Gottorff v. DA of the 13th

• Court: Colorado Court of Appeals
• Decided: December 18, 2025
• Docket: 25CA0805
• Status: Unpublished

Opinion

25CA0805 Gottorff v DA of the 13th 12-18-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0805 Logan County District Court No. 25CV8 Honorable Dina M. Christiansen, Judge

David J. Gottorff,

Plaintiff-Appellant,

v.

District Attorney of the Thirteenth Judicial District of Colorado,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division II Opinion by JUDGE MEIRINK Fox and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 18, 2025

David J. Gottorff, Pro Se

No Appearance for Defendant-Appellee ¶1 David J. Gottorff appeals the district court’s dismissal of his

petition to require prosecution and his request for judicial review of

agency action. We affirm.

I. Background

¶2 Gottorff was involved in two criminal trials in Ouray County

District Court. A jury found him not guilty of stalking in Case No.

22CR4. In Case No. 22CR8, Gottorff was convicted of three counts

of attempt to influence a public servant; one count of felony

menacing — real/simulated weapon; and one count of stalking —

serious emotional distress. He was sentenced to a controlling term

of eight years in the custody of the Department of Corrections

(DOC). Gottorff’s counsel filed an appeal in Case No. 22CR8, which

remains pending before this court. People v. Gottorff, (Colo. App.

No. 23CA1857, filed Oct. 30, 2023). Gottorff also filed several pro-

se postconviction motions, which the court denied.

A. The Underlying Action

¶3 In February 2025, acting pro se, Gottorff filed a petition to

require prosecution pursuant to section 16-5-209, C.R.S. 2025,

with the Logan County District Court. Gottorff’s petition asked the

Logan County District Court to order the District Attorney of the

1 Thirteenth Judicial District to prosecute the Executive Director of

the DOC, the Warden of the Sterling Correctional Facility, and all

DOC employees under their supervision and authority for having

“knowingly engaged” in a “conspiracy” and a “pattern of

racketeering” under the Colorado Organized Crime Control Act

(COCCA), sections 18-17-101 to -109, C.R.S. 2025. Gottorff argued

that he was being “unlawfully imprisoned” by the DOC pursuant to

the “void sentence” imposed in Case No. 22CR8 after he was

“acquitted” in Case No. 22CR4. Gottorff claimed that his

imprisonment was intended to intimidate and prevent him from

seeking prosecution for the jury tampering he witnessed and that

he was entitled to immediate release.

¶4 Gottorff’s petition mentioned that in October 2024, he filed a

criminal complaint with the Office of Inspector General (OIG) for the

DOC, alleging kidnapping, intimidating a witness, and accessory to

the crime of jury tampering. Gottorff indicated that the OIG opened

a case and referred the allegations to the Federal Bureau of

Investigation, the U.S. Attorney’s Office, and the Colorado Attorney

General’s Office. Despite Gottorff’s requests for a status update,

however, the OIG did not respond.

2 ¶5 After filing his petition to require prosecution, Gottorff filed a

document titled “Commencement of Judicial Review Pursuant to

Section 24-4-106” and an opening brief seeking review of two

offender grievances that the DOC denied. Specifically, Gottorff

challenged the DOC’s decisions denying his request for it to “comply

with the Victim and Witness Rights Act” (VWRA) and his request for

the DOC not to interfere with the OIG’s investigation.

B. Procedural Posture of the Underlying Action

¶6 The court dismissed with prejudice the petition for prosecution

and the request for judicial review of agency action. In its order,

the court clarified that Gottorff was “found guilty of all charges

upon the conclusion of a jury trial” in Case No. 22CR8, that he

“filed several post trial motions” and “[e]ach motion was considered

and ruled upon,” and that the “sentence was not found to be void or

unlawful.” The court explained that it did “not have jurisdiction

over the alleged offense because this matter stem[med] from an

Ouray County matter, not Logan County.” The court also noted

that it did “not find grounds to file an affidavit alleging the

commission of a crime” and that Gottorff “simply disputes his

sentence” and those were “not grounds to force the district attorney

3 to prosecute the [DOC] for complying with the orders issued upon

conclusion of a jury trial.” Finally, because Gottorff’s opening brief,

which pertained to Gottorff’s request for judicial review, cited

different statutory authorities, the court found that Gottorff “failed

to provide proper notice of his new and evolving legal theories.”

Gottorff appeals.

II. Analysis

¶7 Gottorff alleges several errors, which broadly fall into two

categories — those pertaining to the court’s decision to dismiss his

petition to require prosecution and those pertaining to the court’s

decision to dismiss his request for judicial review.1 We address

both categories in turn.

1 Gottorff is pro se.We broadly construe the pleadings of a self- represented litigant to ensure they are not denied review of important issues for lack of ability to articulate arguments like a lawyer. People v. Cali, 2020 CO 20, ¶ 34 (citing Jones v. Williams, 2019 CO 61, ¶ 5). But we will not rewrite pleadings or act as an advocate for a pro se litigant. Id. And Gottorff is not exempt from complying with the rules that all parties must follow. See Al-Hamim v. Star Hearthstone, LLC, 2024 COA 128, ¶ 11.

