HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry V. State Of Colorado, Et Al - 077 - Plaintiff's Objections To Magistrate RecommendationV.
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Civil Action No. 1 :21-cv-02306-RM-IS~M _______ [Jf P. CLK
Robert-Lawrence: Perry, Plaintiff
Each 'STATE OF COLORADO' Individual employee,
executive officer, and/or administrative official acting
personally, individually, and/or in combination namely,
Alita King, Thomas Lynch, and Daniel McDonald, and
each 'doe' administrator, agent, and/or executive, and
Steven Vasconcellos, and 'doe' judicial administrators;
The 'CITY OF FORT COLLINS', et. al., including each
Individual 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 ~orak, 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;
CSU BOARD OF GOVERNORS, for 'CSU', and each
individual member of the '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, namely,
Scott Harris, Jeff Goetz, Jesse Ihnen, Michael Lohman,
Phil Morris, Derek Smith, Lynn Johnson, Mark Gill, and
Nie Olsen, and each heir appointee and/or official; each
Individual Jointly and Severally Liable as Co-Defendants.
PETITIONER'S OBJECTION TO RECOMMENDATION
PETITIONER'S OBJECTION TO RECOMMENDATION
1
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 1 of 21
SUMMARY ARGUMENT
Petitioner specifically objects to the magistrate's recommendation of dismissal on
the following grounds that she committed clear errors of law and avoidance of the facts:
(1) The magistrate,inappropriately refuses to acknowledge individual defendants as
necessary parties to the case contrary to FedR.Civ.P. Rule 19 (a)(1)(A). Therefore, all
individual defendants were dismissed in clear error of the law.
(2) The magistrate committed clear error by her misinterpreting Petitioner's Petition
for Relief and Motion for Declaratory Judgment as a complaint subject to dismissal.
(3) The magistrate committed prejudicial error by waiting to rule upon Petitioner's
Motion for Assignment of Counsel until issuing the recommendation, thus prejudicing
Petitioner's opportunity to further amend the Petition for Relief with legal assistance.
(4) The magistrate committed clear error of law by asserting authority to review the
Defendants' motions to dismiss in violation of 28 U.S.C. § 636(b)(1)(A).
(5) The magistrate committed clear error by her misinterpreting Petitioner's response
to the State's 'Motion to Dismiss' as his voluntary dismissal of claims against individual
state defendants in their official and personal capacities and an admission by Petitioner
that state defendant were entitled to sovereign immunity and were excused.
(6) The magistrate committed prejudicial error by her granting sovereign immunity to
state defendants including individual defendants in their official and personal capacities,
and specifically by dismissing the 'State of Colorado' and Colorado State University as
defendants 12 days before issuing her full recommendation.
2
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 2 of 21
(7) The magistrate committed clear of law and prejudicial error by determining that
and that no continuing injury exception existed to the statute of limitations, thus barred
Petitioner relief, and Petitioner did not adequately state claims for relief; to wit:
Petitioner seeks declaratory and injunctive relief by Court decision whether:
a. Colorado State University 'exclusionary order' policy is unconstitutional; and,
b. Whether CSU permanent 'exclusionary orders' are unconstitutional; and,
c. Whether C.R.S. § 18-9-109 (1) prohibits exclusion from CSU campus; and,
d. Whether the City trespass ordinance applies to state property like CSU; and
e. Whether F.C.M.C. Sec. 17-1 (3) and (4) are unconstitutional as applied; and,
f. Whether Fort Collins 'camping' ordinances are facially unconstitutional; and,
g. Whether C.R.S. § 18-4-201(1) exempts public property from trespass laws.
(8) The magistrate committed clear of law and prejudicial error by determining that
Petitioner failed to adequately state claims for relief under Title 42 U.S. Code§§ 1981,
1983, 1985, and 1986 for violations of his Fifth, Eighth, and 14th Amendment rights.
(9) The magistrate committed clear of law and prejudicial error by determining that
Petitioner lacks any private interest right to conduct activities of daily living and private
interest right of, access to public places.
