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HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry v. State of Colorado, et al - 038 - City's Reply in support of Motion to DismissIN 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’ REPLY IN SUPPORT OF CITY’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT [ECF 30] 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 Reply in Support of the City’s Motion to Dismiss Plaintiff’s Amended Complaint (“Complaint”) [ECF 30], as follows: INTRODUCTION Seemingly recognizing the deficiencies in his Complaint, Plaintiff alleges new facts and asserts new claims against the City for the first time in his Response.1 This is improper and 1 Additionally, in his Response, Plaintiff incorporates an affidavit which alleges new facts for the first time. [ECF 33 at pgs. 4-8]. Plaintiff’s affidavit is not admissible in determining the Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and should not be considered by the Court. See, e.g., Nichols v. United States, 796 F.2d 361, 364 (10th Cir. 1986). Case 1:21-cv-02306-RM-KLM Document 38 Filed 11/15/21 USDC Colorado Page 1 of 15 2 cannot be considered by the Court in ruling on the City’s Motion to Dismiss. Additionally, Plaintiff elects not to address the majority of arguments raised by the City in its Motion, and instead he confusingly attributes arguments to the City that the City did not make. The arguments Plaintiff does address rely on conclusory statements and are devoid of any proper legal support. To avoid his statute of limitations problem, Plaintiff argues the statute of limitations should be extended, but does not provide any authority for his proposition, which also conflicts with well- established Tenth Circuit jurisprudence. Plaintiff alleges the City’s trespass and camping ordinances are unconstitutionally overbroad but fails to articulate how these ordinances are overbroad, and instead relies on conclusory statements and restatements of the applicable legal standards. Moreover, Plaintiff’s claim that the City’s camping ordinances violate the Eighth Amendment is premature and is insufficient to state a claim against the City because Plaintiff does not allege his conduct was involuntary. Accordingly, dismissal of Plaintiff’s Complaint is warranted. ARGUMENT A. Plaintiff Lacks Standing to Challenge the City’s Private Property Camping Ordinance.2 It appears Plaintiff seeks to add a new claim against the City for the first time in his Response, challenging the validity of the City’s private property camping ordinance, Fort Collins Municipal Code (“F.C.M.C.”) 17-182.3 This is improper. If Plaintiff seeks to add additional claims 2 The City argued Plaintiff lacked standing to challenge the City’s trespass ordinance in its Motion to Dismiss. [ECF 30 at pgs. 4-5]. Plaintiff did not address this argument, effectively conceding it. 3 While Plaintiff references the City’s private property camping ordinance in his Complaint [ECF 24, ¶ 166], his fourth claim appears to solely challenge the validity of the City’s public property camping ordinance [Id., ¶¶ 234-243, 34 (on page 64)]. Case 1:21-cv-02306-RM-KLM Document 38 Filed 11/15/21 USDC Colorado Page 2 of 15 3 against the City, he must amend his Complaint; he cannot simply assert new claims through his Response. See Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001) (quoting Pennsylvania ex rel. Zimmerman v. PepsiCo., 836 F.2d 173, 181 (3d Cir. 1988) (“It is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”). Even if the Court were to consider Plaintiff’s improperly raised new claim, Plaintiff has not established standing to challenge the City’s private property camping 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). The City’s private property camping ordinance prohibits: It is unlawful for any person to camp or to knowingly permit any person to camp, as defined in § 17-181, on private property within the City, except on the premises of a residential dwelling with the permission of the property owner. Any such camping must be temporary in nature and must not exceed a period of seven (7) consecutive days or a total of fourteen (14) days in a calendar year; provided, however, that an extension of these time limits may be granted by the Dir ector of Community Development and Neighborhood Services or his or her designee upon written application of a person claiming extraordinary circumstances or undue hardship. The Director's decision whether to grant an extension shall be based upon all atten dant circumstances, including, without limitation, any objections posed by