HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry v. State of Colorado, et al - 074 - Magistrate Recommendation to grant Motions to Dismiss 51 and 53- 1 -
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-02306-RM-KLM
ROBERT-LAWRENCE PERRY,
Plaintiff,
v.
THE STATE OF COLORADO,
THE CITY OF FORT COLLINS,
CSU BOARD OF GOVERNORS,
COLORADO STATE UNIVERSITY, and
STEVEN VASCONCELLOS,
Defendants.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Motion to Dismiss [#51],1 filed by Defendant
City of Fort Collins (the “City”), and the Motion to Dismiss [#53], filed by Defendants
Colorado State University Board of Governors (the “Board”) and Steven Vasconcellos
(“Vasconcellos”) (collectively, the “State Defendants”). Plaintiff, who proceeds as a pro
se litigant,2 filed Responses [#58, #59], and Defendants filed Replies [#60, #61]. Pursuant
1 “[#51]” is an example of the convention the Court uses to identify the docket number assigned
to a specific paper by the Court’s case management and electronic case filing system (CM/ECF).
This convention is used throughout this Recommendation.
2 This Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S.
519, 520-21 (1972). In doing so, the Court should not be the pro se litigant’s advocate, nor should
the Court “supply additional factual allegations to round out a plaintiff’s complaint or construct a
legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant
must follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276,
1277 (10th Cir. 1994).
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to 28 U.S.C. § 636(b)(1)(A) and D.C.COLO.LCivR 72.1(c), the Motions [#51, #53] have
been referred to the undersigned for a recommendation regarding disposition. See [#52,
#54]. The Court has reviewed the briefs, the entire case file, and the applicable law, and
is sufficiently advised in the premises. For the reasons set forth below, the Court
RECOMMENDS that the Motions [#51, #53] be GRANTED.
I. Background3
Plaintiff lives in Fort Collins and is a Colorado State University (“CSU”) alumnus.
Second Am. Compl. [#50] ¶¶ 4, 74. At all times relevant to the events underlying this
lawsuit, Plaintiff was indigent and/or homeless. Id. ¶ 4. Plaintiff asserts that the CSU
campus police issued him several “exclusionary orders,” allegedly for feeding squirrels
on campus.4 Id. ¶ 76. An exclusionary order “provides for immediate exclusion or
banishment” from the CSU campus. Id. ¶ 81. CSU’s exclusionary orders are enforced
by citations of trespass under Fort Collins Municipal Code § 17-40(a) and Colo. Rev. Stat.
§ 18-4-504.5 Id. The exclusionary orders cite Colo. Rev. Stat. § 18-9-109 as legal
3 All well-pled facts from the Second Amended Complaint [#50] are accepted as true and viewed
in the light most favorable to Plaintiff as the nonmovant. Barnes v. Harris, 783 F.3d 1185, 1191-
92 (10th Cir. 2015).
4 Plaintiff includes one allegation in his Second Amended Complaint [#50] involving an older
exclusionary order issued against him specifically for feeding squirrels. Second Am. Compl. [#50]
¶ 107. This exclusionary order, issued on May 18, 2016, was “lifted without the necessity of an
exclusionary order appeal ‘hearing.’” Id. ¶ 103. Plaintiff also includes in his Second Amended
Complaint [#50] other citations for trespassing and camping that were subsequently dismissed.
See id. ¶¶ 104, 149.
5 In relevant part, Colo. Rev. Stat. § 18-4-504 provided at the time of the alleged underlying
offenses: “(1) A person commits the crime of third degree criminal trespass if such person
unlawfully enters or remains in or upon premises of another. (2) Third degree criminal trespass
is a class 1 petty offense . . . .” Effective March 1, 2022, it has been amended to remove the
words “class 1.”
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authority to remove people from campus who “disrupt, impair, interfere with, or obstruct
the lawful missions, processes, procedures, or functions of the institution.” Id. ¶ 82.
On July 20, 2018, a CSU police officer issued Plaintiff a citation for trespassing
under Colo. Rev. Stat. § 18-4-504 and an exclusionary order barring him from the CSU
campus. Id. ¶ 127. On August 7, 2018, CSU upheld the exclusionary order on appeal
after conducting a telephonic hearing. Id. ¶ 129. On August 24, 2018, CSU again affirmed
the exclusionary order after Plaintiff submitted a written appeal to the exclusionary order
review committee. Id. ¶¶ 130-32. On November 20, 2018, Plaintiff emailed the CSU
Board of Governors with questions regarding the exclusionary order policy. Id. ¶ 133.
Plaintiff demanded a response within ten days, stating that he would otherwise disregard
any exclusionary order and return to CSU. Id. Plaintiff returned to CSU when he did not
receive a response within fifteen days. Id.
On May 17, 2019, another CSU police officer issued Plaintiff a citation for
trespassing under Colo. Rev. Stat. § 18-4-504 and an exclusionary order. Id. ¶ 134. The
CSU police officer allegedly accessed the Colorado Crime Information Center database
and purportedly “entered a false report of a permanent criminal protective order against
Plaintiff” without a “court ordered restraining order prohibiting Plaintiff from entering CSU
property.” Id. ¶ 136. On July 12, 2019, the same CSU police officer issued Plaintiff a
second citation for trespassing, this time under Fort Collins Municipal Code § 17-40(a).
Id. ¶ 222. It is unclear what specific procedural events took place following Plaintiff’s
trespass citation under Fort Collins Municipal Code § 17-40(a). It appears that after a
jury trial on an unspecified date, Plaintiff was found guilty of trespassing under Fort Collins
Municipal Code § 17-40(a). Id. ¶ 280. Plaintiff was sentenced to sixty-six days in jail;
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however, “60 days were suspended upon [the] condition that Plaintiff was denied access
and use of [CSU] for one year.” Id. ¶ 209. Plaintiff appealed and his conviction was
affirmed, including the order denying Plaintiff’s access and use of CSU property for one
year. Id. ¶¶ 210, 213.
Plaintiff filed this lawsuit on August 26, 2021. See [#1]. On April 29, 2022, Plaintiff
filed the Second Amended Complaint [#50], asserting §§ 1983, 1985, and 1986 claims.
Claim 1 relates to CSU’s exclusionary order policy. Id. ¶¶ 260-273. This claim asserts
that CSU’s exclusionary order policy violates Plaintiff’s substantive and procedural due
process rights under the Fifth and Fourteenth Amendments and that the exclusionary
orders deny Plaintiff equal protection in violation of the Fourteenth Amendment. Id. ¶¶
263, 264, 269. Claim 2 appears to relate to the enforcement of the State and City
Defendants’ trespass laws. Id. ¶¶ 274-285. This claim appears to assert that CSU and
the City denied Plaintiff’s right to due process and equal protection of the law under the
Fifth and Fourteenth Amendments and that Plaintiff “continues to suffer, actual,
irreparable, permanent injury due to enforcement of the state and city trespass laws.” Id.
¶¶ 283, 285. Claim 2 also asserts that Plaintiff was “unlawfully prosecuted, unlawfully
convicted, and unlawfully imprisoned,” appearing to assert a violation of the Eighth
Amendment. Id. ¶ 276. Claim 3 relates to the City’s trespass ordinance. Id. ¶¶ 286-296.
This claim asserts that the City’s trespass ordinance denies Plaintiff his “Eighth, Fifth, and
Fourteenth Amendment Rights to due process and equal protection of the law.” Id. ¶ 288.
Claim 4 relates to the City’s camping ordinances. Id. ¶¶ 297-306. This claim asserts that
the City’s camping ordinances violate his “Constitutional Rights under the 4th, 5th, 8th
and 14th Amendments.” Id. ¶ 306. Plaintiff seeks declaratory and injunctive relief. Id. ¶¶
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273, 285, 296, 306. The Court further discusses the construction of Plaintiff’s claims in
Section III.A. below.
In the City’s Motion [#51], the City contends that Plaintiff’s claims challenging the
City’s trespass and camping ordinances must be dismissed because: (1) the statute of
limitations bars Plaintiff’s claims in part; (2) Plaintiff lacks standing to seek prospective
relief regarding the City’s trespass ordinance; (3) the Rooker-Feldman doctrine bars
Plaintiff’s wrongful conviction claim; (4) the City is entitled to absolute immunity for its
employees’ actions related to Plaintiff’s criminal prosecution under the trespass
ordinance; and (5) Plaintiff fails to plausibly plead any constitutional violation. Motion
[#51] at 1-2.
