Majersky v. Downtown Denver Expeditionary School et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 25-cv-01664-SKC-KAS
GREGORY MAJERSKY,
Plaintiff,
v.
DOWNTOWN DENVER EXPEDITIONARY SCHOOL, and
BRENT WESTROP,
Defendants.
______________________________________________________________________________
ORDER RE: MOTION TO DISMISS (DKT. 22)
______________________________________________________________________________
This case arises from a ban Defendants imposed on Plaintiff during the 2024–
25 school year. Plaintiff Gregory Majersky is the father of E.S., who attended
Defendant Downtown Denver Expeditionary School (“DDES”), where Defendant
Brent Westrop served as principal.1 Dkt. 6, p. 4. In or around September 2024,
Plaintiff emailed Defendant Westrop regarding DDES’s operations and activities. Id.
at p. 4. In response, Defendants DDES and Westrop issued a formal notice banning
Plaintiff from all school premises and from attending any school-sponsored activities,
including those held in public venues. Id.
________________________
1 In other court filings, Defendant Westrop is identified as the Executive Director or
Director of DDES. See Defs.’ Ex. B [#22-2] at 2; Defs. Ex. D [#22-4] at 2.
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Plaintiff alleges that Defendants imposed the ban in retaliation for his exercise
of his First Amendment rights, even though he communicated only by email and did
not make a true threat. Id. Plaintiff further alleges that the ban caused significant
harm, including emotional distress and the loss of irreplaceable memories with his
daughter during her fifth-grade year. Id.
Plaintiff filed this action under 42 U.S.C. § 1983, alleging the ban violated his
First Amendment rights. Id. at pp. 4-5. Defendants move to dismiss the Complaint in
its entirety. Dkt. 22. They seek dismissal on grounds that “Plaintiff has filed at least
eight separate state court lawsuits from this one incident,” and “[t]hree state courts
have already dismissed Plaintiff’s claims, finding them barred by res judicata, legally
insufficient, or both.” Id. at 5.2 The Motion is fully briefed, and no hearing is
necessary. Having considered the Complaint, the Motion to Dismiss, the related
filings, and the controlling law, the Court GRANTS Defendants’ Motion in part and
DENIES it in part.
I. 	Plaintiff’s State Court Actions
Plaintiff previously filed several lawsuits in state court against Defendants.
Defendants rely on those prior lawsuits in support of their request for dismissal.
Importantly, however, those prior lawsuits concern Plaintiff’s speech and Defendants’
alleged actions in 2022 and 2023, while Plaintiff’s present lawsuit concerns Plaintiff’s
________________________
2 Page numbers refer to the numbering stamped at the top of each page by the Court’s
CM/ECF docketing system, not to the document’s original numbering.
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protected speech in September 2024, and Defendants’ response to that speech, which
barred Plaintiff’s attendance at school-sponsored activities during the 2024-25 school
year.
A. 	Majersky v. DDES, No. 2023CV191, District Court, City & County of
Denver (First Action)
Plaintiff filed a lawsuit against DDES and Westrop alleging that, on March 20,
2023, Westrop, “[as] the Director of Downtown Denver Expeditionary School, expelled
my daughter from the school after care program in retaliation for the ongoing email
dispute over my daughter’s assault and the school cover up[.]” Dkt. 22-4, p. 2. Plaintiff
alleged DDES violated his First Amendment rights by retaliating against his
daughter and sought $2 million in punitive damages. Id.
Prior to trial, the court dismissed Westrop from the suit. Id. at 2.3 At trial,
DDES presented evidence regarding not only DDES’s original ban against Plaintiff’s
daughter during the 2022-23 school year but also the later ban prohibiting Plaintiff
from DDES property and activities for the 2023 to 2024 school year. Id. at p. 4
(emphasis added). After trial, the court issued its findings of fact, conclusions of law,
and judgment on November 26, 2024. Id. The court explained that, because it must
construe pro se pleadings liberally, it treated the issue of Plaintiff’s ban from DDES
property and activities as tried by consent, even though Plaintiff did not expressly
________________________
3 Defendants’ Exhibit D does not indicate whether Westrop was sued in his individual
capacity or his official capacity or both. Given the summary reference to Westrop’s
dismissal, the Court presumes that Westrop was sued in his individual capacity.
