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HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry v. State of Colorado, et al - 059 - Pl's Response to State Dfs' Motion to DismissIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:21-cv-02306-RM-KLM Robert-Lawrence: Perry, Plaintiff v. 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 Neito, 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 Nic Olsen, and each heir appointee and/or official; each Individual Jointly and Severally Liable as Co-Defendants; and, Larimer County Board of Governors, and each individual member personally and in his/her official capacity, and all doe administrators, agents, employees, and officials acting individually or together personally or in their official capacity. 1 RESPONSE TO STATE's MOTION TO DISMISS SUMMARY STATEMENT As a preliminary matter, Petitioner has contacted legal counsel for Defendants and informed each of them that he intends to file a second motion to amend Second Amended Complaint to eliminate allegations of criminal misconduct, and amend the allegations to eliminate claims of his unlawful arrest, unlawful conviction and unlawful imprisonment. Defendant's arguments regarding these claims, including arguments of immunity, application of the Rooker-Feldman doctrine, and failure to state a claim for these allegations will not apply, so these arguments will become irrelevant and moot. Notably, none of the Defendants have responded or objected to further amendment of the Complaint to eliminate allegations of misconduct. Petitioner seeks declaratory and injunctive relief by Court decision whether: a.Colorado State University 'exclusionary order' policy is unconstitutional; and, b.Whether CSU permanent 'exclusionary orders' are unconstitutional; and, c.Whether C.R.S. § 18-9-109 (1) prohibits exclusion from CSU campus; and, d.Whether the City trespass ordinance applies to state property like CSU; and e.Whether F.C.M.C. Sec. 17-1 (3) and (4) are unconstitutional as applied; and, f.Whether Fort Collins 'camping' ordinances are facially unconstitutional; and, g.Whether C.R.S. § 18-4-201(1) exempts public property from trespass laws. Petitioner is not seeking relief to invalidate his arrest, prosecution, conviction or imprisonment. Petitioner simply seeks declaratory and injunctive relief so that he may 'conduct activities of daily living', and have equal access to public property. 2 RESPONSE TO STATE's MOTION TO DISMISS Without addressing the Defendant's arguments regarding claims and allegations of Defendant's unlawful conduct and not including Petitioner's allegations and claims of unlawful arrest, unlawful conviction, and unlawful imprisonment, Petitioner's arguments are limited to just questions of law: a) the constitutionality of CSU exclusionary orders, and the CSU policy that provides for its use; b) proper application and interpretation of: C.R.S. § 18-9-109 (1), C.R.S. § 18-4-201(1), and c) whether the Fort Collins trespass ordinance definitions F.C.M.C. Sec. 17-1 (3) and (4) are constitutional, and applicable to public property, such as CSU, and d) whether the Fort Collins 'camping' ordinances are facially unconstitutional. CSU police officers issued an 'exclusionary order' form that permanently banned Petitioner from all CSU property. Further, CSU police officer Derek Smith entered into the CCIC criminal database that there is a permanent criminal restraining order against Petitioner, although, in fact, no judge issued any such restraining order . However, what this means is that Petitioner will be subject to arrest, prosecution, and imprisonment if Petitioner ever sets foot on CSU property. Notably, CSU campus is centrally located in Fort Collins. The Fort Collins bus terminal on campus services most of Fort Collins; the Max Transfort route runs North and South through CSU. What this means is that it is impossible for Petitioner to use the Fort Collins public transportation. As long as Petitioner is permanently banned from CSU property and subject to enforcement of the City 'trespass' ordinance for being on public property, Petitioner will suffer an injury in fact and have standing. 