HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry V. State Of Colorado, Et Al - 073 - Order Re Order To Show Cause 62- 1 -
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-02306-RM-KLM
ROBERT LAWRENCE PERRY,
Plaintiff,
v.
STATE OF COLORADO,
CITY OF FORT COLLINS,
CSU BOARD OF GOVERNORS,
COLORADO STATE UNIVERSITY
STEVEN VASCONCELLOS, Judicial Administrator, and
DOE AGENTS,
Defendants.
______________________________________________________________________
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Court’s Order to Show Cause [#62],1 issued
on July 21, 2022. Plaintiff proceeds as a pro se litigant in this matter.2
As recited in the Order to Show Cause [#62], on April 29, 2022, the Court issued
an Order [#49] accepting Plaintiff’s Second Amended Complaint [#50] for filing and
construing this complaint as asserting claims against the State of Colorado, the City of
1 “[#62]” is an example of the convention the Court uses to identify the docket number assigned
to a specific paper by the Court’s case management and electronic case filing system (CM/ECF).
This convention is used throughout this Order and Recommendation.
2 This Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S.
519, 520-21 (1972). In doing so, the Court should not be the pro se litigant’s advocate, nor should
the Court “supply additional factual allegations to round out a plaintiff’s complaint or construct a
legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant
must follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276,
1277 (10th Cir. 1994).
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Fort Collins, the CSU Board of Governors, Colorado State University, and Steven
Vasconcellos. Defendants City of Fort Collins, CSU Board of Governors, and Steven
Vasconcellos responded to the Second Amended Complaint [#50] by filing Motions to
Dismiss [#51, #53].
The Order to Show Cause [#62] concerned only Defendants State of Colorado and
Colorado State University, neither of which responded to the Second Amended Complaint
[#50]. On September 16, 2021, counsel had entered their appearances on behalf of the
State of Colorado, Colorado State University, CSU Board of Governors, and Steven
Vasconcellos. Notices [#20, #21]. On October 1, 2021, these counsel filed a Motion to
Dismiss [#27] on behalf of all four of these Defendants in response to Plaintiff’s Amended
Complaint [#24]. That Motion to Dismiss [#27] was denied as moot when the Second
Amended Complaint [#50] was accepted for filing. See Order [#49].
As noted in the Court’s Order [#49] accepting the amended complaint, Plaintiff’s
proposed Second Amended Complaint [#50] was not entirely clear regarding the named
Defendants, and the Court therefore clarified that, in its view, the Second Amended
Complaint [#50] was asserted against only the State of Colorado, the City of Ford Collins,
the CSU Board of Governors, Colorado State University, and Steven Vasconcellos. No
party filed an objection to the Order [#49] to dispute the Court’s interpretation of who the
named Defendants were. Yet, as noted, only three of the five Defendants answered or
otherwise responded to the Second Amended Complaint [#50], despite all Defendants
being represented by counsel. Thus, the Court issued the present Order to Show Cause
[#62] as to why Defendants State of Colorado and Colorado State University had not done
so.
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In their Response [#66] to the Order to Show Cause [#62], Defendants State of
Colorado and Colorado State University direct the Court’s attention to Plaintiff’s prior
Response [#32] to the Motion to Dismiss [#27] the Amended Complaint [#24] (which was
denied as moot, Order [#49] at 9), where he stated: “Plaintiff is not asserting claims
against the ‘State of Colorado’ or ‘Colorado State University’ entities . . . .” Response
[#32] at 11 (emphasis in original). Nevertheless, in the Second Amended Complaint
[#50], and despite any wording potentially to the contrary in the caption, Plaintiff again
explicitly named “Defendant, Colorado State University (CSU)” and “Defendant, ‘STATE
OF COLORADO’” under the list of “Parties.” Second Am. Compl. [#50] at 3. These
statements are what caused the Court to determine in Order [#49] that Plaintiff was,
indeed, suing these two Defendants. As noted above, neither Plaintiff nor any Defendant
objected to this interpretation. However, in his Response [#59] to the currently pending
Motion to Dismiss [#53] filed by Defendants Steven Vasconcellos and the CSU Board of
Governors, Plaintiff again states: “Plaintiff is not asserting claims against the ‘State of
Colorado’ or ‘Colorado State University’ entities . . . .” Response [#59] at 10 (emphasis
in original). Thus, it appears that the language in the Second Amended Complaint
regarding these two Defendants was a drafting error.
In short, although this issue could have easily been resolved by the parties
following the Court’s Order [#49] interpreting the Second Amended Complaint [#50], it is
clear now that Plaintiff did not intend to assert claims against Defendants State of
Colorado and Colorado State University, both based on his explicit statement in his
Response [#59] to the Motion to Dismiss [#53] and by the fact that he did not file any
opposition to Defendants State of Colorado and Colorado State University’s Response
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[#66] to the Order to Show Cause [#62]. However, because these two Defendants are
formally named in the Second Amended Complaint [#50] and remain in the case heading
on the electronic docket,
IT IS HEREBY ORDERED that the Order to Show Cause [#62] is DISCHARGED.
IT IS FURTHER RECOMMENDED that Defendants State of Colorado and
Colorado State University be DISMISSED from this lawsuit.
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall
have fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party’s failure to serve and file specific, written objections waives de novo
review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v.
Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and
legal questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999);
Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party’s objections to this
Recommendation must be both timely and specific to preserve an issue for de novo
review by the District Court or for appellate review. United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
Dated: February 1, 2023
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