Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS August 12, 2025 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court ETHAN WEST-HELMLE,
Plaintiff - Appellant, v. No. 24-1340 (D.C. No. 1:19-CV-02304-RM-STV) DENVER DISTRICT ATTORNEY'S (D. Colo.) OFFICE; DENVER COUNTY JUDICIARY; UNIVERSITY OF DENVER; DUSTIN HEARD; CHRISTINE WASHBURN; JESSIE DUBOIS; MELISSA TROLLINGER ANNIS; THOMAS RUSSELL; VIVA MOFFAT; ALEXI FREEMAN,
Defendants - Appellees. ––––––––––––––––––––––––––––––––– ETHAN WEST-HELMLE,
Plaintiff - Appellant, v. No. 25-1020 (D.C. No. 1:19-CV-02304-RM-STV) THOMAS RUSSELL, (D. Colo.)
Defendant - Appellee,
and
DENVER COUNTY JUDICIARY; DENVER DISTRICT ATTORNEY'S OFFICE; JESSIE DUBOIS; MELISSA T. ANNIS; ALEXI FREEMAN; DUSTIN HEARD; VIVA MOFFAT; UNIVERSITY OF DENVER; CHRISTINE WASHBURN,
Defendants. Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 2
_________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, CARSON, and FEDERICO, Circuit Judges. _________________________________
Ethan West-Helmle, proceeding pro se,1 unsuccessfully pursued
federal claims of disability discrimination and ancillary state-law claims.
In No. 24-1340, he appeals the dismissal of most of his claims and the grant
of summary judgment to the defendants on the others. In No. 25-1020, he
* 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.
1 “[W]e generally construe pro se pleadings liberally,” but not when
the litigant is a licensed attorney. Comm. on Conduct of Att’ys v. Oliver, 510 F.3d 1219, 1223 (10th Cir. 2007) (internal quotation marks omitted). West-Helmle is a law school graduate, so he falls somewhere in between a typical pro se litigant and a licensed attorney. Here, we choose to liberally construe his filings. But we do not act as his advocate, and he must follow the same rules as other litigants. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal quotation marks omitted).
2 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 3
appeals an award of attorneys’ fees to one of the defendants. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm in both appeals.2
I
West-Helmle was a student at the Sturm College of Law at the
University of Denver (DU). In December 2016, he had an ischemic stroke,
suffering “extensive brain trauma” that left him “with impairments . . . such
as slowed reading comprehension” and “poor circulatory function.” R. II at
130, 144. After taking some time to recover, he continued his studies at the
law school.
In the fall of 2017, West-Helmle had an externship with the office of
the Denver District Attorney (DDA), for which he was to earn credit hours
towards his degree. Under the supervision of defendants
Christine Washburn, Dustin Heard, and Jessie Dubois, he worked in
Denver County Courtroom 4C, where defendant Magistrate Judge
Melissa Trollinger Annis generally presided. The externship, however, did
not go well. West-Helmle received an unfavorable mid-semester review.
Then, when he asked a question following a hearing, Judge Annis barred
him from Courtroom 4C. A few weeks later, DDA terminated the externship.
2 We dismiss the portion of No. 25-1020 challenging an award of costs
because there is no final district-court decision regarding costs. 3 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 4
West-Helmle alleges that Washburn and Heard contacted other
district attorney’s offices to warn them not to hire West-Helmle. He also
alleges that Dubois advised another office of his impairments and
recommended he not be hired. Heard submitted to DU a final review
recommending West-Helmle receive a failing grade for the externship.
After DDA terminated the externship, West-Helmle sought a refund
of his tuition for the credit hours he would have earned for the externship.
Defendant Viva Moffat, a DU professor, stated there was nothing she could
do about a refund. West-Helmle contacted defendant Alexi Freeman,
another DU professor, and asked if DU could accommodate him rather than
giving him a failing grade for the externship. Although Freeman told West-
Helmle to complete unfinished assignments to put himself in the best
position to get a passing grade, she assigned him a failing grade in January
2018.
