HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry V. State Of Colorado, Et Al - 043 - Response To Motion For Leave To Amend PetitionIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:21-CV-02306-RM-KLM
ROBERT LAWRENCE PERRY,
Plaintiff,
v.
THE STATE OF COLORADO,
THE CITY OF FORT COLLINS,
CSU BOARD OF GOVERNORS FOR CSU,
COLORADO STATE UNIVERSITY and
STEVEN VASCONSELLOS, Judicial Administrator;
Defendant.
DEFENDANT THE CITY OF FORT COLLINS’ RESPONSE IN OPPOSITION TO
PLAINTIFF’S MOTION FOR LEAVE TO AMEND (ECF 39)
Mark S. Ratner, Esq. and Katherine N. Hoffman, Esq., of the law firm Hall & Evans, LLC,
on behalf of Defendant, the City of Fort Collins (“City”), submit the following as their Response
in Opposition to Plaintiff’s Motion for Leave to Amend (ECF 39).
I. INTRODUCTION
Pro Se Plaintiff seeks leave to provide the Court and the parties with a third amended
complaint (ECF 39). The Motion, however, fails to comply in any reasonable manner with the
applicable Rules, making a response difficult at best. In particular, the proposed pleading fails to
identify what additions and deletions have been made to the present Complaint, and which have
ballooned the content of the proposed pleading to 77 pages and over 340 paragraphs. Furthermore,
Plaintiff fails to provide any reason for seeking leave.
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The City has filed a separate Motion seeking to strike Plaintiff’s request (ECF 41).
Nonetheless, should Plaintiff’s Motion be considered, the request should still be denied as he
provides no discernable basis regarding an ability to identify allegations which might overcome
the City’s pending Motion to Dismiss (ECF 30). Plaintiff’s request is, therefore, futile.
Furthermore, the motive in seeking to amend the Complaint at this stage of the litigation,
by simply adding 11 pages and 60 paragraphs, can be viewed as nothing more than a dilatory tactic,
which is improper. Plaintiff’s Motion should be denied on this basis as well.
II. FACTS
As set forth in the City’s Motion to Dismiss, the Plaintiff claims he is a resident of Fort
Collins and a Colorado State University (“CSU”) alumnus (ECF 30 at 3, citing to ECF 24 at ¶¶ 4,
31)1. On July 20, 2018, CSU Officer Phil Morris issued Plaintiff an order excluding Plaintiff from
CSU (“exclusionary order”) (ECF 30 at 3, citing ECF 24 at ¶¶ 66-67). On August 7, 2018, after
an appeal hearing, CSU employee Nik Olsen upheld CSU’s permanent exclusionary order against
the Plaintiff (ECF 30 at 3, citing ECF 24 at ¶ 68). Plaintiff appealed that decision, and on August
24, 2018, Mark Gil, Chief of Staff for the CSU President, affirmed the exclusionary order (ECF
30 at 3, citing ECF 24 at ¶¶ 69-70).
On May 17, 2019, CSU Officer Derek Smith issued Plaintiff another exclusionary order
and a trespass citation under C.R.S. § 18-4-504. (ECF 30 at 3, citing ECF 24 at ¶¶144-45). On
July 12, 2019, Officer Smith issued Plaintiff a second trespass citation under F.C.M.C. 17-40(a)
1 The factual allegations are set forth only for purposes of this Motion. The City reserves
the right to deny any of Plaintiff’s factual allegations in any subsequent pleading.
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(ECF 30 at 3, citing ECF 24 at ¶ 145). Following a jury trial, Plaintiff was convicted under the
City’s trespass ordinance and sentenced to 66 days in jail (ECF 30 at 3, citing ECF 24 at ¶ 140).
Plaintiff appealed and the conviction was upheld. (ECF 30 at 3, referring to Perry v. City of Fort
Collins, 2019CV205 (Larimer Cnty. Dist. Court., March 31, 2020) and ECF 27-2).
On August 26, 2021, Plaintiff filed the first version of his Complaint against the City as
well as other Defendants (ECF 1). The claims for relief against the City are not clearly delineated.
It appears, however, Plaintiff attempts claims for: (1) a violation of his 14th Amendment rights
when he was wrongfully convicted under the CSU exclusionary order (ECF 1 at 28, “Second Claim
for Relief”); (2) another violation of his 14th Amendment rights when he was convicted of
violating the Fort Collins Municipal Code (ECF 1 at 30, “Third Claim for Relief”), and; (3) a
violation of his 14th Amendment rights based on the Fort Collins Municipal Code related to
camping (ECF 1 at 32, “Fourth Claim for Relief”).
