Cole v. Days Inn

24CA0395 Cole v Days Inn 12-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0395 El Paso County District Court No. 24CV9 Honorable Gregory R. Werner, Judge

Jack Cole, Plaintiff-Appellant, v. Days Inn, Defendant-Appellee.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE MOULTRIE Welling and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 12, 2024

Jack Cole, Pro Se No Appearance for Defendant-Appellee *1 ¶¹ Plaintiff, Jack Cole, also known as Jackie-DeVere Allen Cole and Jackie-Devere A. Cole, appeals the district court’s judgment prohibiting him from proceeding pro se to seek affirmative relief in the Fourth Judicial District. We affirm.

I. Background

¶2 Cole filed a complaint against defendant, Days Inn, alleging, among other things, that he was wrongfully ejected from defendant’s property located in El Paso County. Cole initially filed his complaint in Denver District Court. But that court sua sponte transferred venue to the El Paso County District Court after determining — based on the allegations in Cole’s pleadings — that the parties and the alleged incident forming the basis of Cole’s complaint were based in Colorado Springs. ¶3 After venue transferred, the El Paso County District Court sua sponte reviewed the case file and issued an order that dismissed Cole’s complaint without prejudice and prohibited him from “filing [pro se] any lawsuits, pleadings, motions, briefs, suggestions, advisement or other paper of any kind” in cases seeking affirmative relief in the Fourth Judicial District (the order). ¶4 In imposing the restriction, the court found that

Cole has long engaged in a vexatious pattern of filing lawsuits for the purpose of either annoying defendants, causing them to incur fees[,] or perhaps hoping to obtain some sort of settlement from them. Acting pro se, Cole does not appear to have incurred any attorney fees for his filings. In fact, it appears that Cole has not even incurred the expense of filing[] fees due to his claimed indigency status. The [d]efendants, on the other hand, have presumably incurred attorney fees.

....

In some cases, it appears that Cole is seeking to gain leverage or exact revenge over victims, law enforcement, records custodians[,] and prosecuting attorneys that were involved in cases involving criminal prosecution against him.

¶5 The district court observed that, since January 2020, Cole had filed twenty-seven civil cases, twenty-three of which had been dismissed. During that same period, Cole filed at least seven appeals with this court that resulted in dismissal and at least eight cases with the supreme court, five of which had been dismissed while the other three remained pending. The district court noted that Cole had not prevailed in any of the cases he has filed since January 2020. *3 ¶6 Furthermore, the district court noted that a different judge in the Fourth Judicial District previously “attempted to rein in Cole’s conduct” by requiring Cole to “follow procedural rules, follow [c]ourt [o]rders[,] and obtain an attorney.” After also finding that none of the orders entered by the El Paso County District Court or other courts “appear to have provided an effective deterrent,” the court determined that enjoining Cole from seeking affirmative relief pro se was “necessary to protect the scant and finite resources of the [c]ourt as well as prevent lawsuits from being filed which have no merit yet tax the resources of defendants.” The court then dismissed Cole’s complaint. ¶7 Cole doesn’t appeal the dismissal of the underlying complaint; rather, he seeks review of the district court’s order restricting his pro se filings.

II. Standard of Review

¶8 We review a district court’s order enjoining a litigant from proceeding pro se in cases that seek affirmative relief for an abuse of discretion. Carbajal v. Wells Fargo Bank, N.A., 2020 COA 49, ¶ 41. A district court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, or unfair or when it misapplies the law. Rains v. Barber, 2018 CO 61, ¶ 8.