occupants of premises located on the same block face of the applicant. In no event shall an extension exceed seven (7) additional consecutive days or fourteen (14) additional days i n a calendar year. F.C.M.C. 17-182(a). Put simply, the City’s public property camping ordinance prohibits conducting activities of daily living on public property, see F.C.M.C. 17-181, and the City’s private property camping Case 1:21-cv-02306-RM-KLM Document 38 Filed 11/15/21 USDC Colorado Page 3 of 15 4 ordinance prohibits conducting activities of daily living on private property for more than 14 days a year; however, individuals can request an extension of the 14 day limitation from the Director of Community Development and Neighborhood Services (“Director”), see F.C.M.C. 17-182(a). Fatal to Plaintiff’s new claim, is the failure of any allegation he lawfully possesses any real property in the City upon which to camp. In fact, Plaintiff alleges he is homeless; therefore, by definition, Plaintiff does not possess any real property in the City. [ECF 24 at ¶ 4]. Additionally, Plaintiff does not allege he attempted to camp on real property with the permission of the property owner or he requested an extension of time to camp on private property pursuant to the procedure outlined in F.C.M.C. 17-182(a) and was denied an extension. Indeed, Plaintiff alleges only one timely camping citation, which took place on public property. [Id., ¶ 171]. Where Plaintiff does not lawfully possess any real property in the City and none of the other circumstances outlined in F.C.M.C. 17-182(a) apply to Plaintiff’s circumstances, he has not established a credible threat of future prosecution under F.C.M.C. 17-182(a). As such, Plaintiff lacks standing to seek prospective relief regarding the City’s private property camping ordinance. B. Plaintiff’s As-Applied Challenge to the City’s Trespass Ordinance (Second Claim) is Time-Barred, and Plaintiff’s As-Applied Challenge to the City’s Camping Ordinance (Fourth Claim) is Time-Barred in Part. As outlined in the City’s Motion, Plaintiff’s as-applied challenge to the City’s trespass ordinance is barred by the two-year statute of limitations applicable to 42 U.S.C. § 1983 claims. [See ECF 30 at pgs. 5-6]. In a transparent attempt to avoid his statute of limitations problem, Plaintiff argues the statute of limitations should be extended to December 1, 2022, because the judge prohibited Plaintiff from entering CSU from December 1, 2020, to December 1, 2021. following his trial and conviction for trespass. [ECF 33 at pg. 10]. Plaintiff does not cite any Case 1:21-cv-02306-RM-KLM Document 38 Filed 11/15/21 USDC Colorado Page 4 of 15 5 authority in support of his argument, which flies in the face of the great weight of Supreme Court and Tenth Circuit jurisprudence. It is well-established a claim accrues when “the plaintiff has a complete and present cause of action.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (internal citations omitted). Put simply, a claim accrues as soon as “the plaintiff can file suit and obtain relief.” Heimeshoff v. Hartford Life & Accident Ins., Co., 134 S. Ct. 604, 610 (2013) (internal citations omitted). Here, Plaintiff’s claim accrued on the date he was cited with violating the City’s ordinance—July 12, 2019.4 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).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. Plaintiff’s claims are, therefore, barred by the statute of limitations. Similarly, Plaintiff’s as-applied challenge to the City’s camping ordinances are time-barred in part. While Plaintiff alleges he has been cited with violating the City’s camping ordinances seven times, he only includes the dates of two alleged citations in his Complaint—a 2014 citation, which resulted in a not guilty finding [ECF 24, ¶ 168], and a 2020 citation, which was dismissed [Id., ¶¶ 168, 171]. Plaintiff’s challenge to his 2020 citation is timely; the challenge to his 2014 citation is not. Plaintiff appears to argue his claim as it relates to all seven citations is timely 4 In his Response, Plaintiff alleges he was also cited with violating the City’s trespass ordinance on July 20, 2018. [ECF 33 at pg. 6]. This conflicts with Plaintiff’s Complaint, in which he alleges his July 20, 2018 citation was issued pursuant to state law. [ECF 24 at ¶ 66]. Regardless, any citations issued on July 20, 2018 are clearly time-barred. 