No‑Trespass Directives Are Discrete Acts, Not Continuing Violations: Persuasive Tenth Circuit Guidance on Limitations, Preclusion, Qualified Immunity, and Heck in Grays v. Munn

Precedents and Authorities Cited

• Statutes of Limitations and Tolling:
  • Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir. 2010) – State law supplies limitations and tolling rules for § 1983; abuse-of-discretion review for equitable tolling determinations.
  • Garrett v. Arrowhead Improvement Ass’n, 826 P.2d 850, 855 (Colo. 1992) – Plaintiff bears the burden to justify equitable tolling; case-specific inquiry required.
  • Brodeur v. American Home Assurance Co., 169 P.3d 139, 150 (Colo. 2007) – Awaiting outcomes of other proceedings is not an extraordinary circumstance warranting tolling.
  • Hamer v. City of Trinidad, 924 F.3d 1093, 1099 (10th Cir. 2019) – Continuing violation requires continual unlawful acts, not continuing ill effects.
• Pleading and Review Standards:
  • Clinton v. Security Benefit Life Ins. Co., 63 F.4th 1264, 1274 (10th Cir. 2023) – De novo review of Rule 12(b)(6) dismissals.
• Issue Preclusion (Collateral Estoppel):
  • 28 U.S.C. § 1738 – Federal courts give state judgments the same preclusive effect they would receive in that state.
  • Michaelson v. Michaelson, 884 P.2d 695, 700–01 (Colo. 1994) – Four elements of issue preclusion under Colorado law.
  • People v. Allee, 740 P.2d 1, 5 (Colo. 1987) – Nonmutual issue preclusion permitted; the party asserting preclusion need not have been a party to the prior case.
• Qualified Immunity:
  • Doe v. Woodard, 912 F.3d 1278, 1289 (10th Cir. 2019) – Plaintiff bears the burden to show a constitutional violation and that the right was clearly established.
• Heck and Related Doctrines:
  • Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) – § 1983 cannot be used to obtain relief that necessarily implies the invalidity of an outstanding conviction unless that conviction has been invalidated.
  • Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) – Heck-like bar applies to non-damages relief when success would necessarily imply unlawfulness of custody.
  • Richison v. Ernest Group, Inc., 634 F.3d 1123, 1128–31 (10th Cir. 2011) – Unraised legal theories are forfeited; on appeal, reversal based on new theory requires plain-error argument.
• Municipal Liability Notes:
  • Crowson v. Washington County, 983 F.3d 1166, 1185–91 (10th Cir. 2020) – A municipality can be liable absent an individual officer’s constitutional violation in certain circumstances.
  • Hinton v. City of Elwood, 997 F.2d 774, 783 (10th Cir. 1993) – Municipal liability may proceed even where officers receive qualified immunity due to lack of clearly established law.
• Magistrate Screening and Pretrial Matters:
  • 28 U.S.C. § 1915(e)(2)(B)(ii) – IFP screening for failure to state a claim.
  • 28 U.S.C. § 636(b)(1)(A) – Standard for reconsidering magistrate judge orders on nondispositive pretrial matters; not applicable to later adversarial motions to dismiss.

Legal Reasoning

A. Limitations: Accrual, Tolling, and “Continuing Violation”

The court accepted the district court’s two-year limitations period for the asserted federal claims and held that Grays’s causes of action “accrued” when APS issued the August 24, 2018 no‑trespass directive, not at each later enforcement or by virtue of the directive’s continuing effects. This frames the directive as a discrete governmental act triggering the limitations clock.

On equitable tolling, the panel applied Colorado law. Grays argued that defending criminal trespass citations, suffering “warrants, imprisonment, [and] court dates,” along with health challenges, prevented timely filing. The court emphasized two points:

• Colorado places the tolling burden on the plaintiff; generalized assertions are insufficient without particularized facts.
• Judicial notice of Grays’s multiple federal suits and “abundant motions practice” during the relevant period undercut her claim that she lacked capacity to pursue this case.

Brodeur foreclosed tolling to await outcomes of other proceedings. The panel found no abuse of discretion in denying tolling.

On the continuing violation doctrine, the court cited Hamer: a continuing violation is triggered by continual unlawful acts, not by ongoing ill effects from a past act. Grays framed the standing no‑trespass directive as a continuing unlawful act, but the panel found no authority supporting that view and affirmed dismissal as time‑barred.

B. February 2021 Arrest: Issue Preclusion Against APS Defendants

Grays previously sued APS in state court, alleging discriminatory denial of access to a Board meeting. The state court dismissed, expressly finding the “sole reason” for denial was the no‑trespass directive, not race or sex. Applying § 1738 and Colorado preclusion law (Michaelson), the panel agreed that the fourth element—full and fair opportunity—was the only disputed element and was satisfied: Grays litigated under rules akin to the federal rules, participated, and raised the same arguments.

