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HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry V. State Of Colorado, Et Al - 066 - State And Csu Response To Order To Show CauseIN 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; et al., Defendants. RESPONSE TO ORDER TO SHOW CAUSE The State of Colorado and the Board of Governors of the Colorado State University System, on behalf of Colorado State University, respond to the Court’s July 21, 2022 Order to Show Cause [#62] and state as follows: BACKGROUND Plaintiff filed his Petition for Relief [#1] on August 26, 2021, and an Amended Petition for Relief [#24] on September 17, 2021. In the Petition and Amended Petition, Plaintiff expressly named as defendants, among others, the “State of Colorado,” “CSU Board of Governors,” and “Colorado State University.” On October 1, 2021, the Board of Governors of the Colorado State University System, on behalf of itself and Colorado State University, and the State of Colorado move to dismiss the Amended Petition for Relief. Movants argued, among other things, that (1) the Court lacks subject matter jurisdiction over any claims against the State or the University and (2) the University is not a statutory entity capable Case 1:21-cv-02306-RM-KLM Document 66 Filed 08/02/22 USDC Colorado Page 1 of 7 2 of being sued and any claim against the University must be asserted against the Board of Governors. See State Def. Mot. Dismiss [#27]. On October 15, 2021, Plaintiff responded to the Motion to Dismiss and expressly waived any claims against the State or University, stating: Plaintiff is not asserting claims against the ‘State of Colorado’ or ‘Colorado State University’ entities; Plaintiff is asserting claims against [the Board of Governors and] identified individuals, acting in official capacities, under color of law, on behalf of the “State of Colorado”, and/or “Colorado State University”. Response to State Defendants’ Motion to Dismiss [#32] at 11 (emphasis in original) Plaintiff further conceded that “defense counsel is correct that CSU is not an entity capable of suing or being sued in its own name ….” Id. at 19. On February 23, 2022, Plaintiff filed a motion to amend [#39] with a proposed Second Amended Petition for Relief. Because Plaintiff withdrew any prior claims against the State and the University, the caption of the Second Amended Petition identifies the relevant defendants as follows: Each ‘STATE OF COLORADO’ Individual employee, executive officer, and/or administrative official acting personal, individually, and/or in combination …” * * * CSU BOARD OF GOVERNORS, for ‘CSU’, and each individual member of ‘CSU Board of Governors’, for COLORADO STATE UNIVERSITY’ and each ‘doe’ and or named administrators, agents, employees or officials acting personally, individually, and or together ….” Id. at 13 (emphasis added). On April 29, 2022, the Court issued an Order [#49] granting Plaintiff’s Motion to Amend and docketed the Second Amended Petition for Relief [#50]. On Case 1:21-cv-02306-RM-KLM Document 66 Filed 08/02/22 USDC Colorado Page 2 of 7 3 May 13, 2022, the Board of Governors moved to dismiss the Second Amended Petition [#53]. The State and University did not join the motion to dismiss because Plaintiff withdrew his claims against the State and the University, neither the State nor the University are named as defendants in the caption of the Second Amended Petition, and the University may only act through the Board. Plaintiff filed his response [#59] to the motion to dismiss the Second Amended Petition on June 27, 2022. In the response, Plaintiff expressly states— again—that he “is not asserting claims against the ‘State of Colorado’ or ‘Colorado State University’ entities.” Id. at 10 (emphasis in original). The Board of Governors filed a reply [#60] on July 11, 2022. On July 21, 2022, the Court entered an Order [#62] directing the State of Colorado and Colorado State University to show cause why the Court should not direct Plaintiff to seek entry of default and default judgment against them for failing to defend against the Second Amended Petition for Relief. ARGUMENT I. No claims are asserted against the State or the University for default to apply to. The rule governing defaults only applies to a defendant “against whom a judgment for affirmative relief is sought” and who has “failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). Plaintiff, by his own admission, is not seeking a judgment or affirmative relief against the State or the University. See Resp. State Defs’ Mot. to Dismiss [#32] at 11 (“Plaintiff is not asserting claims against the ‘State of Colorado’ or ‘Colorado State University’ entities,” emphasis in original); and id at Case 1:21-cv-02306-RM-KLM Document 66 Filed 08/02/22 USDC Colorado Page 3 of 7 4 19 (“defense counsel is correct that CSU is not an entity capable of suing or being sued in its own name”). And the State and the University previously sought dismissal