Sgaggio et al v. Carlos et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24–cv–02335–PAB–MDB
DELBERT ELMER SGAGGIO, JR., and
JEROME FREEMAN,
Plaintiffs,
v.
STEVEN CARLOS, El Paso County Investigator, in professional and personal capacity,
T. ELGAS, El Paso County Security Officer, in professional and personal capacity,
J. RANDALL, El Paso County Security Officer, in professional and personal capacity,
DALY, El Paso County Investigator, in professional and personal capacity, and
BOARD OF COUNTY COMMISSIONERS OF EL PASO COUNTY
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
This matter is before the Court on Defendants’ Motion to Dismiss Plaintiffs’ Amended
Complaint and Jury Demant Pursuant to FED. R. C IV. P. 12(b)(6). ([“Motion”], Doc. No. 31.)
Plaintiffs have responded in opposition to the Motion (Doc. No. 36) and Defendants have replied
in support (Doc. No. 37.) After reviewing the Motion, briefing, and relevant law, the Court
respectfully RECOMMENDS that the Motion be GRANTED in part and DENIED in part.
SUMMARY FOR PRO SE PLAINTIFF
The Court is recommending that Claims 2 and 7 be dismissed. You allege your right not
to speak and to engage in anonymous speech were violated when you were required to sign in
and identify yourself. However, First Amendment rights are not unlimited, particularly on
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government property. Accepting all of your allegations as true, the requirements were viewpoint
neutral and reasonable, and placed only a minimal burden on public visitors.
The Court is also recommending that Claims 3 and 4 be dismissed. You allege that
Defendants Carlos and Daly blocked your access to the CSPD liaison’s office, while allowing
another person to enter the office, violating your Fifth and Fourteenth Amendment rights to
travel and equal protection. But these facts do not implicate the constitutional right to travel, and
they do not state a plausible claim. To state an equal protection claim you must sufficiently
allege that you were intentionally treated differently from others similarly situated. Here, you
state in conclusory fashion that at least one other person was given access to the police liaison’s
office, but the allegations do not demonstrate that the other person was similarly situated, or even
a visitor in the building. The Court is likewise recommending that Claim 6 be dismissed as the
Amended Complaint does not plausibly establish that you were similarly situated to the people
Defendant Elgas allowed into the Russel Building.
Finally, the Court is recommending dismissal of Claim 5 under the Fourth Amendment.
Even assuming the self-identification and sign-in requirements were searches, they did not
violate the Fourth Amendment because they are administrative or special needs searches that
required only basic identifying information in exchange for access to government property. This
minimal intrusion is significantly outweighed by the government’s interest in ensuring visitor
accountability, protecting employees and sensitive operations, and maintaining order in facilities
devoted to official government business.
This is only a high-level summary of the Court’s Recommendation. The entire decision is
set forth below, along with information about your right to object.
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BACKGROUND
Plaintiffs allege that on August 25, 2022, they “serv[ed] a federal lawsuit” “challenging
the constitutionality of some state laws, and also suing Colorado Springs police officers” at 105
E. Vermijo Ave. Colorado Springs, CO 80903 (the “Russell Building”).1 2 (Doc. No. 22 at ¶¶ 8–
14.) Upon arrival, Plaintiffs allegedly went through a metal detector and were told they needed to
sign a logbook to enter the building and serve the lawsuit upon the Colorado Springs Police
Department (“CSPDD”) liaison office. (Id. at ¶¶ 15–16.) Plaintiffs signed the book but
questioned the policy. (Id. at ¶¶ 17–21.) In response to the questioning, Defendant Elgas called
El Paso County “investigators,” Defendants Carlos and Daly, to answer Plaintiffs’ questions.