(10) The magistrate committed clear of law and prejudicial error by dismissing claims
for declaratory judgment by refusing to acknowledge original subject matter jurisdiction
and incorrectly applied supplemental jurisdiction by determination that Petitioner failed
to state claims for relief against the City of Fort Collins.
3
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 3 of 21
SUMMARY STATEMENT
CSU 'exclusionary orders' are unconstitutional as 'bill of pains and penalties' by
immediately banning Plaintiff, and unconstitutional as cruel and unusual punishment by
permanently banning Plaintiff, and unconstitutional by denying Him equal protection of
the law, and depriving Plaintiff of due process. CSU 'exclusionary orders' are unlawful
because they violate C.R.S. § 18~9-109 (1), which prohibits denying access and use of
CSU; and contrary to C.R.S. § 18-4-201, which recognizes that the public has license
and privilege to access and use public property. Therefore, the 'trespass' prosecution,
convictions, and imprisonment of Plaintiff were unconstitutional and unlawful; as such,
Plaintiff is Entitled to Declaratory and Injunctive relief, and Just Compensation.
Defendants, by and through agents, employed _officers, and elected officials are
engaged in a campaign against 'homeless' people. CSU 'exclusionary orders' and the
verbal 'trespassed' orders issued by police and enforced with citations of 'trespass' or
'camping' are an obvious attempt to re-enact the 'vagrancy' ordinances and statutes,
which were determined to be unconstitutional over fifty (50) years ago.
The City of Fort Collins ordinances against 'camping' and 'trespass' are unlawful
and unconstitutional by violating the Eighth Amendment prohibition against cruel and
unusual punishment, and by violating the Fifth and Fourteenth Amendment prohibition
'
against depriving Plaintiff the right of due process and equal protection of the law by
denying Plaintiff of His rights and private property interests and His rights and interests
in equal access and use of public places and places open to the public.
4
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 4 of 21
The City ordinances prohibiting 'camping' in the City are unconstitutional.
Plaintiff asserts claims that the City ordinances prohibiting 'camping' on public or
private property are both unconstitutionally vague and over-broad on their face, and as
applied in this case, since they generally prohibit living in Fort Collins. Also, Plaintiff
asserts that the City ordinances prohibiting 'camping' arE: discriminatory because they
are only enforced upon 'homeless' people, like Plaintiff, as part of a City policy to rid
Fort Collins of 'homeless' people. Plaintiff asserts that the City ordinances prohibiting
'camping' are unconstitutional because they impose cruel and unusual punishment of
excessive fines or (6) six months in jail for conducting activities of daily living.
Plaintiff was charged (7) seven times with 'camping'; most recently, Plaintiff was
cited with 'camping'; Municipal Court Case: FC-20-4935-MD, which was dismissed on
September 17, 2020; therefore, the statute of limitation has not expired.
The City of Fort Collins ordinance prohibiting "camping" is over-broad and vague
due the lack of guidance in the enforcement that grants police unlimited discretion to
use it to discriminate against 'homeless' people, such as Plaintiff. The Fort Collins city
ordinances against 'camping' on public or private property effectively renders everyone
subject to criminal penalties for living in Fort Collins. Yet, the City ordinance against
'camping' is applied exclusively against indigent, 'homeless' people, such as Plaintiff.
Since Plaintiff intends to continue to live in Fort Collins, he is subjected to continual
threat of being jailed for exercising his equal and fundamental right to live and be in
public places. Plaintiff has 'standing' to assert his 14th Amendment rights.
5
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 5 of 21
The CSU exclusionary order policy is vague and over-broad, as interpreted and
enforced, in violation of the Due Process Clause of the Fourteenth Amendment.
The challenged CSU 'exclusionary order' policy, as interpreted, and enforced by
CSU campus police is over-broad and vague and fails to provide adequate notice to
enable people of ordinary intelligence to understand what conduct is prohibited.
The CSU exclusionary order policy as interpreted, and enforced by CSU campus
police, fails to establish adequate guidelines to govern CSU police officers, thereby it
authorizes and encourages CSU campus police to act in arbitrary and discriminatory
practices in enforcement against Plaintiff, and others similarly situated.
CSU 'exclusionary orders' are unlawful since they violate 42 U.S.C. § 1983 et.
seq. by denying equal protection of the law in violation of the 14th Amendment.
