Brooks v. City & County of Denver

• Court: Colorado Court of Appeals
• Decided: May 28, 2026
• Docket: 25CA0987
• Status: Unpublished

Opinion

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 May 28, 2026 2026 COA 42

No. 25CA0987, Brooks v. City & County of Denver — Constitutional Law — Colorado Constitution — Due Process; Remedies — Civil Action for Deprivation of Rights — Peace Officers — Jail Suicide

A division of the court of appeals considers what legal

standard applies when a plaintiff seeks damages under section 13-

21-131, C.R.S. 2025, for a violation of Colorado’s due process

clause based on a jail suicide. After examining analogous federal

law, the division holds that a plaintiff asserting such a claim must

show that the jailer or their supervisor acted with deliberate

indifference. Applying that standard, the division concludes that

plaintiff failed to allege sufficient facts demonstrating that any

defendant acted with deliberate indifference.

The division also addresses, for the first time in a published

Colorado opinion, the scope of a jailer’s duty to protect a detainee

from self-harm while in custody. Based on established tort principles under Colorado law and decisions in other jurisdictions,

the division concludes that a jailer has a duty to protect a detainee

from self-inflicted injury or death only if the risk of such harm is

reasonably foreseeable. Because plaintiff’s allegations didn’t satisfy

this standard, the division affirms the dismissal of her wrongful

death claim.

The division also addresses and rejects plaintiff’s other

contentions and therefore affirms the district court’s dismissal of

the amended complaint. COLORADO COURT OF APPEALS 2026 COA 42

Court of Appeals No. 25CA0987 City and County of Denver District Court No. 24CV32194 Honorable Jill D. Dorancy, Judge

Shia Brooks, for herself and as Common law Spouse and heir to the Estate of Gavin Tweed,

Plaintiff-Appellant,

v.

City and County of Denver, Denver Health and Hospital Authority, Paul Pazen, in his individual and official capacities, Elias Diggins, in his individual and official capacities, and Donna Lynne, in her individual and official capacities,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division II Opinion by JUDGE SULLIVAN Fox and Kuhn, JJ., concur

Announced May 28, 2026

VANGUARD JUSTICE LLC, Elisabeth L. Owen, Denver, Colorado; Levin Sitcoff PC, Bradley A. Levin, Gideon S. Irving, Denver, Colorado, for Plaintiff-Appellant

Miko Brown, City Attorney, David Murphy, Assistant City Attorney, Andrew Oh-Willeke, Assistant City Attorney, Denver, Colorado, for Defendants- Appellees City and County of Denver, Paul Pazen, and Elias Diggins

Hershey Decker Drake, P.L.L.C., C. Todd Drake, Lone Tree, Colorado, for Defendants-Appellees Denver Health and Hospital Authority and Donna Lynne ¶1 After her husband died by suicide while detained in a Denver

jail, plaintiff, Shia Brooks, brought claims for wrongful death and

violations of the Colorado Constitution on behalf of herself and her

husband’s estate against defendants, several Denver entities and

their employees. In three of her claims, Brooks alleged violations of

Colorado’s due process clause, Colo. Const. art. II, § 25, and sought

damages against multiple peace officers under section 13-21-131,

C.R.S. 2025. The district court dismissed each of Brooks’ claims for

failure to state a claim under C.R.C.P. 12(b)(5).

¶2 No published Colorado case has addressed the legal standard

that applies when a plaintiff seeks damages under section 13-21-

131 for a violation of Colorado’s due process clause based on a jail

suicide. After examining analogous federal law, we hold that a

plaintiff asserting such a claim must show that the jailer or their

supervisor acted with deliberate indifference. Applying that

standard, we conclude that Brooks failed to allege sufficient facts

demonstrating that any defendant acted with deliberate

indifference.

¶3 We also address for the first time in a published Colorado

opinion the scope of a jailer’s duty to protect a detainee from self-

1 harm while in custody. Based on established tort principles under

Colorado law and decisions in other jurisdictions, we conclude that

a jailer has a duty to protect a detainee from self-inflicted injury or

death only if the risk of such harm is reasonably foreseeable.

Because Brooks’ allegations didn’t satisfy this standard, we discern

no basis to reverse the dismissal of Brooks’ wrongful death claim.

¶4 We also disagree with Brooks’ other contentions, so we affirm

the district court’s dismissal of the amended complaint.

I. Background and Procedural History

¶5 We take the following facts from the allegations in Brooks’

amended complaint.

¶6 In July 2022, four Denver police officers entered the

community where Brooks lived with her common law husband,

Gavin Tweed. The officers told Tweed he was under arrest due to

an outstanding warrant issued in Adams County, Colorado. After

Tweed submitted to arrest without incident, the officers left him in a

patrol car for approximately three hours before transporting him to

the downtown Denver detention center.

¶7 While at the detention center, one or more of the arresting

officers “formed the belief” that Tweed had assaulted them. The

2 officers therefore instructed the intake officer, a Denver Sheriff’s

Department employee, to charge Tweed with multiple felonies

stemming from the assault. Because the intake officer booked

Tweed into the detention center on felony charges, jail staff

assigned Tweed to a higher security classification than they would

have if he had been booked on only the misdemeanor warrant

charge.

¶8 Three deputy sheriffs then interviewed Tweed to determine

where to house him within the detention center. They also

conducted a medical and mental health assessment of Tweed but

none ascertained his “substantial history of trauma, mistreatment

and abuse by his mother, mental disorders,” or “behavioral health

needs.” As a result, jail staff didn’t assign Tweed to a mental health

observation unit.

¶9 Three days after being arrested, Tweed hanged himself in his

jail cell. He died after being transported to Denver Health Medical

Center, which the Denver Health and Hospital Authority operates.

¶ 10 Brooks sued the City and County of Denver (the City); Denver

Chief of Police Paul Pazen; ten unnamed Denver Police Department

employees (John Does 1-10); Denver Sheriff Elias Diggins; fifteen

3 unnamed Denver Sheriff’s Department employees (John Does 11-

25); the Denver Health and Hospital Authority; the hospital

authority’s CEO, Donna Lynne; and five unnamed hospital

authority employees (John Does 26-30).1

¶ 11 In her amended complaint, Brooks brought four state

constitutional claims (one unreasonable seizure claim and three

due process claims) on behalf of Tweed’s estate under Colorado’s

survival statute, section 13-20-101, C.R.S. 2025. Brooks also

asserted one wrongful death claim under section 13-21-202, C.R.S.

2025.

¶ 12 Notably, Brooks didn’t plead any federal constitutional claims

under 42 U.S.C. § 1983.

¶ 13 For her relief, Brooks requested monetary damages from the

defendants who were certified peace officers, citing section 13-21-

131, which was adopted as part of the Enhance Law Enforcement

Integrity Act (ELEIA). Ch. 110, sec. 3, § 13-21-131, 2020 Colo.

Sess. Laws 452-53. She also requested that the district court

1 In this opinion, we refer to the City, Chief Pazen, and Sheriff

Diggins collectively as “the Denver defendants.” We refer to the hospital authority and Lynne collectively as “the hospital defendants.”