3 RESPONSE TO STATE's MOTION TO DISMISS CONSTITUTIONAL REVIEW STANDARD The United States Constitution Amendment XIV, Section 1 states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Mathews balancing test requires balancing the Right, Liberty or Interest in property, and the probability of erroneous deprivation of that interest, compared with a legitimate public interest that government seeks to serve by such action or policy that deprives the Liberty, Rights or property Interests of such individuals by such action or policy. See Mathews v. Eldridge, 424 US 319, 332, 96 S Ct 893, 47 L Ed 2d 18 (1976). Plaintiff submits these issues, including whether CSU 'exclusionary order' policy, Fort Collins 'camping' and 'trespass' ordinances, as written and applied, are lawful: Whether CSU 'exclusionary orders', City 'camping' and 'trespass' ordinances, as written and/or applied, denies, substantially or unreasonably interferes with Plaintiff in the practical exercise of his rights guaranteed by the U.S. Constitution. Whether the challenged exclusionary order and ordinances as written or applied are not reasonably related to achieving a legitimate public interest, or disproportionately severe in relation to the affect of denying or impairing Plaintiff's constitutional rights. Whether the challenged exclusionary order and City ordinances as written or applied denies, impairs or fundamentally infringes upon Plaintiff's constitutional rights or His Inalienable Personal Interests in 'conducting activities of daily living', and whether such infringement of His Constitutional and Inalienable Rights constitutes a 'Taking'. 4 RESPONSE TO STATE's MOTION TO DISMISS ARGUMENT State Defendant's cannot 'exclude' banish anyone from public property . CSU Defendant's assert that the 'trespass' ordinance may be applied to public property to permanently ban anyone; similarly, State Defendant's assert that the state trespass statute may be applied to public property to permanently ban anyone ; these assertions presume that banishment is lawful, which is proven false by these cases: People v. Blakeman, 170 Cal. App. 2d 596, 339 P.2d 202 (Dist. Ct. App. 1959); the California Court of Appeals overturned the county court order probation revocation based upon violation of a district court order of banishment as a condition of probation. The district court order of probation on condition of banishment was determined to be void citing: In re Scarborough, 76 Cal.App.2d 648 [ 173 P.2d 825], an order suspending sentence on a condition of banishment for two years was deemed the granting of probation upon a void condition. Said the court: "The same principle which prohibits the banishment of a criminal from a state or from the United States applies with equal force to a county or city . The old Roman custom of ostracizing a citizen has not been adopted in the United States. The so-called `floating sentence,' [‘suspended sentence or ‘deferred judgment’] too frequently resorted to in some inferior courts, falls in the same category. There is no statute in California authorizing such judgments." (P. 650. See also the authorities cited on p. 649 of 76 Cal.App.2d, and 15 Am.Jur. 112, Crim. Law, § 453.) Ex parte Scarborough, 76 Cal. App. 2d 648, 173 P.2d 825 (Dist. Ct. App. 1946); The probation condition contained in the judgment that it would be suspended in part if the defendant left Stockton and San Joaquin County and remained away for two years, is, in effect, an unlawful increase of punishment by banishment not provided by statute, and therefore void. (People v. Baum, 251 Mich. 187 [ 231 N.W. 95, 70 A.L.R. 98]; Ex parte Sheehan, 100 Mont. 244 [ 49 P.2d 438, 442]; People v. Lopez, 81 Cal. App. 199, 203 [ 253 P. 169]; 24 C.J.S. § 1991, p. 1216.) In holding that a condition of a judgment requiring banishment from the state is illegal and void, the court said in the Baum case, supra, that: "To permit one state to dump its convict criminals into another would entitle the state believing itself injured thereby to exercise its police and military power, in the interest of its own peace, safety, and welfare, to repel such an invasion. It would tend to incite dissension, provoke retaliation, and disturb that fundamental equality of political rights among the several states which is the basis of the Union itself. Such a method of punishment is not authorized by statute, and is impliedly prohibited by public policy." Banishment is not acknowledged as lawful punishment in any state. 