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HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry V. State Of Colorado, Et Al - 034 - State Dfs' Reply In Support Of Motion To Dismiss1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 21-CV-2306-RM-KLM ROBERT LAWRENCE PERRY Plaintiff, v. THE STATE OF COLORADO, et al, Defendants. THE STATE DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS The State of Colorado, Board of Governors of the Colorado State University System, acting by and on behalf of the Colorado State University (the “Board of Governors”), Colorado State University, and Steven Vasconcellos (collectively, the “State Defendants”) hereby file this reply in support of their motion to dismiss [Doc. # 27]. For the reasons set forth in Doc. # 27 and the reasons set forth below, the lawsuit filed by Robert Lawrence Perry (“Plaintiff”) should be dismissed. REPLY In his Response, Plaintiff asserts that (1) he is not suing the State of Colorado or Colorado State University; and (2) he is not seeking monetary damages. See Doc. # 32 at pg. 11. Thus, the Court should dismiss all claims against the State of Colorado and Colorado State University with prejudice. For the same reasons, all Case 1:21-cv-02306-RM-KLM Document 34 Filed 10/29/21 USDC Colorado Page 1 of 7 2 monetary damages claims asserted against the State Defendants should be dismissed. I. Plaintiff failed to establish subject matter jurisdiction. Plaintiff had the burden of establishing subject matter jurisdiction once the State Defendants raised Eleventh Amendment immunity and the Rooker-Feldman doctrine as defenses. See Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008). Plaintiff did not meet his burden of proof. See Doc. # 32. Plaintiff argues that the Eleventh Amendment is not applicable because the State Defendants “acted in contravention of the Constitution and law.” Doc. # 32 at pg. 12. But Plaintiff did not cite to any legal authority in support of his proposition. The only remaining State Defendants are the Board of Governors and Steven Vasconcellos. The Eleventh Amendment bars Plaintiff’s injunctive relief claims against these defendants. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97-102 (1984). Contrary to Plaintiff’s assertions, his claims against the Board of Governors do not fall within the Ex Parte Young exception. The Ex Parte Young doctrine applies only when a lawsuit involves action against state officials, not against an arm of the state, like the Board of Governors. Romero v. City and Cnty of Denver Dep’t. of Soc. Servs., 57 Fed.App’x 835, 838 (10th Cir. 2003) (unpub’d); Ex Parte Young, 209 U.S. at 155-156; Englehart v. Bd. Of Regents for the Okla. Agric & Meech Colls., 2016 WL 3645193, at * 3 (The Tenth Circuit has consistently held that Case 1:21-cv-02306-RM-KLM Document 34 Filed 10/29/21 USDC Colorado Page 2 of 7 3 university governing boards of regents are arms of the state and therefore enjoy Eleventh Amendment immunity). Similarly, Plaintiff’s claims against Defendant Vasconcellos do not meet the Ex Parte Young exception. Plaintiff seeks relief for past injuries. Thus, the Ex Parte Young exception does not apply. See Green v. Mansour, 474 U.S. 64, 73 (1985). Plaintiff attempts to circumvent the Rooker-Feldman doctrine by stating that he “withdraws his claim of relief for reversal of his unlawful conviction and imprisonment.” Doc. # 32 at pg. 2. However, the Rooker-Feldman doctrine still applies because the crux of Plaintiff’s Response is that the exclusionary orders should be lifted so that he can use the University’s campus. See id. As such, Plaintiff continues to seek review of the final judgments in Perry v. City of Fort Collins, 2019CV205 and Perry v. People, 2020CV122, which this Court cannot review. See Dist. Of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). For these reasons, the Court lacks subject matter jurisdiction. II. Plaintiff fails to state a § 1983 claim. Plaintiff claims the statute of limitations has not run on his claims. Doc. # 32 at pg. 12. However, based upon Plaintiff’s own arguments, Plaintiff knew about his injury as of no later than July 12, 2019 and, thus, his claims are time-barred. See Doc. # 32. Case 1:21-cv-02306-RM-KLM Document 34 Filed 10/29/21 USDC Colorado Page 3 of 