(Id.) Plaintiffs say Defendants Carlos and Daly “physically blocked” them from the CSPD
liaison office. (Id. at ¶¶ 23–30.) Plaintiffs acknowledge they used “curse words” to “verbally
protest,” and Defendant Carlos repeatedly “request[ed]” that they leave the premises. (Id. at ¶¶
52, 55.) According to Plaintiffs, Defendant Elgas eventually called for additional security, and
seven officers arrived. (Id. at ¶ 31.) Plaintiffs contend this was done to intimidate them and chill
their First Amendment activity. (Id. at ¶¶ 31, 32.)3
1 This is the El Paso County Robert L. Russell Professional Building. (Doc. No. 31 at ¶ 1.)
2 The federal lawsuit appears to have involved Plaintiff Sgaggio as the plaintiff, and Plaintiff
Freeman as the process server. (Doc. No. 22 at ¶¶ 11–12.)
3 Plaintiffs allege that eventually, the police liaison officer came from the courthouse, accepted
service, and went to the CSPD liaison office with the paperwork. (Id. at ¶ 32.) Plaintiffs say they
continued to wait by the metal detectors as Defendants would not let them access the liaison
office. (Id.) Plaintiff Sgaggio says he has been allowed to enter the liaison office on multiple
occasions previously. (Id. at ¶ 41.)
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Plaintiffs allege they tried to enter the Russell Building again on August 30, 2022, to file
a records request, but Defendant Elgas locked the doors. (Id. at ¶ 44.) Plaintiffs say other
individuals were allowed to access the building. (Id. at ¶¶ 45.) Plaintiffs also allege that on May
2, 2023, and November 15, 2023, Defendant Randall forced them to sign the logbook to enter the
building. (Id. at ¶¶ 47–48.) They further allege that Defendant Randall “took” Plaintiff Sgaggio’s
ID during the November 15, 2023, visit. (Id. at ¶ 48.)
Plaintiffs assert seven claims under 42 U.S.C. § 1983:
• 	Claim 1: First Amendment retaliation against Defendants Elgas, Carlos, and Daly. (Id. at
¶¶ 50–60.)
• 	Claim 2: Violation of the First Amendment right to “engage in Free
Speech/Expression/Association[ ] Anonymously” against Defendants Elgas, Randall, and
El Paso County Board of Commissioners (the “County”).4 (Id. at ¶¶ 61–71.)
• 	Claim 3: Violation of the Fifth and Fourteenth Amendment’s “[r]ight to travel” against
Defendants Carlos and Daly. (Id. at ¶¶ 72–79.)
• 	Claim 4: Violation of the Fourteenth Amendment’s Equal Protection Clause against
Defendants Carlos and Daly. (Id. at ¶¶ 80–87.)
• 	Claim 5: Illegal search under the Fourth Amendment against Defendants Elgas, Randall,
and the County. (Id. at ¶¶ 88–94.)
• 	Claim 6: Violation of the Fourteenth Amendment’s Equal Protection Clause against
Defendant Elgas. (Id. at ¶¶ 95–102.)
• 	Claim 7: Violation of the First Amendment’s “[r]ight not to speak” against Defendants
Elgas, Randall, and the County. (Id. at ¶¶ 103–08.)
4 This claim also references the Fifth and Fourteenth Amendments as well as “due process.”
(Doc. No. 22 at 16–18.)But the claim seems grounded in the First Amendment, and the Court
cannot make out what application the Fifth and Fourteenth Amendment purportedly have on this
claim.
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Defendants have moved to dismiss this suit, arguing Plaintiffs fail to state any claims for
relief. (Doc. No. 31.) The individual Defendants also argue they are entitled to qualified
immunity. (Id.)
LEGAL STANDARD
I. 	Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss
a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the
parties might present at trial, but to assess whether the plaintiff's complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003) (quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Plausibility, in the context of a Rule 12(b)(6) motion to dismiss, means
that the plaintiff pleaded facts that allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of
analysis. First, the court identifies “the allegations in the complaint that are not entitled to the
assumption of truth,” i.e., those allegations which are legal conclusions, bare assertions, or
merely conclusory. Id. at 679–81. Second, the court considers the factual allegations “to
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determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a
plausible claim for relief, the claim survives the motion to dismiss. Id. at 679.
That said, the Court need not accept conclusory allegations without supporting factual
averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet
that a court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[a] pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Id. (citation omitted).
