Full Opinion

25CA1578 Wardell v Feyen 10-29-2026 COLORADO COURT OF APPEALS Court of Appeals No. 25CA1578 Larimer County District Court No. 25CV142 Honorable Laurie K. Dean, Judge Wendel R. Wardell, Jr., Plaintiff-Appellant, v. John Feyen, Sheriff of Larimer County; Troy Badberg, facility administrator; Matthew Yarberry, hearing officer; and Larimer County Detention Facility, Defendants-Appellees. JUDGMENT AFFIRMED Division VII Opinion by JUDGE MOULTRIE Pawar and Brown, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 29, 2026 Wendel R. Wardell, Jr., Pro Se William G. Ressue, County Attorney, David P. Ayraud, Deputy County Attorney, Frank N. Haug, Assistant County Attorney, Christine M. Luckasen, Assistant County Attorney, Fort Collins, Colorado, for Defendants-Appellees ¶1 Plaintiff, Wendel R. Wardell, Jr., appeals the district court’s judgment dismissing his complaint, made under C.R.C.P. 106(a)(4), against defendants, John Feyen, Troy Badberg, Matthew Yarberry, and the Larimer County Detention Facility (collectively, the Larimer County defendants). We affirm. I. Background ¶2 This case stems from an incident at the Larimer County Detention Facility (the jail), during which Wardell refused to move housing when instructed to do so by staff. He received a five-day lockdown as a sanction. Wardell requested a disciplinary hearing on the sanction. Corporal Yarberry conducted the hearing. After reviewing the incident report, the reporting officer’s body-worn camera footage, and Wardell’s written statement about the incident, Corporal Yarberry upheld the disciplinary conviction. ¶3 After he served the sanction, Wardell was released from custody on a personal recognizance bond. Shortly thereafter, he filed a complaint with the district court seeking review of the disciplinary hearing under C.R.C.P. 106(a)(4). In his complaint, Wardell alleged that the Larimer County defendants abused their discretion because (1) they didn’t follow the jail’s regulations in 1 conducting the hearing, thereby violating his due process rights by depriving him of the opportunity to present witnesses or documentary evidence; and (2) there wasn’t sufficient evidence to support the disciplinary conviction. Wardell’s requested relief was the expungement of the disciplinary record related to the incident. ¶4 The Larimer County defendants filed a motion to dismiss under C.R.C.P. 12(b)(1) and (5), arguing that the court lacked subject matter jurisdiction to review Wardell’s complaint, which was moot because he was no longer in custody; Wardell failed to allege sufficient, nonconclusory facts to support his claim; and Wardell failed to demonstrate that he had exhausted his administrative remedies. After reviewing the motion and responsive pleadings, the district court dismissed the case, alternatively concluding that Wardell’s complaint was moot and that he hadn’t stated a plausible claim for relief. ¶5 On appeal, Wardell argues that the court erred by deciding the motion to dismiss on the merits without first allowing the parties to brief the issues, in violation of the procedures contained in Rule 106(a)(4). The Larimer County defendants don’t address Wardell’s 2 procedural argument; they instead argue that the district court correctly determined that Wardell’s complaint was moot. II. Applicable Legal Principles ¶6 The procedures applicable to a complaint brought under Rule 106(a)(4) are contained in subsections (a)(4)(I) through (a)(4)(IX). We review de novo a court’s interpretation of and compliance with the Colorado Rules of Civil Procedure. See Schaden v. DIA Brewing Co., LLC, 2021 CO 4M, ¶ 32. ¶7 Likewise, we review de novo whether an issue or claim is moot. Gray v. Univ. of Colo. Hosp. Auth., 2012 COA 113, ¶ 32, abrogated on other grounds by Cisneros v. Elder, 2022 CO 13M. A case is moot when the relief granted by the court would not have a practical effect upon an actual and existing controversy. DePriest v. People, 2021 CO 40, ¶ 8; Kadingo v. Johnson, 304 F. Supp. 3d 1003, 1012 (D. Colo. 2017) (“For purposes of [federal] Rule 12(b)(1), ‘mootness is a matter of jurisdiction . . . .’” (citation omitted)); Trinity Broad. of Denv., Inc. v. City of Westminster, 848 P.2d 916, 924 (Colo. 1993) (Colorado’s version of Rule 12(b)(1) is identical to Fed. R. Civ. P. 12(b)(1)). In a criminal case, “[e]ven if a sentence has been fully served, an appeal of the underlying conviction is not 3 moot if there is a possibility that