Clark v. Weiser et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-03283-SKC-SBP
JASON RAY CLARK,
Plaintiff,
v.
PHILIP J. WEISER, et al.,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge
This matter is before this court on a Motion to Dismiss (ECF No. 29, the “Motion” or
“Motion to Dismiss”) the complaint filed by pro se Plaintiff Jason Ray Clark (“Plaintiff” or “Mr.
Clark”). All Defendants who were not dismissed for lack of timely service (see ECF No. 27,
Judge Crews’ minute order of May 20, 2024) join in the Motion. Defendants are state agencies
and officials for the State of Colorado who Mr. Clark sues relating to investigatory and
administrative proceedings that resulted in his state securities license being revoked on
November 8, 2023.1 See ECF No. 1 (“Complaint” or “Complt.”) at 8. Defendants move to
1 Specifically, Mr. Clark names as Defendants: Philip J. Weiser, Attorney General of Colorado;
India Kidd-Aaron, Assistant Attorney General of Colorado; Robert Finke, an attorney in the
Colorado Attorney General’s office, the Colorado Attorney General’s Office (the “AG’s
Office”), the Colorado Division of Securities (“CDS”), and the Colorado Department of
Regulatory Agencies (“DORA”). All other Defendants were dismissed for lack of timely service.
ECF No. 27.
For convenience, this court refers to Mr. Weiser, Ms. Kidd-Aaron, and Mr. Finke as the
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dismiss the Complaint for lack of subject matter jurisdiction and failure to state a claim pursuant
to Federal Rules of Civil Procedure 12(b)(1) and (b)(6). Mr. Clark opposes the Motion. ECF No.
31 (“Resp.”). Defendants have replied. ECF No. 33 (“Reply”). For the reasons that follow, this
court respectfully RECOMMENDS that the Motion be granted.
I. 	Background
Mr. Clark filed this action pro se on December 13, 2023. See Complt.2 After the court
ordered him to file a properly-supported motion to proceed in forma pauperis (or pay the filing
fee), Mr. Clark paid the filing fee. ECF No. 5. His case was then drawn to Judge S. Kato Crews
and the undersigned magistrate judge in the referral role. ECF No. 8 (Order of January 25, 2024).
The following facts are drawn from the allegations in the Complaint, which the court accepts as
true at this stage of the proceedings. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir.
2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
Mr. Clark alleges that CDS examined or investigated himself and his investment firm,
Clark Brothers Investments, with respect to regulatory compliance, going back to at least 2021.
“State Officials,” and the AG’s Office, CDS, and DORA as the “State Agencies.”
While the docket reflects Dmitry B. Vilner is both counsel of record for Defendants a
“Consol[idated] Defendant” himself. Mr. Vilner is not named as a Defendant and is instead only
counsel of record for Defendants. It appears he was added in ECF as a defendant in error when
Mr. Clark e-filed a return of service in ECF No. 28. The Clerk’s office is requested to remove the
reference in the docket to Mr. Vilner as a defendant.
2 As Mr. Clark’s Complaint and Response both reflect, this is not the first or only federal action
he has filed concerning these or related facts. This court is aware of ten cases Mr. Clark has filed
pro se in this District. See Case Nos. 22-cv-03015-SKC-SBP, 23-cv-00191-SKC-JPO, 23-cv-
00860-LTB, 23-cv-02166-CNS-SKC, 23-cv-02170-SKC-JPO, 23-cv-03187-LTB, 23-cv-03283-
SKC-SBP (this case), 24-cv-00318-LTB, 24-cv-00667-SKC-TPO, and 24-cv-01000-SKC. It
appears that except for this case, all of Mr. Clark’s cases have already been closed on initial
review, dismissed on Rule 12 motions, or stayed pending arbitration.
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Complt. at 7. At some point, the investigation led to an administrative proceeding, including a
hearing before Judge Matthew E. Norwood, an administrative law judge (“ALJ”) with the
Colorado Office of Administrative Courts. Id. at 8 (referencing case number “XY 2022-0001”).
