Aguilera v. City of Colorado Springs

A
                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                        November 18, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 CANDACE AGUILERA,

       Plaintiff - Appellant,

 v.                                                          No. 19-1398
                                                   (D.C. No. 1:18-CV-02125-KMT)
 CITY OF COLORADO SPRINGS, a                                  (D. Colo.)
 municipality; DANIELLE MCCLARIN,
 in her official and individual capacity;
 ANGIE NEIVES, in her official and
 individual capacity; ROGER
 VARGASON, in his official and individual
 capacity; BRETT LACEY, in his official
 and individual capacity; ROBERT
 MITCHELL, in his official and individual
 capacity,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and MORITZ, Circuit Judges.
                 _________________________________




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
       Candace Aguilera appeals pro se from the district court’s order dismissing her

civil-rights complaint and denying her leave to amend. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

                                     BACKGROUND

       In her seventy-page first amended complaint, Aguilera alleges the following. On

the morning of July 10, 2017, Colorado Springs Police Officer Roger Vargason and Fire

Marshalls Danielle McClarin and Angie Nieves confronted her outside of

“GreenFaithMinistry,” a “non-denominational spiritual/religious establishment” and

retailer of “religious goods.” R. at 116, 131. Aguilera is the “Property manager,

Volunteer, High Priestess (second minster [sic] in command), member, etc. who leases

two rooms at the Establishment.”

Id. at 120.

1
       Fire Marshall McClarin explained they wanted inside to “check the occupancy of

the building.”
 Id. at 120. 
Aguilera refused, telling them, “If you want in the building you

will have to contact Reverend Baker, I will not let you in.”
 Id. Fire Marshall McClarin

responded, “If you do not let us in, nobody will be allowed in.”
 Id. at 121. 
While Fire

Marshall McClarin attempted to call Reverend Baker, Aguilera apparently went inside

and locked the entry door.

       A few minutes later, Officer Vargason pulled forcefully on the door, telling the

“GreenFaithMinistry members and volunteers [inside] to ‘[o]pen the door.’”
 Id. at 127.


       1

        Security camera photos included in the amended complaint indicate that
GreenFaithMinistry is in a business/strip-mall type location, with other structures
located nearby across an alleyway or street. Aguilera does not indicate the purpose
for which she leases the rooms inside GreenFaithMinistry.
                                            2
When Aguilera came to the door, Officer Vargason warned her that “[i]f [she] d[id] not

open th[e] door, [she] w[ould] be in trouble.”
 Id. at 128. 
He again tried to pull open the

door. Aguilera said, “this is private property do you have a warrant?”
 Id. Officer

Vargason replied, 
“Oh now I am talking to Rob Corry (Marijuana lawyer out of

Denver).”
 Id. at 128. 
Officer Vargason continued pulling, stating, “[W]e know you have

an illegal grow in there.”
 Id. Officer Vargason’s final 
“order to . . . Aguilera was to

‘Praise the Lord.’”
 Id. at 129.

       The officers remained at GreenFaithMinistry for forty-five minutes. During that

time, several other GreenFaithMinistry members arrived. Fire Marshall Nieves asked

one such member “[i]f marijuana [wa]s being consumed inside the building.”
 Id. at 134.

Those members felt “intimidated,” so they “turn[ed] around and le[ft].”
 Id. at 126.

Before the officers finally left, Officer Vargason used a cell phone to take “pictures of

Members[’] license plates, including the vehicle that . . . Aguil[e]r[a] drives.”
 Id. at 133.

       Aguilera filed this 42 U.S.C. § 1983 pro se lawsuit in August 2018.2 She alleges

in confusing fashion that the defendants violated her “absolute natural rights and the

constitutions which expressively mandates [sic] its compliance and restricts any

opposition by any government and anything below it without contest via absolute natural

rights, Art. 6, Clause 2 Supremacy Clause, Constitutions, Free Exercise Clause, etc.”
 Id.


       2

        In addition to suing the City of Colorado Springs and the officers who
confronted her on July 10, 2017, Aguilera also sued two individuals not present that
day—Brett Lacey and Robert Mitchell. They allegedly “worked in concert” as the
“Head Fire Marshall” and El Paso County Sheriff’s Lieutenant, respectively, to
violate Aguilera’s rights.
 Id. at 117-18; 
see also
 id. at 256.

