HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry v. State of Colorado, et al - 051.0 - Motion to Dismiss Amended ComplaintIN 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;
Defendant.
DEFENDANT CITY OF FORT COLLINS’ MOTION TO DISMISS PLAINTIFF’S
SECOND AMENDED COMPLAINT [ECF 50]
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 Motion to Dismiss Plaintiff’s Amended Complaint (“Complaint”) [ECF 50], as follows:
D.C.COLO.LCivR 7.1: Pursuant to D.C.COLO.LCivR.7.1 conferral is not required.
Undersigned counsel believes the deficiencies identified in this Motion cannot be corrected by any
further amendment of the Complaint.
INTRODUCTION
In general, Plaintiff challenges the City’s camping and trespass ordinances. His claims
should be dismissed for a number of reasons. First, Plaintiff was prosecuted under the City’s
trespass ordinance over two years prior the filing of his lawsuit, and therefore any such claims are
barred by the statute of limitations. Plaintiff also lacks standing to seek prospective relief regarding
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the City’s trespass ordinance because he has not alleged a credible threat of future prosecution.
Furthermore, Plaintiff’s wrongful prosecution 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). The City is also entitled to absolute
immunity for the actions of its employees taken in connection with Plaintiff’s criminal prosecution
under the City’s trespass ordinance. Plaintiff also fails to plausibly plead any constitutional
violation, nor does he adequately allege a taking of protected property necessary for a Fifth
Amendment taking claim. Plaintiff also fails to show his conduct was involuntary and he is
therefore unable to establish an Eighth Amendment violation. Finally, Plaintiff’s conspiracy claims
are conclusory and devoid of proper factual support. See Ashcroft v. Iqbal, 556 U.S. 662 (Dec. 10,
2008). Accordingly, dismissal of the Complaint, with prejudice, is warranted.
SUMMARY OF FACTS 1
Plaintiff is a City resident and CSU alum. [ECF 50 at ¶¶ 74, 228]. On July 20, 2018,
Colorado State University (“CSU”) Officer Phil Morris issued Plaintiff an exclusionary order
barring Plaintiff from the CSU campus. [Id. at ¶¶ 127-128]. On August 7, 2018, after an appeal
hearing, the exclusionary order was upheld. [Id. at ¶ 129]. On August 24, 2018, a second appeal
hearing also affirmed the exclusionary order. [Id. at ¶¶ 131]. On November 20, 2018, Plaintiff
demanded an interpretation of the exclusionary policy. [Id. at ¶ 133]. After allegedly not receiving
a response, Plaintiff “returned to CSU.” [Id.]. On May 17, 2019, CSU Officer Derek Smith issued
Plaintiff another exclusionary order and a trespass citation under C.R.S. § 18-4-504. [Id. at ¶¶ 134].
1 For purposes of this Motion only, Plaintiff’s allegations are accepted as true. Nothing
herein shall be deemed to be an admission, and the City further reserves the right to dispute these
facts in any subsequent proceeding or pleading.
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On July 12, 2019, Officer Smith issued Plaintiff a second trespass citation under F.C.M.C. 17-
40(a). [Id. at ¶ 222]. Following a jury trial, Plaintiff was convicted of trespassing and sentenced to
66 days in jail. [Id. at ¶ 209]. Plaintiff appealed and his conviction was upheld. See Perry v. City
of Fort Collins, 2019CV205 (Colo. Dist. Ct., Larimer Cnty., March 31, 2020). [ECF 27-2].
ARGUMENT
A. Plaintiff Lacks Standing to Seek Prospective Relief Regarding the City’s Trespass
Ordinance (Third Claim).
Plaintiff has the burden to establish standing and a continuing injury for prospective relief.
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). Here, Plaintiff is unable to establish a credible threat of future prosecution. During
Plaintiff’s 31-year residency in Fort Collins, [Id. at ¶ 4], he has been prosecuted under the trespass
ordinance one time—July 12, 2019. [Id. at ¶ 282]. Plaintiff does not allege any other citations or
prosecutions under the City’s trespass ordinance. One prosecution under the City’s trespass
ordinance in a 31-year period, without more, does not show a credible threat of future prosecution.
There are no proper allegations showing a continuing injury, and therefore he lacks standing to
claim prospective relief regarding the City’s trespass ordinance.
B. Plaintiff’s Challenge to the City’s Trespass Ordinance (Third Claim) is Barred by the
Statute of Limitations; Plaintiff’s Challenge to the City’s Camping Ordinance (Fourth
Claim) is Partly Barred by the Statute of Limitations.
