24CA1366 Halper v DeMercardo 12-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1366 San Miguel County District Court No. 24CV5 Honorable Keri A. Yoder, Judge
Mark Lewis Halper,
Plaintiff-Appellant,
v.
Lauren DeMercardo, Sarah Landeryou, and John Wontrobski,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE JOHNSON Harris and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 24, 2025
Mark Lewis Halper, Pro Se
Nathan Dumm & Mayer P.C., Nicholas C. Poppe, Denver, Colorado, for Defendants-Appellees ¶1 Plaintiff, Mark Lewis Halper (Halper), appeals the district
court’s dismissal of his complaint without prejudice and placing
conditions on Halper before it could be refiled. Specifically, Halper
alleges the district court denied him the right to “confront his
accusers” by dismissing his complaint, thus denying him the
“appropriate judicial process.” We disagree and, therefore, affirm.
I. Background
¶2 Halper’s library privileges at the Wilkinson Public Library were
suspended for one year due to Halper asking an underage library
patron to help him take a photograph on his cell phone of an
allegedly pornographic website. In response, Halper — appearing
pro se — sued three of the library’s employees, defendants, Lauren
DeMercado, Sarah Landeryou, and John Wontrobski, for
purportedly making false representations about him in an incident
report involving his alleged inappropriate behavior in violation of
the “Library Bill of Rights, Article 7.”
¶3 Following review of Halper’s complaint, the district court sua
sponte issued an order finding Halper’s complaint noncompliant
with multiple rules of civil procedure. The court found that it did
not appear that the complaint was well grounded in law or fact and
1 could not survive a motion to dismiss. Specifically, it ruled that it
was unclear what legal claims Halper was asserting except for one
pursuant to the Library Bill of Rights, which the court noted had
not been enacted into state law but was instead a set of principles
announced by the American Library Association. Regardless, the
court determined that Halper had not stated any authority to
support that the Library Bill of Rights, or another law, authorized a
private cause of action. As a result, the district court ordered
Halper to either (1) file a complaint conforming with the rules of civil
procedure and containing well-grounded factual and legal
averments within fourteen days or (2) move to dismiss his case.
¶4 Halper responded, restating his original claim and requesting,
in the alternative, that the district court (1) determine that “the
Acceptable Use of the Library Policy (Library Policy) and subsequent
removal of Mark Halper’s library privileges at the Wilkinson Public
Library is in principle only, and not having effective law authority”;
and (2) issue an order to reinstate his library privileges effective
immediately.
¶5 The district court determined that Halper’s response did not
cure any of his complaint’s defects. It held that the revised
2 complaint still violated C.R.C.P. 8 because it did not contain a short
and plain statement of the claim(s) entitling Halper to relief. The
court also determined that Halper’s complaint violated C.R.C.P. 11
because it was not well grounded in fact or existing law. As a
result, the district court dismissed Halper’s complaint without
prejudice. It also entered a prefiling injunction that requires Halper
to satisfy several conditions before he may refile the complaint or
bring any other pro se action in the district court.1
1 Although neither party has raised the issue, we must be assured
we have jurisdiction to review this appeal. See Smith v. City & County of Denver, 2025 COA 70, ¶ 12 (an appellate court may determine nostra sponte whether it has jurisdiction over an appeal). We are limited to the review of final appealable orders. People in Interest of S.C., 2020 COA 95, ¶ 6. Ordinarily, a final appealable order does not include a dismissal without prejudice because a party may refile the lawsuit. Id. at ¶ 8. But when “the circumstances of the case indicate that the action cannot be saved and that the district court’s order precludes further proceedings, dismissal without prejudice qualifies as a final judgment for the purposes of appeal.” Avicanna Inc. v. Mewhinney, 2019 COA 129, ¶ 1 n.1. We conclude that, given the court’s prefiling injunction, the order has the effect of being final. See S.C., ¶ 10; see also Karr v. Williams, 50 P.3d 910, 915-16 (Colo. 2002) (setting forth conditions that impose requirements on a litigant to obtain court approval to refile a complaint).
3 II. Sua Sponte Dismissal
¶6 As we understand his arguments, Halper contends that the
district court erred by dismissing his complaint sua sponte. We
disagree.
A. Standard of Review
¶7 We review a district court’s application of the Colorado Rules
of Civil Procedure de novo. Marquez v. Schaefer, 2025 COA 44,
¶ 19.
¶8 Dismissal “may be proper even in cases where no motion
requesting dismissal has been filed.” ISG, LLC v. Ark. Valley Ditch
Ass’n, 120 P.3d 724, 730 (Colo. 2005). If a court is inclined to
dismiss a complaint sua sponte, “it should, as a matter of
fundamental fairness, if not due process, give the plaintiff an
opportunity to persuade the court that dismissal is not proper.”
