25CA1200 Eaves v Kilcullen 06-04-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1200 El Paso County District Court No. 24CV490 Honorable Michael McHenry, Judge
Rodney Douglas Eaves,
Plaintiff-Appellant,
v.
Brittany Kilcullen, C.O. Romack, C.O. Morningrave a/k/a Morningwake, Austin Chrestensen, Jason Lengerigh, Brittany Hathaway, Marshall Griffith, Moses Stancil, C.O. Hildebrand, Kasey Artichoker, Narva Courtney, C.O. Sherwood, James Hill, Richard Mata, Derrick Dockter, Jessica Gallegoes, and Clarence Vandyke,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE BROWN Harris and Tow, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 4, 2026
Rodney Douglas Eaves, Pro Se
Philip J. Weiser, Attorney General, Taylor R. Bast, Assistant Attorney General II, Denver, Colorado, for Defendants-Appellees Kilcullen, Romack, Morningrave a/k/a Morningwake, Chrestensen, Lengerigh, Hathaway, Griffith, Stancil, Hildebrand, Artichoker, Courtney, Sherwood, Hill, and Vandyke
Hall & Evans, L.L.C., Andrew Ringle, Edmund M. Kennedy, Denver, Colorado, for Defendants-Appellees Mata, Dockter, and Gallegoes ¶1 Plaintiff, Rodney Douglas Eaves, appeals the district court’s
judgment dismissing his complaint against two sets of defendants:
first, those employed by the State of Colorado — Brittany Kilcullen,
Jeffrey Romack, Carrie Morningwake,1 Austin Chrestensen, Jason
Lengerigh, Brittany Hathaway, Marshall Griffith, Moses Stancil,
James Hildebrand, Kasey Artichoker, Narva Courtney, Michael
Sherwood, James Hill, and Clarence Vandyke (collectively, the State
Defendants); and second, those employed by the Bent County
Correctional Facility (BCCF) — Richard Mata, Derrick Dockter, and
Jessica Gallegoes (collectively, the BCCF Defendants). We affirm.
I. Background
¶2 In November 2024, Eaves filed his original complaint in the El
Paso County District Court, raising three claims against the State
Defendants and one claim against both the State Defendants and
the BCCF Defendants.
¶3 In claim one, Eaves alleged that certain State Defendants
“willfully or recklessly or negligently disposed of [his] property” or
1 Throughout his original complaint, Eaves referred to State
Defendant Morningwake as “Morningrave” or “Moringrave.” He corrected the spelling of Morningwake’s name in subsequent filings with the district court.
1 “failed to properly inventory [the] property which led to its loss.” He
also alleged that the State Defendants “willfully or recklessly
retaliated against [him] for his religious beliefs . . . and disposed of
[his] religious faith items.” Eaves alleged that the State Defendants’
actions led him to permanently be deprived of property.
¶4 In claim two, Eaves alleged that both the State Defendants
and the BCCF Defendants fraudulently conducted an
administrative hearing that resulted in the disposal of his personal
property. Specifically, Eaves alleged that the BCCF Defendants
“perpetrated a fraud against” him by convincing him “that the
administrative hearing being conducted was being held according to
their contractual obligations to the State of Colorado.” He further
alleged that he informed certain State Defendants “that a fraud had
been perpetrated” but that the State Defendants “helped cover up
the fraud by allowing [the BCCF] Defendants to conduct the
hearing” without “address[ing] or investigating the fraud.” Eaves
alleged that the fraud “contributed to the willful or reckless or
negligent loss of [his] property.”
2 ¶5 In claim three, Eaves alleged that certain State Defendants
“disposed of [his] property” in a manner that violated “the [Colorado
Department of Corrections’ (CDOC)] Administrative Regulations.”
¶6 Finally, in claim four, Eaves alleged that certain State
Defendants “willfully or recklessly or negligently denied religious
property.”
¶7 Eaves asked the court to enter judgment against the
defendants “jointly and severally in the amounts established by the
evidence, interest, costs and punitive damages in the amount of
$1000.00 against each defendant jointly and severally.”