In the State’s Motion [#53], the State Defendants contend that Plaintiff’s claims
challenging the exclusionary orders should be dismissed because: (1) the Court lacks
subject matter jurisdiction; and (2) Plaintiff fails to state a claim upon which relief can be
granted. Motion [#53] at 5, 7.
II. Standard of Review
A. Fed. R. Civ. P. 12(b)(1)
The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the
Court has jurisdiction to properly hear the case before it. Because “federal courts are
courts of limited jurisdiction,” the Court must have a statutory basis to exercise its
jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed. R. Civ. P.
12(b)(1). Statutes conferring subject matter jurisdiction on federal courts are to be strictly
construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden
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of establishing [subject matter jurisdiction] rests upon the party asserting jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a facial attack
or a factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When
reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint
as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court “may
not presume the truthfulness of the complaint’s factual allegations.” Id. at 1003. With a
factual attack, as in this case, the moving party challenges the facts upon which subject
matter jurisdiction depends. Id. The Court therefore must make its own findings of fact.
Id. In order to make its findings regarding disputed jurisdictional facts, the Court “has
wide discretion to allow affidavits, other documents, and a limited evidentiary hearing.”
Id. (citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990);
Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir.), cert. denied, 484 U.S. 986
(1987)). The Court’s reliance on “evidence outside the pleadings” to make findings
concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to
Rule 12(b)(1) into a motion for summary judgment pursuant to Fed. R. Civ. P. 56. Id.
B. Fed. R. Civ. P. 12(b)(6)
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R.
Civ. P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim
upon which relief can be granted.”). “The court’s function on a Rule 12(b)(6) motion is
not to weigh potential evidence that the parties might present at trial, but to assess
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whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 17 F.3d 1226, 1236
(10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule
12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim for relief
that is plausible on its face.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of
Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient
facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to
support the plaintiff’s allegations.” (quoting Twombly, 550 U.S. at 570)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor
does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enforcement.” Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in
the complaint “must be enough to raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009).
“[W]here the well-pleaded facts do not permit the court to infer more than a mere
possibility of misconduct,” a factual allegation has been stated, “but it has not show[n] [ ]
that the pleader is entitled to relief,” as required by Fed. R. Civ. P. 8(a). Iqbal, 556 U.S.
at 679 (second brackets added; citation and internal quotation marks omitted).
III. Analysis
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A. Construction of Plaintiff’s Second Amended Complaint [#50]
1. Parties
On April 29, 2022, in accepting Plaintiff’s Second Amended Complaint [#50] for
filing, the Court addressed the issue of which entities or individuals Plaintiff intended to
name as Defendants in this lawsuit. Order [#49] at 8-9. The Court stated:
In the case caption of the proposed Second Amended Complaint, Plaintiff
identifies the defendants as follows:
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 Neita, 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 Nie Olsen, and
each heir appointee and/or official; each Individual Jointly and
Severally Liable as Co-Defendants.
See [#39] at 13. However, in the body of the Second Amended Complaint
under the “Parties” heading, Plaintiff identifies only the following
Defendants: (1) City of Fort Collins, (2) Colorado State University/Colorado
State University Board of Governors, (3) Colorado Judicial Administrator
Steven Vasconcellos, and (4) State of Colorado. Id. at 15. These, along
with “Doe Agents,” are the same Defendants listed in the currently-operative
Amended Complaint [#24]. Without appropriate identification and other
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information about the other persons mentioned in the caption of the
proposed Second Amended Complaint, the Court is not inclined to interpret
the proposed Second Amended Complaint as naming them as additional
parties at this time.
For the reasons set forth above, and considering that leave to amend should
be freely given, the Court permits Plaintiff leave to file his proposed Second
Amended Complaint as asserted against the State of Colorado, the City of
Ford Collins, the CSU Board of Governors, Colorado State University, and
Steven Vasconcellos.
Id. No party objected to the Court accepting the Second Amended Complaint [#50] as to
these five parties only.
Subsequently, however, Plaintiff disclaimed asserting claims against either
Defendant State of Colorado or Defendant Colorado State University. Response [#59] at
10. For reasons explained more fully in the Court’s Order and Recommendation [#73],
the Court therefore has recommended that these two Defendants be dismissed from this
lawsuit. Thus, should that Recommendation [#73] be adopted, the only three named
Defendants remaining in this lawsuit are the City, the Board, and Mr. Vasconcellos, who
are also the only three movants in the present Motions [#51, #53].
2. Claims and Relief
Like the named parties have been, the claims and relief sought in the Second
Amended Complaint [#50] continue to be moving targets, especially when read in
connection with Plaintiff’s Responses [#58, #59] which withdraw, disclaim, or clarify
certain portions of his claims and/or requested relief. Plaintiff stated in his Responses
[#58, #59] that he intended to formally seek leave to file a Third Amended Complaint “to
eliminate allegations of criminal misconduct, and amend the allegations to eliminate
claims of his unlawful arrest, unlawful conviction and unlawful imprisonment.” Response
[#58] at 2; Response [#59] at 2. He also affirms that, despite any statements in the
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Second Amended Complaint [#50] to the contrary, he is “not seeking monetary
damages” and is “not seeking reversal of his trespass convictions.” Motion [#59] at
10 (emphases in original).
Plaintiff affirmatively states that he is seeking declaratory and injunctive relief
regarding: (1) whether the “Colorado State University ‘exclusionary order’ policy is
unconstitutional,” (2) “[w]hether “CSU permanent ‘exclusionary orders’ are
unconstitutional,” (3) “[w]hether C.R.S. § 18-9-109(1) prohibits exclusion from CSU
campus,” (4) [w]hether the City trespass ordinance applies to state property like CSU,”
(5) “[w]hether F.C.M.C. Sec. 17-1(3) and (4) are unconstitutional as applied,” (6) [w]hether
Fort Collins ‘camping’ ordinances are facially unconstitutional,” and (7) “[w]hether C.R.S.
§ 18-4-201(1) exempts public property from trespass laws.” Response [#58] at 2;
Response [#59] at 2. Although Plaintiff may not amend his operative complaint based on
statements made in briefing on a motion to dismiss, see, e.g., In re Qwest Commc’ns
Int’l., Inc., 396 F. Supp. 2d 1178, 1203 (D. Colo. 2004), the Court notes that these seven
issues are all encompassed in the claims Plaintiff has already made in the Second
Amended Complaint [#50]. See [#50] ¶¶ 260-306.
However, the Court construes Plaintiff’s explicit statements in his Responses [#58,
#59] as seeking to voluntarily dismiss any other claims and forms of relief. Accordingly,
the Court recommends that any claims or relief which could otherwise be construed from
the Second Amended Complaint [#50] be dismissed without prejudice.
B. Fed. R. Civ. P. 12(b)(1)
1. Eleventh Amendment
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The State Defendants argue that Plaintiff’s claims against the Board are barred by
Eleventh Amendment immunity. Motion [#53] at 5-6.
“The ultimate guarantee of the Eleventh Amendment is that nonconsenting States
may not be sued by private individuals in federal court.” Bd. of Trs. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001); see also Wagoner Cnty. Rural Water Dist. No. 2 v.
Grand River Dam Auth., 577 F.3d 1255, 1258 (10th Cir. 2009) (“The Eleventh
Amendment is a jurisdictional bar that precludes unconsented suits in federal court
against a state and arms of the state.”).6
The Court finds that the Board is an entity which operates as an arm of the State
of Colorado and therefore is entitled to invoke Eleventh Amendment sovereign immunity.
See, e.g., Corrigan v. Bd. of Trustees of Metro. State Univ. of Denver, No. 19-cv-02475-
CMA-NYW, 2020 WL 5536494, at *4 (D. Colo. Apr. 22, 2020), recommendation adopted
by Corrigan v. Bd. of Trustees of Metro. State Univ. of Denver, No. 19-cv-02475-CMA-
NYW, 2020 WL 3567049 (D. Colo. July 1, 2020), (citing Colo. Rev. Stat. § 23-54-102(6),
which transferred all duties and powers formerly performed by the trustees of the state
colleges in Colorado to the Board); Harrison v. Univ. of Colo. Health Scis. Ctr., 337 F.
