SUMMARY

December 3, 2020

2020COA168

No. 19CA1189, Rueb v. Rich-Fredericks — Courts and Court 

Procedure — Inmate Lawsuits — Successive Claims

When an inmate has three or more civil lawsuits that were 

dismissed for being frivolous, groundless, malicious or failed to 

state a claim — referred to as “strikes” — the inmate loses the 

privilege to file a new civil action based on prison conditions in 

forma pauperis. In this case, a division of this court considers 

whether that same loss of privilege applies under section 13-17.5-

102.7(1), C.R.S. 2020 when an inmate’s civil complaint includes 

claims for relief based on prison conditions and non-prison 

conditions. The division concludes that an inmate’s civil action that 

contains both prison related and non-prison related claims, may be 

dismissed if the inmate has three or more strikes and the inmate is 

given the opportunity to pay the filing fee and fails to do so.

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2020COA168

Court of Appeals No. 19CA1189

Las Animas County District Court No. 18CV11

Honorable Stephen M. Munsinger, Judge

Justin Rueb,

Plaintiff-Appellant,

v.

Jacquellyn Rich-Fredericks, Patrick Sayas, Stacy Mortensen, Patrick 

McCarville, Jennifer Huss, Nicole Geller, James Quinn, Colorado Department of 

Corrections, Cheryl Saucedo, Rick Raemisch, Aristedes Zavaras, Joe Ortiz, 

Larry Reid, Dana M. Kernan, Monique Sheperd, Richard Grahn, and Dana 

Hatfield, 

Defendants-Appellees.

ORDER AFFIRMED

Division IV

Opinion by JUDGE JOHNSON

Terry and Richman, JJ., concur

Announced December 3, 2020

Justin Rueb, Pro Se

Philip J. Weiser, Attorney General, Amy Colony, Senior Assistant Attorney 

General, Denver, Colorado, for Defendants-Appellees Jacquellyn RichFredericks, Patrick Sayas, Stacy Mortensen, Patrick McCarville, Jennifer Huss, 

Nicole Geller, James Quinn, Colorado Department of Corrections, Cheryl 

Saucedo, Rick Raemisch, Aristedes Zavaras, Joe Ortiz, Larry Reid, Dana M. 

Kernan, and Monique Sheperd

Bruno, Colin, and Lowe, P.C., Michael T. Lowe, Denver, Colorado, for 

Defendants-Appellees Richard Grahn and Dana Hatfield 
1

¶ 1 Under Colorado law, an inmate may qualify to file a civil action 

in forma pauperis. § 13-17.5-103(1), C.R.S. 2020. But under 

section 13-17.5-102.7(1), C.R.S. 2020, an inmate no longer retains 

that privilege if he or she files three or more civil lawsuits based on 

prison conditions and those lawsuits are dismissed for being 

frivolous, groundless, or malicious, or failing to state a claim upon 

which relief may be granted. Lawsuits that are dismissed on these 

grounds are sometimes referred to as “strikes.”

¶ 2 This case presents the following question: When an inmate’s 

civil complaint includes claims for relief based on prison conditions 

and non-prison conditions — and the inmate has three strikes —

does that statute nonetheless apply, requiring the inmate to pay a 

filing fee? We determine it does. Because plaintiff, Justin Rueb 

(Rueb), had three strikes, the district court properly dismissed his 

complaint that included both prison and non-prison condition 

claims when he failed to pay the filing fee.

I. Background

¶ 3 In 2018, Rueb filed a complaint in district court against 

numerous individuals in an official capacity and a state and city 
2

entity (collectively defendants).1 The complaint alleged claims 

against defendants arising from (1) the original criminal charges 

against him; (2) calculation of his sentence; (3) denial of access to 

his property by the Colorado Department of Corrections (DOC); and 

(4) defenses taken against various actions he brought against the 

Attorney General’s Office, the DOC, and his former public defender. 

Rueb requested to proceed in forma pauperis and the district court 

initially granted his request.

¶ 4 The defendants filed a motion to reconsider the district court’s 

order, arguing that Rueb had accumulated more than three strikes 

under section 13-17.5-102.7(1). The district court agreed with the 

defendants and reversed its prior order granting Rueb permission to 

proceed in forma pauperis. The district court then gave Rueb thirty 

 1 The defendants named in Rueb’s complaint include Jacquellyn

Rich-Fredericks, Patrick Sayas, Stacy Mortensen, Patrick 

McCarville, Jennifer Huss, Nicole Geller, James Quinn, the 

Colorado Department of Corrections (DOC), Cheryl Saucedo, Rick 

Raemisch, Aristedes Zavaras, Joe Ortiz, Larry Reid, Dana M. 

Kernan, Monique Sheperd, the City of Aurora, Richard Grahn, Dana 

Hatfield, Charles Dunn, Justin P. Moore, and Candace Carlson. 

Although Rueb sued the individuals in their official capacities, 

nothing in the record indicates the nature of their official titles or 

positions.
3

days to pay the filing fee; after he failed to do so, the court 

dismissed Rueb’s complaint. This appeal followed.