CSU 'exclusionary orders' are enforced with criminal citations for trespass.
Defendants have enforced and intend to continue to enforce CSU 'exclusionary
orders' in the unconstitutional and unlawful manner as described by Plaintiff.
Defendants have acted, and are threatening to act, under color of state law to
deprive Plaintiff of lawful equal access and use of CSU premises and facilities open to
the public, thereby depriving Him of equal protection of the law.
Plaintiff has suffered, and continues to suffer, actual and permanent irreparable
injury due to enforcement of the CSU 'exclusionary order' issued against Him, as was
reported in CCIC as a 'permanent civil restraining order'. Plaintiff has no other plain,
adequate or speedy remedy at law, so Plaintiff is entitled to Injunctive relief.
6
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 6 of 21
STATEMENT OF THE CASE
Plaintiffs claims are grounded upon his Fourteenth Amendment rights; that: "No
state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws."
Plaintiff asserts that CSU 'exclusionary orders' are unlawful because they allow
CSU police to commit a crime; denying lawful access and use of CSU premises in
violation of C.R.S. § 18-9-109 (1). CSU 'exclusionary orders' are unconstitutional as
supported by precedent, in Watson v. Board of Regents of University of Colorado 512
P.2d 1162, in the Colorado _Supreme Court, and Dunkel v. Elkins, 325 F. Supp. 1235,
by the United States District Court. Permanent CSU 'exclusionary orders' are also
unconstitutional as 'bills of pains and penalties', and cruel and unusual punishment.
C.R.S. § 18-9-109 (1) states:
(1) "No person shall, on or near the premises or facilities of any educational institution,
willfully deny to students, school officials, employees, and invitees:
(a) Lawful freedom of movement on the premises;
(b) Lawful use of the property or facilities of the institution;
(c) The right of lawful ingress and egress to the institution's physical facilities."
C.R.S. § 18-4-201 defines what misconduct would constitute "enters unlawfully"
or "remains unlawfully", and states: "A person who, regardless of his or her intent,
enters or remains in or upon premises that are at the time· open to the public does
so with license and privilege unless the person defies a lawful order not to enter
or remain, personally communicated to him or her by the owner of the premises or
some other authorized person."
7
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 7 of 21
CONSTITUTIONAL REVIEW STANDARD
The United States Constitution Amendment XIV, Section 1 states:
"No state shall make or enforce any law which s~all abridge the privileges
or immunities of citizens of the United States; nor shall any state deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws."
The Mathews balancing test requires balancing the Riglit, Liberty or Interest in
property, and the probability of erroneous deprivation of that interest, compared with a
legitimate public interest that government seeks to serve by such action or policy that
deprives the Liberty, Rights or property Interests of such individuals by such action or
policy. See Mathews v. Eldridge, 424 US 319, 332, 96 S Ct 893, 47 L Ed 2d 18 (1976).
Plaintiff submits these issues, including whether CSU 'exclusionary order' policy,
Fort Collins 'camping' and 'trespass' ordinances, as written and applied, are lawful:
Whether CSU 'exclusionary orders', City 'camping'. and 'trespass' ordinances, as
written and/or applied, denies, substantially or unreasonably interferes with Plaintiff in
the practical exercise of his rights guaranteed by the U.S. Constitution.
Whether the challenged exclusionary order and ordinances as -written or applied
are not reasonably related to achieving a legitimate public interest, or disproportionately
severe in relation to the affect of denying or impairing Plaintiffs constitutional rights.
Whether the challenged exclusionary order and City ordinances as written or
applied denies, impairs or fundamentally infringes upon Plaintiffs constitutional rights or
His Inalienable Personal Interests in 'conducting activities of daily living', and whether
such infringement of His Constitutional and Inalienable Rights constitutes a 'Taking'.
8
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 8 of 21
ARGUMENT
Plaintiff's claims are grounded upon his Fourteenth Amendment rights; that: "No
state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor sh·a11 any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws."
