HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry v. State of Colorado, et al - 061.0 - Reply in support of 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;
Defendants.
DEFENDANT CITY OF FORT COLLINS’ REPLY IN SUPPORT OF CITY’S 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 Reply in Support of the City’s Motion to Dismiss Plaintiff’s Second Amended Complaint
(“Complaint”) [ECF 50], as follows:
INTRODUCTION
Plaintiff’s Response [ECF 51] relies on the same conclusory statements set forth in his
Second Amended Complaint (“Complaint’), which are also devoid of any legal support. As such,
Plaintiff offers no proper analysis to overcome the City’s arguments for dismissal.
Furthermore, to avoid the effect of the applicable statute of limitations, Plaintiff argues the
limitations period should be extended, but does not provide any authority for his proposition,
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which also conflicts with well-established Tenth Circuit jurisprudence. Plaintiff also fails to
provide any specificity with respect to the alleged unconstitutionality of the City’s trespass and
camping ordinances, while at the same time failing to articulate how these ordinances are
overbroad. Moreover, Plaintiff’s claim that the City’s camping ordinances violate the Eighth
Amendment is premature and insufficient to state a claim against the City because Plaintiff does
not allege his conduct was involuntary. Accordingly, dismissal of all claims against the City is
warranted.
RESPONSE TO PLAINTIFF’S “NOTICE OF INTENT TO AMEND COMPLAINT.”
In his Response, Plaintiff states his intention to file a request for another amended
complaint, which removes the “allegations of criminal conduct,” eliminates claims of “unlawful
arrest,” “unlawful conviction,” and “unlawful imprisonment.” [ECF 51, at 2]. It is Plaintiff’s
belief removal of the allegations and claims renders arguments with respect to immunity and the
Rooker-Feldman Doctrine somehow moot. Plaintiff has yet to file any such request, and in
addition his argument misses the point. Even if such claims are not plead, implicitly Plaintiff is
still attempting to render his criminal convictions void by seeking a declaration the City’s trespass
and camping ordinances are unconstitutional. The City has no objection to the dismissal of these
claims, with prejudice, since Plaintiff no longer intends to pursue any such claims.
In addition, Plaintiff represents that “none of the Defendants have responded or objected
to further amendment of the Complaint…” [ECF 51, at 2]. This representation is incorrect. On
June 13, 2022, undersigned Counsel for the City of Fort Collins responded to Plaintiff’s request.
In particular, Counsel stated that although the City was receptive to the idea of culling down the
allegations and claims in the Complaint, it simply was not possible to provide a position without
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review of the proposed pleading. No further response from Plaintiff was received, nor was a
proposed pleading provided.
I. ARGUMENT
A. Plaintiff Lacks Standing to Challenge the City’s Private Property Camping
Ordinance.1
As with his Response to the City’s previous Motion to Dismiss, it appears Plaintiff seeks
to add a new claim against the City for the first time in his Response, which challenges the validity
of the City’s private property camping ordinance, Fort Collins Municipal Code (“F.C.M.C.”) 17-
182.2 This is improper. If Plaintiff seeks to add additional claims against the City, he must amend
his Complaint (which he has already done two previous times); he cannot simply assert new claims
through his Response. See Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001) (quoting
Pennsylvania ex rel. Zimmerman v. PepsiCo., 836 F.2d 173, 181 (3d Cir. 1988) (“It is axiomatic
that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”).
Nonetheless, even if the Court were to consider the improperly raised new claim, Plaintiff
has still not established standing to challenge the City’s private property camping ordinance.
1 The City argued Plaintiff lacked standing to challenge the City’s trespass ordinance in its
Motion to Dismiss. [ECF 51 at 3]. Plaintiff did not address this argument, effectively conceding
it.
2 While Plaintiff references the City’s private property camping ordinance in his Complaint
[ECF 50, ¶ 245], his fourth claim appears to solely challenge the validity of the City’s public
property camping ordinance [Id., ¶¶297-306. C.f. ECF 24, ¶¶ 234-243 (on page 64)].