Id. at 8. On November 8, 2023, the ALJ revoked Mr. Clark’s Colorado securities license and the
license for his investment firm, which the court refers to here as Mr. Clark’s “licenses.” Mr.
Clark appealed the ALJ’s decision to the Colorado Court of Appeals, and that appeal was
pending when he filed the Complaint here. Id.
Mr. Clark’s Complaint hinges on multiple objections to the process that led to the
revocation of his licenses. He objects to the manner in which CDS conducted its examination and
investigation; to the fact that an ALJ, rather than a jury, heard the case; and to the ALJ’s decision
generally. Id., passim. He asserts that an arbitrator from the Financial Industry Regulatory
Authority—who presided over a related arbitration against Mr. Clark’s former securities
custodian, the Charles A. Schwab Company—made certain findings of fact in favor of Mr. Clark
that are pertinent here. Id.
Based on these factual allegations, Mr. Clark asserts that all Defendants violated his
Seventh Amendment right to a trial by jury, his First Amendment right to “free and unabridged
speech against the government and its agencies,” and his Fifth and Fourteenth Amendment rights
to procedural due process. Id. at 9. He further alleges that Defendants violated the Constitution’s
separation-of-powers and appointments-and-removal clauses. Id. He contends that the Supreme
Court has found that ALJs “do not have the constitutional authority to make rulings, and that
such rulings (i.e. revoking [his] securities licenses) must be tried and decided within the United
States [j]udicial system (ergo before a Jury or Judicial Judge).” Id. at 9-10. Mr. Clark does not
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expressly say whether he sues the State Officials in their official or individual capacities, or both.
It appears that he intends to sue them in both capacities. See, e.g., id. at 10 (referencing “persons
individually responsible” and citing the Bivens doctrine, which concerns a limited right to sue
certain federal officers in their individual capacities).
After several defendants were dismissed without prejudice due to Mr. Clark’s failure to
timely serve them, the remaining Defendants filed the Motion on June 3, 2024. ECF No. 29. Mr.
Clark filed an overlength response of fifty-five pages without seeking leave to exceed Judge
Crews’ limit of fifteen pages for such responses.3 See SKC Civ. Practice Standard 10.1(c)(1). In
this instance, the court did not strike the noncompliant brief, but Mr. Clark shall take note that if
he wishes to exceed the allotted page limits going forward, he must confer and file a motion for
leave.
3 Mr. Clark also submitted thumb drives of exhibits that he mentions in his Response. See ECF
No. 32. But on a Rule 12(b)(6) motion (and Rule 12(b)(1) motions resting on the factual
averments in a complaint, like Defendants’ Motion does), the court is generally confined to
considering the contents of the complaint. “Exceptions to this general rule include the following:
documents incorporated by reference in the complaint; documents referred to in and central to
the complaint, when no party disputes its authenticity; and ‘matters of which a court may take
judicial notice.” Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1275 (10th Cir. 2023)
(quotation omitted).
While certain of Mr. Clark’s exhibits are from the administrative proceeding and his
appeal (and as such, the court could take judicial notice of them, for instance, for dates that
filings were made), Mr. Clark presents all of his exhibits as “mountains of evidence” in support
of his claims. Resp. at 7. This the court cannot do. See, e.g., id. at 1291 (“Rule 12(b)(6) motions
to dismiss are not designed to weigh evidence”). Mr. Clark’s other exhibits do not fall into the
permitted categories, and so the court does not consider them in evaluating the Motion to
Dismiss.
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II. 	Legal Standards
A. 	Rule 12(b)(1)
Federal courts are courts of limited jurisdiction. Under Article III of the United States
Constitution, federal courts only have jurisdiction to hear certain “cases” and “controversies,”
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014), rendering them “duty bound to
examine facts and law in every lawsuit before them to ensure that they possess subject matter
jurisdiction.” The Wilderness Soc. v. Kane Cnty., 632 F.3d 1162, 1179 n.3 (10th Cir. 2011)
(Gorsuch, J., concurring). The “cases” and “controversies” clause “ensures that the parties before
us retain a personal stake in the litigation. As a corollary to this case-or-controversy requirement,
there must exist a dispute at all stages of review, not merely at the time the complaint is filed.”