West-Helmle appealed the denial of a tuition refund, but he alleges
that Moffat influenced the decision to reject the appeal. He also appealed
the failing grade. Defendant Thomas Russell, the chair of the DU
Examinations, Standing, and Readmission Committee, issued a decision
upholding the grade. West-Helmle alleges that Moffat and Freeman
influenced Russell’s decision. West-Helmle had to make up the credit hours
4 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 5
that he did not earn from the externship and ended up graduating later
than he originally planned.
In 2019, West-Helmle filed suit against DDA, the Denver County
Judiciary (DCJ), DU, Judge Annis, Washburn, Heard, Dubois, Freeman,
Moffat, and Russell. Subsequently, as relevant here, he filed a second
amended complaint and then a third amended complaint alleging violations
of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132; § 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794; and state law. The district
court dismissed the bulk of the claims and then granted summary judgment
on the remaining claims.
After the district court resolved all claims, Russell moved for an
award of attorney’s fees, which the district court granted.
II
Appeal No. 24-1340 challenges the dismissal of most of West-Helmle’s
claims and the grant of summary judgment on the remaining claims.
A
As an initial matter, DU, Moffat, and Freeman move to strike
West-Helmle’s opening brief as too long, in violation of court rules. We
granted West-Helmle leave to file a 35-page opening brief. Our rules require
briefs to be in 13-point or 14-point font. See Fed. R. App. P. 32(a)(5)(A);
10th Cir. R. 32(A). The brief West-Helmle filed is 36 pages in a 12-point
5 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 6
font. The brief is 41 pages when reprinted in a 13-point font (as shown by
the 13-point version West-Helmle attached to his response to the motion to
strike).
Asserting that he was not aware of the font-size requirement and
suggesting that the word count is in line with a 35-page brief, West-Helmle
requests that the court accept his 41-page brief. We accept the 13-point brief
for filing as an amended opening brief and direct the Clerk to file it as such.
But West-Helmle requested and the court authorized a set page limit, not
an adjusted word count, and his 13-point brief well exceeds the authorized
page limit. We will not overlook the failure to comply with the court’s order
and rules. We therefore address only the contentions set forth in the first
35 pages of the 13-point brief. We deem any arguments set forth in pages
36 to 41 of the amended opening brief (roughly corresponding to pages 32 to
36 of the original opening brief) to be waived.3
B
West-Helmle challenges the dismissal of various claims under Federal
Rule of Civil Procedure 12(b)(6). We review Rule 12(b)(6) dismissals de novo,
“accept[ing] all the well-pleaded allegations of the complaint as true and
constru[ing] them in the light most favorable to” West-Helmle as the non-
3 Although for purposes of our disposition we deem the arguments on these pages waived, even if not waived, we do not find them meritorious. 6 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 7
moving party. Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1368 (10th
Cir. 2015) (ellipsis and internal quotation marks omitted). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter to
state a claim to relief that is plausible on its face.” Id. (ellipsis and internal
quotation marks omitted).
In the second amended complaint, West-Helmle alleges that
Washburn, Heard, and Dubois defamed him in violation of his right to due
process. West-Helmle asserts that the district court erred in dismissing this
stigma-plus claim, or at the least erred in dismissing it with prejudice,
because he could have adequately pleaded it, if given another opportunity.
The first question for a procedural due process claim is “[d]id the
plaintiff possess a protected property or liberty interest to which due
process protections apply?” Hinkle v. Beckham Cnty Bd. of Cnty. Comm’rs,
962 F.3d 1204, 1229 (10th Cir. 2020) (internal quotation marks omitted). If
the answer is “yes,” then the second question is “was the plaintiff afforded
an appropriate level of process?” Id. (internal quotation marks omitted). We
need not reach arguments regarding the level of process (or the district
court’s alternative holding that the defendants would be entitled to
qualified immunity on this claim), because the second amended complaint
failed to plausibly plead a protected interest, and West-Helmle did not
7 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 8
timely present the facts and arguments to the district court that he now
relies on to contend that he could have adequately re-pleaded the claim.
“Damage to one’s reputation alone . . . is not enough to implicate due
process protections.” Jensen v. Redevelopment Agency of Sandy City, 998
F.2d 1550, 1558 (10th Cir. 1993). “In the stigma-plus context . . . what is
needed in addition to stigma is some change in legal status,” which “must
be significant.” Hinkle, 962 F.3d at 1229 (alterations and internal quotation
marks omitted). “Damage to prospective employment opportunities is too
intangible” to satisfy this requirement. Jensen, 998 F.2d at 1559. The
district court dismissed the claim on the ground that the allegations
described loss of prospective employment opportunities without showing
any significant change in legal status.