                                              3
at 158. 
Further, she alleges that the defendants’ actions caused her and “four other

church members/volunteers[ ] [to] vacate their place of worship,”
 id. at 123-24, 
and that

the City of Colorado Springs “targeted non-denominational GreenFaithMinistry to insure

[that] monetary contributions for police and the fire dep[ar]t[ment] services continue

from neighboring [Christian] religious establishments.”
 Id. at 115-16. 
She seeks

declaratory, injunctive, and monetary relief.

       The defendants moved to dismiss, asserting qualified immunity. The district court

granted the motions and dismissed all of Aguilera’s claims. Doing so, it construed

Aguilera’s complaint as advancing claims under (1) the First Amendment for violations

of the Establishment and Free Exercise Clauses, and (2) the Fourth Amendment for

unlawful search and seizure.3

       To the extent Aguilera asserted her claims on behalf of GreenFaithMinistry and

other members, the district court concluded she lacked standing. As for her

Establishment Clause claim, the district court determined it failed the three-part test of

Lemon v. Kurtzman, 
403 U.S. 602
, 612-13 (1971). Her Free Exercise claim failed, the

district court said, because she did not allege that any defendant burdened her ability to

exercise a religious belief. Regarding her search-and-seizure claim, the district court

determined there were no allegations the defendants actually conducted a search, and

there was no seizure of property because the defendants did not meaningfully interfere




       3
       We conclude that the district court accurately distilled the nature of
Aguilera’s first amended complaint.
                                                4
with her possessory interests.4 Finally, the district court denied Aguilera’s motion for

leave to amend the complaint because she failed to comply with the meet-and-confer

requirements of the local rules.

                                         DISCUSSION
                                   I. Standards of Review

       We review de novo the district court’s grant of a motion to dismiss on the grounds

of standing, Comm. to Save the Rio Hondo v. Lucero, 
102 F.3d 445
, 447 (10th Cir. 1996),

and qualified immunity, Weise v. Casper, 
593 F.3d 1163
, 1166 (10th Cir. 2010).

       “In resolving a motion to dismiss based on qualified immunity, the court considers

(1) whether the facts that a plaintiff has alleged make out a violation of a constitutional

right, and (2) whether the right at issue was clearly established at the time of defendant’s

alleged misconduct.” Keith v. Koerner, 
707 F.3d 1185
, 1188 (10th Cir. 2013) (internal

quotation marks omitted). “If the plaintiff fails to satisfy either part of the inquiry, the

court must grant qualified immunity.” Carabajal v. City of Cheyenne, 
847 F.3d 1203
,

1208 (10th Cir. 2017).




       4
         Although the district court did not discuss Aguilera’s claims against the City
of Colorado Springs and the officers in their official capacities, its dismissal order
covers those claims. “[A]n official-capacity suit brought under § 1983 generally
represents only another way of pleading an action against an entity of which an
officer is an agent.” Moss v. Kopp, 
559 F.3d 1155
, 1168 n.13 (10th Cir. 2009)
(brackets and internal quotation marks omitted). And without “a constitutional
violation by the individual . . . officers whose conduct directly caused plaintiffs’
injuries, there can be no municipal liability.” Trigalet v. City of Tulsa, 
239 F.3d
1150
, 1156 (10th Cir. 2001).

                                               5
       In deciding whether the complaint should be dismissed, we evaluate the complaint

to see if it “contain[s] sufficient factual matter, accepted as true, to state a claim to relief

that is plausible on its face.” Wittner v. Banner Health, 
720 F.3d 770
, 774-75 (10th Cir.

2013) (internal quotation marks omitted). But “we are not bound to accept as true a legal

conclusion couched as a factual allegation,” and “we consider only the facts alleged in

[Aguilera’s] [a]mended [c]omplaint.”
 Id. We do “not 
consider allegations or theories

[asserted in her appellate briefs] that are inconsistent with those pleaded in the

complaint.” Hayes v. Whitman, 
264 F.3d 1017
, 1025 (10th Cir. 2001).

       Although we construe Aguilera’s filings liberally, we do not serve as her advocate.

See Garrett v. Selby Connor Maddux & Janer, 
425 F.3d 836
, 840 (10th Cir. 2005).

                                         II. Standing

       “The doctrine of standing . . . requires federal courts to satisfy themselves that the

plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant

[her] invocation of federal-court jurisdiction.” Summers v. Earth Island Inst., 
555 U.S.

