Robinson v. Cable News Network Inc., et al
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge N. Reid Neureiter on 8 October 2021. It is hereby RECOMMENDED as follows: That Plaintiff Mr. Robinson's Motion to Take Leave and File an Amended Complaint (Dkt. # 37 ) be DENIED; and Defendant Crimson Leaf, LLC's Motion to Dismiss (Dkt. # 42 ) be GRANTED. (cmadr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-00644-CMA-NRN
ERIK T. ROBINSON,
CRIMSON LEAF, LLC
REPORT AND RECOMMENDATION ON
PLAINTIFF’S MOTION TO FILE AN AMENDED COMPLAINT (Dkt. #37) AND
DEFENDANT’S MOTION TO DISMISS (Dkt. #42)
N. REID NEUREITER
United States Magistrate Judge
This case is before the Court on Plaintiff Erik T. Robinson’s Motion to Take
Leave [sic] and File an Amended Complaint (the “Motion to Amend”) and Defendant
Crimson Leaf, LLC’s Motion to Dismiss pursuant to Fed. R. Civ. Pro. 12(b)(1) and
12(b)(6) (the “Motion to Dismiss”), referred to me by Judge Christine M. Arguello. (Dkt.
#37 & Dkt. #42, respectively.)
The Court has taken judicial notice of the Court’s file and considered the
applicable Federal Rules of Civil Procedure and case law. Now, being fully informed
and for the reasons discussed below, it is RECOMMENDED that Mr. Robinson’s Motion
to Amend be DENIED and Crimson Leaf’s Motion to Dismiss be GRANTED.
This lawsuit arises from Plaintiff Erik T. Robinson’s (“Mr. Robinson”) having
viewed advertisements for “new apartments” at a senior living facility on the internet,
including on the website of CNN.com. The advertisements purported to be of senior
living facilities to be built in or around Telluride, Colorado. But in fact, the pictures shown
were not of any existing buildings in Telluride, but were stock photographs of
apartments in Queensland, Australia; New Orleans, Louisiana; British Columbia,
Canada; Eugene, Oregon; or Costa Mesa, California. The palm trees in one image
might tip off a viewer that the picture did not show buildings in Telluride. (See Dkt. 1,
Although Mr. Robinson was not actively looking to purchase a senior living
apartment, these advertisements containing “false claims of geographic proximity” to
Telluride offended his sensibilities, and he sought to bring claims against the purveyors
of these ads for violations of Colorado’s Consumer Protection Act, for the common law
tort of intentional infliction of emotional distress, and for civil conspiracy. In the words of
the Complaint, “The Defendants use of plagiarized photos in a bait-and-switch scheme
meant to exploit the elderly, on a national and even international basis using CNN.com,
is extreme and outrageous to the point of being atrocious, exceeding any reasonable
bounds of decency and leading the Plaintiff, a reasonable member of the community, to
have resentment against the defendants, and for him to conclude that the conduct was
extreme and outrageous . . . .” (Dkt. #1, ¶ 98.)
All citations to docketed materials are to the page number in the CM/ECF header,
which sometimes differs from a document’s internal pagination.
I. Procedural History
Mr. Robinson filed his initial Complaint on March 3, 2021. (Dkt. #1.) In it, he
asserted six claims for relief and named four defendants: CNN, Crimson Leaf,
Continuum Health, and Sunshine Gardens. Id. The first five claims were directed at all
defendants, while his sixth claim for negligent entrustment was asserted against only
CNN. Id. On March 18, 2021, Mr. Robinson filed his First Amended Complaint, where
he maintained his six claims for relief but removed Continuum Health and Sunshine
Gardens as defendants. (Dkt. #6.) On April 3, he amended his complaint for a second
time, mainly for the purpose of changing the existing defendants’ names.2 (Dkt. #14.)
On April 17, he amended his complaint for a third time, adding System1 LLC and AOL
as defendants to this suit. (Dkt. #17.) On April 21, he filed his Fourth Amended
Complaint (“the Operative Complaint”), which removed System1 LLC and AOL as
defendants. (Dkt. #22.) On May 4, Mr. Robinson filed a notice of voluntary dismissal
pursuant to Rule 41(a) with respect to his claims against CNN, thereby removing it as a
defendant in the case and consequently dropping the claim for negligent entrustment.