4 recognize a damages remedy for the state constitutional violations

committed by the City, the hospital defendants, and the remaining

Doe defendants who weren’t peace officers. In making this request,

Brooks said she intended to ask the supreme court to reverse or

distinguish its decision in Board of County Commissioners v.

Sundheim, 926 P.2d 545 (Colo. 1996), in which the court declined

to recognize an implied damages remedy for violations of the

Colorado Constitution. Finally, Brooks requested prospective

declaratory and injunctive relief within one of her due process

claims, asking the court to “remedy the constitutional violations”

she had identified.

¶ 14 The Denver defendants and the hospital defendants moved to

dismiss Brooks’ amended complaint for failure to state a claim

under Rule 12(b)(5).2 Both sets of defendants also challenged

Brooks’ authority to bring the case, arguing she lacked standing

and capacity to bring claims on behalf of Tweed’s estate. The

Denver defendants added that Brooks had inadequately alleged that

she was Tweed’s common law spouse.

2 Because Brooks never served the Doe defendants, they never

appeared or otherwise participated in the litigation.

5 ¶ 15 The district court granted the defendants’ motions and

dismissed the amended complaint “in its entirety.” The court first

determined that Brooks “would have standing and capacity” to

maintain the lawsuit if Tweed’s estate were named as a plaintiff, but

it declined to permit an amendment due to the amended

complaint’s other deficiencies. Next, the court rejected Brooks’

request that it recognize an implied damages remedy for violations

of the Colorado Constitution, explaining that her request

contravened Sundheim and that § 1983 provided her an adequate

remedy. The court didn’t mention section 13-21-131 or Brooks’

request for equitable relief. Last, the court concluded that Brooks

failed to state a claim for wrongful death because her amended

complaint relied on “conclusory allegations without factual

support.”

¶ 16 A few months after the district court dismissed Brooks’ action,

the Denver Probate Court appointed Brooks as special

administrator of Tweed’s estate, giving her the power of the personal

representative for the limited purpose of prosecuting this case. In

re Tweed, (City & Cnty. of Denv. Prob. Ct. No. 25PR30116, Sep. 20,

2025) (unpublished order); see §§ 15-12-614, -617, C.R.S. 2025.

6 Although not in our record, we take judicial notice of the probate

court’s appointment order. See CRE 201(b), (c), (f); Harriman v.

Cabela’s Inc., 2016 COA 43, ¶ 64 (“[W]e can ‘take judicial notice of

the contents of court records in a related proceeding.’” (quoting

People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004))).

II. Discussion

¶ 17 Brooks contends that the district court erred by dismissing

her amended complaint, arguing that she stated plausible claims

under both the survival statute and the wrongful death statute.

She also renews her request that we recognize a damages remedy

against government actors and their employers when they violate a

detainee’s state constitutional rights.3

A. Standard of Review and Legal Framework

¶ 18 We review an order granting a defendant’s Rule 12(b)(5)

motion to dismiss de novo. Woodall v. Godfrey, 2024 COA 42, ¶ 6.

3 In evaluating Brooks’ contentions, we don’t consider her or the

hospital defendants’ citations to unpublished decisions by divisions of this court. This court’s policy prohibits citations to opinions that aren’t selected for official publication, with exceptions not applicable here. See Colo. Jud. Branch, Court of Appeals Policies, Policy Concerning Citation of Opinions Not Selected for Official Publication (2026), https://perma.cc/5AZZ-KSWL.

7 In doing so, we apply the same standards as the district court. Id.

To survive a motion to dismiss, a plaintiff’s complaint must state “a

plausible claim for relief.” Warne v. Hall, 2016 CO 50, ¶ 9 (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The complaint’s factual

allegations must be “enough to raise a right to relief ‘above the

speculative level.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007)).

¶ 19 In evaluating whether a complaint meets this standard, we

accept the complaint’s factual allegations as true “and view them in

the light most favorable to the plaintiff.” Woodall, ¶ 8. But we

aren’t required to accept as true legal conclusions disguised as

factual allegations or bare, conclusory assertions unsupported by

factual allegations. Id.

¶ 20 We similarly review questions of statutory interpretation de

novo. Trinidad Area Health Ass’n v. Trinidad Ambulance Dist., 2024

COA 113, ¶ 23. When interpreting a statute, our primary task is to

ascertain and give effective to the legislature’s intent — the

“polestar” of statutory construction. St. Vrain Valley Sch. Dist. RE-

1J v. A.R.L., 2014 CO 33, ¶ 10. “We look to the entire statutory

scheme to give consistent, harmonious, and sensible effect to all its

8 parts, and we apply words and phrases according to their plain and

ordinary meaning.” Trinidad Area Health Ass’n, ¶ 23.

¶ 21 A plaintiff may seek relief for the alleged wrongful death of

another in two ways. Espinoza v. O’Dell, 633 P.2d 455, 462-63

(Colo. 1981). First, they may bring a survival action on behalf of

the decedent’s estate under the survival statute, section 13-20-101.

Espinoza, 633 P.2d at 462-63. Second, they may bring a wrongful

death action under the wrongful death statute, section 13-21-202.

Espinoza, 633 P.2d at 462-63.

¶ 22 Under the survival statute, subject to certain limitations, “[a]ll

causes of action, except actions for slander or libel, shall survive

and may be brought or continued notwithstanding the death of the

person in favor of or against whom such action has accrued.” § 13-

20-101(1). Only the estate’s personal representative may bring

such an action. See § 13-20-101(2) (“Any action under this section

may be brought . . . by or against the personal representative of the

deceased.”); Espinoza, 633 P.2d at 466 (“The personal

representative of the decedent’s estate, by necessity, stands in the

decedent’s shoes in a state survival action.”); A.B. v. City of

Woodland Park, 174 F. Supp. 3d 1238, 1246 (D. Colo. 2016).

9 ¶ 23 The wrongful death statute, by contrast, authorizes certain of

the decedent’s statutorily enumerated heirs to bring a claim for

damages against the person whose “wrongful act, neglect, or

default” caused the decedent’s death. § 13-21-202; see Espinoza,

633 P.2d at 463.

¶ 24 As Brooks recognizes, the supreme court has declined to

recognize an implied state constitutional cause of action for

damages when other adequate remedies exist. Sundheim, 926 P.2d

at 553. But in ELEIA, the General Assembly authorized a private

cause of action for damages and equitable relief against a peace

officer who deprives an individual of certain rights secured by the

Colorado Constitution. Woodall, ¶ 11. Specifically, section 13-21-

131(1) provides that

[a] peace officer, as defined in section 24-31- 901(3), [C.R.S. 2025,] who, under color of law, subjects or causes to be subjected, including failing to intervene, any other person to the deprivation of any individual rights that create binding obligations on government actors secured by the bill of rights, article II of the state constitution, is liable to the injured party

10 for legal or equitable relief or any other appropriate relief.[4]

Statutory immunities and limitations on liability, damages, and

attorney fees don’t apply to claims brought under this statute.