III. Legal Principles

¶9 While “[e]very person has an undisputed right of access to the Colorado courts[,] . . . this right may not be abused” and must “yield to the principle that ‘right and justice should be administered without sale, denial or delay.’” GHP Horwath, P.C. v. Kazazian, 2024 CO 8, ¶ 66 (first quoting People v. Dunlap, 623 P.2d 408, 410 (Colo. 1981); and then quoting Colo. Const. art. II, § 6). ¶ 10 A district court may enjoin a litigant from filing suits pro se within any county in its district upon a finding of a serious abuse of judicial process. Bd. of Cnty. Comm’rs v. Winslow, 706 P.2d 792, 795 (Colo. 1985) (Winslow I). A court is justified in issuing an injunction to stop a litigant’s abuse of the judicial process when the litigant “hampers the efficient administration of justice to an intolerable degree.” Kazazian, ¶ 66. And such injunctions don’t infringe upon a litigant’s constitutional right of access to the courts so long as the litigant may still obtain access by retaining an attorney. See id. at ¶ 80. *5 ¶ 11 The supreme court has considered the following actions as hampering the efficient administration of justice to an intolerable degree, such that enjoining litigants from affirmatively proceeding pro se was warranted:

(1) filing a multitude of meritless claims;

(2) bringing claims that appear to be aimed at harassing

opposing parties; or

(3) using procedures to expand litigation in ways that strain

judicial resources. Kazazian, ¶ 67 (citing first Shotkin v. Kaplan, 180 P.2d 1021, 1022 (Colo. 1947); then Bd. of Cnty. Comm’rs v. Barday, 594 P.2d 1057, 1058 (Colo. 1979); and then Dunlap, 623 P.2d at 410-11).

IV. Application

¶ 12 Cole asserts that (1) he has not filed frivolous and vexatious actions against opposing parties; (2) he didn’t disrupt the lives of opposing parties; and (3) his filings “were not numerous under the guise of harassment, vexati[ous,] and repetitive,” unlike those in Board of County Comm’rs v. Winslow, 862 P.2d 921, 924 (Colo. 1993) (Winslow II), where the litigants initiated 162 civil proceedings, most of which were dismissed as meritless. *6 ¶ 13 We could reject Cole’s assertions as they are wholesale conclusory and unsupported by the record. See People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007) (declining to review issues presented in a perfunctory or conclusory manner); see also People v. Diefenderfer, 784 P.2d 741, 752 (Colo. 1989) (reviewing court needs to be informed of specific errors and the grounds, supporting facts, and authorities therefor). But given the importance of the subject matter here — Cole’s ability to proceed pro se in seeking affirmative relief — and Cole’s timely appeal, we review his contentions nonetheless. See Warner v. Barnard, 304 P.2d 898, 900 (Colo. 1956) (noting that an appellate court may “take[] appropriate action to protect the right of a litigant to have his cause determined under well-established principles of law”).

A. Meritless Claims

¶ 14 The order summarized approximately seventeen cases Cole initiated in the Fourth Judicial District since January 2020 and their subsequent appellate history. ¶ 15 The district court found that Cole has “long engaged in a vexatious pattern of filing lawsuits” and “[sought] to gain leverage or exact revenge over victims, law enforcement, [and] records

custodians” and concluded that enjoining Cole’s ability to file claims for affirmative relief pro se was “necessary to protect the scant and finite resources of the Court as well as prevent lawsuits from being filed which have no merit.” Cole, quoting Karr v. Williams, 50 P.3d 910, 912 (Colo. 2002), contests these findings and asserts that he hasn’t engaged in “frivolous [and] vexatious lawsuits against his adversaries [or] egregious actions harassing ‘every witness to have ever testified against [him].’” ¶ 16 Cole seems to argue that, because he hasn’t filed lawsuits against every witness to have ever testified against him, unlike the litigant in Karr, he should be permitted to file affirmative claims pro se. Cole, however, entirely ignores the district court’s findings that his claims have been without merit and that he has not succeeded in any one of the twenty-seven civil suits he initiated since January 2020. ¶ 17 We’ve also taken judicial notice of this court’s register of actions related to Cole’s appellate filing history concerning actions initiated in the Fourth Judicial District, which is illustrated in the table below. See Harriman v. Cabela’s Inc., 2016 COA 43, ¶ 64 (noting that appellate courts may take judicial notice of their own *8 records under CRE 201, may do so “whether requested or not” under CRE 201(c), and “can take judicial notice at [any] stage of the proceedings” under CRE 201(f)).

