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HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry V. State Of Colorado, Et Al - 077 - Plaintiff's Objections To Magistrate RecommendationV. and, and, l ... ~i !; .. ..,_, l ? L !..... ~j lJ.S. r.::~T;~:ICT C()tJ:RT DISTRICT OF COLORADO 2GB FEB 27 PM 2= 37 IN THE UNITED STATES DISTRICT CQU,BJ ... ,,,, ,.,.111 :,-, 1 FOR THE DISTRICT OF COLORADO": ,'i! ,\ ;,:/;/1 ··:iu.:. L, ,_ ..... r •, r \ Civil Action No. 1 :21-cv-02306-RM-IS~M _______ [Jf P. CLK Robert-Lawrence: Perry, Plaintiff 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; 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 ~orak, Ray Martinez, Kristin Stephens, Ken Summers, Wade Troxell, including 'doe' agents, administrators, executives, officers and / or each 'doe' appointee administrator, agent, police officer, official, and 'City' employees, namely, Brandi Lynn Neito, Dan Callahan, Jill Hueser, and Ryan Westlind; 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. PETITIONER'S OBJECTION TO RECOMMENDATION PETITIONER'S OBJECTION TO RECOMMENDATION 1 Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 1 of 21 SUMMARY ARGUMENT Petitioner specifically objects to the magistrate's recommendation of dismissal on the following grounds that she committed clear errors of law and avoidance of the facts: (1) The magistrate,inappropriately refuses to acknowledge individual defendants as necessary parties to the case contrary to FedR.Civ.P. Rule 19 (a)(1)(A). Therefore, all individual defendants were dismissed in clear error of the law. (2) The magistrate committed clear error by her misinterpreting Petitioner's Petition for Relief and Motion for Declaratory Judgment as a complaint subject to dismissal. (3) The magistrate committed prejudicial error by waiting to rule upon Petitioner's Motion for Assignment of Counsel until issuing the recommendation, thus prejudicing Petitioner's opportunity to further amend the Petition for Relief with legal assistance. (4) The magistrate committed clear error of law by asserting authority to review the Defendants' motions to dismiss in violation of 28 U.S.C. § 636(b)(1)(A). (5) The magistrate committed clear error by her misinterpreting Petitioner's response to the State's 'Motion to Dismiss' as his voluntary dismissal of claims against individual state defendants in their official and personal capacities and an admission by Petitioner that state defendant were entitled to sovereign immunity and were excused. (6) The magistrate committed prejudicial error by her granting sovereign immunity to state defendants including individual defendants in their official and personal capacities, and specifically by dismissing the 'State of Colorado' and Colorado State University as defendants 12 days before issuing her full recommendation. 2 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 2 of 21 (7) The magistrate committed clear of law and prejudicial error by determining that and that no continuing injury exception existed to the statute of limitations, thus barred Petitioner relief, and Petitioner did not adequately state claims for relief; to wit: Petitioner seeks declaratory and injunctive relief by Court decision whether: a. Colorado State University 'exclusionary order' policy is unconstitutional; and, b. Whether CSU permanent 'exclusionary orders' are unconstitutional; and, c. Whether C.R.S. § 18-9-109 (1) prohibits exclusion from CSU campus; and, d. Whether the City trespass ordinance applies to state property like CSU; and e. Whether F.C.M.C. Sec. 17-1 (3) and (4) are unconstitutional as applied; and, f. Whether Fort Collins 'camping' ordinances are facially unconstitutional; and, g. Whether C.R.S. § 18-4-201(1) exempts public property from trespass laws. (8) The magistrate committed clear of law and prejudicial error by determining that Petitioner failed to adequately state claims for relief under Title 42 U.S. Code§§ 1981, 1983, 1985, and 1986 for violations of his Fifth, Eighth, and 14th Amendment rights. (9) The magistrate committed clear of law and prejudicial error by determining that Petitioner lacks any private interest right to conduct activities of daily living and private interest right of, access to public places. (10) The magistrate committed clear of law and prejudicial error by dismissing claims for declaratory judgment by refusing to acknowledge original subject matter jurisdiction and incorrectly applied supplemental jurisdiction by determination that Petitioner failed to state claims for relief against the City of Fort Collins. 3 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 3 of 21 SUMMARY STATEMENT CSU 'exclusionary orders' are unconstitutional as 'bill of pains and penalties' by immediately banning Plaintiff, and unconstitutional as cruel and unusual punishment by permanently banning Plaintiff, and unconstitutional by denying Him equal protection of the law, and depriving Plaintiff of due process. CSU 'exclusionary orders' are unlawful because they violate C.R.S. § 18~9-109 (1), which prohibits denying access and use of CSU; and contrary to C.R.S. § 18-4-201, which recognizes that the public has license and privilege to access and use public property. Therefore, the 'trespass' prosecution, convictions, and imprisonment of Plaintiff were unconstitutional and unlawful; as such, Plaintiff is Entitled to Declaratory and Injunctive relief, and Just Compensation. Defendants, by and through agents, employed _officers, and elected officials are engaged in a campaign against 'homeless' people. CSU 'exclusionary orders' and the verbal 'trespassed' orders issued by police and enforced with citations of 'trespass' or 'camping' are an obvious attempt to re-enact the 'vagrancy' ordinances and statutes, which were determined to be unconstitutional over fifty (50) years ago. The City of Fort Collins ordinances against 'camping' and 'trespass' are unlawful and unconstitutional by violating the Eighth Amendment prohibition against cruel and unusual punishment, and by violating the Fifth and Fourteenth Amendment prohibition ' against depriving Plaintiff the right of due process and equal protection of the law by denying Plaintiff of His rights and private property interests and His rights and interests in equal access and use of public places and places open to the public. 