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raise that issue in the amended complaint, case management order, or by motion
before or during trial. Id. at p. 5. The court also noted that both parties addressed
Plaintiff’s ban in their proposed findings of fact and conclusions of law. Id. at p. 5 n.3.
Importantly, the court emphasized that its opinion “makes no determinations with
respect to the constitutionality of any subsequent actions or bans against Mr.
Majersky by DDES, such as with respect to the 2024 to 2025 school year as that is
outside the scope of this lawsuit.” Id. at 27-28 (emphasis added).
The 	court 	ultimately 	concluded 	that 	DDES 	violated 	Plaintiff’s 	First
Amendment rights when it imposed the bans against him and his daughter. Id. at p.
23-24. The court awarded Plaintiff $1 in nominal damages and denied his requests
for compensatory and punitive damages, and injunctive relief. Id. at pp. 25-27.
B. 	Majersky v. DDES, No. 2024CV390, District Court, City & County of
Denver (Second Action)
Plaintiff later filed a second action challenging DDES’s bans against both him
and his daughter for the 2023-24 school year. Dkt. 22-1. In that case, Plaintiff
asserted a First Amendment retaliation claim and a Fourteenth Amendment due
process claim arising from DDES’s decision to ban him from campus and to bar his
daughter from certain after-school activities. Id. at pp. 2, 4. DDES moved to dismiss
the action on several grounds, including res judicata. Id. at pp. 2-3.
In granting DDES’s motion, the state court explained that “[t]he doctrine of
claim preclusion, commonly referred to as res judicata, operates as a bar to a second
proceeding on a claim that was fully litigated in a prior proceeding when there is a
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(1) final judgment; (2) identity of the subject matter; (3) claims for relief; and (4)
parties to the action.” Id. at p. 3 (citing Argus Real Est., Inc. v. E-470 Pub. Highway
Auth., 109 P. 3d 604 (Colo. 2005)). The court found that the first, second, and fourth
elements were satisfied on the face of the complaint. Plaintiff identified the First
Action as having resulted in a final judgment, acknowledged that the second ban
appeared as an exhibit in that proceeding, and conceded that both actions involved
identical parties. Id. at p. 4.
As to the third element, the court noted that the First Action included a First
Amendment retaliation claim, while the amended complaint in the Second Action
asserted both First and Fourteenth Amendment claims. Id. In determining whether
the claims were identical, the court explained that the “same claim or cause of action”
requirement is defined by the injury for which relief is sought, not by the legal theory
on which the claimant relies. Id.
Plaintiff argued that the First Action addressed only DDES’s initial ban
against his daughter for the 2022-23 school year and not the ban against him for the
2023-24 school year. Id. The court rejected that argument, explaining that the trial
court in the First Action conducted a detailed analysis of both bans and entered
judgment on each. Id. The court therefore concluded that all four elements of claim
preclusion were satisfied and granted DDES’s motion to dismiss. Id.
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C. 	Majersky v. Westrop, No. 2024CV782, District Court, City & County of
Denver (Third Action)
Plaintiff also filed a lawsuit against Defendant Westrop in response to a
criminal complaint Westrop filed accusing Plaintiff of disturbing the peace. Dkt. 22-
2. Plaintiff “was subsequently detained and ultimately pleaded guilty.” Id. at p. 1. In
the civil action, Plaintiff asserted a First Amendment claim under 42 U.S.C. § 1983
and a state law claim under Colo. Rev. Stat. § 18-8-708. Id. at p. 3. The court noted
Plaintiff’s prior civil actions against DDES and construed the complaint to allege
“that the defendant’s criminal complaint against the plaintiff was motivated by, or
was in response to, the civil action” between Plaintiff and DDES. Id.
The court granted Westrop’s motion to dismiss. It held that Plaintiff failed to
plausibly allege that he belonged to the universe of individuals protected by the state
statute. Id. at p. 3. The court also dismissed the § 1983 claim because Plaintiff failed
to plausibly allege that Westrop filed the disorderly conduct complaint in his role as
DDES’s Executive Director rather than “in his capacity as a private citizen.” Id. at p.
3-4. Finally, the court found the complaint “devoid of any factual allegations
establishing that the plaintiff was deprived of any protected constitutional right.” Id.
at p. 4.
