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HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry v. State of Colorado, et al - 030 - City's Motion to Dismiss IN 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, THE CITY OF FORT COLLINS, CSU BOARD OF GOVERNORS FOR CSU, COLORADO STATE UNIVERSITY and STEVEN VASCONSELLOS, Judicial Administrator; Defendants. DEFENDANT CITY OF FORT COLLINS’ MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT [ECF 24] Defendant City of Fort Collins (“City”), via counsel, Mark S. Ratner, Esq., and Katherine N. Hoffman, Esq., of Hall & Evans, L.L.C., pursuant to Fed. R. Civ. P. 12(b)(1) and (6), submit this Motion to Dismiss Plaintiff’s Amended Complaint (“Complaint”) [ECF 24], as follows: D.C.COLO.LCivR 7.1: Pursuant to D.C.COLO.LCivR.7.1 and this Court’s practice standards, conferral with Plaintiff is not required, and therefore undersigned counsel certifies she has not conferred with Plaintiff regarding the relief requested herein, and further Counsel does not believe the deficiencies identified in this Motion can be corrected by amendment of the Complaint. INTRODUCTION Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 1 of 26 2 Plaintiff challenges the City’s camping and trespass ordinances under the Fifth, Eighth, and Fourteenth Amendments pursuant to 42 U.S.C. §§ 1983, 1985, and 1986. Additionally, Plaintiff challenges the validity of his conviction under the City’s trespass ordinance. As an initial matter, Plaintiff’s claims against the City suffer from several fatal threshold issues. First, Plaintiff alleges he has been prosecuted under the City’s trespass ordinance one time. This event took place over two years ago, and Plaintiff’s claims relating to the City’s trespass ordinance are, therefore, barred by the statute of limitations. Additionally, Plaintiff lacks standing to seek prospective relief regarding the City’s trespass ordinance because he does not allege a credible threat of future prosecution. Plaintiff’s wrongful prosecution claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994), and the Rooker-Feldman doctrine, Dist. Of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923). The City is entitled to absolute immunity pursuant to well-established law for the actions of its employees taken in connection with Plaintiff’s criminal prosecution under the City’s trespass ordinance. Additionally, Plaintiff fails to plausibly plead any constitutional or statutory violations against the City.1 Plaintiff does not adequately allege a taking of protected property necessary for his Fifth Amendment takings claim. Plaintiff has not shown his actions were involuntary; therefore, he is unable to establish an Eighth Amendment violation. Plaintiff fails to state any cognizable claims under the Fourteenth Amendment. Finally, Plaintiff’s conspiracy claims under 42 U.S.C. §§ 1985-86 are devoid of factual support and fail to state a claim upon which relief can 1 Plaintiff alleges the City has “breached [its] duty and promise to uphold the Constitution of the United States;” therefore, he is entitled to “relief and compensation.” [ECF 24 at ¶ 134]. A cause of action for breach of oath of office is not a recognized cause of action under § 1983. Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 2 of 26 3 be based. See Ashcroft v. Iqbal, 556 U.S. 662 (Dec. 10, 2008). Accordingly, dismissal of the Complaint is warranted. SUMMARY OF FACTS2 Plaintiff is a longtime City resident and CSU alum. [ECF 24 at ¶¶ 4, 31]. Plaintiff is homeless and subsists on state food assistance and social security disability benefits. [Id. at ¶ 4]. On July 20, 2018, Colorado State University (“CSU”) Officer Phil Morris issued Plaintiff an exclusionary order which provided for Plaintiff’s exclusion from CSU. [Id. at ¶¶ 66-67]. On August 7, 2018, CSU employee Nik Olsen conducted an appeal hearing, and following the hearing, he upheld CSU’s permanent exclusionary order against Plaintiff. [Id. at ¶ 68]. Plaintiff further appealed, and on August 24, 2018, Mark Gil, Chief of Staff for the CSU President, affirmed the exclusionary order. [Id. at ¶¶ 69-70]. On November 20, 2018, Plaintiff emailed CSU’s general counsel demanding an interpretation of CSU’s exclusionary policy and indicating he would disregard CSU’s exclusionary order if he did not receive a response within 10 days. [Id. at ¶ 72]. After 15 days, Plaintiff “returned to CSU.” [Id.]. On May 17, 2019, CSU Officer Derek Smith issued Plaintiff another exclusionary order and a trespass citation under C.R.S. 18-4-504. [Id. at ¶¶ 144-45]. On July 12, 2019, Officer Smith issued Plaintiff a second trespass citation under F.C.M.C. 17-40(a). [Id. at ¶ 145]. Following a jury trial, Plaintiff was convicted under the City’s trespass ordinance and sentenced to 66 days in ja il. [Id. at ¶ 140]. Plaintiff appealed, and his conviction was upheld. See Perry v. City of Fort Collins, 2019CV205 (Colo. Dist. Ct., Larimer Cnty., March 31, 2020). [ECF 27-2]. 2 For purposes of this Motion only, Plaintiff’s allegations are accepted as true. Nothing herein shall be deemed to be an admission, and the City further reserves the right to dispute these facts in any subsequent proceeding or pleading. Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 3 of 26 4 The City has prosecuted Plaintiff seven times under its camping ordinance. [EC F 24 at ¶¶ 14, 168]. On August 7, 2020, City Officer Dan Callahan issued Plaintiff a complaint for camping on public property and ordered him to park elsewhere. [Id. at ¶ 171]. ARGUMENT A. Plaintiff Lacks Standing to Seek Prospective Relief Regarding the City ’s Trespass Ordinance (Second Claim). Plaintiff lacks standing to seek prospective injunctive and declaratory relief regarding the City’s trespass ordinance. Plaintiff has the burden to establish standing to seek prospective relief, and to do so, he must show a continuing injury. See Dias v. City and County of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009). Specifically, Plaintiff must demonstrate a “real and immediate threat that he will be prosecuted under this statute in the future.” Faustin v. City and County of Denver, 268 F.3d 942, 948 (10th Cir. 2001) (citation omitted). Here, Plaintiff is unable to establish a credible threat of future prosecution under the City’s trespass ordinance. Plaintiff alleges he has been a resident of the City for 31 years. [ECF 24 at ¶ 4]. During that time, Plaintiff alleges he has been prosecuted under the City’s trespass ordinance one time—on July 12, 2019. [Id. at ¶ 145]. Plaintiff does not allege any other citations or prosecutions under the City’s trespass ordinance.3 One prosecution under the City’s trespass ordinance in a 31-year period, without more, does not show a credible threat of future prosecution. 