Moore v. Harper, 600 U.S. 1, 14 (2023) (cleaned up). The “[m]ootness doctrine addresses
whether an intervening circumstance has deprived the plaintiff of a personal stake in the outcome
of the lawsuit.” Id. (quotation marks omitted). Federal courts “lack subject-matter jurisdiction
over a case that is moot.” Smith v. Becerra, 44 F.4th 1238, 1247 (10th Cir. 2022). And federal
courts have 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) (citing Arbaugh v. Y & H Corp., 546 U.S. 500
(2006)).
B. 	Rule 12(b)(6)
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Walker v.
Mohiuddin, 947 F.3d 1244, 1248–49 (10th Cir. 2020) (internal quotation marks omitted). “A
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claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Cummings
v. Dean, 913 F.3d 1227, 1238 (10th Cir. 2019) (internal quotation marks omitted). In making this
determination, the “court accepts as true all well pleaded factual allegations in [the] complaint
and views those allegations in the light most favorable to the plaintiff.” Straub v. BNSF Ry. Co.,
909 F.3d 1280, 1287 (10th Cir. 2018).
Nevertheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that
even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a Rule
12(b)(6) motion). Rather, “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);
see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility
refers “to the scope of the allegations in a complaint,” and that the allegations must be sufficient
to nudge a plaintiff’s claims “across the line from conceivable to plausible”).
C. 	Pro Se Pleadings
In applying the above principles, this court is mindful that Plaintiff proceeds pro se and
thus affords his filings a liberal construction. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But
the court cannot and does not act as his advocate, Hall, 935 F.2d at 1110, and applies the same
procedural rules and substantive law to Plaintiff as to a represented party. See Murray v. City of
Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2002); see also Yang v. Archuleta, 525 F.3d 925,
927 n.1 (10th Cir. 2008) (“Pro se status ‘does not excuse the obligation of any litigant to comply
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with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.’”)
(citation omitted).
III. 	Analysis
A. 	Subject Matter Jurisdiction
1. 	Eleventh Amendment Sovereign Immunity
Defendants first argue that all claims must be dismissed because they are entitled to
sovereign immunity under the Eleventh Amendment. Under this constitutional provision, “[t]he
Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment
has been interpreted to bar any action brought against a state in federal court, including suits
initiated by a state’s own citizens. Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995).
Eleventh Amendment immunity extends to states and state entities deemed “arm[s] of the
state[.]” Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1253 (10th Cir. 2007) (citing Mt.
Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 280 (1977)).
Absent a waiver, states and their agencies are entitled to Eleventh Amendment immunity,
regardless of the type of relief sought. Id. at 1252-53 (citing Fed. Mar. Comm’n v. S.C. State
Ports Auth., 535 U.S. 743, 765-66 (2002)). Colorado has not statutorily waived its Eleventh
Amendment immunity. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988). Thus,
“[t]he State of Colorado and its entities, such as the Office of the Attorney General of the State
of Colorado, are protected by Eleventh Amendment immunity.” Sturgell v. Coffman, No. 16-cv-
01637-GPG, 2016 WL 9443724, at *3 (D. Colo. Sept. 21, 2016), aff’d, 689 F. App’x 620 (10th
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Cir. 2017) (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989)). The Supreme
Court has also made clear that Congress did not abrogate state sovereign immunity through its
promulgation of 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 345 (1979).
Except to the extent distinguished in Ex Parte Young, 209 U.S. 123 (1908), which the
court discusses in more detail below, an official capacity claim against an individual employee of
an agency is the same as a claim against the agency. Kentucky v. Graham, 473 U.S. 159, 165-66
(1985) (official capacity claim is “to be treated as a suit against the entity”). See also Hill v.
Kemp, 478 F.3d 1236, 1256-59 (10th Cir. 2007) (discussing the Eleventh Amendment with
respect to claims brought against state officials in their official capacities).
