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HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry V. State Of Colorado, Et Al - 044 - State Dfs' Response Motion To Amend IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 21-CV-2306-KLM ROBERT LAWRENCE PERRY Plaintiff, v. THE STATE OF COLORADO, et al, Defendants. THE STATE DEFENDANTS OBJECTION TO PLAINTIFF’S MOTION TO AMEND PETITION FOR RELIEF The State of Colorado, CSU Board of Governors, Colorado State University, and Steven Vasconcellos (collectively, the “State Defendants”) hereby object to the Motion to Amend Petition for Relief [Doc # 39] filed by Robert Lawrence Perry (“Plaintiff”) and state as follows: PROCEDURAL HISTORY 1. On December 19, 2019, Plaintiff was convicted by a jury of third degree trespass under Colorado Revised Statute § 18-4-504(1) in the County Court for Larimer County, Case No.19M1142. See Perry v. People, 2020CV122, p. 1 (Colo. Dis. Ct., Larimer Cnty., April 22, 2021). 2. On July 12, 2019, Plaintiff was again cited by a University Police Officer for trespassing on campus. Doc. 1, ¶ 28. On November 8, 2019, Plaintiff was convicted by a jury of trespass in violation of Fort Collins Municipal Code § 17- Case 1:21-cv-02306-RM-KLM Document 44 Filed 03/16/22 USDC Colorado Page 1 of 6 2 40(a) in the Municipal Court for the City of Fort Collins, Case No. 2019-4695-MD. See Perry v. City of Fort Collins, 2019CV205 (Colo. Dist. Ct., Larimer Cnty., March 31, 2020). 3. Plaintiff appealed both of his convictions to the Colorado District Court in Larimer County Case Nos. 2019CV205 and 2020CV122. In both appeals, Plaintiff asserted the same arguments – that the University exclusionary orders violate due process and that § 18-4-504(1) is unconstitutional. 4. Dissatisfied with the outcome on appeal, Plaintiff filed this federal lawsuit on September 10, 2021, alleging the exact same arguments that he raised in the Colorado Court of Appeals. Doc. # 1. 5. On October 1, 2021, the State Defendants moved to dismiss. Doc. # 27. More than 21 days have passed since the State Defendants filed their Rule 12(b) motion. Plaintiff now moves to amend. Doc. # 39. LEGAL ARGUMENT 6. Federal Rule of Civil Procedure 15 sets forth the guidelines for the amendment of pleadings. A plaintiff may amend his pleadings once as a matter of course if he does so within 21 days of serving his complaint or within 21 days after service of a motion under Rule 12(b). Fed. R. Civ. P. 15(a)(1). Otherwise, a plaintiff may only amend his pleading with the written consent of the opposing party or the court’s leave. Fed. R. Civ. P. 15(a)(2). Case 1:21-cv-02306-RM-KLM Document 44 Filed 03/16/22 USDC Colorado Page 2 of 6 3 7. A court may deny a motion for leave to amend a complaint when the proposed amendment would be futile. See Jefferson County Sch. Dist. No. R-1 v. Moody’s Investor’s Serv., Inc., 175 F.3d 848, 859 (10th Cir. 1999). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Bradley v. Val-Mejias, 379 F.3d 892, 900 (10th Cir. 2004). 8. Here, Plaintiff cannot amend as a matter of course. More than eight months have passed since Plaintiff filed his Complaint [Doc. # 1], and more than seven months have passed since the State Defendants moved to dismiss pursuant to Rule 12(b) [Doc. # 27]. Therefore, Plaintiff cannot amend as a matter of right. 9. As such, Plaintiff’s request to amend must be analyzed under Fed. R. Civ. P. 15(a)(2). Under Rule 15(a)(2), Plaintiff can amend only if the State Defendants consent or the court grants leave. The State Defendants do not consent to Plaintiff’s Motion to Amend. 