§ 13-21-131(2)(a).

B. The Estate’s Survival Claims

¶ 25 We first address Brooks’ contention that the district court

erred by dismissing the four survival claims seeking damages

against Chief Pazen, Sheriff Diggins, and twenty-three Doe

defendants who are each peace officers. In support, she argues

that the district court overlooked section 13-21-131. She also

contends that the court erred by dismissing her equitable claim

seeking prospective declaratory and injunctive relief.

1. Standing

¶ 26 Before turning to Brooks’ contentions, we address two

challenges to the district court’s subject matter jurisdiction. First,

4 Under section 24-31-901(3), C.R.S. 2025, a peace officer includes

“any person employed by a political subdivision of the state required to be certified by the P.O.S.T. board,” “a Colorado state patrol officer,” and “any noncertified deputy sheriff.” Certification by the P.O.S.T. board (the peace officers standards and training board) is required for police officers and sheriffs. §§ 16-2.5-100.3, -102, C.R.S. 2025.

11 the defendants assert that we should affirm the dismissal of Brooks’

survival claims because Brooks isn’t the personal representative of

the estate, depriving her of standing to bring claims on its behalf.

Second, the Denver defendants argue that Brooks lacks standing to

pursue prospective equitable relief on the estate’s behalf. We reject

the defendants’ first argument but agree with the second.

¶ 27 At the outset, the defendants’ first contention is factually

incorrect. Pursuant to section 15-12-617, the Denver Probate

Court appointed Brooks as special administrator of Tweed’s estate

on September 20, 2025, more than a month before the defendants

filed their answer briefs in this appeal. The appointment order gave

Brooks the “power of a general personal representative,” § 15-12-

617, for the limited purpose of prosecuting this civil action. While

Brooks’ appointment came after she initiated this litigation, the late

timing of the appointment order is immaterial. See § 15-12-701,

C.R.S. 2025 (“The powers of a personal representative relate back in

time to give acts by the person appointed that are beneficial to the

estate occurring prior to appointment the same effect as those

occurring thereafter.”).

12 ¶ 28 Moreover, the defendants’ first contention conflates Brooks’

capacity to sue with her standing. To have standing, a plaintiff

must establish (1) an injury in fact (2) to a legally protected interest.

Wimberly v. Ettenberg, 570 P.2d 535, 539 (Colo. 1977). If a party

lacks standing, a court doesn’t have subject matter jurisdiction

because no case or controversy exists for the exercise of judicial

authority. SMLL, L.L.C. v. Peak Nat’l Bank, 111 P.3d 563, 566

(Colo. App. 2005). Subject matter jurisdiction concerns “a court’s

power to resolve a dispute in which it renders judgment” and is

“generally only dependent on the nature of the claim and the relief

sought.” Ashton Props., Ltd. v. Overton, 107 P.3d 1014, 1017 (Colo.

App. 2004) (quoting Trans Shuttle, Inc. v. Pub. Utils. Comm’n, 58

P.3d 47, 50 (Colo. 2002)).

¶ 29 Capacity, on the other hand, concerns “the personal

qualifications of a party to litigate a case.” Id. at 1016; see

C.R.C.P. 17. Unlike subject matter jurisdiction, whether a party

has capacity to sue generally doesn’t turn on the particular claim or

defense being asserted. Ashton, 107 P.3d at 1016. If a party lacks

capacity, a judicially resolvable case or controversy may exist, but

the party isn’t qualified to assert claims in the case. SMLL, 111

13 P.3d at 566. “[A] party’s capacity to sue or lack thereof does not

affect the jurisdiction of the court.” Ashton, 107 P.3d at 1017.

¶ 30 For claims covered by the survival statute, only the personal

representative of a decedent’s estate may seek relief on the estate’s

behalf. See § 13-20-101(2); Espinoza, 633 P.2d at 466. This

limitation concerns “the personal qualifications of a party to litigate

a case” because it doesn’t depend on the underlying claims or

defenses. Ashton, 107 P.3d at 1016; accord Hill v. Martinez, 87

F. Supp. 2d 1115, 1122 (D. Colo. 2000) (explaining that whether an

individual can sue on an estate’s behalf “is best characterized as a

question of capacity,” not standing). Thus, any dispute over

Brooks’ status as personal representative goes to her capacity to

maintain this lawsuit, not her standing. And because Brooks has

been duly appointed as personal representative of Tweed’s estate for

the purpose of prosecuting this case, no question exists that she

14 has the proper capacity to proceed. We therefore reject the

defendants’ first standing contention.5

¶ 31 We reach a different conclusion, however, regarding the

Denver defendants’ second contention challenging Brooks’ standing.

This challenge is narrow. The Denver defendants argue only that

Brooks lacks standing to seek prospective declaratory and

injunctive relief under her second claim, in which she alleged that

certain defendants failed to implement effective suicide prevention

policies. According to the Denver defendants, the estate won’t

benefit from a court order requiring them to implement more

effective policies.

¶ 32 To establish standing for injunctive relief against the

government, the plaintiff must satisfy the “imminent injury

standard.” State Bd. of Chiropractic Exam’rs v. Stjernholm, 935 P.2d

959, 971 (Colo. 1997) (A court shouldn’t “grant the equitable

5 We also reject the Denver defendants’ related argument that

Tweed’s estate itself needed to be named as a party. “A personal representative’s powers include the authority to bring suit on behalf of the estate’s beneficiaries.” Steiger v. Burroughs, 878 P.2d 131, 135 (Colo. App. 1994); see § 13-20-101(2), C.R.S. 2025. And in any event, Brooks’ amended complaint explicitly said that the four survival claims were brought by “the Estate.”

15 remedy of injunction against other branches of government in the

absence of convincing proof of threatened and impending wrongful

action.” (citation omitted)). “Past exposure to illegal conduct, if

unaccompanied by any continuing, present adverse effects, does

not present a case or controversy regarding injunctive relief.” Id.

Similar standing requirements govern a plaintiff’s request for

prospective declaratory relief. See Bd. of Cnty. Comm’rs v.

Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1053 (Colo. 1992).

¶ 33 The Tenth Circuit’s decision in Estate of Schultz v. Brown, 846

F. App’x 689 (10th Cir. 2021), illustrates these principles in the

context of claims for injunctive and declaratory relief brought by a

decedent’s estate. In Brown, an applicant for Medicaid benefits died

shortly after she appealed Oklahoma’s denial of her request for

benefits. Id. at 691. Her estate later sued in federal court for

prospective injunctive and declaratory relief, seeking a court order

requiring the state’s Medicaid agencies to implement an impartial

hearing system. Id. The Tenth Circuit concluded the estate lacked

standing because it couldn’t allege “the continuing or impending

harm required to pursue prospective relief.” Id. at 693. After the

decedent died, the court explained, she “no longer experience[d]

16 whatever unfairness exists in Oklahoma’s Medicaid appeals

process,” and the estate itself alleged no independent injury. Id.

