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HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry v. State of Colorado, et al - 047 - Pl's Second Reply in support of Motion to AmendV. and, and, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1 :21-cv-02306-RM-KLM Robert-Lawrence: Perry, Plaintiff Each 'STATE OF COLORADO' Individual employee, executive officer, and/or administrative official acting personally, individually, and/or in combination namely, Alita King, Thomas Lynch, and Daniel McDonald, and each 'doe' administrator, agent, and/or executive, and Steven Vas~oncellos, and 'doe' judicial administrators; The 'CITY OF FORT COLLINS', et. al., including each Individual administrative official, agent, employee and or executive officer, acting personally, individually, and or together, including each individual member of the city council and Mayor, the City Attorney, the City Manager, Darin Atteberry, Ross Cunniff, Gerry Horak, Ray Martinez, Kristin Stephens, Ken Summers, Wade Troxell, including 'doe' agents, administrators, executives, officers and / or each 'doe' appointee administrator, agent, police officer, official, and 'City' employees, namely, Brandi Lynn Neita, Dan Callahan, Jill Hueser, and Ryan Westlind; cs·u BOARD OF GOVERNORS, for 'CSU', and each individual member of the 'CSU Board of Governors', for 'COLORADO STATE UNIVERSITY' and each 'doe' and or named administrators, agents, employees or officials acting personally, individually, and or together, namely, Scott Harris, Jeff Goetz, Jesse Ihnen, Michael Lohman, Phil Morris, Derek Smith, Lynn Johnson, Mark Gill, and Nie Olsen, and each heir appointee and/or official; each Individual Jointly and Severally Liable as Co-Defendants. FILED UNITED STATES DISTRICT COURT DENVER.COLORADO MAR 30 2022 JEFFt-<l:Y P. COLWELL CLERK SECOND REPLY IN SUPPORT OF MOTION TO AMEND 1 SECOND REPLY iN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 1 of 23 INTRODUCTION This is Petitioner's first Motion to Amend his Petition for Relief. Petitioner seeks only declaratory judgment' and injunctive relief for continuing violations of his civil rights; Petitioner asserts that named and doe individual Defendants, acting under authority of --state law ·continue to deny Petitioner his constitutional right to due process of a fail trial and equal access to .public p_laces. Petitioner has made allegations that are support~d by citations of law and case precedent, including indisputable facts, which supports his claims for declaratory juqgment and injunctive relief finding that: a) .• Defendant, CSU Board of Governors knowingly permitted CSU campus police to enforce an exclusionary policy to permanently deny Petitioner access and use-of CSU campus and other public facilities, including the public library and public transportation facilities in violation of state law, including C.R.S. § 18-9-109 (1); and that: b) Individual State Defendants, and CSU Board of Governors acting under color of law, denied Petitioner's civil equal right to due process and a fair trial by deliberately misapplying state law by enforcing trespass citations on public property (CSU campus) though, state trespass law that specifjcally applies only to private property; and that: c) Individual state Defendants, acting under color of law, continue to deny Petitioner a constitutional right to equal access to public places by enforcing CSU campus police · permanent 'exclusionary orders, and an unlawful, fraudulent permanent protective order by deliberately misapplying state trespass law, effectively banning Petitioner from public property, including CSU campus and public transportation facilities. 2 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 2 of 23 SUMMARY ARGUMENT 1). State Defendants-filed a "Motion to pismiss Plaintiff's Amended Complaint", that . has riot been ruled upon by the ·Court. Their Motion to Dismiss initia!IY stated that the alleged deficiencies they identified in the Amended C~mplaint cannot be corrected by further amendment: 0 Nevertheless, Petitioner has filed a Motion to Amend the Petition ~7,' for Relief to cure the alleged deficiencies that state Defendants identified. Now state Defendants repeat the same arguments they presented in the first Motion to Dismiss without identifying how the additional factual allegations which Plaintiff seeks to include in the Proposed Second Amended Petition for Relief fail to address or cure the alleged deficiencies in the First Amended Petition for Relief; by summarily arguing conclusory assertions that. Petitioner's Proposed Second Amended Petition for Relief is futile; that (a) each individual is entitled to governmental immunity; that Petitioner's § 1983 claims are barred; and that (b) Petitioner's claims are barred by statute of limitations. 