D. 	Majersky v. Westrop, No. 2024CV952, District Court, City & County of
Denver (Fourth Action)
Plaintiff later filed a second civil action arising from Defendant Westrop’s
criminal complaint. Dkt. 22-3. In that action, Plaintiff asserted four claims: two state
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law claims for witness retaliation, a state law claim for witness interference, and a
First Amendment claim under 42 U.S.C. § 1983 for retaliation. Id. at p. 2.
The court granted Westrop’s motion to dismiss and held that res judicata
barred Plaintiff’s claims. Id. at p. 3-4. The court explained that the Third Action
involved the same parties, the same claims or claims Plaintiff could have raised, arose
from the same subject matter and facts that were presented to the court in the Third
Action, and resulted in a final judgment on the merits. Id.4
II. Legal Standards
A. 	Federal Rule of Civil Procedure 12(b)(1)
Federal courts, as courts of limited jurisdiction, must have a statutory basis
for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994)
(citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)). Under Federal Rule
of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject
matter jurisdiction. The determination of a court’s subject matter jurisdiction is a
question of law. Madsen v. United States ex rel. U.S. Army, Corps of Eng’rs, 841 F.2d
1011, 1012 (10th Cir. 1987). “A court lacking jurisdiction cannot render judgment but
must dismiss the cause at any stage of the proceedings in which it becomes apparent
that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th
Cir. 1974).
________________________
4 	The 	Third 	and 	Fourth 	Actions, 	Majersky 	v. 	Westrop, 	Nos. 	2024CV782 	and
2024CV952, have no bearing on this Court’s res judicata analysis because they do not
arise from the same events which give rise to Plaintiff’s claim in this action.
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A motion to dismiss for lack of subject matter jurisdiction may take two forms.
See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). It may facially attack
a complaint’s allegations, or it may challenge the facts upon which subject matter
jurisdiction depends. Id. at 1002-03. “The burden of establishing subject-matter
jurisdiction is on the party asserting jurisdiction.” Montoya v. Chao, 296 F.3d 952,
955 (10th Cir. 2002) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994)). “The district court is given discretion in determining the procedure to
employ in considering a motion to dismiss for lack of jurisdiction[.]” Fed. Deposit Ins.
Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992) (internal quotation
marks and citation omitted).
B. 	Federal Rule of Civil Procedure 12(b)(6)
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may
dismiss a complaint for “failure to state a claim upon which relief can be granted.”
FED . R. CIV. P. 	12(b)(6). In deciding a motion under Rule 12(b)(6), the court must
“accept as true all well-pleaded factual allegations . . . and view these allegations in
the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124-
25 (10th Cir. 2010) (internal citations omitted). However, the court must liberally
construe the filings of a pro se litigant, such as Mr. Majersky, “so as to do justice,”
while restraining from constructing a legal theory on a pro se litigant’s behalf. FED .
R. CIV. P. 8(e); Haines v. Kerner, 404 U.S. 519, 521 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). But the court is not “bound to accept as true a legal
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conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quotations omitted). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “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.” Id. at 678 (internal quotation marks omitted).
III. 	Analysis
Defendants move to dismiss under the Rooker-Feldman doctrine, res judicata,
issue preclusion, the Colorado River abstention doctrine, lack of standing, and failure
to state a claim upon which relief can be granted. Dkt. 22.
At the outset, the Court notes an important distinction—one entirely and
inexplicably overlooked by defense counsel—between Plaintiff’s allegations and the
First and Second Actions in state court. The First and Second Actions in state court
concerned the ban imposed on Plaintiff for the 2023-24 school year. See Defs.’ Ex. A
[#22-1]; Ex. D [#22-4] at 27. But Plaintiff’s Amended Complaint expressly and
unambiguously complains of Defendants’ decision to ban him from the DDES campus
and school-sponsored activities for the “2024-2025 school year,” because of Plaintiff’s
protected speech “[i]n or around September 2024.” Am. Compl. [#6] ¶¶ 1, 4; see also
Compl. [#1] at 4. While Plaintiff unambiguously complains of actions that impacted
him during the 2024-25 school year, he references a “formal notice banning [him]
from entering all school premises and prohibiting his attendance at all school-
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sponsored activities[.]” Id. ¶ 6. He does not provide any further details about that
notice, nor does he attach it to the Amended Complaint [#6]. But his original
Complaint [#1], which also complains of retaliation “in September 2024,” includes the
formal notice as an exhibit. See Pl.’s Ex. A, Sept. 14, 2023 DPS Letter [#1-1]. That
notice is dated September 14, 2023, addresses Plaintiff’s conduct during the 2022-23
school year, and bans Plaintiff from the school campus and school activities for the
2023-24 school year. Id. at 1-2. Because Plaintiff appears to rely on the September
14, 2023 notice of a 2023-24 school year ban, but his Amended Complaint and original
Complaint identify the 2024 retaliation and a 2024-25 school year ban, the Court
liberally construes Plaintiff’s allegations to include both bans.