This precedent compels this court to conclude that all Defendants––both the agencies and
the officials, in their official capacities—“are state agencies entitled to sovereign immunity under
the Eleventh Amendment against claims for monetary damages and retrospective injunctive
and/or declaratory relief.” San Agustin v. El Paso Cnty., No. 18-cv-02646-MEH, 2019 WL
4059167, at *10 (D. Colo. Aug. 28, 2019). See also Sturgell, 2016 WL 9443724, at *3 (holding
that the Colorado AG’s Office is entitled to sovereign immunity under the Eleventh
Amendment).
However, under Ex Parte Young, claims seeking prospective relief against state officials
in their official capacities for ongoing violations of federal law are not barred under the Eleventh
Amendment. 4 Under this exception, there is “federal jurisdiction over a suit against a state
4 Neither side’s briefing addresses Ex Parte Young. However, this issue is jurisdictional, and as
noted above, the court has an obligation to determine whether it has jurisdiction. “Jurisdiction
existing, [the Supreme] Court has cautioned, a federal court’s ‘obligation’ to hear and decide a
case is ‘virtually unflagging.’” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013).
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official when that suit seeks only prospective injunctive relief in order to end a continuing
violation of federal law.” Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 73 (1996) (internal
quotation marks omitted).
“To determine if the Ex parte Young exception applies, the [c]ourt ‘need only conduct a
straightforward inquiry into whether the complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.’” Gays Against Groomers v. Garcia, --- F.
Supp. 3d ---, No. 24-cv-00913-RMR, 2024 WL 5151143, at *3 (D. Colo. Nov. 27, 2024), appeal
pending (quoting Verizon Md. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)). See also
Hill, 478 F.3d at 1259 (analyzing whether an injunctive claim “seeks relief properly
characterized as prospective”). Thus, “plaintiffs must show that they are: (1) suing state officials
rather than the state itself, (2) alleging an ongoing violation of federal law, and (3) seeking
prospective relief.” Id. (quoting Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th
Cir. 2012)). “At this stage of the jurisdictional analysis, the [c]ourt ‘should not analyze the merits
of the claim.’” Id. at *3 n.3 (quoting Fowler v. Stitt, 104 F.4th 770, 782 (10th Cir. 2024) (internal
quotations and citation omitted)).
Liberally construing Mr. Clark’s allegations, he requests reinstatement of his securities
licenses. He sues the State Officials in their official capacities because he contends that they
were involved in, or responsible for, the proceedings that resulted in those licenses being revoked
allegedly in violation of his right to due process. He argues that he should have been, but was
Accordingly, this court addresses the Ex Parte Young exception sua sponte to ensure that it
applies the Eleventh Amendment in accordance with the governing case law.
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not, permitted adequate discovery in those proceedings.5 Without considering the merits of his
claims, this court concludes that Mr. Clark seeks prospective relief from the State Officials in
what he alleges is an ongoing deprivation of his licenses without due process. Accordingly, the
claims against the state officials in their official capacities are subject to Ex Parte Young. See,
e.g., Columbian Fin. Corp. v. Bowman, 768 F. App’x 847, 850-51 (10th Cir. 2019) (noting the
court had reversed an earlier decision in the case because Ex Parte Young applied where the
plaintiff sought a “hearing before an impartial hearing officer after sufficient opportunity for
discovery,” “which could overturn the insolvency finding and restore the [plaintiff’s] charter”).6
In sum, all of Mr. Clark’s claims against the State Agencies (the AG’s Office, CDS, and
DORA), and his claims against the State Officials, in their official capacities, for money
damages and retrospective relief should be dismissed for lack of subject matter jurisdiction
because of sovereign immunity under the Eleventh Amendment. But Mr. Clark’s claims against
the State Officials in their official capacities for prospective injunctive relief are subject to the Ex
Parte Young exception. And of course, Mr. Clark’s claims against the officials for monetary
damages in their individual capacities are not subject to the Eleventh Amendment either. See,
e.g., Lewis v. Clarke, 581 U.S. 155, 166 (2017) (“Nor have we ever held that a civil rights suit
under 42 U.S.C. § 1983 against a state officer in his individual capacity implicates the Eleventh
5 This court assumes without deciding that each of the State Officials has the authority to
reinstate Mr. Clark’s licenses as he requests in this case.