Mr. Robinson filed the subject Motion to Amend on June 14, 2021. (Dkt. #37.) He
seeks leave to add three individual defendants to this suit, all of whom are or were
owners or managers of Crimson Leaf. Crimson Leaf responded on July 5, 2021 (Dkt.
#40), and Mr. Robinson replied on July 9, 2021. (Dkt. #41.)
“CNN” was changed to its unabbreviated name, “Cable News Network,” and “Crimson
Leaf Inc.” was changed to “Crimson Leaf, LLC.”
Crimson Leaf filed its Motion to Dismiss on July 9, 2021. (Dkt. #42.) Mr.
Robinson responded on July 11, (Dkt. #43), and Crimson Leaf replied on July 19. (Dkt.
#46.) On July 19, 2021, the Court heard oral arguments on the subject motions.
(See Dkt. #47.)
II. Mr. Robinson’s Operative Complaint
All allegations are taken from Mr. Robinson’s Operative Complaint (Dkt. #22) and
are presumed to be true for the purposes of this motion to dismiss. Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). This lawsuit arises from a series of advertisements for
senior living facilities in Telluride viewed by Mr. Robinson on CNN.com from
September 2020 to November 2020. The advertisements allegedly were created by
Crimson Leaf, LLC. Mr. Robinson asserts that the advertisements, which
were marketing new senior housing properties in or near Telluride, Colorado, contained
“plagiarized” photos. After viewing the advertisements, Mr. Robinson investigated the
photos and discovered that many of the properties depicted in the advertisements were
located in areas other than Telluride. For instance, several of the photos depicted
properties that were actually located in Australia, while other images showcased homes
located in New Orleans, British Columbia, and Oregon, among other locations.
According to Mr. Robinson, when he clicked on the various advertisements, he
was taken to a “menu page” containing web links to various pages advertising senior
living properties. While the color schemes and the links listed varied depending on what
advertisement was clicked on and when, the content of these menu pages mostly
remained the same: they simply listed additional advertisements, with links, for senior
living homes. Mr. Robinson contends that when he clicked on one of the links, he
was taken to yet another page containing additional links that were likewise advertising
senior living properties. Many of the pages ultimately linked to properties advertised by
Sunshine Gardens and Vista Mesa. Sunshine Gardens allegedly operates three senior
living centers in the United States: two in Durango, Colorado, and one in Crystal River,
Florida. Vista Mesa allegedly operates an assisted living facility in Cortez, Colorado. As
Mr. Robinson asserts, neither of these entities are located near Telluride, which is
where, according to the advertisements, the properties are supposed to be located.
Based on these factual allegations, Mr. Robinson asserts five claims for
relief under three different legal theories. The crux of each claim is that Crimson Leaf
was advertising senior living homes in Telluride but was misleadingly using photos of
random buildings, none of which appear to be senior living homes, that he discovered
are not located in Telluride. Furthermore, Mr. Robinson contends that the
advertisements he encountered link to senior living facilities that are not located in or
Mr. Robinson’s first three claims allege violations of the Colorado Consumer
Protection Act (CCPA), Colo. Rev. Stat. §§ 6-1-101–115. Claim One alleges deceptive
representations or designations of geographic origin under Colo. Rev. Stat. § 6-1105(1)(d); Claim Two alleges deceptive representations or designations as to the
condition of goods under Colo. Rev. Stat. § 6-1-105(1)(f); 3 and Claim Three alleges the
It should be noted that Colo. Rev. Stat. § 6-1-105(1)(f) refers to the misrepresentation
of the condition of goods, not property or services. Sub-section (g) includes the words
“property” and “services” (prohibiting persons from misrepresenting the “standard,
quality, or grade” of “goods, food, services, or property”) (emphasis added), as does
sub-section (i). Colo. Rev. Stat. § 6-1-105(1)(i) (prohibiting the advertising of “goods,
services, or property with intent not to sell them as advertised”) (emphasis added).
use of “bait and switch” advertising through a refusal to show the properties advertised
under Colo. Rev. Stat. § 6-1-105(n)(I). Claim Four alleges intentional infliction of
emotional distress (IIED) and Claim Five alleges civil conspiracy.
Pro Se Litigation
Mr. Robinson proceeds pro se. Accordingly, the Court “review[s] his pleadings
and other papers liberally and hold[s] them to a less stringent standard than those
drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007)
(citations omitted). However, a pro se litigant’s “conclusory allegations without
supporting factual averments are insufficient to state a claim upon which relief can be
based.” Bellmon, 935 F.2d at 1110. A court may not assume that a plaintiff can prove
facts that have not been alleged, or that a defendant has violated laws in ways that a
plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council
of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d
1170, 1175 (10th Cir. 1997) (the court may not “supply additional factual allegations to
round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159
(10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in
the absence of any discussion of those issues”).
