HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry v. State of Colorado, et al - 049 - Order- 1 -
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-02306-RM-KLM
ROBERT LAWRENCE PERRY,
Plaintiff,
v.
STATE OF COLORADO,
CITY OF FORT COLLINS,
CSU BOARD OF GOVERNORS,
COLORADO STATE UNIVERSITY
STEVEN VASCONCELLOS, Judicial Administrator, and
DOE AGENTS,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the State Defendants’ Motion to Dismiss [#27]1;
on Defendant City of Fort Collins’ (the “City”) Motion to Dismiss Plaintiff’s Amended
Complaint [ECF 24] [#30]; on Plaintiff’s2 Motion to Amend Petition for Relief [#39]
(the “Motion to Amend”); and on the City Defendant’s Motion to Strike Plaintiff’s Motion
1 “[#27]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2 Error! Main Document Only.Plaintiff proceeds as a pro se litigant. The Court must
construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972). In doing so, the Court should not be the pro se litigant’s advocate, nor should the Court
“supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory
on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the
same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994).
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for Leave to Amend (ECF 39) [#41] (the “Motion to Strike”). Plaintiff filed Responses
[#32, #33] in opposition to the Motions to Dismiss [#27, #30], and Defendants filed Replies
[#34, #38]. Defendants filed Responses [#43, #44] in opposition to the Motion to Amend
[#39], and Plaintiff filed Replies [#46, #47]. Plaintiff filed a Response [#45] in opposition
to the Motion to Strike [#41], and the City filed a Reply [#48]. The Motions [#27, #30, #39,
#41] have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) and
D.C.COLO.LCivR 72. See [#29, #31, #40, #42]. The Court has reviewed the Motions,
the Responses, the Replies, the entire case file, and the applicable law, and is sufficiently
advised in the premises. For the reasons set forth below, the Motions to Dismiss [#27,
#30] are DENIED without prejudice, the Motion to Amend [#39] is GRANTED, and the
Motion to Strike [#41] is DENIED.
Plaintiff filed this lawsuit on August 26, 2021. Compl. [#1]. On September 17,
2021, he filed an Amended Complaint [#24]. Defendants filed Motions to Dismiss [#27,
#30] on October 1 and 8, 2021, which were fully briefed as of November 15, 2021. On
February 23, 2022, Plaintiff filed the Motion to Amend [#39], seeking leave to file a Second
Amended Complaint. He asserts that “he is entitled to file an amendment to the
[Amended Complaint] to address the alleged inadequacies” raised by Defendants in the
Motions to Dismiss [#27, #30]. Motion to Amend [#39] at 3.
As an initial matter, the deadline to amend pleadings has not yet been set, and
therefore Plaintiff’s Motion to Amend [#39] is timely. Thus, the Court turns directly to the
parties’ other arguments. Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d
1230, 1240 (10th Cir. 2014) (stating that the Court need only address Fed. R. Civ. P.
16(b)(4) when the amendment request is untimely).
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In the Motion to Strike [#41], the City asks the Court to strike the Motion to Amend
[#39] because Plaintiff failed to comply with D.C.COLO.LCivR 15.1(b) by failing to provide
a red-lined version of his proposed Second Amended Complaint showing additions and
deletions from the Amended Complaint [#24], and because Plaintiff fails to comply with
the brevity requirement of Fed. R. Civ. P. 8(a)(2). See also Reply [#48]. The Court notes
that the City’s Motion to Strike [#39] is improper. These arguments are simply purported
bases on which Plaintiff’s Motion to Amend [#39] could be denied and should have been
raised in the City’s Response [#43] to the Motion to Amend [#39]. Instead, the City has
unnecessarily overcomplicated the briefing and delayed resolution of Plaintiff’s request.
Nevertheless, given that the Motion to Strike [#41] has been fully briefed, the Court
addresses those arguments as to whether the Motion to Amend [#39] should be granted.
The Court may dismiss a complaint for failure to comply with Fed. R. Civ. P. 8.
See, e.g., Carter v. Thompson, No. 21-cv-01155-LTB-GPG, 2021 WL 3206774, at *2 (D.
Colo. June 11, 2021) (holding that “the Complaint is subject to dismissal for failure to
comply with the pleading requirements of Rule 8”). Rule 8(a)(2) mandates that a
complaint contain “a short and plain statement of the claim showing that the pleader is
entitled to relief,” a requirement which is reinforced by Rule 8(d)(1), which mandates that
“[e]ach allegation must be simple, concise, and direct.” “Taken together, Rules 8(a) and
(d)(1) underscore the emphasis placed on clarity and brevity by the federal pleading
rules.” Carter, 2021 WL 3206774, at *2. “As a result, prolix, vague, or unintelligible
pleadings violate the requirements of Rule 8.” Id.