The statute of limitations period for a claim brought under § 1983 is determined by
“reference to the appropriate state statute of limitation and the coordinate tolling rules.” Fogle v.
Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006). In Colorado, the statute of limitations for a §1983
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claim, is two years. See C.R.S. § 13–80–102(1)(g); Hunt v. Bennett, 17 F.3d 1263, 1265 (10th
Cir. 1994). Here, Plaintiff’s second claim complains about a trespass citation issued on July 12,
2019. [ECF 50 at ¶ 222]. 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).2 Applying the two-year statute of limitations, Plaintiff had until July 12, 2021, to bring a
claim challenging application of the trespass ordinance. Plaintiff’s claim was not filed until August
26, 2021 and is therefore barred. Additionally, Plaintiff’s fourth claim is barred in part by the
statute of limitations. Plaintiff alleges he has been prosecuted by the City seven times for violating
the City’s camping ordinance. [Id. at ¶ 14]. Any violations which took place prior to August 26,
2019, are barred by the two-year statute of limitations.
C. Plaintiff’s Second Claim-Wrongful Prosecution Claim Is Barred by Heck v. Humphrey
and the Rooker-Feldman Doctrine.
In Heck, the Supreme Court concluded 42 U.S.C. § 1983 claims were not cognizable when
they implied the invalidity of a criminal conviction, unless the plaintiff could demonstrate the
conviction had already been invalidated. 512 U.S. at 487; see Edwards v. Balisok, 520 U.S. 641,
648 (1997) (extending the rule in Heck to § 1983 claims seeking declaratory relief). Heck also
bars those § 1983 claims that “necessarily imply the invalidity of [a] conviction.” Mehdipour v.
Denwalt-Hammond, 773 Fed. Appx. 463, 466 (10th Cir. 2019) (quoting Heck, 512 U.S. at 487).
Here, Plaintiff seeks a declaratory judgment that “he was unlawfully prosecuted, unlawfully
convicted, and unlawfully imprisoned.” [ECF 50 at ¶¶ 202, 236, 276]. Plaintiff, therefore, seeks to
invalidate his state court conviction for trespass. Additionally, Plaintiff’s conviction was affirmed
2 Attached as Exhibit A pursuant to D.C.Colo.LCiv.R. 7.1(e).
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on appeal. [See ECF 27-2]. As such, Plaintiff’s request is barred by Heck and constitutes an
improper use of § 1983. See Alexander v. Lucas, 259 Fed. Appx. 145, 147-48 (10th Cir. 2007).
Moreover, Plaintiff seeks to reverse decisions decided by the State court during his criminal trial,
and therefore any such allegations are barred by the Rooker-Feldman doctrine, which applies to
“cases brought by state-court losers complaining of injuries caused by state-court judgments
rendered before the [federal] district court proceedings commenced and inviting district court
review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus., Corp., 544
U.S. 280, 284 (2005). Under this Doctrine, federal district courts have no jurisdiction to consider
suits “that amount to appeals of state-court judgments.” Bolden v. City of Topeka, 441 F.3d 1129,
1139 (10th Cir. 2006). Here, Plaintiff complains about the validity of CSU’s underlying
exclusionary order, the Court’s jury instructions, and prosecutorial and judicial misconduct—these
issues were all raised before the Larimer County District Court on appeal and denied. [ECF 27-2].
The Court does not have jurisdiction over Plaintiff’s second claim.
D. The City is Entitled to Absolute Immunity Regarding Plaintiff’s Second Claim-Wrongful
Prosecution.
The City is entitled to absolute immunity under § 1983, for the actions of its employees
taken in connection with Plaintiff’s prosecution for trespass. See Imbler v. Pachtman, 424 U.S.
409, 96 (1976); Pierson v. Ray, 386 U.S. 547, 553-54 (1967). Imbler established prosecutors are
not required to submit to civil actions questioning their judgment in their performance of duties
“intimately associated with the judicial phase of the criminal process.” See Hammond v. Bales,
843 F.2d 1320, 1321 (10th Cir. 1988). Since Imbler, courts have broadly defined the scope of a
prosecutor’s absolute immunity to include decisions to prosecute and any related investigatory or
evidence-gathering functions undertaken in connection with the prosecutorial function. See
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Dohaish v. Tooley, 670 F.2d 934 (10th Cir. 1982); Hammond, 843 F.2d at 132; Scott v. Hern,
216 F.3d 897, 909 (10th Cir. 2000). Likewise, judges are entitled to absolute immunity for actions
taken in their judicial capacities. “Few doctrines were more solidly established at common law
than the immunity of judges from liability for damages for acts committed within their judicial
jurisdiction.” Pierson, 386 U.S. at 553-54. “Absolute immunity is . . . necessary to assure that
judges, advocates, and witnesses can perform their respective functions without harassment or
intimidation.” Butz v. Economou, 438 U.S. 478, 512 (1978). Here, Plaintiff claims the City,
through its employee prosecutors and judges, acted improperly during his criminal prosecution for
trespass. Trial advocacy is a quintessential prosecutorial function entitled to absolute immunity.