App’x 750, 753 (10th Cir. 2009) (concluding that the University of Colorado was an arm
of the state given that the Colorado Constitution considers educational institutions
6 Ex parte Young, 209 U.S. 123 (1908), operates as an exception to this rule. As explained by
the Tenth Circuit, the Ex parte Young exception permits “‘suits against state officials seeking to
enjoin alleged ongoing violations of federal law.’” Peterson, 707 F.3d 1197, 1205 (10th Cir. 2013);
see also Hill v. Kemp, 478 F.3d 1236, 1255 (10th Cir. 2007) (stating that under Ex parte Young,
“the Eleventh Amendment generally will not operate to bar suits so long as they (i) seek only
declaratory and injunctive relief rather than monetary damages for alleged violations of federal
law, and (ii) are aimed against state officers acting in their official capacities, rather than against
the State itself”). Here, the Board as an entity is not a “state officer” acting in its “official capacity,”
so Ex parte Young does not apply.
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supported by the State to be a State institution, and that this included divisions and
employees in their official capacity within the University of Colorado)).
“Eleventh Amendment immunity applies to state entities regardless of the relief
sought.” Corrigan, 2020 WL 5536494, at *4 (citing Smith v. Plati, 56 F. Supp. 2d 1195,
1202 (D. Colo. 1999). Here, there is no indication that the Board has waived Eleventh
Amendment immunity. See Motion [#53] at 5-6. Thus, the Eleventh Amendment bars
Plaintiff’s Claim One (regarding the CSU exclusionary policy) and Claim Two (regarding
Fifth, Eighth, and Fourteenth Amendment violations) to the extent these two claims are
asserted against the Board. See, e.g., Corrigan, 2020 WL 5536494, at *4 (recommending
dismissal of claims against the Board of Trustees of Metropolitan State University of
Denver on the basis of Eleventh Amendment immunity) (citing Norris v. Univ. of Colo.,
Boulder, 362 F. Supp. 3d 1001, 1021 (D. Colo. 2019) (dismissing the plaintiff’s breach of
contract claim against the University of Colorado because no waiver of sovereign
immunity occurred)).
Accordingly, the Court recommends that the State Defendants’ Motion [#53] be
granted to the extent that Claims One and Two be dismissed without prejudice in part
to the extent asserted against the Board. See, e.g., Rural Water Sewer & Solid Waste
Mgmt., Dist. No. 1, Logan Cnty., Okla. v. Guthrie, 654 F.3d 1058, 1069 n.9 (10th Cir.
2011) (stating that dismissal on subject matter jurisdiction grounds is without prejudice).
2. Rooker-Feldman Doctrine
The Rooker-Feldman doctrine “‘prevents a party losing in state court . . . from
seeking what in substance would be appellate review of a state judgment in a United
States district court, based on the losing party’s claim that the state judgment itself
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violates the loser’s federal rights.’” Blake v. Hong, No. 22-1110, 2023 WL 382928, at *2
(10th Cir. Jan. 25, 2023) (quoting Tal v. Hogan, 453 F.3d 1244, 1256 (10th Cir. 2006)
(quotations and brackets omitted)).
a. The City
The City argues that Plaintiff’s second claim regarding wrongful prosecution is
barred by the Rooker-Feldman doctrine to the extent that claim is based on “the validity
of CSU’s underlying exclusionary order, the Court’s jury instructions, and prosecutorial
and judicial misconduct.” Motion [#51] at 4-5. However, based on the Court’s analysis in
Section III.A.2. above regarding Plaintiff’s statements in his Responses [#58, #59], it
appears that Plaintiff has withdrawn his complaints regarding jury instructions and
misconduct in the underlying state court action. In addition, the Court can find no
indication in the Second Amended Complaint [#50] that Plaintiff’s claims regarding the
CSU exclusionary order are somehow directed at the City. Indeed, there appear to be no
allegations that the City had a hand in the issuance of any exclusionary order by CSU.
The City itself explicitly concedes that “[t]he underlying substance of CSU’s exclusionary
orders and Plaintiff’s subjective perceptions of any deficiencies with these orders are
separate matters unrelated to Plaintiff’s trespass claim against the City.” Motion [#51] at
7. Thus, the City appears to lack standing to seek dismissal of aspects of Plaintiff’s claims
that are not asserted against the City. See, e.g., AVT—N.Y., L.P. v. Olivet Univ., No.
2:18-cv-00782-JNP-DAO, 2022 WL 1230406, at *3 (D. Utah Jan. 31, 2022) (holding that
the defendant’s “failure to establish it has standing to challenge personal jurisdiction on
behalf of non-objecting third parties requires the court to reject its arguments and
opposition”); Petrowsky v. NextEra Energy Res., LLC, No. 17-1403-EFM-KGG, 2017 WL
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2666361, at *3 (D. Kan. June 21, 2017) (holding that the defendant had “fail[ed] to explain
how it has standing to argue a 12(b)(1) motion on behalf of its separate and distinct
subsidiaries”).
Accordingly, the Court recommends that the City’s Motion [#51] be denied to the
extent it seeks dismissal on the basis of the Rooker-Feldman doctrine.
b. The State Defendants
The State Defendants argue that, “[t]o 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,” the Court lacks subject matter jurisdiction
under the Rooker-Feldman doctrine. Motion [#53] at 7. Again, based on the Court’s
analysis in Section III.A.2. above regarding Plaintiff’s statements in his Responses [#58,
#59], it appears that Plaintiff has withdrawn his complaint with respect to overturning his
criminal convictions for trespass. Further, the Court has already recommended that all
claims asserted against the Board be dismissed. See supra § III.B.1. Plaintiff’s few other
allegations concerning the other State Defendant, Defendant Vasconcellos, also all
appear to relate to his criminal convictions. In fact, other than the caption and the
Certificate of Service, Plaintiff mentions Defendant Vasconcellos only twice in the Second
Amended Complaint [#50]: (1) “Defendant, Colorado Judicial Administrator, Steven
Vasconcellos, resides in the State of Colorado, and is responsible for judicial
administration in Colorado,” Second Am. Compl. [#50] ¶ 7; and (2) “Employees of Larimer
County Court Judicial Administration have access and use of a PDF copy of a judge’s
electronic signature; Plaintiff notified Judicial Administrator, Steven Vasconcellos of the
unauthorized use, but he did not reply,” id. ¶ 211. Thus, as best the Court can decipher
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from the Second Amended Complaint [#50], Plaintiff does not assert his claims regarding
the legality of Colo. Rev. Stat. § 18-4-504 and of CSU’s exclusionary orders against
Defendant Vasconcellos, and therefore Defendant Vasconcellos appears to lack standing
to seek dismissal of these aspects of Plaintiff’s claims that are not asserted against him.
See, e.g., AVT—N.Y., L.P., 2022 WL 1230406, at *3; Petrowsky, 2017 WL 2666361, at
*3.
Accordingly, the Court recommends that the State Defendants’ Motion [#53] be
denied to the extent Defendant Vasconcellos seeks dismissal on the basis of the Rooker-
Feldman doctrine.
3. Standing
The City argues that Plaintiff’s allegations fail to satisfy Article III’s standing
requirements as to Claim Three regarding the City’s trespass ordinance because Plaintiff
cannot establish a continuing injury for prospective relief. Motion [#51] at 3. The City
contends that Plaintiff offers no well-pled allegations showing a credible threat of future
prosecution in his Second Amended Complaint [#50]. Id.
Article III of the United States Constitution limits the jurisdiction of the federal courts
to actual cases or controversies. U.S. Const. art. III, Section 2, cl. 1. One “element of
the case-or-controversy requirement is that Plaintiff must establish that he has standing
to sue.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (internal citations and
quotation marks omitted). To satisfy Article III’s standing requirements, a plaintiff must
show: “(1) [he] has suffered an ‘injury in fact’ that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to
the challenged action of the defendant; and (3) it is likely, as opposed to merely
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speculative, that the injury will be redressed by a favorable decision.” S. Utah Wilderness
All. v. Palma, 707 F.3d 1143, 1153 (10th Cir. 2013) (quoting Friends of the Earth v.