4 A. The Court Had Jurisdiction to Rule on Gottorff’s Petition to Require Prosecution

¶8 Gottorff contends that the court erred by dismissing his

petition to require prosecution for lack of jurisdiction. We agree.

1. Standard of Review

¶9 We apply a mixed standard of review to complaints dismissed

for lack of subject matter jurisdiction. City of Boulder v. Pub. Serv.

Co. of Colo., 996 P.2d 198, 203 (Colo. App. 1999). We review de

novo whether a court had subject matter jurisdiction and accept the

court’s findings of fact unless they are clearly erroneous and

unsupported by the record. Id.

2. Analysis

¶ 10 Section 16-5-209 provides, in relevant part, that

[t]he judge of a court having jurisdiction of the alleged offense, upon affidavit filed with the judge alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may require the prosecuting attorney to appear before the judge and explain the refusal.

(Emphasis added.)

¶ 11 The court dismissed Gottorff’s petition for lack of jurisdiction

because it concluded that Gottorff’s allegations — that he was being

illegally detained on a void sentence entered in Case No. 22CR8 by

5 the DOC in retaliation for witnessing jury tampering in one of his

Ouray County criminal cases — arose from a matter in Ouray

County, not Logan County. We disagree with the court’s conclusion

for two reasons.

¶ 12 First, district courts in Colorado are courts of general

jurisdiction. Colo. Const. art. VI, § 9(1). They have jurisdiction over

all criminal cases in which the charged offense is committed either

wholly or partially within the state. § 18-1-201, C.R.S. 2025.

Because the alleged offense for which Gottorff sought to compel

prosecution was committed within the state, the district court had

jurisdiction over the petition to require prosecution. The district

court appears to have confused the concepts of jurisdiction and

venue.

¶ 13 Second, venue was appropriate in the district court. True,

criminal actions are to be tried in the county where the offense was

committed, § 18-1-202(1), C.R.S. 2025, and Gottorff’s allegations of

jury tampering originated in Ouray County. But Gottorff’s

argument was that the DOC continued to detain him illegally in

Logan County. In other words, because at least part of the alleged

crime was the DOC’s detention of Gottorff in Logan County, venue

6 was appropriate in the Logan County District Court. Thus, the

district court had both jurisdiction and venue and erred by

dismissing Gottorff’s petition on those bases. Even so, we conclude

that the court properly dismissed the petition, as we explain next.

B. The Court Properly Dismissed Gottorff’s Petition Requiring Prosecution Under Section 16-5-209

¶ 14 Gottorff alleges that the court erred by dismissing his petition

on the merits because it (1) was required to consider the evidence in

the affidavit and the arguments of the parties in its analysis and

(2) should have held the “special statutory proceeding” requiring the

district attorney to explain his decision not to prosecute the DOC.

We disagree.

1. Standard of Review and Applicable Law

¶ 15 Review of a petition under section 16-5-209 is a mixed

question of law and fact. J.S. v. Chambers, 226 P.3d 1193, 1202–

03 (Colo. App. 2009). We review the district court’s application of a

legal standard de novo and review its findings of fact and credibility

for clear error. Id. at 1203.

¶ 16 Under section 16-5-209, a judge may require the prosecuting

attorney to prosecute a case or appoint a special prosecutor to do

7 so. A party seeking a judge’s order to prosecute must file an

affidavit alleging (1) “the commission of a crime” and (2) the

prosecuting attorney’s unjustified refusal to prosecute individuals

for the crime. § 16-5-209. The court “may require the prosecuting

attorney to appear before the judge” and to explain the refusal to

prosecute, id., but it is within the district court’s discretion whether

to require the prosecuting attorney to do so. Kailey v. Chambers,

261 P.3d 792, 795 (Colo. App. 2011). The district court considers

the competent evidence in the affidavit in deciding whether to grant

the petition for prosecution. J.S., 226 P.3d at 1203.

¶ 17 The court reviewed Gottorff’s affidavit and concluded that he

failed to provide allegations that a crime had been committed;

rather, Gottorff simply disputed the sentence imposed in Case No.

22CR8. The court noted that these were “not grounds to force the

district attorney to prosecute the [DOC] for complying with the

orders issued upon conclusion of a jury trial” and that Gottorff’s

sentence was “not found to be void or unlawful.” See Tooley v. Dist.

Ct., 549 P.2d 772, 773–74 (Colo. 1976) (holding that a petition for

prosecution and affidavit were insufficient when they related to

8 actions in other districts and contained allegations that were largely

unsubstantiated and based solely upon information and belief).

¶ 18 We agree that the petition failed to allege criminal actions

committed by the DOC. Gottorff’s petition alleges that the District

Attorney of the Seventh Judicial District retaliated against him for

reporting jury tampering. But the petition seeks prosecution of the

DOC, not the district attorney. The petition does not explain why

the DOC’s compliance with the Ouray court’s sentence constitutes a

crime because his conviction and sentence have not been found to

be void or unlawful.