Plaintiff has stated facts to support claims asserted under Title 42 U.S. Code §§
1981, 1983, 1985, and 1986 to prove that individual Defendant's, acting under color of
law, did knowingly and willfully, deprive Plaintiff of his lawful individual right of access
and use of CSU campus by issuing unconstitutional 'exclusionary orders' in violation of
C.R.S. § 18-9-109(1). Defendant's have not denied that CSU is public property.
C.R.S. § 18-4-201 defines what misconduct would constitute "enters unlawfully"
or "remains unlawfully", and states: "A person who, regardless of his or her intent,
enters or remains in or upon premises that are at the time open to the public does
so with license and privilege unless the person defies a lawful order not to enter or
remain, personally communicated to him or her by the owner of the premises or some
other authorized person."
Because C.R.S. § 18-'4-201 states that the public have license and privilege to
enter and remain on property open to the public. Also, the municipal court issued a
judgment and sentencing order that stated Plaintiff was prohibited from going to CSU for
one year from December 1, 2020. Thus, Plaintiff asserts that the statute of limitations
extended to December 1, 2022; so, the Court does have subject matter jurisdiction to
grant relief under Title 42 U.S Code§§ 1981, 1983, 1985, and 1986.
9
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 9 of 21
ARGUMENT
Defendant individuals are not entitled to sovereign immunity.
The United States Supreme Court decision in Ex parte Young, 209 U.S. 123
(1908), does provide an additional exception to immunity in certain suits for prospective
declaratory judgment or injunctive relief against state officials. Under Ex parte Young
and its progeny, the Eleventh Amendment will not bar a suit against a state official
providing that the plaintiff seeks (1) only declaratory or injunctive relief that is properly
characterized (in substance) as forward looking relief rather than money damages; (2)
for an ongoing violation of federal law; (3) aimed at state officers acting in their official
capacities, not the state itself. Hill v. Kemp, 478 F.3d 1236, 1255-56, 1259 (10th Cir.
2007).
C.R.S § 23-30-102 (1) identifies the CSU Board of Governors authority; stating:
"The board of governors of the Colorado state university system is a body corporate,
capable in law of suing and being sued; ... having duties and powers to control,
manage, and direct the fiscal and all other affairs of the Colorado state university
system and the entities it governs; and of causing to be done all things necessary to
carry out the provisions of this article."
Title 42 U.S. Code§ 1981 (a) Statement of equal rights:
"All persons within the jurisdiction ofthe United State~ shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be subject
to like punishment, pains, penalties, taxes, licenses, and exactions of every kind,
and to no other."
Further,
(c) Protection against impairment
The rights protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State law.
10
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 10 of 21
ARGUMENT
28 U.S.C. § 636 (b)(1) prohibits a magistrate from determining a Fed.R.Civ.P.
12(b)(6) motion to dismiss. Therefore. the magistrate acted without legal authority to
review the motions to dismiss and issue a recommendation.
Petitioner objects to the conduct of the magistrate in reviewing the Motions to
Dismiss and issuing a recommendation to dismiss all claims for relief. Such action is
contrary to COURT ORDERS that were not vacated.
In the recommendation, the magistrate states pursuant to 28 U.S.C. § 636(b)(1)
(A) and D.C.COLO.LCivR 72.1 (c), the Motions [#51, #53] have been referred to the
undersig·ned for a recommendation regarding disposition. See [#52, #54]. Assignment
of the magistrate in this case is in clear error of law and contrary to court orders.
The August 27, 2021 Docket entry 6 states:
MINUTE ORDER Re:[Dkt 5]. Consent/Non-Consent Form to Jurisdiction of
Magistrate Judge filed by Robert-Lawrence Perry. IT IS HEREBY ORDERED that this
case shall be assigned to a District Judge under D.C.COLO.LCivR 40.1 (c)(B) and
D.C.COLO.LCivR 40.1(a), by Magistrate Judge Kristen L. Mix on 08/27/2021. (alave,)
(Entered: 08/27/2021) [Dkt. 6]
ORDE.R REFERRING CASE to Magistrate Judge ~risten L. Mix. Pursuant to 28
U.S.C. § 636(b)(1 )(A) and (B) and Fed. R. Civ. P. 72(a) and (b), this case is referred to
the assigned United States Magistrate Judge to (3) hear and determine pretrial matters,
including discovery and other non-dispositive motions. [Dkt. 9]
11
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 11 of 21
ARGUMENT
State Defendant's cannot 'exclude' banish anyone from public property.