2) Petitioner asserts additional allegations in the Amended Petition that the statute of limitations does not apply to the claims for declaratory judgment and injunctive relief and that Petitioner continues to suffer injuries due to permanent exclusionary order CSU campus police issued, as well as the CCIC report of a permanent restraining order that campus police entered that is fraudulent since it was not issued by a court. 3) Petitioner will address state Defendants' conclusory assertions that the Proposed Second Amended Petition for Relief is futile by providing all quot~tions of the additional allegations, which included the following text, word for word: 3 SECOND REPLY IN SUPPORT OF MOTION Tb AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 3 of 23 I • THE CIVIL RIGHTS CONSPIRACY 22. The City of Fort Collins, by and through agents, employed officers, and elected officials are engaged in a campaign against 'homeless' people. The City Council has enacted ordinances against 'camping' and 'trespass' that are selectively enforced just ,. against people in the community that are assumed ~o be 'homeless' or 'indigent'. The campaign includes police officers issuing verbal orders permanently banning anyone, suspected as 'homeless', from public property, such as CSU campus, using the vague and over-broad powers granted by the City 'camping' and 'trespass' ordinances. 23. For their part, CSU administrative and executive officials adopted and enforced the 'exclusionary order' policy challenged as unconstitu'tional. CSU police enforce the 'exclusionary orders' with trespass citations exercising the broad discretion afforded by the 'trespass' ordinance, and state statute, by erroneously presuming that 'exclusionary .. orders' are enforceable with 'trespass' citations for being on public property. 24. CSU 'exclusionary order' policy immediately denies access to CSU campus to the _identified 'subject' issued an 'exclusionary order' form, that functions as a personal 'no trespass' notice, subject to ehforcement with criminal citations of 'trespass'. 25. V.P. for University Operations, Lynn Johnson, implemented CSU 'e'.(clusionary order' policy that allows CSU campus police to, prejudicially, deny access and use of CSU campus to whoever they want; in this case, permanently, excluding Plaintiff from CSU campus for allegedly 'feeding squirrels'. Notably, CSU does not have a policy against 'feeding squirrels', nor is there any such local or state prohibition. 4 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 4 of 23 26. . CSU-.campus police are enforcing CSU 'exclusionary order' policy, which was authorized by Lynn Johnson, y.P .. for University Operations, further supported by CSU •· then~acting Chief of Police, Scott Harris and then-acting CSU Chief of Staff, Mark Gill, who appointed a CSU employee, Nie Olsen to unilaterally affirm the 'exclusionary order' CSU campus police issued against Plaintiff. Nie Olsen acted as a judge and hearsay witness during the 'administrative appeal' of the permanent 'exclusionary order'. , ·• 27. Plaintiff was issued the first "exclusionary order" by CSU campus police officer, Jesse Ihnen on May 18, 2016, for allegedly 'feeding squirrels'. Lynn Johnson, CSU VP \ ·· for University Operations, lifted the 'exclusionary order' after Plaintiff submitted a written appeal challenging CSU "exclusionary order" policy as unconstitutional and cited other criminal and civil statutory citations which conflict with CSU "exclusionary order" policy. C.R.S. § 18-9-109 (1), prohibits denying access and use of university property, unless such--person is interfering with the fun_ctions of the university, either through the use of force or violence, or the threat of force or violence. [See: C.R.S. § 18-9-109 (2)] 28. Then, in response, CSU Vice President for University Operations, Lynn Johnson, amended CSU 'exclusionary order' policy to remove reference to C.R.S. § 18-9-109 (2) after Plaintiff objected to the first 'exclusionary order' issued against him based solely upon him 'feeding squirrel~'-On ·July 21, 2016, CSU 'exclusionary order' policy was amended to redefine the purpose of the policy for: "maintenance of its public buildings and property, including the prohibition of activities or conduct within public buildings or on public property". Then, this was applied in Plaintiffs 2019 'trespass' cases. 5 SECOND REPLY IN SUPPORT OF MOTION TO AMEND . Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 5 of 23 29.. By such amendment to CSU 'exclusionary order' policy removing any reference to C.R.S. § 18-9-109 (2), and such statutory limitations provided for by law, it allowed CSU campus police to discriminate against Plaintiff to apply "exclusionary order" policy to such conduct as: 'feeding squirrels'. Curiously, CSU 'exclusionary order' policy was ' amended after Plaintiff "filed this ·petition for relief; CSU 'exclusionary order' policy once again cites C.R.S. § 18-9-109 as statutory authority, with conditional application. 30. CSU campus police cited Plaintiff with 'trespass' under C.R.S. § 18-4-504, and Fort Collins Municipal Code (F.C.M.C.) section 17-40(a), that applies the definition of "Enter or remain unlawfully" defined by F.C.M.C. Sec. 17-1. However, neither the state trespass statute nor city trespass ordinance applies to public property. like CSU. 31. C.R.S. § 18-4-201 defines what conduct would constitute "enters unlawfully" or "remains unlawfully", and provides exception for public property: thus, Plaintiff should not have been cited for 'trespass on,CSU campus. In fact, C.R.S. § 18-9-109 prohibits denying access and use of educational facilities, such as CSU. 32. Plaintiff was convicted twice of trespass; once in county and once in municipal court since each judge refused to allow his jury instructions, nor even allow Plaintiff to cite C.R.S. § 18-4-201 or C.R:S. § 18-9-109. Defendants named herein denied Plaintiff due process of a fair trial, and denied Him equal protection of the law. 33. CSU campus police officers named herein testified at Plaintiff's 'trespass' trials that they issued Plaintiff 'exclusionary order' forms and cited Plaintiff for 'trespass' when he disregarded such forms as unconstitutional and unlawful. 6 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 6 of 23 34 .... The testimony of CSU campus police officers sworn under oath at Plaintiffs trials constitutes a confession that they intentionally denied Plaintiff access and use of CSU campus in violation of C.R:S. § 18-9-109(1). CSU campus police officers have admitted to theirparticipation in the conspiracy to deny Plaintiffs civil, constitutional and statutory rights in violation of 42 U.S. Code§ 1983, § 1985, and section 1986. 35. CSU campus police officers acted under color of law, in their official capacities, arid upon authority of CSU administrative officials to deny Plaintiffs constitutional right and equal protection of the law, i.e. C.R.S. § 1~-9-109(1) and C.R.S. § 18-4-201 that would have otherwise prevented them from denying Him access to CSU campus and prohibited them from enforcing qsu 'exclusionary order' policy with 'trespass' citations that would not otherwise be applied to public property. like CSU campus. 36. In coordination with CSU administrative officials to enforce 'exclusionary orders, CSU professor and then-mayor, Wade Troxel and City of Fort Collins council members, two of whom were also CSU ·professors, amended the 'trespass' ordinance to remove reference to public property from the definition of trespass in F.C.M.C. Sec. 17-1. 37. The intentional amendment and deletion of reference to public property and the acknowledged, right of the public with license and privilege to enter or remain on public property, coincided with other acts by the City to violate Plaintiffs constitutional rights. Contemporaneous with Plaintiff being issued a trespass citation; the City amended the City Charter, to allow them to hire private attorneys to act as judge and prosecutor in Plaintiffs trespass case, thus facilitating their § 1985 civil rights conspiracy. 7 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 7 of 23 ·-•-·•··-38. _.The.amendment oLCSU 'exclusionary order' policy to allow CSU campus police to cite-Plaintiff with_'trespass', --and amendment of the definitio"n of trespass in F.C.M.C. Sec. 17-1Jo delete .reference to public property and the right of the public with license and privilege to enter or remain on public property, was still not enough to insure that the jury would convict Plaintiff of 'trespass' under C.R.S. § 18-4-504, which has never been applied to public property: the Larimer county district court prosecutor, Alita King and county court judge Thomas Lynch refused to allow jury instructions, nor even allow Plaintiff to cite C.R.S. § 18-4-201, that defines what constitutes trespass and exempts public property; nor would they permit jury instruction O!l C.R.S. § 18-9-109(1), which prohibits denying access and use of educational facilities, like CSU. 39. In order to insure that Plaintiff would be 'convicted' of 'trespass', Larimer county district court prosecutor, Alita King conspired with county court judge Thomas Lynch to tamper with the jury by seating a clerk from the prosecutor's office on the jury. 40. Though, to insure that Plaintiff's 'trespass' convictions would be affirmed by the Larimer District Court, the State of