West-Helmle alleges “the Trial Court wrongfully limited the damages
to only future employers, overlooking all the other damage caused by stigma
plus.” Aplt. Amend. Op. Br. at 12. He asserts that in addition to “loss of
future employment,” Washburn, Heard and Dubois “are all liable to [him]
for the scholastic damages at his university . . . and loss of [professional]
licensure.” Id. If we understand him correctly, he is asserting that he
plausibly pleaded (or could plead) a significant, material change in legal
status by alleging that defendants defamed him to DU, causing him to
8 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 9
receive a failing grade, and to state licensing authorities, causing him to be
denied a license to practice law.
To satisfy the “plus” requirement, a plaintiff must plead that he
“experienced a governmentally imposed burden that significantly altered
his status as a matter of state law.” Al-Turki v. Tomsic, 926 F.3d 610, 618
(10th Cir. 2019) (internal quotation marks omitted). We have identified
“losing the right to drive a car or being wrongfully registered as a sex
offender” as examples of actions that constitute significant, material
changes in legal status. Hinkle, 962 F.3d at 1231. West-Helmle fails to
supply any authority holding that receiving a failing grade from a private
institution or the denial of a license that the applicant never held satisfies
the legal-status requirement. And even if these actions would suffice, West-
Helmle fails to show the second amended complaint contains sufficient facts
and allegations to plausibly plead them.
The second amended complaint alleges that Heard recommended to
DU that he receive a failing grade, but it stated he did so “with the intent
to adversely affect [West-Helmle’s] professional reputation,” R. I at 401,
which in context appears to refer to prospective employers. And the second
amended complaint did not include any allegations that the DDA
9 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 10
defendants defamed West-Helmle to licensing authorities.4 West-Helmle
thus fails to show how the district court erred in dismissing this claim.
Further, West-Helmle did not preserve his argument that he could
have adequately re-pleaded the claim if given the opportunity. He did not
raise the legal-status argument that he now makes in either his response
to the DDA defendants’ motion to dismiss or his objections to the magistrate
judge’s recommendation. We will not fault the district court for failing to
allow West-Helmle a chance to re-plead the claim when he did not timely
make the argument he relies on now. See Impact Energy Res., LLC v.
Salazar, 693 F.3d 1239, 1246 n.3 (10th Cir. 2012) (per curiam) (explaining
that failure to raise issue at appropriate time in the district court waives
appellate review).
West-Helmle next challenges the dismissal of his ADA and
Rehabilitation Act discrimination and failure-to-accommodate claims for
failure to plausibly plead that he is a qualified individual with a disability.
See Est. of Beauford v. Mesa Cnty., 35 F.4th 1248, 1276 (10th Cir. 2022)
(first element of a claim under ADA Title II is that the plaintiff “is a
4 West-Helmle’s record citations supporting these allegations are to
documents he filed long after the magistrate judge issued his recommendation and the district court accepted it. 10 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 11
qualified individual with a disability” (internal quotation marks omitted));
Cline v. Clinical Perfusion Sys., Inc., 92 F.4th 926, 932 (10th Cir. 2024) (first
element of a claim under § 504 of the Rehabilitation Act is that the plaintiff
“is a handicapped individual under the Act” (internal quotation marks
omitted)); Edmonds-Radford v. Sw. Airlines Co., 17 F.4th 975, 986 (10th
Cir. 2021) (observing “the same substantive standards apply under the
Rehabilitation Act and the ADA”).
Considering the third amended complaint, along with an attached
medical record, the magistrate judge concluded that West-Helmle had
alleged only mild impairments and had failed to identify any major life
activity that was substantially limited by those impairments. He therefore
concluded that the third amended complaint failed to plausibly plead that
West-Helmle has a disability.
West-Helmle extensively objected to the recommendation, arguing
over several pages why and how he is disabled. The district court, however,
did not find the objections persuasive. It assumed that “poor circulatory
function” as discussed in West-Helmle’s objections was an impairment, but
it stated that West-Helmle had not identified a major life activity that he
was unable to perform or was significantly restricted in performing, and
that he had not shown that poor circulatory function substantially limited
11 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 12
any such activity. The district court declined to consider new arguments
and new evidence submitted with the objections.