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Plaintiff has the burden to establish standing to seek prospective relief, and to do so he must show
a continuing injury. 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).
The City’s private property camping ordinance provides:
It is unlawful for any person to camp or to knowingly permit any person to camp,
as defined in § 17-181, on private property within the City, except on the premises
of a residential dwelling with the permission of the property owner. Any such
camping must be temporary in nature and must not exceed a period of seven (7)
consecutive days or a total of fourteen (14) days in a calendar year; provided,
however, that an extension of these time limits may be granted by the Director of
Community Development and Neighborhood Services or his or her designee upon
written application of a person claiming extraordinary circumstances or undue
hardship. The Director's decision whether to grant an extension shall be based
upon all attendant circumstances, including, without limitation, any objections
posed by occupants of premises located on the same block face of the applicant.
In no event shall an extension exceed seven (7) additional consecutive days or
fourteen (14) additional days in a calendar year.
F.C.M.C. 17-182(a).
The City’s private property camping ordinance prohibits conducting activities of daily
living on private property for more than 14 days a year. Individuals, however, can request an
extension of the 14 day limitation from the Director of Community Development and
Neighborhood Services (“Director”). (See F.C.M.C. 17-182(a)). Fatal to Plaintiff’s potential new
claim, is the failure of any allegation he either lawfully possesses or has access to real property in
the City upon which to camp. Plaintiff does not allege that he possess any real property in the City.
Additionally, Plaintiff does not allege he attempted to camp on real property with the permission
of a private property owner, or that he requested an extension of time to camp on private property
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pursuant to the procedure outlined in F.C.M.C. 17-182(a), and was denied an extension. Where
Plaintiff does not lawfully possess any real property in the City and none of the other circumstances
outlined in F.C.M.C. 17-182(a) apply to Plaintiff’s circumstances, he has not established a credible
threat of future prosecution under F.C.M.C. 17-182(a). As such, Plaintiff lacks standing to seek
prospective relief regarding the City’s private property camping ordinance. In addition, Plaintiff
offers no argument with respect to standing to contest the City’s public camping ordinance, and
therefore any such argument has been waived.
Furthermore, Plaintiff’s citation to Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992),
is incomplete. In recognizing the factors used to establish standing, the Supreme Court held a
plaintiff’s legally protected interest must be “actual or imminent, not conjectural’ or
‘hypothetical’” Lujan, 504 U.S. at 560, (citing Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
Plaintiff’s position fails to recognize the requirement that any legally protected interest must not
be hypothetical or conjectural. But, as argued above, Plaintiff’s subjective belief that he will be
subject to arrest, is nothing more than hypothetical, and therefore insufficient to create standing.
Likewise, Plaintiff fails to properly cite to PeTA v. Rasmussen, 298 F.3d 1198 (10th Cir. 2002),
where the Court recognized that “past exposure to illegal conduct does not in itself show a present
case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present
adverse effects.” Rasmussen, 298 F.3d at 1202 (emphasis added) citing O'Shea v. Littleton, 414
U.S. 488, 495-96 (1974). In nothing other than conclusory terms, Plaintiff alleges he will suffer
an adverse effect based on enforcement of the Fort Collins Municipal Code, but he offers nothing
more than his own, subjective thoughts. The Complaint fails to provide any factual allegations to
support for any such position, and therefore Plaintiff lacks standing.
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B. Plaintiff’s As-Applied Challenge to the City’s Trespass Ordinance (Second
Claim) is Time-Barred, and Plaintiff’s As-Applied Challenge to the City’s
Camping Ordinance (Fourth Claim) is Time-Barred in Part.
As outlined in the City’s Motion, Plaintiff’s as-applied challenge to the City’s trespass
ordinance is barred by the two-year statute of limitations applicable to 42 U.S.C. § 1983 claims.