On September 24, 2021, Plaintiff filed an Amended Complaint, termed “Amended Petition
for Relief.” (ECF 24). The Amended Complaint grew in size from 42 pages to 66 pages, and from
approximately 85 paragraphs to 280 paragraphs (c.f. ECF 1 and 24). Nonetheless, it still contained
the same claims for relief (See e.g., ECF 24 at 51, (“Third Claim for Relief”); at 53, (“Second
Claim for Relief”), and; at 55, (“Fourth Claim for Relief”).
On October 8, 2021, the City filed a Motion to Dismiss Plaintiff’s Amended Complaint
(ECF 30). Plaintiff filed a Response to the City’s Motion on October 25, 2021 (ECF 33), and the
City filed a Reply in Support on November 15, 2021 (ECF 38). The matter, at least with respect
to the City, is now fully briefed.
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On February 23, 2022, Plaintiff filed a Motion for Leave to Amend his Complaint (ECF
39). The proposed pleading has again expanded, to now include 77 pages and over 340 paragraphs
(See ECF 39, at 13-91). Plaintiff’s Motion, however, fails to comply with D.C.COLO.LCivR
15.1(b) on several bases, and therefore on March 11, 2022, the City filed a Motion asking the Court
to strike Plaintiff’s request (See ECF 41)2.
Notwithstanding Plaintiff’s failure to properly identify which allegations have been added,
changed, or deleted, the City posits that Plaintiff’s request should be denied, as he is unable to
provide any allegations which might overcome the City’s Motion to Dismiss.
III. ARGUMENT
A. Leave to Amend is not Absolute.
“Federal Rule of Civil Procedure 15(a) provides that leave to amend a party’s complaint
‘shall be freely given when justice so requires.’” Brereton v. Bountiful City Corp., 434 F.3d 1213,
1219 (10th Cir. 2006). Although leave is “freely given”, it is not absolute. “Our case law
establishes a limitation to this principle: “The district court may dismiss without granting leave to
amend, when it would be futile to allow the plaintiff an opportunity to amend his complaint.”
Brereton, 423 F.3d at 1219, citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). In
addition, “‘undue delay’, ‘dilatory motive,’ and ‘undue prejudice to the opposing party’ are among
the reasons a district court ‘may withhold leave to amend.’” Spreitzer v. Deutsche Bank Nat'l
2 In general, the Motion argues Plaintiff failed to provide a pleading which strikes through
material to be removed or underlines new material. The proposed pleading also fails to comply
with Fed. R. Civ. P. 8(a) with respect to brevity.
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Trust Co., 610 Fed. Appx. 737, 741 (10th Cir. 2015) (brackets omitted) citing U.S. ex rel. Ritchie
v. Lockheed Martin Corp., 558 F.3d 1161, 1166 (10th Cir. 2009).
1. Any amendment of claims against the City is futile.
In its Motion to Dismiss, the City made the following arguments: (1) Plaintiff lacked
standing to seek prospective relief regarding the City’s Trespass Ordinance (Second Claim for
Relief) (ECF 30, at 4); (2) Plaintiff’s as-applied challenge to the City’s trespass ordinance (Second
Claim for Relief) and camping ordinance (Fourth Claim for Relief) are barred by the Statute of
Limitations (ECF 30, at 5); (3) Plaintiff’s wrongful prosecution claim (Third Claim for Relief) is
barred pursuant to Heck v. Humphrey, and the Rooker-Feldman Doctrine (ECF 30, at 6); (4) the
City is entitled to absolute immunity regarding Plaintiff’s wrongful prosecution claim (Third
Claim) (ECF 30, at 7); (5) Plaintiff fails to establish a cognizable Fourteenth Amendment Due
Process violation regarding his Second and Fourth Claims for Relief (ECF 30, at 8); (6) Plaintiff
has not alleged a taking of personal property necessary to establish a Fifth Amendment takings
claim (Second and Fourth Claims); (7) Plaintiff fails to plausibly plead an Eighth Amendment
violation regarding his Second and Fourth Claims (ECF 30, at 18); (8) Plaintiff has not adequately
pled a Fourteenth Amendment equal protection claim regarding his Second and Fourth Claims
(ECF 30, at 20); (9) The City’s trespass ordinance (Second Claim) takes precedence over State
law (ECF 30, at 22), and; (10) Plaintiff fails to establish a conspiracy claim under 42 U.S.C. §§
1985 and 1986 (ECF 20, at 24);
These arguments are more fully set forth in the City’s Motion and are incorporated herein.