West-Helmle suggests that the district judge did not consider the
medical report attached to his third amended complaint. The magistrate
judge considered that report, and the district court referred to it as well. On
the record page West-Helmle cites to support his contention, the district
court “declin[ed] to consider newly submitted evidence, such as the medical
records Plaintiff attaches to his Objection.” R. II at 691. The records
attached to the objection (which the district court’s docket shows as 101
pages) far exceed the six-page record attached to the third amended
complaint. West-Helmle does not argue why it would be improper for the
district court to have declined to consider 101 pages of newly submitted
evidence.
This section of West-Helmle’s brief consists of (1) quotations from
various portions of the record, and (2) conclusory assertions that the district
court not only erred but was abusive to West-Helmle. The brief never
adequately addresses the district court’s reasoning for concluding that he
did not plausibly plead that he is a qualified individual with a disability.
For example, West-Helmle submits a page-long quotation of
allegations from the third amended complaint, which he states are “in
support of the last two elements of ADA and the Rehabilitation Act claims
12 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 13
against the County.” Aplt. Amend. Op. Br. at 15. That entirely bypasses the
relevant question (and the first element) – whether he plausibly pleaded
that he is a qualified individual with a disability.
Regarding the question at hand (whether the complaint adequately
pleaded a disability), West-Helmle primarily supplies a three-page,
single-spaced block quote repeating nearly verbatim the arguments he
made in his objections to the magistrate judge’s recommendation, stating
that the excerpt “explains well that [he] is indeed disabled,” id. at 16. He
follows the quotation with a conclusory statement that the claims “were all
wrongfully dismissed with discriminatory purposes. This abhorrent
decision affected Defendants DU, DA’s Office and the County Court. These
Counts must be overturned and remanded.” Id. at 20.
Merely quoting arguments from district-court briefing, however, does
not qualify as appropriate appellate briefing. “The first task of an appellant
is to explain to us why the district court’s decision was wrong,” Nixon,
784 F.3d at 1366, and “presenting the exact same argument that the district
court rejected, without more, falls short of explaining to us why the district
court’s decision was wrong,” Meek v. Martin, 74 F.4th 1223, 1276 (10th Cir.
2023) (brackets, emphasis, and internal quotation marks omitted); see also
Semsroth v. City of Wichita, 555 F.3d 1182, 1186 n.5 (10th Cir. 2009) (noting
appellants’ brief, which was a “verbatim copy of [] their summary judgment
13 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 14
response,” “fail[ed] to address in a direct way the decision under review and,
as a result, d[id] not effectively come to grips with the district court’s
analysis of the deficiencies in their case”). Because the appellate brief fails
to adequately challenge the district court’s reasoning and determination
that West-Helmle did not plausibly plead that he is a qualified individual
with a disability, we affirm the dismissal of the ADA and Rehabilitation Act
discrimination and failure-to-accommodate claims. See Nixon, 784 F.3d at
1366, 1369-70 (affirming where appellant failed to challenge the district
court’s reasoning).
West-Helmle also seeks to challenge the dismissal of a claim for civil
conspiracy against DU Professors Russell, Freeman, and Moffat. But
enforcing our firm waiver rule, we decline to consider any arguments
regarding the dismissal of the civil conspiracy claim.
Our firm waiver rule provides that “a party who fails to make a timely
objection to the magistrate judge’s findings and recommendations waives
appellate review of both factual and legal questions.” Morales-Fernandez v.
I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005). West-Helmle did not object to
the magistrate judge’s recommendation to dismiss the civil conspiracy
claim. To the contrary, he affirmatively consented to the dismissal of that
claim. See R. II at 559 (“Plaintiff agrees with the Court regarding the
14 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 15
dismissal of the . . . conspiracy claims.”). As defendants correctly argue, by
doing so, he waived his right to appeal the dismissal of the claim.5 See
Morales-Fernandez, 418 F.3d at 1119.
