HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry v. State of Colorado, et al - 060 - State Dfs' Reply in support of 2d Amended PetitionIN 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’ REPLY IN SUPPORT OF MOTION TO DISMISS THE AMENDED PETITION FOR RELIEF
Steven Vasconcellos and the CSU Board of Governors (collectively, the “State
Defendants”) hereby file this reply in support of their motion to dismiss the
Amended Petition for Relief [ECF # 53] filed by Robert Lawrence Perry (“Plaintiff”).
For the reasons set forth in the motion [ECF # 53] and the reasons set forth below,
the Court should dismiss all claims.
In his response, Plaintiff withdrew his criminal allegations and claimed to
eliminate claims for unlawful arrest, unlawful conviction, and unlawful
imprisonment. ECF # 59 at p. 2. Plaintiff also withdrew his claim for money
damages. Id. at 9. With regard to Plaintiff’s remaining claims, Plaintiff has the
burden of establishing jurisdiction. Port City Props. v. Union Pac. R.R. Co., 518
F.3d 1186, 1189 (10th Cir. 2008). He failed to meet his burden of proof.
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Instead of demonstrating how his claims survive the Eleventh Amendment
and the Rooker-Feldman doctrine, Plaintiff attempts to amend his complaint,
withdrawing claims and adding new defendants. See ECF 59 at pp 2; 9, 10.
However, Plaintiff cannot “effectively amend [his] Complaint by alleging new facts
in [his] response to a motion to dismiss.” In re Qwest Commc’ns Int’l, Inc., 396
F.Supp.2d 1178, 1203 (D. Colo. 2004). Further, 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. Because Plaintiff
never personally served any individual other than Mr. Vasconcellos, Plaintiff has no
official capacity claims against an individual to move forward with.
Even had Plaintiff served state employees and asserted official capacity
claims, as he contends in his response [Id. at p. 10] those claims would be barred by
the Eleventh Amendment. The Eleventh Amendment bars suits in federal court for
damages and injunctive relief against state employees acting in their official
capacity, 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). Colorado has not
waived immunity. Colo. Rev. Stat. § 24-10-101 et. seq.; Greiss v. Colorado, 841 F.2d
1042, 1044-45 (10th Cir. 1988). For this reason, even had Plaintiff served state
employees as he contends, his claim would be dismissed for lack of jurisdiction.
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Furthermore, in his response, Plaintiff reaffirms that the gist of his
complaint is to overturn the “exclusionary order” and the conviction entered against
him in state court. This Court has 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). For this reason,
Plaintiff’s claims 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: July 11, 2022.
PHILIP J. WEISER Attorney General
s/ Allison R. Ailer
ALLISON R. AILER* 33008 Civil Litigation & Employment Section SKIPPERE S. SPEAR* 32061 Senior Assistant Attorney General State Services Section
Attorneys for the State Defendants 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’
REPLY IN SUPPORT OF 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 11th day of
July 2022 addressed as follows:
Robert Lawrence Perry 4786 McMurry Ave., Unit 242 Fort Collins, Colorado 80522 fort_scout@yahoo.com
s/ Denise Munger
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