5 RESPONSE TO STATE's MOTION TO DISMISS The City enforced CSU 'exclusionary orders' applying the trespass ordinance to public property under presumption that CSU has the authority to deny access to anyone for any reason, such as: 'feeding squirrels'. The United States District Court issued the following opinion over 50 years ago in Dunkel v. Elkins, 325 F. Supp. 1235 (1971). “Defendants urge that plaintiff's use of public land and property is a "privilege withdrawable by the State at any time for any reason." We do not agree. While the State undoubtedly possesses power to control the use made of its premises, it cannot do so without regard to the Constitution.” Also, this point of law was specifically addressed in Watson v. Board of Regents of University of Colorado 512 P.2d 1162 , when the Colorado Supreme Court issued the opinion that: “The Colorado Supreme Court has labeled the access and use of public facilities, such as parks, as a “fundamental” right. The University of Colorado opened its doors to the public. Accordingly, on this basis, we hold that a non-student's right to access to University functions and facilities, which are open to the public at-large, cannot be permanently denied without due process of law under the Fourteenth Amendment...” Adding: “Plaintiff urges that the University's exclusion order was void because it issued without procedural due process, i.e., a hearing was not afforded plaintiff prior to his exclusion from University property. We agree .” This was the opinion in People in Interest of J.M., 768 P.2d 219, 221 (Colo. 1989). This case was cited in a 2017 Colorado District Court case: The City and County of Denver Parks and Recreation Department implemented a temporary policy, to ban someone for up to (90) days for using drugs in Denver parks. Denver Police used this city parks directive to issue an exclusionary order banning the defendant for smoking marijuana in Denver's City park. The court ruled in favor of the defendant's individual interests in access and use of public property . 6 RESPONSE TO STATE's MOTION TO DISMISS CSU campus police website contains university policies and regulations; there is no CSU policy or regulation against 'feeding squirrels', nor is it even a city ordinance. CSU police 'exclusionary order' policy cites C.R.S. 18-9-109 as legal authority that 'authorizes' them to issue an 'exclusionary order' form, that were issued against Plaintiff solely on the basis of allegedly 'feeding squirrels'. However, C.R.S. § 18-9-109 (3) states: “No person shall willfully refuse or fail to leave the property of or any building or other facility used by any educational institution upon being requested to do so by the chief administrative officer, his designee charged with maintaining order on the school premises and in its facilities, or a dean of such educational institution, if such person is committing, threatens to commit, or incites others to commit any act which would disrupt, impair, interfere with, or obstruct the lawful missions, processes, procedures, or functions of the institution .” At no time before or during the trespass trials did any CSU police officer testify that Plaintiff committed any act that would disrupt, impair, interfere with, or obstruct the lawful missions, processes, procedures, or functions of the institution. C.R.S. § 18-9-109 (2) states: No person shall, on the premises of any educational institution or at or in any building or other facility being used by any educational institution, willfully impede the staff or faculty of such institution in the lawful performance of their duties or willfully impede a student of the institution in the lawful pursuit of his educational activities through the use of restraint, abduction, coercion, or intimidation or when force and violence are present or threatened.” (Emphasis added) At no time before or during the trespass trials did any CSU police officer testify that Plaintiff committed any act that might impede the staff or faculty of such institution in the lawful performance of their duties or willfully impede a CSU student in the lawful pursuit of his educational activities through the use of restraint, abduction, coercion, or intimidation, or threatened use of force or violence . 