Rueb v. Rich-Fredericks

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
December 3, 2020

2020COA168

No. 19CA1189, Rueb v. Rich-Fredericks — Courts and Court
Procedure — Inmate Lawsuits — Successive Claims

When an inmate has three or more civil lawsuits that were

dismissed for being frivolous, groundless, malicious or failed to

state a claim — referred to as “strikes” — the inmate loses the

privilege to file a new civil action based on prison conditions in

forma pauperis. In this case, a division of this court considers

whether that same loss of privilege applies under section 13-17.5-

102.7(1), C.R.S. 2020 when an inmate’s civil complaint includes

claims for relief based on prison conditions and non-prison

conditions. The division concludes that an inmate’s civil action that

contains both prison related and non-prison related claims, may be

dismissed if the inmate has three or more strikes and the inmate is

given the opportunity to pay the filing fee and fails to do so.
COLORADO COURT OF APPEALS 2020COA168

Court of Appeals No. 19CA1189
Las Animas County District Court No. 18CV11
Honorable Stephen M. Munsinger, Judge

Justin Rueb,

Plaintiff-Appellant,

v.

Jacquellyn Rich-Fredericks, Patrick Sayas, Stacy Mortensen, Patrick
McCarville, Jennifer Huss, Nicole Geller, James Quinn, Colorado Department of
Corrections, Cheryl Saucedo, Rick Raemisch, Aristedes Zavaras, Joe Ortiz,
Larry Reid, Dana M. Kernan, Monique Sheperd, Richard Grahn, and Dana
Hatfield,

Defendants-Appellees.

ORDER AFFIRMED

Division IV
Opinion by JUDGE JOHNSON
Terry and Richman, JJ., concur

Announced December 3, 2020

Justin Rueb, Pro Se

Philip J. Weiser, Attorney General, Amy Colony, Senior Assistant Attorney
General, Denver, Colorado, for Defendants-Appellees Jacquellyn Rich-
Fredericks, Patrick Sayas, Stacy Mortensen, Patrick McCarville, Jennifer Huss,
Nicole Geller, James Quinn, Colorado Department of Corrections, Cheryl
Saucedo, Rick Raemisch, Aristedes Zavaras, Joe Ortiz, Larry Reid, Dana M.
Kernan, and Monique Sheperd

Bruno, Colin, and Lowe, P.C., Michael T. Lowe, Denver, Colorado, for
Defendants-Appellees Richard Grahn and Dana Hatfield
¶1 Under Colorado law, an inmate may qualify to file a civil action

in forma pauperis. § 13-17.5-103(1), C.R.S. 2020. But under

section 13-17.5-102.7(1), C.R.S. 2020, an inmate no longer retains

that privilege if he or she files three or more civil lawsuits based on

prison conditions and those lawsuits are dismissed for being

frivolous, groundless, or malicious, or failing to state a claim upon

which relief may be granted. Lawsuits that are dismissed on these

grounds are sometimes referred to as “strikes.”

¶2 This case presents the following question: When an inmate’s

civil complaint includes claims for relief based on prison conditions

and non-prison conditions — and the inmate has three strikes —

does that statute nonetheless apply, requiring the inmate to pay a

filing fee? We determine it does. Because plaintiff, Justin Rueb

(Rueb), had three strikes, the district court properly dismissed his

complaint that included both prison and non-prison condition

claims when he failed to pay the filing fee.

I. Background

¶3 In 2018, Rueb filed a complaint in district court against

numerous individuals in an official capacity and a state and city

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entity (collectively defendants).1 The complaint alleged claims

against defendants arising from (1) the original criminal charges

against him; (2) calculation of his sentence; (3) denial of access to

his property by the Colorado Department of Corrections (DOC); and

(4) defenses taken against various actions he brought against the

Attorney General’s Office, the DOC, and his former public defender.

Rueb requested to proceed in forma pauperis and the district court

initially granted his request.

¶4 The defendants filed a motion to reconsider the district court’s

order, arguing that Rueb had accumulated more than three strikes

under section 13-17.5-102.7(1). The district court agreed with the

defendants and reversed its prior order granting Rueb permission to

proceed in forma pauperis. The district court then gave Rueb thirty

1The defendants named in Rueb’s complaint include Jacquellyn
Rich-Fredericks, Patrick Sayas, Stacy Mortensen, Patrick
McCarville, Jennifer Huss, Nicole Geller, James Quinn, the
Colorado Department of Corrections (DOC), Cheryl Saucedo, Rick
Raemisch, Aristedes Zavaras, Joe Ortiz, Larry Reid, Dana M.
Kernan, Monique Sheperd, the City of Aurora, Richard Grahn, Dana
Hatfield, Charles Dunn, Justin P. Moore, and Candace Carlson.
Although Rueb sued the individuals in their official capacities,
nothing in the record indicates the nature of their official titles or
positions.

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days to pay the filing fee; after he failed to do so, the court

dismissed Rueb’s complaint. This appeal followed.