Courts in Colorado are to “give effect to every word, phrase, clause, sentence, and
section,” and they are “not to presume that the legislative body used the language idly
and with no intent that meaning should be given to its language.” City & Cnty. of Denver
v. Taylor, 88 Colo. 89, 95 (1930). Given that the word “property” is used in other subsections of the CCPA but is omitted from this particular sub-section, it can be inferred
that § 6-1-105(1)(f) does not apply to property or services. Mr. Robinson’s claim for
violation of § 6-1-105(1)(f) can be dismissed on this basis alone because a senior living
home is not properly characterized as a good.
Failure to State a Claim Upon Which Relief can be Granted
Rule 12(b)(6) provides that a defendant may move to dismiss a claim for “failure
to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The
court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the
parties might present at trial, but to assess whether the plaintiff’s complaint alone
is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start,
Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the
plaintiff.” Bellmon, 935 F.2d at 1109. “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to
dismiss, means that the plaintiff pleaded facts which allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
The Iqbal evaluation requires two prongs of analysis. First, the Court identifies “the
allegations in the complaint that are not entitled to the assumption of truth,” that
is, those allegations which are legal conclusions, bare assertions, or merely
conclusory. Id. at 678–81. Second, the Court considers the factual allegations “to
determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
However, the Court need not accept conclusory allegations without supporting
factual averments. S. Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir.
1998). “[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ Nor
does the complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Id. (citation omitted).
Motion to Amend
Rule 15 provides in relevant part that a party “may amend its pleading only with
the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). The
rule prescribes that courts should “freely give leave when justice so requires.” Id.
“Refusing leave to amend is generally only justified upon a showing of undue delay,
undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S.
W., Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
With respect to futility, “[a] proposed amendment is futile if the complaint, as
amended, would be subjected to dismissal.” Anderson v. Suiters, 499 F.3d 1228, 1238
(10th Cir. 2007) (internal quotations omitted). Therefore, “[t]he relevant standard in
determining whether claims are futile is the same standard that is applied to a motion to
dismiss under Fed. R. Civ.P. 12(b)(6).” Meadows at Buena Vista, Inc. v. Ark. Valley
Pub. Co., No. 10-cv-02871-MSK-KMT, 2012 WL 502688, at 2 (D. Colo. 2012).
Crimson Leaf’s Motion to Dismiss
a. Violation of the CCPA (Claims 1 through 3)
Mr. Robinson’s first three claims allege violations of the CCPA. “The CCPA was
enacted to regulate commercial activities and practices which, ‘because of their nature,
may prove injurious, offensive, or dangerous to the public.’” Rhino Linings, USA, Inc. v.
Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 146 (Colo. 2003). Its primary purpose
is to “deter and punish deceptive trade practices.” Hall v. Walter, 969 P.2d 224, 231
(Colo. 1998). Colorado courts have liberally construed the provisions of the CCPA given
its broad purpose and scope. Id. at 230. Therefore, the statute is read in light of its
“broad legislative purpose to provide prompt, economical, and readily available
remedies against consumer fraud.” People ex rel. MacFarlane v. Alpert Corp., 660 P.2d
1295, 1297 (Colo. App. 1982).
To bring a private cause of action under the CCPA, a plaintiff must plausibly
(1) the defendant engaged in an unfair or deceptive trade practice; (2) that
the challenged practice occurred in the course of the defendant’s business,
vocation or occupation; (3) that it significantly impacts the public as actual
or potential consumers of the defendant’s goods, services, or property; (4)
that the plaintiff suffered the injury in fact to a legally protected interest;
and (5) that the challenged practice caused the plaintiff’s injury.
Rhino Linings, 62 P.3d at 146–47.
Crimson Leaf moves for dismissal of each of Mr. Robinson’s CCPA claims,
arguing that Mr. Robinson did not suffer an injury in fact and therefore lacks standing to
bring suit under the statute. Mr. Robinson argues that the CCPA grants a private right of
action to actual and potential consumers, as well as non-consumers, and that Crimson
Leaf’s conduct infringed on his right to truthful advertising.
