Background
Bernard Kenneth Rivers, Jr. filed a civil lawsuit in January 2021 arising from his 2017 arrest for traffic violations and a resulting 2019 jury conviction. He sued several state court judges, the Weld County District Attorney, and his former defense attorney under 42 U.S.C. § 1983, alleging constitutional violations in his prior criminal and civil proceedings. The district court dismissed his amended complaint, and a prior division of the Colorado Court of Appeals affirmed that dismissal in Rivers I (No. 21CA0966, Oct. 6, 2022).
Rivers continued filing postjudgment motions in the district court. A second appeal — Rivers II (No. 23CA1443, Apr. 18, 2024) — affirmed the denial of his eighth, ninth, and tenth postjudgment motions and found his appeal substantially frivolous, awarding the defendants appellate attorney fees and double costs. Rivers nonetheless filed additional postjudgment motions, including an objection to a fee award order and a twelfth motion for postjudgment relief. The district court denied both under C.R.C.P. 60(b) and imposed filing restrictions under Karr v. Williams, finding his filings were designed to harass defendants.
Rivers appealed for a third time, challenging the district court’s April 15 and April 22, 2025 orders. His arguments included challenges to the appointment of retired Senior Judge Carol Glowinsky, alleged improprieties in the initial case management order, alleged contradictions between two district court orders, and a claim that opposing counsel committed fraud upon the court by mailing a bill of costs to an outdated address.
The Court’s Holding
The Court of Appeals affirmed both orders and rejected all of Rivers’ contentions. The court found that his challenges to Judge Glowinsky’s appointment were either contradicted by the record, already resolved in Rivers I, or raised for the first time on appeal and therefore unpreserved. His challenge to the initial case management order was similarly foreclosed by Rivers I. The court acknowledged a minor inconsistency between the August 5, 2024 and April 15, 2025 district court orders but held that Rivers failed to show any prejudice from it.
On the fraud-upon-the-court claim, the court held that mailing a bill of costs to an outdated address — without any finding of intentional or knowing misrepresentation — did not constitute fraud. The court further found the alleged error harmless because opposing counsel subsequently emailed Rivers the filing and the district court granted him additional time to respond, yet Rivers used that time only to rehash previously rejected arguments rather than contest the costs.
The court granted defendant Rourke’s request for appellate attorney fees and double costs, finding the appeal frivolous both as filed and as argued under C.A.R. 38(b), section 13-17-102, C.R.S. 2025, and 42 U.S.C. § 1988. The court remanded to the district court solely to determine the amount of Rourke’s reasonable attorney fees and double costs incurred on appeal.
Key Takeaways
- A mailing error — without evidence of intentional or knowing misrepresentation — does not constitute fraud upon the court under Colorado law, particularly where the opposing party received the filing through alternative means and suffered no demonstrable prejudice.
- Arguments not raised before the district court, or raised for the first time in a reply brief, are waived and will not be considered on appeal, even for pro se litigants.
- Under section 13-17-102(6), C.R.S., a pro se appellant may be assessed attorney fees if they clearly knew or reasonably should have known the appeal was substantially frivolous; prior judicial warnings, filing restrictions, and a pattern of rejected arguments all support that finding.
- Appellate fee awards under 42 U.S.C. § 1988 against a prevailing defendant in a § 1983 case require a finding that the suit was vexatious, frivolous, or brought to harass — a standard met here given the serial, unpreserved, and record-contradicted nature of Rivers’ claims.
Why It Matters
This decision illustrates the cumulative consequences courts impose on litigants who persist in filing meritless postjudgment motions and frivolous appeals after multiple unfavorable rulings. The court’s willingness to award attorney fees and double costs — and to uphold district court filing restrictions — signals that Colorado appellate courts will use available sanctions tools to deter repetitive, harassing litigation even when the appellant is self-represented.
For practitioners, the opinion reaffirms that service errors on post-complaint filings are governed by C.R.C.P. 5’s more permissive standards rather than C.R.C.P. 4(e)’s personal service requirements, and that any resulting defect will be treated as harmless where the opposing party had a meaningful opportunity to respond. It also underscores the importance of preserving arguments at the trial court level, as Colorado courts will not consider issues — including newly obtained open-records evidence — first raised on appeal.