Laidlaw Envt’l Servs., 528 U.S. 167, 180-81 (2000) (internal citation omitted)). When
prospective relief is sought “‘the plaintiff must be suffering a continuing injury or be under
a real and immediate threat of being injured in the future.’” Colo. Cross Disability Coal.
v. Abercrombie & Fitch Co., 765 F.3d 1205, 1211 (10th Cir. 2014) (quoting Tandy v. City
of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004)).
The City argues that Plaintiff lacks standing to seek prospective relief regarding
the City’s trespass ordinance, i.e., Plaintiff’s Claim Three. Motion [#51] at 3. Relying on
Faustin v. City and County of Denver, 268 F.3d 942, 948 (10th Cir. 2001), and Dias v.
City and County of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009), the City states:
Here, Plaintiff is unable to establish a credible threat of future prosecution.
During Plaintiff’s 31-year residency in Fort Collins, he has been prosecuted
under the trespass ordinance one time—July 12, 2019. Plaintiff does not
allege any other citations or prosecutions under the City’s trespass
ordinance. One prosecution under the City’s trespass ordinance in a 31-
year period, without more, does not show a credible threat of future
prosecution. There are no proper allegations showing a continuing injury,
and therefore he lacks standing to claim prospective relief regarding the
City’s trespass ordinance.
Id. (citing Second Am. Compl. [#50] ¶¶ 4, 282). The Court disagrees that either Faustin
or Dias shows that Plaintiff’s Claim Three here must be dismissed for lack of standing.
In Faustin, the Tenth Circuit Court of Appeals stated that standing to assert
injunctive relief based on application of a city ordinance required the plaintiff to “show a
real and immediate threat that [ ]he will be prosecuted under this statute in the future.”
Faustin, 268 F.3d at 948. There, the Circuit Court found that the plaintiff did not have
standing because, “[i]n light of the city prosecutor’s determination that Faustin was not
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violating the posting ordinance because she was holding the sign and it was not affixed
in any way, it is not likely she will again be charged under” the pertinent ordinance. Id.
In Dias, the Tenth Circuit explained more fully what a “credible threat of future
prosecution” means:
To the extent the plaintiffs seek prospective relief, we conclude that they
lack standing because they have not alleged a credible threat of future
prosecution under the Ordinance. Specifically, there is no credible threat of
future enforcement because none of the plaintiffs currently resides in
Denver and none has alleged an intent to return. To establish standing to
seek prospective relief, a plaintiff must show a continuing injury; standing
for retrospective relief can be based on past injuries. As the Supreme Court
explained, “[p]ast 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.” Only by alleging a continuing
injury can a plaintiff seeking prospective relief establish an injury in fact.
In the context of a facial challenge to the constitutionality of a penal statute,
a plaintiff alleges a continuing injury if “there exists a credible threat of
[future] prosecution thereunder.” In Rasmussen, we concluded that PeTA
lacked standing to seek prospective relief from an allegedly unconstitutional
statute because it did not have a “good chance of being . . . injured in the
future.” After engaging in a demonstration for animal rights near a junior
high school, several PeTA members had been arrested pursuant to a Utah
statute prohibiting disruptive activities on or near school grounds. Another
statute defined a “school” as “any private institution of higher education or
any state institution of higher education.” Because PeTA had not alleged
an intent to stage a future protest at an institution of higher education (as
opposed to a junior high school), PeTA was not under a threat of future
enforcement and lacked standing to seek prospective relief.
As in Rasmussen, the plaintiffs have not demonstrated a continuing injury
because they have not alleged a credible threat of future prosecution under
the Ordinance. The scope of the Ordinance, of course, is confined to
Denver’s city limits. Yet, as noted, none of the plaintiffs currently resides in
Denver, and none of the plaintiffs has alleged an intention to return to
Denver. Absent an allegation that any of the plaintiffs intend to return to the
City with their dogs, there cannot be a credible threat of future prosecution
under the Ordinance. Accordingly, the plaintiffs lack standing to seek
prospective relief.
Dias, 567 F.3d at 1177-79 (internal citations omitted).
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Here, among other things, Plaintiff alleges that the Fort Collins public
transportation central bus terminal is located on the CSU campus. Second Am. Compl.
[#50] ¶¶ 54, 68. He alleges that “has a senior Fort Collins bus pass,” and that he “used
the bus [and the bus terminal] . . . each day” “until he was permanently banned for
allegedly ‘feeding squirrels.’” Id. ¶¶ 75, 202, 208, 228. The thrust of his Claim Three is
that he wants the trespass ordinance declared unconstitutional so that he can use the
public places on CSU campus again without threat of having the trespass ordinance
enforced against him. See id. ¶¶ 286-96. It also appears clear from the Second Amended
Complaint [#50] that Plaintiff faces a credible threat of future prosecution if he enters the
CSU campus again, given that he was already prosecuted once under the City’s trespass
ordinance and that he essentially wants to engage in the same conduct again, i.e., use
certain facilities located on campus. Thus, the Court finds that Plaintiff has adequately
alleged standing to pursue this claim.
Accordingly, the Court recommends that the City’s Motion [#51] be denied with
respect to its standing argument and Plaintiff’s Claim Three.
B. Fed. R. Civ. P. 12(b)(6)
1. Defendant Vasconcellos
The State Defendants argue that Plaintiff has failed to adequately allege that
Defendant Vasconcellos participated in any asserted constitutional deprivations. Motion
[#53] at 10-11. As noted above, other than the caption and the Certificate of Service,
Plaintiff substantively mentions Defendant Vasconcellos only twice in the Second
Amended Complaint [#50]: (1) “Defendant, Colorado Judicial Administrator, Steven
Vasconcellos, resides in the State of Colorado, and is responsible for judicial
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administration in Colorado,” Second Am. Compl. [#50] ¶ 7; and (2) “Employees of Larimer
County Court Judicial Administration have access and use of a PDF copy of a judge’s
electronic signature; Plaintiff notified Judicial Administrator, Steven Vasconcellos of the
unauthorized use, but he did not reply,” id. ¶ 211. As best the Court can decipher the
Second Amended Complaint [#50], Plaintiff’s claims against Defendant Vasconcellos
stem solely from the state court proceedings resulting in Plaintiff’s trespass conviction.
As discussed in Section III.A.2. above, Plaintiff has withdrawn this aspect of his claims.
Further, there are no allegations in the Second Amended Complaint [#50] or argument in
the briefs before the Court that Defendant Vasconcellos has any connection to or power
over the declaratory and injunctive relief Plaintiff seeks in connection with his remaining
claims as discussed above and as listed in his Responses [#58, #59]. Given that Plaintiff
is “not seeking relief to invalidate his arrest, prosecution, conviction or imprisonment” but
rather “simply seeks declaratory and injunctive relief so that he may ‘conduct activities of
daily living,’ and have equal access to public property,” the Court finds, in conjunction with
Section III.A.2. above, that Plaintiff’s claims against Defendant Vasconcellos should be
dismissed.
Accordingly, the Court recommends that Plaintiff’s claims against Defendant
Vasconcellos be dismissed with prejudice. See Brereton v. Bountiful City Corp., 434
F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with prejudice is appropriate where a
complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would
be futile.”).
2. The City
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Plaintiff’s remaining claims are generally based on the City’s trespass ordinance
and camping ordinance. Regarding the trespass ordinance, Fort Collins Municipal Code
17-40(a) provides in part that “[n]o person shall enter or remain unlawfully in or upon
property, whether publicly or privately owned.” According to Fort Collins Municipal Code
17-1, the phrase “enter and remain unlawfully” means:
(1) To enter or remain in or upon privately owned property when not
licensed, invited, privileged or otherwise authorized to do so; (2) [t]o enter
or remain in or upon publicly owned property that is not open to the public;
(3) [t]o fail to leave property, whether privately or publicly owned, after being
directed to do so by a person lawfully in control of the property; or (4) [t]o
conduct oneself in a public place in violation of any rule or regulation issued
by any officer or agency having the power of control, management, or
supervision thereof, which limits or prohibits the use, activities or conduct in
such public place, provided that the rule or regulation is: (i) prominently
posted at all public entrances to the property; (ii) posted in such a way as
to be clearly visible from the site of the infraction; or (iii) actually known to
the offender.