3 Plaintiff alleges City police officers verbally informed him he was “trespassed” from a public pool and community center. [ECF 24 at ¶ 162]. Plaintiff neglects to include a date for these allegations. Id. Additionally, Plaintiff does not allege these verbal trespass orders were issued pursuant to the City’s trespass ordinance and does not allege he was charged with violating the City’s trespass ordinance in either alleged incident. Id. Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 4 of 26 5 As such, Plaintiff has not asserted facts showing a continuing injury, and he, therefore, lacks standing to bring a claim for prospective relief regarding the City’s trespass ordinance. B. Plaintiff’s As-Applied Challenge to the City’s Trespass Ordinance (Second Claim) is Barred by the Statute of Limitations; Plaintiff’s As-Applied Challenge to the City’s Camping Ordinance (Fourth Claim) is Barred in Part by the Statute of Limitations. The statute of limitations period for a claim brought under § 1983 is determined by “reference to the appropriate state statute of limitation and the coordinate tolling rules.” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006). In Colorado, the statute of limitations is two years. See C.R.S. § 13–80–102(1)(g); Hunt v. Bennett, 17 F.3d 1263, 1265 (10th Cir. 1994). Here, Plaintiff’s second claim is barred by the statute of limitations. Plaintiff alleges he was issued a trespass citation under the City’s tr espass ordinance on July 12, 2019. [ECF 24 at ¶ 145]. The citation was a discrete act, which was definite and known to Plaintiff on July 12, 2019. See, e.g., Roberts v. Generation Next, LLC, 853 Fed. Appx. 235, 244 (10th Cir 2021).4 Plaintiff does not allege he was issued any other citations under the City’s trespass ordinance.5 Applying the two-year statute of limitations, Plaintiff had until July 12, 2021, to bring a timely claim challenging the application of the City’s trespass ordinance to him. He did not do so. Rather, Plaintiff waited until August 26, 2021, to bring his claims. They are, therefore, barred by the statute of limitations. Additionally, Plaintiff’s fourth claim is barred in part by the statute of limitations. Plaintiff alleges he has been prosecuted by the City seven times for violating the City’s camping ordinance. 4 All unpublished decisions have been attached as Exhibit A and provided to Plaintiff pursuant to D.C.Colo.LCiv.R. 7.1(e). 5 See Footnote 3, supra. Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 5 of 26 6 [Id. at ¶ 14]. Some of the alleged violations took place within the statute of limitations period [Id. at ¶ 168, 171]; others did not [Id. at ¶¶ 83, 168]. Applying the two-year statute of limitations, Plaintiff’s claims relating to any alleged camping violations which took place prior to August 26, 2019, are barred. C. Plaintiff’s Wrongful Prosecution Claim (Third Claim) Is Barred by Heck v. Humphrey and the Rooker-Feldman Doctrine. In Heck, the Supreme Court of the United States concluded 42 U.S.C. § 1983 claims were not cognizable when they implied the invalidity of a criminal conviction unless the plaintiff could demonstrate the conviction had already been invalidated. 512 U.S. at 487; see Edwards v. Balisok, 520 U.S. 641, 648 (1997) (extending the rule in Heck to § 1983 claims seeking declaratory relief). Actual invalidation of a conviction is not required, and instead Heck bars even those § 1983 claims that “necessarily imply the invalidity of [a] conviction.” Mehdipour v. Denwalt-Hammond, 773 Fed. Appx. 463, 466 (10th Cir. 2019) (quoting Heck, 512 U.S. at 487). In this case, Plaintiff was convicted of trespass under the City’s trespass ordinance. Plaintiff seeks a declaratory judgment that “he was unlawfully prosecuted, unlawfully convicted, and unlawfully imprisoned.” [ECF 24 at ¶ 213]. In other words, Plaintiff requests that this Court invalidate his state court conviction for trespass under the City’s trespass ordinance. Plaintiff does not allege his conviction was reversed on appeal or otherwise declared invalid, nor could he. Rather, the opposite is true—Plaintiff’s conviction was affirmed on appeal. [ECF 27-2]. As such, Plaintiff’s request is barred by Heck and constitutes an improper use of § 1983. See Alexander v. Lucas, 259 Fed. Appx. 145, 147-48 (10th Cir. 2007). Moreover, Plaintiff brings this suit seeking to reverse decisions addressed and decided by the state court during Plaintiff’s criminal trial. This is barred by the Rooker-Feldman doctrine. Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 6 of 26 7 The Rooker-Feldman doctrine applies to "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the [federal] district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus., Corp., 544 U.S. 280, 284 (2005). Under the doctrine, federal district courts have no jurisdiction to consider suits "that amount to appeals of state-court judgments." Bolden v. City of Topeka, 441 F.3d 1129, 1139 (10th Cir. 2006). Here, Plaintiff complains about the validity of CSU’s underlying exclusionary order, the Court’s jury instructions, and prosecutorial and judicial misconduct—these issues were all raised before the Larimer County District Court on appeal and denied. [ECF 27-2]. The Court does not have jurisdiction over Plaintiff’s third claim; rather, the only federal review that Plaintiff can seek is by writ of certiorari to the Supreme Court. See Alexander, 259 Fed. Appx. at 148. D. The City is Entitled to Absolute Immunity Regarding Plaintiff’s Wrongful Prosecution Claim (Third Claim). The City is entitled to absolute immunity from suit under § 1983 for the actions of its employees (prosecutors and judges) taken in connection with Plaintiff’s prosecution for trespass.6 See Imbler v. Pachtman, 424 U.S. 409, 96 (1976); Pierson v. Ray, 386 U.S. 547, 553-54 (1967). Imbler conclusively established prosecutors are not required to submit to civil actions questioning their judgment in their performance of duties “intimately associated with the judicial phase of the criminal process.” See Hammond v. Bales, 843 F.2d 1320, 1321 (10th Cir. 1988). 