West-Helmle next argues that the district court erred in entertaining
DDA’s Rule 12(b)(6) motion because DDA already had filed an answer. See
Fed. R. Civ. P. 12(b) (providing that defenses set forth in Rule 12(b)(1)
through (b)(7) “must be made before pleading if a responsive pleading is
allowed”). But the answer he identifies was directed toward the second
amended complaint. Answering the second amended complaint did not
preclude DDA from filing a Rule 12(b) motion regarding the third amended
complaint. See 5C A. Miller & A. Spencer, Federal Practice & Procedure
Civil § 1361 (3d ed. 2025) (“[W]henever the court allows a party to amend
5 The firm waiver rule does not apply “when (1) a pro se litigant has
not been informed of the time period for objecting and the consequences of failing to object, or when (2) the interests of justice require review.” Morales-Fernandez, 418 F.3d at 1119 (internal quotation marks omitted). Neither exception applies here. The report and recommendation advised West-Helmle of the need to object. And in these circumstances, we are not persuaded that the interests of justice require review. See United States v. Lesh, 107 F.4th 1239, 1245 (10th Cir. 2024) (“A party may not on appeal change its theory and take a position inconsistent therewith.” (internal quotation marks omitted)), cert. denied, __ S. Ct. __, 2025 WL 1678982 (U.S. June 16, 2025) (No. 24-654). 15 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 16
its pleading, the opposing party’s right to interpose a Rule 12(b) motion is
extended or revived accordingly.”).
C
Judge Annis sought and obtained dismissal of the second amended
complaint’s claims against her based on absolute judicial immunity. West-
Helmle did not name her as a defendant in the third amended complaint.
After the district court dismissed the bulk of the claims in the third
amended complaint, it set a scheduling order. Just before the deadline for
joining parties and amending the complaint, West-Helmle sought to re-join
Judge Annis as a defendant to assert a § 1983 claim against her. The district
court denied the motion without prejudice because he had failed to follow
the court’s rules regarding requests to amend the complaint.
Three months after the deadline for joinder and amendment (and two
months after the district court’s denial of his first motion to re-join Judge
Annis), West-Helmle filed a second motion to re-join Judge Annis. He
sought leave to file a fourth amended complaint adding a § 1983 claim based
on Judge Annis’s exclusion of him from Courtroom 4C. The district court
denied the motion for failure to show good cause under Fed. R. Civ.
P. 16(b)(4) and for failure to satisfy the standards for amending pleadings.
It stated that the motion was untimely, the defendants would be prejudiced,
and amendment would be futile because Judge Annis still would be entitled
16 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 17
to absolute judicial immunity. Our review is for abuse of discretion,
see Lee v. Poudre Sch. Dist. R-1, 135 F.4th 924, 932 (10th Cir. 2025)
(amendment); 103 Invs. I, L.P. v. Square D Co., 372 F.3d 1213, 1218 (10th
Cir. 2004) (joinder), except that we review de novo the legal basis for a
finding of futility, see Lee, 135 F.4th at 932.
We need not consider good cause, timeliness, or undue prejudice
because the district court did not err in concluding amendment would be
futile. The proposed § 1983 claim would be barred by absolute judicial
immunity. “[J]udges are generally immune from suits for money damages.
There are only two exceptions to this rule: (1) when the act is not taken in
the judge’s judicial capacity, and (2) when the act, though judicial in nature,
is taken in the complete absence of all jurisdiction.” Stein v. Disciplinary
Bd. of Sup. Ct. of N.M., 520 F.3d 1183, 1195 (10th Cir. 2008) (citation,
brackets, and internal quotation marks omitted). West-Helmle invokes the
first exception, but there can be no serious argument that Judge Annis was
not acting in her judicial capacity when she excluded him from Courtroom
4C.
In determining whether a judge was acting in her judicial capacity,
“we look to the particular act’s relation to a general function normally
performed by a judge.” Mireles v. Waco, 502 U.S. 9, 13 (1991). It is well-
established that controlling access to a courtroom is a function normally
17 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 18
performed by a judge. See Sheppard v. Maxwell, 384 U.S. 333, 358 (1966)
(“[T]he courtroom and courthouse premises are subject to the control of the
court.”); Combined Commc’ns Corp. v. Finesilver, 672 F.2d 818, 821 (10th
Cir. 1982) (recognizing that judges may restrict access to courtrooms).