[See ECF 51, at 6]. In an attempt to avoid his statute of limitations issue, Plaintiff argues the
limitations period should be extended to December 1, 2022, because he was prohibited from
entering CSU from December 1, 2020, to December 1, 2021. following his trial and conviction for
trespass. [ECF 58, at 5]. Plaintiff, however, does not cite to any authority in support of his
argument, which is also against the great weight of Supreme Court precedence. It is well-
established a claim accrues when “the plaintiff has a complete and present cause of action.”
Wallace v. Kato, 549 U.S. 384, 388 (2007) (internal citations omitted). Put simply, a claim accrues
as soon as “the plaintiff can file suit and obtain relief.” Heimeshoff v. Hartford Life & Accident
Ins., Co., 134 S. Ct. 604, 610 (2013) (internal citations omitted).
Here, Plaintiff’s claim accrued on the date he was cited with violating the City’s
ordinance—July 12, 2019. 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).3 Applying the two-year statute of limitations, Plaintiff had until July 12, 2021, to
bring a timely claim challenging the application of the City’s trespass ordinance to him. He did
not do so. Plaintiff’s claims are, therefore, barred by the statute of limitations.
3 All unpublished decisions have been attached as Exhibit A and provided to Plaintiff
pursuant to D.C.Colo.LCiv.R. 7.1(e).
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Similarly, Plaintiff’s as-applied challenge to the City’s camping ordinances are time-barred
in part. While Plaintiff alleges he has been cited with violating the City’s camping ordinances
seven times, he only includes the dates of two alleged citations in his Complaint—a 2014 citation,
which resulted in a not guilty finding [ECF 50, ¶ 247], and a 2020 citation, which was dismissed
[Id.]. Plaintiff’s challenge to his 2014 citation is not timely. To any extent Plaintiff argues his claim
as it relates to all seven citations is timely because his most recent citation occurred within the
statute of limitations period, he cites to no authority for this argument, nor could he. Discrete acts
are not actionable if time-barred, even when they are related to acts alleged in timely filed charges;
instead, each discrete act starts a new clock for filing charges alleging that act. See Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Here, every citation started a new clock
for filing charges related to that citation. Plaintiff did not timely file a complaint relating to his
2014 citation (and any other untimely citations), and his 2020 citation does not resuscitate his
otherwise untimely allegations. As such, any claims relating to camping citations issued to Plaintiff
prior to July 12, 2019, are barred by the statute of limitations.
C. Plaintiff Improperly Continues to Apply an Outdated Version of the City’s
Trespass Ordinance; Nevertheless, Plaintiff’s Claims Against the City for Its
Trespass Ordinance Still Fail.
While Plaintiff acknowledges that the City amended F.C.M.C. 17-1(1) to remove “public
property” from the definition of “enter and remain unlawfully,” Plaintiff, nonetheless, continues
to apply an outdated version of the City’s trespass ordinance to the facts underlying his July 12,
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2019 trespass citation.4 Moreover, Plaintiff alleges in conclusory fashion that the City’s
amendment of F.C.M.C. 17-1(1) in 2018, took place contemporaneously with Plaintiff being
issued a citation for violating the City’s trespass ordinance on July 12, 2019, “thus proving a §
1985 conspiracy.” [ECF 58, at 14; See also ECF 50, at ¶ 51]. Plaintiff, however, would need a time
machine to establish as it is temporally impossible for the City to engage in conspiracy to violate
Plaintiff’s rights by amending its trespass ordinance in 2018 because of Plaintiff’s violation of the
City’s trespass ordinance on July 12, 2019, and his subsequent criminal trial proceedings.5
Plaintiff’s reliance on C.R.S. 18-4-201 to negate his culpability for violating the City’s
trespass ordinance is also misplaced. C.R.S. § 18-4-201 applies only to burglaries, and it does not
create a standalone, unfettered right to enter and remain on public property without restriction.
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 is not
unlimited. “A person may forfeit” the liberty interest in access to public property “by trespass or
other violation of the law.” Chafin v. Stasi, 2015 U.S. Dist. LEXIS 42173, *32 (D. Colo. March
4 Before 2018, F.C.M.C. 17-1(1) defined “enter and remain lawfully” to mean “to enter or
remain in or upon public or privately owned property when not licensed, privileged, or otherwise
authorized to do so.” In 2018, F.C.M.C. 17-1(1) was amended to remove public property from the
definition of “enter and remain unlawfully.”
