Appellate Case: 25-1044 Document: 21-1 Date Filed: 06/25/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 25, 2025 _________________________________ Christopher M. Wolpert Clerk of Court COLBY JEROME HALE-EL,
Plaintiff - Appellant,
v. No. 25-1044 (D.C. No. 1:24-CV-01522-LTB-RTG) JOHN DOE, D.O.C. Director of Prisons; (D. Colo.) JANE DOE, D.O.C. Employee,
Defendants - Appellees. ___________________________________
COLBY JEROME HALE-EL,
v. No. 25-1045 (D.C. No. 1:24-CV-01542-LTB-RTG) MEGAN A. RING; KAMELA (D. Colo.) MAKTABI; LAUREN SANDOVAL; LT. MONTEZ; ANNE T. AMICARELLA; KRISTEN BLODGETT; FLEISCHMAN; LT. MORRIS; DIRECTOR OF PRISONS,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 25-1044 Document: 21-1 Date Filed: 06/25/2025 Page: 2
Before TYMKOVICH, BALDOCK, and FEDERICO, Circuit Judges.** _________________________________
Colby Jerome Hale-El, a Colorado state prisoner proceeding pro se, appeals
the district court’s dismissal of his two 42 U.S.C. § 1983 civil rights complaints.
Having jurisdiction under 28 U.S.C. § 1291, we address Hale-El’s two appeals
together and DISMISS the appeals as frivolous. We DENY his IFP motions under
28 U.S.C. § 1915(e)(2)(B).
I. Background
A. 25-1044
Hale-El brought a 42 U.S.C. § 1983 civil rights action against the director of
prisons and an employee of the Colorado Department of Corrections, alleging one
claim titled “Due Process Clause, Access to the Courts and First Amendment,
Freedom of Speech and Freedom of Association, Fifth Amendment, Right to be
Heard.” He explained that in May 2023, he “was sentenced to serve a consecutive
sentence of 365 days in the county, following his 5[-]year sentence in the Colorado
Department of Corrections.” Second Am. Compl. 4.1 He was first “shipped to the
Colorado Department of Corrections” but two day later, “was shipped to the Denver
Sheriff Department on a Writ of habeas corpus, to serve the consecutive sentence
** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 1 The appellate record for 25-1044 does not include Hale-El’s Second Amended Complaint, and therefore we cite to it directly. 2 Appellate Case: 25-1044 Document: 21-1 Date Filed: 06/25/2025 Page: 3
without [his] knowledge or consent.” Id. Hale-El argues his access to the court,
freedom of speech, and due process was violated because he was forced to “serve his
consecutive sentence before its time” without an opportunity to be present in court
regarding his transfer. Id.
The assigned magistrate judge recommended that Hale-El’s amended
complaint be dismissed as frivolous because it lacked an arguable basis in law and
failed to satisfy the pleading standard under Federal Rule of Civil Procedure 8.
Hale-El timely filed an objection to the recommendation. The district court,
reviewing the recommendation de novo, accepted and adopted the magistrate judge’s
recommendation and dismissed Hale-El’s amended complaint. It also denied
Hale-El’s leave to proceed IFP motion on appeal as it found that any appeal from the
dismissal would not be taken in good faith. A judgment was entered in favor of the
defendants and against Hale-El.
B. 25-1045
Hale-El brought a separate action against various individuals alleging claims
for: (1) racial discrimination; (2) civil rights conspiracy, (3) denial of due process,
(4) frustrating and impeding claims, and (5) denial of access to court (Counts One to
Five, respectively). These individuals include public defenders, prison officials at
the Colorado State Penitentiary, and the director of prisons for the Colorado
Department of Corrections.
Upon review, the assigned magistrate judge recommended that Hale-El’s
prisoner complaint be dismissed because he failed to plead necessary facts to support
3 Appellate Case: 25-1044 Document: 21-1 Date Filed: 06/25/2025 Page: 4
his legal claims. In short, the magistrate judge found Hale-El’s allegations to be
conclusory and without factual support. Hale-El timely filed an objection to the
recommendation. The district court, reviewing the recommendation de novo, agreed
with the recommendation and thus accepted and adopted it. In doing so, the district
court dismissed Hale-El’s complaint and denied his leave to proceed IFP motion on
appeal because it found any appeal from this dismissal would not be taken in good
faith. Any pending motions in the action were denied as moot and a judgment was
entered in favor of the defendants and against Hale-El.