Colorado also appointed then Larimer Chief Deputy District Attorney Daniel McDonald to be the Larimer District Court Judge, assigned by Judicial Administration to preside over the appeal of each of Plaintiff's trespass cases. However, to insure that Plaintiff's trespass convictions were affirmed, some unidentified person within Larimer County Judicial Administration used a PDF image of the judge's signature to issue an "Order affirming Conviction' of each of Plaintiff's 'trespass' cases, ' ther~by denying Plaintiff due process and equal protection of the law. 8 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 8 of 23 SUMMARY ARGUMENT 41. Plaintiff asserts that CSU 'exclusionary orders' are unlawful because they allow CSU police _to. commit a crime; denying lawful access and use of CSU premises in violation of C.R.S. § 18-9-109 (1). CSU 'exclusionary orders' are unconstitutional as · ··.,supported.by precedent, in Watson v. Board of Regents of University of Co.lorado 512 P.2d 1162, in the.Colorado Supreme Court, and Dunkel v. Elkins, 325 F. Supp. 1235, by the United 'States District Court. Permanent CSU 'exclusionary orders' are also unconstitutional as 'bills of.pains and penalties', and cruel and unusual punishment. 42. Plaintiff asseri:s that -CSU 'exclusionary order' policy, as written and enforced is unconstitutional because it allows CSU campus police to violate 42 U.S.C. § 1983 by immediately and permanently denying all lawful access and use of CSU premises for unlawful reasons, such as for .Plaintiff allegedly 'feeding squirrels'. CSU 'exclusionary order' policy cites C.R.S. § 18-9-109 as legal authority; yet, Plaintiff was not charged with refusing to leave, nor accused of committing an act which would 'disrupt. impair, interfere with, or obstruct the lawful missions, processes, procedures, or functions of the institution.' See also: (Colo. 2005) People v. In the interest of C.A.J. 05-CA-2413 43. CSU-police 'exclusionary order' policy and administrative "appeal process" fails to allow substantive or procedural due process; CSU po!ice 'exclusionary order' policy allows an employee from the Office of CSU President to affirm an 'exclusionary order' without evidentiary standard; no evidence or witnesses are necessary and hearsay is allowed; this resulted in violation of Plaintiff's Fifth and 14th Amendment Rights. 9 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 9 of 23 44.... Plaintiff asserts th~t the City trespass ordinance (F.C.~.C.) 17-40(a) cannot be legally applicable to public property since the Fo'rt Collins Municipal Code definition of "enter or remain unlawfully" excepts those licensed, invited, or privileged. § 18-4:..201 C.R.S. states: "A person who, regardless of his or her intent, enters or remains in or upon premises that are ... open to the public does so with·license and privilege ... ". 45. Plaintiff asserts that the City trespass ordinance (F.C.M.C.) 17-40(a) cannot be legally enforced by CSU police because CSU 'exclusionary orders' are unconstitutional and violate C.R.S. § 18-9-109 (1), which prohibits denying lawful access and use. 46. The City and County unlawfully convicted Plaintiff of 'trespass' because the jury was not advised of C.R.S. § 18-4-201 and C.R.S. § 18-9-109 (1), which prohibits CSU campus police from denying access and use of CSU campus. 47. The County illegally 'convicted' Plaintiff of 'trespass' because the prosecutor and judge conspired by seating a clerk from the prosecutors office on the jury. 48. The City of Fort Collins ordinances prohibiting 'camping' are Unconstitutionally over-broad and vague, which results in discriminatory interpretation and enforcement against people subjectively considered by police officers, as 'homeless', like Plaintiff. The ordinances against 'camping' are so extremely over-broad and vague, as written, that they fail to provide adequate notice to enable someone of ordinary intelligence to understand what conduct is prohibited. Even then, as written, the ordinances against 'camping' are so vague and over-broad that any 'activity of daily living' is prohibited, thereby eliminating any alternative other than to disregard these ordinances. 10 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 10 of 23 CSU·.police 'exclusionary order' policy cites C.R.S. 18-9-109 as legal authority · ,.:: .,. ~,. -' · that 'authorizes' ,police to issue an 'exclusionary order! form, that were issued against I ... F>laintiff solely on the basis of allegedly 'feeding squirrels'. C.R.S. 18-9-109(2),(3) set expressly conditional and limited authority t6 r~move someone from campus only for committing acts, ·which 'disrupt, impair, interfere with, or obstruct the lawful missions, processes, procedures, or functions of the institution'. 