5 Other than Plaintiff’s July 12, 2019, trespass citation, Plaintiff did not allege he has
been cited with violating the City’s trespass ordinance in any other instances.
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31, 2015) (quoting Catron, 658 F.3d at 1266); see Church v. City of Huntsville, 30 F.3d 1332,
1345 (11th Cir. 1994)). As such, the City’s trespass ordinance does not conflict with C.R.S. § 18-
4-201 or any other state laws because state law does not require unlimited access to public
property, and accordingly, nothing prohibits the City from lawfully citing individuals for
municipal trespass who fail to leave public property after being directed to do so by someone in
lawful control of the property.
Plaintiff incorrectly claims the City argued in its Motion it was entitled to immunity
because of its home rule status. In addition, there is no conflict between C.R.S. § 18-4-201 and
the City’s trespass ordinance. Even if the offense of trespass is a matter of “mixed” state and local
concern, the state statute and the City’s ordinance may co-exist because, again, there is no conflict
between the state statute and the City’s ordinance. See City of Aurora v. Martin, 507 P. 2d 868,
869-70 (Colo. 1973) (finding no conflict between a home rule city’s assault and battery ordinance
and a state statute regulating the same). Both the state statute and the City’s ordinance prohibit an
individual from unlawfully entering and remaining upon the property of another. C.R.S. § 18-4-
201(1); F.C.M.C. 17-40(a). There is nothing invalid about legislation on the same subject by both
a home rule city and the state, absent some conflict between the two regulations. Id. at 870 (citing
Bennion v. Denver, Colo., 504 P.2d 350 (1972)).
D. The City’s Trespass Ordinance (Second Claim) and Camping Ordinances
(Fourth Claim) Are Not Overbroad and Do Not Violate the Fourteenth
Amendment Due Process Clause in Any Way.
Plaintiff argues the phrases “enter or remain unlawfully” and “a person in lawful control
of the property” in the City’s trespass ordinance are overly broad. As an initial matter, Plaintiff’s
as applied challenge to the City’s trespass ordinance must be addressed first. A reasonable person
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in Plaintiff’s position would have understood his conduct—entering CSU property when he knew
at least two CSU-issued exclusionary orders were in effect—was clearly prohibited by the City’s
trespass ordinance. Because Plaintiff’s as applied challenge fails, the Court should not address
Plaintiff’s facial challenge. See Hoffman Estates v. Flipside, 455 U.S. 489, 495 (1982). Moreover,
Plaintiff’s facial challenge is improper because the City’s trespass ordinance does not threaten to
chill any constitutionally protected conduct, nor can Plaintiff identify any such protected actions.
Furthermore, given the age of the City’s trespass ordinance, pre-enforcement review is not
applicable. See Dias, 567 F.3d at 1179; see also ECF 30 at pgs. 10-11.
Even if the Court were to address Plaintiff’s facial challenge to the City’s trespass
ordinance, the phrases “enter or remain unlawfully” and “a person lawfully in control of the
property” are neither overbroad nor unduly vague, and Plaintiff has not properly alleged otherwise.
While Plaintiff attacks the legal sufficiency of these phrases, he does not indicate why these phrases
are legally insufficient, instead relying on conclusory statements and blanket assertions. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). These phrases do not encompass a substantially amount of constitutionally protected
conduct within its reach. Indeed, “[t]he Constitution does not confer the right to trespass on public
lands,” and nothing in federal or state law prevents municipalities from enacting laws which define
and prohibit trespass on public property to protect the safety and well-being of their residents.
Church, 30 F.3d at 1345. Moreover, the phrase “a person lawfully in control of the property” is
the opposite of overbroad; it specifically limits who can issue a directive to leave public property,
thereby eliminating the risk of arbitrary enforcement.