Regarding the camping ordinance, Fort Collins Municipal Code 17-181 provides:
It shall be unlawful for any person to camp or pitch a tent, or knowingly
permit any person to camp or pitch a tent, on public property within the City.
Camping, for the purposes of this Section, shall mean to sleep, spend the
night, reside or dwell temporarily with or without bedding or other camping
gear and with or without shelter, or to conduct activities of daily living such
as eating or sleeping, in such place unless such person is camping in
compliance with Chapter 23 in a natural or recreation area. Camping shall
not include incidental napping or picnicking.
a. Absolute Immunity
The City argues that it “is entitled to absolute immunity under § 1983, for the
actions of its employees taken in connection with Plaintiff’s prosecution for trespass.”
Motion [#51] at 5-6. The City asserts this argument specifically in connection with
Plaintiff’s Claim Two regarding wrongful prosecution. Id. at 5. As stated in Section III.A.2.
above, Plaintiff appears to have withdrawn this aspect of his claims. However, to the
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extent this argument could be construed as being made toward any remaining parts of
Claim Two, the Court notes that “[a]bsolute immunity applies to ‘officials whose special
functions or constitutional status requires complete protection from suit,’ like legislators
acting in their legislative capacity, judges acting in their judicial capacity, and prosecutors
and executive officers engaged in adjudicative functions, as well as the President of the
United States.” Tucker v. Faith Bible Chapel Int’l, 36 F.4th 1021, 1039 n.14 (10th Cir.
2022) (quoting Harlow, 457 U.S. 800, 806 (1982)). None of the cases cited by the City
support the proposition that a municipality may assert absolute immunity for itself based
on the work of its employees. Motion [#51] at 5-6 (citing Butz v. Economou, 438 U.S. 478
(1978); Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Pierson v. Ray, 386 U.S. 547
(1967); Scott v. Hern, 216 F.3d 897 (10th Cir. 2000); Hammon v. Bales, 843 F.2d 1320
(10th Cir. 1988); Dohaish v. Tooley, 670 F.2d 934 (10th Cir. 1982)).
Accordingly, the Court recommends that the City’s Motion [#51] be denied to the
extent the City seeks absolute immunity.
b. Fifth Amendment
The City argues that Plaintiff has not adequately alleged a taking of personal
property necessary to state a Fifth Amendment takings clause violation, with respect to
his second, third, or fourth claims. Motion [#51] at 13-15. The City reasonably interprets
Plaintiff’s claim here as a regulatory takings claim, which Plaintiff does not contest in his
Response [#58]. Rather, in response, Plaintiff does not substantively address the City’s
argument, merely stating that a question in the case is “whether such infringement of His
Constitutional and Inalienable Rights constitutes a ‘Taking.’” Response [#58] at 19.
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“The Fifth Amendment’s Takings Clause provides that ‘private property [shall not]
be taken for public use, without just compensation.’” N. Mill St., LLC v. City of Aspen, 6
F.4th 1216, 1224 (10th Cir. 2021) (quoting U.S. Const. amend. V). “The Supreme Court
has recognized that ‘government regulation of private property may, in some instances,
be so onerous that its effect is tantamount to a direct appropriation or ouster—and that
such “regulatory takings” may be compensable under the Fifth Amendment.’” N. Mill St.,
LLC, 6 F.4th at 1224 (quoting Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005)).
“The Court has identified two categories of regulatory action that are ‘per se’ takings: (1)
‘where government requires an owner to suffer a permanent physical invasion of [his]
property—however minor,’ and (2) ‘regulations that completely deprive an owner of “all
economically beneficial use” of [his] property.’” N. Mill St., LLC, 6 F.4th at 1224 (quoting
Lingle, 544 U.S. at 538).
Plaintiff’s allegations do not adequately allege either of these types of takings. He
has not alleged that the City has seized any of his personal property while enforcing its
trespass and camping ordinances. He has not alleged a physical invasion of his property.
He has not alleged that the City’s ordinances have deprived him of all economically
beneficial use of his property. As the City points out, the only private-property item alleged
in the Second Amended Complaint [#50] is Plaintiff’s vehicle, but Plaintiff fails to allege
any impact on the economic value or benefit of his vehicle. See Second Am. Compl.
[#50] ¶ 180 (stating that the trespass and camping ordinances “denied Plaintiff his
constitutional and inalienable right to use his private property (use of his vehicle to
conduct activities of daily living)”). Plaintiff has not directed the Court’s attention to any
other private property which may be at issue.
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Alternatively, “when a regulation impedes the use of property without depriving the
owner of all economically beneficial use, a taking still may be found based on ‘a complex
of factors,’ including (1) the economic impact of the regulation on the claimant; (2) the
extent to which the regulation has interfered with distinct investment-backed expectations;
and (3) the character of the governmental action.” Murr v. Wisconsin, 137 S. Ct. 1933,
1943 (2017).
Applying these factors to the City’s trespass ordinance, Plaintiff essentially alleges
that the City’s trespass ordinance violated the takings clause because it deprived him of
unlimited access to public property. Plaintiff does not allege that he owned any private
property which was taken by the City in connection with the trespass issue, and, of course,
he does not own the public property at issue. Thus, his Fifth Amendment claim fails to
the extent it concerns the City’s trespass ordinance.
Applying these factors to the City’s camping ordinance, the crux of Plaintiff’s
takings claim is that he should be able to use his car essentially as he deems appropriate,
without restriction by the City. The Court is unaware of any legal authority supporting
such a theory. The government regularly places limitations on how personal property
may be used and maintained; the question is whether any such limitation is “so onerous
that its effect is tantamount to a direct appropriation or ouster.” Lingle, 544 U.S. at 537.
Plaintiff has not sufficiently alleged that the City’s camping ordinance deprives him of the
use of his vehicle to such an extent that it is “tantamount to a direct appropriation” of the
vehicle. Thus, his Fifth Amendment claim fails to the extent it concerns the City’s camping
ordinance.
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Accordingly, the Court recommends that, to the extent Plaintiff’s claims are
premised on the Fifth Amendment, that such claims be denied with prejudice. See
Brereton, 434 F.3d at 1219.
c. Eighth Amendment
The City argues with respect to the second, third, and fourth claims that Plaintiff
fails to adequately allege an Eighth Amendment violation. Motion [#51] at 15-17; Reply
[#61] at 12. In response, Plaintiff appears to abandon any argument under the Eighth
Amendment with respect to the trespass ordinance, as appears appropriate given the
withdrawal of the aspects of his claims on which this argument was originally based, as
discussed in § III.A.2. above, instead only arguing that the camping ordinance violates
the Eighth Amendment. Response [#58] at 18 (discussing the Eighth Amendment in
connection with section discussing whether the City’s camping ordinance is
unconstitutional).
The Eighth Amendment limits the type of punishment the government may impose,
prohibits punishment that is grossly disproportionate to the severity of the crime, and
places limits on what type of conduct the government may criminalize. Ingraham v.
Wright, 430 U.S. 651, 667 (1976). However, it is only applicable after a formal
adjudication of guilt. Halik v. Darbyshire, No. 20-cv-01643-PAB-KMT, 2021 WL 4556188,
at *13 (D. Colo. Aug 23, 2021) (citing Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 809
(10th Cir. 1999) (“The Eighth Amendment, which applies to the States through the Due
Process Clause of the Fourteenth Amendment, prohibits the infliction of cruel and unusual
punishments on those convicted of crimes.”); City of Revere v. Mass. Gen. Hosp., 463
U.S. 239, 244 (1983) (“[T]he State does not acquire the power to punish with which the
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Eighth Amendment is concerned until after it has secured a formal adjudication of
guilt[.]”)). Here, Plaintiff does not allege that he was ever convicted of violating the City’s
camping ordinance and, in fact, he only alleges the opposite. See Second Am. Compl.
[#50] ¶ 303 (“Plaintiff was charged (7) seven times with ‘camping’; only one case was
tried, and Plaintiff was found ‘not guilty’ in 2014; case # 2014-0185514-MD. Most
recently, Plaintiff was cited with ‘camping’; Citation # 384557; Fort Collins Municipal Court
Case: FC-20-4935-MD, which was dismissed on September 17, 2020, and closed.”