¶8 The State Defendants filed a motion to dismiss the complaint
for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1),
arguing that Eaves’ claims against them were barred by the
Colorado Governmental Immunity Act (CGIA). Specifically, the
State Defendants argued that Eaves’ claims were tort claims and
that Eaves failed to allege facts sufficient to show that the State
Defendants acted willfully or wantonly.
¶9 Eaves then filed an amended complaint, altering only the
allegations in claim two and leaving claims one, three, and four
unchanged. Eaves’ amendments clarified that the second claim
3 concerned the defendants’ conduct related to two CDOC
administrative hearings held in 2023: Hearing No. 23-151, held
March 23, and Hearing No. 23-239, held April 27. Eaves alleged
that the BCCF Defendants executed a contract with the State of
Colorado — “Contract #129085” — that required administrative
hearings to be conducted by a hearing officer “above the rank of
correctional officer III.” According to Eaves, the BCCF Defendants
represented that the hearing officer who conducted the hearings
“was authorized by CD[OC] to be a hearing officer” but that the
“representation was false because” the BCCF Defendants “knew
that [the hearing officer] was not a correctional officer III or above.”
Eaves alleged that the BCCF Defendants’ fraud, and the State
Defendants’ subsequent “cover up,” led Eaves “to believe he was
receiving an impartial hearing which ultimately led to [him] being
transferred from his residence in violation of Contract #129085.”
¶ 10 After filing his amended complaint, Eaves responded to the
State Defendants’ motion to dismiss his original complaint, arguing
that the CGIA did not immunize the State Defendants from liability
for his claims. As relevant to this appeal, Eaves argued that his
4 original complaint alleged facts sufficient to show that the State
Defendants engaged in willful and wanton conduct.
¶ 11 In response to Eaves’ original complaint, the BCCF Defendants
filed a motion for a more definite statement. The district court
granted the motion and ordered Eaves to file an amended
complaint, but it did not enter that order until after Eaves filed his
first amended complaint. To avoid confusion, the court ordered
Eaves to file a second amended complaint, and Eaves complied with
the court’s order. Although Eaves updated the title of the pleading
to reflect that it was his second amended complaint, his allegations
mirrored those in the first amended complaint.
¶ 12 Before the defendants had an opportunity to respond to Eaves’
second amended complaint, the court granted the State Defendants’
motion to dismiss Eaves’ original complaint. In a May 16 order, the
court concluded that “all of [Eaves’] claims lie in tort and are
subject to the CGIA” and that Eaves had “not alleged any facts that
show the State Defendants acted in a willful or wanton manner.”
Thus, the court concluded that “the State Defendants [were] entitled
to immunity under the CGIA” and dismissed Eaves’ claims against
the State Defendants for lack of subject matter jurisdiction.
5 ¶ 13 Three days later, the State Defendants filed a motion to
dismiss the second amended complaint. On May 21, the court
deemed the State Defendants’ motion moot “because the court was
focused on [Eaves’] [s]econd [a]mended [c]omplaint when it granted
[the State] Defendants’ first motion to dismiss.” The court
explained that Eaves’ “second complaint did not cure the defects of
the first complaint, and the court’s granting of [the State]
Defendants’ motion to dismiss applies to the second complaint.”
¶ 14 Separately, the BCCF Defendants filed a motion to dismiss the
second amended complaint, arguing that the claim Eaves asserted
against them involved a challenge to the referenced administrative
hearings, was governed by C.R.C.P. 106.5, and had to be filed
within twenty-eight days of the final decisions from those hearings.
Because Eaves filed his original complaint more than a year after
the hearings, the BCCF Defendants argued that the claim was time
barred. The court agreed and granted the BCCF Defendants’
motion to dismiss. This appeal followed.
II. Analysis
¶ 15 Eaves contends that the district court erred by (1) failing to
consider his response to the State Defendants’ motion to dismiss;
6 (2) concluding that the State Defendants were immune from his
claims under the CGIA; and (3) dismissing his claim against the
BCCF Defendants. We discern no basis to reverse.