6 Plaintiff has not alleged the actions taken by City employees during Plaintiff’s criminal prosecution were caused by the City’s policies. A municipality can be held liable only if it has an "official municipal policy of some nature" that "'causes' an employee to violate another's constitutional rights." Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). As such, Plaintiff has failed to state a wrongful prosecution claim based on municipal liability. Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 7 of 26 8 Since Imbler, courts have broadly defined the scope of a prosecutor’s absolute immunity to include decisions to prosecute and any related investigatory or evidence-gathering functions undertaken in connection with the prosecutorial function. See Dohaish v. Tooley, 670 F.2d 934 (10th Cir. 1982); Hammond, 843 F.2d at 132; Scott v. Hern, 216 F.3d 897, 909 (10th Cir. 2000). Likewise, judges are entitled to absolute immunity for actions taken in their judicial capacities. "Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction." Pierson, 386 U.S. at 553-54. "Absolute immunity is . . . necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation." Butz v. Economou, 438 U.S. 478, 512 (1978). Here, Plaintiff claims the City through its employees (prosecutors and judges) acted improperly during his criminal prosecution for trespass. Trial advocacy is a quintessential prosecutorial function entitled to absolute immunity. Judicial determinations rendered during trial are functions performed by a judge pursuant to his/her judicial capacity and are, likewise, entitled to absolute immunity. Accordingly, the City is entitled to absolute immunity regarding the Plaintiff’s wrongful prosecution claim. E. Plaintiff Fails to Establish a Cognizable Fourteenth Amendment Due Process Violation Regarding His Second and Fourth Claims. a. As Applied. Regarding Plaintiff’s due process claims, his as-applied claim must be evaluated by the Court first. See Hoffman Estates v. Flipside, 455 U.S. 489, 495 (1982) (“A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 8 of 26 9 to the conduct of others. A court should therefore examine the complainant’s conduct before analyzing other hypothetical applications of the law.”). Plaintiff’s as-applied challenge to the City’s trespass ordinance necessarily fails. A reasonable person in Plaintiff’s position would have “‘fair notice from the language’ of the [ordinance] ‘that the particular conduct that he engaged in was punishable.’” Galbreath v. City of Oklahoma, 568 Fed. Appx. 534, 540 (10th Cir. 2014) (citation omitted). The City’s trespass ordinance prohibits “fail[ing] to leave property, whether publicly or privately owned, after being directed to do so by a person lawfully in control of the property.” F.C.M.C. 17-1(3). Applying the allegations in Plaintiff’s Complaint, he clearly violated the City’s trespass ordinance when he: • “Enter[ed] and remain[ed] unlawfully in or on property, whether publicly or privately owned,” Plaintiff entered CSU property on July 12, 2019.7 See F.C.M.C. 17-40(a). • By “fail[ing] to leave property, whether publicly or privately owned, after being directed to do so by a person lawfully in control of the property,” Plaintiff’s conduct was unlawful because he failed to leave CSU property on July 12, 2019, after being issued a permanent exclusionary order by CSU on July 20, 2018, and a second exclusionary order by CSU Officer Smith on May 17, 2019. [ECF 24 at ¶¶ 66-70; 144-145]. See F.C.M.C. 17-1(3). In other words, Plaintiff entered CSU after being issued two exclusionary orders by CSU executives and officers. Plaintiff takes issue with the legality of CSU’s exclusionary orders; however, this argument misses the mark. Plaintiff could have filed a timely civil action to challenge the legality of CSU’s exclusionary orders; he did not do so. Instead of filing a civil action, Plaintiff 7 While Plaintiff does not specifically admit that he entered CSU on July 12, 2019, in his Complaint, he did so at his criminal trial. [ECF 27-2]. Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 9 of 26 10 sent an email demanding information, which CSU had no legal obligation to provide in accordance with the Colorado Open Records Act, and he attempted to impose an arbitrary deadline for CSU’s response. Then, with the exclusionary order still in effect, Plaintiff returned to CSU. The underlying substance of CSU’s exclusionary orders and Plaintiff’s subjective perceptions of any deficiencies with these orders are separate matters unrelated to Plaintiff’s trespass claim against the City. When Plaintiff returned to CSU notwithstanding his knowledge of two outstanding exclusionary orders, he committed a trespass under F.C.M.C. 17-40. A reasonable person in Plaintiff’s position would have understood this conduct was clearly prohibited by the City’s trespass ordinance. As such, the facts as applied to Plaintiff do not support a due process violation. Similarly, Plaintiff fails to state a cognizable claim the City violated the due process clause regarding its enforcement of the camping ordinance as applied to Plaintiff. While Plaintiff alleges he has been cited with violating the City’s camping ordinance seven times, he neglects to include the most basic of information regarding his allegations—when they occurred, where they occurred, what Plaintiff was doing at the time of the violations, and the dispositions. Because Plaintiff has not alleged sufficient facts regarding his alleged camping activities, or lack thereof, Plaintiff fails to state a claim against the City. b. Facial challenge. Plaintiff challenges both the City’s trespass and camping ordinance as overbroad and unduly vague. As an initial matter, Plaintiff’s facial