Judicial determinations rendered during trial are functions performed by a judge pursuant to his/her
judicial capacity and are, likewise, entitled to absolute immunity. Accordingly, the City is entitled
to absolute immunity regarding the Plaintiff’s wrongful prosecution claim.
E. Plaintiff Fails to Establish a Cognizable Fourteenth Amendment Due Process Violation
Regarding His Third and Fourth Claims.
a. As Applied.
Plaintiff’s as-applied due process claims must first be evaluated by the Court. See Hoffman
Estates v. Flipside, 455 U.S. 489, 495 (1982) (“A plaintiff who engages in some conduct that is
clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.
A court should therefore examine the complainant’s conduct before analyzing other hypothetical
applications of the law.”). Plaintiff’s as-applied challenge to the City’s trespass ordinance
necessarily fails, as a reasonable person in his position would have “‘fair notice from the language’
of the [ordinance] ‘that the particular conduct that he engaged in was punishable.’” Galbreath v.
City of Oklahoma, 568 Fed. Appx. 534, 540 (10th Cir. 2014) (citation omitted). The City’s trespass
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ordinance prohibits “fail[ing] to leave property, whether publicly or privately owned, after being
directed to do so by a person lawfully in control of the property.” F.C.M.C. 17-1(3). Applying the
allegations in Plaintiff’s Complaint, he clearly violated the City’s trespass ordinance when he:
• “Enter[ed] and remain[ed] unlawfully in or on property, whether publicly or privately owned,”
Plaintiff entered CSU property on July 12, 2019.3 See F.C.M.C. 17-40(a).
• By “fail[ing] to leave property, whether publicly or privately owned, after being directed to do
so by a person lawfully in control of the property,” Plaintiff’s conduct was unlawful because
he failed to leave CSU property on July 12, 2019, after being issued a permanent exclusionary
order by CSU on July 20, 2018, and a second exclusionary order by CSU Officer Smith on
May 17, 2019. [ECF 24 at ¶¶ 66-70; 144-145]. See F.C.M.C. 17-1(3).
Plaintiff entered CSU after being issued two exclusionary orders by CSU executives and
officers. Plaintiff could have filed a timely civil action to challenge the legality of CSU’s
exclusionary orders; he did not do so. Instead of filing a civil action, Plaintiff sent an email
demanding information and imposing an arbitrary deadline for CSU’s response. With the
exclusionary order still in effect, Plaintiff returned to CSU. The underlying substance of CSU’s
exclusionary orders and Plaintiff’s subjective perceptions of any deficiencies with these orders are
separate matters unrelated to Plaintiff’s trespass claim against the City. When Plaintiff returned to
CSU he committed a trespass under F.C.M.C. 17-40. A reasonable person in Plaintiff’s position
would have understood this conduct was clearly prohibited by the City’s trespass ordinance. As
such, the facts as applied to Plaintiff do not support a due process violation.
3 While Plaintiff does not specifically admit that he entered CSU on July 12, 2019, in his
Complaint, he did so at his criminal trial. [ECF 27-2].
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Similarly, Plaintiff fails to state a cognizable claim the City violated the Due Process
Clause regarding its enforcement of the camping ordinance as applied to Plaintiff. While Plaintiff
alleges he has been cited with violating the City’s camping ordinance seven times, he neglects to
include the most basic of information regarding his allegations—when they occurred, where they
occurred, what Plaintiff was doing at the time of the violations, and the dispositions. Because
Plaintiff has not alleged sufficient facts regarding his alleged camping activities, or lack thereof,
Plaintiff fails to state a claim against the City.
b. Facial challenge.
Plaintiff challenges both the City’s trespass and camping ordinance as overbroad and
unduly vague. As an initial matter, Plaintiff’s facial challenge is improper in the present context.