7 RESPONSE TO STATE's MOTION TO DISMISS SUMMARY ARGUMENT Plaintiff's claims are grounded upon his Fourteenth Amendment rights; that: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 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 Colorado 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. C.R.S. § 18-9-109 (1) states: (1) “No person shall, on or near the premises or facilities of any educational institution, willfully deny to students, school officials, employees, and invitees: (a) Lawful freedom of movement on the premises; (b) Lawful use of the property or facilities of the institution ; (c) The right of lawful ingress and egress to the institution's physical facilities .” C.R.S. § 18-4-201 defines what misconduct would constitute "enters unlawfully" or "remains unlawfully", and states: “A person who, regardless of his or her intent, enters or remains in or upon premises that are at the time open to the public does so with license and privilege unless the person defies a lawful order not to enter or remain, personally communicated to him or her by the owner of the premises or some other authorized person.” 8 RESPONSE TO STATE's MOTION TO DISMISS Because C.R.S. § 18-4-201 states that the public have license and privilege to enter and remain on property open to the public; by definition, Plaintiff did not trespass upon CSU; nevertheless, Plaintiff was convicted and imprisoned. Further, the county court issued a judgment and sentencing order that stated Plaintiff was prohibited from going to CSU for one year from January 22, 2020. Therefore, Plaintiff asserts that the statute of limitations extended to January 22, 2022; so, Plaintiff's claims for violation of his Fourteenth Amendment rights has not expired; so, the Court has subject matter jurisdiction to grant relief under Title 42 U.S Code §§ 1981, 1983, 1985, and 1986. To the extent that Defendant's object to Plaintiff's claim of nominal damages for the deprivation of his Inalienable, Individual, and Constitutional right to due process and equal protection of the law, Plaintiff hereby withdraws his claim for this Court to award him compensation of one dollar. However, Plaintiff reserves all claims for declaratory judgment and injunctive relief . To the extent that this Court lacks jurisdiction to vacate the trespass conviction, Plaintiff hereby withdraws his claims of unlawful conviction, yet Plaintiff reserves his claims for declaratory judgment and injunctive relief regarding the constitutionality of CSU 'exclusionary orders ', and Lawful interpretation of the trespass statute as applied to public places, like CSU. Plaintiff also reserves his claim for relief regarding the lawful interpretation of C.R.S. § 18-9-109(1), which refers to “invitees” as having implied access, entry and use of all facilities open to the public of educational institutions, like CSU. Further, Plaintiff reserves his claim for declaratory judgment and injunctive relief regarding the CCIC record of a permanent protective order . 9 RESPONSE TO STATE's MOTION TO DISMISS Counsel for Defendant's asserts numerous defenses and case citations; none of which are applicable to the facts of this case. Plaintiff is well aware that civil procedure requires a defendant to assert all defenses under any conceivable theory; however, in this case defense counsel asserts defenses that are not applicable whatsoever. Other than the defense assertion that this Court lacks subject matter jurisdiction to reverse the 'trespass' convictions, all other defenses and case citations are inapplicable to the facts of this case. Plaintiff could write a lengthy brief refuting each defense and case citation; however, Plaintiff is restricted to page and word lengths by civil procedure rule. Plaintiff is not seeking monetary damages; thus, he is not required to prove injury. Also, Plaintiff is not seeking reversal of his trespass convictions ; thus, the Rooker-Feldman doctrine does not apply in this case . Further, Plaintiff is not asserting claims against the 'State of Colorado' or 'Colorado State University' entities ; Plaintiff is asserting claims against identified individuals, acting in official capacities, under color of law, on behalf of the “State of Colorado”, and/or “Colorado State University”. Plaintiff asserts claims of intentional violations of his inalienable, civil and constitutional right to due process and equal protection of the law; he seeks only declaratory judgment and injunctive relief from actual and continuing injuries from a CSU permanent exclusionary order and permanent protective order that permanently denies Plaintiff access and use of CSU campus and the central public bus transportation facility located on CSU. CSU permanent 'exclusionary orders' are unconstitutional as bills of attainder and cruel and unusual punishment, and deprive procedural and substantive due process. 