CSU Defendant's assert that the 'trespass' ordinance may be applied to public
property to permanently ban anyone; similarly, State Defendant's assert that the state
trespass statute may be applied to public property to permanently ban ·anyone; these
assertions presume that banishment is lawful, which is proven false by tti'ese cases:
People v. Blakeman, 170· Cal. App. 2d 596, 339 P.2d 202 (Dist Ct. App. 1959);
the California Court of Appeals overturned the county court order probation revocation
based upon violation of a district court order of banishment as a condition of probation.
The district court_ order of probation on condition of banishment was determined to be
void citing: In re Scarborough, 76 Cal.App.2d 648 [ 173 P.2d 825), an order suspending
sentence on a condition of banishment for two years was deemed the granting of
probation upon a void condition.
Said the court: "The same principle which prohibits the banishment of a criminal
from a state or from the United States applies with equal force to a county or city.
The old Roman custom of ostracizing a citizen has not been adopted in the United
States. The so-called 'floating sentence,' ['suspended sentence or 'deferred judgment']
too frequently resorted to in some inferior courts, falls in the same category. There is
no statute in California authorizing such judgments." (P. 650. See also the authorities
cited on p. 649 of 76 Cal.App.2d, and 15 Am.Jur. 112, Crim. Law,§ 453.)
Ex parte Scarborough, 76 ·cal. App. 2d 648, 173 P.2d 825 (Dist. Ct. App. 1946);
The probation condition contained in the judgment that it would be suspended in part if
the defendant left Stockton and San Joaquin County and remained away for two years,
is, in effect, an unlawful increase of.punishment by banishment not provided'by statute,
and therefore void. (People v. Baum, 251 Mich. 187 [ 231 N.W. 95, 70 A.LR: 98); Ex
parte Sheehan, 100 Mont. 244 [ 49 P.2d 438, 442); People v. Lopez, 81 Cal. App. 199,
203 [ 253 P. 169); 24 C.J.S. § 1991, p. 1216.) In holding that a condition of a judgment
requiring banishment from the state is illegal and void, the court said in the Baum case,
supra, that: "To permit one state to dump its convict criminals into another would entitle
the state believing itself injured thereby to exercise its police and military power, in the
interest of its own peace, safety, and welfare, to repel such an invasion. It would tend to
incite dissension, provoke retaliation, and disturb that fundamental equality of political
rights among the several states which is the basis of the Union itself. Such a method of
punishment is not authorized by statute, and is impliedly prohibited by public policy."
Banishment is not acknowledged as lawful punishment in any state.
12
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 12 of 21
The City enforced CSU 'exclusionary orders' applying the trespass ordinance to
public property under presumption that CSU has the authority to deny access to anyone
for any reason, such as: 'feeding squirrels'. The United States District Court issued the
following opinion over 50 years ago in Dunkel v. Elkins, 325 F. Supp. 1235 (1971).
"Defendants urge that plaintiff's use of public land and property is a "privilege
withdrawable by the State at any time for any reason." We do not agree. While the
State undoubtedly possesses power to control the use made of its premises, it cannot
do so without regard to the Constitution."
Also, this point of law was specifically.addressed in Watson v. Board of Regents
of University of Colorado 512 P.2d 1162, when the Colorado Supreme Court issued
the opinion that:
"The Colorado Supreme Court has labeled the access and use of public facilities,
such as parks, as a "fundamental" right.
The University of Colorado opened its doors to the public. Accordingly, on this
basis, we hold that a non-student's right to access to University functions and
facilities, which are open to the public at-large, cannot be permanently denied
without due process of law under the Fourteenth Amendment. .. " Adding:
"Plaintiff urges that the University's exclusion order was void because it
issued without procedural due process, i.e., a hearing was not afforded plaintiff
prior to his exclusion from University property. We agree." This was the opinion in
People in Interest of J.M., 768 P.2d 219, 221 (Colo. 1989).
