HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry v. State of Colorado, et al - 053.0 - State Dfs' Motion to DismissIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 21-CV-2306-KLM ROBERT LAWRENCE PERRY Plaintiff, v. THE STATE OF COLORADO, et al, Defendants.
THE STATE DEFENDANTS’ MOTION TO DISMISS THE AMENDED PETITION FOR RELIEF
Steven Vasconcellos and the CSU Board of Governors (collectively, the “State
Defendants”)1 hereby move to dismiss the Amended Petition for Relief filed by
Robert Lawrence Perry (“Plaintiff”) and state as follows:
RULE 7.1 CONFERRAL
Pursuant to D.C.COLO.LCivR 7.1(b)(2) no conferral is required because this
motion is brought pursuant to Fed. R. Civ. P. 12.
THE ALLEGATIONS
On July 20, 2018, and May 19, 2019, Officers with the Colorado State
University Police Department cited Plaintiff for trespassing on the University
1 The individual members of the CSU Board of Governors and other individually named and unnamed state employees have not been personally served, as required by Fed. R. Civ. P. 4. The undersigned respectfully request leave to file one response after all remaining state employees have been served.
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campus and issued orders excluding him from the campus. See Compl., Doc. 50, ¶¶
127; 134. On December 19, 2019, Plaintiff was convicted by a jury of third degree
trespass under Colorado Revised Statute § 18-4-504(1) in the County Court for
Larimer County, case 19M1142. See Perry v. People, 2020CV122, p. 1 (Colo. Dis.
Ct., Larimer Cnty., April 22, 2021), attached as Exhibit A.
On July 12, 2019, Plaintiff was again cited by a University Police Officer for
trespassing on campus. On November 8, 2019, Plaintiff was convicted by a jury of
trespass in violation of Fort Collins Municipal Code § 17-40(a) in the Municipal
Court for the City of Fort Collins, case 2019-4695-MD. See Perry v. City of Fort
Collins, 2019CV205 (Colo. Dist. Ct., Larimer Cnty., March 31, 2020), attached as
Exhibit B.
Plaintiff appealed both of his convictions to the Colorado District Court in
Larimer County, cases 2019CV205 and 2020CV122. In both appeals, Plaintiff
asserted the same arguments as in this case – that the University exclusionary
orders violate due process and that § 18-4-504(1) is unconstitutional. As noted by
the District Court, Plaintiff’s arguments are “couched in constitutionalist and
sovereign citizen language.” Ex. A, p. 4.
“So-called sovereign citizens believe that they are not subject to government
authority and employ various tactics in an attempt to … derail criminal
proceedings.” Gravatt v. U.S., 100 Fed. Cl. 279, 282 (2011) (footnote and citations
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omitted). “The weapon of choice for sovereign citizens is paper. A simple traffic
violation or pet-licensing case can end up provoking dozens of court filings
containing hundreds of pages of pseudo-legal nonsense.” S. Poverty Law Ctr.,
Sovereign Citizens Movement, (last visited July 16, 2018 2); see also Anti-Defamation
League Special Rep., The Lawless Ones the Resurgence of the Sovereign Citizen
Movement, p. 16 (2d ed. 2012) (“The most common sovereign citizen tactics fall into
the realm of what has come to be termed ‘paper terrorism.’ Paper terrorism
involves the use of bogus legal documents and filings, or the misuse of legitimate
ones, to intimidate, harass, threaten or retaliate against public officials, law
enforcement officers, or private citizens.”).3
Plaintiff’s actions in the state courts below followed the general practice of
sovereign citizens. As example, the record from the proceedings before the Fort
Collins Municipal Court is approximately 350 pages in length. The District Court
characterized Mr. Perry’s fillings as “generally nonsensical and meaningless.” Ex.
A, p. 4. n.1. And went on to state that the “Court of Appeals in Colorado has held
that arguments generally made by individuals with similar mindsets as the
2 Available at: https://www.splcenter.org/fighting-hate/extremist-files/ideology/sovereign-citizens-movement
3 Available at: https://www.adl.org/sites/default/files/documents/assets/pdf/combating-hate/Lawless-Ones-2012-Edition-WEB-final.pdf
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Appellant are ‘patently frivolous and without merit.’ ” Id. p. 4 (quoting People v.
Drew, 250 P.3d 761 (Colo. App. 2010)). Even more bluntly, Plaintiff is “arguing
constitutionalist/sovereign citizen nonsense.” Id. p. 5.