A. Standard of Review
¶ 16 We generally review a trial court’s order dismissing a
complaint for lack of subject matter jurisdiction under C.R.C.P.
12(b)(1) as a mixed question of fact and law, reviewing the court’s
factual findings for clear error and its legal conclusions de novo.
Ferguson v. Spalding Rehab., LLC, 2019 COA 93, ¶ 7. But when, as
here, “all relevant evidence is presented to the trial court, and the
underlying facts are undisputed, the trial court may decide the
jurisdictional issue as a matter of law, in which case appellate
review is de novo.” Medina v. State, 35 P.3d 443, 452 (Colo. 2001);
accord Roane v. Elizabeth Sch. Dist., 2024 COA 59, ¶ 19.
¶ 17 Because Eaves filed this appeal without the assistance of
counsel, we construe his briefs broadly to ensure that he is not
denied review of important issues because of his inability to
articulate his argument like a lawyer. Jones v. Williams, 2019 CO
61, ¶ 5. Still, it is not our role to rewrite his briefs or to act as his
advocate. Johnson v. McGrath, 2024 COA 5, ¶ 10.
7 B. Procedural Challenge
¶ 18 Eaves contends that the district court abused its discretion by
granting the State Defendants’ motion to dismiss without first
considering his response. We agree but conclude that the error was
harmless.
¶ 19 To evaluate Eaves’ contention, we summarize the relevant
procedural history. After Eaves filed his original complaint, the
State Defendants filed a motion to dismiss. Eaves filed a response
twelve days later. Separately, Eaves filed an amended complaint
and then a second amended complaint, as ordered by the court.
Notwithstanding the first and second amended complaints, the
district court granted the State Defendants’ motion to dismiss
Eaves’ original complaint. In doing so, the court noted that Eaves
“did not file a [r]esponse.” The State Defendants then filed a motion
to dismiss Eaves’ second amended complaint. The court deemed
that motion moot but essentially dismissed the second amended
complaint on the same grounds as the original complaint.
¶ 20 We perceive two errors in the procedures the court followed
when dismissing the second amended complaint. First, as Eaves
contends on appeal, the court erred by granting the State
8 Defendants’ motion to dismiss without considering his response.
The court’s May 16 dismissal order noted that Eaves “did not file a
[r]esponse,” but the court’s observation is contradicted by the
record. Eaves timely filed a response twelve days after the State
Defendants filed their motion to dismiss his original complaint and
more than a month before the court issued the May 16 order. See
C.R.C.P. 121, § 1–15(1)(b) (“[A] responding party shall have 21 days
after the filing of the motion or such lesser or greater time as the
court may allow in which to file a responsive brief.”). Because the
May 16 order shows that the court did not consider Eaves’ timely
filed response before granting the State Defendants’ motion, the
court erred.
¶ 21 Second, the court erred by granting the State Defendants’
motion to dismiss Eaves’ original complaint because, by the time
the court issued the May 16 order, Eaves’ original complaint was no
longer the operative complaint. See C.A.R. 1(d) (stating that an
appellate court may “notice any error appearing of record”).
Generally, when a plaintiff files an amended complaint, the original
complaint is superseded, and the amended filing becomes the
operative complaint for the litigation. Currier v. Sutherland, 218
9 P.3d 709, 715 (Colo. 2009). When Eaves filed his second amended
complaint on May 5, his original complaint was superseded, and
the State Defendants’ motion to dismiss Eaves’ original complaint
became moot. See Castillo v. Stem Sch. Highlands Ranch, 2025
COA 88, ¶ 25 (“A [motion] becomes moot when the relief sought, if
granted, would have no practical legal effect on the controversy.”).
Thus, the court should not have dismissed the second amended
complaint based on the State Defendants’ motion to dismiss the
original complaint.
¶ 22 Although the court erred both by failing to consider Eaves’
timely filed response to the State Defendants’ motion to dismiss and
by granting that motion after Eaves filed a second amended
complaint, we conclude that these errors are harmless for two
reasons. See C.R.C.P. 61 (an error is harmless if it did not affect a
substantial right of a party); Bly v. Story, 241 P.3d 529, 535 (Colo.