10. The Court should not grant leave to amend because Plaintiff’s proposed amended complaint is futile for several reasons. 11. First, the proposed amendment does nothing more than assert the exact same arguments against the exact same defendants as the initial complaint. Compare Doc. # 1 and Doc. # 39. Colorado State University is not an entity capable of being sued. Roberts v. Colo. State. Bd. Of Agric., 998 F.2d 824, 827 (10th Cir. 1993). Plaintiff’s claims against the other State Defendants are barred by the Case 1:21-cv-02306-RM-KLM Document 44 Filed 03/16/22 USDC Colorado Page 3 of 6 4 Eleventh Amendment. The State Defendants have not waived immunity for the proposed claims. Greiss v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988). For this reason alone, Plaintiff’s proposed amended complaint if futile. 12. Second, in the proposed amendment, Plaintiff asks this Court to overturn the state court findings, which this Court cannot do. Dist. Of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). Federal district courts have no authority to review state court judgments. Id.; 28 U.S.C. § 1257. Under the circumstances, Plaintiff cannot establish the Court’s jurisdiction. 13. Third, Plaintiff’s claims arise out of events that occurred in the year 2018. Plaintiff knew or had reason to know about his claimed injuries no later than July 12, 2019, when he received the third citation for trespass. See Doc. 1 at ¶¶ 26- 28. Thus, Plaintiff’s proposed claims are time-barred. Colo. Rev. Stat. § 13-80- 102(h); Lyons v. Kyner, 367 F. App’x 878, 882 (10th Cir. 2010) ; Workman v. Jordan, 32 F.3d 475, 482 (10th Cir. 1994). 14. Finally, Plaintiff cannot state a claim under 42 U.S.C. § 1983. The United States Supreme Court has held that neither the state nor its officials acting in their official capacities are “persons” under § 1983 for purposes of damages or equitable claims. Will v. Michigan Dept. of State Police et al., 491 U.S. 58, 71 (1989); City of Kenosha v. Bruno, 412 U.S. 507 (1973). Plaintiff sues the State of Case 1:21-cv-02306-RM-KLM Document 44 Filed 03/16/22 USDC Colorado Page 4 of 6 5 Colorado, the University, the Board, and Mr. Vasconcellos in his official capacity. See Doc. # 1. Consequently, Plaintiff’s proposed claims under § 1983 are futile. 15. Because the proposed amended complaint is futile, the Court should not grant leave to amend. See Jefferson County Sch. Dist. No. R-1 v. Moody’s Investor’s Serv., Inc., 175 F.3d at 859. WHEREFORE, the State Defendants respectfully request the Court deny Plaintiff’s Motion to Amend Petition for Relief [Doc. # 39]. Respectfully submitted this 16th day of March, 2022. PHILIP J. WEISER Attorney General s/ Allison R. Ailer ALLISON R. AILER* 33008 Civil Litigation & Employment Section SKIPPERE S. SPEAR* 32061 Senior Assistant Attorney General State Services Section Attorneys for the State Defendants 1300 Broadway, 6th Floor Denver, CO 80203 Telephone: (720) 508-6617/(720) 508-6140 Email: allison.ailer@coag.gov skip.spear@coag.gov *Counsel of Record Case 1:21-cv-02306-RM-KLM Document 44 Filed 03/16/22 USDC Colorado Page 5 of 6 6 CERTIFICATE OF SERVICE I certify that I served the foregoing THE STATE DEFENDANTS’ OBJECTION TO PLAINTIFF’S PETITION TO AMEND upon all parties herein by e-filing with the CM/ECF system maintained by the court or by depositing copies of same in the United State mail, first-class postage prepaid, at Denver, Colorado, this 16th day of March 2022 addressed as follows: Robert Lawrence Perry 4786 McMurry Ave., Unit 242 Fort Collins, Colorado 80522 fort_scout@yahoo.com s/ Denise Munger Case 1:21-cv-02306-RM-KLM Document 44 Filed 03/16/22 USDC Colorado Page 6 of 6