The Tenth Circuit has held facial challenges are appropriate in only two circumstances: (1) “when
a statute threatens to chill constitutionally protected conduct (particularly conduct protected by
the First Amendment) or (2) when a plaintiff seeks pre-enforcement review of a statute because it
is incapable of valid application.” Dias, 567 F.3d at 1179-80 (citation omitted). Here, neither
circumstance applies. First, neither ordinance threatens to chill any constitutionally protected
conduct. Trespassing on public lands is not a constitutionally protected right, see Church v. City
of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994), nor is sleeping on public property, see Joel v.
City of Orlando, 232 F.3d 1353, 1357 (11th Cir. 2000). Second, the City’s trespass and camping
ordinances have been in effect since 1972. In total, Plaintiff alleges he has been cited with
violating the City’s camping and trespass ordinances eight times in the last few years. [See e.g.
ECF 50 at ¶ 14]. Pre-enforcement review is inappropriate for two, almost forty-year-old
ordinances, which have been previously enforced. As such, Plaintiff’s facial challenge is and
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therefore his Plaintiff’s facial challenge is improper and should not be considered by the Court. If
the Court is inclined to consider the facial challenge, however, the overbreadth challenge must be
considered first. See Hoffman Estates, 455 U.S. at 494. “A court's first task is to determine whether
the enactment reaches a substantial amount of constitutionally protected conduct. If it does not,
then the overbreadth challenge must fail.” Id. If the law regulates conduct, as opposed to pure
speech, “the overbreadth of a statute must not only be real, but substantial as well, judged in
relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615
(1973). Moreover, “[v]iolence or other types of potentially expressive activities that produce
special harms distinct from their communicative impact . . . are entitled to no constitutional
protection.” Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984). Here, neither law is
overbroad. Both ordinances regulate conduct as opposed to speech, and penalize activities
constituting special harms to the City and its residents. Specifically, the trespass ordinance
prohibits activities posing obvious public safety risks to residents, and the camping ordinance
prohibits activities posing sanitation and hygienic risks to residents. Thus, the underlying conduct
is not entitled to any constitutional protection. See Roberts, 468 U.S. at 628. Moreover, neither
ordinance reaches a substantial amount of constitutionally protected conduct. 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 does not extend to
individuals present on city property after a person in lawful control of the property directed them
to leave. Indeed, “the Constitution does not confer the right to trespass on public lands.” Church,
30 F.3d at 1345. Moreover, individuals do not have a constitutionally protected right to sleep or
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conduct activities of daily living on public property. See Joel, 232 F.3d at 1357. As such, neither
the City’s trespass ordinance nor camping ordinance are overbroad. Likewise, neither ordinance
is unduly vague. “[T]he void-for-vagueness doctrine requires that a penal statute define the
criminal offense with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). The court should uphold a facial
vagueness challenge only if the statute is impermissibly vague in all applications. See Hoffman
Estates, 455 U.S. at 494.
The City’s trespass ordinance prohibits entering and remaining upon public or private
property unlawfully. F.C.M.C. 17-40. The City defines “enter and remain unlawfully” to include:
(1) To enter or remain in or upon privately owned property when not licensed,
invited, privileged or otherwise authorized to do so;
(2) To enter or remain in or upon publicly owned property that is not open to the
public;
(3) To fail to leave property, whether privately or publicly owned, after being
directed to do so by a person lawfully in control of the property; or
(4) To conduct oneself in a public place in violation of any rule or regulation issued
by any officer or agency having the power of control, management, or
supervision thereof, which limits or prohibits the use, activities or conduct in
such public place, provided that the rule or regulation is: (i) prominently posted
at all public entrances to the property; (ii) posted in such a way as to be clearly
visible from the site of the infraction; or (iii) actually known to the offender.
F.C.M.C. 17-1.
The City’s trespass ordinance is not vague in any respect; rather, it clearly outlines the
conduct that will subject an individual to prosecution for trespass. As such, the City’s trespass
ordinance is sufficiently specific that a person of ordinary intelligence could reasonably understand
the conduct that is prohibited. Also, the City’s trespass ordinance does not encourage arbitrary or
discriminatory enforcement. City officers must follow the definition of “enter and remain
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unlawfully” in enforcing the City’s trespass ordinance. There are only four ways an individual can
enter and remain unlawfully on public or private property in the City, and a citation for any conduct
not covered by F.C.M.C. 17-1 would constitute an improper application of the City’s ordinance.
Similarly, the City’s camping ordinance is not unduly vague. The City’s camping
ordinance states:
It shall be unlawful for any person to camp or pitch a tent, or knowingly permit any
person to camp or pitch a tent, on public property within the City. Camping, for the
purposes of this Section, shall mean to sleep, spend the night, reside or dwell
temporarily with or without bedding or other camping gear and with or without
shelter, or to conduct activities of daily living such as eating or sleeping, in such
place unless such person is camping in compliance with Chapter 23 in a natural or
recreation area. Camping shall not include incidental napping or picnicking.