II. 	Pro se Plaintiffs
Plaintiffs are proceeding pro se. The court, therefore, “review[s their] pleadings and other
papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”
Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see Haines
v. Kerner, 404 U.S. 519, 520–21 (1972) (holding the allegations of a pro se complaint “to less
stringent standards than formal pleadings drafted by lawyers”). However, pro se litigants’
“conclusory allegations without supporting factual averments are insufficient to state a claim
upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court
may not assume that a plaintiff can prove facts that have not been alleged or that a defendant has
violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v.
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Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113
F.3d 1170, 1173–74 (10th Cir. 1997) (stating that a court may not “supply additional factual
allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156,
1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the
absence of any discussion of those issues”). Plaintiffs’ pro se status does not entitle them to an
application of different rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
ANALYSIS
“Qualified immunity balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). A court should resolve questions of qualified immunity at
the earliest possible stage of litigation. Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987).
Under the doctrine of qualified immunity, “government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as 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). Thus, when a defendant raises the
defense of qualified immunity, a “plaintiff carries a two-part burden to show: (1) that the
defendant’s actions violated a federal constitutional or statutory right, and, if so, (2) that the right
was clearly established at the time of the defendant’s unlawful conduct.” T.D. v. Patton, 868
F.3d 1209, 1220 (10th Cir. 2017) (internal quotation marks omitted).
“A clearly established right is one that is sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7,
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11 (2015) (per curiam) (quotations omitted). “The law is clearly established when a Supreme
Court or Tenth Circuit precedent is on point or the alleged right is clearly established from case
law in other circuits.” Lowe v. Raemisch, 864 F.3d 1205, 1208 (10th Cir. 2017). To determine
whether the law is clearly established, the relevant “precedent is considered on point if it
involves materially similar conduct or applies with obvious clarity to the conduct at
issue.” Lowe v. Raemisch, 864 F.3d 1205, 1208 (10th Cir. 2017) (quotations omitted). Thus,
“[g]eneral statements of the law can clearly establish a right for qualified immunity purposes if
they apply with obvious clarity to the specific conduct in question.” Halley v. Huckaby, 902 F.3d
1136, 1149 (10th Cir. 2018) (quotations omitted).
Here, the Court will assess each claim to determine whether the complaint plausibly
alleges a constitutional violation. If it does, the Court will then consider whether the
constitutional right at issue was clearly established at the time of the alleged conduct.
I. 	Claim 1: Retaliation (First Amendment Claim Based on Blocked Access)
A. Plausibility
In Claim 1, Plaintiffs allege First Amendment retaliation against Defendants Elgas,
Carlos, and Daly for their roles in blocking Plaintiffs from the CSPD liaison office during
Plaintiffs’ attempt to serve a lawsuit on August 25, 2022. (Doc. No. 22 at 14–16.)
“Congress shall make no law ... abridging the freedom of speech.” U.S. CONST. amend.
I. “By incorporation through the Fourteenth Amendment, this prohibition applies to states and
their political subdivisions.” Aptive Env’t, LLC v. Town of Castle Rock, 959 F.3d 961, 979 (10th
Cir. 2020). The First Amendment “applies not only to legislative enactments, but also to less
formal governmental acts” such as city ordinances, policies, and acts intended to cut off
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protected speech. Brewer v. City of Albuquerque, 18 F.4th 1205, 1217 (10th Cir. 2021)
(quoting Evans v. Sandy City, 928 F.3d 1171, 1181 (10th Cir. 2019), amended and superseded
on reh’g, 944 F.3d 847 (10th Cir. 2019)).
It is well-established that “the First Amendment bars retaliation for protected speech.”
Crawford–El v. Britton, 523 U.S. 574, 592 (1998). “To state a claim for First Amendment
retaliation, a plaintiff must allege (1) that [he] was engaged in constitutionally protected activity,
(2) the defendant’s actions caused [him] to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that protected activity, and (3) the defendant’s actions
were substantially motivated as a response to [his] protected conduct.” VDARE Found. v. City of
Colorado Springs, 11 F.4th 1151, 1172 (10th Cir. 2021), cert. denied, 142 S. Ct. 1208 (2022)
(citing McBeth v. Himes, 598 F.3d 708, 717 (10th Cir. 2010)).