A. 	Defendant Westrop
The Complaint does not specify whether Plaintiff sues Defendant Westrop in
his individual capacity, official capacity, or both. Dkt. 6. When a complaint fails to
identify the capacity in which a government official is sued, courts examine the
substance of the pleadings and the course of the proceedings to determine whether
the suit seeks individual or official liability. Pride v. Does, 997 F.2d 712, 715 (10th
Cir. 1993).
Under 	this 	“course 	of 	proceedings” 	test, 	courts 	consider 	several 	factors,
including: (1) whether the plaintiff seeks punitive damages, which are unavailable in
official-capacity suits; (2) whether the defendants assert qualified immunity; (3)
whether the complaint pleads claims against the individual defendants separately
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from claims against their employing agencies; and (4) whether the case remains in
its early stages, such that amendment of the complaint may still be appropriate.
Norris v. Buena Vista Corr. Complex, No. 12-cv-00924-DME-KMT, 2013 WL 674030,
at *3 (D. Colo. Feb. 25, 2013); see also Washington v. Oklahoma City, No. CIV-20-266-
D, 2021 WL 11745595, at *3 (W.D. Okla. Mar. 17, 2021) (reasoning that claims
asserted against an individual defendant in a prior state court action were official
capacity claims because the claims “were related to his employment” as school district
superintendent).
Plaintiff 	seeks 	compensatory 	and 	punitive 	damages 	only, 	indicating 	an
individual capacity claim, but does not plead a claim against Defendant Westrop
separate from his claim against DDES. Dkt. 6 at pp. 4-5. The case remains at an early
stage, and Defendants have not yet filed an Answer asserting affirmative defenses
such as qualified immunity; however, Defendant Westrop did not raise qualified
immunity in the Motion to Dismiss [#22]. Given this posture, the Court construes the
Complaint as asserting claims against Defendant Westrop in both his individual and
official capacities.
B. 	The Rooker-Feldman Doctrine and Res Judicata
Defendants first argue the Court should dismiss Plaintiff’s claim under the
Rooker-Feldman doctrine and res judicata, or claim preclusion. Dkt. 22 at pp. 9-13.
Because Plaintiff prevailed in the state proceedings and does not seek this Court’s
review of the state-court judgment, the Court concludes that claim preclusion, not
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Rooker-Feldman, governs this action, to the extent that Plaintiff’s claim concerns the
September 14, 2023 notice of the ban for the 2023-24 school year.
The Rooker-Feldman doctrine and res judicata are distinct concepts. The
former bars a losing state-court party from bringing a federal action that seeks review
and rejection of a state-court judgment. Miller v. Deutsche Bank Nat’l Tr. Co. (In re
Miller), 666 F.3d 1255, 1261 (10th Cir. 2012). The latter refers to claim preclusion.
See Allen v. McCurry, 449 U.S. 90, 94 n.5 (1980). Because state law governs the
preclusive effect of state-court judgments in federal court, federal courts must give
those judgments the same preclusive effect they would receive in state court. In re
Miller, 666 F.3d at 1261; Vanover v. Cook, 260 F.3d 1182, 1187 (10th Cir. 2001).
Under Colorado law, claim preclusion bars a party from litigating claims that
a court previously resolved or that the party could have raised in the earlier action.
Argus Real Est., 109 P. 3d at 608. It applies when: (1) a final judgment exists; (2) the
subject matter is identical; (3) the claims for relief are identical; and (4) the parties
are identical or in privity. Id. All four elements are satisfied here regarding Plaintiff’s
claim against Defendants DDES and Westrop, in his official capacity.