F.C.M.C. 17-181.
By its plain language, the City prohibits certain activities on public property. Exceptions
include camping in natural or recreational areas and incidental napping and picnicking. The
prohibited conduct is clearly defined, as are the exceptions. As such, the City’s camping ordinance
is sufficiently specific that a person of ordinary intelligence could understand the conduct that was
prohibited. Similar camping ordinances have survived void-for-vagueness challenges under the
Due Process Clause. See Joel, 232 F.3d at 1360. Moreover, the City’s camping ordinance does not
encourage arbitrary and discriminatory enforcement. The ordinance provides a clear enforcement
standard to officers and “is sufficiently clear that the speculative danger of arbitrary enforcement
does not render the ordinance void for vagueness.” Hoffman Estates, 455 U.S. at 503.
c. Substantive Due Process.
Plaintiff alleges the City’s camping and trespass ordinances violate the Due Process Clause
because they target homeless individuals. “Homeless persons are not a suspect class, nor is
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sleeping out-of-doors a fundamental right.” Joel, 232 F.3d at 1357; see Cochran v. City of
Witchita, 2018 U.S. Dist. LEXIS 165825, *22 (D. Kan. Sept. 9, 2021) (“courts have not recognized
the homeless as a suspect class.”). If an ordinance does not infringe upon a fundamental right or
target a protected class, claims are evaluated under rational basis review. See Seegmiller v.
Laverkin City, 528 F.3d 762, 771 (10th Cir. 2008). Thus, rational basis review is appropriate here.
To satisfy the rational basis test, an ordinance “need only be rationally related to a legitimate
government purpose.” Powers v. Harris, 379 F.3d 1208, 1215 (10th Cir. 2004). Courts consider
whether a reasonably conceivable rational basis exists and “are not allowed to second guess the
wisdom of legislative policy-determinations.” Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1210
(10th Cir. 2009). Indeed, ordinances and other legislative enactments are entitled to a “strong
presumption of validity” so much so that review under this standard must be a “paradigm of
judicial restraint.” F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 314-15 (1993).
The City’s trespass ordinance prohibits individuals from remaining unlawfully on public
or private property. F.C.M.C 17-40. The City is pursuing a legitimate governmental purpose, most
obviously the protection of property rights, promotion of public safety, and the prevention of
crime. Additionally, a rational basis exists for believing that prohibiting trespass would protect the
rights of both public and private property owners and improve public safety and prevent crime. As
such, the City’s trespass ordinance easily survives rational basis review.
The City’s camping ordinance prohibits individuals from sleeping and conducting
activities of daily living on public property except in natural or recreation areas. F.C.M.C. 17-181.
Applying rational basis review, the City is pursuing a legitimate government purpose —including,
but not limited to, the promotion of aesthetics, sanitation, public health, and safety—by enacting
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an ordinance to prevent sleeping and conducting activities of daily living on public property. See
Joel, 232 F.3d at 1358 (citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 296-
98 (1984)). Additionally, rational basis exists for believing that prohibiting sleeping and
conducting daily living activities on public property would improve aesthetics, sanitation, public
health, and safety. Id. Both ordinances survive rational basis review; therefore, Plaintiff has failed
to state a substantive due process claim.
F. Plaintiff Has Not Alleged a Taking of Personal Property Necessary to Establish a Fifth
Amendment Takings Violation (Second, Third, and Fourth Claims).
Plaintiff claims the City’s trespass and camping ordinances violate the Fifth Amendment
Takings Clause. As an initial matter, Plaintiff’s allegations are conclusory and largely restate the
legal standard, which is insufficient to state a plausible takings claim. Plaintiff does not allege the
City seized any of his personal property during enforcement of its trespass and camping
ordinances. Based on Plaintiff’s Complaint, he appears to be attempting a regulatory taking claim
against the City. “Government regulation of private property may, in some instances, be so onerous
that its effect is tantamount to a direct appropriation or ouster—and that such 'regulatory takings'
may be compensable under the Fifth Amendment.” Lingle v. Chevron U.S.A., Inc., 544 U.S. 528,
537 (2005). There are per se regulatory takings and other regulatory takings; Plaintiff has not
established either here. A “per se” regulatory taking occurs in two instances: (1) "where
government requires an owner to suffer a permanent physical invasion of her property—however
minor," and (2) "regulations that completely deprive an owner of 'all economically beneficial use'
of her property.” Id. at 538 (citation omitted). Neither situation applies here. Plaintiff does not
allege a physical invasion of his property. Additionally, Plaintiff does not allege the City’s
ordinances deprived him of “all economically beneficial use of [his] property,” nor could he. The
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City’s ordinances had no impact on the economic value or benefit of Plaintiff’s car, which is the
only private property item alleged in his Complaint. [ECF 24 at ¶ 167].