(emphases omitted)), ¶ 149 (stating that Plaintiff was issued a citation on August 20,
2017, but that the case was later dismissed). Thus, to the extent Plaintiff’s claims are
asserted under the Eighth Amendment in connection with the camping ordinance, such
claims fail.
Accordingly, the Court recommends that Plaintiff’s claims be dismissed with
prejudice to the extent they are premised on the Eighth Amendment. See Brereton, 434
F.3d at 1219.
d. Fourteenth Amendment
i. Equal Protection
The City argues in connection with the second and fourth claims that Plaintiff has
not adequately alleged a Fourteenth Amendment equal protection claim. Motion [#51] at
17-18. Plaintiff does not explicitly frame his Fourteenth Amendment claim as an equal
protection claim and does not directly respond to the City’s argument in his Response
[#58], although he does generally assert that the City targets homeless persons through
discriminatory enforcement of its trespass and camping ordinances. See, e.g., Second
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Am. Compl. [#50] ¶ 56. Thus, liberally construed, Plaintiff may be asserting a selective
enforcement claim.
The Equal Protection Clause prohibits selective enforcement of the law based on
race, ethnicity, or other impermissible considerations, although the standard for proving
such a claim is “demanding.” Whren v. United States, 517 U.S. 806, 813 (1996); United
States v. Armstrong, 517 U.S. 456, 463 (1996). To establish a claim of selective law
enforcement under § 1983, “[t]he plaintiff must demonstrate that the defendant’s actions
had a discriminatory effect and were motivated by a discriminatory purpose.” Marshall v.
Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1168 (10th Cir. 2003). “[T]he discriminatory
purpose element requires a showing that discriminatory intent was a ‘motivating factor in
the decision’ to enforce the criminal law against the [plaintiff].” United States v. Alcaraz–
Arellano, 441 F.3d 1252, 1264 (10th Cir. 2006) (quoting Marshall, 345 F.3d at 1168).
However, the discriminatory purpose need not be the only purpose. Villaneuva v. Carere,
85 F.3d 481, 485 (10th Cir. 1996).
“[C]ourts have not recognized homeless persons as a suspect . . . class . . . .”
Kalashnikov v. Herbert, No. 2:19-cv-00411-CW-JCB, 2020 WL 7408213, at *5 n.16 (D.
Utah Dec. 2, 2020); see also Joel v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir. 2000)
(“Homeless persons are not a suspect class, nor is sleeping out-of-doors a fundamental
right.”); State of Hawaii v. Sturch, 921 P.2d 1170, 1176 (Haw. Ct. App. 1996) (noting that
there is “no authority supporting a specific constitutional right to sleep in a public place”
unless it is expressive conduct protected by the First Amendment or other fundamental
right). Thus, because Plaintiff has not identified a fundamental right or alleged that he is
a member of a suspect class, the City needs only a rational basis for its actions. See Noe
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v. True, No. 21-1373, 2022 WL 5080196, at *9 (10th Cir. Oct. 5, 2022) (citing Vacco v.
Quill, 521 U.S. 793, 799 (1997) (“If a . . . classification or distinction neither burdens a
fundamental right nor targets a suspect class, we will uphold it so long as it bears a
rational relation to some legitimate end.” (brackets and internal quotation marks
omitted))).
Regarding the trespass ordinance, Plaintiff generally alleges that the City targets
homeless individuals through enforcement of its trespass ordinance, but he provides no
specific allegation that he was targeted or charged with violating the trespass ordinance
because he is homeless. Instead, Plaintiff alleges that CSU issued him an exclusionary
order for feeding squirrels and that later CSU officers issued Plaintiff a citation under the
City’s trespass ordinance for violating that exclusionary order. In addition, there are no
allegations providing any detail specific enough to adequately allege that the City
enforces its trespass ordinance with discriminatory purpose and discriminatory effect.
Thus, the Court finds that Plaintiff fails to allege an equal protection claim with respect to
the trespass ordinance.
Regarding the camping ordinance, Plaintiff has not provided allegations sufficient
to show that the City’s enforcement has a discriminatory purpose or effect. The City
directs the Court’s attention to Joel v. City of Orlando, 232 F.3d 1353, 1360 (11th Cir.
2000), where the Eleventh Circuit Court of Appeals held that a similar camping ordinance
did not encourage discriminatory enforcement. The Circuit Court stated:
The fact that the vast majority of people arrested for violating the ordinance
are homeless does not, by itself, show that City police officers discriminate
against homeless persons in the enforcement of the ordinance. It seems
entirely reasonable to conclude that homeless persons would be more likely
to engage in the type of conduct prohibited by the ordinance and would
therefore constitute the majority of people arrested for violating its
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provisions. To illustrate with an analogy, the fact that the vast majority of
people arrested for violating laws against public intoxication are alcoholics
would not by itself show that those laws were being applied in a
discriminatory fashion against those who suffer from alcoholism.
Joel, 232 F.3d at 1360, n. 5. Here, although Plaintiff alleges that he has been cited with
violating the camping ordinance seven times, he does not provide allegations of any
conduct revealing a motivation to charge Plaintiff because he is homeless. Similarly, he
has not alleged any facts which demonstrate that the City cited other homeless individuals
with violations of its camping ordinance because of their homelessness. Thus, the Court
finds that Plaintiff fails to allege an equal protection claim with respect to the camping
ordinance.
Accordingly, the Court recommends that Plaintiff’s equal protection claim, if any,
be dismissed with prejudice. See Brereton, 434 F.3d at 1219.
ii. Due Process
The City argues that Plaintiff fails to adequately allege a Fourteenth Amendment
due process violation. Motion [#51] at 6-13. The Court begins with the procedural due
process as-applied challenge, then addresses the procedural due process facial
challenge, and finally addresses any substantive due process claim.
Regarding Plaintiff’s procedural due process as-applied challenge, the City first
argues that the statute of limitations bars parts of Plaintiff’s claims. Motion [#51] at 3-4.
Specifically, the City argues that any as-applied challenge to the City’s trespass ordinance
is time-barred in full as well as that any as-applied challenge to the City’s camping
ordinance is time-barred in part. Reply [#61] at 6-7.
The statute of limitations for § 1983 actions brought in Colorado is two years from
the time the cause of action accrued. Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir.
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2010). “Section 1983 claims accrue, for the purposes of the statute of limitations, when
plaintiff knows or has reason to know of the injury which is the basis of his action.” Kripp
v. Luton, 466 F.3d 1171, 1175 (10th Cir. 2006).
Regarding the trespass ordinance, Plaintiff’s complaint stems from the trespass
citation he was issued on July 12, 2019. Second Am. Compl. [#50] ¶ 222. Plaintiff does
not dispute this but appears to invoke the continuing wrong doctrine, which can be used
to toll a statute of limitations. Response [#58] at 10; see Tiberi v. Cigna Corp., 89 F.3d
1423, 1431 (10th Cir. 1996). Under this doctrine, “where a tort involves a continuing or
repeated injury, the cause of action accrues at, and limitations begin to run from, the date
of the last injury.” Tiberi, 89 F.3d at 1430. However, “the doctrine cannot be employed
where the plaintiff’s injury is definite and discoverable, and nothing prevented the plaintiff
from coming forward to seek redress.” Id. at 1431 (internal quotation marks omitted).
Here, despite the fact that an exclusionary order was issued that lasted a certain period
of time, the actual injury occurred at the latest when Plaintiff was cited for violating the
City’s trespass ordinance on July 12, 2019. To the extent Plaintiff incurred injury, he had
actual knowledge of his injury as of July 12, 2019, despite the fact that any lasting effects
from that injury may have continued into the future. See Tiberi, 89 F.3d at 1430. Thus,
he had until July 12, 2021, in which to file his claims. See Braxton, 614 F.3d at 1159;
Kripp, 466 F.3d at 1175. He did not do so until August 26, 2021, and thus any as-applied
challenge to the trespass ordinance is time-barred.