83. CSU 'exclusionary order' policy allows CSU campus ·police to exclude anyone immediately and permanently, for any r~ason whatsoever, and deny due process and equal protection of the law. 84. Plaintiff repeated notified CSU attorneys and CSU Office of General Counsel by email, that CSU campus police CSU 'Exclusionary orders' and the policy that provides for their use violated His Constitutional Rights of due process because it immediately deprived Him of access and use of public property without access to court review. 85. Plaintiff repeated notified CSU attorneys and CSU Office of General Counsel by email, that CSU campus police CSU 'Exclusionary orders' and the policy that provides for their use violated His Constitutional Rights and equal protection of the law because C.R.S. 18-9-109(1) prohibits denying access and use of educational institutions; thus, Plaintiff argued that CSU police committed a crime by issuing him 'exclusionary orders' banning Him from university property. 86. Plaintiff notified CSU Board of Governors that CSU campus police 'exclusionary order' policy violated His Rights, and requested action; however they did not reply. 11 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 11 of 23 87. CSU website page of Office of Policy and Compliance contai~s a graphic chart, that lists the hierarchy of legal authority; demonstrating that CSU 'exclusionary order' policy is superseded by levels of legal authority, which are all superseded by the U.S -£: Constitution, Federal Laws and Regulations, that then supersedes State Constitution, Laws and Regulations, which supersedes Colorado State University System I Board of Governors Policies, which supersedes Colorado State University Policies, which also supersedes College Policies; all of ,which supersedes individual Department Policies, such as CSU campus police and their 'exclusionary. order' policy. See: http://opc.prep.colostate.edu/policy-hierarchy/ 88. CSU Office of Policy and Compliance (OPC) is part of the Department of Policy, Risk and Environmental Programs (PREP) in the Division of University Operations that is administered by Lynn Johnson, Vice President for University Operations. 89. The Office of Policy and Compliance submits proposed polici~s to stakeholders, including administrative professional council, namely, Lynn Johnson, Vice President for University Operations and CSU Chief of Staff, and CSU police command staff, namely CSU Chief of Police, who is also part of the public safety team; all of whom approved the CSU campus police 'exclusionary order' policy. https://opc.prep.colostate.edu/wp- content/uploads/sites/2/2019/09/Policy-Development-slide-show-rev-9.9.19.pdf. 90. CSU campus police 'exclusionary order' policy was reviewed by the CSU Office of General Counsel, who must research applicable legal authority for compliance, then the 'exclusionary order' policy was adopted and signed by CSU president. 12 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 12 of 23 91. CSU 'exclusionary order' policy was promoted by Vice President for University Operations, Lynn Johnson, and adopted on August 12, 2016; Policy ID#: 6-6023-005. 92. -CSU campus police:'exclusionary order' form policy states that after one year, the excluded person may request the CSU Chief of Police terminate the exclusionary order;·when the CSU Chief of Police declines, then the excluded person may appeal to CSU Chief of Staff; when the Chief of Staff declines, then 'exclusionary order' form is presumed to be enforceable and permanent, effective for a persons life-time. 93. CSU .campus police have issued Plaintiff several 'exclusionary order' forms for allegedly 'feeding squirrels'; notably, CSU does not have a campus ·policy or regulation against feeding squirrels, nor is there any local or state prohibition. 94. CSU campus police 'exclusionary orders' are deemed enforceable with citations for 'trespass'. http://policylibrary.colostate.edu/policy.aspx?id=562 95. CSU campus police charged Plaintiff with 'trespass' under C.R.S § 18-4-504, for disregarding a CSU campus police 'exclusionary order'. 96. CSU campus police charged Plaintiff with 'trespass' under Fort Collins Municipal code 17-40(a) for disregarding a CSU campus police 'exclusionary order'. 97. Plaintiff asserts that the City trespass. ordinance (F.C.M.C.) 17-40(a) cannot be legally applicable to public property, like CSU since the Fort Collins Municipal Code .definition of "enter or remain unlawfully" is specifically limited to private property 98. At no time during or after Plaintiffs 'trespass' trials was any evidence submitted nor did any witness testify that CSU is private property. 