Defendants argue that Plaintiff’s proposed Second Amended Complaint is
essentially unwieldy in its length given the large number of allegations made, but there
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does not appear to be a significant difference in this respect between the current
complaint and the proposed complaint, and therefore the Court cannot find this argument,
by itself, to be a sufficient basis on which to deny amendment. Plaintiff’s proposed
Second Amended Complaint is 79 pages and approximately 350 paragraphs, which is
approximately 11 pages and 60 paragraphs more than the Amended Complaint [#24].
However, length alone is not the sole consideration under Rule 8. For example, in
Harrington v. Kansas, No. 5:20-cv-04081-HLT-KGG, 2021 WL 860947, at *3 (D. Kan.
Mar. 8, 2021), the court declined to dismiss a lengthy complaint under Rule 8 in part
because, “[a]lthough there are 352 individually numbered paragraphs, the Court notes
that most, if not all, of those paragraphs contain one sentence.” Here, Plaintiff’s
paragraphs are mixed, with many consisting of only a single sentence while some are
approximately a half-page long.
Many of Plaintiff’s allegations plainly fit within the “simple, concise, and direct”
parameters of Rule 8; others less so. “Prolixity of a complaint undermines the utility of
the complaint.” Robledo-Valdez v. Colo. Dep't of Corrs., No. 20-cv-00247-WJM-NRN,
2020 WL 8834795, at *2 (D. Colo. Dec. 11, 2020) (citing Knox v. First Sec. Bank of Utah,
196 F.2d 112, 117 (10th Cir. 1952)). “Thus, the Tenth Circuit has held that a complaint
can run afoul of Rule 8 through unnecessary length and burying of material allegations in
‘a morass of irrelevancies.’” Robledo-Valdez, 2020 WL 8834795, at *2 (quoting Mann v.
Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007)). Here, after a careful review, the Court
finds on the whole that the proposed Second Amended Complaint is not so “prolix, vague,
or unintelligible” that the Motion to Amend [#39] should be denied that basis.
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Turning to D.C.COLO.LCivR 15.1(b), the City argues that the Motion to Amend
[#39] should be denied because Plaintiff failed to provide a red-lined version of his
proposed Second Amended Complaint showing additions and deletions from the
Amended Complaint [#24]. The City is correct that Plaintiff has failed to comply with this
Local Rule, which provides in relevant part:
A party who files an opposed motion for leave to amend or supplement a
pleading shall attach as an exhibit a copy of the proposed amended or
supplemental pleading which strikes through (e.g., strikes through) the text
to be deleted and underlines (e.g., underlines) the text to be added. . . .
D.C.COLO.LCivR 15.1(b). However, the Court is not inclined to deny the Motion to
Amend [#39] on this basis for the following reasons. First, Plaintiff alleges that he is 68-
years-old, is currently homeless, and is indigent, subsisting on state food assistance and
social security disability benefits. Proposed Second Am. Compl. [#39] at 14. Although
his briefs and pleadings are typed, it is unclear what regular access he has to word
formatting programs which would permit him to fully comply with this Local Rule. In
addition, although a red-lined version of the Amended Complaint [#24] would certainly be
helpful to Defendants in formulating an answer or other response to the Second Amended
Complaint, the Court does not find under these circumstances that it is essential or would
prejudice Defendants not to have one.
Turning to Fed. R. Civ. P. 15, the Court has discretion to grant a party leave to
amend its pleadings. Foman v. Davis, 371 U.S. 178, 182 (1962); see Fed. R. Civ. P.
15(a)(2) (“The court should freely give leave when justice so requires.”). “In the absence
of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment,
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futility of the amendment, etc.—the leave sought should, as the rules require, be ‘freely
given.’” Foman, 371 U.S. at 182 (quoting Fed. R. Civ. P. 15(a)(2)). Here, Defendants
argue that the requested amendment is dilatory and futile. See Response [#43] at 5-7;
Response [#44] at 3-5.
Regarding whether Plaintiff’s litigation tactics here have been dilatory, the Motions
to Dismiss [#27, #30] have been fully briefed since mid-November, but the Motion to
Amend [#29] was not filed until February 23, 2022. The Court agrees with the City that
Plaintiff should have made the request to amend in a more timely manner. However,
given Plaintiff’s assertion that the proposed amendments are intended “to address the
alleged inadequacies” raised by Defendants in the Motions to Dismiss [#27, #30], see
Motion to Amend [#39] at 3, given the allegations mentioned above regarding Plaintiff’s
homelessness and indigency, see Proposed Second Am. Compl. [#39] at 14, and given
the liberal standard regarding amendment under Rule 15(a)(2), the Court finds that
Plaintiff has not been so dilatory as to deny amendment on this basis.
