JOSHUA ABRAMS v. DIVISION OF UNEMPLOYMENT INSURANCE, JOE BARELA, JEFF FITZGERALD, JOHN AND JANE DOE(S)
Civil Action No. 24-cv-03390-RMR
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Judge Regina M. Rodriguez
September 2, 2025
This matter is before the Court on Plaintiff‘s Emergency Injunction, ECF No. 8, State Defendants’ Motion to Dismiss Amended Complaint [ECF 7, 7-2], ECF No. 33, Plaintiff‘s Motion for Time Extension, Electronic Service, Appointing Council, & Denial of Pending Dismissal, ECF No. 35, Plaintiff‘s Second Emergency Motion for Injunctive Relief Regarding Unpaid 2023 Benefits, ECF No. 37, Plaintiff‘s Notice of Request for Emergency Status conference, ECF No. 44, Plaintiff‘s Notice of Non-Response and Request for Ruling, ECF No. 45, and Plaintiff‘s Motion to Leave to Supplement Complaint, ECF No. 49. The Court finds that oral argument would not materially assist in the resolution of these matters. For the reasons stated below, the Court GRANTS State Defendants’ Motions to Dismiss for lack of jurisdiction and failure to state a claim, and dismisses
I. BACKGROUND
Plaintiff, who appears pro se, filed this action on December 6, 2024 but his claims have evolved over time. Still, the crux of the issue appears to be his frustration, on behalf of himself and others similarly situated, with the Colorado Department of Labor and Employment‘s (“CDLE”) Division of Unemployment Insurance‘s (the “Division”) processing of unemployment benefits. Specifically, Plaintiff believes he is owed $6,000 in outstanding benefits from an unemployment claim in 2023. See ECF No. 37 at 1. While the Court is sympathetic to Plaintiff‘s complaints about the Division‘s bureaucratic procedures, the Court also recognizes the Division is trying to balance the needs of deserving claimants with the public interest of thwarting fraudulent claims. The Court cannot grant Plaintiff the relief he seeks. To understand why, it is helpful to go through the history of Plaintiff‘s unemployment claims and the procedural history of this matter.
On March 5, 2023, Plaintiff filed a claim for unemployment benefits. ECF No. 32-3 at 3. On March 30, 2023, Plaintiff attempted to withdraw the claim. Id. Plaintiff claims that he was forced to withdraw his application because his out-of-state wages from North Carolina were not being applied. ECF No. 37 at 15. On April 5, 2023, Plaintiff received a letter from the Division stating that his “request to cancel [his] valid initial claim [was] denied [because he] failed to make [the] request within twelve calendar days of the date on which [his] claim was filed.” ECF No. 37 at 16. The letter informed Plaintiff on how to
Plaintiff received benefit payments from March 2023 to mid-June 2023. Id. at 4. Twice in June 2023, the Division placed an “integrity hold” on Plaintiff‘s claim. Id. The Division uses integrity holds to try and detect fraud and prevent payment of fraudulent claims. Id. at 2. If an integrity hold is placed on a claim, the Division notifies the claimant and gives them seven days to respond. Id. On June 23, 2023, the first integrity hold was placed on Plaintiff‘s account. Id. at 3. Plaintiff provided the requested information that same day, and the hold was released on June 27, 2023. Id. On June 26, 2023, the Division placed a second hold on Plaintiff‘s account. Id. Plaintiff failed to provide the requested information, and his benefit payments ceased. Id. Plaintiff started reporting income again in the third quarter of 2023. Id. He continued reporting income until January 2025. Id.
On February 2, 2025, Plaintiff filed a second claim for benefits, perhaps not realizing that the integrity hold from June 2023 was still in place. See id at 5. On March 15, 2025, Plaintiff provided the Division with the requested information, and the integrity hold was cleared on March 17, 2025. Id. On March 20, 2025, Plaintiff began receiving benefits dating back to February 8, 2025. Id.
of Title II of the ADA,
On February 26, 2025, after he had filed his second claim for unemployment benefits on February 2, 2025, and before the integrity hold was lifted on March 17, 2025, Plaintiff filed an Emergency Injunction seeking a Court order requiring, among other relief, the Division:
- establish a “fully operational telephone service with sufficient staffing to allow claimants to inquire about their claims, with average hold times not exceeding thirty (30) minutes“;
- “[i]mplement a callback or appointment scheduling system . . . ensuring claimants can schedule a call with an agent within two (2) business days of their request”;
- “provide a secure online messaging system within the unemployment portal, enabling claimants to submit inquiries and receive written responses from an agent within three (3) business days“; and
- “offer alternative communication methods []for claimants with hearing, speech, or other disabilities.”