This case was cited in a 2017 Colorado District Court case:
The City and County of Denver Parks and Recreation Department implemented a
temporary policy, to ban someone for up to (90) days for using drugs in Denver parks.
Denver Police used this city parks directive to issue an exclusionary order banning the
defendant for smoking marijuana in Denver's City park. The court ruled in favor of
the defendant's individual interests in access and use of public property.
13
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 13 of 21
The United States Supreme Court has stated the void-for-vagueness doctrine
requires that the penal statute (ordinance) define the offense with sufficient definiteness
that ordinary people can understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461
U.S. 352, 357, 103 s.c;;t. 1855, 1858, 75 L.Ed.2d 903 (1983).
Plaintiff relies upon Robinson, and Pottinger v. City of Miami, 810 F.Supp. 1551
(S.D.Fla.1992), where the district court held that the City practice of arresting homeless
individuals for such basic activities as sleeping and eating in public places constitutes
cruel and unusual punishment in violation of the Eighth Amendment. See also Johnson
,.
v. City of Dallas, 860 F.Supp. 344, 350 (N.D.Tex.1994) (holding that "sleeping in public
ordinance as applied against the homeless is unconstitutional").
The 8th Amendment states: "Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusua~ punishments inflicted." U.S. Const. Amend. VIII.
In addition to "limit[ing] the kinds of punishment that ·can be imposed on those convicted
of crimes," and "proscrib[ing] punishment grossly disproportionate to the severity of the
crime," the Eighth Amendment also "imposes substantive limits on what can be made
criminal and punished as such." Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401,
1410, 51 L.Ed.2d 711 (1977) (internal citations omitted). A distinction exists between
applying criminal laws to punish conduct, which is constitutionally permissible, and use
of the law by applying them to punish status, which is not. See Robinson v. California,
370 U.S. 660,666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962)
14
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 14 of 21
ARGUMENT
The magistrate committed numerous clear errors of,/aw and preiudicial findings
of fact that Petitioner specifically obiects on the following grounds:
(1) The magistrate inappropriately refuses to acknowledge individual defendants as
necessary parties to the case contrary to FedR.Civ.P. Rule 19 (a)(1)(A). Therefore, all
individual defendants were dismissed in clear error of the law.
(2) The magistrate committed prejudicial error by waiting. to rule upon Petitioner's
Motion for Assignment of Counsel until issuing the recommendation, thus prejudicing
Petitioner's opportunity to further amend the Petition for Relief with legal assistance.
(3) The magistrate committed clear error by her misinterpreting Petitioner's response
to the State's 'Motion to Dismiss' as his voluntary dismissal of claims against individual
state defendants in their official and personal capacities and an admission by Petitioner
that state defendant were entitled to sovereign immunity and were excused.
(4) The magistrate failed to apply the appropriate standard of review for Petitioner as
pro se and read the pleading liberally; instead, the magistrate applied a strict standard
of review and narrow interpretation of the constitutional merit of Petitioner's claims.
(5) The magistrate committed prejudicial error by her granting sovereign immunity to
state defendants including individual defendants in their official and personal capacities,
and specifically by dismissing the 'State of Colorado' and Colorado State University as
defendants 12 days before issuing her full recommendation. The machinations of the
magistrate prejudiced the rights of Petitioner to contest her legal maneuvers.
15
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 15 of 21
Petitioner filed a Petition tor-Relief. which was a motion for declaratory iudgment
that was to be granted or denied, not a complaint subiect to dismissal.
(6) Petitioner specifically objects to the treatment of his Petition for Relief and motion
for declaratory judgment being treated as ·a complaint subject to dismissal. Petitioner
was not seeking compensatory damages, so there were no factual issues in dispute, it
was a question of law only, so the case would involve no trial management procedures
and the involvement and participation of the magistrate was not proper. [0kt. 1]
(7) The magistrate committed clear error of law and prejudicial error by determining
that and that no continuing injury exception existed to the statute of limitations, thus
barred Petitioner relief, and Petitioner did not adequately state claims for relief.
(8) The magistrate committed clear of law and prejudicial error by determining that
Petitioner failed to adequately state claims for relief under Title 42 U.S. Code§§ 1981,
1983, 1985, and 1986 for violations of his Fifth, Eighth, and 14th Amendment rights.
