Halper v. DeMercardo

24CA1366 Halper v DeMercardo 12-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1366
San Miguel County District Court No. 24CV5
Honorable Keri A. Yoder, Judge

Mark Lewis Halper,

Plaintiff-Appellant,

v.

Lauren DeMercardo, Sarah Landeryou, and John Wontrobski,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE JOHNSON
Harris and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 24, 2025

Mark Lewis Halper, Pro Se

Nathan Dumm & Mayer P.C., Nicholas C. Poppe, Denver, Colorado, for
Defendants-Appellees
¶1 Plaintiff, Mark Lewis Halper (Halper), appeals the district

court’s dismissal of his complaint without prejudice and placing

conditions on Halper before it could be refiled. Specifically, Halper

alleges the district court denied him the right to “confront his

accusers” by dismissing his complaint, thus denying him the

“appropriate judicial process.” We disagree and, therefore, affirm.

I. Background

¶2 Halper’s library privileges at the Wilkinson Public Library were

suspended for one year due to Halper asking an underage library

patron to help him take a photograph on his cell phone of an

allegedly pornographic website. In response, Halper — appearing

pro se — sued three of the library’s employees, defendants, Lauren

DeMercado, Sarah Landeryou, and John Wontrobski, for

purportedly making false representations about him in an incident

report involving his alleged inappropriate behavior in violation of

the “Library Bill of Rights, Article 7.”

¶3 Following review of Halper’s complaint, the district court sua

sponte issued an order finding Halper’s complaint noncompliant

with multiple rules of civil procedure. The court found that it did

not appear that the complaint was well grounded in law or fact and

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could not survive a motion to dismiss. Specifically, it ruled that it

was unclear what legal claims Halper was asserting except for one

pursuant to the Library Bill of Rights, which the court noted had

not been enacted into state law but was instead a set of principles

announced by the American Library Association. Regardless, the

court determined that Halper had not stated any authority to

support that the Library Bill of Rights, or another law, authorized a

private cause of action. As a result, the district court ordered

Halper to either (1) file a complaint conforming with the rules of civil

procedure and containing well-grounded factual and legal

averments within fourteen days or (2) move to dismiss his case.

¶4 Halper responded, restating his original claim and requesting,

in the alternative, that the district court (1) determine that “the

Acceptable Use of the Library Policy (Library Policy) and subsequent

removal of Mark Halper’s library privileges at the Wilkinson Public

Library is in principle only, and not having effective law authority”;

and (2) issue an order to reinstate his library privileges effective

immediately.

¶5 The district court determined that Halper’s response did not

cure any of his complaint’s defects. It held that the revised

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complaint still violated C.R.C.P. 8 because it did not contain a short

and plain statement of the claim(s) entitling Halper to relief. The

court also determined that Halper’s complaint violated C.R.C.P. 11

because it was not well grounded in fact or existing law. As a

result, the district court dismissed Halper’s complaint without

prejudice. It also entered a prefiling injunction that requires Halper

to satisfy several conditions before he may refile the complaint or

bring any other pro se action in the district court.1

1 Although neither party has raised the issue, we must be assured

we have jurisdiction to review this appeal. See Smith v. City &
County of Denver, 2025 COA 70, ¶ 12 (an appellate court may
determine nostra sponte whether it has jurisdiction over an appeal).
We are limited to the review of final appealable orders. People in
Interest of S.C., 2020 COA 95, ¶ 6. Ordinarily, a final appealable
order does not include a dismissal without prejudice because a
party may refile the lawsuit. Id. at ¶ 8. But when “the
circumstances of the case indicate that the action cannot be saved
and that the district court’s order precludes further proceedings,
dismissal without prejudice qualifies as a final judgment for the
purposes of appeal.” Avicanna Inc. v. Mewhinney, 2019 COA 129,
¶ 1 n.1. We conclude that, given the court’s prefiling injunction,
the order has the effect of being final. See S.C., ¶ 10; see also Karr
v. Williams, 50 P.3d 910, 915-16 (Colo. 2002) (setting forth
conditions that impose requirements on a litigant to obtain court
approval to refile a complaint).