10 RESPONSE TO STATE's MOTION TO DISMISS State Defendants' each argue that they have sovereign immunity for each entity and each individual acting in their official capacity; however, this is not true when such individual has acted in contravention of the Constitution and law ; no state Defendant is entitled to 'sovereign immunity' to violate the laws; no individual Defendant may claim 'sovereign immunity' for committing crimes while acting in official capacity that were committed in this case. State Defendant's also argue the statute of limitations has run on each claim. However, Plaintiff's injuries result from distinct and continued unlawful acts at trial and sentencing to jail and court ordered exclusion from CSU . Plaintiff still cannot go to CSU or use the central public transportation bus station located on CSU campus. Further, Plaintiff is subject to a permanent criminal protective order illegally entered by CSU campus police officer Derek Smith on the same day that he issued an 'exclusionary order' and a citation for trespass under C.R.S. § 18-4-504. Also, Plaintiff continues to be permanently excluded (banished) from CSU, and deprived access and use of the central public bus transportation facility located on CSU campus. Also, Plaintiff asserts claims of violation of his Fourteenth Amendment right to due process and equal protection of the law because individual state officials enforced C.R.S. § 18-4-504, the trespass statute, which denied him equal protection of the law, C.R.S. § 18-4-201, which states that the public have license and privilege to enter or remain on public property, like CSU. Upon conviction, the county court ordered and the district court affirmed the judgment and order that Plaintiff was not permitted to enter CSU property for one year from January 22, 2020 . 11 RESPONSE TO STATE's MOTION TO DISMISS ARGUMENT Defendant individuals are not entitled to sovereign immunity. Although C.R.S. § 18-4-201, states that the public has license and privilege to enter and remain on public property, such as CSU, and C.R.S. § 18-9-109 (1) prohibits denying access and use of educational institutions , like CSU; yet, CSU adopted and enforced an 'exclusionary order' policy permanently denying Plaintiff access and use of CSU campus. Then, CSU campus police enforced their 'exclusionary order' forms by issuing Plaintiff trespass citations. At trial, where all defense evidence and testimony was excluded as “irrelevant” to the issue whether Plaintiff defied a CSU 'exclusionary order', and since the jury was not advised of the legal definition of “unlawfully enters or remains” provided by C.R.S. § 18-4-201, which states that the public have license and privilege to enter or remain on public property , like CSU; the ill-informed jury convicted Plaintiff of 'trespass' under C.R.S. § 18-4-504, which has never been applied to public property. Also, the county court judge and prosecutor conspired and engaged in jury tampering by dismissing two (2) jurors, then seated a clerk from the prosecutors' office on the jury after the prosecution had rested its case . Upon conviction, the county court judge imposed sentence of 60 days in jail, with 54 days suspended upon condition that Plaintiff not go to CSU property or have any contact whatsoever with CSU employees. Plaintiff's appeal of the trespass conviction and sentencing order was denied by some unidentified individuals in the office of judicial administration, who wrote the 'Judgment Affirming Conviction' and forged the judge's signature with a PDF copy. 12 RESPONSE TO STATE's MOTION TO DISMISS The United States Supreme Court decision in Ex parte Young , 209 U.S. 123 (1908), does provide an additional exception to immunity in certain suits for prospective declaratory judgment or injunctive relief against state officials . Under Ex parte Young and its progeny, the Eleventh Amendment will not bar a suit against a state official providing that the plaintiff seeks (1) only declaratory or injunctive relief that is properly characterized (in substance) as forward looking relief rather than money damages ; (2) for an ongoing violation of federal law ; (3) aimed at state officers acting in their official capacities, not the state itself. Hill v. Kemp, 478 F.3d 1236, 1255-56, 1259 (10th Cir. 2007). Note that, 'Ex parte Young' requires a nexus between the individual defendant and ‘enforcement’ of the challenged statute.” Peterson v. Martinez, 707 F.3d 1197, 1206 (10th Cir. 2013) (citation omitted) (emphasis