Schwartz v. Owens, 134 P.3d 455, 457 (Colo. App. 2005).
B. Library Policy Claims
¶9 The district court found that Halper’s complaint failed to
comply with C.R.C.P. 8, 10, and 11, concluding that it “assert[ed]
no cognizable state district court claim.” While not cited by the
district court, we construe the order to be a ruling under C.R.C.P.
4 12(b)(5), which authorizes a court to dismiss a plaintiff’s complaint
for failure to state a claim upon which relief may be granted. The
purpose of Rule 12(b)(5) is to test the legal sufficiency of a plaintiff’s
complaint. Nesjan v. J & A Distrib., Inc., 2025 COA 81, ¶ 8.
¶ 10 We review a district court’s decision to dismiss a complaint
under Rule 12(b)(5) de novo. Wagner v. Grange Ins. Ass’n, 166 P.3d
304, 307 (Colo. App. 2007). The district court was testing the legal
sufficiency of Halper’s complaint by holding that he failed to state
cognizable claims for relief, and we may affirm a correct district
court judgment on any grounds supported by the record. See
Roque v. Allstate Ins. Co., 2012 COA 10, ¶ 7.
¶ 11 Every cause of action must satisfy the plausibility standard
articulated in Twombly and Iqbal, which was later adopted in
Warne. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007);
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Warne v. Hall, 2016
CO 50, ¶ 24. Under this standard, a complaint “must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief
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24CA1366 Halper v DeMercardo 12-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1366 San Miguel County District Court No. 24CV5 Honorable Keri A. Yoder, Judge
Mark Lewis Halper,
Plaintiff-Appellant,
v.
Lauren DeMercardo, Sarah Landeryou, and John Wontrobski,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE JOHNSON Harris and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 24, 2025
Mark Lewis Halper, Pro Se
Nathan Dumm & Mayer P.C., Nicholas C. Poppe, Denver, Colorado, for Defendants-Appellees ¶1 Plaintiff, Mark Lewis Halper (Halper), appeals the district
court’s dismissal of his complaint without prejudice and placing
conditions on Halper before it could be refiled. Specifically, Halper
alleges the district court denied him the right to “confront his
accusers” by dismissing his complaint, thus denying him the
“appropriate judicial process.” We disagree and, therefore, affirm.
I. Background
¶2 Halper’s library privileges at the Wilkinson Public Library were
suspended for one year due to Halper asking an underage library
patron to help him take a photograph on his cell phone of an
allegedly pornographic website. In response, Halper — appearing
pro se — sued three of the library’s employees, defendants, Lauren
DeMercado, Sarah Landeryou, and John Wontrobski, for
purportedly making false representations about him in an incident
report involving his alleged inappropriate behavior in violation of
the “Library Bill of Rights, Article 7.”
¶3 Following review of Halper’s complaint, the district court sua
sponte issued an order finding Halper’s complaint noncompliant
with multiple rules of civil procedure. The court found that it did
not appear that the complaint was well grounded in law or fact and
1 could not survive a motion to dismiss. Specifically, it ruled that it
was unclear what legal claims Halper was asserting except for one
pursuant to the Library Bill of Rights, which the court noted had
not been enacted into state law but was instead a set of principles
announced by the American Library Association. Regardless, the
court determined that Halper had not stated any authority to
support that the Library Bill of Rights, or another law, authorized a
private cause of action. As a result, the district court ordered
Halper to either (1) file a complaint conforming with the rules of civil
procedure and containing well-grounded factual and legal
averments within fourteen days or (2) move to dismiss his case.
¶4 Halper responded, restating his original claim and requesting,
in the alternative, that the district court (1) determine that “the
Acceptable Use of the Library Policy (Library Policy) and subsequent
removal of Mark Halper’s library privileges at the Wilkinson Public
Library is in principle only, and not having effective law authority”;
and (2) issue an order to reinstate his library privileges effective
immediately.
¶5 The district court determined that Halper’s response did not
cure any of his complaint’s defects. It held that the revised
2 complaint still violated C.R.C.P. 8 because it did not contain a short
and plain statement of the claim(s) entitling Halper to relief. The
court also determined that Halper’s complaint violated C.R.C.P. 11
because it was not well grounded in fact or existing law. As a
result, the district court dismissed Halper’s complaint without
prejudice. It also entered a prefiling injunction that requires Halper
to satisfy several conditions before he may refile the complaint or
bring any other pro se action in the district court.1
1 Although neither party has raised the issue, we must be assured
we have jurisdiction to review this appeal. See Smith v. City & County of Denver, 2025 COA 70, ¶ 12 (an appellate court may determine nostra sponte whether it has jurisdiction over an appeal). We are limited to the review of final appealable orders. People in Interest of S.C., 2020 COA 95, ¶ 6. Ordinarily, a final appealable order does not include a dismissal without prejudice because a party may refile the lawsuit. Id. at ¶ 8. But when “the circumstances of the case indicate that the action cannot be saved and that the district court’s order precludes further proceedings, dismissal without prejudice qualifies as a final judgment for the purposes of appeal.” Avicanna Inc. v. Mewhinney, 2019 COA 129, ¶ 1 n.1. We conclude that, given the court’s prefiling injunction, the order has the effect of being final. See S.C., ¶ 10; see also Karr v. Williams, 50 P.3d 910, 915-16 (Colo. 2002) (setting forth conditions that impose requirements on a litigant to obtain court approval to refile a complaint).