5 All unpublished decisions have been attached as Exhibit A and provided to Plaintiff pursuant to D.C.Colo.LCiv.R. 7.1(e). Case 1:21-cv-02306-RM-KLM Document 38 Filed 11/15/21 USDC Colorado Page 5 of 15 6 because his most recent citation occurred within the statute of limitations period. [ECF 33 at pg. 18]. Again, Plaintiff cites no authority for this argument, nor could he. Discrete acts are not actionable if time-barred, even when they are related to acts alleged in timely filed charges; instead, each discrete act starts a new clock for filing charges alleging that act. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Here, every citation started a new clock for filing charges related to that citation. Plaintiff did not timely file a complaint relating to his 2014 citation (and any other untimely citations), and his 2020 citation does not resuscitate his otherwise untimely allegations. As such, any claims relating to camping citations issued to Plaintiff prior to July 12, 2019 are barred by the statute of limitations. C. Plaintiff Improperly Continues to Apply an Outdated Version of the City’s Trespass Ordinance; Nevertheless, Plaintiff’s Claims Against the City for Its Trespass Ordin ance Still Fail. While Plaintiff acknowledges for the first time in his Response that the City amended City of F.C.M.C. 17-1(1) to remove “public property” from the definition of “enter and remain unlawfully,” Plaintiff, nonetheless, continues to apply an outdated version of the City’s trespass ordinance to the facts underlying his July 12, 2019 trespass citation.6 Moreover, Plaintiff alleges in conclusory fashion that the City’s amendment of F.C.M.C. 17-1(1) in 2018 took place contemporaneously with Plaintiff being issued a citation for violating the City’s trespass ordinance on July 12, 2019, “thus proving a § 1985 conspiracy.” [ECF 33 at 15]. As an initial matter, Plaintiff did not include this allegation in his Complaint, and it cannot be considered by the Court in ruling 6 Before 2018, F.C.M.C. 17-1(1) defined “enter and remain lawfully” to mean “to enter or remain in or upon public or privately owned property when not licensed, privileged, or otherwise authorized to do so.” In 2018, F.C.M.C. 17-1(1) was amended to remove public property from the definition of “enter and remain unlawfully.” Case 1:21-cv-02306-RM-KLM Document 38 Filed 11/15/21 USDC Colorado Page 6 of 15 7 on the City’s Motion to Dismiss. See, e.g., Hayes, 264 F.3d at 1025 (citations omitted). Moreover, Plaintiff’s allegation contains no factual support and instead relies on conclusory, blanket assertions, which are insufficient to establish facial plausibility. Even if the Court were to consider Plaintiff’s improperly supplied new allegation, Plaintiff would need a time machine to establish a conspiracy. It is temporally impossible for the City to engage in a conspiracy to violate Plaintiff’s rights by amending its trespass ordinance in 2018 because of Plaintiff’s violation of the City’s trespass ordinance on July 12, 2019 and his subsequent criminal trial proceedings.7 Again, notwithstanding Plaintiff’s admission that the City amended F.C.M.C. 17-1(1) to omit public property from its definition, Plaintiff continues to stick his proverbial head in the sand and seeks to apply the outdated version of F.C.M.C. 17-1(1) to his trespass citation. In so doing, Plaintiff conveniently ignores the fact he was not charged with violating F.C.M.C. 17-1(1), but rather F.C.M.C. 17-1(3) when he knowingly entered CSU property after being issued an exclusionary order. [See ECF 30 at pgs. 9-10]. By failing to address this argument, which the City raised in its Motion to Dismiss, Plaintiff effectively concedes it. [Id.]. Moreover, Plaintiff’s reliance on C.R.S. 18-4-201 to negate his culpability for violating the City’s trespass ordinance is misplaced. As the state’s burglary statute, C.R.S. 18-4-201 applies only to burglaries; it does not create a standalone, unfettered right to enter and remain in public property without restriction. 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 is not 7 Other than Plaintiff’s July 12, 2019 trespass citation, Plaintiff did not allege he has been cited with violating the City’s trespass ordinance in any other instances. Case 1:21-cv-02306-RM-KLM Document 38 Filed 11/15/21 USDC Colorado Page 7 of 15 8 unlimited. “A person may forfeit” the liberty interest in access to public property “by trespass or other violation of the law.” Chafin v. Stasi, 2015 U.S. Dist. LEXIS 42173, *32 (D. Colo. March 31, 2015) (quoting Catron, 658 F.3d at 1266); see Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994). As such, the City’s trespass ordinance does not conflict with C.R.S. 18-4- 201 or any other state laws because state law does not require unlimited access to