6 “Unpublished opinions are not precedential, but may be cited for their persuasive value.” 10th
Cir. R. 32.1(A). “[I]f an unpublished opinion or order and judgment has persuasive value with
respect to a material issue in a case and would assist the court in its disposition, [the Tenth
Circuit] allow[s] citation to that decision.” United States v. Austin, 426 F.3d 1266, 1274 (10th
Cir. 2005).
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Amendment”); Hafer v. Melo, 502 U.S. 21, 31 (1991) (“state officials, sued in their individual
capacities, are ‘persons’ within the meaning of § 1983 . . . [and t]he Eleventh Amendment does
not bar such suits”).
Because not all of Mr. Clark’s claims are subject to Eleventh Amendment sovereign
immunity, this court now turns to Defendants’ other arguments concerning subject matter
jurisdiction.
2. 	Younger Abstention No Longer Applies
At the time the parties briefed the Motion, Mr. Clark’s appeal from the administrative
decision revoking his licenses was still pending in state court. See, e.g., Complt. at 8 (“This
[administrative] case is currently ongoing thr[ough] the appellate process in the Colorado Court
of Appeals”); Resp. at 3, 8 (citing Case No. 2023CA2061). Defendants therefore argue that the
court should abstain from exercising jurisdiction under what is known as Younger abstention, so
named for Younger v. Harris, 401 U.S. 37 (1971). “Younger requires federal courts to refrain
from ruling when it could interfere with ongoing state proceedings.” Columbian Fin. Corp. v.
Stork, 811 F.3d 390, 393 (10th Cir. 2016) (citing Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69
(2013)). Younger abstention is required when three conditions are satisfied:
1. There is an ongoing state proceeding.
2. The state court provides an adequate forum for the claims raised in the federal
complaint.
3. 	The 	state 	proceedings 	involve 	important 	state 	interests, 	matters 	which
traditionally look to state law for their resolution or implicate separately articulated
state policies.
Id. at 394-95 (internal quotation omitted, quoting inter alia Amanatullah v. Colo. Bd. of Med.
Exam’rs, 187 F.3d 1160, 1163 (10th Cir. 1999)).
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However, a few months after the briefing on the Motion was complete, the Colorado
Court of Appeals issued its decision in Mr. Clark’s appeal from the administrative decision. See
Clark v. Chan, No. 23CA2061, 2024 WL 4579302 (Colo. App. Oct. 24, 2024) (unpublished
opinion).7 The Colorado Supreme Court has denied Mr. Clark’s petition for certiorari. See Clark
v. Chan, No. 2024SC000738 (Colo. Sup. Ct.), unpublished order of February 24, 2025.
When a state court proceeding that may otherwise call for Younger abstention ends while
the federal case is pending, “the district court . . . no longer has a need to abstain under
Younger.” Ziankovich v. Large, 745 F. App’x 800, 802 (10th Cir. 2018). See also Columbian
Financial, 811 F.3d at 395 (vacating district court’s dismissal of equitable claims on Younger
grounds and remanding “to the district court so that it can reconsider them without the need to
abstain now that the state proceedings have ended”). In both Ziankovich and Columbian
Financial, the Tenth Circuit found it unnecessary to decide whether the end of the state court
proceeding formally moots Younger and instead remanded the cases for the district court to
consider the claims on the merits. Accordingly, this court concludes that because the state court
proceeding is no longer pending, Younger abstention does not apply here. This court therefore
does not reach the questions of whether the second and third requirements for Younger
abstention would otherwise apply, or whether Mr. Clark has shown that an exception to Younger
7 The court may take judicial notice of filings in related cases, “both within and without the
federal judicial system, if those proceedings have a direct relation to matters at issue.” St. Louis
Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979). And the
court also may take judicial notice of undisputed court documents and matters of public record as
facts “capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1219 n.2 (10th
Cir. 2011) (citation omitted) (noting that under Federal Rule of Evidence 201, judicial notice
may be taken “whether requested or not,” and “at any stage of the proceeding”).
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abstention applies.