2010) (an error affects a party’s substantial right if it substantially
influences the outcome of the case or impairs the basic fairness of
the trial itself).
¶ 23 First, because we review the court’s order dismissing Eaves’
second amended complaint de novo, see Medina, 35 P.3d at 452, we
10 will consider his response to the State Defendants’ motion to
dismiss, even if the district court failed to do so. See Hemmann
Mgmt. Servs. v. Mediacell, Inc., 176 P.3d 856, 859 (Colo. App. 2007)
(In our de novo review of a motion to dismiss, “we are in as good a
position as the trial court to assess” the parties’ pleadings and may
resolve the issue ourselves as a matter of law.). And second, the
May 21 order effectively dismissed the second amended complaint
for the same reason the court dismissed the original complaint, and
we consider the merits of both orders as challenged by Eaves in this
appeal. Thus, these errors did not affect Eaves’ substantial rights
and provide no basis to reverse. See Bly, 241 P.3d at 535.
C. Claims Against the State Defendants
¶ 24 Eaves contends that the district court erred by determining
that the CGIA barred his claims against the State Defendants
because (1) he raised each claim within the context of a breach of
contract; (2) section 13-21-131(2)(a), C.R.S. 2025, waives the State
Defendants’ immunity; and (3) he alleged sufficient facts to show
willful and wanton conduct. We disagree.
11 1. Applicable Law and Standard of Review
¶ 25 “The General Assembly enacted the CGIA to limit the potential
liability of public [employees] for compensatory damages in tort.”
Grand Junction Peace Officers’ Ass’n v. City of Grand Junction, 2024
COA 89, ¶ 17. Under the CGIA, a public employee is immune from
“liability in any claim for injury . . . which lies in tort or could lie in
tort . . . unless the act or omission causing such injury was willful
and wanton.” § 24-10-118(2)(a), C.R.S. 2025. However, the
immunity provided by the CGIA does not extend to “actions
grounded in contract.” City of Aspen v. Burlingame Ranch II Condo.
Owners Ass’n, 2024 CO 46, ¶ 30 (quoting Robinson v. Colo. State
Lottery Div., 179 P.3d 998, 1003 (Colo. 2008)).
¶ 26 “The determination of whether there is immunity under the
CGIA is a question of subject matter jurisdiction to be decided
pursuant to C.R.C.P. 12(b)(1).” Moran v. Standard Ins. Co., 187
P.3d 1162, 1164 (Colo. App. 2008). The plaintiff bears the burden
of establishing that the public entity or employee is not immune
under the CGIA and that the trial court has jurisdiction over the
claim. Henderson v. City & County of Denver, 2012 COA 152, ¶ 21.
12 2. Eaves Failed to Preserve His Contention that His Claims Arose Out of a Breach of Contract
¶ 27 Eaves first contends that the district court erred by
determining that his claims against the State Defendants were tort
claims subject to the CGIA. Rather, Eaves argues that his second
amended complaint “clearly states that his claims arose out of
contractual obligations.” We conclude that this contention is
unpreserved.
¶ 28 We acknowledge that Eaves alleged that a contract existed
between BCCF and the State of Colorado. But in his response to
the State Defendants’ motion to dismiss, Eaves “affirmatively
agree[d] and assert[ed] that all his claims are for actions that lie in
tort.” Eaves did not defend against the motion to dismiss on the
ground that he had pleaded a breach of contract claim: He did not
identify a contract, assert that any one of the State Defendants had
breached a contract, or explain how the breach had caused an
injury. Rather, he argued that the State Defendants had waived
immunity under section 24-10-106(1)(b), C.R.S. 2025, an argument
he has abandoned on appeal. See People v. Hall, 87 P.3d 210, 213
13 (Colo. App. 2003) (we deem abandoned any argument raised before
the district court but not pursued on appeal).