ECF No. 8. On May 12, 2024, Plaintiff filed a Second Emergency Motion for Injunctive Relief Regarding Unpaid 2023 Benefits, requesting, among other relief:
- immediate backpay of the $6,000 of his wrongfully withheld 2023 employment benefits;
- “the creation of an emergency or expedited appeals track for claimants whose claims have remained unresolved for more than 60 days”
“[r]equire the allocation or hiring of sufficient personnel (estimated at 60 additional staff) to allow for meaningful phone access and call-back functions” - “allow claimants to prove identity and eligibility without requiring insecure or burdensome digital uploads of sensitive personal documents.”
ECF No. 37.
II. LEGAL STANDARD
A. Pro Se Litigants
Where a party proceeds pro se, 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) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Thus, although courts “make some allowances for ‘the [pro se] plaintiff‘s failure to cite proper legal authority,’ ‘confusion of various legal theories,’ ‘poor syntax and sentence construction,’ or ‘unfamiliarity with pleading requirements, the court cannot take on the responsibility of serving as the litigant‘s attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
B. 12(b)(1)
“To survive a Rule 12(b)(1) motion to dismiss, a plaintiff must demonstrate that the court has subject-matter jurisdiction.” Audubon of Kan., Inc. v. U.S. Dep‘t of Interior, 67 F.4th 1093, 1108 (10th Cir. 2023). “The party invoking federal jurisdiction has the burden to establish that it is proper, and there is a presumption against its existence.” Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir. 2014) (internal quotation marks omitted).
C. 12(b)(6)
Under
D. Preliminary Injunction
To succeed on a motion for a preliminary injunction, the moving party must show (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the movant‘s favor; and (4) the injunction is in the public interest. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010); RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “[B]ecause a
III. ANALYSIS
A. Denial of Unemployment Benefits
As a threshold matter, this Court lacks jurisdiction to review the denials of unemployment benefits in the state administrative proceedings. Under Colorado law, “[a]ny interested party who is dissatisfied by a hearing officer‘s decision may appeal that decision and obtain administrative review by the industrial claim appeals office.”
Defendants argue Plaintiff failed to exhaust his administrative remedies under state law. ECF No. ECF No. 33 at 11-12. Plaintiff responds that his failure to exhaust should be excused because “no adverse, appealable decision was ever issued regarding Plaintiff‘s 2023 integrity hold.” ECF No. 36 at 2. However, the June 26, 2023 integrity hold does not appear to be the issue here. The issue appears to be Plaintiff‘s attempt to withdraw his 2023 application because it did not account for his wages earned in North Carolina, which he argues would have entitled him to an additional $6,000. Plaintiff twice
B. Eleventh Amendment Immunity
Defendants argue that the Eleventh Amendment bars Plaintiff‘s constitutional claims under
Sovereign immunity is grounded in the Eleventh Amendment, which grants states sovereign immunity from suit. See Hendrickson v. AFSCME Council 18, 992 F.3d 950, 965 (10th Cir. 2021);
1. Plaintiff‘s 42 U.S.C. § 1983 Claims for Damages
Plaintiff brings his claims against the Division and the state official defendants in their individual and official capacities. “It is well-established that absent an unmistakable waiver by the state of its Eleventh Amendment immunity, or an unmistakable abrogation of such immunity by Congress, the amendment provides absolute immunity from suit in federal courts for states and their agencies.” Ramirez v. Oklahoma Dep‘t of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994). The Division exists within the CDLE. See
2. Prospective Injunctive Relief
Plaintiff contends that the Ex parte Young exception applies to his official capacity claims. Id. at 2-3. To determine if the Ex parte Young exception applies, the Court “need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md. Inc. v. Pub. Serv. Comm‘n of Md., 535 U.S. 635, 645 (2002). Thus, “plaintiffs must show that they are: (1) suing state officials rather than the state itself, (2) alleging an ongoing violation of federal law, and (3) seeking prospective relief.” Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012).
Plaintiff has nominally met the first two elements. As to the third element, the overriding question is whether the relief sought will “remedy future rather than past
“With respect to any claims requesting prospective injunctive relief against Defendant[s], federal courts lack jurisdiction to issue writs of mandamus to direct state agencies in the performance of their duties, and are required to abstain from interfering with ongoing agency proceedings under the Younger abstention doctrine.” Brackett v. Dep‘t of Lab. & Unemployment, No. 21-CV-02876-LTB-GPG, 2021 WL 9385841, at *3 (D. Colo. Dec. 20, 2021), report and recommendation adopted, No. 21-CV-02876-LTB-GPG, 2022 WL 4010007 (D. Colo. Mar. 17, 2022) (internal citations omitted) (dismissing plaintiff‘s complaint seeking unemployment benefits backpay because he failed to provide a clear statement showing that he was entitled to injunctive relief under
C. Individual-Capacity Claims Against State Officials
“To state a claim under
In his Amended Complaint, Plaintiff states he is suing Defendants Barela and Fitzgerald in their “individual or personal capacities . . . for their in formulating, implementing, and enforcing the policies that have deprived Plaintiff of his constitutional rights.” ECF No. 7-2 at 4. Plaintiff attempts to name additional defendants in his opposition to the motion to dismiss. The Court notes that these are the individuals who provided declarations in support of Defendants’ Motion to Dismiss. ECF No. 33-1 at 2 (Declaration of Jeff Newcomb), 4 (Declaration of Brandon McClure), 13 (Declaration of David Kimball). Plaintiff‘s allegations as to what these individual defendants did or failed to do to violate his federal rights are vague and conclusory.