488
, 493 (2009) (internal quotation marks omitted). Thus, “[o]rdinarily, a party must

assert h[er] own legal rights and cannot rest h[er] claim to relief on the legal rights of

third parties.” Sessions v. Morales-Santana, 
137 S. Ct. 1678
, 1689 (2017) (ellipsis and

internal quotation marks omitted).

       Aguilera acknowledges in her opening brief that she is not suing to vindicate the

rights of GreenFaithMinistry and its other members. See Aplt. Opening Br. at 37.5 Thus,


       5
       At the same time, she maintains that “Appellees are incorrect when they say
you cannot sue for others.” Reply Br. at 1. We do not reach this dispute. Article III
                                                6
the district court did not err in dismissing Aguilera’s claims without prejudice “to the

extent [she] assert[ed] [them] on behalf of others.” R. at 576.

                                III. Establishment Clause

       Aguilera argues that Officer Vargason violated the Establishment Clause by

ordering her to “Praise the Lord.”6 Aplt. Opening Br. at 41. The Establishment Clause

prohibits “law[s] respecting an establishment of religion.” U.S. Const. amend. I. In

particular, it “mandate[s] governmental neutrality between religion and religion, and

between religion and nonreligion.” O’Connor v. Washburn Univ., 
416 F.3d 1216
, 1223

(10th Cir. 2005) (internal quotation marks omitted).

       “To assess an Establishment Clause challenge, we follow the tripartite test from

Lemon v. Kurtzman,” which provides that “government action does not violate the Clause


of the Constitution limits our power to hear cases or controversies. See U.S. Const.
art. III, § 2, cl. 1. It does not confer jurisdiction over disputes that are purely
academic. See Aetna Life Ins. Co. of Hartford v. Haworth, 
300 U.S. 227
, 240-41
(1937) (observing that there “must be a real and substantial controversy admitting of
specific relief through a decree of a conclusive character, as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts”). Given
Aguilera’s representation that she “include[d] GreenFaithMinistry and Members to
show” only that “[her] rights were clearly violated,” Aplt. Opening Br. at 37, her
dispute with Defendants-Appellees concerning third-party standing is purely
academic.
       6
         “[T]he requirements for standing to challenge state action under the
Establishment Clause . . . do not include proof that particular religious freedoms are
infringed.” Sch. Dist. of Abington Twp. v. Schempp, 
374 U.S. 203
, 224 n.9 (1963).
Rather, the plaintiff can show standing by asserting a “direct[ ] affect[ ]” from the
“practice[ ] against which [her] complaint[ ] [is] directed.” Id.; see also Montesa v.
Schwartz, 
836 F.3d 176
, 197 (2d Cir. 2016) (stating that “direct exposure standing”
can occur where “a plaintiff is personally confronted with a government-sponsored
religious expression that directly touches the plaintiff’s religious or non-religious
sensibilities”). We conclude that Aguilera’s allegation of being ordered to “Praise
                                             7
if (1) it has a secular purpose; (2) its principal or primary effect is one that neither

advances nor inhibits religion; and (3) it does not foster an excessive government

entanglement with religion.” Medina v. Catholic Health Initiatives, 
877 F.3d 1213
, 1230

(10th Cir. 2017) (internal quotation marks omitted).7 The purpose and effect prongs

“look[ ] through the eyes of an objective observer, aware of the purpose, context, and

history of the government action in question.”
 Id. at 1230-31 
(internal quotation marks

omitted).

       In order to survive a motion to dismiss, a plaintiff asserting an Establishment

Clause violation “must allege facts which, accepted as true, suggest a violation of any

part of th[e] [Lemon] analysis.” Bauchman for Bauchman v. W. High Sch., 
132 F.3d 542
,

552-53 (10th Cir. 1997). “We will not infer an impermissible purpose or effect in the

absence of any supporting factual allegations.”
 Id. at 553.




the Lord” confers standing to assert an Establishment Clause violation under a
direct-exposure theory.
       7
         The Supreme Court has recently cast doubt on the viability of the Lemon test,
stating that it “presents particularly daunting problems in cases . . . that involve the
use, for ceremonial, celebratory, or commemorative purposes, of words or symbols
with religious associations.” Am. Legion v. Am. Humanist Assoc., 
139 S. Ct. 2067
,
2081 (2019) (plurality opinion). American Legion does not, however, offer a
replacement test. Rather, it encourages the “application of a presumption of
constitutionality for longstanding monuments, symbols, and practices.”
 Id. at 2081-
82. 
In any event, Aguilera’s allegation that she was ordered to “Praise the Lord”
appears to fall outside of American Legion’s repudiation of Lemon in religious-
display cases.
                                               8
A.     Secular Purpose