Plaintiff now asks the Federal District Court to revisit his state convictions,
based on the same arguments, and alleges that the State Defendants violated the
Fifth, Eighth, and Fourteenth Amendments by prohibiting him from entering upon
CSU’s campus and sues pursuant to 42 U.S.C. § 1983—even though the due process
clause of the Fifth Amendment does not apply to the States and the Eighth
Amendment only applies to incarcerated prisoners. Doc. # 50 at ¶ 15.
In his First Claim for Relief, Plaintiff asks the Court to declare the
University’s “exclusionary orders” unconstitutional and he seeks to enjoin future
enforcement of the order. Doc. # 50 at ¶¶ 260-273. In his Second Claim for Relief,
Plaintiff alleges his Eight, Fifth, and Fourteenth Amendment rights were violated.
Id. at ¶¶ 274-285. Plaintiff seeks the same relief from this Court that was denied
by the state courts.
LEGAL ARGUMENT
The State Defendants move to dismiss the claims asserted by Plaintiff
because this Court lacks subject matter jurisdiction and Plaintiff failed to state
claims upon which relief can be granted.
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I. THIS COURT LACKS SUBJECT MATTER JURISDICTION
Under Rule 12(b)(1) dismissal is appropriate where the Court lacks subject
matter jurisdiction. When a party facially attacks the complaint’s allegations as to
the existence of subject matter jurisdiction, Plaintiff has the burden of establishing
jurisdiction. Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir.
2008).
A. The State Defendants have Eleventh Amendment immunity.
The Eleventh Amendment bars suits in federal court for damages and
injunctive relief against states and state agencies unless the state unequivocally
waives its immunity or Congress expressly abrogates the state’s immunity in
creating a statutory cause of action. Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 97-102 (1984). A state’s waiver must be express and unequivocal. V-1
Oil Co. v. Utah State Dep’t of Pub. Safety, 131 F.3d 1415, 1421 (10th Cir. 2002). It
is well established that the Colorado Governmental Immunity Act (the “CGIA”) does
not waive Eleventh Amendment immunity for claims under § 1983. Colo. Rev. Stat.
§ 24-10-101 et. seq.; Greiss v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988).
Here, Plaintiff sued the CSU Board of Governors. See Doc # 50. The
Eleventh Amendment expressly bars Plaintiff’s claim against the Board of
Governors. U.S. Const. amend. XI. CSU is a “state institution of higher education .
. . subject to the control of the state.” See Colo. Const. art. VIII, § 5. Its Board
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members are either appointed by the Governor or chosen through state-wide
election. Colo. Rev. Stat. §23-30-101. The Board of Governors is an “arm-of-the-
state” and, thus, immune. U.S. ex rel Ruotsinoja v. Bd. Of Governors of the Colo.
State Univ. Sys., 43 F.Supp.3d 1190, 1196 (D. Colo. 2014).4
B. Plaintiff’s claims are barred by the Rooker-Feldman Doctrine.
The United States District Courts have no authority to review final
judgments of a state court in judicial proceedings. Dist. Of Columbia Ct. of Appeals
v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923). Review of state court judgments and decrees may be had only in the United
States Supreme Court. Id.; 28 U.S.C. § 1257. This is true even where there are
allegations that the state court’s action was unconstitutional, such as a deprivation
of equal protection rights. Feldman, 460 U.S. at 485-86 (citation omitted).
Where a constitutional issue could have been reviewed on direct appeal by
the state appellate courts, a litigant may not seek to reverse or modify the state
court judgment by bringing a constitutional challenge. Anderson v. State of Colo.,
4 The Ex Parte Young doctrine does not apply because Plaintiff sued individual state employees in their personal/individual capacity [Doc. # 50], not in their official capacity. Romero v. City and Cnty of Denver Dep’t. of Soc. Servs., 57 F.App’x 835, 838 (10th Cir. 2003) (unpub’d); Ex Parte Young, 209 U.S. at 155-156. Furthermore, the Ex Parte Young exception does not apply to relief styled as prospective relief, but which actually seeks compensation for a past injury by a state official. See
Green v. Mansour, 474 U.S. 64, 73 (1985).
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793 F.2d 262 (10th Cir. 1986). To the extent that Plaintiff seeks review of the
legality of Colo. Rev. Stat. § 18-4-504, the legality of CSU’s exclusionary orders, and
to overturn his criminal convictions for trespass—issues previously decided by the
state courts—this Court lacks subject matter jurisdiction over his claims. See
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
For these reasons, the Court lacks subject matter jurisdiction and, Plaintiff’s
lawsuit must be dismissed.