in original). In this case, Plaintiff asserts facts that individual Defendant's, acting under color of law, in their official capacities, did deny Plaintiff's Fourteenth Amendment Right to due process and equal protection of the law, and deprived him of liberty and privileges by unlawfully enforcing the trespass statute, C.R.S. § 18-4-504 by not advising the jury that by definition, pursuant to C.R.S. § 18-4-201 the public have license and privilege to enter and remain on public property, and by tampering with the jury by seating a clerk form the prosecutor's office on the jury. Further, Plaintiff asserts facts that unidentified individual Defendant's in the office of judicial administration, who wrote the 'Judgment Affirming Conviction' and forged the judge's signature with a PDF copy ; thus, Plaintiff was denied due process and lawful appeal of his 'trespass' conviction. 13 RESPONSE TO STATE's MOTION TO DISMISS Individual identified Defendant, CSU campus police officer, Derek Smith, in his official capacity, acting under color of law issued Plaintiff an 'exclusionary order' form; exclusionary orders issued by university officials has been determined unconstitutional by at least two (2) superior courts, which Plaintiff cited in each 'trespass' case. 'Exclusionary orders' as was issued by CSU campus police were determined to be unconstitutional 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 United States District Court. CSU 'exclusionary orders' are also unconstitutional as 'bills of pains and penalties' or 'Bills of Attainder, since they impose punishment of 'exclusion' without benefit of a judicial trial. Further, 'exclusion' or 'banishment' is not provided for as punishment by any federal or state law , and was determined to be unconstitutional. Also, CSU police 'exclusionary orders' are permanent unless lifted, which constitutes cruel and unusual punishment. Plaintiff has been denied procedural and substantive due process and equal protection of the law. Individual Defendant's Jeff Goetz, Jesse Ihnen, Michael Lohman, Phil Morris, and Derek Smith, each CSU police officers, testified that they issued and/or enforced CSU 'exclusionary order' in accordance with CSU policy; thereby they confessed to violating C.R.S. § 18-9-109 (1) that prohibits denying access and use of educational institutions , like CSU. These officers confessed and testified that they denied Plaintiff's Fourteenth Amendment Right to due process and equal protection of the law, and did enforce a state statute to deprive Plaintiff's privilege of equal access and use of CSU. 14 RESPONSE TO STATE's MOTION TO DISMISS Plaintiff alleges facts that then CSU Police Chief, Scott Harris, acting under color of law, and in his official capacity, permanently denied Plaintiff's Fourteenth Amendment right of equal access and use of CSU campus, and that Vice President for University Operations and CFO, Lynn Johnson, who adopted and amended CSU 'exclusionary order' policy to abandon the previous reference to state law, and appointed Nic Olsen then CSU employee, to unilaterally affirm the 'exclusionary order' against Plaintiff, and that then CSU Chief of Staff, Mark Gill, acted individually, and in coordination with the Chief of Police, in his official capacity when he denied Plaintiff's appeal to enforce CSU 'exclusionary order' policy, and willfully, permanently denied Plaintiff access and use of CSU property and all facilities thereon, including the Fort Collins public transportation central bus terminal located on campus. Plaintiff alleges facts that Larimer County prosecutor, Alita King, Larimer County Judge Thomas L. Lynch, acting in their official capacities violated Plaintiff's Fourteenth Amendment right to due process and equal protection of the law, by tampering with the jury by seating a clerk from the prosecutor's office on the jury , and deprived him of liberty and privileges by unlawfully enforcing the trespass statute C.R.S. § 18-4-504 in not advising the jury that, by definition, pursuant to C.R.S. § 18-4-201 the public have license and privilege to enter and remain on public property, and unidentified individual Defendant's in the office of judicial administration, who wrote the 'Judgment Affirming Conviction' and forged the judge's signature with a PDF copy ; thus, Plaintiff was denied substantive due process and lawful appeal of his 'trespass' conviction. 