(9) The magistrate committed clear of law and prejudicial error by determining that
Petitioner lacks any private interest right to. conduct activities of daily living and private
interest right of access to public places.
(10) The magistrate committed clear of law and prejudicial error by dismissing claims
for declaratory judgment by refusing to acknowledge original subject matter jurisdiction
and incorrectly applied supplemental jurisdiction by determination that Petitioner failed
to state claims for relief against the City of Fort Collins and that no constitutional claims
would apply to the Board of Governors improperly granting then absolute immunity.
16
PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 16 of 21
(11) The magistrate committed clear error of law and prejudicial error by dismissing
claims by erroneously finding that the Eleventh Amendment bars Plaintiffs Claim One
(regarding the CSU exclusionary policy), and Claim Two (regarding Fifth, Eighth, and
Fourteenth Amendment violations) asserted against the Board of Governors.
(12) The magistrate committed clear of law and prejudicial error by dismissing claims
with prejudice; erroneously finding that Petitioner lacks personal property interests in
access to public places; thus concluding that no constitutional violation occurred.
(14) The magistrate committed clear error of law and prejudicial error by dismissing
claims with prejudice erroneously finding that Petitioner abandoned his 8th Amendment
claim with respect to the trespass ordinance and that Petitioner failed to state factual
grounds for his claim for declaratory judgment of the City of Fort Collins trespass and
camping ordinances.
(15) The magist_rate committed .clear error of law and prejudicial error by dismissing
claims with prejudice by erroneously finding that Petitioner had failed to state factual
grounds to support his claim of violation of his 14th Amendment right to due process
regarding the City of Fort Collins·trespass and camping ordinances.
(16) The magistrate committed clear error of law and prejudicial error by erroneously
finding that Petitioner had failed to state factual grounds to .support his claim that the
City of Fort Collins camping and trespass ordinances abridge his constitutional right to
conduct activities of daily living and have access to public places, specifically his right of
access to CSU campus and to the public transportation facilities.
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PETITIONER'S OBJECTION TO RECOMMENDATION
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(17) The magistrate committed clear error of law and prejudicial error by dismissing
claims with prejudice by applying the incorrect standard and erroneously finding that
Petitioner's claims for declaratory judgment of facial and as applied of the Fort Collins
city ordinances against camping and trespass was time barred.
(18) The magistrate committed clear error of law and prejudicial error by dismissing
claims with prejudice by applying the incorrect standard and erroneously finding that
Petitioner's claims for declaratory judgment of Colorado State University 'exclusionary'
order policy was time barred.
(19) The magistrate committed clear error of law and prejudicial error by erroneously
finding that Petitioner had failed to state factual grounds to support his claim that the
CSU police permanent exclusionary order and permanent restraining order prohibiting
Petitioner from access to CSU campus and public transportation facilities violated his
Fourteenth Amendment rights; that: "No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States;" Petitioner stated
facts in support of his claim that the State trespass statute was enforced to deny him
access to CSU campus and public transportation facilities.
C.R.S. § 18'-4-201 defines what misconduct would constitute "enters unlawfully"
or "remains unlawfully", and states: "A person who, regardless of his or her intent,
enters or remains in or upon premises that are at the time open to the public does so
with license and privilege unless the person defies a lawful order not to enter or
remain, ... "
Petitioner's claim for declaratory judgment simply asked this Court to determine
that Petitioner is entitled to access to public property, specifically CSU campus.
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PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 18 of 21
Title 42 U.S.C.' § 1985(3) states, in pertinent part: "If two or more persons in any
State or Territory conspire for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal prote·ction of the laws, or of equal privileges
and immunities under the laws;
Petitioner asserts that C.R.S. § 18-4-201 acknowledges his individual right and
privilege of access to public places and his immunity from prosecution for trespass on
public property and that such prosecution and threat of future prosecution deprives him
of his right of equal privileges and immunities guaranteed by 42 U.S.C. § 1985(3).
(20) The magistrate .committed clear error of law and prejudicial error by dismissing
Petitioner's claims with prejudice by erroneously finding that Petitioner failed to provide
factual support for his 42 U.S.C. § 1985(3) and § 1986 claims.