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II. Sua Sponte Dismissal

¶6 As we understand his arguments, Halper contends that the

district court erred by dismissing his complaint sua sponte. We

disagree.

A. Standard of Review

¶7 We review a district court’s application of the Colorado Rules

of Civil Procedure de novo. Marquez v. Schaefer, 2025 COA 44,

¶ 19.

¶8 Dismissal “may be proper even in cases where no motion

requesting dismissal has been filed.” ISG, LLC v. Ark. Valley Ditch

Ass’n, 120 P.3d 724, 730 (Colo. 2005). If a court is inclined to

dismiss a complaint sua sponte, “it should, as a matter of

fundamental fairness, if not due process, give the plaintiff an

opportunity to persuade the court that dismissal is not proper.”

Schwartz v. Owens, 134 P.3d 455, 457 (Colo. App. 2005).

B. Library Policy Claims

¶9 The district court found that Halper’s complaint failed to

comply with C.R.C.P. 8, 10, and 11, concluding that it “assert[ed]

no cognizable state district court claim.” While not cited by the

district court, we construe the order to be a ruling under C.R.C.P.

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12(b)(5), which authorizes a court to dismiss a plaintiff’s complaint

for failure to state a claim upon which relief may be granted. The

purpose of Rule 12(b)(5) is to test the legal sufficiency of a plaintiff’s

complaint. Nesjan v. J & A Distrib., Inc., 2025 COA 81, ¶ 8.

¶ 10 We review a district court’s decision to dismiss a complaint

under Rule 12(b)(5) de novo. Wagner v. Grange Ins. Ass’n, 166 P.3d

304, 307 (Colo. App. 2007). The district court was testing the legal

sufficiency of Halper’s complaint by holding that he failed to state

cognizable claims for relief, and we may affirm a correct district

court judgment on any grounds supported by the record. See

Roque v. Allstate Ins. Co., 2012 COA 10, ¶ 7.

¶ 11 Every cause of action must satisfy the plausibility standard

articulated in Twombly and Iqbal, which was later adopted in

Warne. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007);

Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Warne v. Hall, 2016

CO 50, ¶ 24. Under this standard, a complaint “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 570). The Supreme Court decisions set forth

two “working principles”: First, a court need not accept as true

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allegations in the complaint that are merely legal conclusions, and

second, only a complaint that states a viable claim for relief

survives a motion to dismiss. Warne, ¶ 9 (citing Iqbal, 556 U.S. at

678-79).

¶ 12 Halper alleged that the library employees violated his privacy

and confidentiality rights under the Library Policy or Library Bill of

Rights and requested that the district court reinstate his library

privileges. But this is not a plausible claim upon which relief may

be granted. As the district court concluded, and we agree, Halper

did not cite, nor could we find, any authority that the Library Bill of

Rights was enacted into state law by the General Assembly, much

less that it contains a private right of action. See League of Women

Voters of Greeley, Weld Cnty., Inc. v. Bd. of Cnty. Comm’rs, 2025 CO

8, ¶ 17 (“[W]e require a ‘clear expression’ of legislative intent to

establish a private right of action.” (citation omitted)); see also Colo.

Gen. Assembly v. Lamm, 704 P.2d 1371, 1380 (Colo. 1985)

(Speaking in broad terms, “it is the province of the general assembly

to enact legislation.”). Because Halper’s claim under the Library

Bill of Rights and his request to have the district court reinstate his

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library privileges are not supported by legal authority, the district

court did not err by dismissing that claim.

¶ 13 The district court appropriately gave Halper an opportunity to

persuade the court that dismissal was not proper by allowing him

to file an amended complaint. But Halper failed to cure the issues

identified by the district court, and, thus, we discern no error.2

III. Conclusion

¶ 14 We affirm the judgment of dismissal.

JUDGE HARRIS and JUDGE SCHOCK concur.

2 We construe nothing in Halper’s appellate briefing to directly

challenge the prefiling injunction and conditions the district court
placed on him before he could refile his complaint. Thus, there is
no need to address this issue. And to the extent there are other
claims that Halper attempted to assert in his complaint, we are
unable to discern any other cognizable cause of action.

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