C. Procedural History
In both cases, Hale-El filed a notice of appeal “to the Supreme Court of the
United States” and thus the district court inadvertently transmitted both notices of appeal
directly to the United States Supreme Court. Hale-El then filed subsequent notices of
appeal that were transmitted to our Circuit.2 We consider the appeals of both cases to be
timely and consider them together. See FED. R. APP. P. 3(b)(2).
II. Discussion
Hale-El proceeds pro se, and thus we construe his filings liberally, but do not
craft arguments or otherwise advocate for him. Brooks v. Raemisch, 717 F. App’x
766, 767 n.1 (10th Cir. 2017) (citations omitted). Even so, Hale-El’s appeals are
frivolous and thus we dismiss the appeals in both cases.
2 Hale-El’s misidentification of the appellate court does not prohibit this Circuit from having jurisdiction over the matter. See Graves v. Gen. Ins. Corp., 381 F.2d 517 (10th Cir. 1967). 4 Appellate Case: 25-1044 Document: 21-1 Date Filed: 06/25/2025 Page: 5
A. Legal Background
“[A] court must dismiss an IFP proceeding ‘if the court determines that . . . the
action or appeal—(i) is frivolous or malicious; or (ii) fails to state a claim on which
relief may be granted.’” Id. at 768 (alteration in original) (quoting 28 U.S.C.
§ 1915(e)(2)(B)). “[A]n appeal on a matter of law is frivolous where none of the
legal points are arguable on their merits.” Neitzke v. Williams, 490 U.S. 319, 325
(1989) (cleaned up) (citation omitted).
B. 25-1044
Liberally construing Hale-El’s arguments, he appears to allege that moving
him from “the county” to the Colorado Department of Corrections before his
sentence was fully served amounted to improperly resentencing him without his
opportunity in court. See Aplt. Br. 3 (arguing that he is “not challenging his
conviction, only the process of changing his sentence without him being given an
opportunity to be heard.”).3
We review the district court’s dismissal of Hale-El’s amended complaint
“under § 1915(e)(2)(B)(i) for frivolousness under an abuse of discretion standard, but
if the frivolousness determination turns on an issue of law we review the
determination de novo.” Brooks, 717 F. App’x at 768. The district court’s decision
3 We note that Hale-El argues there are two issues—“due process,” and “civil conspiracy”—in his brief, despite alleging a single claim titled “Due Process Clause, Access to the Courts and First Amendment, Freedom of Speech and Freedom of Association, Fifth Amendment, Right to be Heard” in his amended complaint. Contrast Aplt. Br. 3, with App. R. 16. 5 Appellate Case: 25-1044 Document: 21-1 Date Filed: 06/25/2025 Page: 6
did not turn on an issue of law and so we review Hale-El’s arguments under an abuse
of discretion standard.
We agree with the district court that Hale-El’s amended complaint is
conclusory and frivolous, and in violation of Rule 8 pleading standards. First,
Hale-El sets forth several causes of action in his amended complaint but fails to plead
sufficient, specific facts to satisfy the necessary elements. “To establish a civil
conspiracy in Colorado, a plaintiff must show: (1) two or more persons; (2) an object
to be accomplished; (3) a meeting of the minds on the object or course of action;
(4) an unlawful overt act; and (5) damages as to the proximate result.” Savant
Homes, Inc. v. Collins, 809 F.3d 1133, 1146 (10th Cir. 2016) (quoting Nelson v.
Elway, 908 P.2d 102, 106 (Colo. 1995)). But Hale-El’s pleadings fall short of
demonstrating, for example, that there was an objective that the director and the
employee of the Colorado Department of Corrections both agreed upon, or that there
was an unlawful overt act involved. Second, he does not present caselaw establishing
that his transfer was in fact an improper resentencing that amounts to a due process
violation. See Randle v. Romero, 610 F.2d 702, 703 (10th Cir. 1979) (“Matters
affecting transfer are an administrative function.”).4
4 C.f. Randle, 610 F.2d at 703 (“[I]f appellant is claiming that he is entitled to a hearing to determine his transfer rights, his claim must fail. It is well settled that prisoners have no constitutional right to a hearing in transfer situations, absent some foundation in state law establishing such a right.” (citing Meachum v. Fano, 427 U.S. 215 (1976))).
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Accordingly, we find no abuse of discretion in the district court’s dismissal of
Hale-El’s amended complaint. We dismiss this appeal as frivolous.5
C. 25-1045
Hale-El’s second appeal includes five claims, which we consider in turn. In
doing so, “[w]e review de novo [the] district court’s order dismissing a prisoner’s
case for failure to state a claim pursuant to 28 U.S.C. § 1915A.” Peltier v. Fed.
Bureau of Prisons, 185 F.3d 874, at *1 (10th Cir. 1999) (unpublished table decision)
(citations omitted).
