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HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry V. State Of Colorado, Et Al - 079 - State Dfs Response To Pl's Objections To Recommendation1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 21-CV-2306-KLM ROBERT LAWRENCE PERRY Plaintiff, v. THE STATE OF COLORADO, et al, Defendants. THE STATE DEFENDANTS’ RESPONSE TO PLAINTIFF’S OBJECTIONS TO THE RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Steven Vasconcellos and the CSU Board of Governors (collectively, the “State Defendants”) hereby file this response in opposition to the Objection to Recommendation [Doc. # 77] filed by Robert Lawrence Perry (“Plaintiff”). For the reasons set forth below, the Court should adopt Magistrate Judge’s Recommendations [Doc. # 74] and enter an order of dismissal. I. STANDARD OF REVIEW When a magistrate judge issues a recommendation on a dispositive matter, Fed. R. Civ. P. 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge’s [recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is properly made if it is both timely and specific. U.S. v. One Parcel of Real Property known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is sufficiently specific if it “enables the Case 1:21-cv-02306-RM-KLM Document 79 Filed 03/13/23 USDC Colorado Page 1 of 6 2 district judge to focus attention on those issues – factual and legal – that are at the heart of the parties’ dispute.” Id. Issues raised for the first time in an objection to the magistrate judge’s recommendation generally are deemed waived. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” ARGUMENT A. The Eleventh Amendment bars Plaintiff’s claims against the CSU Board of Governors. The Magistrate Judge recommended dismissal of Plaintiff’s claims against the CSU Board of Governors because the claims are barred by the Eleventh Amendment. Doc. # 72 at pp. 10-12. The Recommendation is consistent with the law and, therefore, the Recommendation should be adopted. The State Defendants moved to dismiss Plaintiff’s claims against the CSU Board of Governors under Rule 12(b)(1). A motion under Rule 12(b)(1) is a request to dismiss a claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When a party facially attacks the complaint’s allegations as to the existence of subject matter jurisdiction, the plaintiff has the burden of establishing jurisdiction. Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008). In this case, Plaintiff did not meet his burden of proof. Case 1:21-cv-02306-RM-KLM Document 79 Filed 03/13/23 USDC Colorado Page 2 of 6 3 The Eleventh Amendment bars suits in federal court for damages and injunctive relief against states and state agencies unless the state unequivocally waives its immunity or Congress expressly abrogates the state’s immunity in creating a statutory cause of action. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97-102 (1984). A state’s waiver must be express and unequivocal. V-1 Oil Co. v. Utah State Dep’t of Pub. Safety, 131 F.3d 1415, 1421 (10th Cir. 2002). Here, Plaintiff did not meet his burden of proof and the Magistrate Judge correctly determined the Eleventh Amendment is a jurisdictional bar to Plaintiff’s claims. In his Objection, Plaintiff argues that the Magistrate Judge was wrong, generally objecting to the dismissal of his claims against the CSU Board of Governors. See Doc. 77. Plaintiff fails to cite to any case law demonstrating that that the Magistrate Judge’s recommendation for dismissal is wrong. Further, Plaintiff fails to point to any facts or case law demonstrating there has been a waiver of immunity. For this reason, Plaintiff’s Objection is insufficient to trigger a de novo review and the Recommendation should be adopted. Cf. Strepka v. Sailors, 494 F.Supp.2d 1209, 1230 (D. Colo. 2007) (“A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review.”). B. The Court should adopt the Recommendation for dismissal of Plaintiff’s claims against Steven Vasconcellos. Case 1:21-cv-02306-RM-KLM Document 79 Filed 03/13/23 USDC Colorado Page 3 of 6 4 The Magistrate Judge recommended dismissal of Plaintiff’s claims against Steven Vasconcellos because Plaintiff failed to demonstrate Defendant Vasconcellos personally participated in the alleged constitutional violations. Doc. # 72 at pp. 18- 19. The recommendation is consistent with well-established Section 1983 law and, therefore, the recommendation for dismissal should be adopted. In the operative complaint, Plaintiff mentions Mr. Vasconcellos only two times. See Doc. # 50. The first time Plaintiff mentions Defendant Vasconcellos is to allege where Defendant Vasconcellos resides and describe Defendant Vasconcellos’ job duties for the State of Colorado. Id. at ¶ 7. The second time Defendant Vasconcellos is mentioned is in relation to Plaintiff’s allegation of unauthorized use of a judge’s electronic signature. Id. at ¶ 211. These allegations related to Plaintiff’s state court proceeding resulting in Plaintiff’s conviction for trespass – and Plaintiff withdrew his claims related to his trespass conviction. Doc. # 58 at p. 2; Doc. # 59 at p. 2. Plaintiff has not alleged that Defendant Vasconcellos participated in any other alleged constitutional violation. See Doc. # 50. “Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 768 (10th Cir. 2013) (citing Foote v. Speigel, 118 F.3d 1416, 1423 (10th Cir. 1997)). More specifically, “[b]ecause vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official Case 1:21-cv-02306-RM-KLM Document 79 Filed 03/13/23 USDC Colorado Page 4 of 6 5 defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. In his Objection, Plaintiff generally objects to the Magistrate Judge’s recommendation to dismiss his claims against Defendant Vasconcellos. But Plaintiff never challenges the heart of the Magistrate Judge’s recommendation to dismiss his claims. See Doc. # 77. General objections are not sufficient to preserve objections for the Court’s de novo review. Cf. Strepka v. Sailors, 494 F.Supp.2d 1209, 1230 (D. Colo. 2007). For this reason, the Court should adopt the Magistrate Judge’s Recommendation and dismiss all claims against Defendant Vasconcellos. WHEREFORE, the Colorado Defendants respectfully requests the Court adopt the Recommendation of United States Magistrate Judge [Doc. # 74] and dismiss all claims against the State Defendants. Respectfully submitted this 13th day of March 2023. PHILIP J. WEISER Attorney General s/ Allison R. Ailer ALLISON R. AILER* 33008 Senior Assistant Attorney General Civil Litigation & Employment Section Attorneys for the State Defendants 1300 Broadway, 6th Floor Denver, CO 80203 Telephone: (720) 508-6617 Email: allison.ailer@coag.gov *Counsel of Record Case 1:21-cv-02306-RM-KLM Document 79 Filed 03/13/23 USDC Colorado Page 5 of 6 6 CERTIFICATE OF SERVICE I certify that I served the foregoing THE STATE DEFENDANTS’ RESPONSE TO PLAINTIFF’S OBJECTIONS TO THE RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE upon all parties herein by filing copies of the same using the ECF System and/or U.S. Mail at Denver, Colorado, this 13th day of March, 2023 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 79 Filed 03/13/23 USDC Colorado Page 6 of 6