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Johnson v. Toohey.

2021 COA 43. No. 19CA2125.  Inmate Lawsuits—“Civil Action”—Filing Fees—Colorado Governmental Immunity Act—CRS § 13-17.5-102(1).

April 1, 2021


Johnson is an inmate in the Colorado Department of Corrections. He filed 10 separate packets with the trial court, each of which consisted of two documents. One document was titled “NOTICE OF CLAIM,” and in all but one of the documents, Johnson wrote that he would provide additional information once he filed his “actual complaint” and stated that he had mailed copies of the documents to the Attorney General’s office. The second document in each packet was labeled “Motion for the Court to Grant the Following.” It asked the court to make the “notice of claim” a part of the court record and to send him filing forms for state-level lawsuits, forms for pro se litigants with no legal training, and an in forma pauperis application.

Johnson made 10 different allegations against various parties in the 10 packets. The trial court treated the documents as complaints and decided they were substantially frivolous, groundless, and malicious, and it struck them all. It also assessed filing fees and ordered that the fees be taken from Johnson’s inmate account.

On appeal, Johnson argued that the court acted prematurely when it struck the documents because they were notices of claim under the Colorado Governmental Immunity Act (CGIA). The documents here were notices of claim because they were labeled as such, indicated that Johnson intended to file an actual complaint later, and generally followed the requirements of CRS § 24-10-109(1) to (3) by setting forth specific allegations and naming various prison employees. However, the trial court did not err in striking them because under the CGIA, Johnson was required to complete the notice of claim process before filing an action with the court. Therefore, he should have waited until the Attorney General had denied his claims or 90 days had passed before filing with the court.

Johnson also argued that the court erred in assessing filing fees against him and the monies should be refunded to his inmate account. The documents Johnson filed were neither complaints nor motions for the purposes of assessing filing fees under CRS § 13-17.5-102(1), so the court erred in assessing fees and they must be refunded.

The orders were affirmed in part and reversed in part, and the case was remanded for the court to refund the assessed fees.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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