3 II. Sua Sponte Dismissal
¶6 As we understand his arguments, Halper contends that the
district court erred by dismissing his complaint sua sponte. We
disagree.
A. Standard of Review
¶7 We review a district court’s application of the Colorado Rules
of Civil Procedure de novo. Marquez v. Schaefer, 2025 COA 44,
¶ 19.
¶8 Dismissal “may be proper even in cases where no motion
requesting dismissal has been filed.” ISG, LLC v. Ark. Valley Ditch
Ass’n, 120 P.3d 724, 730 (Colo. 2005). If a court is inclined to
dismiss a complaint sua sponte, “it should, as a matter of
fundamental fairness, if not due process, give the plaintiff an
opportunity to persuade the court that dismissal is not proper.”
Schwartz v. Owens, 134 P.3d 455, 457 (Colo. App. 2005).
B. Library Policy Claims
¶9 The district court found that Halper’s complaint failed to
comply with C.R.C.P. 8, 10, and 11, concluding that it “assert[ed]
no cognizable state district court claim.” While not cited by the
district court, we construe the order to be a ruling under C.R.C.P.
4 12(b)(5), which authorizes a court to dismiss a plaintiff’s complaint
for failure to state a claim upon which relief may be granted. The
purpose of Rule 12(b)(5) is to test the legal sufficiency of a plaintiff’s
complaint. Nesjan v. J & A Distrib., Inc., 2025 COA 81, ¶ 8.
¶ 10 We review a district court’s decision to dismiss a complaint
under Rule 12(b)(5) de novo. Wagner v. Grange Ins. Ass’n, 166 P.3d
304, 307 (Colo. App. 2007). The district court was testing the legal
sufficiency of Halper’s complaint by holding that he failed to state
cognizable claims for relief, and we may affirm a correct district
court judgment on any grounds supported by the record. See
Roque v. Allstate Ins. Co., 2012 COA 10, ¶ 7.
¶ 11 Every cause of action must satisfy the plausibility standard
articulated in Twombly and Iqbal, which was later adopted in
Warne. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007);
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Warne v. Hall, 2016
CO 50, ¶ 24. Under this standard, a complaint “must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). The Supreme Court decisions set forth
two “working principles”: First, a court need not accept as true
5 allegations in the complaint that are merely legal conclusions, and
second, only a complaint that states a viable claim for relief
survives a motion to dismiss. Warne, ¶ 9 (citing Iqbal, 556 U.S. at
678-79).
¶ 12 Halper alleged that the library employees violated his privacy
and confidentiality rights under the Library Policy or Library Bill of
Rights and requested that the district court reinstate his library
privileges. But this is not a plausible claim upon which relief may
be granted. As the district court concluded, and we agree, Halper
did not cite, nor could we find, any authority that the Library Bill of
Rights was enacted into state law by the General Assembly, much
less that it contains a private right of action. See League of Women
Voters of Greeley, Weld Cnty., Inc. v. Bd. of Cnty. Comm’rs, 2025 CO
8, ¶ 17 (“[W]e require a ‘clear expression’ of legislative intent to
establish a private right of action.” (citation omitted)); see also Colo.
Gen. Assembly v. Lamm, 704 P.2d 1371, 1380 (Colo. 1985)
(Speaking in broad terms, “it is the province of the general assembly
to enact legislation.”). Because Halper’s claim under the Library
Bill of Rights and his request to have the district court reinstate his
6 library privileges are not supported by legal authority, the district
court did not err by dismissing that claim.
¶ 13 The district court appropriately gave Halper an opportunity to
persuade the court that dismissal was not proper by allowing him
to file an amended complaint. But Halper failed to cure the issues
identified by the district court, and, thus, we discern no error.2
III. Conclusion
¶ 14 We affirm the judgment of dismissal.
JUDGE HARRIS and JUDGE SCHOCK concur.
2 We construe nothing in Halper’s appellate briefing to directly
challenge the prefiling injunction and conditions the district court placed on him before he could refile his complaint. Thus, there is no need to address this issue. And to the extent there are other claims that Halper attempted to assert in his complaint, we are unable to discern any other cognizable cause of action.