West-Helmle asserts that certain discovery responses by DCJ were
admissions that Judge Annis did not act judicially, but we are not
persuaded that he has correctly interpreted those responses or that they
support the weight he assigns to them. Further, allegations that Judge
Annis acted unofficially and without entering a citation or order of contempt
are not sufficient to overcome judicial immunity. See Forrester v. White,
484 U.S. 219, 227 (1988) (stating that “the informal and ex parte nature of
a proceeding has not been thought to imply that an act otherwise within a
judge’s lawful jurisdiction was deprived of its judicial character”). Nor are
allegations that Judge Annis had a discriminatory motive. See id.
(recognizing that invoking a judicial power “does not become less judicial by
virtue of an allegation of malice or corruption of motive”).
D
Finally for No. 24-1340, West-Helmle appeals the district court’s
decision not to recuse from his case. While challenging the grant of
summary judgment to DU on his Rehabilitation Act retaliation claim, West-
Helmle makes two arguments arising out of two 28 U.S.C. § 144 motions
18 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 19
that he filed with the district court demanding that the district judge recuse
from his case. The two motions were accompanied by affidavits. We review
the denial of a motion to recuse for abuse of discretion. See Weatherhead v.
Globe Int’l, Inc., 832 F.2d 1226, 1227 (10th Cir. 1987).
West-Helmle objects that the district judge did not mention the
affidavits and asserts that the judge could not proceed in the case without
referring the recusal motions to another judge. See § 144 (“Whenever a
party to any proceeding in a district court makes and files a timely and
sufficient affidavit that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of any adverse
party, such judge shall proceed no further therein, but another judge shall
be assigned to hear such proceeding.”). He argues that the district judge,
having failed to comply with § 144, lacked the authority to decide any issue
in the case that arose or was pending after West-Helmle filed his recusal
motions.
“Disqualification under 28 U.S.C. § 144 places a substantial burden
on the moving party to demonstrate that the judge is not impartial, not a
burden on the judge to prove that he is impartial.” In re McCarthey, 368
F.3d 1266, 1269 (10th Cir. 2004). To require recusal under § 144, a party’s
affidavit must be both timely and sufficient. See id.; Green v. Dorrell, 969
19 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 20
F.2d 915, 919 (10th Cir. 1992). Under our precedent, when a party files a
motion to recuse the judge in a particular case, that judge may decide the
legal sufficiency of the motion in the first instance. See United States v.
Bray, 546 F.2d 851, 857 (10th Cir. 1976); see also Burke v. Regalado,
935 F.3d 960, 1052 n.83 (10th Cir. 2019) (recognizing, in case involving
recusal under 28 U.S.C. § 455(a), that “the common practice in federal
courts has been for the judge who is the target of the disqualification
request to decide the motion”). In order to be sufficient, the § 144 affidavit
must state facts and reasons which “give fair support to the charge of a bent
of mind that may prevent or impede impartiality of judgment.” Bell v.
Chandler, 569 F.2d 556, 559 (10th Cir. 1978) (internal quotation marks
omitted).
First Motion to Recuse. West-Helmle directed his first motion to
recuse primarily toward the magistrate judge. But at the end of the motion,
he also called for the district judge’s recusal, averring that the district judge
had influenced the magistrate judge’s rulings and stating that the district
judge had retired. The affidavit’s only allegation regarding the district
judge, however, was that he had dismissed claims against DDA over
West-Helmle’s objections. This allegation was insufficient to satisfy § 144.
See Green, 969 F.2d at 919 (recognizing that “adverse rulings against a
litigant cannot in themselves form the appropriate grounds for
20 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 21
disqualification”); Bray, 546 F.2d at 857 (“Nor are adverse rulings by a
judge grounds for disqualification.”).
Second Motion to Recuse. Several months later, West-Helmle filed
another motion to recuse. The attached affidavit made numerous
complaints about the district judge’s handling of West-Helmle’s case and
conclusory allegations that the district judge was biased against him as a
person with a disability. In addition to being beyond the numerical limit
imposed in § 144, which states that “[a] party may file only one such
affidavit in any case,” this affidavit also was insufficient. Not only are
complaints about rulings unavailing, see Green, 969 F.2d at 919; Bray,
546 F.2d at 857, but so too are conclusory allegations of bias based on
nothing more than speculation and opinion or belief, see United States v.