15 RESPONSE TO STATE's MOTION TO DISMISS CITATIONS OF LAW C.R.S § 23-30-102 (1) identifies the CSU Board of Governors authority; stating: “The board of governors of the Colorado state university system is a body corporate, capable in law of suing and being sued ; ... having duties and powers to control, manage, and direct the fiscal and all other affairs of the Colorado state university system and the entities it governs; and of causing to be done all things necessary to carry out the provisions of this article. C.R.S § 23-31-103 states that: “The board of governors of the Colorado state university system has the general control and supervision of the Colorado state university and lands and the use thereof , which may be vested in the university by state or national legislation and of all appropriations made by the state for the support of the same. The board has plenary power to adopt all such ordinances, bylaws, and regulations, not in conflict with the law , as they may deem necessary to secure the successful operation of the university and promote the designed objects.” C.R.S. 23-31-106 states that: “The president shall be chief executive officer of the Colorado state university , and it is his or her duty to see that the rules and regulations of the board of governors of the Colorado state university system and the faculty are observed and executed.” C.R.S. 23-31-107 states that CSU President may remove officers. “The subordinate officers and employees , not members of the faculty, shall be under the direction of the president and removable at his or her discretion .” C.R.S. 23-30-116 states that: “It is the duty of the board of governors of the Colorado state university system to choose the presidents of the institutions it governs.” C.R.S. 23-30-117 states that: “Pursuant to section 23-30-113, the board of governors of the Colorado state university system may delegate to the presidents of the institutions it governs the power to choose such professors and staff as the necessities of their institutions require. C.R.S. 23-31-104 states who shall constitute CSU faculty. “The president and the faculty shall constitute the faculty of the Colorado state university.” C.R.S. 23-31-105 states that: “The faculty shall have the responsibility for making academic policy and governing the academic affairs of the Colorado state university. 16 RESPONSE TO STATE's MOTION TO DISMISS Defendant, CSU Board of Governors, is liable under United States and Colorado law for Plaintiff's claims relating to violation of His Civil and Constitutional Rights as is provided for by Article II, Section 15 of the Colorado Constitution, and as provided by C.R.S. 38-1-101 et. seq., C.R.S § 13-21-131, and by (2nd) Restatement of Contracts, and civilly liable for depriving Plaintiff of His civil rights in violation of Title 42 U.S.C. § 1981, §1983, §1985, and §1986, and liable under Title 18 U.S.C. §241, §242. Further, non-government Defendant Individuals , including administrative officials at Colorado State University are liable because they participated in denying Plaintiff equal access and use of CSU campus by adopting the CSU 'exclusionary order' policy and enforcing such policy in coordination with campus police, in violation of Plaintiff's Rights. In fact, CSU 'exclusionary order' policy violates CSU policy on discrimination. Ironically, CSU administrative officials and campus police violate their own policy. Colorado State University Policy ID#: 6-0160-001 states that: “Discrimination is defined as: conduct that (a) excludes an individual from participation in , (b) denies the individual the benefits of , (c) treats the individual differently from others in, or (d) otherwise adversely affects a term or condition of an individual’s employment, education, living environment or University program or activity.” Title 42 U.S. Code § 1981 (a) Statement of equal rights: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” Further, (c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law . 