Case No. Case Name Referring Disposition Judicial District 1 19CA1340 Cole v. Elder Fourth Appeal Dismissed 2 19CA1342 Estate of Clark Fourth Appeal Dismissed 3 20CA0288 People v. Cole Fourth Order Affirmed and Petition for Writ of Certiorari Denied in 23SC841 4 20CA0386 Cole v. Elder Fourth Judgment Affirmed and Mandate Issued 5 20CA1025 Cole v. Thrive Fourth Appeal at Elevation Dismissed 6 20CA1026 Cole v. King Fourth Appeal Dismissed 7 20CA1324 Cole v. Holland Fourth Appeal Dismissed 8 20CA1392 Cole v. El Paso Fourth Order Affirmed County and Petition for Sheriff’s Office Writ of Certiorari Denied in 22SC147 9 20CA1580 Cole v. Corder Fourth Appeal Dismissed 10 20CA1986 Cole v. Clark Fourth Appeal Dismissed 11 21CA0179 Cole v. Mowery Fourth Appeal Dismissed

Case No. Case Name Referring Disposition Judicial District 12 22CA0537 People v. Cole Fourth (El Appeal Paso Dismissed County Court) 13 22CA0747 Cole v. CDOC Fourth Habeas Corpus Petition Transferred to Supreme Court of Colorado and Dismissed in 22SA169 14 22CA0752 Cole v. People Fourth Appeal Dismissed 15 22CA1215 Cole v. People Fourth Habeas Corpus Petition Transferred to Supreme Court of Colorado and Dismissed in 22SA247 16 22CA1341 People v. Cole Fourth Appeal Dismissed 17 22CA1571 Cole v. People Fourth Appeal Dismissed 18 22CA1574 Cole v. Fourth Habeas Corpus Williams Petition Transferred to Supreme Court of Colorado and Order Affirmed in 22SA316

Case No. Case Name Referring Disposition Judicial District 19 22CA1639 Cole v. Elder Fourth Habeas Corpus Petition Transferred to Supreme Court of Colorado and Order Affirmed and Consolidated in 22SA316 20 22CA1640 Cole v. People Fourth Appeal Dismissed and Petition for Writ of Certiorari Dismissed in 22SC841 21 22CA1697 Cole v. Elder Fourth Habeas Corpus Petition Transferred to Supreme Court of Colorado and Order Affirmed and Consolidated in 22SA316 22 22CA2172 Cole v. Elder Fourth Habeas Corpus Petition Transferred to Supreme Court of Colorado and Dismissed in 23SA29

Case No. Case Name Referring Disposition Judicial District 23 23CA2235 Cole v. Well Fourth Appeal Path Dismissed and Petition for Writ of Certiorari Dismissed in 24SC90 24 24CA0060 People v. Cole Fourth Appeal Dismissed 25 24CA0379 People v. Cole Fourth Appeal Dismissed 26 24CA0393 People v. Cole Fourth Appeal Dismissed 27 24CA0394 People v. Cole Fourth Appeal Dismissed ¶ 18 Since 2019, Cole has filed approximately twenty-seven appeals

that he initiated in the Fourth Judicial District. Eighteen of those appeals have been dismissed, three have affirmed the lower court, and six were transferred to the supreme court of Colorado and subsequently dismissed or the lower court’s order affirmed. See Kazazian, ¶¶ 68-71 (concluding that the litigant initiated a “multitude of meritless” claims after noting fourteen arguments, actions, or claims that were stricken or dismissed because they were substantially groundless or frivolous). ¶ 19 In Cole v. Unknown El Paso County Sheriff’s Office Records Clerk, (Colo. App. No. 20CA1392, Feb. 10, 2022) (not published