challenge is improper in the present context. The Tenth Circuit has held facial challenges are appropriate in only two circumstances: (1) “when a statute threatens to chill constitutionally protected conduct (particularly conduct protected by Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 10 of 26 11 the First Amendment) or (2) when a plaintiff seeks pre-enforcement review of a statute because it is incapable of valid application.” Dias, 567 F.3d at 1179-80 (citation omitted). Here, neither circumstance applies. First, neither ordinance threatens to chill any constitutionally protected conduct. Trespassing on public lands is not a constitutionally protected right, see Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994), nor is sleeping on public property, see Joel v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir. 2000). Second, both the City’s trespass and camping ordinance have been in effect since 1972. In total, Plaintiff alleges he has been cited with violating the City’s camping and trespass ordinances eight times in the last few years. [See Complaint generally]. Pre-enforcement review is wholly inappropriate for two almost forty-year-old ordinances which have been previously enforced. As such, Plaintiff’s facial challenge is improper and should not be considered by the Court. If the Court considers Plaintiff’s facial challenge, which the City disputes it should do, Plaintiff’s overbreadth challenge must be considered first. See Hoffman Estates, 455 U.S. at 494. "A court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail." Id. If the law regulates conduct, as opposed to pure speech, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). Moreover, "[v]iolence or other types of potentially expressive activities that produce special harms distinct from their communicative impact . . . are entitled to no constitutional protection." Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984). Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 11 of 26 12 Here, neither law is overbroad. Indeed, both ordinances regulate conduct (not speech) and penalize activities that constitute special harms to the City and its residents. Specifically, the trespass ordinance prohibits activities that pose obvious public safety risks to residents, and the camping ordinance prohibits activities that pose sanitation and hygienic risks to residents. Thus, neither law is entitled to any constitutional protection. See Roberts, 468 U.S. at 628. Moreover, neither ordinance reaches a substantial amount of constitutionally protected conduct. While individuals have a constitutionally protected liberty interest to be on city property of their choosing that is open to the public generally, see Catron v. City of St. Petersburg, 658 F.3d 1260, 1266 (11th Cir. 2011) (citing City of Chicago v. Morales, 527 U.S. 41 (1999)), that interest does not extend to individuals present on city property after a person in lawful control of the property directed them to leave. Indeed, “the Constitution does not confer the right to trespass on public lands.” Church, 30 F.3d at 1345. Moreover, individuals do not have a constitutionally protected right to sleep or conduct activities of daily living on public property. See Joel, 232 F.3d at 1357. As such, neither the City’s trespass ordinance nor camping ordinance are overbroad. Likewise, neither ordinance is unduly vague. "[T]he void-for-vagueness doctrine requires that a penal statute define the criminal 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 (1983). The court should uphold a facial vagueness challenge only if the statute is impermissibly vague in all applications. See Hoffman Estates, 455 U.S. at 494. The City’s trespass ordinance prohibits entering and remaining upon public or private property unlawfully. F.C.M.C. 17-40. The City defines “enter and remain unlawfully” to include: Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 12 of 26 13 (1) To enter or remain in or upon privately owned property when not licensed, invited, privileged or otherwise authorized to do so; (2) To enter or remain in or upon publicly owned property that is not open to the public; (3) To fail to leave property, whether privately or publicly owned, after being directed to do so by a person lawfully in control of the property; or (4) To conduct oneself in a public place in violation of any rule or regulation issued by any officer or agency having the power of control, management, or supervision thereof, which limits or prohibits the use, activities or conduct in such public place, provided that the rule or regulation is: (i) prominently posted at all public entrances to the property; (ii) posted in such a way as to be clearly visible from the site of the infraction; or (iii) actually known to the offender. F.C.M.C. 17-1. The City’s trespass ordinance is not vague in any respect; rather, it clearly outlines the conduct that will subject an individual to prosecution for trespass. As such, the City’s trespass ordinance is sufficiently specific that a person of ordinary intelligence could reasonably understand the conduct that is prohibited. Also, the City’s trespass ordinance does not encourage arbitrary or discriminatory enforcement. City officers must follow the definition of “enter and remain unlawfully” in enforcing the City’s trespass ordinance. There are only four ways an individual can enter and remain unlawfully on public or private property in the City, and a citation for any conduct not covered by F.C.M.C. 17-1 would constitute an improper application of the City’s ordinance. Similarly, the City’s camping ordinance is not unduly vague. The City’s camping ordinance prohibits: It shall be unlawful for any person to camp or pitch a tent, or knowingly permit any person to camp or pitch a tent, on public property within the City. Camping, for the purposes of this Section, shall mean to sleep, spend the night, reside or dwell temporarily with or without bedding or other camping gear and with or without shelter, or to conduct activities of daily living such as eating or sleeping, in such place unless such person is camping in compliance with Chapter 23 in a natural or recreation area. Camping shall not include incidental napping or picnicking. F.C.M.C. 17-181. Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 13 of 26 14 By its plain language, the City prohibits sleeping, spending the night, residing, dwelling, and conducting activities of daily living (i.e., eating and sleeping) on public property in the City. Exceptions to the ordinance include camping in natural or recreational areas and incidental napping and picnicking. The prohibited conduct is clearly defined, as are the exceptions. There is nothing vague about “activities of daily living” because everyone, by virtue of being alive, understands what this phrase entails. As such, the City’s camping ordinance is sufficiently specific that a person of ordinary intelligence could understand the conduct that was prohibited. Similar camping ordinances have survived void-for-vagueness challenges under the due process clause. See Joel, 232 F.3d at 1360. Moreover, the City’s camping ordinance does not encourage arbitrary and discriminatory enforcement. The ordinance provides a clear enforcement standard to officers and “is sufficiently clear that the speculative danger of arbitrary enforcement does not render the ordinance void for vagueness.” Hoffman Estates, 455 U.S. at 503. c. Substantive Due Process. Plaintiff alleges the City’s camping and trespass ordinances violate the Due Process Clause because they target homeless individuals. “Homeless persons are not a suspect class, nor is sleeping out-of-doors a fundamental right.” Joel, 232 F.3d at 1357; see Cochran v. City of Witchita, 2018 U.S. Dist. LEXIS 165825, *22 (D. Kan. Sept. 9, 2021) (“courts have not recognized the homeless as a suspect class.”). If an ordinance does not infringe upon a fundamental right or target a protected class, claims are evaluated under rational basis review. See Seegmiller v. Laverkin City, 528 F.3d 762, 771 (10th Cir. 2008). Thus, rational basis review is appropriate here. To satisfy the rational basis test, an ordinance "need only be rationally related to a legitimate government purpose." Powers v. Harris, 379 F.3d 1208, 1215 (10th Cir. 2004). Courts Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 14 of 26 15 consider whether a reasonably conceivable rational basis exists and “are not allowed to second guess the wisdom of legislative policy-determinations." Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1210 (10th Cir. 2009). Indeed, ordinances and other legislative enactments are entitled to a “strong presumption of validity” so much so that review under this standard must be a “paradigm of judicial restraint.” F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 314-15 (1993). The City’s trespass ordinance prohibits individuals from remaining unlawfully on public or private property. F.C.M.C 17-40. The City could have been pursuing a legitimate governmental purpose by prohibiting trespass in the City, most obviously the protection of property rights, promotion of public safety and the prevention of crime. Additionally, rational basis exists for believing that prohibiting trespass would protect the rights of both public and private property owners and improve public safety and prevent crime. Cities throughout the county have enacted municipal trespass ordinances for this purpose. As such, the City’s trespass ordinance easily survives rational basis review. The City’s camping ordinance prohibits individuals from sleeping and conducting activities of daily living on public property except in natural or recreation areas. F.C.M.C. 17-181. Applying rational basis review, the City could have been pursuing a legitimate government purpose —including, but not limited to, the promotion of aesthetics, sanitation, public health, and safety—by enacting an ordinance to prevent sleeping and conducting activities of daily living on public property. See Joel, 232 F.3d at 1358 (citing Clark v. Community for Creative Non- Violence, 468 U.S. 288, 296-98 (1984)). Additionally, rational basis exists for believing that prohibiting sleeping and conducting daily living activities on public property would improve Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 15 of 26 16 aesthetics, sanitation, public health, and safety. Id. Both ordinances survive rational basis review; therefore, Plaintiff has failed to state a substantive due process claim. F. Plaintiff Has Not Alleged a Taking of Personal Property Necessary to Establish a Fif th Amendment Takings Violation Regarding His Second and Fourth Claims. Plaintiff claims the City’s trespass and camping ordinances violated the Fifth Amendment Takings Clause. As an initial matter, Plaintiff’s allegations are conclusory and largely restate the legal standard, which is insufficient to state a plausible takings claim. Plaintiff does not allege the City seized any of his personal property during enforcement of its trespass and camping ordinances. Based on Plaintiff’s Complaint, he appears to be attempting a regulatory taking claim against the City. "Government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster—and that such 'regulatory takings' may be compensable under the Fifth Amendment.” Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005). There are per se regulatory takings and other regulatory takings; Plaintiff has not established either here. A “per se” regulatory taking occurs in two instances: (1) "where government requires an owner to suffer a permanent physical invasion of her property—however minor," and (2) "regulations that completely deprive an owner of 'all economically beneficial use' of her property.” Id. at 538 (citation omitted). Neither situation applies here. Plaintiff does not allege a physical invasion of his property. Additionally, Plaintiff does not allege the City’s ordinances deprived him of “all economically beneficial use of [his] property,” nor could he. The City’s ordinances had no impact on the economic value or benefit of Plaintiff’s car, which is the only private property item alleged in his Complaint. [ECF 24 at ¶ 167]. Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 16 of 26 17 Outside of these categories, when a regulation impedes the use of property without depriving the owner of all economically beneficial use, a taking may still be found based on a "complex of factors," including (1) the economic impact of the regulation on plaintiff, (2) whether the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action. Murr v. Wisconsin, 137 S. Ct. 1933, 1943 (2017) (citation omitted). Plaintiff has not alleged any facts to show a taking based on these “complex” factors. Regarding the City’s camping ordinance, the crux of Plaintiff’s taking claim is that he should be able to use his private property (his car) however he sees fit, and any restriction on his alleged right is a taking. Plaintiff does not cite any authority in support of this assertion, and the City is unaware of any Tenth Circuit precedent which supports the application of the takings clause in the manner Plaintiff seeks to do here. The government can, and does, place limitations on individuals’ abilities to use and maintain their personal property in the exercise of the government’s police powers. For takings purposes, the issue is not whether the government can impose a limitation but whether the limitation is “onerous.” Lingle, 544 U.S. at 537. Here, it is not. Nothing in the City’s camping ordinance (and its enforcement thereof) limited the Plaintiff’s ability to use his car for its intended purpose—to drive. While Plaintiff wishes to use his car to sleep and conduct activities of daily living, the City’s limitation on these activities on public property in no way deprives Plaintiff of the use of his car. Plaintiff’s takings claim regarding the City’s trespass claim is even more feeble. The takings clause prohibits the government from taking private property without just compensation. U.S. Const. amend. V. Here, Plaintiff alleges the City’s trespass ordinance violated the takings clause because it deprived him of unlimited access to public property. Plaintiff does not allege he Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 17 of 26 18 owned any private property which was taken by the City, and he does not own the public property at issue. As such, application of the Takings clause is entirely improper because the City did not take any property from Plaintiff. G. Plaintiff Fails to Plausibly Plead an Eighth Amendment Violation Regarding His Second and Fourth Claims. The Eighth Amendment Cruel and Unusual Punishments Clause “circumscribes the criminal process in three ways.” Ingraham v. Wright, 430 U.S. 651, 667 (1976). First, it limits the type of punishment the government may impose; second, it prohibits punishment "grossly disproportionate" to the severity of the crime; and third, it places limits on what type of conduct the government may criminalize. Id. Regarding Plaintiff’s fourth claim, the third limitation is pertinent. There is a distinction between criminal laws which punish conduct, which are constitutionally permissible, and applying these laws to punish status, which is not permissible. See Robinson v. California, 370 U.S. 660, 666 (1962). Plaintiff appears to argue the City’s camping ordinance violates his Eighth Amendment right to be free of cruel and unusual punishment because it punishes individuals for their status of being homeless. [ECF 24 at ¶¶ 164-65]. While the Tenth Circuit has not specifically addressed this issue, other circuits have held the Eighth Amendment prohibits penalizing homeless individuals who cannot obtain shelter from sleeping outside. Martin v. City of Boise, 920 F.3d 584, 616 (9th Cir. 2017). Resolving this question in any case, therefore, rests on voluntariness. If the homeless individual did not have any available shelter options, there is an Eighth Amendment violation. Id. at 43-44. If the homeless person had available shelter options but chose to sleep on the public property, there is not. See Joel, 232 F.3d at 1362. Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 18 of 26 19 Notably, in People v. Adam Wiemold, 2019CV30889 (Colo. Dist. Ct., Larimer Cnty., Feb. 4, 2021), attached hereto as Exhibit B, the Court reversed the defendant’s conviction under the City’s camping ordinance, finding a violation of the Eighth Amendment specifically as applied to the defendant, an employee of one of the City’s homeless shelters (Catholic Charities), who as a condition of his employment, was banned from sleeping at the City’s two homeless shelters (Catholic Charities and Fort Collins Rescue Mission (“FCSM”)). Id. at pgs. 1-2; 13. The defendant slept in his car to pay off his debt and was cited with violating the City’s camping ordinance on September 10, 2018. Id. at 1-2. The defendant presented evidence both Catholic Charities and FCSM had reached bed capacity on September 10, 2018. Id. at pg. 2. While the Court ultimately reversed the defendant’s conviction, the Court noted the defendant had “unique circumstances” as a shelter employee and the “facts here would likely not apply to other individuals who are homeless in Fort Collins who would have access to either shelter in Fort Collins.” Id. at 14. Here, Plaintiff has not alleged any facts to show his decision to sleep on the street on the dates in question was an involuntary one. Plaintiff does not allege the City’s shelters were filled or he was otherwise unable to stay at Catholic Charities, FCSM, or any other shelters. Because Plaintiff has not shown his decision to sleep on public property was involuntary, he fails to establish an Eighth Amendment violation with respect to his fourth claim. Additionally, Plaintiff alleges the City’s trespass ordinance violates the Eighth Amendment, but he does not allege how it violates the Eighth Amendment. Plaintiff’s claims are based on unsupported, conclusory assertions insufficient to establish facial plausibility. It is unclear whether Plaintiff alleges his sentence to 66 days in jail for violating the City’s trespass ordinance is the basis for his Eighth Amendment claim [ECF 24 at ¶ 139], whether he alleges the Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 19 of 26 20 Eighth Amendment was violated because the City’s trespass ordinance penalized him for his status as a homeless person [Id. at ¶ 189]—or whether he is basing his claim on something else entirely. Regardless, Plaintiff has failed to state a plausible