Defendants also argue the Colorado Governmental Immunity Act, Colo. Rev. Stat. § 24-
1-101 through 120 (“CGIA”) applies here, to the extent the Complaint could be liberally read to
bring state tort law claims. Motion at 8-9. But Mr. Clark acknowledges that he does not bring
any state law claims in this case, and he states that, if Complaint could be understood to bring
state law claims, he has abandoned them. Resp. at 48-49. Therefore, as Defendants recognize in
their Reply brief, the CGIA does not apply in this case. Reply at 5.
* ~* ~ *
In summary, the court has subject matter jurisdiction only over Mr. Clark’s claims
against the State Officials in their official capacities for prospective relief and the individual
capacity claims for money damages. This court therefore RECOMMENDS that all other claims
be dismissed without prejudice as barred by sovereign immunity under the Eleventh
Amendment. See, e.g., Garman v. Campbell Cnty. Sch. Dist. No. 1, 630 F.3d 977, 985 (10th Cir.
2019 (dismissal for lack of subject matter jurisdiction is generally without prejudice).
B. 	Failure to State a Claim for Relief
The State Officials argue that Mr. Clark has failed to allege their personal participation in
any alleged violation of his constitutional rights, entitling them to qualified immunity on his
claims for monetary damages and also compelling dismissal of the official capacity claims.
Motion at 5-6.
1. 	Individual Capacity Claims
To successfully assert a constitutional claim under § 1983, a plaintiff must show that the
defendant personally participated in the alleged constitutional violation. Foote v. Spiegel, 118
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F.3d 1416, 1423 (10th Cir. 1997) (“Individual liability under § 1983 must be based on personal
involvement in the alleged constitutional violation.”). This means there must be a direct link
between the alleged constitutional violation and the defendant’s participation, control, or failure
to supervise. See Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993); see also Pahls
v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (“It is particularly important that plaintiffs
make clear exactly who is alleged to have done what to whom, as distinguished from collective
allegations.”) (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)
(emphasis in original)).Conclusory allegations of personal participation are insufficient for the
claim to survive dismissal. Gray v. Sorrels, 744 F. App’x 563, 568 (10th Cir. 2018). And if a
plaintiff attempts to plead a constitutional claim against an official based on their supervisory
responsibilities, the allegations must plausibly demonstrate (1) personal involvement; (2) a
causal connection to the constitutional violation; and (3) a culpable state of mind. See Schneider
v. City of Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th Cir. 2013) (discussing standards
for individual supervisory liability).
The Tenth Circuit has emphasized that the requirement of personal participation for
liability under § 1983 is a component of the qualified immunity analysis: “[A]lthough the
requirement of personal participation, including the question of supervisory liability, is a
component of liability under § 1983 and Bivens, we also incorporate it into our qualified-
immunity analysis, where we ask whether a clearly established constitutional right has been
violated.” Pahls, 718 F.3d at 1227 (citing Dodds v. Richardson, 614 F.3d 1185, 1193-94 (10th
Cir. 2010)). And so to make out a viable § 1983 claim, a plaintiff “must identify specific actions
taken by particular defendants, or specific policies over which particular defendants possessed
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supervisory responsibility, that violated their clearly established constitutional rights.” Id. at
1228 (citing Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532-33 (10th Cir. 1998)). “Failure
to make this showing both dooms plaintiffs’ § 1983 . . . claims and entitles defendants to
qualified immunity.” Id.
The Tenth Circuit likewise has made clear that “qualified immunity ‘represents the norm’
in suits against public officials.” Ajaj v. Fed. Bureau of Prisons, 25 F.4th 805, 814 (10th Cir.
2022) (citing Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). Officials sued in their individual
capacities are entitled to qualified immunity “unless (1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their conduct was “clearly established at the
time.” District of Columbia v. Wesby, 583 U.S. 48, 62-63 (2018) (quoting Reichle v. Howards,
566 U.S. 658, 664 (2012)). “Clearly established” means that, at the time of the challenged
conduct, “the contours of a right are sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011) (cleaned up) (emphasis added). “In other words, existing law must have placed the
constitutionality of the officer's conduct ‘beyond debate.’” Wesby, 583 U.S. at 63 (quoting
al–Kidd, 563 U.S. at 741). The rigorous qualified immunity standard “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Mullenix v. Luna, 577 U.S. 7, 12 (2015)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see also Halley v. Huckaby, 902 F.3d
1136, 1149 (10th Cir. 2018) (for the law to be “clearly established, there must be a Supreme
Court or Tenth Circuit decision “on point,” or the “weight of authority from other courts must
have found the law to be as the plaintiff maintains.”) (quotation omitted).