¶ 34 Here, Brooks’ second claim requested declaratory and

injunctive relief to remedy certain defendants’ alleged failure to

“research, draft, implement, and enforce effective suicide prevention

policies” for arrestees and detainees. But like the estate in Brown,

Brooks never alleged any threatened or impending wrongful action

against herself or Tweed’s estate. And while inadequate suicide

prevention policies could potentially violate another detainee’s

constitutional rights, Brooks can’t seek judicial relief on others’

behalf. See Espinoza, 633 P.2d at 463 (“Ordinarily, one cannot sue

for relief over the deprivation of another’s civil rights.”).

¶ 35 We recognize that the General Assembly has conferred on

every estate’s personal representative “the same standing to sue . . .

[that] the decedent had immediately prior to death.” § 15-12-

703(4), C.R.S. 2025. But as the supreme court has made clear, the

legislature’s “grant of the right to seek judicial review is not in itself

dispositive of the standing inquiry.” Maurer v. Young Life, 779 P.2d

1317, 1324 (Colo. 1989). The Colorado Constitution also plays a

role. In particular, Wimberly’s injury-in-fact prong is a

17 “constitutional requirement” that permits courts to exercise subject

matter jurisdiction only if “an actual controversy exists” as shown

by a “real injury.” Maurer, 779 P.2d at 1323 (citation omitted). In

this case, Brooks’ allegations supporting her claim for prospective

equitable relief reveal no constitutionally sufficient injury.6

¶ 36 Accordingly, although we reject the defendants’ argument that

Brooks lacked standing to bring any survival claims, we agree that

she and the estate lacked standing to pursue the prospective

declaratory and injunctive relief portion of her second claim.

¶ 37 With Brooks’ survival claims now appropriately narrowed to

only damages claims, we turn to whether the district court erred by

dismissing them for failure to state a claim under Rule 12(b)(5).

6 In her reply brief, Brooks leans on the “capable of repetition yet

evading review” exception to mootness, arguing that a detainee subjected to a jail’s inadequate suicide prevention policies won’t know about the policies’ deficiencies until it’s too late. Perhaps so, but Tweed died before this litigation began, rendering the mootness doctrine inapplicable. See Levitt v. Calvary Temple, 33 P.3d 1227, 1228 (Colo. App. 2001) (“[A] controversy can become moot during the course of litigation.” (emphasis added)); see also Est. of Schultz v. Brown, 846 F. App’x 689, 693 (10th Cir. 2021) (explaining standing, not mootness, was the proper framework to analyze subject matter jurisdiction because the decedent died before the estate commenced litigation).

18 2. Unreasonable Seizure Claim

¶ 38 Brooks contends that the district court erred by dismissing

her unreasonable seizure claim against the arresting officers and

the intake officer. We disagree.

a. Additional Applicable Law

¶ 39 The Colorado Constitution protects persons against

“unreasonable searches and seizures.” Colo. Const. art. II, § 7. An

officer seizes a person when the officer, “by means of physical force

or show of authority,” restrains the person’s liberty. Woodall, ¶ 12

(quoting Outlaw v. People, 17 P.3d 150, 154 (Colo. 2001)).

¶ 40 A formal seizure or arrest must be supported by probable

cause. People v. King, 16 P.3d 807, 812 (Colo. 2001). “[P]robable

cause to arrest exists when, at the time of arrest, the objective

circumstances available to a reasonably cautious officer justify the

belief that (1) a crime has been or is being committed (2) by the

person arrested.” Id. at 809. An outstanding warrant “provides a

prima facie showing of probable cause,” even if another jurisdiction

issued the warrant. People v. Gouker, 665 P.2d 113, 116 (Colo.

1983).

19 b. Analysis

¶ 41 In the amended complaint, Brooks alleged that the arresting

officers “unreasonably seized [Tweed] when they arrested him for an

alleged out-of-jurisdiction misdemeanor warrant.” According to

Brooks, the arresting officers “furthered their unreasonable seizure

when they directed [the intake officer] to ‘charge’” Tweed with

assault. Brooks added that the intake officer “unreasonably seized

[Tweed] when they booked [Tweed] into the jail” based on the out-of-

jurisdiction warrant and assault charges.

¶ 42 Noticeably absent from Brooks’ amended complaint, however,

is any allegation of how the arresting officers and intake officer

acted unreasonably when seizing Tweed. See Warne, ¶ 27

(explaining that allegations that conditions were “unlawful,

arbitrary, or unreasonable,” without reference to any factual

allegation specifying how or why they should be considered

unreasonable, were bare and conclusory). Indeed, one of the few

detailed allegations in the amended complaint actually cuts against

Brooks by painting a picture of a relatively unremarkable arrest,

stating that Tweed “willingly allowed himself” to be handcuffed by

20 officers who then placed him in the backseat of a patrol car

“without incident.”

¶ 43 To the extent Brooks’ allegations were meant to challenge the

existence of probable cause to arrest Tweed, we conclude the

allegations still fall short. While the amended complaint alleged

that Brooks couldn’t locate any public record of a case with an

outstanding warrant for Tweed’s arrest, she doesn’t assert that no

warrant existed or that the officers otherwise lacked probable cause

for the arrest.7

¶ 44 Similarly, Brooks doesn’t allege how the officer or officers who

“formed the belief” that Tweed had assaulted them did so

7 We take judicial notice of Tweed’s misdemeanor criminal case in

Adams County Court, which is referenced in the amended complaint and includes a warrant issued on March 23, 2022 — a few months before the events giving rise to this case. See People v. Sena, 2016 COA 161, ¶ 27. The warrant provided “a prima facie showing of probable cause” for Tweed’s arrest. People v. Gouker, 665 P.2d 113, 116 (Colo. 1983). Although the case containing the warrant was sealed after Tweed’s death, we may still reference the warrant’s existence to the extent Brooks challenges the propriety of the officers’ actions in arresting and detaining Tweed. See § 24-72- 703(2)(a)(III), C.R.S. 2025 (“A record sealed pursuant to this article 72 and section 13-3-117[, C.R.S. 2025,] may be used by a . . . court . . . for any lawful purpose relating to the investigation or prosecution of any case . . . .”).

21 unreasonably, or that some objective circumstance contradicted the

officers’ belief. See King, 16 P.3d at 809.

¶ 45 Under these circumstances, we conclude that Brooks’

amended complaint failed to state a plausible claim for a violation of

Tweed’s right to be free from unreasonable seizures.

3. Due Process Claims

¶ 46 Brooks also contends that the district court erred by

dismissing her three survival claims alleging that certain

defendants violated Tweed’s right to due process under the

Colorado Constitution. We address each claim in turn and

conclude that none stated a plausible due process violation.

¶ 47 Under the Colorado Constitution, “[n]o person shall be

deprived of life, liberty or property, without due process of law.”

Colo. Const. art. II, § 25. No published Colorado case has

addressed how Colorado’s due process clause applies to a claim

involving a jail suicide. Because neither party argues that

Colorado’s due process guarantee is more protective than the

federal standard, we will read the Federal and Colorado Due

Process Clauses coterminously for purposes of this opinion and

22 consult federal cases for their persuasive force. See Sanders v.

