest in coal, oil and gas, and other minerals, shall, if unused for a period of 20 years,
be extinguished, unless a statement of claim is filed,” Texaco, 454 U.S. at 518 n.3 (citing
Ind. Code § 32–5–11–1 (1976)), and required the Supreme Court to consider whether
“the absence of specific notice prior to the lapse of a mineral right renders ineffective the
self-executing feature of the Indiana statute” and violated the property owners’ due
process rights, id. at 536. In determining that it did not, the Court distinguished the type
of prejudgment replevin order at issue in Fuentes and the property abandonment statute
at issue in Texaco. The Court noted that Fuentes concerned a “property interest [that]
was taken only after a specific determination that the deprivation was proper,” id. at 537,
and thus “required specific notice and an opportunity to be heard” prior to the taking, id.
at 536 (citing Fuentes, 407 U.S. at 92). In contrast, the Court determined that the Mineral
Lapse Act at-issue in Texaco contained “no procedural defect” because “Indiana ha[d]
enacted a rule of law uniformly affecting all citizens that establishes the circumstances in
which a property interest will lapse through the inaction of its owner.” Id. at 537.
To the extent Plaintiffs’ procedural due process claims take issue with RUUPA’s
statutory notice procedures, this case is far more like Texaco than Fuentes. Like in
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 25 of 31

26
Texaco, Defendants here acted in accordance with RUUPA12—which applies to all
property owners in Colorado and does not single out Plaintiffs specifically—and provided
Plaintiffs with general notice via statute regarding the time after which their property would
be deemed abandoned, see C.R.S. §§ 38-13-201–220. And, after their property was
deemed abandoned, Plaintiffs could search for their unclaimed property on a website
maintained by the Colorado Office of the Treasury (COT). See ECF No. 1 ¶¶ 7, 9.13 The
Court thus agrees with Defendants that Plaintiffs cannot maintain a due process claim
based on Defendants’ compliance with RUUPA’s notice provisions because such actions
do not establish the violation of a clearly established due process right. Here, as in
another recent case considering Michigan’s unclaimed property statute, “the Due Process
Clause was satisfied because Plaintiff[s] received at least the same degree of pre-
deprivation notice and process as the mineral-rights holders did in Texaco. As in Texaco,
12 Plaintiffs argue that they pleaded that “Defendants failed to provide the post-deprivation notice mandated
by RUUPA, ultra vires of Defendants authority.” ECF No. 66 at 11 (citing ECF No. 1 ¶ 16). But paragraph
16 of Plaintiffs’ complaint concerns the results of a 2019 performance audio of the Colorado Department of
Treasury and does not explain how that study demonstrates that Defendants violated Plaintiffs’ due process
rights, particularly since Plaintiffs also allege that RUUPA was revised following the 2019 audit, see, e.g.,
ECF No. 1 ¶17, and Plaintiffs did not review the COT’s unclaimed property website until 2022, id. ¶¶ 7, 9.
Thus, even reading the complaint in a way that draws all inferences in Plaintiffs’ favor, such allegations are
insufficient.
13 Anderson Nat. Bank v. Luckett, 321 U.S. 233 (1944) further supports the conclusion that Defendants’
actions in accordance with RUUPA do not violate Plaintiffs’ due process rights. In Luckett, the Supreme
Court determined that a Kentucky statute requiring “every bank or trust company in the state . . . to turn
over to the state, deposits which have remained inactive and unclaimed for specified periods,” id. at 236,
did not violate plaintiffs’ due process rights where “the statute provides for notice to the depositors by
requiring the sheriff to post on the court house door or bulletin board a copy of the bank's report of deposits
presumed abandoned,” id. at 243. The Luckett Court reasoned that by publicly posting the presumptively
abandoned records, “in conjunction with the notice provided by the statute itself and by the taking of
possession of the bank balances by the state, is sufficient notice to the depositors to satisfy all requirements
of due process.” Id. at 243. RUUPA provides for similar due process safeguards, albeit tailored for modern
day, as individuals can search for their name on the COT’s website for unclaimed property. See C.R.S. §
38-13-503.
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 26 of 31