of Plaintiff’s claims before he clarified that he was not seeking relief from either entity. See State Defs’ Mot. to Dismiss [#27]. The rule governing defaults and default judgments does not apply here. To the extent that the Court believes the State and the Board of Governors have misinterpreted Plaintiff’s statements and actions, the State and the Board on behalf of the University respectfully request leave to respond to the Second Amended Petition before a motion for default is authorized. See Katzsons Bros., Inc. v. United States EPA, 839 F.2d 1396, 1399 (10th Cir. 1988) (noting that “default judgments are not favored by courts”). II. There is no subject matter jurisdiction to enter default. “When a plaintiff seeks default judgment against a defendant who has failed to appear or otherwise defend, the Court must first determine whether it has jurisdiction over the subject matter and the parties.” Onyx Enterprises Int'l Corp. v. Sloan Int'l Holdings Corp., No. 19-CV-2992-DDD-KLM, 2020 WL 1958414, at *6 (D. Colo. Mar. 26, 2020), report and recommendation adopted, No. 19-CV-02992-DDD- KLM, 2020 WL 1955398 (D. Colo. Apr. 23, 2020). As explained in the motion to dismiss [#27], the Court lacks subject matter jurisdiction over any of Plaintiff’s claims that are directed to the State of Colorado or Colorado State University. Initially, The Eleventh Amendment to the United States Constitution generally bars federal court jurisdiction over claims against the State of Colorado and its instrumentalities. U.S. Const. amend. XI; Pennhurst State Sch. & Hosp. v. Case 1:21-cv-02306-RM-KLM Document 66 Filed 08/02/22 USDC Colorado Page 4 of 7 5 Halderman, 465 U.S. 89, 97-102 (1984). And the University is a “state institution of higher education . . . subject to the control of the state.” See Colo. Const. art. VIII, § 5. Further, Colorado State University is not a legal entity capable of being sued. Roberts v. Colo. State. Bd. Of Agric., 998 F.2d 824, 827 (10th Cir. 1993). The University is subject to “the general control and supervision” of the Board of Governors of the Colorado State University System, Colo. Rev. Stat. § 23-31.5-102, and the Board is the “body corporate, capable in law of suing and being sued,” Colo. Rev. Stat. § 23-30-102(1). Plaintiff admits that the University “is not an entity capable of suing or being sued in its own name ….” Response to State Defendants’ Motion to Dismiss [#32] at 19. Finally, Plaintiff is essentially asking the Court to enter a declaration that exclusionary orders issued by the University Police Department are unlawful and that several Colorado court proceedings were improper. Plaintiff previously made this argument, which was rejected, in defending against criminal charges in those Colorado court proceedings. Plaintiff is asking this Court to reverse the decisions of the Colorado courts and overturn his convictions in Perry v. People, 2020CV122 (Colo. Dis. Ct., Larimer Cnty., April 22, 2021) and Perry v. City of Fort Collins, 2019CV205 (Colo. Dist. Ct., Larimer Cnty., March 31, 2020). But only the United States Supreme Court has jurisdiction to review State court judgments. Dist. Of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); 28 U.S.C. § 1257. Case 1:21-cv-02306-RM-KLM Document 66 Filed 08/02/22 USDC Colorado Page 5 of 7 6 CONCLUSION Plaintiff initially asserted claims for relief against the State of Colorado and Colorado State University in his Petition for Relief and Amended Petition for Relief. Plaintiff expressly withdrew those claims when faced with a motion to dismiss. Plaintiff then submitted a Second Amended Petition for Relief, removing the State and the University as named defendants. Relying on Plaintiff’s express statements and actions, the State and the University did not join in the motion to dismiss the Second Amended Petition for Relief. If the Court believes that this reliance was improper, the State and the Board of Governors, on behalf of the University, respectfully request leave to respond to the Second Amended Petition for Relief. DATED this 2nd day of August, 2022. PHILIP J. WEISER Attorney General /s/ Skip Spear ALLISON R. AILER, No. 33008* SKIPPERE SPEAR, No. 32061* Senior Assistant Attorneys General Ralph L. Carr Colorado Judicial Center 1300 Broadway, 6th Floor Denver, CO 80203 (720) 508-6617; (720) 508-6140 allison.ailer@coag.gov; skip.spear@coag.gov *counsel of record Attorneys for the State of Colorado and the Board of Governors of the Colorado State University System Case 1:21-cv-02306-RM-KLM Document 66 Filed 08/02/22 USDC Colorado Page 6 of 7 7 CERTIFICATE OF SERVICE I certify that I served the foregoing Response to Order to Show Cause upon all parties herein by filing copies of the same using the ECF System and/or U.S. Mail at Denver, Colorado, this 2nd day of August, 2022 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/ Jen Davis-Weiser Case 1:21-cv-02306-RM-KLM Document 66 Filed 08/02/22 USDC Colorado Page 7 of 7