Outside of these categories, when a regulation impedes the use of property without
depriving the owner of all economically beneficial use, a taking may still be found based on a
"complex of factors," including (1) the economic impact of the regulation on plaintiff, (2) whether
the regulation has interfered with distinct investment-backed expectations, and (3) the character of
the governmental action. Murr v. Wisconsin, 137 S. Ct. 1933, 1943 (2017) (citation omitted).
Plaintiff has not alleged any facts to show a taking based on these “complex” factors.
Regarding the City’s camping ordinance, the crux of Plaintiff’s taking claim is that he
should be able to use his private property (his car) however he sees fit, and any restriction on his
alleged right is a taking. Plaintiff does not cite any authority in support of this assertion, and the
City is unaware of any Tenth Circuit precedent which supports the application of the Takings
Clause in the manner Plaintiff seeks to do here. The government can, and does, place limitations
on individuals’ abilities to use and maintain their personal property in the exercise of the
government’s police powers. For takings purposes, the issue is not whether the government can
impose a limitation but whether the limitation is “onerous.” Lingle, 544 U.S. at 537. Here, it is
not. Nothing in the City’s camping ordinance (and its enforcement thereof) limited the Plaintiff’s
ability to use his car for its intended purpose—to drive. While Plaintiff wishes to use his car to
sleep and conduct activities of daily living, the City’s limitation on these activities on public
property in no way deprives Plaintiff of the use of his car.
Plaintiff’s takings claim regarding the City’s trespass claim is even more feeble. The
takings clause prohibits the government from taking private property without just compensation.
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U.S. Const. amend. V. Here, Plaintiff alleges the City’s trespass ordinance violated the takings
clause because it deprived him of unlimited access to public property. Plaintiff does not allege he
owned any private property which was taken by the City, and he does not own the public property
at issue. As such, application of the Takings Clause is entirely improper because the City did not
take any property from Plaintiff.
G. Plaintiff Fails to Plausibly Plead an Eighth Amendment Violation (Second, Third and
Fourth Claims).
The Eighth Amendment Cruel and Unusual Punishments Clause “circumscribes the
criminal process in three ways.” Ingraham v. Wright, 430 U.S. 651, 667 (1976). First, it limits the
type of punishment the government may impose; second, it prohibits punishment "grossly
disproportionate" to the severity of the crime; and third, it places limits on what type of conduct
the government may criminalize. Id. Regarding Plaintiff’s fourth claim, the third limitation is
pertinent. There is a distinction between criminal laws which punish conduct, which are
constitutionally permissible, and applying these laws to punish status, which is not permissible.
See Robinson v. California, 370 U.S. 660, 666 (1962). Plaintiff appears to argue the City’s
camping ordinance violates his Eighth Amendment right to be free of cruel and unusual
punishment because it punishes individuals for their status of being homeless. [ECF 50 at ¶¶ 22,
242, 298; ECF 50, at 78, ¶ 33]. While the Tenth Circuit has not specifically addressed this issue,
other circuits have held the Eighth Amendment prohibits penalizing homeless individuals who
cannot obtain shelter from sleeping outside. Martin v. City of Boise, 920 F.3d 584, 616 (9th Cir.
2017). Resolving this question in any case, therefore, rests on voluntariness. If the homeless
individual did not have any available shelter options, there is an Eighth Amendment violation. Id.
at 43-44. If the homeless person had available shelter options but chose to sleep on the public
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property, there is not. See Joel, 232 F.3d at 1362. Notably, in People v. Adam Wiemold,
2019CV30889 (Colo. Dist. Ct., Larimer Cnty., Feb. 4, 2021), attached hereto as Exhibit B, the
Court reversed the defendant’s conviction under the City’s camping ordinance, finding a violation
of the Eighth Amendment specifically as applied to the defendant, an employee of one of the City’s
homeless shelters (Catholic Charities), who as a condition of his employment, was banned from
sleeping at the City’s two homeless shelters (Catholic Charities and Fort Collins Rescue Mission
(“FCSM”)). Id. at pgs. 1-2; 13. The defendant slept in his car to pay off his debt and was cited
with violating the City’s camping ordinance on September 10, 2018. Id. at 1-2. The defendant
presented evidence both Catholic Charities and FCSM had reached bed capacity on September 10,
2018. Id. at pg. 2. While the Court ultimately reversed the defendant’s conviction, the Court noted
the defendant had “unique circumstances” as a shelter employee and the “facts here would likely
not apply to other individuals who are homeless in Fort Collins who would have access to either
shelter in Fort Collins.” Id. at 14. Here, Plaintiff has not alleged any facts to show his decision to
sleep on the street on the dates in question was an involuntary one. Plaintiff does not allege the
City’s shelters were filled or he was otherwise unable to stay at any shelters. Plaintiff has not
shown his decision to sleep on public property was involuntary, he therefore fails to establish an
Eighth Amendment violation.