First, the state court entered a final judgment. Dkt. 22-4. Second, the subject
matter and claims are identical. Although Plaintiff argues the earlier case addressed
only a 2022-23 school year ban affecting his daughter, see Response [#27] at 3, the
state court expressly addressed the later 2023-24 school year ban imposed against
Plaintiff. Id. at p. 2. A subsequent state court likewise recognized that in the previous
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case, the trial court “completed a detailed, thorough analysis of both the March 2023
and September 2023 bans and entered judgment as to both bans.” Dkt. 22-1, p. 4.
Third, the party-identity requirement is satisfied. Although the state court
dismissed Westrop from the First Action, the claim asserted against him was related
to his employment as “Director of Downtown Denver Expeditionary School.” Dkt. 22-
4, p. 2. Therefore, that claim was against Westrop in his official capacity. See
Washington, 2021 WL 11745595, at *3. Additionally, because Defendant Westrop
served as DDES’s Director, he stands in privity with DDES in his official capacity.
See Gonzales v. Hernandez, 175 F.3d 1202, 1206 (10th Cir. 1999) (explaining
government employees are in privity with their employer in their official capacities,
but not in their individual capacities) (citing 18 CHARLES A LAN WRIGHT, ARTHUR R.
M ILLER & EDWARD H. COOPER, FEDERAL P RACTICE & PROCEDURE § 4458 at 506 & n.8,
508-09 & n.12 (1981 & Supp. 1999) (citing cases) (other citations omitted)); Daniels
v. Leibowitz, No. GJH-16-2645, 2017 WL 1273936, at *7 (D. Md. Feb. 3, 2017) (finding
privity between an organization and its executive director for res judicata purposes).
Finally, the Court must also give preclusive effect to the state court’s determination
in Plaintiff’s second lawsuit that claim preclusion bars further First Amendment
claims based on Defendants’ 2023-24 school year ban against Plaintiff. Dkt. 22-1, pp.
3-4
For these reasons, the Court concludes that claim preclusion bars Plaintiff’s
claim against Defendants DDES and Westrop in his official capacity to the extent it
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concerns the 2023-24 school year ban. Claim preclusion does not bar Plaintiff’s claim
against Defendant Westrop in his individual capacity, however. This is because
Defendant Westrop’s personal interests, which are at stake because of the individual
capacity claim, differ from the interests of DDES and Westrop in his official capacity.
See Washington, 2021 WL 11745595, at *4 (“defendants in their individual capacities
are not in privity with their employers or other defendants in their official capacities”)
(collecting Tenth Circuit and District of Kansas decisions). Additionally, claim
preclusion does not bar Plaintiff’s claim against Defendants DDES and Westrop (in
either capacity) to the extent it concerns a 2024-25 school year ban.
C. 	Issue Preclusion
Defendants next seek dismissal based on issue preclusion, which is also
referred to as collateral estoppel. Dkt. 22, pp. 12-13. See Allen, 449 U.S. at 94 n.5.
Unlike claim preclusion, issue preclusion bars parties from relitigating discrete
issues rather than entire causes of action. Foster v. Plock, 394 P. 3d 1119, 1123 (Colo.
2017). Once a court finally resolves an issue in one proceeding, the doctrine prevents
the parties from raising that same issue in a later proceeding, even if the claims differ.
Id. Issue preclusion applies when: (1) the prior proceeding resulted in a final
judgment on the merits; (2) the current proceeding raises the same issue actually
adjudicated in the prior proceeding; (3) the party against whom preclusion is asserted
had a full and fair opportunity to litigate the issue; and (4) that party participated in
the prior proceeding or acted in privity with a party who did. Id. The fourth element
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requires “identity or privity between parties to the actions.” Id. at 1126 (quoting Cruz
v. Benine, 984 P. 2d 1173, 1176 (Colo. 1999)).
That requirement is not satisfied here. Defendant Westrop, in his individual
capacity, was not an individual-capacity defendant in the First Action regarding the
2023-24 school year ban. Government employees stand in privity with their employer
when sued in their official capacities, but not when sued in their individual capacities.