Regarding the camping ordinance, Plaintiff alleges that he has been charged
seven times under this ordinance. Second Am. Compl. [#50] ¶ 303. He provides little in
the way of specific dates, although he says that he was tried and found “not guilty” in 2014
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in Case No. 2014-0185514-MD; that he was cited on August 20, 2017, in a case that was
later dismissed; and that another citation, #384557, Fort Collins Municipal Court Case
FC-20-4935-MD, was dismissed and closed on September 17, 2020. Id. It is unclear
from the Second Amended Complaint [#50] when most of these seven charges occurred
specifically, but it is clear that the charge for which he was tried in 2014 is time-barred,
having occurred well before the two years prior to Plaintiff’s filing of this lawsuit on August
26, 2021. See Compl. [#1]. Similarly, the August 20, 2017 citation is clearly time-barred,
having occurred more than two years before the lawsuit was filed. See id. Given that
“[a] statute of limitations defense may be appropriately resolved on a Rule 12(b) motion
[only] when the dates given in the complaint make clear that the right sued upon has been
extinguished,” see Herrera v. City of Espanola, 32 F.4th 980, 991 (10th Cir. 2022) (internal
quotation marks omitted), and given that it is unclear when most of the charges occurred,
the Court finds that only the 2014 citation and the August 20, 2017 citation referenced by
Plaintiff are barred by the statute of limitations with respect to any as-applied challenge
to the camping ordinance.
As for the remainder of his camping ordinance as-applied due process claim,
Plaintiff alleges that he has been cited a total of seven times with violation of this
ordinance. Second Am. Compl. [#50] ¶ 303. However, he fails to provide any detail
whatsoever about the circumstances underlying these citations, such as when they
occurred, where they occurred, what Plaintiff was doing at the time of the violations, and,
for most instances, the dispositions of the citations. Because Plaintiff has not made
allegations sufficient to support his as-applied due process challenge, this portion of his
claim fails.
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Turning to the next part of Plaintiff’s procedural due process claim, Plaintiff
challenges as facially unconstitutional the City’s trespass ordinance as overbroad and
unduly vague and the City’s camping ordinance as overbroad. See Response [#58] at
15 (regarding trespass), 17 (regarding camping, and explicitly disclaiming any vagueness
challenge).
“Facial challenges are strong medicine.” Dias, 567 F.3d at 1179 (quoting Ward v.
Utah, 398 F.3d 1239, 1246 (10th Cir. 2005)). “‘Although passing on the validity of a law
wholesale may be efficient in the abstract, any gain is often offset by losing the lessons
taught by the particular, to which common law method normally looks.’” Dias, 567 F.3d
at 1179 (quoting Sabri v. United States, 541 U.S. 600, 608-09 (2004)). The Tenth Circuit
has therefore “held that facial challenges are appropriate in two circumstances: (1) when
a statute threatens to chill constitutionally protected conduct (particularly conduct
protected by the First Amendment); or (2) when a plaintiff seeks pre-enforcement review
of a statute because it is incapable of valid application.” Dias, 567 F.3d at 1179-80 (citing
United States v. Gaudreau, 860 F.2d 357, 360-61 (10th Cir.1988); Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 & n.5 (1982)).
Here, neither of these circumstances is applicable. First, neither the trespass
ordinance nor the camping ordinance threatens to chill any constitutionally protected
conduct. See, e.g., Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994)
(holding that trespassing on public lands is not a constitutionally protected right); Joel,
232 F.3d at 1357 (holding that sleeping on public property is not a constitutionally
protected right). Second, “a facial challenge to the constitutionality of a statute may in
some instances be appropriate on pre-enforcement review.” United States v. Gaudreau,
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860 F.2d 357, 360 (10th Cir. 1988). “In a declaratory judgment action no one has been
charged so the court cannot evaluate the statute as applied.” Id. at 360-61. “In these
cases, the challenger may attempt to facially attack the statute . . . .” Id. at 361. Here,
the City’s trespass and camping ordinances have both been in effect since 1972. See
Fort Collins Municipal Code 1972 §§ 60-22, 84-1(E). Plaintiff alleges that he has been
cited with violating the trespass ordinance once and the camping ordinance seven times
since about 2014. See, e.g., Second Am. Compl. [#50] ¶¶ 14, 303. Thus, pre-
enforcement review is inappropriate where the two ordinances are approximately forty
years old and where both have been previously enforced. Thus, Plaintiff’s facial
challenges to the two ordinances is improper and fails to state a claim.
Finally, the Court turns to the substantive due process claim. See, e.g., Second
Am. Compl. [#50] at 5 (stating that “Plaintiff has been denied substantive due process . .
.”). While the precise basis for this claim is not entirely clear, he may be asserting this
claim based on his statements indicating that the due process clause has been violated
because enforcement of the ordinances target homeless persons. As previously noted,
“[h]omeless persons are not a suspect class, nor is sleeping out-of-doors a fundamental
right.” Joel, 232 F.3d at 1357. Also as previously noted, if an ordinance does not infringe
upon a fundamental right or target a protected class, claims are evaluated under rational
basis review. See Dias, 567 F.3d at 1182 (“Even if the Ordinance does not implicate a
fundamental right, it must nonetheless bear a rational relationship to a legitimate
government interest.”); see also id. (noting that “the ‘shocks the conscience’ standard is
not applicable to cases in which plaintiffs advance a substantive due process challenge
to a legislative enactment. Instead, it is an inquiry reserved for cases challenging
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executive action” (emphases in original)). This means that an ordinance “need only be
rationally related to a legitimate government purpose.” Powers v. Harris, 379 F.3d 1208,
1215 (10th Cir. 2004). In evaluating such claims, courts consider whether a reasonably
conceivable rational basis exists and “are not allowed to second guess the wisdom of
legislative policy-determinations.” Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1210
(10th Cir. 2009). Legislative enactments are entitled to a “strong presumption of validity”
under a rational basis review such that a court’s review must be a “paradigm of judicial
restraint.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 314-15 (1993).
To survive a motion to dismiss, a plaintiff must “plausibly allege[ ] that the
[o]rdinance is not rationally related to a government interest.” Dias, 567 F.3d at 1183.
For example, in Dias, the plaintiffs did not contest that the City of Denver had “a legitimate
interest in animal control—the protection of health and safety of the public.” Id. The Tenth
Circuit Court of Appeals ultimately held that the plaintiffs had adequately “alleged that the
means by which Denver has chosen to pursue that interest are irrational” by alleging that
there was “a lack of evidence that pit bulls as a breed pose a threat to public safety or
constitute a public nuisance . . . .” Id. In short, they did so by providing specific allegations
that, “although pit bull bans sustained twenty years ago may have been justified by the
then-existing body of knowledge, the [current] state of science . . . is such that the bans
are no longer rational.” Id.
Here, Plaintiff has not provided such allegations. Regarding the trespass
ordinance, individuals are prohibited from remaining unlawfully on public or private
property. Plaintiff has not adequately alleged that no rational basis underlies the City’s
interest in this law. By way of example only, he has not sufficiently alleged that the
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trespass ordinance is not rationally related to such state interests as the protection of
property rights, promotion of public safety, and the prevention of crime. See, e.g., May v.
People, 636 P.2d 672, 679 (Colo. 1981) (“Both legitimate state interests, in privacy and
in safety, can be furthered by an ordinance punishing trespass after warning.”). Thus, the
Court finds that Plaintiff has failed to plausibly allege that the trespass ordinance is not
rationally related to a government interest, and therefore this aspect of his claim fails
under the substantive portion of the due process clause.
Regarding the camping ordinance, individuals are prohibited from sleeping and
conducting activities of daily living on public property except in natural or recreation areas.
Again, Plaintiff has not adequately alleged that no rational basis underlies the City’s
interest in this law. By way of example only, he has not sufficiently alleged that the
camping ordinance is not rationally related to such state interests as the promotion of
aesthetics, sanitation, public health, and safety. See, e.g., Joel, 232 F.3d at 1358 (citing
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 296-98 (1984)). Thus, the Court
finds that Plaintiff has failed to plausibly allege that the camping ordinance is not rationally
related to a government interest, and therefore this aspect of his claim fails under the
substantive portion of the due process clause.