II. PLAINTIFF FAILS TO STATE A CLAIM
A defendant may move to dismiss for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). The complaint cannot survive a
motion to dismiss without some factual context sufficient to state a claim to relief
that is “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-557
(2007). To survive dismissal for failure to state a claim, a complaint must contain
factual allegations sufficient to “raise a right to relief above the speculative level.”
Id.at 555. To do so, “‘[t]he pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a legally cognizable right of
action.’” Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure §
1216, pp. 235-236 (3d ed. 2004)); see also Fed. R. Civ. P. 8(a). A party must plead
affirmative factual content, as opposed to a merely conclusory recitation that the
elements of a claim have been satisfied, that “allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The court is not obliged to take as true a
legal conclusion couched as a factual allegation. Id. at 678. Dismissal is proper
“where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct. Id. at 679. Here, Plaintiff’s lawsuit fails to state a claim
for several reasons.
A. Plaintiff’s § 1983 claims are time-barred.
Although the statute of limitations is an affirmative defense, a district court
may grant a Rule 12(b)(6) dismissal when it is clear from the face of the complaint
that the plaintiff’s claim is time-barred. Sierra Club v. Okla. Gas & Elec. Co., 816
F.3d 666, 671 (10th Cir. 2016); Aldrich v. McCulloch Props., Inc., 627 F.2d 1036,
1041 n.4 (10th Cir.1980). In Colorado, all actions against any public or
governmental entity or any employee of a public or governmental entity must be
commenced within two years after the cause of action accrues, and not thereafter.
Colo. Rev. Stat. § 13-80-102(h). The two-year statute of limitations also applies to
Section 1983 claims. Lyons v. Kyner, 367 F. App’x 878, 882 (10th Cir. 2010) ;
Workman v. Jordan, 32 F.3d 475, 482 (10th Cir. 1994).
Federal law governs the question of accrual in civil rights actions, and thus,
dictates when the statute of limitations begins to run. Smith v. City of Enid, 149
F.3d 1151, 1154 (10th Cir. 1998). “A civil rights action accrues when the plaintiff
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knows or has reason to know of the injury which is the basis of the action.” Id.
“Discrete discriminatory acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges. Schuler v. University of Denver, 2014
WL 4948113, *8 (D. Colo. October 1, 2014), quoting Nat’l R.R. Pass. Corp. v.
Morgan, 536 U.S. 101, 122 (2002).
Here, Plaintiff knew or had reason to know about his claimed injuries no
later than July 12, 2019, when he received the third citation for trespass. See Doc.
1 at ¶¶ 26-28. Yet Plaintiff waited more than two years, until August 26, 2021, to
file his Complaint. See Doc. # 1. And he waited until April 29, 2022, to sue the
individual CSU employees. Doc. # 50. Because Plaintiff delayed the filing of his
lawsuit for more than two years, he cannot pursue claims arising out of the
“exclusionary orders.” Colo. Rev. Stat. §§ 13-80-102(a), (g), and (h). For these
reasons, Plaintiff’s declaratory and injunctive relief claims are time-barred.
B. The State Defendants are not “persons” within the meaning of
42 U.S.C. § 1983.
Section 1983 provides:
Every person, who under color of any statute, ordinance, regulation, custom, or usage, of any State… subjects, or causes to be subjected, any citizen of the United States…to deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured …
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42 U.S.C. § 1983 (emphasis added). The United States Supreme Court has held
that neither the state nor its officials acting in their official capacities are “persons”
under § 1983 for purposes of damages or equitable claims. Will v. Michigan Dept. of
State Police et al., 491 U.S. 58, 71 (1989); City of Kenosha v. Bruno, 412 U.S. 507
(1973).
Here, Plaintiff sues the CSU Board of Governors. See Doc. # 1. Consequently,
Plaintiff’s § 1983 claims for declaratory and injunctive relief against the Board must
be dismissed.
C. Plaintiff fails to allege Mr. Vasconcellos participated in the
alleged constitutional deprivations.
“Individual liability under § 1983 must be based on personal involvement in
the alleged constitutional violation.” Schneider v. City of Grand Junction Police
Dep’t, 717 F.3d 760, 768 (10th Cir. 2013) (citing Foote v. Speigel, 118 F.3d 1416,
1423 (10th Cir. 1997)). More specifically, “[b]ecause vicarious liability is
inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676.