17 RESPONSE TO STATE's MOTION TO DISMISS Counsel for Defendants disingenuously asserts that all individual Defendants are covered under the umbrella of agents for the State of Colorado and entitled to sovereign immunity as state officials; this assertion is false and misleading. Individual Defendants are not immune from claims that they acted in their official capacity, under color of law, and deprived Plaintiff of his Fourteenth Amendment rights. Defense counsel cites the Colorado Constitution article VIII, § 5 to assert that the CSU Board of Governors is an arm of the state; yet, CSU Board of Governors is liable for the supervision of CSU. Colorado Constitution of 1876 Art. VIII, § 5. Educational institutions (2) The governing boards of the state institutions of higher education, whether established by this constitution or by law, shall have the general supervision of their respective institutions and the exclusive control and direction of all funds of and appropriations to their respective institutions, unless otherwise provided by law. Though, defense counsel is correct that CSU is not an entity capable of suing or being sued in its own name; yet, CSU is governed by the CSU Board of Governors, not by the State of Colorado. However, individual Defendants are liable for claims that they acted in their official capacity, under color of law, and deprived Plaintiff of his Fourteenth Amendment rights; especially, since Plaintiff is seeking only declaratory judgment and injunctive relief. Defense counsel even cites C.R.S § 23-30-102, which states that CSU Board of Governors is a corporate body capable of suing and being sued. C.R.S § 23-30-102 (1) identifies the CSU Board of Governors authority; stating: “The board of governors of the Colorado state university system is a body corporate, capable in law of suing and being sued ; ... having duties and powers to control, manage, and direct the fiscal and all other affairs of the Colorado state university system and the entities it governs; and of causing to be done all things necessary to carry out the provisions of this article.” 18 RESPONSE TO STATE's MOTION TO DISMISS SUMMARY CONCLUSION Plaintiff has stated facts to support claims asserted under Title 42 U.S. Code §§ 1981, 1983, 1985, and 1986 to prove that individual Defendant's, acting under color of law, did knowingly and willfully, deprive Plaintiff of his lawful individual right of access and use of CSU campus by issuing 'exclusionary orders' ruled unconstitutional over 50 years ago by the Colorado Supreme Court in Watson v. Board of Regents of University of Colorado 512 P.2d 1162, and by the United States District Court in Dunkel v. Elkins, 325 F. Supp. 1235 (1971). Such denial of equal access to university property is also considered a violation of C.R.S. § 18-9-109(1). CSU police enforced the permanent 'exclusionary order' with 'trespass' citations under C.R.S. § 18-4-504, though C.R.S. § 18-4-201 states that the public has license and privilege to enter and remain on property open to the public . Further, CSU police cited Petitioner with 'trespass' under the City ordinance that grants police authority to permanently deny access to public property, which conflicts with C.R.S. § 18-4-201, so the City is not entitled to assert home-rule status. Petitioner continues to be subject to permanent exclusion from CSU, therefore, he is entitled to prospective relief. Wherefore, Petitioner respectfully requests the Court deny the State's Motion to Dismiss. Dated: This 27th day of June 2022. Signed by: s/s: Robert-Lawrence: Perry, Man 19 RESPONSE TO STATE's MOTION TO DISMISS CERTIFICATE OF SERVICE I, Robert-Lawrence: Perry, Plaintiff, hereby certify that I sent a complete, correct and true copy of the foregoing Response to State's Motion to Dismiss addressed to each Attorney of Record for all Defendants by first-class U.S. Mail, postage pre-paid, and/or by emailing documents, such as agreed by consent to the following: Attorneys for Defendants, The City of Fort Collins, et al.Colorado State University, et, al. Darin Atteberry, City Manager Attn.: Jannine Mohr, Attorney 300 La Porte Ave., (City Hall)1300 Broadway, 10th Floor Fort Collins, CO 80522 Denver, Colorado 80203 Phone: (970) 221-6520 Phone: (720) 508-6000 hoffmank@hallevans.com Skip.Spear@coag.gov ratnerm@hallevans.com Allison.Ailer@coag.gov The State of Colorado, et. al.CSU Board of Governors, for: for: Steven Vasconcellos Colorado State University, et al. 1300 Broadway, 10th Floor 555 seventeenth St., Suite 1000 Denver, Colorado 80203 Denver, Colorado 80201 Phone: (720) 508-6000 Phone: (970) 491-6425 Carman.VanPelt@coag.gov Denise.Munger@coag.gov Dated this: June 27, 2022 Signed pursuant to C.R.S. 4-3-402 by, /s/ Robert-Lawrence: Perry, Man Robert-Lawrence: Perry, Trustee for: 4786 McMurry Ave., Unit 242 ROBERT LAWRENCE PERRY, Person Fort Collins, Colorado 80525 fort_scout@yahoo.com Phone: (970) 980-1849 20 RESPONSE TO STATE's MOTION TO DISMISS