Defendants appear to argue that Plaintiffs were not engaged in protected activity during
the events in question. (Doc. No. 31 at 8.) However, the allegations demonstrate that Plaintiffs
were attempting to serve a lawsuit and were criticizing the government’s policy requiring a
logbook sign-in. Because the First Amendment protects both a citizen’s right to petition the
government through litigation and “a significant amount of verbal criticism and challenge”
directed at government officials, their alleged activity was protected. City of Houston v. Hill, 482
U.S. 451, 461–63 (1987); Van Deelen v. Johnson, 497 F.3d 1151, 1156 (10th Cir. 2007) (saying,
“a private citizen exercises a constitutionally protected First Amendment right anytime he or she
petitions the government for redress”).
Of course, this does not mean that an individual attempting to serve a lawsuit in a
government building, or criticizing a particular policy, can engage in any sort of conduct that
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pleases them and still maintain constitutional protection. The First Amendment does not shield
speech or conduct that materially disrupts governmental operations, violates reasonable and
content-neutral restrictions on access to public facilities, or otherwise exceeds the limits imposed
by the nature of the forum. See Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788,
799–800 (1985) (“Nothing in the Constitution requires the Government freely to grant access to
all who wish to exercise their right to free speech on every type of Government property without
regard to the nature of the property or to the disruption that might be caused by the speaker’s
activities.”). But at this stage the Court must accept Plaintiffs’ allegations as true, and the mere
act of cursing, on its own, does not automatically render Plaintiffs’ speech unprotected. See
Terminiello v. Chicago, 337 U.S. 1, 4, (1949) (noting that “[s]peech is often provocative and
challenging” but nevertheless protected). Accordingly, the Court must move on to the next step
of a First Amendment retaliation analysis.
“[A] plaintiff pursuing a First Amendment retaliation claim must show, among other
things, that the government took an ‘adverse action’ in response to his speech[.]” Houston Cmty.
Coll. Sys. v. Wilson, 595 U.S. 468, 477 (2022) (quoting Nieves v. Bartlett, 587 U.S. 391, 399
(2019)). “Some adverse actions may be easy to identify—an arrest, a prosecution, or a dismissal
from governmental employment.” Id. (collecting cases). But, “deprivations less harsh” may also
constitute adverse action. Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 (1990). “To
distinguish material from immaterial adverse actions ... [the Court] ask[s] whether the
government’s challenged conduct would ‘chill a person of ordinary firmness’ in the plaintiff ’s
position from engaging in ‘future First Amendment activity.’” Wilson, 595 U.S. at 477 (quoting
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Nieves, 587 U.S. at 397); see VDARE Found., 11 F.4th at 1172. This inquiry is objective, not
subjective. Eaton v. Meneley, 379 F.3d 949, 954 (10th Cir. 2004).
Here, Plaintiffs allege that after they questioned the logbook requirement, Defendants
Carlos and Daly physically blocked their access to the CSPD liaison office and repeatedly
requested that Plaintiffs leave the area. Plaintiffs also allege Defendant Elgas escalated the
encounter by summoning seven additional security personnel. Viewed objectively, and though a
relatively close call, Plaintiffs’ allegations plausibly describe conduct that could chill a person of
ordinary firmness from continuing to engage in protected speech. Even in the absence of threats,
arrest, or physical force, a reasonable person could find such a response intimidating. The
physical obstruction of movement within a government building, coupled with escalation in the
display of official authority, could deter an ordinary person from continuing to question
government policies in that setting. See Irizarry v. Yehia, 38 F.4th 1282, 1292 (10th Cir. 2022)
(“Physical and verbal intimidation can chill speech.”). The ordinary-firmness standard does not
require that the challenged conduct be extreme or punitive; it requires only that it be sufficient,
viewed objectively, to deter protected expression.5 See Bart v. Telford, 677 F.2d 622, 625 (7th
Cir. 1982) (“The effect on freedom of speech may be small, but since there is no justification for
harassing people for exercising their constitutional rights it need not be great in order to be
actionable.”).