¶ 29 Because Eaves failed to preserve his contention that his claims
are contract claims, we do not address it. See Kritzer v. Qwest
Corp., 2025 COA 54, ¶ 23 (an issue is not preserved for appellate
review if the party makes one argument to the trial court and a
different one on appeal); Rinker v. Colina-Lee, 2019 COA 45, ¶ 22
(“We do not review issues that have been insufficiently preserved.”).
3. Eaves Failed to Preserve His Contention that Section 13-21- 131 Waived the State Defendants’ CGIA Immunity
¶ 30 Eaves next contends that the State Defendants are not
immune from his claims because section 13-21-131(2)(a) waives
CGIA immunity for correctional officers. But Eaves did not cite
section 13-21-131 or make any arguments concerning that statute’s
alleged waiver of CGIA immunity either in his second amended
complaint or in his response to the State Defendants’ motion to
dismiss. Because Eaves did not raise this argument in the district
court, this contention is also unpreserved, and we will not address
14 it.2 See Am. Fam. Mut. Ins. Co. v. Allen, 102 P.3d 333, 340 n.10
(Colo. 2004) (“Arguments not raised before the trial court may not
be raised for the first time on appeal.”).
4. Eaves Did Not Allege Facts Sufficient to Show that the State Defendants’ Conduct Was Willful and Wanton
¶ 31 Finally, Eaves contends that the district court erred by
determining that his second amended complaint failed to allege
facts sufficient to show that the State Defendants’ conduct was
willful and wanton. We are not persuaded.
¶ 32 Within the context of the CGIA, a “public employees’ actions
are willful and wanton when the employees are ‘consciously aware
that their acts or omissions create danger or risk to the safety of
2 Construing the opening brief broadly, Eaves also appears to
challenge the district court’s failure to hold an evidentiary hearing. See Trinity Broad. of Denv., Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993). But such hearings are necessary only when the parties’ evidence presents a dispute of fact bearing on questions of immunity. See id. at 924; Medina v. State, 35 P.3d 443, 452-53 (Colo. 2001) (a trial court may decide a jurisdictional issue as a matter of law if all relevant evidence is presented to the court and the underlying facts are undisputed). The only facts that Eaves argues were disputed relate to his claim that section 13-21-131(2)(a), C.R.S. 2025, waived the State Defendants’ immunity under the CGIA. Because Eaves never raised section 13- 21-131 in the district court, we cannot conclude that the court erred by failing to hold a hearing to resolve disputed facts relevant to that argument.
15 others, and they then act, or fail to act, without regard to the
danger or risk.’” L.J. v. Carricato, 2018 COA 3, ¶ 33 (citation
omitted). To avoid dismissal under the CGIA, a plaintiff must do
more than “merely assert that a public employee’s acts or omissions
were willful and wanton.” Id. The complaint must allege “‘specific
facts to support a reasonable inference’ that the employee was
consciously aware that [their] acts or omissions created danger or
risk to the safety of others, and that [they] acted, or failed to act,
without regard to the danger or risk.” Id. (citation omitted).
¶ 33 We conclude that Eaves’ second amended complaint does not
allege sufficient facts to show that the State Defendants engaged in
willful and wanton conduct. In each claim, Eaves generically
alleges that the State Defendants “willfully or recklessly or
negligently” deprived Eaves of his property, contributed to the
disposal of his property, or allowed other defendants to do so. But
he alleges no facts showing that the State Defendants were
“consciously aware that [their] acts or omissions created danger or
risk to the safety of others.” Id. (citation omitted).
¶ 34 Eaves points to a letter he served on the State Defendants
pursuant to section 24-10-109, C.R.S. 2025, providing notice of his
16 intent to sue.3 Even considering the allegations in the letter, we
still conclude that Eaves failed to sufficiently allege facts evidencing
willful and wanton conduct. For example, Eaves alleged that a
State Defendant “falsified an incident report,” but he did not explain
what the report was, how the report was falsified, or how the
falsified report contributed to the alleged injury. He also alleged
that the State Defendants engaged in “calculated harassment and
retaliation,” but he did not explain what they did to harass or
retaliate against him or how that conduct contributed to the loss of
his property. Finally, Eaves’ letter includes references to fraud,
which must be pleaded with particularity, see C.R.C.P. 9(b), but he
did not allege any particular facts that evidenced fraudulent
conduct or explain how that fraud “creat[ed] danger or risk to the
safety of others.” Carricato, ¶ 33 (citation omitted).