Burger, 964 F.2d 1065, 1070 (10th Cir. 1992) (“Conclusions, rumors, beliefs
and opinions are not sufficient to form a basis for disqualification.”); Glass
v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir. 1988) (“The affidavit is insufficient
if it merely states conclusions, rumors, beliefs and opinions.”).
Neither affidavit was sufficient to trigger recusal under § 144.
Because the district judge did not err in handling the recusal motions, the
argument that he lacked authority to decide any subsequent issues also
fails.
21 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 22
West-Helmle further argues that in denying his recusal motions and
proceeding with the case, the district judge violated his due process right to
be heard by an unbiased judge. See, e.g., Withrow v. Larkin, 421 U.S. 35, 46
(1975) (“[A] fair trial in a fair tribunal is a basic requirement of due
process.” (internal quotation marks omitted)). As just stated, West-Helmle
failed to establish any actual bias or prejudice sufficient to warrant recusal
under § 144. Likewise, his allegations would be insufficient to require
recusal under 28 U.S.C. § 455. See Liteky v. United States, 510 U.S. 540,
555 (1994) (“[J]udicial rulings alone almost never constitute a valid basis
for a bias or partiality motion.”); United States v. Cooley, 1 F.3d 985, 993-
94 (10th Cir. 1993) (listing, among matters “which will not ordinarily
satisfy the requirements for disqualification under § 455(a) . . . [r]umor,
speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar
non-factual matters” and “prior rulings in the proceeding, or another
proceeding, solely because they were adverse”). In short, he fails to show
any due process violation.6
6 West-Helmle “attempt[s] to impugn (without basis) the integrity of
the district judge.” Garrett, 425 F.3d at 841. See, e.g., Aplt. Amend. Op. Br. at 2 (“Judge Moore – with purpose – has either failed to read or misread Appellant[’]s Motions, Responses, Replies, and Objections throughout the time of this case.” (emphasis added)); id. at 15 (“This Judge takes pride in
22 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 23
***
For these reasons, we affirm the judgment in No. 24-1340. We deny
the request in DU, Moffat, and Freeman’s response brief for sanctions under
Fed. R. App. P. 38 because that rule requires “a separately filed motion.”
III
Appeal No. 25-1020 concerns the award of attorneys’ fees to Russell.7
“We review a district court’s attorneys’ fee award for abuse of discretion,
being the first Judge to tell a victim of stroke he did not explain his incompetency well enough. Judge Moore is terribly abusive here, he follows his own rules.”); id. at 35 (“Judge Moore had no given right to ‘go his own way’ in spite of his lawful duties.”); see also Aplt. Reply Br. at 2 (“Judge Moore is not an appropriate judge for this case. Judge Moore has acted terribly toward [West-Helmle] – outright unacceptable discrimination . . . . Judge Moore’s behaviors became enhanced with retaliatory misconduct.”). We admonish him that we “will not allow liberal pleading rules and pro se practice to be a vehicle for abusive documents. Our pro se practice is a shield against the technical requirements of a past age; it is not a sword with which to insult a trial judge.” Garrett, 425 F.3d at 841 (internal quotation marks omitted); see also Koehl v. Bernstein, 740 F.3d 860, 863 (2d Cir. 2014) (“[T]he right to accuse a judge of bias (or of misconduct) does not carry with it the right to abuse and insult.”).
7 In No. 25-1020, West-Helmle also challenges an award of costs to
DU. But we have not found any final decision awarding costs to DU. After DU filed its proposed bill of costs, West-Helmle objected. The district court’s docket does not reflect that the clerk ever resolved the objections or entered a Taxation of Costs. DU’s proposed bill of costs (CM/ECF Doc. 387), which is the document that West-Helmle’s notice of appeal identifies as the subject of the appeal, is not signed by the clerk and has a blank space for the amount of costs taxed. See R. X at 1795. And there is no indication that any party sought the district court’s review of any Taxation of Costs. In the absence of a final decision regarding costs, we dismiss this portion of the appeal for lack of jurisdiction. 23 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 24
though in doing so we review the district court’s application of legal
principles de novo, and [its] findings of fact for clear error.” In re Syngenta
AG MIR 162 Corn Litig., 61 F.4th 1126, 1177 (10th Cir. 2023) (alterations
and internal quotation marks omitted).