¶ 19 The petition and affidavit also failed to allege that the District

Attorney of the Thirteenth Judicial District refused to prosecute the

“crimes.” While Gottorff’s affidavit claimed that he did not receive a

response from the OIG, these allegations alone don’t demonstrate

that the case was referred to the district attorney or that the district

attorney refused to prosecute anyone for the alleged offenses.

Gottorff’s petition only noted that he filed a criminal complaint with

the OIG, who opened a case and referred the allegations to other

parties. Because Gottorff’s affidavit fails to detail the district

9 attorney’s refusal to prosecute as required by section 16-5-209, the

court did not err by dismissing the petition.

¶ 20 Having determined that the court properly dismissed Gottorff’s

petition requiring prosecution, we perceive no abuse of discretion

with its decision not to require the district attorney to explain why

he didn’t prosecute the DOC. See Kailey, 261 P.3d at 795

(recognizing that the court has discretion and “may require the

prosecuting attorney to appear before the judge and explain the

refusal” (quoting § 16-5-209)).

C. The Court Did Not Err by Dismissing Gottorff’s Request for Judicial Review

¶ 21 Gottorff contends that the district court improperly dismissed

his request to review the DOC’s decision to deny two of his offender

grievances. Specifically, he argues that the court should have given

him the opportunity to serve the DOC before dismissing the action.

¶ 22 “A court’s jurisdiction to review an agency action is a question

of statutory interpretation” that we review de novo. Peabody Sage

Creek Mining, LLC v. Colo. Dep’t of Pub. Health & Env’t, 2020 COA

10 127, ¶ 9. A party aggrieved by an agency action may commence a

judicial review of that action in the district court within thirty-five

days after such agency action becomes effective. § 24-4-106(4),

C.R.S. 2025.

¶ 23 The underlying action was commenced to compel the District

Attorney of the Thirteenth Judicial District to prosecute the DOC for

illegally detaining him in Logan County. Rather than initiating a

separate proceeding seeking judicial review of an agency action,

Gottorff filed a document titled “Commencement of Judicial Review

Pursuant to C.R.S. 24-4-106” and a “Judicial Review Opening Brief”

in the underlying case. Because Gottorff failed to explain how his

request for judicial review was relevant to the underlying case or

why he didn’t file a motion to include the DOC as a defendant, the

court concluded that Gottorff had cited “different statutory

authorities in his opening brief” and “failed to provide proper notice

of his new and evolving legal theories.”

¶ 24 Gottorff claims that it was not proper for him to name the

DOC as a party to a section 16-5-209 action. And even if the DOC

should have been included as a party in the underlying action, he

11 argues that the court shouldn’t have dismissed the judicial review

action “for failure to join an indispensable party until an

opportunity has been afforded . . . to bring the indispensable party

into the action.” We disagree.

¶ 25 To be properly joined, causes of action must affect each named

defendant in the same character or capacity. Colo. State Bd. of

Exam’rs of Architects v. Dist. Ct., 249 P.2d 146, 149 (Colo. 1952).

C.R.C.P. 20 provides that a party may be joined in an action where

the right to relief asserted against the parties arises “out of the

same transaction, occurrence, or series of transactions or

occurrences” or there is a common question of law or fact among

the defendants. C.R.C.P. 20(a).

¶ 26 Although the petition to require prosecution and Gottorff’s

request for judicial review of agency action share an allegation that

Gottorff is imprisoned unlawfully, the causes of action and

requested relief are distinct. The legal question presented by the

petition for prosecution is whether the district attorney abused his

discretion by refusing to prosecute the DOC for detaining Gottorff

on a sentence imposed in Ouray County. The legal question in the

judicial review action is whether the DOC properly denied Gottorff’s

12 offender grievances — none of which concern the district attorney

or the exercise of prosecutorial discretion. Gottorff asked the court

to order the DOC to (1) comply with the VWRA and (2) stop

interfering with the OIG’s investigation and place him in contact

with federal law enforcement.

¶ 27 Thus, because the underlying action — asking the court to

require the district attorney to prosecute the DOC — was entirely

distinct from Gottorff’s request for agency review — of the DOC’s

decision to deny two inmate grievances — the court properly

dismissed Gottorff’s request for judicial review.

D. Gottorff’s Remaining Claims

¶ 28 Because they were never raised before the district court, we

decline to consider Gottorff’s request for this court to address

(1) whether DOC employees can be prosecuted for conduct under

the federal Racketeer Influenced and Corrupt Organizations Act and

the COCCA and (2) the process for a witness to enforce their rights

and protections under the VWRA. People in Interest of K.L-P., 148

P.3d 402, 403 (Colo. App. 2006) (“[A]rguments never presented to,

considered by, or ruled upon by a trial court may not be raised for

the first time on appeal.”). Also, courts may only resolve live cases

13 or controversies, In re Parental Responsibilities Concerning C.E.S.K.,

2025 COA 51, ¶ 16, and we lack authority to provide advisory

opinions based on hypothetical facts. Tippett v. Johnson, 742 P.2d

314, 315 (Colo. 1987).

III. Disposition

¶ 29 We affirm the court’s judgment of dismissal with prejudice.

JUDGE FOX and JUDGE BROWN concur.