II. Motion to Proceed in Forma Pauperis

¶ 5 Rueb contends that his complaint contains claims involving 

civil rights, declaratory judgment, and several common law torts 

including false imprisonment, abuse of process, and civil 

conspiracy, and therefore it is not subject to section 

13-17.5-102.7(1).2

 2 Rueb raises eight arguments in his opening brief, although these 

can be distilled down into the one issue regarding the denial of his 

motion to proceed in forma pauperis. His arguments are as follows: 

(1) “Colo. Rev. Stat. § 13-17.5-102.7 Does Not Apply To Preclude 

‘Grant’ Of Rueb’s In Form Pauperis’ Motion In This Case, Because 

These Claims Are Not ‘Prison Conditions’ Based Claims”; (2) “Colo. 

Rev. Stat. § 13-17.5-102.7 Does Not Apply To Rueb’s ‘Claim: 11’ 

Federal 42 U.S.C. § 1983 Claim”; (3) “Colo. Rev. Stat. § 13-17.5-

102.7 Does Not Apply To Rueb’s ‘Declaratory Judgement’ Claim”; (4) 

“Colo. Rev. Stat. § 13-17.5-102.7 Does Not Apply To Restrict The 

Filing Of ‘Common Law’ Tort-Based Claims Such As The Claims 

Being Litigated In The Case At Bar”; (5) “The District Court Erred By 

Granting Defendant Moore A Severed ‘Statute Of Limitations’ 

Defense On The ‘Joint’ Civil Conspiracy Claim That Did Not ‘Accrue’ 

Until The Final ‘Act’”; (6) “The District Court Erred By Granting 

Defendant Moore The Protection of ‘Absolute Prosecutor Immunity’ 

Where Moore’s ‘Acts’ Foreseeably Led To A ‘Deprivation of Rueb’s 

Liberty’”; (7) “The District Court Erred By Ruling That Rueb’s 

Complaint Does Not State A Claim For ‘Abuse Of Process’”; and (8) 

“The District Court Erred By Ruling That Rueb’s Complaint Does 

Not State A Claim For ‘Civil Conspiracy.’”
4

¶ 6 Although it is true that his complaint contains some claims 

unrelated to prison conditions, we are not persuaded that their 

inclusion enables him to avoid this provision.

A. Standard of Review and Applicable Law

¶ 7 We review de novo a district court’s order dismissing a case as 

a matter of law. Asphalt Specialties Co., Inc. v. City of Commerce 

City, 218 P.3d 741, 744 (Colo. App. 2009). Statutory interpretation 

is a question of law reviewed de novo. Bill Barrett Corp. v. Lembke, 

2020 CO 73, ¶ 13.

¶ 8 Section 13-17.5-103(1) enables inmates who seek to proceed 

in a civil action without the prepayment of fees to petition the court 

for leave to do so based upon a demonstration of inability to pay. 

However, if the action fails to state a claim on which relief may be 

granted or is frivolous, groundless, or malicious, the motion to 

proceed in forma pauperis will be denied. Id. Further, section 

13-17.5-102.7(1), provides that

[n]o inmate who on three or more occasions 

has brought a civil action based upon prison 

conditions that has been dismissed on the 

grounds that it was frivolous, groundless, or 

malicious or failed to state a claim upon which 

relief may be granted or sought monetary relief 

from a defendant who is immune from such 
5

relief, shall be permitted to proceed as a poor 

person in a civil action based upon prison 

conditions under any statute or constitutional 

provision.

Thus, an action also will be denied when the inmate has three or 

more previous “strikes.”

¶ 9 Adopting the reasoning of federal courts, another division of 

this court held that “[p]roceeding in forma pauperis in a civil case is 

a privilege, not a right, fundamental or otherwise.” Farmer v. 

Raemisch, 2014 COA 3, ¶ 12. In other words, section 

13-17.5-102.7(1) does not violate a defendant’s right to access to

the courts. Id. at ¶ 14.

B. Analysis

¶ 10 Here, Rueb previously filed at least four complaints in state 

court involving prison conditions, all of which were dismissed for 

being frivolous, groundless, or failing to state a claim:

 Logan County District Court case number 11CV97 

involved a request for a transfer from administrative 

segregation to the state mental health hospital. This 

action was dismissed on January 4, 2012, for failure to 

state a claim and lack of subject matter jurisdiction.
6

 El Paso District Court case number 13CV288 involved a 

replevin action seeking return of electronics and 

pornographic materials not permitted by prison policy. 

The action was dismissed on February 3, 2014, for 

failure to state a claim and lack of subject matter 

jurisdiction.

 Lincoln County Small Claims Court case number 13S13 

involved a replevin action arising out of the confiscation 

of electronics and pornographic material. This action 

was dismissed on February 12, 2014, pursuant to the 

Colorado Governmental Immunity Act. The court further 

held that nearly identical claims had been brought and 

dismissed against the same defendants in three other 

state court cases.