1. Count One: Racial Discrimination, 42 U.S.C. § 1981
First, Hale-El argues he was racially discriminated against when his state court
judge noted Hale-El’s “Moorish sovereign citizen” status during his sentencing
proceeding. He alleges his state court judge “stepped out of his judicial role, and into
the role of a witness,” when he stated, “[f]or what it’s worth, that would be consistent
with his view that this court does not have jurisdiction over him under his beliefs that
he’s a Moorish sovereign citizen.” App. R. 37. Hale-El argues this act was
discriminatory because he “never at any point in time made this claim to be a
5 Hale-El cites several cases in his brief, but each one is of no avail. For example, he cites Lytle v. City of Haysville, 138 F.3d 857, 862 (10th Cir. 1998), but provides no information as to how Lytle, a retaliation case, is factually or legally relevant to his arguments. In fact, the pincite of the case clarifies that a de novo standard of review is applied for summary judgment and for First Amendment issues. But this case is not at the summary judgment stage. He also cites Elliott v. Peirsol’s Lessee, 26 U.S. 328, 330, (1828), and Kalb v. Feuerstein, 308 U.S. 433 (1940)—the two cases involve jurisdictional limitations of a land ownership dispute and have no relevance here. 7 Appellate Case: 25-1044 Document: 21-1 Date Filed: 06/25/2025 Page: 8
sovereign citizen. (This is Racial Profiling, only NATIONS can be sovereign.)” Id.6
Under the same race discrimination claim, he alleges that he “never received any
notification” as to whether he would be represented by the public defender’s office in
his appeal, and that a “Notice of Appeal was filed . . . [w]ithout [his] knowledge.”
Id. at 37.
To establish a prima facie case of discrimination under § 1981, plaintiff must
sufficiently plead that (1) “the plaintiff is a member of a protected class”; (2) “the
defendant had the intent to discriminate on the basis of race”; and (3) “the
discrimination interfered with a protected activity as defined in § 1981.” Hampton v.
Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1101–02 (10th Cir. 2001) (quoting
Reynolds v. School Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1532 (10th Cir. 1995)).
The protected activities defined in § 1981 include “the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” Reynolds, 69 F.3d
at 1532 (quoting 42 U.S.C. § 1981).
Although the elements “are flexible and are not to be applied rigidly,” we find
Hale-El has not produced sufficient evidence of intentional discrimination and has
not pled details as to any protected activity in relation to the defendants named in
Count One. See Hampton, 247 F.3d at 1102 (quoting Cone v. Longmont United
6 Hale-El indicates in his amended complaint that he is indeed a “Moorish American National and Hostage.” App. R. 35. He also states in his brief that he is “a Moorish American National and not a U.S. Citizen.” Id. at 3. 8 Appellate Case: 25-1044 Document: 21-1 Date Filed: 06/25/2025 Page: 9
Hosp. Ass’n, 14 F.3d 526, 530 n.2 (10th Cir. 1994)); Reynolds, 69 F.3d at 1532
(Plaintiff “must show that [d]efendants intentionally or purposefully discriminated
against her.” (quoting Gen. Bldg. Contractors Ass’n, Inc. v. Pa., 458 U.S. 375, 391
(1982))). Moreover, Hale-El has not established that he is a member of a protected
class, nor has he pled that Moorish sovereign citizens are a legally protected class.
Accordingly, we see no error in the district court’s dismissal of Hale-El’s
racial discrimination claim.
2. Count Two: Civil Conspiracy Claim, 42 U.S.C. §§ 1985(2), (3)
Second, Hale-El asserts a civil rights conspiracy claim against five public
defenders because they filed a notice of appeal without his knowledge or approval.
He states that he did not “know that public defenders had been appointed to represent
him” and thus his “equal protection of [d]ue [p]rocess and the right to be notified”
and his “right to make and enforce contracts” were violated. App. R. 41. He also
asserts under this claim that the Colorado Department of Corrections “had [him]
serve his consecutive sentences . . . [t]hree years before it was time”; the “Denver
Sheriff Department tampered with [his] mail, while the Colorado State Public
Defender’s Office was filing an appeal on [his] behalf”; and “there is no way the
Director of Prisons did not know about or authorize [his] transfer.” Id. at 41, 42.
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A prerequisite to a claim under § 1985(2)7 and § 1985(3)8 is the existence of a
conspiracy. Abercrombie v. City of Catoosa, Okl., 896 F.2d 1228, 1230 (10th Cir.