The CCPA provides a private cause of action to any person who is “an actual or
potential consumer of the defendant’s goods, services, or property and is injured as a
result of such deceptive trade practice.” Colo. Rev. Stat. § 6-1-113(1)(a). Mr. Robinson
concedes he is not a consumer of the properties or services allegedly advertised by
Crimson Leaf, and it seems he had no intention of being a consumer. Indeed, Mr.
Robinson can hardly be considered a “potential consumer” except in the broadest
possible sense that every person who uses the internet and sees these advertisements
is a potential consumer.
Nonetheless, relying on Walter, Mr. Robinson argues that the CCPA gives a
private right of action even to non-consumers. While Mr. Robinson is correct in arguing
that the CCPA does allow a potential consumer and even some non-consumers to bring
suit under the statute, simply being a potential consumer or viewing the advertisement
as a general member of the public is insufficient, by itself, to confer standing. To have
standing under the CCPA, “the plaintiff must have suffered injury in fact to a legally
protected interest.” Walter, 969 P.2d at 234. Determining whether the plaintiff has
suffered an injury is a question of law to be decided by the court. CJI-Civ. 29:1.
The Court finds that Mr. Robinson has not sufficiently alleged facts demonstrating
that he has suffered an “injury in fact to a legally protected interest.” Mr. Robinson does
not claim that he bought or rented any of the advertised properties. Nor does he allege
that he intended to purchase any of the advertised properties or services, or that he
detrimentally relied on the representations made in the advertisements. Rather, Mr.
Robinson only alleges that he suffered extreme emotional distress after viewing the
false advertisements, despite never intending to purchase the properties or services
advertised. The Court finds that emotional distress resulting from nothing more than
viewing a perceived false advertisement is not the type of injury the CCPA was
designed to protect, especially when there was no intention of making a purchase.
Thus, even if Mr. Robinson can be considered a potential consumer within the meaning
of the CCPA, which seems doubtful, Mr. Robinson has failed to allege that he suffered
any injury fact to a legally protected interest. Therefore, he lacks standing to bring suit
under the CCPA, and his first three claims should be dismissed.
b. IIED (Claim 4)
Mr. Robinson’s fourth claim alleges that Crimson Leaf’s “use of plagiarized
photos in a bait-and-switch scheme meant to exploit the elderly” was intended to cause
him emotional distress. (Dkt. #22 at 42.) Colorado law provides: “One who by extreme
and outrageous conduct intentionally or recklessly causes severe emotional distress to
another is subject to liability for such emotional distress, and if bodily harm to the other
results from it, for such bodily harm.” Rugg v. McCarty, 476 P.2d 753, 756 (Colo. 1970)
(adopting the definition provided in § 46 of the Restatement (Second) of Torts
(1965)). No accompanying physical injury is required to establish severe emotional
distress. Id. However, a defendant’s conduct must be directed at the individual plaintiff,
not society at large. Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999) (“[T]he
outrageousness of Coor’s alleged criminal conduct towards society . . . is irrelevant to
Floyd’s claim as an individual tort plaintiff seeking to sue Coors. To assess Floyd’s tort
claim, we focus on Coors’s behavior toward Floyd…”).
Furthermore, the standard for determining whether a defendant’s act constitutes
“outrageous conduct” is extremely high: “Liability has been found only where the
conduct has been so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Id. (quoting Rugg, 476 P.2d at
756). While determining whether a defendant’s conduct was outrageous is typically a
factual question reserved for the jury, “it is first the responsibility of a court to determine
whether reasonable persons could differ on the question.” Culpepper v. Pearl St. Bldg.,
Inc., 877 P.2d 877, 883 (Colo. 1994) (en banc).
The Court finds that Mr. Robinson has not sufficiently alleged
facts showing that Crimson Leaf’s conduct was so outrageous as to “go beyond all
possible bounds of decency.” Rugg, 476 P.2d at 756. Because Mr. Robinson
acknowledges that he is bringing this claim as an individual tort plaintiff (Dkt. #43 at 4),4
the Court must focus on Crimson Leaf’s behavior toward Mr. Robinson and determine
whether it constituted outrageous conduct. See Coors Brewing Co., 978 P.2d at 666.