People, 2024 CO 33, ¶ 28; Vega v. People, 893 P.2d 107, 110 n.5

(Colo. 1995).

¶ 48 This court also hasn’t had occasion to address a state due

process claim brought under section 13-21-131 arising from a jail

suicide. But again, we aren’t without guidance. Because section

13-21-131 is similar to 42 U.S.C. § 1983, we may look to § 1983

cases as persuasive authority. See Woodall, ¶ 13.

¶ 49 Federal courts treat a jail suicide claim as a claim that a jailer

violated a detainee’s right to due process by providing inadequate

medical care. See Barrie v. Grand County, 119 F.3d 862, 866-67

(10th Cir. 1997) (collecting cases). A jailer violates a pretrial

detainee’s due process right to adequate medical care when they are

deliberately indifferent to the detainee’s serious medical needs. Id.

at 867; accord Est. of Burgaz v. Bd. of Cnty. Comm’rs, 30 F.4th

1181, 1186 (10th Cir. 2022).

¶ 50 The deliberate indifference test includes objective and

subjective components. Burgaz, 30 F.4th at 1186. The objective

component requires that the plaintiff establish that the deprivation

23 was sufficiently serious to warrant intervention or treatment. Id.

Death by suicide satisfies this objective requirement. Id.

¶ 51 The subjective component focuses on whether the jailer knew

the detainee “faced a substantial risk of harm and disregarded that

risk by failing to take reasonable measures to abate it.” Id. (quoting

Redmond v. Crowther, 882 F.3d 927, 939-40 (10th Cir. 2018)). A

jailer’s failure to alleviate a serious risk of which they are unaware

doesn’t rise to a constitutional violation. Id.; see also Farmer v.

Brennan, 511 U.S. 825, 837 (1994) (for purposes of the Eighth

Amendment’s ban on cruel and unusual punishments, deliberate

indifference requires that the prison official “knows of and

disregards an excessive risk to inmate health or safety”); Burke v.

Regalado, 935 F.3d 960, 991 (10th Cir. 2019) (explaining that the

deliberate indifference standard that protects pretrial detainees

“springs from the Fourteenth Amendment’s Due Process Clause”

and that courts apply an identical analysis in Eighth Amendment

cases). But a fact finder may infer that the jailer had actual

knowledge of a substantial risk of harm based solely on

circumstantial evidence. Burgaz, 30 F.4th at 1186. The

24 obviousness of a risk, for example, may allow the fact finder to infer

that the jailer in fact knew of the risk but chose to disregard it. Id.

¶ 52 Brooks’ amended complaint also asserted two supervisory

liability claims under Colorado’s due process clause and section 13-

21-131. Under analogous § 1983 precedent, a plaintiff may impose

supervisory liability on a defendant supervisor who creates,

promulgates, or implements a policy that deprives the plaintiff of

any right secured by the Constitution. Brown v. Montoya, 662 F.3d

1152, 1163-64 (10th Cir. 2011); Dodds v. Richardson, 614 F.3d

1185, 1199 (10th Cir. 2010).

¶ 53 But supervisors aren’t vicariously liable under § 1983 for their

employees’ acts, rendering the term “supervisory liability” somewhat

of a misnomer. Iqbal, 556 U.S. at 676-77 (citing Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 691 (1978)). Given this, a plaintiff must

establish an “affirmative link” between the supervisor and the

violation. Dodds, 614 F.3d at 1195 (quoting Serna v. Colo. Dep’t of

Corr., 455 F.3d 1146, 1151 (10th Cir. 2006)). To do so, the plaintiff

must show (1) personal involvement by the supervisor; (2) a

sufficient causal connection; and (3) a culpable state of mind. Id.;

Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 767

25 (10th Cir. 2013). As to the final element, federal courts have

required plaintiffs bringing substantive due process claims to show,

at a minimum, that the supervisor acted with deliberate

indifference. See Schneider, 717 F.3d at 769.

¶ 54 For two reasons, we agree that the centerpiece of this federal

framework — the deliberate indifference standard — supplies the

appropriate benchmark for assessing a plaintiff’s state due process

claim that seeks damages under section 13-21-131 arising from a

jail suicide.

¶ 55 First, Colorado courts have already adopted the federal

deliberate indifference standard when analyzing analogous state

constitutional claims. See Winston v. Polis, 2021 COA 90, ¶¶ 14-16

(adopting the federal deliberate indifference standard for prison

inmate claims alleging cruel and unusual punishment under

Colorado Constitution article II, section 20, in part because section

20 is identical to the Eighth Amendment). Given the overlap

between the claims in Winston and Brooks’ state due process

claims, we perceive no reason to deviate from the established

deliberate indifference standard. Cf. Burke, 935 F.3d at 991.

26 ¶ 56 Second, as discussed, the Colorado due process clause is

coterminous with its federal counterpart for purposes of our

analysis. Sanders, ¶ 28. What’s more, section 13-21-131 is similar

to § 1983. Woodall, ¶ 13. With multiple parallel federal provisions

underpinning our analysis, we deem it appropriate in this context

to maintain uniformity between Colorado and federal law.

Maintaining this consistency has the advantage of reducing forum

shopping. Warne, ¶ 17. In addition, no party has identified, and

we don’t discern, any compelling justification unique to the history

or practice of Colorado for departing from the persuasive guidance

offered by this body of analogous federal law. See id. at ¶ 12; cf.

Curious Theater Co. v. Colo. Dep’t of Pub. Health & Env’t, 220 P.3d

544, 551 (Colo. 2009) (merely disagreeing with the United States

Supreme Court’s interpretation of the same or similar constitutional

provisions, without more, “risks undermining confidence in the

judicial process and the objective interpretation of constitutional

and legislative enactments”).

¶ 57 Accordingly, we hold that a plaintiff seeking damages under

section 13-21-131 for a violation of Colorado’s due process clause,

Colo. Const. art. II, § 25, based on a jail suicide must show that the

27 jailer or their supervisor acted with deliberate indifference. With

these legal principles in mind, we turn to Brooks’ state due process

claims.

b. Failure to Respond Claim

¶ 58 In her first claim, Brooks alleged that all thirty Doe defendants

“failed to reasonably ascertain facts that would have demonstrated

that [Tweed] was at high risk for suicide while housed in [the

detention center], and to respond reasonably to [that] high risk.” To

get there, Brooks described Tweed’s traumatic history and alleged

that “one or more school districts, [the Department of Human

Services], one or more juvenile justice agencies, the juvenile court

system, and at least one state contracted mental health treatment

center” had documented Tweed’s traumatic history.

¶ 59 But Brooks didn’t allege that any defendant knew about

Tweed’s traumatic history or that he was suicidal at the time of his

detention. See Burgaz, 30 F.4th at 1189 (deputy wasn’t deliberately

indifferent toward detainee who died by suicide because, even

though he may have known about detainee’s “history of mental

illness, substance abuse, and a previous suicide attempt at the

same jail,” the complaint didn’t allege that the deputy knew the

28 detainee was suicidal “at that time”). And without actual knowledge

that Tweed was currently suicidal, the defendants couldn’t have

been deliberately indifferent by failing to ascertain Tweed’s medical

and mental health needs. See Woodall, ¶ 8.

