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-
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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).
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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
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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
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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
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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
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