II. Motion to Proceed in Forma Pauperis

¶5 Rueb contends that his complaint contains claims involving

civil rights, declaratory judgment, and several common law torts

including false imprisonment, abuse of process, and civil

conspiracy, and therefore it is not subject to section

13-17.5-102.7(1).2

2 Rueb raises eight arguments in his opening brief, although these
can be distilled down into the one issue regarding the denial of his
motion to proceed in forma pauperis. His arguments are as follows:
(1) “Colo. Rev. Stat. § 13-17.5-102.7 Does Not Apply To Preclude
‘Grant’ Of Rueb’s In Form Pauperis’ Motion In This Case, Because
These Claims Are Not ‘Prison Conditions’ Based Claims”; (2) “Colo.
Rev. Stat. § 13-17.5-102.7 Does Not Apply To Rueb’s ‘Claim: 11’
Federal 42 U.S.C. § 1983 Claim”; (3) “Colo. Rev. Stat. § 13-17.5-
102.7 Does Not Apply To Rueb’s ‘Declaratory Judgement’ Claim”; (4)
“Colo. Rev. Stat. § 13-17.5-102.7 Does Not Apply To Restrict The
Filing Of ‘Common Law’ Tort-Based Claims Such As The Claims
Being Litigated In The Case At Bar”; (5) “The District Court Erred By
Granting Defendant Moore A Severed ‘Statute Of Limitations’
Defense On The ‘Joint’ Civil Conspiracy Claim That Did Not ‘Accrue’
Until The Final ‘Act’”; (6) “The District Court Erred By Granting
Defendant Moore The Protection of ‘Absolute Prosecutor Immunity’
Where Moore’s ‘Acts’ Foreseeably Led To A ‘Deprivation of Rueb’s
Liberty’”; (7) “The District Court Erred By Ruling That Rueb’s
Complaint Does Not State A Claim For ‘Abuse Of Process’”; and (8)
“The District Court Erred By Ruling That Rueb’s Complaint Does
Not State A Claim For ‘Civil Conspiracy.’”

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¶6 Although it is true that his complaint contains some claims

unrelated to prison conditions, we are not persuaded that their

inclusion enables him to avoid this provision.

A. Standard of Review and Applicable Law

¶7 We review de novo a district court’s order dismissing a case as

a matter of law. Asphalt Specialties Co., Inc. v. City of Commerce

City, 218 P.3d 741, 744 (Colo. App. 2009). Statutory interpretation

is a question of law reviewed de novo. Bill Barrett Corp. v. Lembke,

2020 CO 73, ¶ 13.

¶8 Section 13-17.5-103(1) enables inmates who seek to proceed

in a civil action without the prepayment of fees to petition the court

for leave to do so based upon a demonstration of inability to pay.

However, if the action fails to state a claim on which relief may be

granted or is frivolous, groundless, or malicious, the motion to

proceed in forma pauperis will be denied. Id. Further, section

13-17.5-102.7(1), provides that

[n]o inmate who on three or more occasions
has brought a civil action based upon prison
conditions that has been dismissed on the
grounds that it was frivolous, groundless, or
malicious or failed to state a claim upon which
relief may be granted or sought monetary relief
from a defendant who is immune from such

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relief, shall be permitted to proceed as a poor
person in a civil action based upon prison
conditions under any statute or constitutional
provision.

Thus, an action also will be denied when the inmate has three or

more previous “strikes.”

¶9 Adopting the reasoning of federal courts, another division of

this court held that “[p]roceeding in forma pauperis in a civil case is

a privilege, not a right, fundamental or otherwise.” Farmer v.

Raemisch, 2014 COA 3, ¶ 12. In other words, section

13-17.5-102.7(1) does not violate a defendant’s right to access to

the courts. Id. at ¶ 14.

B. Analysis

¶ 10 Here, Rueb previously filed at least four complaints in state

court involving prison conditions, all of which were dismissed for

being frivolous, groundless, or failing to state a claim:

 Logan County District Court case number 11CV97

involved a request for a transfer from administrative

segregation to the state mental health hospital. This

action was dismissed on January 4, 2012, for failure to

state a claim and lack of subject matter jurisdiction.

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 El Paso District Court case number 13CV288 involved a

replevin action seeking return of electronics and

pornographic materials not permitted by prison policy.

The action was dismissed on February 3, 2014, for

failure to state a claim and lack of subject matter

jurisdiction.

 Lincoln County Small Claims Court case number 13S13

involved a replevin action arising out of the confiscation

of electronics and pornographic material. This action

was dismissed on February 12, 2014, pursuant to the

Colorado Governmental Immunity Act. The court further

held that nearly identical claims had been brought and

dismissed against the same defendants in three other

state court cases.

 Lincoln County Court case number 15C4 involved a

replevin action seeking return of confiscated electronics

and pornographic material. The civil action was

dismissed on July 1, 2015, as it was frivolous and

groundless.