Gonzales, 175 F.3d at 1206. Additionally, neither the First Action nor the Second
Action concerned the 2024-25 school year ban. Accordingly, Defendant Westrop may
not invoke issue preclusion as a defense in his individual capacity with respect to the
2023-24 school year ban. And neither DDES nor Defendant Westrop (individual or
official capacity) may invoke issue preclusion as a defense with respect to the 2024-
25 school year ban.
D. 	Colorado River Doctrine
Defendants next seek dismissal under the Colorado River abstention doctrine.
Dkt. 22, pp. 13-14. The doctrine permits federal courts to “dismiss or stay a federal
action in deference to pending parallel state court proceedings” when the federal court
would otherwise exercise concurrent jurisdiction with the state court. Tetra Tech Inc.
v. Town of Lyons, 641 F. Supp. 	3d 1042, 1056 (D. Colo. 2022) (quoting Colo. River
Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)).
Defendants identify four lawsuits that Plaintiff filed in state court, though only
two relate to the school ban at issue. Regardless, the materials submitted with the
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Motion to Dismiss show that the state courts have resolved each of those cases;
Defendants present nothing to indicate that appeals are pending. Because no parallel
state proceeding remains pending, the Colorado River abstention doctrine does not
apply.
E. 	Standing & Mootness
Defendants challenge Plaintiff’s standing to bring this lawsuit, arguing that
“[m]oney damages for past injuries do not create standing when the underlying
conduct has ceased.” Dkt. 22, p. 14. Defendants raise a similar argument as to
mootness, asserting that Plaintiff’s claim is moot because the school year during
which the ban applied has ended. Id. at pp. 14-15.
These arguments misapprehend the nature of Plaintiff’s claims. Plaintiff seeks
only compensatory and punitive damages. Dkt. 6, p. 5. Standing and mootness
arguments based on the absence of ongoing harm typically arise when a plaintiff
seeks injunctive or declaratory relief, not when a plaintiff seeks damages for past
conduct. The case law Defendant cites confirms this distinction. See Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 109 (1998) (“Past exposure to illegal conduct
does not in itself show a present case or controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse effects.”) (emphasis added and
citation omitted); see also Brown v. Buhman, 822 F.3d 1151, 1169 (10th Cir. 2016)
(“Voluntary cessation cannot moot an action seeking damages because damages
compensate a party for past conduct, not ongoing or future conduct.”).
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Because Plaintiff seeks only damages for past conduct, Defendants’ standing
and mootness arguments are without merit. The Court therefore denies Defendants’
request for dismissal on these grounds.
F. 	Failure to State a Claim
Concerningly, 	Defendants’ 	failure-to-state-a-claim 	arguments 	rest 	on
fundamental misunderstandings of the law. Defendants argue that Plaintiff fails to
plausibly allege a First Amendment retaliation claim. 	Dkt. 22, pp. 	15-17. To state
such 	a 	claim, 	a 	plaintiff 	must 	allege 	“(1) 	that 	the 	plaintiff 	was 	engaged 	in
constitutionally 	protected 	activity; 	(2) 	that 	the 	defendant’s 	actions 	caused 	the
plaintiff to suffer an injury that would chill a person of ordinary firmness from
continuing to engage in that activity; and (3) that the defendant’s adverse action was
substantially motivated as a response to the plaintiff’s exercise of constitutionally
protected conduct.” Pryor v. Sch. Dist. No. 1, 99 F.4th 1243, 1250 n.2 (10th Cir. 2024).
Defendants contend that Plaintiff’s emails do not constitute protected speech
because they included personal attacks on administrators. Dkt. 22, p. 15. A state
court 	has 	already 	determined 	the 	emails 	qualify 	as 	protected 	speech, 	which
undermines Defendants’ argument.5 In any event, the emails themselves are not
before the Court or attached to the Amended Complaint [#6]; rather, on a motion to
________________________
5 For reasons the Court cannot comprehend, on two occasions Defendants rely on a
decision by Denver District Judge Martin F. Egelhoff; however, that decision in
Denver District Case No. 24cv782 did not concern any of the school year bans and
provides no support for their argument. See [#22-2].