Under these demanding standards, Mr. Clark has failed to overcome the State Officials’
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assertion of qualified immunity.
First, Mr. Clark’s allegations fail to link the asserted constitutional violations to any
specific action taken by Mr. Weiser, Ms. Kidd-Aaron, or Mr. Finke, and so fail to plausibly
demonstrate the fundamental requirement of personal participation on the part of each of these
officials. The crux of Mr. Clark’s claims appears to be that no one at CDS or DORA investigated
the facts before notifying his customers that they were examining him and his firm for moving
client funds without authorization. This allegedly caused a cascading chain of events in which
Mr. Clark first lost his custodian arrangement with Charles Schwab & Co., and then lost the
clients whose investments he had managed. Complaint at 7-11. But even liberally construed,
these allegations do not plausibly indicate that State Official personally participated in an alleged
constitutional violation. Indeed, Mr. Clark’s are essentially meaningless, undifferentiated among
Defendants as they are and without supporting facts plausibly showing what actions each State
Official took that allegedly violated his rights. Put simply, his pleading fails to “make clear
exactly who is alleged to have done what to whom, to provide each individual with fair notice as
to the basis of the claims against him or her, as distinguished from collective allegations against
the state.” Robbins, 519 F.3d at 1249-50 (emphasis in original); cf. Iqbal, 556 U.S. at 678 (to
survive a motion to dismiss, a pleading must contain “more than an unadorned, the-defendant-
unlawfully-harmed-me accusation”).
Neither do Plaintiff’s allegations suffice to plausibly allege personal participation against
any State Official based on their supposed supervisory roles, assuming that is his intention.
“[T]here is no concept of strict supervisor liability under section 1983,” Jenkins v. Wood, 81 F.3d
988, 994 (10th Cir. 1996), nor does § 1983 create a cause of action against government officials
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or municipalities based on a respondeat superior theory. See Monell v. Dep’t of Soc. Servs. of
City of New York, 436 U.S. 658, 691 (1978); see also Iqbal, 556 U.S. at 676 (“Government
officials may not be held liable for the unconstitutional conduct of their subordinates under a
theory of respondeat superior”) (collecting cases). Still, “in situations where 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, the supervisor may be personally
liable.” Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (quoting Butler v. City of
Norman, 992 F.2d 1053, 1055 (10th Cir. 1993)) (cleaned up).
Here, Mr. Clark’s pleading to link any State Official with actions plausibly establishing a
constitutional violation. He has not pleaded facts plausibly indicating how any State Official
promulgated, created, implemented, or utilized a policy or practice that caused a deprivation of
his rights. See Dodds, 614 F.3d at 1195. Neither has he pleaded any facts allowing this court
reasonably to infer the existence of the “‘requisite causal connection’”—i.e., that any State
Official “set in motion a series of events that the defendant knew or reasonably should have
known would cause others to deprive the plaintiff of her constitutional rights”—or that any State
Official “acted knowingly or with ‘deliberate indifference’ that a constitutional violation would
occur.” Id. (cleaned up).
Next, turning to the two prongs of his “heavy two-part burden” to overcome qualified
immunity, see, e.g., Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014), Mr. Clark’s
allegations do not plausibly show that the personal actions of any of the State Officials violated
any constitutional right he claims was violated. Neither has he met his burden to identify
Supreme Court or Tenth Circuit authority other weighty compelling precedent, existing at the
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time of the alleged conduct, that would have put “every reasonable official” in the State
Officials’ positions on notice “beyond debate” that what they were doing ran afoul of the
Constitution. al-Kidd, 563 U.S. at 741. Having failed to point to any pertinent precedent at all—
let alone with the required precision to render the law clearly established—Mr. Clark has failed
to meet his burden on the clearly established law prong.