Grays’s attempts to avoid preclusion were unavailing:

• The supposed entity mismatch (Adams‑Arapahoe 28‑J v. APS) was factually incorrect and legally irrelevant; the party asserting preclusion need not have been a party to the prior case (Allee).
• Suing defendants in different capacities did not defeat preclusion; the focus is on whether Grays was a party and whether the identical issue was actually litigated and necessarily decided.
• Her reliance on the IFP screening survival to block motions to dismiss foundered because a magistrate’s screening decision is preliminary, nonadversarial, and not law‑of‑the‑case; defendants need not show clear error under § 636 to move to dismiss under Rule 12(b)(6).

Result: The preclusive state‑court finding barred relitigation of discriminatory motive, dooming the federal discrimination claims against APS officials and employees based on the 2021 incident.

C. February 2021 Arrest: Qualified Immunity for Officers Samples and Waller

The district court found, and the panel agreed, that officers had probable cause based on APS personnel’s report that Grays was violating an extant no‑trespass directive by entering school property. Grays argued that the officers’ failure to investigate further evidenced racial animus, but she offered no authority clearly establishing a duty to conduct additional investigation in these circumstances or showing that such a failure, in itself, violates the Constitution. Under Doe v. Woodard, a plaintiff must show both a constitutional violation and clearly established law; Grays did neither. Qualified immunity therefore barred the claims against the officers.

The panel noted, but did not reach, two municipal-liability nuances: (1) municipal liability can sometimes exist absent an individual officer’s constitutional violation (Crowson), and (2) municipal liability may proceed even if officers receive qualified immunity due to lack of clearly established law (Hinton). Grays did not preserve or brief those avenues.

D. Facial and As‑Applied Challenge to Aurora’s Trespass Ordinance: Heck Bar

Grays sought condemnation of the ordinance, vacatur of her one trespass conviction, and expungement. Because success would necessarily imply the invalidity of the outstanding conviction, Heck barred the claim absent prior invalidation of that conviction by appeal, collateral attack, executive order, or habeas.

Grays argued on appeal that Heck should not apply because she is not a prisoner and cannot pursue habeas, but she forfeited that theory by failing to present it in the district court and by not arguing plain error on appeal (Richison). Dismissed charges did not salvage the claim because one conviction remains. The panel left open, but did not decide, whether a purely prospective injunctive claim unconnected to invalidating a prior conviction could proceed (not raised below).

E. Constitutional Challenge to District Court Pro Se Procedures: Forfeited

Grays’s equal protection and due process challenge to local pro se procedures was not presented to the district court and thus was forfeited on appeal (Richison).

Impact and Practical Significance

Although nonprecedential, Grays v. Munn offers persuasive guidance across several recurring issues in school‑property, protest, and access‑to‑government cases:

• No‑trespass directives as discrete acts: Plaintiffs challenging school or governmental exclusion orders should assume accrual at issuance. Later arrests or citations implement the earlier decision and do not reset limitations merely because the exclusion remains in force.
• Equitable tolling under Colorado law is narrow: Litigants must present concrete, detailed facts showing extraordinary impediments. Concurrent litigation activity can undermine tolling claims.
• State‑court discrimination findings can foreclose federal claims: A state judgment that a denial of access was non‑discriminatory can issue‑preclude relitigation of motive in federal § 1983/§ 1981 actions. Counsel should carefully evaluate potential preclusion consequences before filing parallel or sequential suits.
• Officer reliance on property‑owner reports: In trespass contexts, officers may constitutionally rely on a property owner’s or official’s representation of exclusion unless clearly established law requires more. Absent such authority, qualified immunity will likely apply.
• Heck’s reach and preservation: Ordinance challenges intertwined with existing convictions risk Heck dismissal; arguments to avoid Heck (e.g., lack of habeas pathway) must be preserved and framed under governing circuit law. Litigants should distinguish remedies that necessarily invalidate convictions from purely prospective relief.
• IFP screening is not a shield: Surviving § 1915 screening does not preclude defendants from pursuing Rule 12(b)(6) dismissal. Practitioners should not rely on screening as a merits ruling.
• Municipal liability strategy: Even where officers obtain qualified immunity, Monell claims may, in some circumstances, proceed on independent policy or practice theories. But those theories must be developed and preserved (as the panel’s footnote underscores).

For school districts and municipalities, the decision supports the use and enforcement of no‑trespass directives when grounded in documented conduct and communicated to law enforcement, while also inviting careful attention to process and record‑keeping to withstand subsequent challenges.