 Lincoln County Court case number 15C4 involved a 

replevin action seeking return of confiscated electronics 

and pornographic material. The civil action was 

dismissed on July 1, 2015, as it was frivolous and 

groundless.
7

¶ 11 Thus, the record demonstrates that Rueb has accumulated 

more than the three strikes required under section 13-17.5-102.7(1) 

to prevent an inmate from proceeding in forma pauperis.3

¶ 12 Rueb contends, however, that because his claims for relief are 

unrelated to prison conditions, his complaint is not subject to the 

three strikes rule under section 13-17.5-102.7. True, some of 

Rueb’s claims are not related to prison conditions and instead 

concern, for example, his arrest and prosecution. But Rueb 

acknowledges that three of his claims “have ‘elements’ of ‘prison 

conditions’ contained within them.” Rueb’s claims eight through 

twelve contain more than just “elements” of prison conditions 

allegations.4 Indeed, the claims arise from his prior lawsuits 

involving the confiscation of pornography contrary to various prison 

 3 Rueb has also filed an additional twenty-one actions in federal 

district court that have fared no better and ostensibly would be 

considered “strikes” due to their dispositions. But because Rueb 

has already accumulated the three strikes necessary based on the 

cases he filed in Logan, El Paso, and Lincoln Counties, we leave for 

another day whether a lawsuit initiated in federal district court in 

Colorado is considered a “civil action” that was filed “within the 

state,” as that term is defined in section 13-17.5-102(1), C.R.S. 

2020.

4 Rueb refers to his eighth claim for relief as his seventh claim for 

relief. 
8

policies and regulations. Additional allegations concern the actions 

of the Attorney General’s Office and other DOC employees denying 

him access to compensation due to the dismissal of those prior 

lawsuits.

¶ 13 Neither party cites to, nor are we aware of, any authority 

indicating that if a portion of the claims do not arise from prison 

conditions then section 13-17.5-102.7(1) is inapplicable. But 

statutory interpretation supports a determination that the provision 

applies, even if an inmate files a mixture of claims, some of which 

may be prison-condition related.

¶ 14 The primary goal in interpreting a statute is to give effect to 

the General Assembly’s intent. BP Am. Prod. Co. v. Colo. Dep’t of 

Revenue, 2016 CO 23, ¶ 15. To do this, we apply the plain and 

ordinary meaning to words and phrases. Id.; see also Ceja v. 

Lemire, 154 P.3d 1064, 1066 (Colo. 2007).

¶ 15 Section 13-17-102.7(1) bars an inmate from proceeding in 

forma pauperis in a subsequent “civil action based upon prison 

conditions under any statute or constitutional provision” when he 

or she has three strikes. (Emphasis added.) This provision does 

not exclude the possibility that a civil action may only be based, in 
9

part, on prison conditions. If the General Assembly intended that

this provision apply to lawsuits solely involving prison condition 

claims, it could have so indicated by adding that word. See People 

ex rel. Rein v. Meagher, 2020 CO 56, ¶ 22 (we do not add words to 

legislative enactments).

¶ 16 This interpretation is consistent with the purpose of section 

13-17.5-102.7(1), which is to preserve judicial resources and deter 

“frivolous and meritless prisoner lawsuits.” Farmer, ¶ 18. Thus, 

even though Rueb’s complaint contains some issues unrelated to 

prison conditions, this does not enable him to avoid the bar set by 

that provision, as holding otherwise would defeat the purpose of the 

statute. Cf. Brown v. Megg, 857 F.3d 287, 291 (5th Cir. 2017) 

(attempting to characterize a lawsuit as a habeas petition to avoid a 

strike would be an “end run around” the purpose of the three 

strikes provision); Adams v. McGinnis, 317 F. Supp. 2d 246, 247 

n.1 (W.D.N.Y. 2004) (bringing a civil lawsuit styled as a habeas 

petition, excepted by federal law from the rule, would be an “end 

run around the three strikes rule”).

¶ 17 Rueb chose to file a complaint that included current claims 

both related and unrelated to prison conditions. Consequently, he 
10

ran the risk of having his complaint deemed subject to the three 

strikes provision, and thus ineligible to file in forma pauperis. We 

note that section 13-17.5-102.7(1) would not automatically prevent 

Rueb from seeking to proceed in forma pauperis on a separate 

complaint involving only claims unrelated to prison conditions, or 

— if he paid the filing fee — from proceeding on a separate 

complaint consisting of solely prison condition claims. See Farmer, 

¶ 12 (“The ‘three-strike rule’ does not prohibit an inmate from filing 

suit; it merely prohibits an inmate from doing so without paying the 

filing fee which all civil plaintiffs must pay.”); see also Lopez v. 

Haywood, 41 A.3d 184, 188 (Pa. Commw. Ct. 2012) (holding under 

a three strikes provision that an inmate may file his prison 

condition lawsuit by paying the filing fee even if he has three 

strikes, as dismissal under the three strikes provision would 

constitute a denial of access to the courts).

¶ 18 But because the district court gave Rueb thirty days to pay the 

filing fee — involving a complaint that even he concedes includes 

some claims that are prison condition related — and he did not, we 

discern no error.
11

III. Conclusion

¶ 19 The district court’s order is affirmed.

JUDGE TERRY and JUDGE RICHMAN concur.