(21) The magistrate committed clear error of law and prejudicial error by citing cases
which did not support the magistrate's findings of fact and conclusions of law. Just by
way of example: the magistrate cites Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.
1993) as support for the finding and conclusion that Petitioner failed to provide factual
support for his 42 U.S.C. § 1985(3) and § 1986 claims. However, the court in Tilton,
found that "§ 1985(3) covers only conspiracies 'aimed at interfering with rights that are
protected against private, as well as official, encroachment.'" See Tilton, 6 F.3d at 686.
Unlike the facts in this case where the defendants have acted officially and under color
of law, the court in Tilton determined that his claims failed because the actions were
attributable to private individuals not officials acting under color of law.
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PETITIONER'S OBJECTION TO RECOMMENDATION
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" SUMMARY CONCLUSION
Plaintiff has stated facts to support claims asserted under Title 42 U.S. Code §§
1981, 1983, 1985, and 1986 to prove that individual Defendant's, ,acting under color of
law, did knowingly and willfully, deprive Plaintiff of his lawful individual right of access
and use of CSU campus by issuing 'exclusionary orders' ruled unconstitutional over 50
years ago by the Colorado Supreme Court in Watson v. Board of Regents of University
of Colorado 512 P.2d 1162, and by the United States District Court in Dunkel v. Elkins,
325 F. Supp. 1235 (1971). Such denial of equal access to university property is also
considered a violation of C,.R.S. § 18-9-109(1).
CSU police enforced the permanent 'exclusionary order' with 'trespass' citations
under C.R.S. § 18-4-504, though C.R.S. § 18-4-201 states that the public has license
and privilege to enter and remain on property open to the public. Further, CSU police
cited Petitioner with 'trespass' under the City ordinance that grants police authority to
permanently deny access to public property, which conflicts with C.R.S. § 18-4-201, so
the City is not entitled to assert home-rule status. Petitioner continues to be subject to
permanent'exclusion from CSU, therefore, he is entitled to prospective relief.
Wfierefore, Petitioner respectfully requests the Court deny the magistrate's
recommendation and conduct de novo review under 28 U.S.C. § 636(b)(1)(C).
Dated: This 27th day of February 2023.
Signed by: s/s: 'Robert-Lawrence: 'Perry, Man
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PETITIONER'S OBJECTION TO RECOMMENDATION
Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 20 of 21
CERTIFICATE OF SERVICE
I, Robert-Lawrence: Perry, Plaintiff, hereby certify that I sent a complete, correct
and true copy of the foregoing Objection to Reco~mendation addressed to each
Attorney of Record for all Defendants by first-class U.S. Mail, postage pre-paid, and/or
by emailing documents, such as agreed by consent to the following:
Attorneys for Defendants,
The City of Fort Collins, et al.
Darin Atteberry, City Manager
300 La Porte Ave., (City Hall)
Fort Collins, CO 80522
Phone: (970) 221-6520
hoffmank@hallevans.com
ratnerm@hallevans.com
The State of Colorado, et. al.
for: Steven Vasconcellos
1300 Broadway, 10th Floor
Denver, Colorado 80203
Phone: (720) 508-6000
Carman.VanPelt@coag.gov
Dated this: February 27, 2023
Signed pursuant to C.R.S. 4-3-402 by,
Robert-Lawrence: Perry, Trustee for:
4786 McMurry Ave., Unit 242
Fort Collins, Colorado 80525
fort_scout@yahoo.com
Phone: (970) 980-1849
Colorado State University, et, al.
Attn.: Jannine Mohr, Attorney
1300 Broadway, 10th Floor
Denver, Colorado 80203
Phone: (720) 508-6000
Skip.Spear@coag.gov
Allison.Ailer@coag.gov
CSU Board of Governors, for:
Colorado State University, et al.
555 seventeenth St., Suite 1000
Denver, Colorado 80201
Phone: (970) 491-6425
Denise. Munger@coag.gov
ROBERT LAWRENCE PERRY, Person
PETITIONER'S OBJECTION TO RECOMMENDATION
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