5 The Court acknowledges that Plaintiffs eventually served their lawsuit. (See Doc. No. 22 at ¶
32.) But “the objective standard permits a plaintiff who perseveres despite governmental
interference to bring suit[.]” Eaton, 379 F.3d at 954–55. Here, accepting Plaintiff’s allegations as
true, it seems Plaintiffs eventually persevered when the CSPD liaison officer (either intentionally
or by coincidence) met them in the lobby of the building. (Id.)
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Finally, the allegations demonstrate that Defendants Elgas, Carlos, and Daly’s actions
were “substantially motivated” by Plaintiffs’ protected activity. See VDARE Found., 11 F.4th at
1172. Plaintiffs allege the County officials intervened and blocked their access after Plaintiffs
indicated they wished to effect service, and after they questioned the logbook requirement.
According to the allegations, the escalation—from the appearance of two investigators to the
summoning of additional security personnel—occurred contemporaneously with, and in direct
response to, Plaintiffs’ intended service and verbal objection to the policy. See Jarita Mesa
Livestock Grazing Ass’n v. U.S. Forest Serv., 58 F. Supp. 3d 1191, 1236 (D.N.M. 2014) (“In
determining whether an action was substantially motivated by retaliatory animus, one element
which courts have considered is the temporal proximity between a plaintiff's speech and a
defendant’s allegedly retaliatory action.”).
Of course, should this claim proceed beyond the pleading stage, Defendants may present
evidence that Plaintiffs engaged in confrontational, profane, or otherwise threatening conduct,
and that such conduct—rather than Plaintiffs’ questioning of the logbook policy—motivated
Defendants’ response. But at this stage, the Court’s inquiry is limited to whether Plaintiffs have
plausibly alleged that the obstruction was caused by their protected activity, not whether
Defendants can ultimately offer a more persuasive, non-retaliatory explanation for their actions.
Cf. Barnes v. Anderson, 1997 WL 482165, at *4 (S.D.N.Y. Aug. 20, 1997) (finding the plaintiffs
stated a plausible first amendment retaliation claim predicated on the defendant “preventing
Plaintiffs from serving process” and “escorting [the] process server out of the building”).
B. Whether the Right was Clearly Established
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Next, the Court must consider whether Plaintiffs allege sufficient facts to establish that
the constitutional right at issue was clearly established at the time of the challenged conduct. See
T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017). The Court finds they do.
It is well settled that “the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions … for speaking out.” Hartman v. Moore, 547 U.S.
250, 256 (2006); see also Wilkie v. Robbins, 551 U.S. 537, 555 (2007) (“[T]he mention of
retaliation brings with it a tailwind of support from our longstanding recognition that the
Government may not retaliate for exercising First Amendment speech rights.”). Long before the
events alleged here, Supreme Court and circuit precedent made clear that officials may not
leverage their authority to impose adverse consequences on individuals because of protected
expression.
More specifically—and at the appropriate level of factual specificity for this case—it is
clearly established that government officials may not restrict a person’s access to government
property or facilities in retaliation for speech. See Pryor v. Sch. Dist. No. 1, 99 F.4th 1243, 1256
(10th Cir. 2024) (affirming the district court’s grant of a preliminary injunction enjoining, among
other things, a school district’s restrictions on the plaintiff’s access to district facilities in
response to certain of his statements and Facebook posts); Sodaro v. City & Cnty. of Denver, 629
F. Supp. 3d 1064, 1076–77 (D. Colo. 2022) (declining to dismiss a First Amendment retaliation
claim based on the plaintiff’s alleged arrest and removal from government property for heckling
the mayor during his inauguration speech). As the Eighth Circuit recently succinctly
summarized, “a government official may not ban someone from government property in
retaliation for speech.” McNeely v. Hometown Bank, 155 F.4th 1000, 1008 (8th Cir. 2025) (citing
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Rinne v. Camden Cnty., 65 F.4th 378, 385 (8th Cir. 2023)); see also Vollmecke v. Indep. Sch.
Dist., 753 F. Supp. 3d 792, 810 (W.D. Mo. 2024) (finding that the defendant was not entitled to
qualified immunity on a First Amendment retaliation claim predicated on plaintiff’s year-long
ban from school district property based on the plaintiff’s speech at a school board meetings).