       Aguilera’s amended complaint does not allege facts indicating that an objective

observer would view Officer Vargason’s purpose in saying “Praise the Lord” as an

official endorsement of religion. Specifically, the phrase “Praise the Lord” can be uttered

solely as a personal affirmation of religious or even non-religious gratitude, and not “with

the ostensible and predominant purpose of advancing religion,” McCreary County v. Am.

Civ. Liberties Union, 
545 U.S. 844
, 860 (2005). Aguilera fails to identify any allegation

supporting her assertion that Officer Vargason intended the phrase as a directive for her

to worship a deity. Further, the phrase was uttered in the midst of a secular investigation

concerning the building’s occupancy and suspected use as an illegal marijuana

establishment. “We will not lightly attribute unconstitutional motives to the government,

particularly where we can discern a plausible secular purpose.” 
Medina, 877 F.3d at

1230 
(internal quotation marks omitted).

B.     Effect

       Similarly, the amended complaint is devoid of allegations showing that Officer

Vargason’s mere utterance of “Praise the Lord” would have the principal or primary

effect of advancing or inhibiting religion. In particular, no facts are alleged under which

an objective observer, aware of the officers’ secular investigational purpose, would

conclude that the phrase “convey[ed] a message that religion or a particular religious

belief is favored or preferred.” 
Medina, 877 F.3d at 1231 
(internal quotation marks

omitted). The effect prong “does not forbid all mention of religion,” and it does not take



                                             9
into account “whether particular individuals might be offended by the content” of a

government actor’s message “or consider [that message] to endorse religion.”

Bauchman, 132 F.3d at 555
.

C.     Entanglement

       Nor does Aguilera allege that Officer Vargason’s utterance of “Praise the Lord,”

“foster[ed] an excessive government entanglement with religion.”
 Id. at 1233. 
This

prong of the Lemon test ensures that religious organizations retain “independence from

secular control or manipulation” in “matters of church government as well as those of

faith and doctrine.”
 Id. at 1234 
(internal quotation marks omitted). Without an allegation

that Officer Vargason’s use of “Praise the Lord” somehow constituted “state involvement

with recognized religious activity,” the entanglement prong is not met. See 
Bauchman,

132 F.3d at 556
.

D.     Conclusion

       We conclude that the district court did not err in dismissing Aguilera’s

Establishment Clause claim, as she has not plausibly alleged a constitutional violation

under any prong of the Lemon test. Cf., e.g., Wood v. Arnold, 
915 F.3d 308
, 315

(4th Cir.) (“[I]f courts were to find an Establishment Clause violation every time that a

student or parent thought that a single statement by a teacher either advanced or

disapproved of a religion, instruction in our public schools would be reduced to the

lowest common denominator.” (internal quotation marks omitted)), cert. denied,

140 S. Ct. 399 
(2019).



                                            10
                                IV. Free Exercise Clause

       Aguilera argues that Fire Marshall McClarin violated the Free Exercise Clause by

“threaten[ing] [her]” outside GreenFaithMinistry when he said, “If you do not let us in,

nobody will be allowed in.” R. at 120-21. According to Aguilera, that threat “made . . .

[her] and four other church members/volunteers[ ] vacate their place of worship.”
 Id. at

123-24; 
see Aplt. Opening Br. at 44.

       “To establish a free-exercise claim, [Aguilera] must show that the government has

placed a burden on the exercise of h[er] religious beliefs or practices.” Fields v. City of

Tulsa, 
753 F.3d 1000
, 1009 (10th Cir. 2014). “A plaintiff states a claim that h[er]

exercise of religion is burdened if the challenged action is coercive or compulsory in

nature.”
 Id. (alteration and internal 
quotation marks omitted).