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Moreover, these phrases are not vague in any respect. The phrase “enter or remain
unlawfully” is clearly defined in the City’s municipal code with a four-part definition. F.C.M.C.
17-1. The City’s municipal code outlines the four specific instances that would qualify as an
unlawful entrance and would subject an individual to prosecution for trespass. Similarly, the phrase
“a person lawfully in control of the property” is not vague. By its plain language, a directive to
leave public property must be issued a person with lawful control of the property; an entry-level
employee or onlooker would be insufficient. As such, the City’s trespass ordinance is sufficiently
specific that a person of ordinary intelligence could reasonably understand the conduct that is
prohibited.
Additionally, Plaintiff challenges the City’s public property and private property camping
ordinances as overbroad.6 Plaintiff argues the City’s camping ordinances are overbroad because
“they prohibit living in Fort Collins on either public or private property.” [ECF 58, at 17]. This is
simply untrue. The City’s public property camping ordinance prohibits sleeping, spending the
night, residing, dwelling, or conducting activities of daily living (i.e., eating and sleeping) on
public property in the City, with exceptions for incidental napping, picnicking, and camping in
natural areas. F.C.M.C. 17-181. The City’s private property camping ordinance prohibits the same
activities of daily living on private property for more than 14 days a year; however, individuals
6 In his Response, Plaintiff acknowledged the City’s public property and private property
camping ordinances were not vague. [ECF 58, at 17, “Plaintiff does not challenge the ‘City’
‘camping’ ordinances as vague since they prohibit conducting activities of daily living; instead,
Plaintiff challenges the ordinances as being overbroad…”].
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can request an extension of the 14-day limitation from the Director. F.C.M.C. 17-182(a). The
prohibited activities are clearly defined, as acknowledged by Plaintiff, and neither ordinance
reaches a substantial amount of constitutionally protected conduct. Individuals do not have a
constitutionally protected right to sleep or conduct activities of daily living on public property or
outside on private property without any temporal restriction. See Joel, 232 F.3d at 1357. Plaintiff
cites to Pompano Beach v. Capalbo, 455 So. 2d 468 (App. Ct. Fl. 4th Dist. Aug. 8, 1984);
however, his reliance is misplaced. In Pompano Beach, the Court struck down a city ordinance
which prohibited “lodg[ing] or sleep[ing]” in vehicles on public ways. The Court found the
ordinance encompassed conduct which ‘in no way imping[ed] on the rights or interests of
others’—specifically, the sleeping child in the car-seat, the alternating long distance drivers, and
the tired or inebriated driver—and was, therefore, unconstitutionally overbroad. By omitting
incidental napping from its reach, the City’s camping ordinances do not encompass the arguably
harmless actions recognized by the Court in Pompano Beach, instead targeting conduct which
poses health, safety, and hygienic risks to City residents. The City’s camping ordinances do not
include a substantial amount of constitutionally protected conduct within their reach and are,
therefore, not overbroad in any respect.
E. Plaintiff Has Not Plausibly Pled an Eighth Amendment Violation with Respect
to the City’s Camping Ordinances (Fourth Claim).
As an initial matter, Plaintiff’s Eighth Amendment challenge is premature and not ripe for
review. Pretrial detainees are entitled to protection under the due process clauses of the Fourth and
Fourteenth Amendments. Eighth Amendment scrutiny, however, “is appropriate only after the
State has secured a formal adjudication of guilt in accordance with due process of law.” See Reed
v. Simmons, 2004 U.S. Dist. LEXIS 7770, *24-25 (D. Kan. May 3, 2004) (citing Ingraham v.
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Wright, 430 U.S. 651, 671-72 (1977)). Nowhere in Plaintiff’s Complaint does he allege he was
convicted of the City’s camping ordinances. Indeed, all references to camping citations have
resulted in favorable dispositions to Plaintiff, and as such, the Eighth Amendment does not apply
to Plaintiff’s claims.