Even though Plaintiffs do not allege they were “ban[ned]” from the Russell Building for
challenging the logbook policy, their alleged confinement to the lobby and physical blockage
from accessing interior offices—imposed immediately after they sought to effect service and
questioned the policy—is sufficiently analogous to prior cases to survive Defendants’ qualified
immunity challenge. See Reavis estate of Coale v. Frost, 967 F.3d 978, 992 (10th Cir. 2020)
(“[O]ur analysis is not a scavenger hunt for prior cases with precisely the same facts, and a prior
case need not be exactly parallel to the conduct here for the officials to have been on notice of
clearly established law.”).
II. 	Claim 2 & 7: Violation of Right to Engage in Protected Speech Anonymously and
Right not to Speak (First Amendment Claims Based on Self-Identification and Sign-
In Requirements)
Next, Plaintiffs claim their right to engage in protected speech anonymously and “right
not to speak” were violated. Plaintiffs assert these claims against the County for its logbook
policy and Defendants Elgas and Randall for enforcing said policy. They also bring the claim
against Defendant Randall for forcing Plaintiff to show his ID during his November 15, 2023,
trip to the Russell Building.
The right to engage in protected speech anonymously is an important and well-
recognized First Amendment right. See, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334
(1995) (addressing the freedom to publish anonymously); Watchtower Bible & Tract Soc'y of
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New York, Inc. v. Vill. of Stratton, 536 U.S. 150 (2002) (addressing the right to canvass
anonymously). However, the right to anonymity is not unlimited. Indeed, and as relevant here,
the government is allowed to restrict purely private speech, occurring on government property,
including requiring identification. Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S.
672, 678 (1992) (“[I]t is ... well settled that the government need not permit all forms of speech
on property that it owns and controls.”). Courts analyzing these restrictions take a “forum based
approach,” under which the Court first classifies the government property at issue and then
assesses whether the challenged restriction is permissible under the level of scrutiny applicable
to that forum Id. (internal quotations omitted) (citing Cornelius v. NAACP Legal Defense & Ed.
Fund, Inc., 473 U.S. 788, 800 (1985)). The less a forum has historically been open to private
expressive activity, the greater the government’s latitude to regulate speech within that forum. Id.
Here, the parties do not engage in any forum-based discussion or analysis. That omission
is immaterial, however, because the Russell Building—a government office building—is easily
identifiable as a nonpublic forum, where the government’s authority to regulate speech is at its
greatest. See Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) (noting “the nonpublic
forum ... consists of ‘[p]ublic property which is not by tradition or designation a forum for public
communication.’” (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46
(1983)). Indeed, “[c]ourts have consistently found public property to be a nonpublic forum where
... the property’s purpose is to conduct or facilitate government business, and not to provide a
forum for public expression.” Freedom Found. v. Washington Dep’t of Ecology, 426 F. Supp. 3d
793, 801 (W.D. Wash. 2019), aff’d, 840 F. App’x 903 (9th Cir. 2020); see also Cornelius, 473
U.S. 788, 805 (1985) (“The federal workplace, like any place of employment, exists to
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accomplish the business of the employer. The Government, as an employer, must have wide
discretion and control over the management of its personnel and internal affairs” (cleaned up)
(quoting Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (POWELL, J., concurring in part))); Lavite
v. Dunstan, 932 F.3d 1020 (7th Cir. 2019) (concluding a county office building was a nonpublic
forum even though the lobby was open to the public); United States v. Gilbert, 920 F.2d 878
(11th Cir. 1991) (concluding the portico to a federal office building was a nonpublic forum).
As a nonpublic forum, access to the Russell Building “can be restricted as long as the
restrictions are” viewpoint neutral and reasonable. Cornelius, 473 U.S. at 800. Accepting all of
Plaintiffs’ allegations as true, the logbook requirement satisfies this rule. First, Plaintiffs do not
explicitly or implicitly allege that they were required to sign the logbook because of their
particular viewpoint or that they were otherwise targeted for extra security protocols.6 Indeed,
Plaintiffs do not even allege that Defendant Elgas or Randall knew why Plaintiffs were in the
Russell Building when they directed them to sign the logbook. (Doc. No. 22 at ¶¶ 14–17, 47; see
id. at ¶ 24 (alleging Plaintiff Sgaggio said he was serving a lawsuit after he had signed the
logbook).) Moreover, the sign-in requirement is a reasonable security protocol in a government
office building where security measures help avoid disruption and ensure public safety. Cf.