       Aguilera’s own allegations belie the coercive or compulsory nature of Fire

Marshall McClarin’s threat. She alleges that immediately after Fire Marshall McClarin

made the threat, she went inside GreenFaithMinistry and locked the entry door behind

her. Indeed, she remained inside with the door locked, refused to open it even as Officer

Vargason pulled on it and told her to open it, and she declared, “this is private property

do you have a warrant?” R. at 128. It is unclear when she finally exited

GreenFaithMinistry. Given these allegations, Aguilera has failed to assert a connection

between Fire Marshall McClarin’s threat (even when viewed together with Officer

Vargason’s actions) and her decision to vacate GreenFaithMinistry. Significantly,

Aguilera has not alleged that Fire Marshall McClarin (or any other officer) ever ordered

her to vacate the building.

                                             11
       Nevertheless, Aguilera argues the constitutional violation is clear in light of Sause

v. Bauer, 
138 S. Ct. 2561 
(2018). There, the Supreme Court explained that the Free

Exercise Clause may have been violated by a police officer’s order to the plaintiff,

while he was inside her apartment investigating a noise complaint, to stop praying.
 Id.

at 2562-63. 
The Court said it was “impossible to analyze [the plaintiff’s] free exercise

claim” without knowing whether officers were lawfully inside her apartment and “what,

if anything, the officers wanted her to do at the time when she was allegedly told to stop

praying.”
 Id. at 2563. 
Thus, the Court reversed and remanded for further proceedings.

       But Sause has no apparent application here. Aguilera does not assert in her

complaint that she was ordered to stop praying or worshipping in any manner. Nor does

she allege that she was engaged in prayer or worship inside GreenFaithMinistry at any

time during the officers’ presence outside the building. Further, as discussed below, the

officers were lawfully present on the porch outside GreenFaithMinistry when they

communicated with Aguilera.

       In short, Aguilera has failed to allege that any defendant burdened her exercise of

religious beliefs or practices. Thus, the district court did not err in dismissing her Free

Exercise claim.

                                  V. Fourth Amendment

       The Fourth Amendment prohibits unreasonable searches and seizures. New York

v. Burger, 
482 U.S. 691
, 699 (1987). A plaintiff asserting a Fourth Amendment violation

must either have “a legitimate expectation of privacy in the place searched or the item

seized,” United States v. Angevine, 
281 F.3d 1130
, 1134 (10th Cir. 2002) (internal

                                             12
quotation marks omitted), or identify an “unprivileged trespass on property expressly

protected by the Fourth Amendment—persons, houses, papers, and effects—for the

purpose of conducting a search or seizure,” United States v. Carloss, 
818 F.3d 988
, 992

n.2 (10th Cir. 2016) (internal quotation marks omitted).

A.     Search

       Aguilera contends that Officer Vargason engaged in an unlawful Fourth

Amendment search by photographing her vehicle and its license plate. At the time

Officer Vargason took the photos, he was standing on GreenFaithMinistry’s porch, with

Aguilera’s vehicle parked only a few feet away, off of what appears to be an alleyway or

street, with other buildings/businesses nearby. Aguilera has not pled a plausible Fourth

Amendment violation for the following reasons.

       First, she has no expectation of privacy in the appearance of her vehicle or its

license plate, with her car parked in public view off of a street or alleyway. See New

York v. Class, 
475 U.S. 106
, 114 (1986) (“The exterior of a car, of course, is thrust into

the public eye, and thus to examine it does not constitute a ‘search.’”); United States v.

Walraven, 
892 F.2d 972
, 974 (10th Cir. 1989) (“[B]ecause they are in plain view, no

privacy interest exists in license plates.”).

       Second, although Officer Vargason took the photos from GreenFaithMinistry’s

porch, his vantage point did not convert his photo-taking into a search. The amended

complaint is not entirely clear as to whether he and the fire marshalls were at

GreenFaithMinistry to check compliance with administrative occupancy standards, to

investigate illegal marijuana sales, or both. In any event, the Fourth Amendment is not

                                                13
implicated where officers are on private property and perform a so-called “knock and

talk.” See United States v. Shuck, 
713 F.3d 563
, 568 (10th Cir. 2013) (holding that

“officers did not violate the Fourth Amendment when they approached [a] trailer’s back

door with an intent to speak to its occupants regarding the reported odor of marijuana”

and saw in plain view a PVC pipe that smelled of marijuana). “Observations made from

such vantage points are not covered by the Fourth Amendment.”
 Id. at 567 
(brackets and

internal quotation marks omitted); see also 
Carloss, 818 F.3d at 993 
(“The mere purpose

of discovering information in the course of engaging in [a knock and talk] does not cause

it to violate the Fourth Amendment.”). Thus, Officer Vargason did not need a warrant to

photograph Aguilera’s license plate while on GreenFaithMinistry porch.8


      8
         Aguilera’s reliance on Collins v. Virginia, 
138 S. Ct. 1663 
(2018), is
misplaced. In that case, the Supreme Court held that a warrant is required to search a
vehicle that is within the curtilage of a home, notwithstanding the automobile
exception to the warrant requirement.
 Id. at 1670-71. 
The Court rested its decision
on “the core Fourth Amendment protection afforded to the home and its curtilage.”