Even if the Court considers an Eighth Amendment claim, any such claim must fail. The
crux of the issue is whether the Eighth Amendment prohibits cities from enacting laws which
criminalize conducting activities of daily living on public property. Neither the Supreme Court nor
the Tenth Circuit have specifically addressed this issue in the camping context; however, other
circuits have held the Eighth Amendment prohibits penalizing homeless individuals who cannot
obtain shelter from sleeping outside. See, e.g., Martin v. City of Boise, 920 F.3d 584, 616 (9th Cir.
2017). Answering this question in any case, therefore, hinges on voluntariness. If the homeless
individual did not have any available shelter options, there is an Eighth Amendment violation. See
Martin, 920 F.3d at 616. If the homeless person had available shelter options but chose to sleep
on the public property, there is not. See Joel v. City of Orlando, 232 F.3d 1353, 1362 (11th Cir.
2000).
Plaintiff’s argument, therefore, misses the mark. Indeed, Plaintiff fails to recognize the
crucial distinction between conduct and status and the associated issue of voluntariness. Plaintiff’s
cites to Johnson v. City of Dallas, 860 F. Supp. 344 (D. N.TX. 1994); however, Johnson was
overturned on appeal on standing grounds, see Johnson v. City of Dallas, 61 F.3d 442, 445 (5th
Cir. 1995). Plaintiff does not allege his decision to conduct activities of daily living on public
property on the dates he was issued citations was involuntary. Specifically, Plaintiff does not allege
the City’s shelters were filled or he did not have any other available shelter options. Plaintiff does
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not allege the officers who issued him camping citations made any comments about Plaintiff’s
homeless or even knew Plaintiff was homeless. Plaintiff does not provide any statistics, examples,
or statements by the City in support of his argument the City targets homeless individuals, and
instead relies on blanket statements and conclusory assertions. Just because a homeless individual
is cited under the City’s camping ordinance does not necessitate an Eighth Amendment violation.
Not only has Plaintiff failed to show his actions were involuntary, the sovereign citizen nature of
his pleadings lead to the exact opposite conclusion—that it was his choice to conduct activities of
daily living where he wanted to, simply because he wanted to.
F. Plaintiff Ignores the Majority of the City’s Arguments, Effectively Conceding
Them.
Plaintiff ignores all the arguments raised by the City regarding his wrongful prosecution
claim, and instead simply attempts to dismiss them by indicating his desire to amend the
Complaint, yet again. The operative Complaint, however, still contains a wrongful prosecution
claim, and as outlined in the City’s Motion to Dismiss, any such 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).
Moreover, the City is entitled to absolute immunity for the actions of its employees taken in
connection with Plaintiff’s criminal prosecution under the City’s trespass ordinance. See Imbler v.
Pachtman, 424 U.S. 409, 96 (1976); Pierson v. Ray, 386 U.S. 547, 553-54 (1967). Additionally,
Plaintiff fails to state a wrongful prosecution claim based on municipal liability because he does
not allege the actions taken by City employees during Plaintiff’s criminal prosecution were caused
by the City’s policies. See Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 694
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(1978). Lastly, to any extent Plaintiff has withdrawn his claim, the Court should dismiss any such
claim, with prejudice.
Similarly, Plaintiff ignores the rest of the jurisdictional and 12(b)(6) arguments raised by
the City in its Motion to Dismiss, effectively conceding them. Instead, Plaintiff relies on the same
conclusory assertions and blanket restatements of the applicable legal standards he cited in his
Complaint. This is insufficient. While a complaint need not state detailed factual allegations, “it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft,
556 U.S. at 678 (quoting Bell Atl. Corp., 550 U.S. at 570). Put simply, Plaintiff claims the City
violated his constitutional rights because he said so; this, with nothing more, is insufficient to state
a claim against the City. As such, dismissal is warranted.
II. CONCLUSION
WHEREFORE, for the reasons set forth above, Defendant City of Fort Collins respectfully
requests 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 11th day of July 2022.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Katherine N. Hoffman, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
Phone: 303-628-3300
Fax: 303-628-3368
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 11th day of July 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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