Mr. Robinson has not alleged any facts demonstrating that the advertisements were
directed at him specifically; rather, he merely encountered these advertisements when
visiting CNN.com, where many viewers of the site are likely to happen upon the same
advertisements. Indeed, Mr. Robinson alleges that his anger stemmed from his
perception that the advertisements would exploit elderly persons, not with anything
Crimson Leaf did to Mr. Robinson personally. (Dkt. #22 at 42.) Therefore, because Mr.
Mr. Robinson avers that “he has not at any time asserted rights for anyone other than
himself” (Dkt. #43 at 4), thereby admitting that he is bringing this claim on behalf of his
own rights and interests, not the rights or interests of another party.
Robinson has not alleged facts showing that the advertisements were targeted towards
him, his claim for intentional infliction of emotional distress should be dismissed.
c. Civil Conspiracy (Claim 5)
Finally, Mr. Robinson alleges that Crimson Leaf engaged in civil
conspiracy. “Under Colorado law, civil conspiracy is a derivative cause of action, not an
actionable claim in and of itself.” Johnstown Feed & Seed, Inc. v. Cont’l W. Ins. Co., 641
F. Supp. 2d 1167, 1183 (D. Colo. 2009). “[T]he essence of a civil conspiracy claim is not
the conspiracy itself, but the actual damages resulting from the acts done in furtherance
of the conspiracy.” Resol. Tr. Corp. v. Heiserman, 898 P.2d 1049, 1055 (Colo. 1995). “If
the acts alleged to constitute the underlying wrong provide no cause of action, then
there is no cause of action for the conspiracy itself.” Double Oak Const., L.L.C. v.
Cornerstone Dev. Intern., L.L.C., 97 P.3d 140, 146 (Colo. App. 2003). “[T]he elements
for a civil conspiracy claim require that the underlying acts be unlawful and create an
independent cause of action.” Id.
Both Mr. Robinson and Crimson Leaf agree that if the former’s claims based on
the CCPA and IIED fail, the civil conspiracy claim must necessarily fail because there
would be no underlying unlawful act. (Dkt. #42 at 5; Dkt. #43 at 5.) Because the Court
recommends dismissal of all of Mr. Robinson’s claims, his civil conspiracy claim fails
and should be dismissed.
Mr. Robinson’s Motion to Amend
Mr. Robinson requests that the Court grant him leave to amend his complaint for
a fifth time. (Dkt. #37.) He does not seek to amend his complaint to proffer additional
facts that would support his current allegations against Crimson Leaf; instead, he wishes
to bring in three additional defendants for the purpose of “piercing the corporate veil”
and holding the named individuals personally liable for his alleged injuries. Id. These
individuals include Mr. Daniel H. Law, a co-owner/founder of Crimson Leaf; Mr. Henry
Hsu, also a co-owner/founder; and Mr. Neil R. Weber, a manager at Crimson Leaf. (Dkt.
#37 at 1.) According to Mr. Robinson, these three individuals possess knowledge and
evidence that Crimson Leaf “may no longer be a viable entity,” and he alleges that these
individuals are “closing down business operations in order to avoid litigation.” (Id. at 2.)
Mr. Robinson maintains that because Crimson Leaf is undercapitalized, that provides
him with an ample basis to pierce the corporate veil. (Id. at 3.)
Given that Mr. Robinson has not sufficiently alleged facts to support his current
claims against Crimson Leaf, in addition to the fact that he is not seeking to provide
additional evidence for those claims with this request, it would be futile to grant Mr.
Robinson’s motion. Mr. Robinson has failed to state any claims against Crimson Leaf,
and thus he cannot successfully state any claims against the proposed individual
Finally, Mr. Robinson seeks to amend his complaint by changing “defendant
CNN.com” to simply “CNN.com.” Mr. Robinson already filed a motion of voluntary
dismissal for his claims against CNN (Dkt. #30), so amendment would simply clarify that
CNN.com is not a defendant in this matter. Because the Court recommends dismissal of
Mr. Robinson’s claims and denial of his Motion to Amend, clarifying that CNN.com is no
longer a defendant is a moot point.
It is hereby RECOMMENDED as follows:
That Plaintiff Mr. Robinson’s Motion to Take Leave and File an Amended
Complaint (Dkt. #37) be DENIED; and
Defendant Crimson Leaf, LLC’s Motion to Dismiss (Dkt. #42) be GRANTED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2), the
parties have fourteen (14) days after service of this recommendation to serve and
file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal
questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir.
1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).
October 8, 2021
BY THE COURT
N. Reid Neureiter
United States Magistrate Judge
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