27
due process only required that Plaintiff[s] have notice of the statute itself, which was
imputed to [them] upon the statute’s passage.” O’Connor v. Eubanks, No. 21-12837, 2025
WL 3651906, at *4 (E.D. Mich. Dec. 3, 2025) (citing Texaco, 454 U.S. at 532)).
However, with respect to Plaintiffs’ allegations that Defendants acted ultra vires by
acting (or failing to act) and provide notice as RUUPA requires, Plaintiffs’ due process
claims 	survive. 	For 	example, 	where 	Plaintiffs 	allege 	that 	Defendants 	“wrongfully
commingl[ed] the Unclaimed Property Funds and secondary interest with the State’s
General Revenue Fund without reasonable notice (1) prior to taking citizens’ property,
and (2) after taking possession of citizen’s property,” ECF No. 1 ¶ 31 (citations omitted),
or “knowingly disregarded [their] duties” to “ensur[e] reasonable notice to the public in the
form of direct email and publication notices to known property owners,” id. ¶¶ 33(a),14
Plaintiffs have alleged a violation of their due process rights, and sovereign immunity does
not apply. See, e.g., Taylor, 402 F.3d at 934 (determining that “sovereign immunity is
unavailable” where plaintiffs alleged that a state employee’s actions in “taking their
property,” “if true, would clearly put the Controller’s actions beyond her statutory authority”
and thus “failed to give ‘notice reasonably calculated, under all the circumstances, to
apprise interested parties’ of the fact that their property was being taken and sold”)
(citations omitted). Similarly, where Plaintiffs allege that Defendants failed to provide
Plaintiffs with notice as required by RUUPA prior to taking their property, Plaintiffs have
14 See also, e.g., ECF No. 1 ¶ 33(b) (alleging that Defendants “disregarded” their duties to provide “direct
email and publication notices to known property owners” under RUUPA), id. ¶¶ 39–40, 42 (alleging that
“Plaintiffs [] never received mail notice, at their current addresses . . . before,” or after their property was
taken even though “Plaintiffs’ identities and locations were known, or should have been known, by
Defendants through reasonable due diligence”).
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 27 of 31

28
pleaded the violation of a clearly established constitutional right such that qualified
immunity does not apply. See, e.g., Mullane, 339 U.S. at 314 (“An elementary and
fundamental requirement of due process in any proceeding which is to be accorded
finality is notice reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present their
objections.”).
Accordingly, consistent with the above analysis, Plaintiffs’ due process claims
against Defendants in their individual capacity based on their actions that followed
RUUPA’s notice provisions as written are barred by qualified immunity. However,
Plaintiffs’ claim that Defendants acted ultra vires and failed to provide notice to property
owners as required by RUUPA survive.
C. Failure to State a Claim
In addition to their immunity defenses, Defendants also allege that Plaintiffs’ claims
fail because (1) RUUPA provides adequate notice to owners of unclaimed property, ECF
No. 60 at 11–13, and (2) Plaintiffs failed to allege facts demonstrating Defendants’
personal participation in any alleged misconduct, id. at 13–15. Regarding Defendants’
first argument, the Court agrees that Plaintiffs have failed to plead a violation of their due
process rights where Defendants followed the notice procedures prescribed in RUUPA
as a matter of qualified immunity, as discussed above, so it need not address the
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 28 of 31