Russell sought attorneys’ fees under Colo. Rev. Stat. § 13-17-201(1),
which requires a fee award when a tort action is dismissed on a defendant’s
Rule 12(b) motion. Noting that there was no dispute that West-Helmle
asserted against Russell a tort claim and that both of his claims against
Russell were dismissed, the district court had “little trouble concluding that
§ 13-17-201 applies here.” R. XI at 256. The court, however, determined that
Russell’s request – nearly $125,000 – was excessive. Half of the billing
entries came after the court dismissed the claims against Russell, but there
was “very limited explanation for why his attorneys’ considerable
involvement with the case as it moved forward was reasonably necessary.”
Id. at 257. Moreover, the district court considered that the claims against
Russell were not particularly complex. It therefore awarded Russell half the
amount requested, entering judgment for $62,430.
Referring back to his arguments in No. 24-1340, West-Helmle first
claims that the fee order is void because the order granting summary
judgment to DU is void for violation of his right to due process. As discussed
24 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 25
in No. 24-1340, this argument rests on the premise that the district judge
was biased against him. Having concluded in No. 24-1340 that West-Helmle
suffered no due process violation, we reject the argument here as well.
West-Helmle next argues that Lewis v. City of Littleton, 855 F. App’x
448 (10th Cir. 2021), precludes an award under § 13-17-201(1). In Lewis, a
plaintiff asserted common-law and statutory claims against several
defendants, including the City of Littleton. Id. at 450. The district court
disposed of all the claims against the City before trial, dismissing some and
granting summary judgment on others. Id. at 450, 454. The City sought fees
under § 13-17-201(1). Id. at 453. The district court denied the request. See
id. We affirmed, concluding the City was not entitled to fees because
§ 13-17-201(1) “appl[ies] only when an entire action is dismissed under
Rule 12(b),” and “[t]he entire action against the City wasn’t dismissed
under Rule 12(b); the ADA and Rehabilitation-Act claims were dismissed
on summary judgment.” Id. at 454. West-Helmle asserts that the facts in
Lewis are the same as the facts here.
West-Helmle is incorrect. The facts in Lewis are not the same as the
facts here. In Lewis, we concluded that § 13-17-201(1) did not apply because
the district court dismissed only some of the claims against the City; other
claims against it moved beyond the dismissal stage. Here, West-Helmle
25 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 26
asserted two claims against Russell, and neither claim moved beyond the
dismissal stage. Although claims against DU did proceed to summary
judgment, Russell and DU were two separate defendants (notwithstanding
West-Helmle’s attempts to conflate them). The fact that claims against DU
went to summary judgment does not affect Russell’s entitlement to fees
under § 13-17-201(1). See Colo. Spec. Dists. Prop. & Liab. Pool v. Lyons,
277 P.3d 874, 884 (Colo. App. 2012) (“[T]he statute may apply to one
defendant even though claims are still pending as to other defendants at
the time of dismissal.”); see also Schultz v. Laszlo & Assocs., LLC, 568 P.3d
458, 466 (Colo. App. 2025) (recognizing this principle from Lyons).
For these reasons, we affirm the district court’s award of attorneys’
fees to Russell in No. 25-1020.
IV
We affirm the judgments in Nos. 24-1340 and 25-1020, except that we
dismiss for lack of jurisdiction that portion of No. 25-1020 challenging costs
in favor of DU. In No. 24-1340, we deny the motion by DU, Moffat, and
Freeman to strike the opening brief and their request in their response brief
for Rule 38 sanctions, and we grant West-Helmle’s request to file, as an
amended opening brief, the 13-point brief attached to his response to the
26 Appellate Case: 24-1340 Document: 72 Date Filed: 08/12/2025 Page: 27
motion to strike.8 We therefore direct the Clerk to file the amended opening
brief in No. 24-1340.
Entered for the Court
Richard E.N. Federico Circuit Judge
8 As stated, however, we address only the arguments in the permitted
35 pages. 27