¶ 35 In the end, we conclude that Eaves’ allegations are simply too
vague and conclusory to demonstrate willful and wanton conduct
sufficient to avoid the application of the CGIA. Id. Discerning no
3 Eaves attached his letter of intent to sue to his response to the
State Defendants’ motion to dismiss and incorporated the letter into his second amended complaint by reference.
17 basis to reverse the district court’s order granting the State
Defendants’ motion to dismiss, we affirm.4
D. Claim Against BCCF Defendants
¶ 36 Eaves contends that the district court erred by dismissing his
claim against the BCCF Defendants because neither “collateral
estoppel nor issue preclusion prevents [him] . . . from filing suit
against the BCCF Defendants for property loss due to their fraud
under contractual obligations.” But the court dismissed the claim
against the BCCF Defendants as untimely under C.R.C.P. 106.5
and C.R.C.P. 106(b). Because Eaves does not challenge that basis
for the court’s order, we affirm.
¶ 37 In granting the BCCF Defendants’ motion to dismiss, the court
understood Eaves’ claim as challenging the outcome of two
administrative proceedings held on March 23 and April 27, 2023.
The court construed Eaves’ claim as one brought by an inmate
seeking review of a quasi-judicial decision by the CDOC, which is
governed by C.R.C.P. 106.5. Any complaint seeking review under
4 To the extent Eaves made other arguments in his response to the
State Defendants’ motion to dismiss that he does not reassert on appeal, those arguments are abandoned, and we will not consider them. See People v. Hall, 87 P.3d 210, 213 (Colo. App. 2003).
18 C.R.C.P. 106.5 “shall be filed in the district court not later than 28
days after the final decision of the body or officer.” C.R.C.P. 106(b);
see C.R.C.P. 106.5(a) (“The provisions of C.R.C.P. 106(b) . . . shall
govern all cases brought under this Rule 106.5.”). Because Eaves
did not file his complaint challenging these hearings until November
2024 — more than a year after either hearing took place — the
court reasoned that Eaves’ claim was time barred. See Brown v.
Walker Com., Inc., 2022 CO 57, ¶¶ 17, 46 (C.R.C.P. 106(b)’s filing
deadline is a strict jurisdictional limitation).
¶ 38 On appeal, Eaves argues that the court incorrectly applied
collateral estoppel or issue preclusion to bar his claim against the
BCCF Defendants. Although the court noted that Eaves had
“already raised the issue concerning the rank of the hearing officer
in his [CDOC] proceeding in other pending actions before other
courts,” that observation did not serve as the basis of the court’s
order granting the BCCF Defendants’ motion to dismiss. Rather,
the court dismissed Eaves’ claim against the BCCF Defendants
because it was not timely filed.
¶ 39 Critically, Eaves does not argue that his claim was not time
barred by C.R.C.P. 106(b) and 106.5. Because Eaves does not
19 challenge the reason the court dismissed his claim against the
BCCF Defendants, we affirm.5 See IBC Denv. II, LLC v. City of
Wheat Ridge, 183 P.3d 714, 717-18 (Colo. App. 2008) (appellant’s
failure to challenge all reasons for the court’s decision requires
affirmance).
III. Disposition
¶ 40 We affirm the district court’s judgment.
JUDGE HARRIS and JUDGE TOW concur.
5 To the extent Eaves argues for the first time in his reply brief that
the district court erred by dismissing his second amended complaint as untimely under C.R.C.P. 106 and 106.5, we do not consider that argument. See IBC Denv. II, LLC v. City of Wheat Ridge, 183 P.3d 714, 718 (Colo. App. 2008) (we do not consider arguments made for the first time in a reply brief).