public property, and accordingly, nothing prohibits the City from lawfully citing individuals for municipal trespass who fail to leave public property after being directed to do so by someone in lawful control of the property. Plaintiff claims the City argued in its Motion the City was entitled to immunity because of its home rule status. This is confusing because the City did not make this argument. There is no conflict between C.R.S. 18-4-201 and the City’s trespass ordinance. Even if the offense of trespass is a matter of “mixed” state and local concern, the state statute and the City’s ordinance may co - exist because, again, there is no conflict between the state statute and the City’s ordinance. See City of Aurora v. Martin, 507 P. 2d 868, 869-70 (Colo. 1973) (finding no conflict between a home rule city’s assault and battery ordinance and a state statute regulating the same). Both the state statute and the City’s ordinance prohibit an individual from unlawfully entering and remaining upon the property of another. C.R.S. 18-4-201(1); F.C.M.C. 17-40(a). There is nothing basically invalid about legislation on the same subject by both a home rule city and the state, absent some conflict between the two regulations. Id. at 870 (citing Bennion v. Denver, Colo., 504 P.2d 350 (1972). The cases cited by Plaintiff in his Response stand for the same proposition. [ECF 33 at pg. 14]. Case 1:21-cv-02306-RM-KLM Document 38 Filed 11/15/21 USDC Colorado Page 8 of 15 9 D. The City’s Trespass Ordinance (Second Claim) and Camping Ordinances (Fourth Claim) Are Not Overbroad and Do Not Violate the Fourteenth Amendment Due Process Clause in Any Way. Plaintiff argues the phrases “enter and remain unlawfully” and “a person in lawful control of the property” in the City’s trespass ordinance are overbroad and vague. As an initial matter, Plaintiff’s as applied challenge to the City’s trespass ordinance must be addressed first, and it fails. A reasonable person in Plaintiff’s position would have understood his conduct—entering CSU property when he knew at least two CSU-issued exclusionary orders were in effect—was clearly prohibited by the City’s trespass ordinance. [See ECF 33 at pgs. 8-10]. Because Plaintiff’s as applied challenge fails, the Court would not reach Plaintiff’s facial challenge. See Hoffman Estates v. Flipside, 455 U.S. 489, 495 (1982). Moreover, Plaintiff’s facial challenge is improper because the City’s trespass ordinance does not threaten to chill any constitutionally protected conduct, and given the age of the City’s trespass ordinance, pre-enforcement review is not applicable. See Dias, 567 F.3d at 1179; see also ECF 30 at pgs. 10-11. Even if the Court were to address Plaintiff’s facial challenge to the City’s trespass ordinance, the phrases “enter and remain unlawfully” and “a person lawfully in control of the property” are neither overbroad nor unduly vague, and Plaintiff has not properly alleged otherwise. While Plaintiff attacks the legal sufficiency of these phrases, he does not indicate why these phrases are legally insufficient, instead relying on conclusory statements and blanket assertions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). These phrases do not encompass a substantially amount of constitutionally protected conduct within its reach. Indeed, “[t]he Constitution does not confer the right to trespass on public lands,” and nothing in federal or state law prevents municipalities from enacting laws which define Case 1:21-cv-02306-RM-KLM Document 38 Filed 11/15/21 USDC Colorado Page 9 of 15 10 and prohibit trespass on public property to protect the safety and well-being of their residents. Church, 30 F.3d at 1345. Moreover, the phrase “a person lawfully in control of the property” is the opposite of overbroad; it specifically limits who can issue a directive to leave public property, thereby eliminating the risk of arbitrary enforcement. Moreover, these phrases are not vague in any respect. The phrase “enter and remain unlawfully” is clearly defined in the City’s municipal code with a four-part definition. F.C.M.C. 17-1. The City’s municipal code outlines the four specific instances that would qualify as an unlawful entrance and would subject an individual to prosecution for trespass. Similarly, the phrase “a person lawfully in control of the property” is not vague. By its plain language, a directive to leave public property must be issued a person with lawful control of the property; an entry-level employee or onlooker would be insufficient. As such, the City’s trespass ordinance is sufficiently specific that a person