HomeMy WebLinkAbout2023-1112 - Perry V. State Of Colorado, Et Al. - 12 - Reply BriefV.
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UNITED STATES TENTH CIRCUIT COURT OF xRlW"Ji~r~. WOLPL.:d.'
Case# 23-1112, Appeal from U.S. District Court
Civil Action No. 1 :21-cv-02306-RM-KLM
Robert-Lawrence: Perry, Appellant/ Petitioner
Each 1STATE 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 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 Neita,
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.
APPELLANT'S REPLY BRIEF
APPELLANT'S REPLY BRIEF
1
Appellate Case: 23-1112 Document: 010110926446 Date Filed: 09/25/2023 Page: 1
SUMMARY ARGUMENT
Petitioner appeals the Final District Court Order [Doc 80] in the above entitled
case, and presents the following as grounds for appeal:
(1) The magistrate inappropriately refused 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 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).
(4) The magistrate committed clear error of fact by erroneously determining that no
continuing injury exception existed to the statute of limitations.
(5) 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.
(6) 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.
(7) The magistrate committed clear error by refusing to acknowledge subject matter
jurisdiction under 28 U.S.C. § 2201, § 2202, and erroneously cited 28 U .S.C. § 1367(a)
as supplemental jurisdiction for state law claims, which she then denied.
2
APPELLANT'S REPLY BRIEF
Appellate Case: 23-1112 Document: 010110926446 Date Filed: 09/25/2023 Page: 2
ARGUMENT
The magistrate acted without legal authority to review the motions to dismiss and
issue a recommendation because 28 U.S.C. § 636 (b)(1)(A) prohibits a magistrate from
determining a Fed.R.Civ.P. 12(b}(6) motion to dismiss.
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
undersigned for a recommendation regarding disposition. See [#52, #54]. However,
the District Court Order [Dkt. 9] explicitly excluded motions to dismiss.
ORDER REFERRING CASE to Magistrate Judge Kristen L. Mix. Pursuant to 28
U.S.C. § 636(b)(1)(A) and (8) 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]
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)(8) and
D.C.COLO.LCivR 40.1 (a), by Magistrate Judge Kristen L. Mix on 08/27/2021. (alave,)
(Entered: 08/27/2021 ) [0kt. 6]
Since the magistrate lacked any legal authority to determine defendant's motions
to dismiss, her recommendation should be disregarded as lacking legal effect.
3
APPELLANT'S REPLY BRIEF
Appellate Case: 23-1112 Document: 010110926446 Date Filed: 09/25/2023 Page: 3
ARGUMENT
The magistrate and District Court Judge misinterpreted the Petition for Relief i.e.
Motion for Declaratory Judgment and Injunctive Relief, as a 'complaint' subject to civil
procedures, particularly, Fed.R.Civ.Proc. 12(b)(6) motion to dismiss for failure to state
claim for relief; such dismissal in this case is a clear error of law.
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 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 allegations of violations of Petitioner's civil rights in the Petition for Relief is
simply to support his claims for declaratory judgment and injunctive relief of ordinances
and statutes that were misapplied to deny Petitioner his civil rights .
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.
4
APPELLANT'S REPLY BRIEF
Appellate Case: 23-1112 Document: 010110926446 Date Filed: 09/25/2023 Page: 4
Petitioner's Second Amended Petition for Relief clearly identifies that the nature
and cause of action was a motion for declaratory judgment and injunctive relief. Title 28
U.S.C. § 2201, § 2202 are specifically cited, and the claims for relief are clearly stated
within the petition. [Appeal Record Page: 675 -681]
28 U .S.C. § 2201 states in pertinent part:
(a) In a case of actual controversy within its jurisdiction, .... any court of the United
States , upon the filing of an appropriate pleading, may declare the rights and other legal
relations of any interested party seeking such declaration, whether or not further relief
is or could be sought. Any such declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as such.
28 U.S. Code § 2202 states:
"Further necessary or proper relief based on a declaratory judgment or decree
may be granted, after reasonable notice and hearing, against any adverse party whose
rights have been determined by such judgment."
The U.S. District Court had subject matter jurisdiction to grant Petitioner's Motion
for Declaratory Judgment and injunctive relief on each of his claims, but Magistrate Mix
intentionally misinterpreted the Petition for Relief and Motion for Declaratory Judgment
and injunctive relief as a 'complaint' to be dismissed, and disregarded the subject matter
jurisdiction of the district court to grant relief in 28 U .S.C. § 2201, § 2202, instead, she
erroneously cited 28 U.S .C . § 1367(a) as supplemental jurisdiction for state law claims.