13 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 13 of 23 • · 136. -~ On May 17, 2019.CSL! campus police officer, Derek Smith. accessed the CCIC database, then entered a false report of a permanent criminal protective order against Plaintiff; however, there was·no court ordered restraining .order prohibiting Plaintiff from entering CSU property, thereby CSU officer, Derek Smith committed numerous crimes . • · ~.:.. 0 _..,\ ___ .against.P-laintiff; including federal crimes regulating computer and internet use. 137. The Colorado Bureau of Investigation (CBI) is designated by the Federal Bureau of Investigation (FBI), Criminal Justice Information Services .(CJIS) Division, as the CJIS Systems Agency for the state of Colorado. 138. Further, the responsibility of the Crime Information Management Unit (CIMU) is to manage all the policies and business practices followed by Colorado criminal justice agencies regarding numerous criminal justice computer systems, including the National Crime Information Center (NCIC), the Colorado Crime Information Center (CCIC) and • the International Public'Safety and Justice Network (Nlets) computer databases. 139. All CSU police officers are commissioned through Fort Collins Police Services and the Larimer County Sheriffs Office. Officers have full law enforcement authority on all university and state-owned property, as well as the city of Fort Collins and Larimer County. See C.R.S. 16-2.5-148. 140. All CSU police officers are state certified. through the Colorado Peace Officers Standards and Training (POST) board and are commissioned by the CSU Board of Governors. Officers must successfully complete or challenge an POST-approved basic law enforcement academy prior to being appointed. 14 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 14 of 23 206. On.December 3, 2019, acting as Fort Collins Municipal Court temporary judge, Brandi Lynn Neito issued·an "Order for Suspension of Penalty (Jail); Waiver of Rights and Plea of Guilty or No Contest", that is fraudulent because Plaintiff did not sign the alleged plea agreement, nor was he advised by the court, nor did he plead 'guilty', nor did he agree to waive any of his civil, constitutional or statutory rights. 207: The "Order for Suspension of Penalty (Jail); Waiver of Rights and P.lea of Guilty or No Contest" contains an unlawful. condition for suspension of jail sentence upon the stipulation that Plaintiff would be denied access and use of Colorado State University property for'one year. 208. The "Order for Suspension of Penalty (Jail); Waiver of Rights and Plea of Guilty or No. Contest" is unconstitutional because it denied PJaintiff equal access and use of Colorado State University; also, this Order is unconstitutional since it violated Plaintiff's civil rights and equal protection of the law; Brandi Lynn Neito denied Plaintiff's civil and statutory right to equal access and use of CSU property and all public accommodations, including the Fort Collins public bus facility on campus. 209. On January 22, 2020, Larimer County Judge, Thomas Lynch issued an Order sentencing Plaintiff to 66 days in Larimer County Jail, 60 days were suspended upon condition that Plaintiff was denied access and use .of Colorado State University for one year; this condition of suspended sentence was unconstitutional and unlawful since it denied Plaintiff's Fourteenth Amendment privileges and immunities, and Right of equal protection of the law. 15 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 15 of 23 210. Larimer-Oistrict-Court Judge McDonald issued fhe Order Affirming Conv!ction in Plaintiffs municipal court trespass case, which includes an order denying Plaintiffs right of access and use of Colorado State University property for one year from December 3, 2019 until December 3, 2020. 211. Employees of.Larimer County Court Judi~ial Administration have access,and use of a PDF copy of a judge's electronic signature; Plaintiff notified Judicial Administrator, Steven Vasconcellos of the unauthorized use, but ~e did not reply. 212. Plaintiffs appeal of,the trespass conviction and sentencing order was denied by unidentified individuals in the office of judicial administration, who wrote the 'Judgment Affirming Conviction' and forged the judge's signature with a PDF copy. Alternatively, an attorney acting for the City of Fort Collins wrote the 'Judgment Affirming Conviction' of 'trespass' in municipal court and forged the judge's signature with a PDF copy. 213. Larimer District Court Judge McDonald issued an Order Affirming Conviction in Plaintiffs county trespass case, that includes an order denying Plaintiffs right of access· and use of CSU property for one year from January 22, 2020 to January 22, 2021. 