Defendants further argue that the proposed Second Amended Complaint would
not survive a motion to dismiss because it fails to cure deficiencies in the Amended
Complaint [#24]. See Response [#43] at 5-6; Response [#44] at 3-5. It is well settled
that a proposed amendment is futile only if the complaint, as amended, would not survive
a motion to dismiss. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (citing
Jefferson County Sch. Dist. v. Moody’s Investor’s Servs., 175 F.3d 848, 859 (10th Cir.
1999)). “In ascertaining whether plaintiff’s proposed amended complaint is likely to
survive a motion to dismiss, the court must construe the complaint in the light most
favorable to plaintiff, and the allegations in the complaint must be accepted as true.”
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Murray v. Sevier, 156 F.R.D. 235, 238 (D. Kan. 1994). Moreover, “[a]ny ambiguities must
be resolved in favor of plaintiff, giving [it] the benefit of every reasonable inference drawn
from the well-pleaded facts and allegations in [its] complaint.” Id. (quotations omitted).
The Court is not inclined to delve deeply into the merits of Defendants’ arguments
here for several reasons. While futility arguments often can and should be addressed in
connection with a motion for leave to amend a complaint, in many situations “futility
arguments are better addressed in a Motion to Dismiss.” Godfrey v. United States, No.
07-cv-02165-MSK-MEH, 2008 WL 80302, at *2 (D. Colo. Jan. 7, 2008). The Court finds
this situation to be one in which Defendants’ arguments would be better addressed
elsewhere. Defendants’ arguments rely on a detailed examination of Plaintiff’s current
and proposed allegations. On a motion seeking leave to amend, such arguments are
generally underdeveloped because the Court lacks the full briefing of a motion, response,
and reply regarding the merits of the Rule 12(b)(6) argument. Defendants do generally
incorporate their pending Motions to Dismiss [#27, #30], but they have not briefed with
adequate specificity how all of their arguments in that motion may or may not apply to the
proposed changes made in the Second Amended Complaint. The Court is not inclined
to do this work sua sponte. In short, it is not appropriate for the Court to examine the
allegations to resolve underdeveloped arguments at this very early stage in the
proceedings, i.e., on a motion seeking leave to amend. See Sutton v. Utah State Sch.
for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
Guided by the rule that amendments pursuant to Rule 15(a) are freely granted,
Plaintiff should be afforded the opportunity to test his claims under Rule 12(b)(6). See
Foman, 371 U.S. at 182 (“If the underlying facts or circumstances relied upon by plaintiff[s]
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may be a proper subject of relief, [they] ought to be afforded an opportunity to test [their]
claim on the merits.”). The Court makes no comment regarding the sufficiency of the
claims in the proposed Second Amended Complaint at this time, because the Court is
inclined instead to allow Plaintiff leave to amend and address the question of whether he
has adequately stated claims against Defendants to be decided on a fully-briefed
dispositive motion, if any, or at trial. Accordingly, Defendants’ futility arguments are
rejected as premature.
One final issue remains. In the case caption of the proposed Second Amended
Complaint, Plaintiff identifies the defendants as follows:
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 Vasconcellos, and 'doe'
judicial administrators; and
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; and
CSU 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.
See [#39] at 13. However, in the body of the Second Amended Complaint under the “Parties”
heading, Plaintiff identifies only the following Defendants: (1) City of Fort Collins, (2) Colorado
State University/Colorado State University Board of Governors, (3) Colorado Judicial
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Administrator Steven Vasconcellos, and (4) State of Colorado. Id. at 15. These, along with
“Doe Agents,” are the same Defendants listed in the currently-operative Amended Complaint
[#24]. Without appropriate identification and other information about the other persons
mentioned in the caption of the proposed Second Amended Complaint, the Court is not
inclined to interpret the proposed Second Amended Complaint as naming them as additional
parties at this time.
For the reasons set forth above, and considering that leave to amend should be
freely given, the Court permits Plaintiff leave to file his proposed Second Amended
Complaint as asserted against the State of Colorado, the City of Ford Collins, the CSU
Board of Governors, Colorado State University, and Steven Vasconcellos.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Amend [#39] is GRANTED. Plaintiff’s
Second Amended Complaint is accepted for filing as of the date of this Order. See [#39]
at 13-92. The Clerk of Court shall docket the Second Amended Complaint as a separate
document on the electronic docket.
IT IS FURTHER ORDERED that the Motion to Strike [#41] is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motions to Dismiss [#27, #30] are
DENIED as moot. See, e.g., Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163, 1172 (D.
Colo. 2006) (noting that the defendants’ motions to dismiss are “technically moot because
they are directed at a pleading that is no longer operative”).
IT IS FURTHER ORDERED that the Clerk of Court shall update Plaintiff’s mailing
address as shown on page 21 of Docket No. 47.
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Dated: April 29, 2022
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