pursuant to C.A.R. 35(e)), a division of this court affirmed an order1 from a district court in the Fourth Judicial District that enjoined Cole from filing any future pro se lawsuits without first obtaining permission from the district court. And during that previous appeal, the division took judicial notice that a second court in the Fourth Judicial District had found that Cole was a vexatious litigant. The order before us now is the third order from a district court in the Fourth Judicial District in which the court has concluded Cole is a vexatious litigant and the second order attempting to “rein in Cole’s conduct” of frivolous filings and vexatious litigation practices through an injunction. ¶ 20 While mere litigiousness alone cannot be the basis for an injunction like the one imposed here, Karr, 50 P.3d at 914, the district court’s finding that Cole has abused the judicial process by filing a multitude of meritless claims is supported by the fact that Cole has yet to succeed in any of his lawsuits since at least 2020, including respective appeals, and the majority of his lawsuits have resulted in dismissal. See Shotkin, 180 P.2d at 1022.

B. Harassing Opposing Parties

¶ 21 Looking at the parties Cole has initiated lawsuits against — often government employees — his filing tactics appear to be aimed at gaining leverage or exacting vengeance. ¶ 22 In summarizing Cole’s civil actions, the district court found that Cole brought actions against his probation officer, a records custodian of the El Paso County Sheriff’s Office, the Colorado Department of Corrections, an unknown evidence custodian employed by Colorado Springs, and an unnamed detective, and multiple actions against the El Paso County District Attorney’s office, to name a few. Many of the actions Cole initiated were related to his criminal cases or his incarceration. Cole’s actions clearly demonstrate that he seeks to use the judicial process to disrupt the lives of and harass opposing parties. See Karr, 50 P.3d at 914.

C. Strain on Judicial Resources

¶ 23 The district court found that the previous injunction that required Cole to receive permission from the court before affirmatively proceeding pro se in the Fourth Judicial District didn’t provide an “effective deterrent” and concluded it must take

additional measures “to protect the scant and finite resources of the Court.” The district court noted that, by initially filing the underlying complaint in Denver District Court despite the “conduct which serve[d] as the basis for Cole’s claim [having] occurred in . . . El Paso County,” it appeared that Cole tried to “avoid the consequences” of the injunction issued in El Paso County. The record — including the fact that at least three separate district judges in the Fourth Judicial District have issued orders finding Cole a vexatious litigant — supports the district court’s finding that Cole’s pattern of filing meritless actions has strained the judicial resources in that judicial district. See Dunlap, 623 P.2d at 410.

D. Incarceration and Indigency

¶ 24 Lastly, Cole contends that his “chances of obtaining free representation [are] hindered” because he is incarcerated and indigent. See Karr, 50 P.3d at 915. While it appears that Cole is currently incarcerated and has frequently sought waiver of filing fees due to indigency, he again provides us with nothing more than conclusory assertions. While Cole relies heavily on Karr for his request to proceed pro se with permission from the court, he ignores that a different court in the Fourth Judicial District already

afforded him such opportunity and he failed to abide by that order. Id. ¶ 25 Furthermore, based on Cole’s history of filing meritless claims, it is clear that he is “in desperate need of the assistance of an attorney to help [him] formulate and present [his] grievances.” Winslow II, 862 P.2d at 924. And since the district court’s order allows Cole to proceed with the assistance of an attorney, we conclude that he still has access to the Colorado justice system. See Winslow I, 706 P.2d at 794-95. ¶ 26 Ultimately, given Cole’s abuse of the judicial processes in the Fourth Judicial District as outlined above, we conclude that the district court did not abuse its discretion when it enjoined Cole from seeking affirmative relief pro se.

V. Disposition

¶ 27 The district court’s judgment is affirmed. The chief judge of the Fourth Judicial District shall notify the clerk’s office about this opinion and instruct the staff to reject any pro se filing from Cole that violates the injunction imposed by the district court.

JUDGE WELLING and JUDGE BROWN concur.

Footnotes

[1] See Cole v. Unknown El Paso County Sheriff’s Office Records Clerk, No. 20CV206 (El Paso Cnty. Dist. Ct. July 28, 2020).