214. Alternatively, an employee within Larimer County Court Judicial Administration used the PDF copy of Larimer District Judge Daniel McDonald's electronic signature to issue the Order Affirming Conviction in Plaintiffs Larimer County Court trespass case. 215. Alternatively, an attorr,ey with the Larimer District Attorney wrote the 'Judgment Affirming Conviction' in Plaintiffs county trespass case and forged the judge's signature with a PDF copy. 16 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 16 of 23 SECOND CLAIM FOR RELIEF Title 28 u:s. Code§ 2201, § 2202 Declaratory and Injunctive Relief Eighth, Fifth and Fourteenth Amendment Violations 274. The allegations of the preceding paragraphs are incorporated as though fully set forth herein. 275. CSU 'exclusionary·orders' are unconstitutional; they constitute 'bills of attainder' by imposing punishment of permanent 'exclusion' without a judicial trial, and constitute cruel and unusual punishment, which denies equal protection of the law. 276. Plaintiff asserts that because CSU 'exclusionary orders' are unconstitutional and unlawful by violating C.R.S. § 18-9-109 (1) and contrary to C.R.S. § 18-4-201; thus, he was unlawfully prosecuted, unlawfully convicted, and unlawfully imprisoned. 277. CSU 'exclusionary orders' are unconstitutional as supported by case precedent, in Watson v. Board of Regents of University of Colorado 512 P.2d 1162, in the Colorado Supreme Court, and Dunkel v. Elkins, 325 F. Supp. 1235, by the U.S. District Court. 278. CSU police issued Plaintiff 'exclusionary orders' for allegedly 'feeding squirrels', which CSU police enforced against Plaintiff by issuing three trespass citations. 279. CSU campus police website contains all university policies and regulations; yet, there is no policy or rule against 'feeding sguirrels', nor is it even a city ordinance. 280. At trial, Plaintiff was found 'guilty' of 'trespass' under the Fort Collins Municipal Code (F.C.M.C.) Sec. 40(a), which is broadly interpreted and enforced by local police officers to discriminatorily verbally ban anyone from public property without reason. 17 SECOND REPLY IN SUPPORT OF MOTION TO AMEND ,.· Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 17 of 23 281: The·City·of Fort Collins discriminatorily enforces the trespass ordinance by just -targeting the 'homeless', whom Plaintiff is considered by local officials and police. · 282. Plaintiff was also .found 'guilty' of 'trespass' under C.R.S. § 18-4-504, which is interpreted and applied to presume that CSU 'exclusionary orders' are lawful; though this was never proved, and C.R.S. § 18-9-109(1) prohibits anyone from denying lawful access and· use of educational facilities. The judge and prosecutor conspired to deny Plaintiff due process by excluding any evidence, legal argument or testimony to prove CSU 'exclusionary orders' are unlawful. The judge and prosecutor even committed jury tampering by seating a clerk from the prosecutor's office on the jury. (A felony) 283. CSU police officers, 'City', 'County' and District Court 'judges' and prosecutors violated 42 U.S.C. § 1983, § 1985, and section 1986 by intentionally denying Plaintiffs Right to due proce,ss and equal _protection of the law, and denied Him a fair trial by withholding exculpatory evidence and misapplication of the law; presuming that CSU 'exclusionary orders' are lawful, and by applying F.C.M.C. 17-40(a) to public property; I thus, Defendants unlawfully prosecuted, convicted and imprisoned Him. 284. Defendants have enforced and intend to continue to enforce the City and state trespass laws in the unconstitutional and unlawful manner as described by Plaintiff. 285. Plaintiff has suffered, and he continues to suffer, actual, irreparable, permanent injury due to enforcement 6f the state and city trespass laws, as was reported in CCIC as two convictions for trespass. Plaintiff has no other plain, adequate or speedy remedy at law, so Plaintiff is entitled to Declaratory Judgment and Injunctive relief. 18 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 18 of 23 4) Petitioner argues·that·by withdrawal of the Second Claim'for Relief for the Court to Vacate his Unlawful convic:tion, and substitution of the Second Claim for Relief for a declaratory judgment and injunctive relief for continuing violation of Petitioner's Right to be in public places and conduct activities of daily living does state a claim upon which relief may granted, and the additional factual allegations and inclusion of the statement regarding the Conspiracy against Petitioner's Rights is meritorious, and not offered for any dilatory purpose. Also, Petitioner argues that F.R.C'.P. Rule 15 is intended to be I applied and allows for amendment when a F.R.C.P. 12(b)(6) Motion to Dismiss