claim. Plaintiff does not allege any facts to show his conviction for trespass were “grossly disproportionate to the severity of the crime.” Velasquez v. Faulk, 2014 U.S. Dist. LEXIS 14845, *31-32 (D. Colo. Feb. 5, 2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 72 (2003)) (recognizing the “gross disproportionality principle is applicable to sentences for terms of years," and "the gross disproportionality principle reserves a constitutional violation for only the extraordinary case"). Additionally, Plaintiff has not alleged his presence in the area which led to his conviction for trespass (CSU) was involuntary because of his homelessness. Rather, it appears based on the allegations in Plaintiff’s Complaint that the opposite is true—Plaintiff, a CSU alum, frequents CSU because he enjoys doing so. [Id. at ¶¶ 31- 2]. As such, Plaintiff has failed to establish a cognizable Eighth Amendment violation regarding his second claim. H. Plaintiff Has Not Adequately Pled a Fourteenth Amendment Equal Protection Claim Regarding His Second and Fourth Claims. The Equal Protection Clause prohibits selective enforcement of the law based on race, ethnicity, or other impermissible considerations. Whren v. United States, 517 U.S. 806, 813 (1996). The standard for proving a violation of Equal Protection based on selective enforcement is a “demanding” one. United States v. Armstrong, 517 U.S. 456, 463 (1996). “The plaintiff must demonstrate that the defendant's actions had a discriminatory effect and were motivated by a discriminatory purpose." Robinette v. Schirard, 2014 U.S. Dist. LEXIS 42747, *28-29 (D. Colo. Feb. 11, 2014) (citing Marshall v. Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1168 (10th Cir. Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 20 of 26 21 2003)). While the discriminatory purpose need not be the only purpose, it must be a motivating factor in the decision. See Villaneuva v. Carere, 85 F.3d 481, 485 (10th Cir. 1996). Here, Plaintiff alleges the City targets homeless individuals through enforcement of its camping and trespass ordinances. “Homeless persons are not a suspect class, nor is sleeping out- of-doors a fundamental right.” Joel, 232 F.3d at 1357; Cochran, 2018 U.S. Dist. LEXIS 165825, *22. Therefore, the City only needs rational basis for its actions. While Plaintiff in a conclusory fashion alleges the City targets homeless individuals through enforcement of its trespass ordinance, Plaintiff does not allege that he was targeted and charged with violating the City’s trespass ordinance because of his status as a homeless person. Rather, Plaintiff alleges CSU issued him an exclusionary order for feeding squirrels and then alleges CSU officers issued Plaintiff a citation under the City’s trespass ordinance for violating the exclusionary order. In other words, Plaintiff was charged with violating the City’s trespass ordinance solely because of his actions, not his homelessness. Moreover, Plaintiff does not show the City enforces its trespass ordinance with discriminatory purpose and discriminatory effect, nor could he. As such, Plaintiff’s allegations do not support a claim of selective enforcement. Likewise, Plaintiff’s allegations the City targets homeless individuals through enforcement of its camping ordinance are conclusory. Other than blanket assertions, Plaintiff does not allege any facts showing the City enforces its camping ordinance with discriminatory purpose and discriminatory effect. In Joel, the Court upheld a similar camping ordinance, finding the ordinance did not encourage discriminatory enforcement.8 232 F.3d at 1360. Specifically, the Court found: 8 In Joel, the Court evaluated whether the ordinance at issue led to discriminatory enforcement under the Due Process clause. Here, Plaintiff alleges selective enforcement in Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 21 of 26 22 The fact that the vast majority of people arrested for violating the ordinance are homeless does not, by itself, show that City police officers discriminate against homeless persons in the enforcement of the ordinance. It seems entirely reasonable to conclude that homeless persons would be more likely to engage in the type of conduct prohibited by the ordinance and would therefore constitute the majority of people arrested for violating its provisions. To illustrate with an analogy, the fact that the vast majority of people arrested for violating laws against public intoxication are alcoholics would not by itself show that those laws were being applied in a discriminatory fashion against those who suffer from alcoholism. Id. at 1360, n. 5. Any allegation that more homeless individuals are charged under the City’s camping ordinance, without more, is insufficient to establish an equal protection violation. See, e.g., Scherer v. City of Merriam , 2002 U.S. Dist. LEXIS 9530, *12 (D. Kan. May 10, 2002). Here, Plaintiff does not provide any more than conclusory assertions in support of his claim. While Plaintiff alleges that he has been cited with violating the City’s camping ordinance seven times, he does allege the involved officers made any statements regarding Plaintiff’s homelessness or engaged in conduct revealing a motivation to charge Plaintiff because of his homelessness. Plaintiff does not even allege these officers were aware Plaintiff was homeless. Moreover, Plaintiff does not allege any facts showing the City has cited other homeless individuals with violations of its camping ordinance because of these individuals’ homelessness. Conclusory statements and unsupported assertions are insufficient to establish facial plausibility. Ashcroft, 556 U.S. at 678. As such, Plaintiff fails to state an equal protection claim regarding the City’s camping ordinance. I. The City’s Trespass Ordinance (Second Claim) Takes Precedence Over State Law. violation of the Equal Protection clause, which requires a showing of discriminatory effect. While the standards slightly differ, the Court’s reasoning in Joel is instructive here. Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 22 of 26 23 Plaintiff argues the City’s trespass ordinance cannot apply to public property since it conflicts with state law. The problems with Plaintiff’s argument are aplenty. First, in his Complaint, Plaintiff cites to an outdated version of the City’s trespass ordinance, which incorrectly defines “enter and remain unlawfully” under F.C.M.C. 17-1(1) to read “to enter or remain in or upon public or privately owned property when not licensed, invited, or privileged or otherwise authorized to do so.” [ECF 24 at ¶ 159]. Since at least 2003, F.C.M.C. 17-1(1) has only included privately owned property within its purview. As such, by its terms, F.C.M.C. 17-1(1) applies only to private property, not public property. Nothing in F.C.M.C. 17-1(1) exempts invitees, licensees, and those with privilege from trespassing onto public property. When the correct language in F.C.M.C. 17-1 is applied, nothing in the City’s trespass ordinance conflicts with state law. Moreover, Plaintiff cites to C.R.S. 18-4-201 in support of his argument. C.R.S. 18-4-201 is the state’s burglary statute. There is no allegation of burglary in Plaintiff’s Complaint, and a burglary statute does not have any bearing outside of the burglary context. In sum, Plaintiff seeks to extrapolate a phrase from a wholly unrelated state law to create a standalone right to access public property without limitation. This is both inappropriate and unpersuasive. Finally, if there was a conflict between C.R.S. 18-4-201 and the City’s trespass ordinance, which the City denies, the City’s trespass ordinance takes precedence over state law under the circumstances. The Home Rule Amendment to the Colorado Constitution grants home rule municipalities, such as the City, “plenary authority” to regulate areas of local concern. See Trinen v. City & County of Denver, 53 P.3d 754, 758 (Colo. App. Ct. 2002). In the event of a conflict between a home rule city ordinance and state statute, the ordinance takes precedence over the Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 23 of 26 24 statute in areas of local concern. Id. Trespass on public property in the City is clearly an area of local concern; therefore, the City’s trespass ordinance would take precedence. J. Plaintiff Fails to State Claim Under 42 U.S.C. §§ 1985 and 1986. To establish a § 1985(3) claim, a plaintiff must allege: (1) a conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and immunities; (3) an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting therefrom.9 See Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993). A valid § 1985(3) claim must also allege a conspiracy that is motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Id. Here, Plaintiff alleges the City violated §§ 1985-86 in two instances: City employees conspired to violate Plaintiff’s rights during his criminal trial [ECF 24 at ¶ 17] and City officers conspired to enforce an overly broad and vague camping ordinance [Id. at ¶ 20]. Both allegations are woefully inadequate. Plaintiff alleges City employees “conspired” during his criminal trial to deprive Plaintiff “equal access and use of CSU property” [Id. at ¶ 136]; however, he does not allow how City employees did this. Nothing in Plaintiff’s Complaint shows an agreement and concerted action to deprive Plaintiff of access to CSU property. Plaintiff’s argument relies upon ipso dixit logic; however, an action is not a conspiracy simply because Plaintiff says so. See Trujillo v. Campbell, 2012 U.S. Dist. LEXIS 118585, *29 (D. Colo. Aug. 22, 2012) (“Plaintiff's mere speculation that a conspiracy existed is not competent evidence to show the existence of a conspiracy.”). Plaintiff does not allege this alleged conspiracy was motivated by a class-based animus. Additionally, Plaintiff does not allege the City was involved in this alleged conspiracy or 9 To assert a claim under § 1986, a plaintiff must first assert a valid § 1985(3) claim. See Hill v. Unnamed Arapahoe County Det. Officers, 2012 U.S. Dist. LEXIS 35604, *12 (D. Colo. March 15, 2012). Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 24 of 26 25 even knew it existed. Contrary to Plaintiff’s assertions, the City is not liable for the actions of its employees by application of respondeat superior. See Monell, 436 U.S. at 694. Plaintiff does not allege any facts in support of his assertion that City officers conspired to enforce a vague and overbroad camping ordinance. Indeed, Plaintiff does not allege any facts indicating the involved City personnel, how they were involved, when they were involved, th e substance of the conspiracy agreement, and any injury to Plaintiff. Plaintiff does not allege any non-conclusory facts showing that the alleged conspiracy was undertaken with a class-based animus. Additionally, Plaintiff does not show how the City was involved in this alleged conspiracy. In other words, other than citing to §§ 1985-86 and making blanket references to conspiracies, Plaintiff does nothing to show a conspiracy existed. As such, Plaintiff’s claims necessarily fail. II. CONCLUSION WHEREFORE, for the reasons set forth above, Defendant City of Fort Collins respectfully requests that this Court dismiss Plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(1) and (6) and provide any further relief as the court deems just and necessary. Respectfully submitted this 8th day of October 2021. s/ Katherine N. Hoffman Katherine N. Hoffman, Esq. Mark S. Ratner, Esq. Hall & Evans, L.L.C. 1001 17th Street, Suite 300 Denver, CO 80202 Phone: 303-628-3300 Fax: 303-628-3368 Ratnerm@hallevans.com Hoffmank@hallevans.com ATTORNEYS FOR DEFENDANT THE CITY OF FORT COLLINS Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 25 of 26 26 CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 8th day of October 2021, a true and correct copy of the foregoing was filed with the Court via CM/ECF and served on all parties of record, as well as the below - listed party by email: Robert Lawrence Perry fort_scout@yahoo.com Pro se Plaintiff s/Marlene Wilson, Legal Assistant to Mark S. Ratner, Esq. Katherine N. Hoffman, Esq. Hall & Evans, L.L.C. 1001 17th Street, Suite 300 Denver, CO 80202 Phone: 303-628-3300 Fax: 303-628-3368 Ratnerm@hallevans.com Hoffmank@hallevans.com ATTORNEYS FOR DEFENDANT THE CITY OF FORT COLLINS Case 1:21-cv-02306-RM-KLM Document 30 Filed 10/08/21 USDC Colorado Page 26 of 26