Obviously, the magistrate deliberately applied the wrong jurisdictional statute in order to
improperly deny Petitioner declaratory judgment and injunctive relief.
5
APPELLANT'S REPLY BRIEF
Appellate Case: 23-1112 Document: 010110926446 Date Filed: 09/25/2023 Page: 5
ARGUMENT
The statute of limitations has not expired: therefore. Petitioner is entitled to relief
from continuing injury by the permanent 'exclusionary order'.
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."
The permanent 'exclusionary order issued by CSU campus police was enforced
by the municipal court of Fort Collins that issued a judgment and sentencing order that
prohibited Plaintiff from going to CSU for one year from December 1. 2020. Also, the
Larimer District Court affirmed the sentencing order of the municipal court and upheld
the sentence of the Larimer County Court, which prohibited Plaintiff from going to CSU
for one year from December 19, 2020. These court orders extended the permanent
'exclusionary order', which itself, by definition, proves continuing injury. Plaintiff could
not know that these court orders would add to his injury; thus, Plaintiff asserts that the
statute of limitations extended at least to December 19, 2022.
6
APPELLANT'S REPLY BRIEF
Appellate Case: 23-1112 Document: 010110926446 Date Filed: 09/25/2023 Page: 6
Under the continuing wrong doctrine , but "where a tort involves a continuing or
repeated injury, the cause of action accrues at, and limitations begin to run from, the
date of the last injury." 54 C.J.S. Limitation of Actions Section(s) 177 (1987). In other
words, "the statute of limitations does not begin t o run until the wrong is over and done
with." See Taylorv. Meirick, 712 F.2d 1112, 1118 (7th Cir. 1983). Under this doctrine,
"when a tort involves a continuing or repeated injury, the cause of action accrues at,
and limitations begin to run from, the date of the last injury." Tiberi, 89 F.3d at
1430. Cited in Tiberi v. Cigna Corp., 89 F.3d 1423, 1431 (10th Cir. 1996)
The magistrate stated in her recommendation that:
''The City argues that Plaintiff lacks standing to seek prospective relief regarding
the City's trespass ordinance, i.e., Plaintiff's Claim Three. Motion [#51] at 3. Relying on
Faustin v. City and County of Denver, 268 F.3d 942, 948 (10th Cir. 2001), and Dias v.
City and County of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009)
The Court disagrees that either Faustin or Dias shows that Plaintiff's Claim Three
here must be dismissed for lack of standing."
"It also appears clear from the Second Amended Complaint [#50) that Plaintiff
faces a credible threat of future prosecution if he enters the CSU campus again, given
that he was already prosecuted once under the City's trespass ordinance and that he
essentially wants to engage in the same conduct again, i.e., use certain facilities located
on campus. Thus, the Court finds that Plaintiff has adequately alleged standing to
pursue this claim."
7
APPELLANT'S REPLY BRIEF
Appellate Case: 23-1112 Document: 010110926446 Date Filed: 09/25/2023 Page: 7
Accordingly, the Court recommends that the City's Motion [#51] be denied with
respect to its standing argument and Plaintiffs Claim Three."
When prospective relief is sought "'the plaintiff must be suffering a continuing
injury or be under a real and immediate threat of being injured in the future."' Colo.
Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F .3d 1205, 1211 (10th Cir. 2014)
(quoting Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004)).
CSU campus police permanently banned Petitioner from CSU, which means he
also cannot use public transportation. Even the district court judge acknowledged that
Petitioner has a private interest right to conduct activities of daily living (Contrary to the
City camping ordinance) and private interest right of access to public places (Contrary
to the City trespass ordinance).
District Court Judge, Raymond P. Moore stated:
"Plaintiffs Objection misconstrues the Recommendation in several respects. For
example, the magistrate judge concluded that Plaintiff failed to identify a fundamental
right that would support a claim under the Equal Protection Clause, but the
Recommendation does not state that Plaintiff "lacks any private interest right to
conduct activities of daily living and private interest right of access to public
places." (ECF No. 77 at 3.) The magistrate judge also concluded that the Board, which
operates as an arm of the state, is entitled to sovereign immunity under the Eleventh
Amendment-not that any individual Defendant was entitled to same." [Doc. 80
Filed 03/21/23 USDC Page 5 of 6]
8
APPELLANT'S REPLY BRIEF
Appellate Case: 23-1112 Document: 010110926446 Date Filed: 09/25/2023 Page: 8
ARGUMENT
The magistrate improperly and intentionally failed to acknowledge the individual
defendants that were identified in the case caption and the allegations against them in
the body of the 2nd Amended Petition for Relief so that she could avoid the doctrine of
exception to immunity established in Ex parte Young when, as in this case, Petitioner
seeks only declaratory judgment and injunctive relief. The magistrate was intentionally
vague in her Order granting Petitioner's Motion to Amend so that he would not realize
that the magistrate did not acknowledge the individual defendants as parties, and none
of the defendant entities alerted Petitioner that his claims against defendant individuals
would be disregarded by avoiding any defense or discussion of individual misconduct so
that Petitioner would later be surprised by the finding by the magistrate in the Order and
recommendation that the Ex parte Young exception to immunity did not apply since the
magistrate did not acknowledge the individual defendants as parties, and allegations in
the Second Amended Petition for Relief regarding the defendant individuals would not
affect the immunity of the defendant entities.