The Iqbal standard has “greater bite” in the “context of a § 1983 claim
against individual government actors, because ‘they typically include complex
claims against multiple defendants.’” Kansas Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1215 (10th Cir. 2011) (citations omitted). Where several government
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actors are named as defendants, “it is particularly important … that the complaint
make clear exactly who is alleged to have done what to whom, to provide each
individual with fair notice as to the basis of the claims against him or her, as
distinguished from collective allegations against the state.’” Robins v. Oklahoma,
519 F.3d 1242, 1250 (10th Cir. 2008) (emphasis in original). Further, “the plaintiff's
facile, passive-voice showing that his rights ‘were violated’ will not suffice. Likewise
insufficient is a plaintiff's more active-voice yet undifferentiated contention that
‘defendants’ infringed his rights. … Rather, it is incumbent upon a plaintiff to
identify specific actions taken by particular defendants ….” Pahls v. Thomas, 718
F.3d 1210, 1225-26 (10th Cir. 2013) (internal citations and quotation marks
omitted, emphasis in original).
Here, Plaintiff has not identified any specific action taken by Mr.
Vasconcellos that violated his rights. See Doc. # 50. The sole allegation concerning
Mr. Vasconcellos is that Plaintiff “notified Judicial Administrator Steven
Vasconcellos of the unauthorized use, but [Mr. Vasconcellos] did not reply.” Id. at ¶
211. Allegations of failure to reply do not rise to the level of a constitutional
violation. Therefore, Plaintiff’s § 1983 claim must be dismissed as to Mr.
Vasconcellos.
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D. The Fifth and Eighth Amendments do not apply in this case.
“The Due Process Clause of the Fifth Amendment applies only to action by
the federal government while the Due Process Clause of the Fourteen[th]
Amendment applies to actions by state governments. Here, [Plaintiff] alleges
conduct only done by state authorities, and thus there can be no Fifth Amendment
claim.” Koessel v. Sublette Cnty. Sheriff’s Dept., 717 F.3d 736, n.2 (10th Cir. 2013).
“Eighth Amendment scrutiny is appropriate only after the State has complied
with the constitutional guarantees traditionally associated with criminal
prosecutions.... [T]he State does not acquire the power to punish with which the
Eighth Amendment is concerned until after it has secured a formal adjudication of
guilt in accordance with due process of law.” Ingraham v. Wright, 430 U.S. 651, 671-
672, n.40 (1977); see Bell v. Wolfish, 441 U.S. 520, 535, n.16 (1979). In the instant
matter, all of Plaintiff’s allegations concern his treatment prior to his convictions,
and the Eighth Amendment does not apply.
E. Plaintiff failed to state a cognizable equal protection claim.
The Fourteenth Amendment to the United States Constitution provides that
no state shall “deny to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. Amend. XIV. The Equal Protection clause is triggered only when
the government treats someone differently than another who is similarly situated.
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
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Here, Plaintiff does not base his equal protection claim on membership in a
protected class. See Doc. # 50. Indeed, Plaintiff did not allege on what grounds an
equal protection violation occurred. See id. He did not allege who or what similarly
situated group of people received better treatment than him, or that he was
intentionally treated differently than another who was similarly situated. See id.
For these reasons, Plaintiff’s equal protection claim fails as a matter of law.
F. Plaintiff failed to state a cognizable due process claim.
Plaintiff alleges both substantive and procedural due process violations
arising from his exclusion from the University campus on the basis of allegedly
“feeding squirrels.” Doc. 50, ¶ 10; 43.5 But Plaintiff’s allegations do not state a
legally cognizable claim.
“[T]o prevail on either a procedural or substantive due process claim, a
plaintiff must first establish that a defendant's actions deprived plaintiff of a
protectible property interest.” Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir.
2007) (footnote omitted, quoting Hyde Park Co. v. Santa Fe City Council, 226 F.3d
1207, 1210 (10th Cir.2000). “Such an interest arises not from the Due Process
Clause of the Constitution itself, but is ‘created by independent sources such as a
state or federal statute, a municipal charter or ordinance, or an implied or express
5 As the underlying State criminal cases demonstrate, Plaintiff was excluded from campus for harassing and confronting University employees—not because he was feeding squirrels.
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contract.’” Id. at 1079 (quoting Carnes v. Parker, 922 F.2d 1506, 1509 (10th
Cir.1991)). Here, the State court found Plaintiff does not have any such interest:
Nothing in C.R.S. § 13-21-115(5)(a) or in the common law of the State of
Colorado creates an absolute right for an invitee to remain or prohibits a
landowner from revoking an invitation. In the common non-legal usage of the
term invitee, [Plaintiff] was not an invitee as no one invited him to CSU. Under
the statutory and common-law definitions, [Plaintiff] had no business with
CSU and there is no representation that the public is requested, expected, or
intended to enter an[d] remain on CSU campus for any conceivable purpose.