Sefick v. Gardner, 164 F.3d 370 (7th Cir. 1998) (finding no First Amendment violation based on
the removal of unattended and unauthorized sculpture from a federal courthouse lobby in part on
security concerns).
6 At most, Plaintiffs say that two other people were allowed to access the building while
Plaintiffs were in the lobby, and those individuals were not required to go through the metal
detectors or sign the logbook. (Id. at ¶ 42.) But Plaintiffs do not allege that these individuals
were visitors to the building like Plaintiffs were.
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Additionally, the allegation that Defendant Randall required Plaintiff Sgaggio to show his
ID during his November 15, 2023, visit to the Russell Building, also does not plausibly support a
First Amendment claim. The allegation is a single sentence and the Court finds it far too
underdeveloped to survive a motion to dismiss.7 See Iqbal, 556 U.S. at 678 (“To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” (quoting Twombly, 550 U.S. at 570)).
III. 	Claims 3, 4 and 6: Violation of the Right to Travel and Equal Protection (Fifth and
Fourteenth Amendment Claims Based on Blocked Access)
In Claims 3 and 4, Plaintiffs allege Defendants Carlos and Daly blocked their access to
the CSPD liaison’s office, while allowing another person to enter the office, which violated their
Fifth and Fourteenth Amendment rights to travel and equal protection. (Doc. No. 22 at ¶ 72–85.)
These claims fail. First, “the established right to travel within a state protects movement
between places and has no bearing on access to a particular place.” Chafin v. Stasi, 2015 WL
1525542, at *11 (D. Colo. Mar. 31, 2015) (emphasis in original) (citing Williams v. Town of
Greenburgh, 535 F.3d 71, 75 (2d Cir. 2008)). Accordingly, Plaintiffs’ allegation that they were
restricted from accessing the CSPD’s liaison office does not implicate the constitutional right to
travel—particularly where Plaintiffs themselves allege they were subsequently permitted to
access the liaison office or a comparable office within the Russell Building on different
7 Even assuming the claim was adequately developed and assuming Plaintiffs are alleging that
Plaintiff Sgaggio was singled out when he was required to show his ID, it is not clear that such
an allegation would support a First Amendment violation. See Ateba v. Leavitt, 133 F.4th 114,
123 (D.C. Cir. 2025) (“‘Control over access to a nonpublic forum can be based’ even ‘on subject
matter and speaker identity so long as’ it meets the requirements of reasonableness and
viewpoint neutrality.” (quoting Cornelius, 473 U.S. at 806)), cert. denied, 2025 WL 3260204
(U.S. Nov. 24, 2025).
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occasions. (See Doc. No. 22 at ¶ 47 (saying Plaintiffs served a lawsuit at the Russell Building on
May 2, 2023)); see Royer v. City of Oak Grove, 374 F.3d 685 (8th Cir. 2004) (finding no
property interest in unlimited access to a public building, and affirming grant of summary
judgment on plaintiff’s due process claim challenging a limited ban on his presence in a city
building); Williams, 535 F.3d at 76 (holding that a “municipality’s decision to limit access to its
facilities does not interfere with the right to free movement,” and concluding the plaintiffs’
“expulsion and temporary exclusion from the [public facility] did not deprive him of a liberty
interest protected by the Due Process Clause of the Fourteenth Amendment”).
Plaintiffs’ related equal protection claim also fails. To state a plausible equal protection
claim Plaintiffs must allege they were “intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000). Here, Plaintiffs merely allege, without any supporting factual
detail, that “at least one [other person was] given access to the police liaison’s office” while they
were standing in the lobby. (Doc. No. 22 at ¶ 42.) This falls far short of plausibly alleging
Plaintiffs were treated differently than a “similarly situated” individual. Indeed, Plaintiffs do not
even indicate whether this unknown individual was a visitor in the building.