29
arguments attendant to such claim’s plausibility.15 However, to the extent Defendants did
not follow RUUPA’s notice procedures, Plaintiffs’ due process claims remain.
With respect to their second argument, Defendants contend that the complaint fails
to allege facts that Defendants specifically caused Plaintiffs’ alleged injuries. ECF No. 60
at 13. In response, Plaintiffs allege that they need not plead Defendants’ personal
participation in the alleged misconduct and that Defendants can be liable under § 1983
by alleging that an “affirmative link” exists between the constitutional deprivation and
“either the supervisor’s personal participation, his exercise of control or direction, or his
failure to supervise.” ECF No. 66 at 13 (citing Butler v. City of Norman, 992 F.2d 1053,
1055 (10th Cir. 1993)). The Court finds Plaintiffs’ position persuasive.
Plaintiffs’ allegations make clear that Defendants are responsible for ensuring that
RUUPA is properly implemented and administered. Specifically, Plaintiffs allege that
Defendant Young, as Colorado State Treasurer, is the “‘State’s Cash Management
Officer’ responsible for oversight of the state treasury, including custodial responsibilities
for assets with the treasury,” and assets held in the Department of the Treasury’s
Unclaimed Property Division. ECF No. 1 ¶ 12. Plaintiffs further allege that Defendant
Young “is [the] custodian and administrator of over $1 billion in unclaimed property funds,
currently held in trust by [the Colorado Office of Treasury]” and that, among other
obligations, he is responsible for “reunit[ing] citizens with lost or forgotten property.” Id.
(citing C.R.S. § 38-13-803). With respect to Defendant Gardelli, Director of Colorado
15 See, e.g., Liu v. Salt Lake Cmty. Coll., No. 2:21-cv-00608-CMR, 2025 WL 384615, at *8 (D. Utah Feb. 3,
2025); Watkins v. Session, No. 19-60810-CIV, 2022 WL 16745386, at *9 n.12 (S.D. Fla. Nov. 7, 2022),
aff’d, No. 22-14070, 2023 WL 8469704 (11th Cir. Dec. 7, 2023) (Because “Defendants are entitled to
qualified immunity, we needn’t reach the merits of these claims.” (citation modified)).
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 29 of 31

30
Department of Treasury, Unclaimed Property Division, Plaintiffs allege that she “reports
to defendant Young and is responsible for . . . ensuring that proper notice is provided to
‘abandoned’ 	or 	‘unclaimed’ 	property 	‘Owners’ 	regarding 	the 	seizure 	and 	sale 	of
‘abandoned’ or ‘unclaimed’ property. Id. ¶ 13 (citing C.R.S. §§ 38-13-101, 38-13-102, 38-
13-307, 38-13-604, 38-13-701, 38-13-702, 38-13-801, 38-13-1201).
These allegations are sufficient to establish an “affirmative link” between Plaintiffs’
alleged due process deprivation and Defendants’ “exercise of control or direction, or []
failure to supervise.” Butler, 992 F.2d at 1055. Unlike in Butler, Plaintiffs do not allege
only a single incident in which Defendants failed to provide notice in accordance with
RUUPA—they 	allege 	a 	systemic 	failure 	of 	a 	system 	for 	which 	Defendants 	bear
responsibility. 	Although 	Plaintiffs 	will 	ultimately 	be 	required 	carry 	the 	burden 	of
“establish[ing] the personal participation of each defendant” in order to establish § 1983
liability at trial, Evans v. Fogarty, 241 F. App'x 542, 551 (10th Cir. 2007), the Court is
satisfied that Plaintiffs have, for now, alleged facts sufficient to create an affirmative link
between Defendants’ responsibilities and the alleged procedural due process violations
that survive Defendants’ instant dismissal motion.
D. Defendants’ Objections to Magistrate Judge’s Order Denying a Motion
to Stay
On the same day the instant dismissal motion was filed, Defendants objected to
Magistrate Judge Varholak’s order denying Defendants’ motion to stay discovery until a
ruling was issued on the immunity defenses raises in Defendants’ dismissal motion. ECF
No. 73. Because the Court has now ruled on Defendants’ dismissal motion and addressed
those immunity arguments, Defendants’ objections are overruled as moot.
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 30 of 31

31
IV. 	CONCLUSION
Consistent with the above analyses, Defendants’ motion to dismiss, ECF No. 60,
is DENIED IN PART with respect to Plaintiffs’ due process claims, and GRANTED IN
PART, with respect to Plaintiffs’ takings claims, which are DISMISSED WITHOUT
PREJUDICE because Eleventh Amendment immunity bars Plaintiffs’ takings claims
against Defendants in their official capacities, and qualified immunity bars Plaintiffs’
takings claims against Defendants in their individual capacities. Additionally, because the
Court has ruled on Defendants’ dismissal motion, Defendants’ pending objections to the
Magistrate Judge’s order denying Defendants’ request to stay discovery, ECF No. 73, are
OVERRULED AS MOOT.
DATED this 13th day of February 2026.
BY THE COURT:
________________________________
Charlotte N Sweeney
United States District Judge
Case No. 1:22-cv-01379-CNS-STV Document 85 filed 02/13/26 USDC Colorado
pg 31 of 31