Additionally, Plaintiff alleges the City’s trespass ordinance violates the Eighth
Amendment, but he does not allege how it violates the Eighth Amendment. Plaintiff’s claims are
based on unsupported, conclusory assertions insufficient to establish facial plausibility. It is
unclear whether Plaintiff alleges his sentence to 66 days in jail for violating the City’s trespass
ordinance is the basis for his Eighth Amendment claim, whether he alleges the Eighth Amendment
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was violated because the City’s trespass ordinance penalized him for his status as a homeless
person—or whether he is basing his claim on something else entirely. Regardless, Plaintiff has
failed to state a plausible claim. Plaintiff does not allege any facts to show his conviction for
trespass were “grossly disproportionate to the severity of the crime.” Velasquez v. Faulk, 2014
U.S. Dist. LEXIS 14845, *31-32 (D. Colo. Feb. 5, 2014) (quoting Lockyer v. Andrade, 538 U.S.
63, 72 (2003)) (recognizing the “gross disproportionality principle is applicable to sentences for
terms of years,” and “the gross disproportionality principle reserves a constitutional violation for
only the extraordinary case”). Additionally, Plaintiff has not alleged his presence in the area which
led to his conviction for trespass (CSU) was involuntary because of his homelessness. Rather, it
appears based on the allegations in Plaintiff’s Complaint that the opposite is true—Plaintiff, a CSU
alum, frequents CSU because he enjoys doing so. [See e.g. ECF 50 at ¶¶ 227]. As such, Plaintiff
fails to establish an Eighth Amendment violation.
H. Plaintiff Has Not Adequately Pled a Fourteenth Amendment Equal Protection Claim
(Second and Fourth Claims).
The Equal Protection Clause prohibits selective enforcement of the law based on race,
ethnicity, or other impermissible considerations. Whren v. United States, 517 U.S. 806, 813
(1996). The standard for proving a violation of Equal Protection based on selective enforcement
is a “demanding” one. United States v. Armstrong, 517 U.S. 456, 463 (1996). “The plaintiff must
demonstrate that the defendant's actions had a discriminatory effect and were motivated by a
discriminatory purpose." Robinette v. Schirard, 2014 U.S. Dist. LEXIS 42747, *28-29 (D. Colo.
Feb. 11, 2014) (citing Marshall v. Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1168 (10th Cir.
2003)). While the discriminatory purpose need not be the only purpose, it must be a motivating
factor in the decision. See Villaneuva v. Carere, 85 F.3d 481, 485 (10th Cir. 1996). Here, Plaintiff
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alleges the City targets homeless individuals through enforcement of its camping and trespass
ordinances. “Homeless persons are not a suspect class, nor is sleeping out-of-doors a fundamental
right.” Joel, 232 F.3d at 1357; Cochran, 2018 U.S. Dist. LEXIS 165825, *22. Therefore, the City
only needs rational basis for its actions. While Plaintiff in a conclusory fashion alleges the City
targets homeless individuals through enforcement of its trespass ordinance, Plaintiff provides no
proper allegation he was targeted or charged with violating the trespass ordinance because he is
homeless. Rather, Plaintiff alleges CSU issued him an exclusionary order for feeding squirrels and
then alleges CSU officers issued Plaintiff a citation under the City’s trespass ordinance for
violating the exclusionary order. Moreover, Plaintiff does not properly allege the City enforces its
trespass ordinance with discriminatory purpose and discriminatory effect. As such, Plaintiff’s
allegations do not support a claim of selective enforcement. Plaintiff’s allegations the City targets
homeless individuals through enforcement of its camping ordinance are conclusory. No proper
allegations are set forth respecting the City’s enforcement has a discriminatory purpose or effect.