Because Mr. Clark has failed to overcome the State Officials’ assertion of qualified
immunity, the court respectfully RECOMMENDS that the claims for monetary damages against
those officials be dismissed with prejudice.8
2. 	Official Capacity Claims
Mr. Clark also has sued the State Officials in their official capacities. As the court noted
earlier, a suit against an individual in his official capacity is akin to a suit against the
governmental entity itself, see Kentucky v. Graham, 473 U.S. at 165-66, which is known as a
“Monell” claim, after Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
See also Motion at 3. Therefore, “municipal-liability cases apply.” Heidel v. Mazzola, 851 F.
App’x 837, 840 (10th Cir. 2021) (“The Estate's claim against Sheriff Mazzola in his official
capacity is equivalent to a suit against a governmental entity; thus, our municipal-liability cases
8 See, e.g., Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (instructing district court to
dismiss based on qualified immunity “with prejudice”); Lybrook v. Members of the Farmington
Mun. Schs. Bd. of Educ., 232 F.3d 1334, 1341-42 (10th Cir. 2000) (affirming district court order
granting motion to dismiss with prejudice on qualified immunity grounds); Vreeland v. Olson,
No. 20-cv-02330-PAB-SKC, 2021 WL 4237269, at *5 n.7 (D. Colo. Sept. 16, 2021) (“The Court
will dismiss the claim against Olson and Reed [brought by a pro se plaintiff] with prejudice
because they are entitled to qualified immunity); McCrary v. Jones, No. CIV-13-573-M, 2015
WL 873641, at *6 (W.D. Okla. Feb. 27, 2015) (dismissing claim with prejudice where defendant
was entitled to qualified immunity).
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apply.”) (citing Cox v. Glanz, 800 F.3d 1231, 1254 (10th Cir. 2015)). To state a plausible claim
against the State Officials on this theory, Mr. Clark was obliged to allege facts plausibly showing
“(1) an official government policy or custom, (2) that cause a constitutional injury, and (3)
requisite state of mind.” Id. (citing Schneider, 717 F.3d at 769).
Mr. Clark has pleaded no facts plausibly indicating that he can satisfy these elements as
to each of the State Officials. And, more fundamentally, he has not otherwise alleged a plausible
constitutional violation because of a lack of allegations establishing the State Officials’ personal
participation. Therefore, the actions of the State Officials do not provide the required nexus
required for municipal liability under § 1983. Ellis ex rel. Estate of Ellis v. Ogden City, 589 F.3d
1099, 1104-05 (10th Cir. 2009) (“Since the officers were not alleged sufficiently to have
committed a constitutional violation, they could not provide the nexus required for municipal
liability under § 1983.”) (citing Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006)); see
also, e.g., Maddox v. Elder, No. 21-cv-00235-RMR-MEH, 2022 WL 22860461, at *5 (D. Colo.
Mar. 29, 2022), recommendation adopted, 2022 WL 22860462 (D. Colo. June 15, 2022) (“a
prerequisite to a Monell claim is an underlying constitutional violation”) (collecting cases).
Mr. Clark’s official capacity claims against the State Officials must necessarily fail,
compelling the court to respectfully RECOMMEND that the official capacity claims against the
State Officials be dismissed with prejudice. Allowing Mr. Clark an opportunity to amend his
official capacity claims would be futile; because his individual capacity claims should be
dismissed with prejudice on qualified immunity, Mr. Clark is unable to plead any officer violated
the constitution, as required to support an official capacity claim. See Brereton v. Bountiful City
Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“dismissal with prejudice is appropriate where a
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complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be
futile,” citing Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir. 1997)).
IV. 	Conclusion
For each of the foregoing reasons, this court respectfully RECOMMENDS that
Defendants’ Motion to Dismiss (ECF No. 29) be granted. This court further RECOMMENDS
that the claims over which this court lacks subject matter jurisdiction be dismissed without
prejudice and that the claims against the State Officials be dismissed with prejudice.9
DATED: February 27, 2025 	BY THE COURT:
Susan Prose
United States Magistrate Judge
9 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado. 28
U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection will
result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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