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dismiss, the Court considers the well-pleaded allegations. Plaintiff alleges that his
emails addressed “the operations and activities of DDES” and that Defendant
Westrop 	responded 	by 	banning 	him 	from 	“entering 	all 	school 	premises 	and
prohibit[ing] his attendance at all school-sponsored activities” for the 2024-25 school
year. Dkt. 6, p. 4. These allegations plausibly state a retaliation claim.
Defendants also argue that Westrop imposed the ban as DDES’s Executive
Director rather than in his individual capacity. Dkt. 22, p. 17. That argument fails.
Plaintiff seeks damages from Defendant Westrop for actions taken under color of
state law, and plaintiffs may pursue such claims against government officials in their
individual capacities. See Hafer v. Melo, 502 U.S. 21, 31 (1991) (holding that plaintiffs
may seek monetary damages from governmental officers in their individual capacity
regardless of the “‘official’ nature of their acts”).
Defendants further assert that Plaintiff’s claim fails because Colorado charter
schools 	may 	make 	independent 	decisions 	regarding 	operations, 	discipline, 	and
property access without implicating state action. Dkt. 22, pp. 16-17 (citing Colo. Rev.
Stat. § 22-30.5-104). The statute allows charter schools to operate freely from certain
school district policies and state rules, but it does not clearly support Defendants’
proposition. Moreover, although neither Colorado courts nor the Tenth Circuit have
definitively resolved whether Colorado charter schools qualify as state actors, recent
authority suggests they may. See Doe through Doe v. Rocky Mountain Classical Acad.,
99 F.4th 1256, 1259 n.2 (10th Cir. 2024) (accepting without deciding that a public
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charter school qualifies as a state actor). Additionally, a state court found that DDES
is a municipality under the laws of the State of Colorado. Dkt. 22-2, p. 2. At this stage,
Defendants have not shown that DDES falls outside the scope of state action for
purposes of § 1983.
Finally, Defendants argue that Plaintiff lacks standing to enforce criminal
statutes and that the Amended Complaint violates Federal Rules of Civil Procedure
8 and 10. Dkt. 22, pp. 17-18. Plaintiff asserts no claims under criminal statutes, and
the Amended Complaint complies with Rules 8 and 10. Dkt. 6, pp. 4-5.
G. 	Dismissal Based on Litigation Abuse
Finally, Defendants ask the Court to dismiss Plaintiff’s lawsuit under Federal
Rule of Civil Procedure 11. Rule 11(b) prohibits parties from filing pleadings for “any
improper purpose, such as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation.” Defendants assert that Plaintiff has filed eight lawsuits in state
and federal courts, that courts have dismissed three of those cases, including two on
res judicata grounds, and that four additional cases remain pending. Dkt. 22, p. 18.
According to Defendants, all actions arise from their bans against Plaintiff and his
daughter and demonstrate serial forum shopping, claim splitting, disregard of
adverse rulings, and harassment. Id. at p. 19.
The 	record 	does 	not 	support 	Defendants’ 	characterizations. 	Defendants
provide evidence of four state court lawsuits. Dkt. 22-1, 22-2, 22-3, 22-4. As discussed
above, two of those lawsuits do not arise from the DDES bans but instead stem from
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a criminal disturbing-the-peace charge against Plaintiff. Dkt. 22-2, 22-3. Moreover,
although Plaintiff has filed nine lawsuits in this Court, this case alone arises from
the school ban. Plaintiff files lawsuits frequently and rarely succeeds, but the present
record does not justify dismissal of this case under Rule 11.
IV.Conclusion
For the reasons articulated above, the Court DENIES in part and GRANTS
in part Defendants’ Motion to Dismiss (Dkt. 22).
Consistent with the foregoing analysis, Plaintiff’s claim regarding the 2023-24
school year ban against Defendants DDES and Westrop, in his official capacity, is
dismissed with prejudice based on res judicata, or claim preclusion.
Plaintiff’s claim regarding the 2023-24 school year ban against Defendant
Westrop, in his individual capacity, may proceed to discovery.
Plaintiff’s claim regarding the 2024-25 school year ban against Defendants
DDES 	and 	Westrop, 	in 	his 	individual 	and 	official 	capacities, 	may 	proceed 	to
discovery.
Dated: March 16, 2026
BY THE COURT:
___________________________
S. Kato Crews
United States District Judge
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