is filed, as state Defendants have in this case. 5) Individual Defendants bear the burden of persuasion to specifically address and support their assertion that additional factual allegations and amendments in Plaintiff's Proposed Second Amended Petition for Relief still fail to state claims upon which relief may be granted, and to argue how such amendment is futile. Notably, Individual State Defendants were all served a copy of Petitioner's Reply in Support of Motion to Amend Petition what included all of the additional allegations; however, none of the individuals identified in the case heading have responded as to these additional allegations. State Defense Counsel is attempting to usher all individual defendant out the door under the umbrella of immunity while ignoring the fact that Petitioner's allegations are directed to individuals acting in their individual capacities. Also, counsel for individual Defendants intentionally misrepresents the statute of limitations defense, and ignores the fact that Petitioner withdrew the claim of unlawful arrest, prosecution and imprisonment. 19 SECOND REPLY IN SUPPORT OF MOTION TO AMEND Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 19 of 23 SUMMARY CONCLUSION Petitioner-requests only declaratory judgment and injunctive relief of contin_uing violations of his constitutional right to be in public places and conduct activities of daily living. Petitioner provided numerous citations of law and case precedents to support his claim·s for:.relief; supported by factual allegations that are undeniable, because they are a matter of public, record. ·it is obvious that state Defendants do not want to answer the factual allegations. If state Defendants are wary about answering to the allegations of criminal misconduct, they can. always plead 5th Amendment protection. Counsel for state Defendants did not support the conclusory assertion that the additional factual allegations and amendments to Plaintiff's Proposed Second Amended Petition for Relief still fails to state a claim upon which relief may be granted, and has not supported the conclusory assertion that such further amendment to the Petition for Relief is futile. Plaintiff respectfully requests that this Court grant his Motion to Amend Petition for Relief, and grant such further and other relief as provided by law. Dated this March 28th, 2022 Signed as per C.R.S. 4-3-402 Robert-Lawrence: Perry, Man for: sis Robert-Lawrence: 'Perry • .Jvlan ROBERT LAWRENCE PERRY, Person SECOND REPLY IN SUPPORT OF MOTION TO AMEND 20 Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 20 of 23 ·:.. CERTIFICATE OF SERVICE .1., Robert-Lawrence: Perry,· Plaintiff, hereby certify_ (hat I sent a complete, correct and true copy of the foregoing Second Reply in Support of Motion to Amend Petition ana addressed to each Attorney of Record for all D~fendants by first-class U.S. Mail, postage pre-paid, and/or by emailing documents, such as agreed by informed and prior consent to the following: Attorneys for Defendants, The City of-Fort Collins, et al. Darin Atteberry, City Manager 300 La Porte Ave., (City Hall) Fort Collins, CO 80522 Phone: (970) 221-6520 hoffmank@hallevans.com ratnerm@hallevans.com The State of Colorado, et. al. for: Steven Vasconcellos 1300 Broadway, 10th Floor Denver, Colorado 80203 ' Phone: (720) 508-6000 Carman.VanPelt@coag.gov Dated the 28th day of March 2022 Signed pursuant to C.R.S. 4-3-402 by, Robert-Lawrence: Perry, Trustee for: 4786 McMurry Ave., Unit 242 Fort Collins, Colorado 80525 fort_ scout@yahoo.com Phone: (970) 980-1849 Colorado State University, et, al. Attn.: Jannine Mohr, Attorn"ey 1300 Broadway, 10th Floor Denver, Colorado 80203 Phone: (720) 508-6000 Skip. Spear@coag.gov A_llison .Ailer@coag.gov CSU Board of Governors, for: Colorado State University, et al. 555 seventeenth St., Suite 1000 Denver, Colorado 80201 Phone: (970) 491-6425 Denise.Munger@coag.gov Isl Robert-Lawrence: 'Perry, Man ROBERT LAWRENCE PERRY, Person NOTE: CHANGE OF ADDRESS SECOND REPLY IN SUPPORT OF MOTION TO AMEND 21 Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 21 of 23 R..,2-, (£~ go__s--z..) -# I 3 j • o• • ••• •8 • • PLACE ST Cl(: t J 1 0 11 CF l:1 1./ :LOPE TO THE RI HT IC~l!l~:1::1::1 -0! !_H;. A-=~~ !D2f!:~!~~ A~~!!~ .;1~ -1!1~:l::Z:::CC CERTIFIED MAIL ® 11111 7021 0950 0001 4080 0339 .;, UNITED STl,,TES ~ s 1023 80294 U.S. P2STAGE PAID F8M L ENV F RT OLLINS , CO 80521 MAR 28'r22 AMOUN $5.51 R2304E105688-5 L,/JV)Jf_,D 51/rTf-5 ))J,5/fl<.l <T COi<oZT j Cj D/ 19 -r H-S 'T a(££ r 1J-rr1J: c..Lt/{.._L<. D-8.AiVEtL-[b C o~A-Do §02,9q -;3 S-J>7 Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 22 of 23 Case 1:21-cv-02306-RM-KLM Document 47 Filed 03/30/22 USDC Colorado Page 23 of 23