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¶ 11 Thus, the record demonstrates that Rueb has accumulated

more than the three strikes required under section 13-17.5-102.7(1)

to prevent an inmate from proceeding in forma pauperis.3

¶ 12 Rueb contends, however, that because his claims for relief are

unrelated to prison conditions, his complaint is not subject to the

three strikes rule under section 13-17.5-102.7. True, some of

Rueb’s claims are not related to prison conditions and instead

concern, for example, his arrest and prosecution. But Rueb

acknowledges that three of his claims “have ‘elements’ of ‘prison

conditions’ contained within them.” Rueb’s claims eight through

twelve contain more than just “elements” of prison conditions

allegations.4 Indeed, the claims arise from his prior lawsuits

involving the confiscation of pornography contrary to various prison

3 Rueb has also filed an additional twenty-one actions in federal
district court that have fared no better and ostensibly would be
considered “strikes” due to their dispositions. But because Rueb
has already accumulated the three strikes necessary based on the
cases he filed in Logan, El Paso, and Lincoln Counties, we leave for
another day whether a lawsuit initiated in federal district court in
Colorado is considered a “civil action” that was filed “within the
state,” as that term is defined in section 13-17.5-102(1), C.R.S.
2020.
4 Rueb refers to his eighth claim for relief as his seventh claim for

relief.

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policies and regulations. Additional allegations concern the actions

of the Attorney General’s Office and other DOC employees denying

him access to compensation due to the dismissal of those prior

lawsuits.

¶ 13 Neither party cites to, nor are we aware of, any authority

indicating that if a portion of the claims do not arise from prison

conditions then section 13-17.5-102.7(1) is inapplicable. But

statutory interpretation supports a determination that the provision

applies, even if an inmate files a mixture of claims, some of which

may be prison-condition related.

¶ 14 The primary goal in interpreting a statute is to give effect to

the General Assembly’s intent. BP Am. Prod. Co. v. Colo. Dep’t of

Revenue, 2016 CO 23, ¶ 15. To do this, we apply the plain and

ordinary meaning to words and phrases. Id.; see also Ceja v.

Lemire, 154 P.3d 1064, 1066 (Colo. 2007).

¶ 15 Section 13-17-102.7(1) bars an inmate from proceeding in

forma pauperis in a subsequent “civil action based upon prison

conditions under any statute or constitutional provision” when he

or she has three strikes. (Emphasis added.) This provision does

not exclude the possibility that a civil action may only be based, in

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part, on prison conditions. If the General Assembly intended that

this provision apply to lawsuits solely involving prison condition

claims, it could have so indicated by adding that word. See People

ex rel. Rein v. Meagher, 2020 CO 56, ¶ 22 (we do not add words to

legislative enactments).

¶ 16 This interpretation is consistent with the purpose of section

13-17.5-102.7(1), which is to preserve judicial resources and deter

“frivolous and meritless prisoner lawsuits.” Farmer, ¶ 18. Thus,

even though Rueb’s complaint contains some issues unrelated to

prison conditions, this does not enable him to avoid the bar set by

that provision, as holding otherwise would defeat the purpose of the

statute. Cf. Brown v. Megg, 857 F.3d 287, 291 (5th Cir. 2017)

(attempting to characterize a lawsuit as a habeas petition to avoid a

strike would be an “end run around” the purpose of the three

strikes provision); Adams v. McGinnis, 317 F. Supp. 2d 246, 247

n.1 (W.D.N.Y. 2004) (bringing a civil lawsuit styled as a habeas

petition, excepted by federal law from the rule, would be an “end

run around the three strikes rule”).

¶ 17 Rueb chose to file a complaint that included current claims

both related and unrelated to prison conditions. Consequently, he

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ran the risk of having his complaint deemed subject to the three

strikes provision, and thus ineligible to file in forma pauperis. We

note that section 13-17.5-102.7(1) would not automatically prevent

Rueb from seeking to proceed in forma pauperis on a separate

complaint involving only claims unrelated to prison conditions, or

— if he paid the filing fee — from proceeding on a separate

complaint consisting of solely prison condition claims. See Farmer,

¶ 12 (“The ‘three-strike rule’ does not prohibit an inmate from filing

suit; it merely prohibits an inmate from doing so without paying the

filing fee which all civil plaintiffs must pay.”); see also Lopez v.

Haywood, 41 A.3d 184, 188 (Pa. Commw. Ct. 2012) (holding under

a three strikes provision that an inmate may file his prison

condition lawsuit by paying the filing fee even if he has three

strikes, as dismissal under the three strikes provision would

constitute a denial of access to the courts).

¶ 18 But because the district court gave Rueb thirty days to pay the

filing fee — involving a complaint that even he concedes includes

some claims that are prison condition related — and he did not, we

discern no error.

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III. Conclusion

¶ 19 The district court’s order is affirmed.

JUDGE TERRY and JUDGE RICHMAN concur.

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