1990) (“Section 1985(2) specifically requires the existence of ‘two or more persons’
who ‘conspire.’” (citation omitted)); see also Tilton, 6 F.3d at 686 (“Firstly, a valid
[§ 1985(3)] claim must, of course, involve a conspiracy.”). “A civil conspiracy
requires the combination of two or more persons acting in concert[,]” such that there
was “a meeting of the minds or agreement among the defendants.” Abercrombie, 896
F.2d at 1230.
The district court held, and we agree, that Hale-El has not established the
existence of a conspiracy. Hale-El’s allegations cannot establish a conspiracy
because they include no direct or circumstantial evidence that the defendants acted in
concert. Instead, Hale-El’s amended complaint only alleges isolated statements that
fail to establish any inference that there was a conspiracy between the defendants.
For example, he alleges only that the “defendants conspired to construct ‘the due
course of justice’ when they denied the equal protection of Due Process and the right
7 “There are four distinct clauses in [§] 1985(2), each creating a distinct cause of action,” such as a deterrence claim or a retaliation claim. Brever v. Rockwell Int’l Corp., 40 F.3d 1119, 1126 (10th Cir. 1994) (citing Wright v. No Skiter, Inc., 774 F.2d 422, 425 (10th Cir. 1985)). Hale-El does not specify which cause of action he brings under this section. 8 “The essential elements of a § 1985(3) claim are: (1) a conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and immunities; (3) an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting therefrom.” Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (citing Griffin v. Breckenridge, 403 U.S. 88, 102–03 (1971)). 10 Appellate Case: 25-1044 Document: 21-1 Date Filed: 06/25/2025 Page: 11
to be notified. Of their assistance, and the plaintiffs’ right to make and enforce
contracts.” App. R. 41. And his argument that “the Colorado Court of Appeals,” a
nonparty, and “the Colorado State Public Defender Appellate Division[] were trading
information without [him] being aware of any appeal” is conclusory and without any
supporting facts. Id. at 42. Moreover, Hale-El does not attempt to explain his
amended complaint in his brief—his opening brief merely states that he “has satisfied
[Rule] 8 on many occasions and Judge Lewis T. Babcock,9 has decided wrong
everytime contrary to positive law.” Aplt. Br. 4.
Accordingly, we see no error in the district court’s dismissal of Hale-El’s civil
conspiracy claim.
3. Count Three: Denial of Due Process
Third, Hale-El alleges he was denied due process because “[t]here is no way
the Director of Prisons did not sign off on [his] transfer to the Denver Sheriff
Department . . . [t]o serve a consecutive sentence before it was time”; and that the
filing of a notice of appeal in his state court criminal case “denied [him] access to his
Federal Habeas Corpus.” App. R. 43.
Hale-El’s complaint is too vague and conclusory to state a claim for violation
of his constitutional right to procedural due process. He does not explain how any of
the defendants’ actions “might constitute a denial of his procedural due process
rights” or set forth “any clearly established law that stands for the proposition that the
9 Judge Babcock was not the district judge in this underlying case. 11 Appellate Case: 25-1044 Document: 21-1 Date Filed: 06/25/2025 Page: 12
sorts of actions taken by [the defendants] might form the basis of a procedural due
process claim.” Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 519 (10th Cir.
1998).
We see no error in the district court’s dismissal of Hale-El’s denial of due
process claim.
4. Counts Four and Five: Frustrated and Impeded Claim, and Denial of Access to Court
Fourth, Hale-El alleges his phone account was unknowingly suspended. He
also alleges his property—specifically his legal documents—was stolen when he was
moved to a different cell and therefore asserts a frustrated and impeded claim against
several prison officials. Hale-El concedes he “refused to lockdown[] because his
phone account was suspended” and he “once again refused to follow orders and
wanted to know where his legal documents were at.” App. R. 43–44. And fifth,
Hale-El alleges he was denied access to courts because his case was dismissed due to
his lack of legal documents and/or materials. Under both claims, Hale-El seemingly
alleges that the defendant(s) committed “unconstitutional retaliation” because they
must be deceiving him as they know where his legal documents are and why his
phone account was suspended. We consider Counts Four and Five together.
“To present a viable claim for denial of access to courts, . . . an inmate must
allege and prove prejudice arising from the defendants’ actions.” Peterson v. Shanks,
149 F.3d 1140, 1145 (10th Cir. 1998) (quoting Penrod v. Zavaras, 94 F.3d 1399,
12 Appellate Case: 25-1044 Document: 21-1 Date Filed: 06/25/2025 Page: 13
1403 (10th Cir. 1996)). In other words, there must be an actual injury that resulted
from defendant’s actions. Lewis v. Casey, 518 U.S. 343, 351 (1996).