¶ 60 Brooks also alleged that officers violated Tweed’s due process

right by using “aggressive tactics,” “aggressively lock[ing Tweed] in a

holding cell,” and inadequately conducting rounds or otherwise

monitoring Tweed. If the officers had known that Tweed was

suicidal, we would agree that using aggressive tactics or

inadequately monitoring him could, under some circumstances,

show deliberate indifference toward his serious medical needs. But

again, Brooks didn’t allege that any defendant knew that Tweed

might harm himself. See Burgaz, 30 F.4th at 1188.

¶ 61 Brooks also asserted that she stated a plausible claim that the

arresting officers violated Tweed’s right to due process by directing

the intake officer to charge Tweed with multiple felonies based on

Tweed’s alleged assault, and that the intake officer similarly violated

Tweed’s right by complying with their request. Again, we disagree.

As already discussed, Brooks didn’t plausibly allege that the officers

29 improperly charged Tweed or that they arrested him without

probable cause.

¶ 62 We also aren’t persuaded that Brooks’ allegation that officers

assigned Tweed a higher classification level due to the trumped-up

assault charges was enough to nudge the claim “across the line

from conceivable to plausible.” Twombly, 550 U.S. at 570.

Classification decisions fall within the correctional institution’s

discretion, and a particular classification doesn’t implicate any

liberty interest protected by due process. Green v. Nadeau, 70 P.3d

574, 577 (Colo. App. 2003); see also Andretti v. Johnson, 779 P.2d

382, 384 (Colo. 1989) (“It is well established that prisoners do not

have a constitutional right to a particular classification level within

a correctional system.”).

¶ 63 Accordingly, we perceive no error in the district court’s

decision dismissing Brooks’ failure to respond claim under

Rule 12(b)(5).

c. Supervisory Liability Claims

¶ 64 In her second claim, Brooks alleged that Chief Pazen and

Sheriff Diggins failed to implement effective suicide prevention

policies. And in her third claim, Brooks alleged that Pazen, Diggins,

30 and fifteen Doe defendants inadequately supervised their

employees.8

¶ 65 Regarding specific policies, Brooks alleged that Chief Pazen

was responsible for “enacting responsible, ethical, moral, [and] legal

policies,” and that the police department’s policies fail to adequately

account for its “extraordinary responsibility” to “keep people alive.”

While Brooks acknowledged in her amended complaint that the

department’s operations manual contains a policy directing officers

to complete an “Arrestee Mental Health Status/Suicidal/Homicidal

Tendency Report” if an officer suspects a detainee may be suicidal,

she took issue with the absence of “procedures by which a [police]

officer is to determine whether an arrestee is suicidal.” She added

that the manual doesn’t address “scenarios in which a [police]

officer should or must take an arrestee for medical or mental health

treatment” before transporting them to the detention center.

8 Brooks made similar allegations against the City, the hospital

authority, and Lynne in her second and third claims. On appeal, however, Brooks doesn’t challenge the district court’s dismissal of her second and third claims as to those defendants. See Armed Forces Bank, N.A. v. Hicks, 2014 COA 74, ¶ 38 (arguments not pursued on appeal are deemed abandoned).

31 ¶ 66 As to Sheriff Diggins, Brooks similarly alleged that he failed to

develop effective suicide prevention policies for the detention center.

According to Brooks, the sheriff department’s inmate handbook

doesn’t (1) identify a “mental health screening” policy; (2) require

sheriff’s department staff to evaluate a detainee’s mental health

status during the classification process; (3) explain to detainees or

jail staff how to identify whether someone is experiencing a mental

health crisis; or (4) devote more than one paragraph to a suicide

prevention policy.

¶ 67 We conclude none of these allegations plausibly alleged that

Chief Pazen or Sheriff Diggins acted with deliberate indifference

when implementing their respective agencies’ suicide prevention

policies. See Schneider, 717 F.3d at 769. Brooks never alleged that

Pazen or Diggins knew that their agencies’ suicide prevention

policies presented an excessive risk to detainees’ safety. See

Farmer, 511 U.S. at 837. Nor did she allege that the risk from the

allegedly deficient policies was so obvious that their knowledge

could reasonably be inferred. See Burgaz, 30 F.4th at 1186.

Without allegations demonstrating deliberate indifference, we

32 discern no error in the district court’s dismissal of Brooks’ second

claim under Rule 12(b)(5).

¶ 68 We reach the same conclusion regarding Brooks’ third claim in

which she alleged that Chief Pazen, Sheriff Diggins, and fifteen Doe

defendants inadequately supervised their respective employees.

Her allegations in support of this claim were sparse. She alleged

only that these “[s]upervision [d]efendants” (1) were responsible for

ensuring that their employees “did their jobs in such a way as to

protect the lives of people arrested and detained” in Denver;

(2) “failed to reasonably discharge their supervisory duties over their

employees”; and (3) caused Tweed’s death. Relatedly, Brooks

alleged that the police department’s training failed to adequately

prepare its employees “to exercise the requisite responsibility . . . to

keep people alive” while in custody.

¶ 69 As with her first and second claims, these allegations don’t

demonstrate deliberate indifference. Nowhere did Brooks plead

facts suggesting that the defendant supervisors knew that their

allegedly inadequate supervision or training presented a substantial

risk of harm to detainees. We also don’t see any allegations

33 suggesting that the risk from their lax supervision and training was

so obvious that a jury could reasonably infer such knowledge.

¶ 70 Accordingly, the district court didn’t err by dismissing Brooks’

supervisory liability claims for failure to state a claim under Rule

12(b)(5).

4. Damages Remedy Under the Colorado Constitution

¶ 71 Brooks requests that we recognize a damages remedy against

government actors who aren’t peace officers covered by section 13-

21-131 when they violate a pretrial detainee’s rights under the

Colorado Constitution. In doing so, Brooks acknowledges that the

supreme court in Sundheim refused to recognize a damages remedy

under the state constitution but argues that the facts here are

distinguishable. She also requests that we recognize a damages

remedy against the employer of a government actor who violates a

person’s state constitutional rights. We decline her requests.

¶ 72 We have already concluded that Brooks failed to plausibly

state a claim that any government actor violated Tweed’s state

constitutional rights. Recognizing a damages remedy under the

Colorado Constitution as Brooks requests wouldn’t cure those

34 deficiencies. As a result, we need not address Brooks’ requests.9

See Moss v. Bd. of Cnty. Comm’rs, 2015 COA 35, ¶ 43.

¶ 73 Even if we considered Brooks’ requests, we would deny them.

In Sundheim, the supreme court “refuse[d] to recognize an implied

cause of action” for damages arising from violations of rights

secured by the Colorado Constitution. 926 P.2d at 549. While the

court said it was limiting its refusal to the facts of that case

involving a family’s due process and equal protection challenges to

a county’s licensing and zoning determinations, id., it also clarified

that “where other adequate remedies exist, no implied remedy is

necessary,” id. at 553.