7 4 Plaintiff failed and refused to meaningfully respond to the State Defendants’ other Rule 12(b)(6) arguments. See Doc. # 32 at pg. 11. Thus, Plaintiff confessed the Motion to Dismiss on those grounds. Realizing that his lawsuit is flawed, Plaintiff attempts to assert a new claim for conspiracy, but offers no explanation for why he failed to assert a conspiracy claim in his original complaint. See Doc. 32. Similarly, Plaintiff attempts to add several “named individual defendants” including “CSU campus police officers: Jeff Goetz, Jesse Ihnen, Michael Lohman, Phil Morris, Derek Smith, CSU Police Chief, Scott Harris, Lynn Johnson, CSU employee, Nic [sic] Olsen, CSU Chief of Staff, Mark Gill, Fort Collins prosecutor, Jill Hueser, Larimer County prosecutor Alita King, Municipal Judge Brandi Lynn Neito, Larimer County Judge Thomas L. Lynch, and Larimer District Court Judge, Daniel McDonald . . .” Id. at pg. 8 ¶ 28. And goes on to assert new allegations against these individuals. See id. at pg. 15- 16. “It is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.” Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001) (quoting Pennsylvania ex rel. Zimmerman v. PepsiCo., 836 F.2d 173, 181 (3d Cir. 1988); see also Strepka v. Alba, No. 15-CV-01444-RBJ-KLM, 2016 WL 11184882, *8 (D. Colo. Sept. 6, 2016) (“Thus, although Plaintiff states in his Response [to motion to dismiss] that such a claim has been brought . . . he may not amend his complaint through his Response.), report and recommendation adopted, Case 1:21-cv-02306-RM-KLM Document 34 Filed 10/29/21 USDC Colorado Page 4 of 7 5 No. 15-CV-01444-RBJ-KLM, 2017 WL 713631 (D. Colo. Feb. 17, 2017). And the purported “individual defendants” are not named in the complaint and are not properly before the Court. See Culp v. Williams, No. 10-cv-00886-CMA-CBS, 2011 WL 1597686, at *3 (D. Colo. Apr. 27, 2011) (“pursuant to Fed. R. Civ. P. 10(a), a caption to a complaint must include the names of all parties”), aff’d 456 Fed.Appx. 718 (10th Cir. 2012). The proper method is for Plaintiff to request leave to amend. See Fed. R. Civ. P. 15. Because Plaintiff acted improperly, the Court should give no consideration to Plaintiff’s newly added conspiracy claim. If, however, the Court is inclined to consider a conspiracy claim, then the Court should dismiss that claim with prejudice. Plaintiff failed to allege a plausible conspiracy claim because his allegations of an alleged conspiracy are conclusory and devoid of the requisite specific facts showing an agreement and concerted action by the State Defendants. Leatherwood v. Rios, 705 Fed. Appx 735, 739 (10th Cir. 2017). For this reason, Plaintiff cannot state a plausible conspiracy claim. CONCLUSION The Court lacks subject matter jurisdiction over Plaintiff’s lawsuit and Plaintiff failed to state a plausible claim under any theory of the law. Accordingly, Plaintiff’s lawsuit must be dismissed. WHEREFORE, the State Defendants respectfully request the Court dismiss Plaintiff’s claims and grant them any other relief deemed just and proper. Case 1:21-cv-02306-RM-KLM Document 34 Filed 10/29/21 USDC Colorado Page 5 of 7 6 Dated: October 29, 2021. PHILIP J. WEISER Attorney General s/ Allison R. Ailer ALLISON R. AILER* 33008 Civil Litigation & Employment Section SKIPPERE S. SPEAR* 32061 Senior Assistant Attorney General State Services Section Attorneys for the State Defendants 1300 Broadway, 6th Floor Denver, CO 80203 Telephone: (720) 508-6617/(720) 508-6140 Email: allison.ailer@coag.gov skip.spear@coag.gov *Counsel of Record Case 1:21-cv-02306-RM-KLM Document 34 Filed 10/29/21 USDC Colorado Page 6 of 7 7 CERTIFICATE OF SERVICE I certify that I served the foregoing State Defendants’ Reply in Support of Motion to Dismiss upon all parties herein by filing copies of the same using the ECF System and/or U.S. Mail at Denver, Colorado, this 29th day of October, 2021 addressed as follows: Robert-Lawrence: Perry © 305 W. Magnolia Street, #131 Fort Collins, CO 80521 fort_scout@yahoo.com Plaintiff Pro Se Mark S. Ratner Katherine N. Hoffman Hall & Evans, LLC 1001 17th Street, Suite 300 Denver, CO 80202 ratnerm@hallevans.com hoffmank@hallevans.com Attorneys for City of Fort Collins /s/ Denise Munger Case 1:21-cv-02306-RM-KLM Document 34 Filed 10/29/21 USDC Colorado Page 7 of 7