Generally, however, the arguments are based on the notion that Plaintiff’s single conviction under
the City’s trespass ordinance took place over two-years prior to the filing of his Complaint, and
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therefore any claims with respect to his conviction are barred by the applicable Statute of
Limitations, and therefore no amendment can cure this deficiency.
Notwithstanding the Statute of Limitations argument, the City also argues Plaintiff’s
wrongful prosecution claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994), and the Rooker-
Feldman Doctrine, Dist. Of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker
v. Fid. Tr. Co., 263 U.S. 413 (1923).
Plaintiff identifies no allegations whatsoever which add any factual basis to his claims, and
which might overcome any of these arguments. His request is, therefore, futile and should be
denied. Should Plaintiff develop arguments not otherwise set forth in his Motion, the City requests
an opportunity to respond accordingly.
2. Plaintiff’s tactics are dilatory.
With respect to the City’s Motion to Dismiss, Plaintiff filed his Response on October 25,
2021, and the matter has been fully briefed since November 15, 2021, when the City filed its Reply
in support. At no time during the pendency of the City’s Motion, did Plaintiff argue he somehow
lacked access to certain factual allegations in order to overcome the City’s arguments, which
required the filing of a new pleading. Likewise, Plaintiff fails to provide any indication as to why
now, four-months after the filing of the Response, he now seeks to amend his Complaint for the
third time, thereby negating the briefing on the City’s Motion and requiring the parties to start
from “square one”. Furthermore, the sheer size of the proposed amendment not only violates Fed.
R. Civ. P. 8(a)(2) regarding brevity, there is also simply no proper explanation for expanding the
proposed pleading to include 77 pages and over 340 paragraphs (See ECF 39, at 13-91), which is
an increase of 25 pages and 255 paragraphs from the initial pleading.
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Inexplicably, Plaintiff also purports to name additional parties (c.f. caption of ECF 24 and
caption ECF 39) by adding, “each Individual (sic) administrative official, agent, employee and or
executive officer, acting personally, individually, and or together, including each individual
member of the city council and Mayor, the City Attorney, the City Manager, Darin Atteberry, Ross
Cunniff, Gerry Horak, Ray Martinez, Kristin Stephens, Ken Summers, Wade Troxell, including
‘doe’ agents, administrators, executives, officers and /or each ‘doe’ appointee administrator, agent,
police officer, official, and ‘City’ employees, namely Brandi Lynn Neito, Dan Callahan, Jill
Hueser, and Ryan Westlind.” None of the individuals are otherwise identified in the Complaint,
and the generalized categories are unsupported by any allegations. There is no specificity with
respect to what any of these additional parties might have done to harm Plaintiff, and therefore no
basis to address the inclusion of these new parties.
IV. CONCLUSION
WHEREFORE, the City of Fort Collins respectfully requests the Court deny Plaintiff’s
Motion in its entirety, and for entry of any other relief deemed just.
Respectfully submitted this 15th day of March, 2022.
s/Mark S. Ratner
Mark S. Ratner, Esq.
Katherine N. Hoffman, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
Phone: 303-628-3300
Fax: 303-628-3368
ratnerm@hallevans.com
hoffmank@hallevans.com
ATTORNEYS FOR DEFENDANT
THE CITY OF FORT COLLINS
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 15th day of March 2022, a true and correct copy of the foregoing
was filed with the Court via CM/ECF and served on all parties of record, as well as the below-
listed party by email:
Robert Lawrence Perry
fort_scout@yahoo.com
Pro se Plaintiff
Allison R. Ailer, #33008
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, CO 80203
Attorneys for The State of Colorado;
Board of Governors of the CSU System,
acting and on behalf of CSU; Colorado State University;
and Steven Vasconcellos
Skip Spear, #32061
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, CO 80203
Attorneys for The State of Colorado;
Board of Governors of the CSU System,
acting and on behalf of CSU; and Colorado State University
s/Sarah M. Stefanick
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