Accordingly, the Court recommends that the City’s Motion [#51] be granted
insofar as that Plaintiff’s as-applied challenge to the trespass ordinance under Claim Two
and as-applied challenge to the camping ordinance concerning the 2014 citation under
Claim Four be dismissed with prejudice, see Brereton, 434 F.3d at 1219; that Plaintiff’s
as-applied challenge to the remainder of the camping ordinance claim be dismissed
without prejudice, see id.; that Plaintiff’s facial challenge to both ordinances be
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dismissed with prejudice, see id.; and that Plaintiff’s substantive due process claim as
to both ordinances be dismissed with prejudice, see id.
e. Fourth Amendment
Plaintiff conclusorily states once that the City’s camping ordinance violates his
constitutional rights under the Fourth Amendment as part of a laundry list of amendments
where he also mentions the Fifth, Eight, and Fourteenth Amendments. Second Am.
Compl. [#50] ¶ 306. However, he provides no allegations that he was searched or that
his property was seized which are sufficient to state a Fourth Amendment claim.
Accordingly, the Court recommends that Plaintiff’s Fourth Amendment claim be
dismissed with prejudice. See Brereton, 434 F.3d at 1219.
f. Sections 1985 and 1986
Finally, the City argues that Plaintiff fails to state claim under 42 U.S.C. §§ 1985
and 1986. Motion [#51] at 19-20. Plaintiff responds that, “[c]ontemporaneous with
Plaintiff being issued a trespass citation, the City amended the City charter and ‘trespass’
ordinance, and hired private attorneys to act as judge and prosecutor in Plaintiff’s
trespass case, thus proving a § 1985 conspiracy.” Response [#58] at 14. This responsive
argument would thus appear to go toward aspects of his claims which have been
withdrawn, but the Court addresses it nevertheless to the extent it could be construed
more broadly, and in light of certain other statements in his Second Amended Complaint
[#50].
Section 1985(3) provides: “If two or more persons . . . conspire . . . for the purpose
of depriving . . . any person . . . of the equal protection of the laws, or of equal privileges
and immunities under the laws; . . . [or] cause to be done, any act in furtherance of the
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object of such conspiracy . . . the party so injured or deprived may have an action for the
recovery of damages . . . .” “The essential elements of a § 1985(3) claim are: (1) a
conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and immunities;
(3) an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting
therefrom.” Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (citing Griffin v.
Breckenridge, 403 U.S. 88, 102-03 (1971)).
“[H]owever, § 1985(3) does not ‘apply to all tortious, conspiratorial interferences
with the rights of others,’ but rather, only to conspiracies motivated by ‘some racial, or
perhaps otherwise class-based, invidiously discriminatory animus.’” Tilton, 6 F.3d at 686
(quoting Griffin, 403 U.S. at 101-02). “The other ‘class-based animus’ language of this
requirement has been narrowly construed and does not, for example, reach conspiracies
motivated by an economic or commercial bias.” Tilton, 6 F.3d at 686 (citing United Bhd.
of Carpenters & Joiners of Am., Local 610, AFL–CIO v. Scott, 463 U.S. 825, 837 (1983)).
“In fact, the Supreme Court has held that ‘it is a close question whether § 1985(3) was
intended to reach any class-based animus other than animus against Negroes and those
who championed their cause.’” Tilton, 6 F.3d at 686 (quoting Scott, 463 U.S. at 836). In
addition, “§ 1985(3) covers only conspiracies ‘aimed at interfering with rights that are
protected against private, as well as official, encroachment.’” Tilton, 6 F.3d at 686
(quoting Scott, 463 U.S. at 833). “‘There are few such rights (we have hitherto recognized
only the Thirteenth Amendment right to be free from involuntary servitude, United States
v. Kozminski, 487 U.S. 931 (1988), and, in the same Thirteenth Amendment context, the
right of interstate travel, see United States v. Guest, 383 U.S. 745, 759 n.17 (1966)) . . .
.’” Tilton, 6 F.3d at 686 (quoting Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263,
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278 (1993)). “In short, to state a claim under 42 U.S.C. § 1985(3) for a non-racially
motivated private conspiracy, if indeed such a claim can be stated, it is necessary to
plead, inter alia: 1. that the conspiracy is motivated by a class-based invidiously
discriminatory animus; and 2. that the conspiracy is aimed at interfering with rights that
by definition are protected against private, as well as official, encroachment.” Tilton, 6
F.3d at 686.
Here, Plaintiff asserts that the City violated § 1985 in two ways: (1) City employees
conspired to violate Plaintiff’s rights during his criminal trial, see Am. Compl. [#50] ¶¶12,
282, (which, as stated, appears to have been withdrawn as a claim), and (2) City officers
conspired to enforce an overly broad and vague camping ordinance, see id. ¶ 20.
Regardless, Plaintiff does not adequately allege how City employees somehow conspired
against him or that any such conspiracy was motivated by a class-based invidiously
discriminatory animus and aimed at interfering with rights protected against both private
and official enforcement. As such, his § 1985(3) claim fails.
Section 1986 provides for liability for damages if a person has “knowledge that any
of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about
to be committed, and having power to prevent or aid in preventing the commission of the
same, neglects or refuses so to do . . . .” This means that a § 1986 claim is “dependent
upon the existence of a valid claim under § 1985.” Brown v. Reardon, 770 F.2d 896, 907
(10th Cir. 1985) (citations omitted). Thus, because Plaintiff has failed to adequately allege
a claim under § 1985, his § 1986 claim also fails. See, e.g., Peckham v. Schmidt, No.
22-3127, SAC, 2022 WL 4300227, at *2 (D. Kan. Sept. 19, 2022).
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Accordingly, the Court recommends that the City’s Motion [#51] be granted to the
extent that Plaintiff’s §§ 1985 and 1986 claims be dismissed with prejudice. See
Brereton, 434 F.3d at 1219.
C. Supplemental Jurisdiction
Plaintiff may also be asserting certain Colorado state law claims and issues, such
as, for example, violation of Article II, section 15 of the Colorado Constitution and
declaratory judgment regarding whether Colo. Rev. Stat. § 18-9-109(1) prohibits
exclusion from CSU campus, whether the City trespass ordinance applies to state
property like CSU, and whether Colo. Rev. Stat. § 18-4-201(1) exempts public property
from trespass laws. See, e.g., Second Am. Compl. [#50] at 15; Response [#58] at 2, 15.
28 U.S.C. § 1367(a) states:
Except as provided in subsections (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the district courts
have original jurisdiction, the district courts shall have supplemental
jurisdiction over all claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution.
State and federal claims form part of the same case or controversy if they “derive from a
common nucleus of operative fact.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
725 (1966). However, pursuant to 28 U.S.C. § 1367(c), “[t]he district courts may decline
to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district
court has dismissed all claims over which it has original jurisdiction.”
Plaintiff brings this action in federal court pursuant to 28 U.S.C. § 1331. Second
Am. Compl. [#50] ¶ 1. He does not allege that the Court has diversity jurisdiction over
the case under § 1332. See id. ¶¶ 1-7. Thus, in addition to the original jurisdiction the
Court has over Plaintiff’s constitutional claims, the Court has supplemental jurisdiction
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over Plaintiff’s state law claims under 28 U.S.C. § 1367. See United Mine Workers of
Am., 383 U.S at 725.
However, “[i]f federal claims are dismissed before trial, leaving only issues of state
law, ‘the federal court should decline the exercise of jurisdiction by dismissing the case
without prejudice.’” Bauchman for Bauchman v. W. High Sch., 132 F.3d 542, 549 (10th
Cir. 1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). The Court
found above that Plaintiff has failed to state any federal claims, and therefore that these
claims should be dismissed. Therefore, the Court further finds that the exercise of
supplemental jurisdiction over Plaintiff’s state law claims should be declined.
Accordingly, the Court recommends that the Motions [#51, #53] be granted to the
extent that any remaining state law claims be dismissed without prejudice. See
Bauchman, 132 F.3d at 549.
IV. Conclusion
For the reasons stated above,
IT IS HEREBY RECOMMENDED that the City’s Motion [#51] be GRANTED and
that all claims asserted against the City be DISMISSED as outlined above.
IT IS FURTHER RECOMMENDED that the State Defendants’ Motion [#53] be
GRANTED and that all claims asserted against the Board and Mr. Vasconcellos be
DISMISSED as outlined above.
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall
have fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party’s failure to serve and file specific, written objections waives de novo
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review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v.
Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and
legal questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999);
Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party’s objections to this
Recommendation must be both timely and specific to preserve an issue for de novo
review by the District Court or for appellate review. United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
Dated: February 13, 2023
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