Id. at 1671. 
Here, Aguilera’s vehicle was not parked within the curtilage of a home.
See Oliver v. United States, 
466 U.S. 170
, 180 (1984) (explaining that the curtilage
“is the area to which extends the intimate activity associated with the sanctity of a
[person’s] home and the privacies of life, and therefore has been considered part of
the home itself for Fourth Amendment purposes” (internal quotation marks omitted)).
Rather, her vehicle was parked off of an alleyway or street, in a non-residential area,
and next to GreenFaithMinistry, a “non-denominational spiritual/religious
establishment” and retailer of “religious goods.” R. at 116, 131.
        Also, Aguilera argues on appeal that Officer Vargason’s photo-taking
constituted a search because he used “his police issued phone,” which “can run apps /
programs” that provide “access to [a] [d]atabase that [is] not accessible by the
public.” Aplt. Opening Br. at 48. Because these allegations are not in the amended
complaint, we do not consider them. See 
Hayes, 264 F.3d at 1025
. We likewise do
not consider Aguilera’s allegation that the photo-taking unlawfully disclosed her
“association in a non[]profit.” Aplt. Opening Br. at 48.


                                           14
B.     Seizure

       Aguilera contends that Fire Marshall McClarin’s threat, “If you do not let us in,

nobody will be allowed in,” “illegally seize[d] [GreenFaithMinistry] in violation of the

4th [A]mendment.” Aplt. Opening Br. at 44. We conclude that Aguilera has standing to

advance this claim to the extent it is based on her leasing of two rooms in the building.

But she fails to allege that any defendant meaningfully interfered with her possessory

interests in the building. See United States v. Shrum, 
908 F.3d 1219
, 1229 (10th Cir.

2018) (observing that “a Fourth Amendment ‘seizure’ occurs when there is some

meaningful government interference with an individual’s possessory interests in

property” (alterations and internal quotation marks omitted)). As we have already

observed, following Fire Marshall McClarin’s alleged threat, Aguilera entered the

building, locked the door, excluded the officers, and then later exited the building without

being asked to leave. Thus, no Fourth Amendment seizure occurred.

C.     Conclusion

       The district court did not err in dismissing Aguilera’s Fourth Amendment claims

for illegal search and seizure.

                                  VI. Motion to Amend

       “We review for abuse of discretion the district court’s denial of [Aguilera’s]

motion to file an amended complaint.” Cohen v. Longshore, 
621 F.3d 1311
, 1313

(10th Cir. 2010). The district court denied the motion because she failed to confer with

opposing counsel before filing the motion, as required by District of Colorado Local Civil

Rule 7.1(a), which states that “[b]efore filing a motion, counsel for the moving party or

                                            15
an unrepresented party shall confer or make reasonable good faith efforts to confer with

any opposing counsel or unrepresented party to resolve any disputed matter.”

      Although Aguilera states in her opening appellate brief that she would like to

amend her complaint, she does not address the district court’s rationale for denying her

leave to amend. She therefore waived any challenge to that decision. See Sylvia v.

Wisler, 
875 F.3d 1307
, 1332 (10th Cir. 2017) (“An issue or argument insufficiently raised

in the opening brief is deemed waived.” (internal quotation marks omitted)).

                                        CONCLUSION

      Because Aguilera’s amended complaint fails to plausibly allege a

constitutional violation against any of the individual defendants, the district court

properly applied qualified immunity and dismissed the complaint. We therefore

affirm the district court’s judgment.

      We deny as moot Aguilera’s motion to file an appendix, given that all the

documents she seeks to include are already included in the record on appeal. We

grant attorney Peter A. Lichtman’s motion to withdraw as counsel of record for

Defendant-Appellee Mitchell.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




                                            16

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