of ordinary intelligence could reasonably understand the conduct that is prohibited. Additionally, Plaintiff challenges the City’s public property and private property camping ordinances as overbroad.8 For the reasons outlined above and in the City’s Motion, Plaintiff’s facial challenge is improper and should not be considered. [See ECF 30 at pgs. 10-11]. Even if the Court were to consider Plaintiff’s facial challenge, his challenge necessarily fails. Plaintiff argues the City’s camping ordinances are overbroad because “they prohibit living in Fort Collins on either public or private property.” [ECF 33 at pg. 18]. This is simply untrue. The City’s public property 8 In his Response, Plaintiff acknowledged the City’s public property and private property camping ordinances were not vague. [ECF 33 at pg. 18, “Plaintiff does not challenge the ‘City’ ‘camping’ ordinances as vague since they prohibit conducting activities of daily living; instead, Plaintiff challenges the ordinances as being overbroad…”]. Case 1:21-cv-02306-RM-KLM Document 38 Filed 11/15/21 USDC Colorado Page 10 of 15 11 camping ordinance prohibits sleeping, spending the night, residing, dwelling, or conducting activities of daily living (i.e., eating and sleeping) on public property in the City, with exceptions for incidental napping, picnicking, and camping in natural areas. F.C.M.C. 17-181. The City’s private property camping ordinance prohibits the same activities of daily living on private property for more than 14 days a year; however, individuals can request an extension of the 14-day limitation from the Director. F.C.M.C. 17-182(a). The prohibited activities are clearly defined, as acknowledged by Plaintiff, and neither ordinance reaches a substantial amount of constitutionally protected conduct. Individuals do not have a constitutionally protected right to sleep or conduct activities of daily living on public property or outside on private property without any temporal restriction. See Joel, 232 F.3d at 1357. Plaintiff cites to Pompano Beach v. Capalbo, 455 So. 2d 468 (App. Ct. Fl. 4th Dist. Aug. 8, 1984); however, his reliance is misplaced. In Pompano Beach, the Court struck down a city ordinance which prohibited “lodg[ing] or sleep[ing]” in vehicles on public ways. The Court found the ordinance encompassed conduct which ‘in no way imping[ed] on the rights or interests of others’—specifically, the sleeping child in the car-seat, the alternating long distance drivers, and the tired or inebriated driver—and was, therefore, unconstitutionally overbroad. By omitting incidental napping from its reach, the City’s camping ordinances do not encompass the arguably harmless actions recognized by the Court in Pompano Beach, instead targeting conduct which poses health, safety, and hygienic risks to City residents. The City’s camping ordinances do not include a substantial amount of constitutionally protected conduct within their reach and are, therefore, not overbroad in any respect. E. Plaintiff Has Not Plausibly Pled an Eighth Amendment Violation with Respect to the City’s Camping Ordinances (Fourth Claim). Case 1:21-cv-02306-RM-KLM Document 38 Filed 11/15/21 USDC Colorado Page 11 of 15 12 As an initial matter, Plaintiff’s Eighth Amendment challenge is premature and not ripe for review. Pretrial detainees are entitled to protection under the due process clauses of the Fourth and Fourteenth Amendments. Eighth Amendment scrutiny, however, “is appropriate only after the State has secured a formal adjudication of guilt in accordance with due process of law.” See Reed v. Simmons, 2004 U.S. Dist. LEXIS 7770, *24-25 (D. Kan. May 3, 2004) (citing Ingraham v. Wright, 430 U.S. 651, 671-72 (1977)). Nowhere in Plaintiff’s Complaint does he allege he was convicted of the City’s camping ordinances. Indeed, all references to camping citations have resulted in favorable dispositions to Plaintiff. [ECF 24 at ¶¶ 168, 240]. As such, the Eighth Amendment does not apply to Plaintiff’s claims. Even if the Court considers Plaintiff’s premature Eighth Amendment claim, his claim must fail. The crux of the issue is whether the Eighth Amendment prohibits cities from enacting laws which criminalize conducting activities of daily living on public property. Neither the Supreme Court nor the Tenth Circuit have specifically addressed this issue in the camping context; however, other circuits have held the Eighth Amendment prohibits penalizing homeless individuals who cannot obtain shelter from sleeping outside. See, e.g., Martin v. City of Boise, 920 F.3d 584, 616 (9th Cir. 2017). Answering this question