Moreover, Plaintiffs’ Claim 6 equal protection claim—predicated on the allegation that
Defendant Elgas did not allow Plaintiffs, but did allow others, into the Russell Building on
August 30, 2022—also fails. (Doc. No. 22 at ¶¶ 95–102.) Plaintiffs fail to plausibly allege that
the individuals who were allowed to enter the building on August 30 th , were similarly situated to
Plaintiffs. Indeed, the allegations never describe these individuals. There is also no suggestion
that those who were allowed to enter had—like Plaintiffs—recently been involved in a
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disturbance in the lobby which prompted a security response. Thus, Plaintiffs have not plausibly
alleged an equal protection claim in connection with this allegation.
IV. 	Claim 5: Illegal Search (Fourth Amendment Claim Based on Self-Identification and
Sign-In Requirements)
Plaintiffs next allege that Defendant Elgas, Randall, and the County violated their Fourth
Amendment rights because, according to Plaintiffs, being forced to sign the logbook and present
identification constituted an illegal search. (Doc. No. 22 at ¶¶ 88–94.)
As a threshold matter, requiring self-identification for visitor entry into a public building
may not even implicate the Fourth Amendment. Cf. I.N.S. v. Delgado, 466 U.S. 210, 216 (1984)
(“[A] request for identification by the police does not, by itself, constitute a Fourth Amendment
seizure.”). But even assuming the self-identification and logbook requirements were searches,
they did not violate the Fourth Amendment.
The general rule that warrantless searches violate the Fourth Amendment is subject to
certain exceptions. City of Los Angeles v. Patel, 576 U.S. 409, 419 (2015). One such exception,
is known as the “administrative search” or “special needs” exception. “Search regimes where no
warrant is ever required may be reasonable where ‘special needs ... make the warrant and
probable-cause requirement impracticable,’ and where the ‘primary purpose’ of the searches is
‘[d]istinguishable from the general interest in crime control.’” Id. (quoting Skinner v. Ry. Lab.
Execs. Ass'n, 489 U.S. 602, 619, (1989); Indianapolis v. Edmond, 531 U.S. 32, 44 (2000)).
Courts have consistently held that security screening at the entrance to a government
building constitutes an “administrative” or “special needs” search. See, e.g., Dickerson v.
Napolitano, 604 F.3d 732, 750 (2d Cir. 2010). In that context, the policy passes constitutional
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muster so long as the self-identification requirement is “reasonable.” See id. at 750–51; Verdun
v. City of San Diego, 51 F.4th 1033, 1043 (9th Cir. 2022). The Court concludes that it is.
The self-identification and sign-in requirements alleged here impose only a minimal
intrusion on individual privacy. Visitors are not subjected to a physical search or compelled
disclosure of intimate information. Instead, they are asked to provide basic identifying
information in exchange for access to government property. This minimal intrusion is
significantly outweighed by the government’s interest in ensuring visitor accountability,
protecting employees and sensitive operations, and maintaining order in facilities devoted to
official government business. Accordingly, the balance of interests weighs decisively in favor of
the government, rendering the self-identification requirement a reasonable condition of entry
under the Fourth Amendment. See Dickerson, 604 F.3d at 750–51 (finding a security screening
program at the entrance was a federal building did not violate the Fourt Amendment because the
government’s security interest was “substantial,” and the search was “minimally intrusive,”
rendering the plaintiff’s “privacy interest .... reasonably overcome”).
CONCLUSION
For the foregoing reasons the Court respectfully RECOMMENDS that Defendants’
Motion to Dismiss Plaintiffs’ Amended Complaint and Jury Demant Pursuant to FED. R. C IV. P.
12(b)(6) (Doc. No. 31) be DENIED as to Claim 1 and GRANTED in all other respects.
The Clerk of Court is directed to mail a copy of this Recommendation to Plaintiff
Freeman:
Jerome Freeman
1850 North Academy Boulevard
Colorado Springs, CO 80909
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ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court or for appellate
review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
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the magistrate judge’s ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 23 day of February, 2026.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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