In Joel, the Court upheld a similar camping ordinance, finding the ordinance did not
encourage discriminatory enforcement.4 232 F.3d at 1360. “The fact that the vast majority of
people arrested for violating the ordinance are homeless does not, by itself, show that City police
officers discriminate against homeless persons in the enforcement of the ordinance.” Id. at 1360,
n. 5.
4 In Joel, the Court evaluated whether the ordinance at issue led to discriminatory
enforcement under the Due Process Clause. Here, Plaintiff alleges selective enforcement in
violation of the Equal Protection Clause, which requires a showing of discriminatory effect. While
the standards slightly differ, the Court’s reasoning in Joel is persuasive here.
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Here, Plaintiff does not provide any more than conclusory assertions in support of his
claim. While Plaintiff alleges he has been cited with violating the City’s camping ordinance seven
times, he does not allege any conduct revealing a motivation to charge Plaintiff because he is
homeless. Moreover, Plaintiff does not allege any facts showing the City cited other homeless
individuals with violations of its camping ordinance, because of these individuals’ homelessness.
Conclusory statements and unsupported assertions are insufficient to establish facial plausibility.
Ashcroft, 556 U.S. at 678. As such, Plaintiff fails to state an equal protection claim regarding the
City’s camping ordinance.
I. The City’s Trespass Ordinance (Third Claim) Takes Precedence Over State Law.
Plaintiff argues the City’s trespass ordinance cannot apply to public property since it
conflicts with state law. The Home Rule Amendment to the Colorado Constitution grants home
rule municipalities, such as the City, “plenary authority” to regulate areas of local concern. See
Trinen v. City & County of Denver, 53 P.3d 754, 758 (Colo. Ct. App. 2002). In the event of a
conflict between a home rule city ordinance and state statute, the ordinance takes precedence over
the statute in areas of local concern. Id. Trespass on public property in the City is clearly an area
of local concern; therefore, the City’s trespass ordinance would take precedence.
J. Plaintiff Fails to State Claim Under 42 U.S.C. §§ 1985 and 1986.
To establish a § 1985(3) claim, a plaintiff must allege: (1) a conspiracy; (2) to deprive
plaintiff of equal protection or equal privileges and immunities; (3) an act in furtherance of the
conspiracy; and (4) an injury or deprivation resulting therefrom.5 See Tilton v. Richardson, 6 F.3d
5 To assert a claim under § 1986, a plaintiff must first assert a valid § 1985(3) claim. See
Hill v. Unnamed Arapahoe County Det. Officers, 2012 U.S. Dist. LEXIS 35604, *12 (D. Colo.
March 15, 2012).
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683, 686 (10th Cir. 1993). A valid § 1985(3) claim must also allege a conspiracy that is motivated
by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus.” Id. Here,
Plaintiff alleges the City violated §§ 1985-86 in two instances: City employees conspired to violate
Plaintiff’s rights during his criminal trial [ECF 50 at ¶¶12, 282] and City officers conspired to
enforce an overly broad and vague camping ordinance [Id. at ¶ 20]. However, does not properly
allege how City employees somehow conspired against him. Plaintiff’s argument relies upon ipso
dixit logic; however, an action is not a conspiracy simply because Plaintiff says so. See Trujillo v.
Campbell, 2012 U.S. Dist. LEXIS 118585, *29 (D. Colo. Aug. 22, 2012) (“Plaintiff's mere
speculation that a conspiracy existed is not competent evidence to show the existence of a
conspiracy.”). Furthermore, contrary to Plaintiff’s assertions, the City is not liable for the actions
of its employees by application of respondeat superior. See Monell, 436 U.S. at 694. Other than a
generalized citation to §§ 1985-86, and making a blanket and conclusory reference, Plaintiff does
not show a conspiracy existed. As such, Plaintiff’s claims necessarily fail.
II. CONCLUSION
WHEREFORE, for the reasons set forth above, Defendant City of Fort Collins respectfully
requests that 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.
Respectfully submitted this 13th day of May 2022.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Katherine N. Hoffman, Esq
Hall & Evans, L.L.C.
ratnerm@hallevans.com
hoffmank@hallevans.com
ATTORNEYS FOR DEFENDANT
THE CITY OF FORT COLLINS
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 13th day of May 2022, 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
Allison R. Ailer, #33008
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, CO 80203
Attorneys for The State of Colorado;
Board of Governors of the CSU System,
acting and on behalf of CSU; Colorado State University;
and Steven Vasconcellos
Skip Spear, #32061
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, CO 80203
Attorneys for The State of Colorado;
Board of Governors of the CSU System,
acting and on behalf of CSU; and Colorado State University
s/Sarah M. Stefanick
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