Further, to the extent there is an invitation, [Plaintiff’s] invitation was revoked
when he was served the exclusionary order.
Ex. A pp. 11-12; Ex. B pp. 7-8 (same).
Similarly, and assuming that Plaintiff did have an interest in entering the
campus, the State court already determined that he was provided full due process:
While it is clear that [Plaintiff] does not agree with nor like the process provided by the University, his displeasure does not a constitutional challenge make. The Court finds that the process for a hearing an appeal provides sufficient due process such that the exclusionary order and the University’s ability to exclude [Plaintiff] under C.R.S. 18-4-504(1) is not unconstitutional as applied.
Ex. A p. 8
Finally, Plaintiff fails to state a substantive due process claim. “The ‘ultimate
standard’ for assessing an alleged violation of substantive due process is ‘whether
the challenged government action shocks the conscience of federal judges.’” Ward v.
Anderson, 494 F.3d 929, 937 (10th Cir. 2007) (quoting Moore v. Guthrie, 438 F.3d
1036, 1040 (10th Cir. 2006)). “Not surprisingly, little governmental action is held
unconstitutional under th[is] formulation[].” Williams v. Berney, 519 F.3d 1216,
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1221 (10th Cir. 2008) (alterations in original, quoting 1 Martin A. Schwartz, Section
1983 Litigation § 3.05[D], at 3-116 (4th ed. 2006)). Plaintiff’s allegations that he
was excluded from the campus for feeding squirrels and that Mr. Vasconcellos did
not respond to his complaint, do not arise to a substantive due process violation.
G. Vasconcellos is immune.
To the extent Plaintiff alleges individual capacity claims against Mr.
Vasconcellos, he is immune. “The doctrine of qualified immunity protects
government officials from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Clark v. Wilson, 625 F.3d 686, 690 (10th
Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223 (2009)). The doctrine is
applicable to a public official, like Mr. Vasconcellos, who is required to exercise
discretion, shielding him from personal liability for civil damages. Apodaca v.
Raemisch, 864 F.3d 1071, 1075-76 (10th Cir. 2017). A constitutional right is clearly
established when a Tenth Circuit precedent is on point, making the constitutional
violation apparent. Apodaca v. Raemisch, 864 F.3d at 1076; Lowe v. Raemisch, 864
F.3d 1205, 1208 (10th Cir. 2017). The claimed precedent cannot define the right at
a high level of generality. Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). Rather, the
precedent must be particularized to the facts. White v. Pauly, 137 S. Ct. 548, 552
(2017) (per curiam).
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Here, a court administrator, like Mr. Vasconcellos, must exercise
discretionary judgment within the court system. Thus, he may assert qualified
immunity. See Beedle v. Wilson, 422 F.3d 1059, 1069 (10th Cir. 2005). Plaintiff
cannot point this Court to a single Tenth Circuit or Supreme Court case
establishing that a court administrator’s failure to respond to litigant’s complaint
about a court order is unlawful. For this reason, Plaintiff’s individual capacity
claims must be dismissed on qualified immunity grounds.
CONCLUSION
The Court lacks subject matter jurisdiction and Plaintiff failed to state a
plausible claim under any theory of the law. For the reasons set forth above,
Plaintiff’s lawsuit must be dismissed.
WHEREFORE, the State Defendants respectfully request the Court dismiss
Plaintiff’s claims and grant them any other relief deemed just and reasonable.
Dated: May 13, 2022.
PHILIP J. WEISER Attorney General
s/ Allison R. Ailer
ALLISON R. AILER* 33008 Civil Litigation & Employment Section SKIPPERE S. SPEAR* 3201 Senior Assistant Attorney General State Services Section
Attorneys for the State Defendants
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1300 Broadway, 6th Floor Denver, CO 80203 Telephone: (720) 508-6617/(720) 508-6140 Email: allison.ailer@coag.gov skip.spear@coag.gov *Counsel of Record
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CERTIFICATE OF SERVICE I certify that I served the foregoing THE STATE DEFENDANTS’
MOTION TO DISMISS THE AMENDED PETITION FOR RELIEF upon
all parties herein by e-filing with the CM/ECF system maintained by the court
or by depositing copies of same in the United State mail, first-class postage
prepaid, at Denver, Colorado, this 13th day of May 2022 addressed as follows:
Robert Lawrence Perry 4786 McMurry Ave., Unit 242 Fort Collins, Colorado 80522 fort_scout@yahoo.com
s/ Allison R. Ailer
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