¶ 74 Brooks’ own pleadings confirm that she has an adequate

remedy under section 13-21-131 against the defendants who are

peace officers. Moreover, she doesn’t contest the district court’s

conclusion that § 1983 provides an adequate remedy against the

defendants generally. In light of these other available remedies, we

9 For the same reason, we don’t reach Brooks’ argument that

government employers should be held vicariously liable when their employees commit state constitutional violations. We also offer no opinion on whether the division in Ditirro v. Sando, 2022 COA 94, resolved this question.

35 perceive no basis for distinguishing Sundheim or otherwise

deviating from its binding holding. See Herrera v. Lerma, 2018 COA

141, ¶ 30 (divisions of the court of appeals are bound to follow

supreme court precedent); see also Young v. Larimer Cnty. Sheriff’s

Off., 2014 COA 119, ¶ 30 (declining to deviate from Sundheim, in

part, because other state constitutional provisions authorized

“specific remedies”).

C. Brooks’ Wrongful Death Claim

¶ 75 Brooks contends that the district court erred by dismissing

her wrongful death claim against the City for failure to state a

plausible claim for negligence.10 For its part, the City disagrees but

also challenges Brooks’ standing to bring a wrongful death claim in

the first place. We reject the City’s standing challenge but

nonetheless perceive no error in the district court’s dismissal of the

wrongful death claim.

10 Brooks originally brought her wrongful death claim against the

City, Chief Pazen, Sheriff Diggins, and twenty-five Doe defendants. But the Doe defendants were never served, and Brooks has conceded on appeal that the wrongful death claims against Pazen and Diggins are time barred. See § 13-80-103(1)(c), C.R.S. 2025 (imposing a general statute of limitations of one year for claims against, among others, sheriffs and police officers).

36 1. Standing

¶ 76 The City asserts Brooks lacked standing to bring her wrongful

death claim because it challenged “whether Ms. Brooks’ was really

Mr. Tweed’s common law spouse” in its motion to dismiss, and

Brooks presented no evidence to overcome its challenge.

¶ 77 In a Rule 12(b)(1) motion to dismiss, a defendant may either

(1) facially attack the sufficiency of the complaint’s allegations

regarding subject matter jurisdiction or (2) factually attack the

complaint’s allegations by presenting evidence challenging the

factual basis for subject matter jurisdiction. See Archangel

Diamond Corp. v. Arkhangelskgeoldobycha, 94 P.3d 1208, 1213-14

(Colo. App. 2004), aff’d in part and rev’d in part on other grounds

sub nom., Archangel Diamond Corp. v. Lukoil, 123 P.3d 1187 (Colo.

2005). In reviewing a facial attack, the court must accept the

complaint’s allegations as true. Id. at 1213. But when a court

reviews a complaint under a factual attack, the allegations have no

presumptive truthfulness. Medina v. State, 35 P.3d 443, 452 (Colo.

2001). Instead, the court must weigh the evidence and has

discretion to allow affidavits, documents, and a limited evidentiary

37 hearing to resolve disputed jurisdictional facts. Id.; Archangel, 94

P.3d at 1214.

¶ 78 Although the plaintiff bears the burden of proving subject

matter jurisdiction, Medina, 35 P.3d at 452, a necessary

prerequisite to a proper factual attack is that the court is presented

with competing facts that require resolution. See Const. Party v.

Aichele, 757 F.3d 347, 358 (3d Cir. 2014) (construing the

defendant’s motion as a facial attack, in part, because it didn’t

present competing facts); cf. Stuart v. Colo. Interstate Gas Co., 271

F.3d 1221, 1225 (10th Cir. 2001) (explaining the defendant lodged a

factual attack by “offering affidavits in support” of its challenge to

the court’s subject matter jurisdiction).11

¶ 79 Here, the City didn’t present affidavits or other documents in

support of its challenge to Brooks’ status as Tweed’s common law

spouse. It also didn’t request an evidentiary hearing in its motion

to dismiss Brooks’ amended complaint. Instead, the City simply

argued that Brooks didn’t “sufficiently allege she is a proper heir” of

11 Because C.R.C.P. 12(b)(1) is largely identical to its federal

counterpart, we look to federal authorities for guidance in construing the rule. Trinity Broad. of Denv., Inc. v. City of Westminster, 848 P.2d 916, 924 (Colo. 1993).

38 Tweed and “fail[ed] to plead facts sufficient to establish the

existence of a common law marriage.”

¶ 80 Because the City didn’t present evidence in support of a

factual attack or request an opportunity to do so, the district court

was required to treat as true Brooks’ allegation that she was

Tweed’s common law spouse. See Archangel, 94 P.3d at 1213;

Salter v. Quality Carriers, Inc., 974 F.3d 959, 964 (9th Cir. 2020)

(party raised only a facial attack against federal jurisdiction because

he failed to “offer any declaration or evidence” challenging the

factual bases for jurisdiction and argued merely that the opposing

party needed to support its jurisdictional allegations with

“competent proof”).

¶ 81 Accordingly, we reject the City’s argument that Brooks lacked

standing to bring the wrongful death claim.

2. Additional Applicable Law and Standard of Review

¶ 82 While public entities are generally immune from liability for

claims that lie in tort or could lie in tort, § 24-10-106(1), C.R.S.

2025, the General Assembly has waived sovereign immunity for

injuries that result from the operation of a jail by a public entity,

§ 24-10-106(1)(b). As relevant here, a public entity isn’t immune if

39 a claimant who is “incarcerated but not yet convicted of [a]

crime . . . can show injury due to negligence.” § 24-10-106(1.5)(b).

¶ 83 To prevail on a negligence claim, the plaintiff must prove

“(1) that [a defendant] owed her a legal duty of care; (2) the

defendant breached that duty; (3) injury to herself; and

(4) causation.” Westin Operator, LLC v. Groh, 2015 CO 25, ¶ 23.

¶ 84 The existence and scope of the legal duty owed by a particular

defendant to a particular plaintiff are questions of law that we

review de novo. English v. Griffith, 99 P.3d 90, 93 (Colo. App. 2004).

3. Analysis

¶ 85 In the amended complaint, Brooks alleged that the City

breached its duty to prevent Tweed’s suicide while he was in

custody.

¶ 86 We agree that this case turns on duty. To start, we have little

difficulty concluding that the City owed Tweed some duty to protect

him from self-harm while he was in custody. After all, no dispute

exists that the City occupied a “special relationship” by having

custodial control over Tweed. Moore v. W. Forge Corp., 192 P.3d

427, 432 (Colo. App. 2007) (citing English, 99 P.3d at 94). And a

division of this court has previously described a jailer’s duty as

40 “receiv[ing] and safely detain[ing] every person duly committed

thereto.” Howard v. City & County of Denver, 837 P.2d 255, 257

(Colo. App. 1992).

¶ 87 But the parties cite no published Colorado case, and our

independent research reveals none, addressing the scope of that

duty. We therefore look to decisions in other jurisdictions that have

considered the question. See P.W. v. Child.’s Hosp. Colo., 2016 CO

6, ¶ 23 (“With no Colorado case directly on point, we look to the

decisions of other jurisdictions for persuasive guidance.”).