in any case, therefore, hinges on voluntariness. If the homeless individual did not have any available shelter options, there is an Eighth Amendment violation. See Martin, 920 F.3d at 616. If the homeless person had available shelter options but chose to sleep on the public property, there is not. See Joel v. City of Orlando, 232 F.3d 1353, 1362 (11th Cir. 2000). Plaintiff’s argument, therefore, misses the mark. Indeed, Plaintiff fails to recognize the crucial distinction between conduct and status and the associated issue of voluntariness. Plaintiff’s Case 1:21-cv-02306-RM-KLM Document 38 Filed 11/15/21 USDC Colorado Page 12 of 15 13 cites to Johnson v. City of Dallas, 860 F. Supp. 344 (D. N.TX. 1994); however, Johnson was overturned on appeal on standing grounds, see Johnson v. City of Dallas, 61 F.3d 442, 445 (5th Cir. 1995). Plaintiff does not allege his decision to conduct activities of daily living on public property on the dates he was issued citations was involuntary. Specifically, Plaintiff does not allege the City’s shelters were filled or he did not have any other available shelter options. Plaintiff does not allege the officers who issued him camping citations made any comments about Plaintiff’s homeless or even knew Plaintiff was homeless. Plaintiff does not provide any statistics, examples, or statements by the City in support of his argument the City targets homeless individuals, and instead relies on blanket statements and conclusory assertions. Just because a homeless individual is cited under the City’s camping ordinance does not necessitate an Eighth Amendment violation. Not only has Plaintiff failed to show his actions were involuntary, the sovereign citizen nature of his pleadings lead to the exact opposite conclusion—that it was his choice to conduct activities of daily living where he wanted to, simply because he wanted to. F. Plaintiff Ignores the Majority of the City’s Arguments, Effectively Conceding Them. Plaintiff ignores all the arguments raised by the City regarding his wrongful prosecution claim. As outlined in the City’s Motion to Dismiss, Plaintiff’s 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). [See ECF 30 at pgs. 6-7]. Moreover, the City is entitled to absolute immunity for the actions of its employees taken in connection with Plaintiff’s criminal prosecution under the City’s trespass ordinance. See Imbler v. Pachtman, 424 U.S. 409, 96 (1976); Pierson v. Ray, 386 U.S. 547, 553-54 (1967); see also ECF 30 at pgs. 7-8. Additionally, Plaintiff fails to state a wrongful prosecution claim based Case 1:21-cv-02306-RM-KLM Document 38 Filed 11/15/21 USDC Colorado Page 13 of 15 14 on municipal liability because he does not allege the actions taken by City employees during Plaintiff’s criminal prosecution were caused by the City’s policies. See Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978); see also ECF 30 at pg. 7, n.6. Instead of addressing the City’s arguments, Plaintiff alleges new facts for the first time, which cannot be considered by the Court in ruling on the City’s Motion, and then acknowledges the Court may lack jurisdiction to hear his claim. [ECF 33 at 10, “To the extent the Court lacks jurisdiction to v acate the trespass conviction, Plaintiff hereby withdraws his claims of unlawful conviction.”]. Plaintiff has withdrawn his claim, and the Court should not consider it. Similarly, Plaintiff ignores the rest of the jurisdictional and 12(b)(6) arguments raised by the City in its Motion to Dismiss, effectively conceding them. [See generally ECF 30]. Instead, Plaintiff relies on the same conclusory assertions and blanket restatements of the applicable legal standards he cited in his Complaint. This is insufficient. While a complaint need not state detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft, 556 U.S. at 678 (quoting Bell Atl. Corp., 550 U.S. at 570). Put simply, Plaintiff claims the City violated his constitutional rights because he said so; this, with nothing more, is insufficient to state a claim against the City. As such, dismissal is warranted. II. CONCLUSION WHEREFORE, for the reasons set forth above, Defendant City of Fort Collins respectfully requests 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. Case 1:21-cv-02306-RM-KLM Document 38 Filed 11/15/21 USDC Colorado Page 14 of 15 15 Respectfully submitted this 15th day of November 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 CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 15th day of November 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 38 Filed 11/15/21 USDC Colorado Page 15 of 15