The magistrate stated:
See [#39] at 13. However, in the body of the Second Amended Complaint under
the "Parties" heading, Plaintiff identifies only the following Defendants: (1) City of Fort
Collins, (2) Colorado State University/Colorado State University Board of Governors, (3)
Colorado Judicial Administrator Steven Vasconcellos, and (4) State of Colorado. Id. at
15. These, along with "Doe Agents," are the same Defendants listed in the currently-
operative Amended Complaint [#24].
9
APPELLANT'S REPLY BRIEF
Appellate Case: 23-1112 Document: 010110926446 Date Filed: 09/25/2023 Page: 9
Without appropriate identification and other information about the other persons
mentioned in the caption of the proposed Second Amended Complaint, the Court is not
inclined to interpret the proposed Second Amended Complaint as naming them as
additional parties at this time. [Appeal Record Page: 603]
A proper defendant is named if allegations in the body of the complaint make it
clear the party is intended as a defendant. Barsten v. Dept. of Interior, 896 F.2d 422,
423 (9th Cir. 1990). The Circuit Court stated:
"We have held, however, that even if an improper defendant is indicated in the
caption, we may consider a complaint to have named the proper defendant "if the
allegations made in the body of the complaint make it plain that the party is
intended as a defendant." Rice v. Hamilton Air Force Base Commissary, 720 F.2d
1082, 1085 (9th Cir. 1983).
We do not rely on Barsten's caption, however. The nature of his complaint
and the parties allegedly responsible were adequately set forth. We conclude that
"the allegations in the body of the complaint make it plain that the [Secretary] is
intended as a defendant," within the meaning of Rice, 720 F.2d at 1085."
Barsten v . Dept. of Interior, 896 F.2d 422,423 (9th Cir. 1990)
The identification and inclusion of individual defendants in the case caption and
countless detailed and exhaustive allegations in the 80-page Second Amended Petition
for Relief alleging numerous constitutional violations by the defendant individuals should
leave no doubt that Petitioner intended for them to be parties, and the excuse given by
the magistrate for not acknowledging them as parties was a thinly-veiled ruse to deny
Petitioner's claim for relief. Thus, factual allegations against the individual defendants
was improperly disregarded by the magistrate and District Court Judge.
10
APPELLANT'S REPLY BRIEF
Appellate Case: 23-1112 Document: 010110926446 Date Filed: 09/25/2023 Page: 10
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 ofC.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 publjc. 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 prays that this Court reverse the Order and Judgment of
the district court with instructions to grant all relief requested.
Dated: This 25th day of September 2023.
Signed by: sis: 'Rave rt-Lawrence: 'Pe rry , :M.an /!, j ,_f~ 1 '0Pu
11
APPELLANT'S REPLY BRIEF
Appellate Case: 23-1112 Document: 010110926446 Date Filed: 09/25/2023 Page: 11
CERTIFICATE OF SERVICE
I, Robert-Lawrence: Perry, Plaintiff, hereby certify that I sent a complete, correct
and true copy of the foregoing Reply Brief addressed to each Attorney of Record for all
Defendants by first-class U.S. Mail, and/or by emailing such documents, 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
rat nerm@ha lleva ns.com
The State of Colorado, et. al.
for: Steven Vasconcellos
1300 Broadway, 10th Floor
Denver, Colorado 80203
Phone: (720) 508-6000
Carman.Va nPelt @coag .gov
Dated this: September 25, 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 . S pear@c oag .gov
Allison .A il er@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.Mu nger@c oag.g o v
Isl 'Ro6ert-Lawre nce: P er r y , .7\1.an
ROBERT LAWRENCE PERRY, Person
{£. jJ (f ~ , [NJ /J /J
APPELLANT'S REPLY BRIEF
12
Appellate Case: 23-1112 Document: 010110926446 Date Filed: 09/25/2023 Page: 12
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