Hale-El did not satisfy this pleading standard. His amended complaint states
only that he could not “properly defend his case with supporting case[]law and
documents of proof of legal authority,” App. R. 45, but does not clarify why he could
not re-supplement his documents with caselaw or print additional copies of his legal
documents. Critically, as the district court noted, Hale-El’s prisoner complaint was
dismissed because it was frivolous, not because of missing documents. And although
he states in his brief that he is “in imminent danger [his] documents are not making it
to the courts in its entirety,” Aplt. Br. 4, Hale-El does not explain how the allegedly
missing documents would have changed the outcome of Hale-El’s case. Finally,
Hale-El fails to “give us any citations or reasons informing us why the trial court’s
order was erroneous[.]” See Stouffer v. Fields, 85 F.3d 641, at *2 (10th Cir. 1996)
(unpublished table decision).
Hale-El’s “unconstitutional retaliation” claim is also meritless. “In
considering an inmate’s suit against prison officials, we recognize ‘that courts are ill
equipped to deal with the increasingly urgent problems of prison administration and
reform.’” Peterson, 149 F.3d at 1143 (quoting Turner v. Safley, 482 U.S. 78, 84
(1987)). “[I]t is not the role of the federal judiciary to scrutinize and interfere with
the daily operations of a state prison, and our retaliation jurisprudence does not
change this role.” Id. at 1144. “Accordingly, a plaintiff must prove that but for the
retaliatory motive, the incidents to which he refers, . . . would not have taken place.”
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Id. (citation omitted) (cleaned up). “An inmate claiming retaliation must ‘allege
specific facts showing retaliation because of the exercise of the prisoner’s
constitutional rights.’” Id. (quoting Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th
Cir. 1990)). We cannot agree the district court’s dismissal of Hale-El’s allegations of
retaliation was in error because Hale-El presented no evidence that the defendants’
alleged retaliatory motives were the “but for” cause of their actions.
* * *
In sum, Hale-El’s arguments are meritless and fail to meet the pleading
standards. We therefore see no error in the district court’s dismissal of Hale-El’s
amended complaint pursuant to 28 U.S.C. § 1915A(b) and find this appeal to be
frivolous.10
D. Hale-El’s IFP Motion and PLRA Strike
Hale-El is subject to the Prison Litigation Reform Act. Hafed v. Fed. Bureau
of Prisons, 635 F.3d 1172, 1177 (10th Cir. 2011), abrogated on other grounds by
Coleman v. Tollefson, 575 U.S. 532 (2015). Under the PLRA, prisoners obtain a
“strike” against them for purposes of future IFP eligibility when their “action or
appeal in a court of the United States . . . was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may be granted . . . .”
10 As we have already noted, Hale-El’s brief does not clarify his amended complaint or address the district court’s findings in the respective appeal. For example, he states there are two issues in this appeal—“anti-trust,” and “jurisdiction”—neither of which was pled or is relevant to issues raised in his amended complaint. Aplt. Br. 3. 14 Appellate Case: 25-1044 Document: 21-1 Date Filed: 06/25/2025 Page: 15
28 U.S.C. § 1915(g). “When a prisoner has accumulated three strikes, he has ‘struck
out’ from proceeding IFP in a new civil action or appeal.” Strope v. Cummings, 653
F.3d 1271, 1273 (10th Cir. 2011) (quoting Smith v. VA, 636 F.3d 1306, 1308–09
(10th Cir. 2011)).
Hale-El is a frequent filer and has an extensive history in this court with at
least sixteen prior appeals, most of which have been dismissed as jurisdictionally
defective or for failure to prosecute. Specifically, Hale-El accrued his third strike
after he filed his notice of appeal. Because we dismiss Hale-El’s instant appeals as
frivolous under 28 U.S.C. § 1915(e)(2)(B)(i), our dismissal constitutes another strike.
We therefore deny Hale-El’s IFP motions in both appeals. See DeBardeleben v.
Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Having received more than three
“strikes,” Hale-El is prohibited from proceeding IFP in any new civil actions or
appeals. Smith, 636 F.3d at 1308–09.
Hale-El is reminded that he remains obligated to continue making partial
payments of the appellate filing fee pursuant to 28 U.S.C. § 1915(b). See Bradshaw
v. United States, 10 F. App’x 699, 701 (10th Cir. 2001).
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III. Conclusion
For the aforementioned reasons, we DISMISS Hale-El’s appeals as frivolous.
Hale-El’s IFP motions are DENIED.
Entered for the Court
Timothy M. Tymkovich Circuit Judge