the conviction will give rise” to burdens that follow a defendant past the end of their sentence. DePriest, ¶¶ 9-10. III. Analysis ¶8 Wardell contends that the district court abused its discretion by not complying with the procedural requirements of Rule 106(a)(4)(VII), which sets forth a briefing schedule, before deciding the merits of his complaint. We disagree because nothing in Rule 106 precluded the Larimer County defendants from filing a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, and Wardell cites no authority supporting his assertion. Indeed, a Rule 12(b)(1) motion is the proper mechanism for testing whether a district court has subject matter jurisdiction over a Rule 106 complaint. See Brown v. Walker Com., Inc., 2022 CO 57, ¶ 32 (affirming district court’s grant of Rule 12(b)(1) motion to dismiss a Rule 106 complaint for lack of subject matter jurisdiction); Colo. Jud. Dep’t, Eighteenth Jud. Dist. v. Colorado Jud. Dep’t Pers. Bd. of Rev., 2021 COA 82, ¶¶ 6, 10, 41, aff’d, 2022 CO 52 (same). ¶9 Besides, Wardell doesn’t challenge the court’s mootness determination in his opening brief. Rather, replying to the 4 argument raised in the Larimer County defendants’ answer brief, he asserts that his claim isn’t moot because (1) the disciplinary report creates “collateral consequences” for federal habeas corpus actions, which require him to show that he has first presented the substance of his habeas claims to a state court before raising them in federal court;1 and (2) the “illegal conditions” at the jail are likely to reoccur. We can’t rewrite Wardell’s pleadings or act as his advocate. People v. Cali, 2020 CO 20, ¶ 34. Thus, because Wardell failed to challenge in his opening brief the court’s dismissal of his complaint based on mootness, we must also affirm the dismissal on that ground. See Foxley v. Foxley, 939 P.2d 455, 459 (Colo. App. 1996) (appellant’s failure to challenge each of the district court’s alternative bases for dismissal of claims required affirmance of dismissal). ¶ 10 In any event, the record and the law support the district court’s mootness determination. The proper remedy in a case brought under Rule 106(a)(4), should the district court conclude 1 Wardell didn’t present this argument to the district court, and it’s not clear whether he has a habeas corpus action currently pending in federal court or simply contemplates filing one in the future. 5 that a disciplinary hearing officer abused their discretion or exceeded their jurisdiction, is to reverse the decision and remand for a new hearing. See C.R.C.P. 106(a)(4)(IX); Gallegos v. Garcia, 155 P.3d 405, 408 (Colo. App. 2006) (explaining that the district court erred by expunging a disciplinary conviction rather than remanding for a new disciplinary hearing). But that is not the relief Wardell sought. Rather, he asked that the disciplinary report be expunged. ¶ 11 The court determined the case was moot — and it therefore lacked subject matter jurisdiction to consider Wardell’s claims — because “remanding the case for a new disciplinary hearing would have no practical effect upon an existing controversy,” as Wardell had already served the sanction and been released from custody. ¶ 12 In his response to the motion to the dismiss, Wardell argued that his complaint wasn’t moot because his disciplinary record might have negative implications for his risk classification if he returns to the jail at some point in the future. But the United States Supreme Court has rejected similar arguments regarding the potential risk of future disciplinary actions because they are premised on the person asserting the argument violating the law, 6 being caught, and then being convicted. See Spencer v. Kemna, 523 U.S. 1, 15 (1998). And courts presume that people will conduct themselves so as to avoid being prosecuted and convicted. See id. Other courts have likewise held that the hypothetical impact of a disciplinary record on future confinement is too speculative to be considered a collateral consequence. See State v. Moore, 2009 UT App 128, ¶ 17; Wilson v. Terhune, 319 F.3d 477, 481-83 (9th Cir. 2003). ¶ 13 In sum, we discern no reversible error because the court complied with the Colorado Rules of Civil Procedure before reaching its legally supported conclusion that it lacked subject matter jurisdiction to review Wardell’s claim because it was moot. IV. Disposition ¶ 14 The judgment is affirmed. JUDGE PAWAR and JUDGE BROWN concur. 7