¶ 88 In Cockrum v. State, 843 S.W.2d 433, 436 (Tenn. Ct. App.

1992), the court surveyed decisions from across the county to

determine whether prison officials have a duty to protect inmates

from self-inflicted injury or death. The court explained that,

although the scope of a custodian’s duty generally doesn’t extend to

protecting inmates from self-inflicted injury or death, their duty can

be “expanded” to encompass such obligations “when the prison

officials know or should know that the prisoner might harm himself

or herself.” Id. Aligning itself with the “consistent[] hold[ings]” of

courts in other jurisdictions, the court determined that a custodian

41 has a duty to protect inmates from “reasonably foreseeable self-

destructive acts.” Id.

¶ 89 While the foreseeability requirement gleaned in Cockrum arose

in the prison context, courts addressing jail suicides have similarly

required that the risk of self-inflicted harm or death be reasonably

foreseeable to impose liability. See, e.g., Horne v. Beason, 331

S.E.2d 342, 344-45 (S.C. 1985); Kanayurak v. N. Slope Borough,

677 P.2d 893, 897 (Alaska 1984); Guice v. Enfinger, 389 So. 2d 270,

271 (Fla. Dist. Ct. App. 1980).

¶ 90 We agree with the reasoning of these courts. Like Cockrum

and the decisions it cites, our supreme court has emphasized that

“foreseeability is an integral element of duty.” Westin Operator, ¶ 33

n.5; accord P.W., ¶ 26 (in a negligence suit against a hospital that

admitted a suicidal patient and failed to prevent his suicide

attempt, the plaintiff must still “prove that the defendant had a

duty to prevent foreseeable harm”); cf. Taco Bell, Inc. v. Lannon, 744

P.2d 43, 46-47 (Colo. 1987) (holding that owners or occupiers of

land open for business have a duty “to take reasonable measures to

protect customers from injuries caused by the criminal acts of

unknown third persons when such acts are generally foreseeable”).

42 Given this legal landscape, we hold that a jailer has a duty to

protect a detainee from self-inflicted injury or death only if the risk

of such harm is reasonably foreseeable.

¶ 91 In this case, Brooks didn’t allege any facts suggesting that the

City (or any defendant) knew or should have reasonably foreseen

that Tweed might take his own life. While her amended complaint

recounted Tweed’s long history of trauma and mental health

disorders, no allegation suggested that the City had access to this

information or that Tweed communicated it upon being booked into

the detention center.

¶ 92 Finally, although Brooks alleged that certain Doe defendants

failed to reasonably assess and ascertain Tweed’s mental health

disorders when booking him into the detention center, we agree

with the district court that those allegations were conclusory. See

Woodall, ¶ 8 (when evaluating a motion to dismiss under Rule

12(b)(5), a court need not accept bare or conclusory assertions as

true). Brooks’ amended complaint didn’t identify, for example, any

specific screening techniques or questions that the intake officers

should have used but didn’t when assessing Tweed.

43 ¶ 93 Accordingly, the district court didn’t err by dismissing Brooks’

wrongful death claim under Rule 12(b)(5).

III. Appellate Attorney Fees

¶ 94 The Denver defendants expend three sentences of their answer

brief requesting appellate attorney fees under section 13-17-201(1),

C.R.S. 2025, asserting they have successfully defended on appeal

the district court’s Rule 12(b) dismissal of Brooks’ claims. We

conclude their request is underdeveloped, so we deny it. See Sos v.

Roaring Fork Transp. Auth., 2017 COA 142, ¶ 59 (declining to

address undeveloped attorney fees request); Sinclair Transp. Co. v.

Sandberg, 2014 COA 75M, ¶ 14 n.1 (declining to consider attorney

fees issue “presented without any developed argument” and

supported “by only the most generic citation of authority”).

¶ 95 The party requesting attorney fees bears the burden of proving

entitlement to such an award. Mosley v. Daves, 2025 COA 80,

¶ 55.

¶ 96 Under section 13-17-201(1), the defendant “shall” be awarded

their attorney fees when the court dismisses a tort action on the

defendant’s motion under Rule 12(b) before trial. See Gagne v.

Gagne, 2014 COA 127, ¶ 74. A defendant who successfully defends

44 a dismissal order on appeal is generally entitled to recover their

reasonable appellate attorney fees. See Kreft v. Adolph Coors Co.,

170 P.3d 854, 859 (Colo. App. 2007). But the statute contains a

safe harbor provision that precludes an award of attorney fees for

any good faith, nonfrivolous claim filed for the express purpose of

(1) changing existing law; or (2) establishing a law’s meaning,

lawfulness, or constitutionality that hasn’t yet been determined by

the Colorado Supreme Court or, for questions arising under the

Federal Constitution, the United States Supreme Court. See § 13-

17-201(2).

¶ 97 In addition, different criteria govern attorney fees and cost

requests made by prevailing defendants in actions brought under

section 13-21-131. Under that section, “[w]hen a judgment is

entered in favor of a defendant, the court may award reasonable

costs and attorney fees to the defendant for defending any claims

the court finds frivolous.” § 13-21-131(3) (emphasis added); see

also AA Wholesale Storage, LLC v. Swinyard, 2021 COA 46, ¶ 29

(the word “may” generally indicates a grant of discretion). Put

differently, a court must find that a claim is frivolous before

exercising its discretion to award attorney fees or costs to a

45 prevailing defendant in an action brought under section 13-21-131.

See Waugh v. Veith, 2025 COA 41M, ¶ 15.

¶ 98 We conclude for four reasons that the Denver defendants’

request for appellate attorney fees isn’t adequately developed. First,

the Denver defendants haven’t explained why this action — in

which Brooks asserted three due process claims, one unreasonable

seizure claim, and one negligence claim — constitutes a tort action

that qualifies them for an award of attorney fees under section 13-

17-201(1). Second, even if Brooks’ suit were fairly characterized as

a tort action, Brooks’ amended complaint expressly invoked section

13-17-201(2)’s safe harbor in her three due process claims by

advancing arguments for limiting Sundheim. Yet the Denver

defendants fail to explain how the safe harbor affects their attorney

fees request. Third, the Denver defendants don’t argue that Brooks’

four claims brought under section 13-21-131, or her appellate

arguments related to those claims, were frivolous. See § 13-21-

131(3); Waugh, ¶ 15. Finally, even if Brooks’ claims under section

13-21-131 could be viewed as frivolous, the Denver defendants

don’t explain why we should exercise our discretion to award them

attorney fees for responding to those claims.

46 ¶ 99 Accordingly, we deny the Denver defendants’ request for

appellate attorney fees.

IV. Disposition

¶ 100 We affirm the district court’s order granting the Denver

defendants’ and the hospital defendants’ motions to dismiss Brooks’

amended complaint and deny the Denver defendants’ request for

attorney fees.

JUDGE FOX and JUDGE KUHN concur.