Defendants also argue that qualified immunity applies here. ECF No. 33 at 13. Under that doctrine, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To overcome the defense, “the onus is on the plaintiff to demonstrate (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Surat v. Klamser, 52 F.4th 1261, 1270–71 (10th Cir. 2022) (quotation marks omitted). To pass scrutiny under the first prong on a Rule 12(b)(6) motion “the plaintiff ‘must allege facts sufficient to show (assuming they are true) that the
Here, as described above, the plaintiff failed to plead a constitutional violation against either Defendant Barela or Defendant Fitzgerald. That failure entitles these defendants to qualified immunity. Montoya v. Vigil, 898 F.3d 1056, 1064 (10th Cir. 2018) (“[I]f the plaintiff failed to state a claim under
D. Sufficiency of ADA Claim
Title II of the ADA provides, in relevant part, that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to
Plaintiff asserts that “Defendant[s‘] failure to implement an accessible, reliable remote communication system, combined with its refusal to accommodate Plaintiff‘s disability by forcing him into unsafe in-person visits, directly contravenes ADA requirements.” ECF No. 7-2 at 17. He further asserts “Defendant[s‘] reliance on outdated telephone systems and AI-driven call filters has severely limited the range of issues that claimants may raise. . . . preclude[ing] him from challenging the exclusion of his out-of-state wages.” Id. He alleges he “was entirely excluded from meaningful participation due to CDLE‘s unworkable processes, forcing unsafe in-person visits as the only available means to address critical errors in his unemployment benefits.”
Defendants do not contest that Plaintiff is a qualified individual with a disability. Instead, Defendants argue that Plaintiff has failed to plausibly allege that he was excluded from the Division‘s (a public entity) services on account of his disability. Defendants argue that Plaintiff was not excluded from the Division‘s services because he was able to access his unemployment benefits in both 2023 and 2025. ECF No. 33 at 9. Moreover, they allege
Plaintiff does not address his remaining claims for relief in his response to Defendants’ motion. Therefore, the Court will deem that they were abandoned and will not expend further judicial resources addressing them. C.G. on behalf of C.G. v. Siegfried, 38 F.4th 1270, 1282 (10th Cir. 2022) (affirming the district court‘s dismissal of plaintiff‘s claim because “he abandoned it by not addressing it in his response to Defendants’ motion to dismiss”). Accordingly, the following claims are dismissed without prejudice: Claim 4 - violation of unenumerated rights (Ninth Amendment); Claim 5 - violation of state sovereignty principles (Tenth Amendment); Claim 6 - state law claim of negligence; Claim 7 - state law claim intentional and/or negligent infliction of emotional distress; and Claim 8 - violation of the Colorado APA.
F. Motions for Emergency Injunctions
Finally, the Court addresses Petitioner‘s motions for emergency injunction. ECF Nos. 8, 37. The Court first addresses Petitioner‘s likelihood of success on the merits. The Court finds that Petitioner has not demonstrated a likelihood of success on the merits because the Court has already determined that the Court either lacks jurisdiction to grant the requested relief or Plaintiff failed to plausibly state a claim to survive Defendants’ motion to dismiss. Because Plaintiff has failed to demonstrate a likelihood of success on the merits, the Court does not address the remaining elements for a preliminary injunction. See Winter, 555 U.S. at 23-24 (holding that “[a] proper consideration” of the balance of equities and public interest “alone requires denial of the requested injunctive relief” and, therefore, declining to address the likelihood of success on the merits); see
IV. CONCLUSION
For the reasons stated above, State Defendants’ Motion to Dismiss Amended Complaint, ECF No. 33, is GRANTED as follows:
- Plaintiff‘s claims against the Division are DISMISSED without PREJUDICE pursuant to
Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction; - Plaintiff‘s official-capacity claims against all individual Defendants are DISMISSED without PREJUDICE pursuant to
Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction; - Plaintiff‘s individual-capacity claims against Defendants Barela and Fitzgerald are DISMISSED with PREJUDICE because those defendants are entitled to qualified immunity;
- Plaintiff‘s ADA claim is DISMISSED without PREJUDICE pursuant to
Fed. R. Civ. P. 12(b)(6) for failure to state a claim; and - Plaintiff‘s remaining claims are DISMISSED without PREJUDICE.
DATED: September 2, 2025
BY THE COURT:
REGINA M. RODRÍGUEZ
United States District Judge