4 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 4 of 21 The City ordinances prohibiting 'camping' in the City are unconstitutional. Plaintiff asserts claims that the City ordinances prohibiting 'camping' on public or private property are both unconstitutionally vague and over-broad on their face, and as applied in this case, since they generally prohibit living in Fort Collins. Also, Plaintiff asserts that the City ordinances prohibiting 'camping' arE: discriminatory because they are only enforced upon 'homeless' people, like Plaintiff, as part of a City policy to rid Fort Collins of 'homeless' people. Plaintiff asserts that the City ordinances prohibiting 'camping' are unconstitutional because they impose cruel and unusual punishment of excessive fines or (6) six months in jail for conducting activities of daily living. Plaintiff was charged (7) seven times with 'camping'; most recently, Plaintiff was cited with 'camping'; Municipal Court Case: FC-20-4935-MD, which was dismissed on September 17, 2020; therefore, the statute of limitation has not expired. The City of Fort Collins ordinance prohibiting "camping" is over-broad and vague due the lack of guidance in the enforcement that grants police unlimited discretion to use it to discriminate against 'homeless' people, such as Plaintiff. The Fort Collins city ordinances against 'camping' on public or private property effectively renders everyone subject to criminal penalties for living in Fort Collins. Yet, the City ordinance against 'camping' is applied exclusively against indigent, 'homeless' people, such as Plaintiff. Since Plaintiff intends to continue to live in Fort Collins, he is subjected to continual threat of being jailed for exercising his equal and fundamental right to live and be in public places. Plaintiff has 'standing' to assert his 14th Amendment rights. 5 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 5 of 21 The CSU exclusionary order policy is vague and over-broad, as interpreted and enforced, in violation of the Due Process Clause of the Fourteenth Amendment. The challenged CSU 'exclusionary order' policy, as interpreted, and enforced by CSU campus police is over-broad and vague and fails to provide adequate notice to enable people of ordinary intelligence to understand what conduct is prohibited. The CSU exclusionary order policy as interpreted, and enforced by CSU campus police, fails to establish adequate guidelines to govern CSU police officers, thereby it authorizes and encourages CSU campus police to act in arbitrary and discriminatory practices in enforcement against Plaintiff, and others similarly situated. CSU 'exclusionary orders' are unlawful since they violate 42 U.S.C. § 1983 et. seq. by denying equal protection of the law in violation of the 14th Amendment. CSU 'exclusionary orders' are enforced with criminal citations for trespass. Defendants have enforced and intend to continue to enforce CSU 'exclusionary orders' in the unconstitutional and unlawful manner as described by Plaintiff. Defendants have acted, and are threatening to act, under color of state law to deprive Plaintiff of lawful equal access and use of CSU premises and facilities open to the public, thereby depriving Him of equal protection of the law. Plaintiff has suffered, and continues to suffer, actual and permanent irreparable injury due to enforcement of the CSU 'exclusionary order' issued against Him, as was reported in CCIC as a 'permanent civil restraining order'. Plaintiff has no other plain, adequate or speedy remedy at law, so Plaintiff is entitled to Injunctive relief. 6 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 6 of 21 STATEMENT OF THE CASE Plaintiffs claims are grounded upon his Fourteenth Amendment rights; that: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Plaintiff asserts that CSU 'exclusionary orders' are unlawful because they allow CSU police to commit a crime; denying lawful access and use of CSU premises in violation of C.R.S. § 18-9-109 (1). CSU 'exclusionary orders' are unconstitutional as supported by precedent, in Watson v. Board of Regents of University of Colorado 512 P.2d 1162, in the Colorado _Supreme Court, and Dunkel v. Elkins, 325 F. Supp. 1235, by the United States District Court. Permanent CSU 'exclusionary orders' are also unconstitutional as 'bills of pains and penalties', and cruel and unusual punishment. C.R.S. § 18-9-109 (1) states: (1) "No person shall, on or near the premises or facilities of any educational institution, willfully deny to students, school officials, employees, and invitees: (a) Lawful freedom of movement on the premises; (b) Lawful use of the property or facilities of the institution; (c) The right of lawful ingress and egress to the institution's physical facilities." C.R.S. § 18-4-201 defines what misconduct would constitute "enters unlawfully" or "remains unlawfully", and states: "A person who, regardless of his or her intent, enters or remains in or upon premises that are at the time· open to the public does so with license and privilege unless the person defies a lawful order not to enter or remain, personally communicated to him or her by the owner of the premises or some other authorized person." 7 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 7 of 21 CONSTITUTIONAL REVIEW STANDARD The United States Constitution Amendment XIV, Section 1 states: "No state shall make or enforce any law which s~all abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Mathews balancing test requires balancing the Riglit, Liberty or Interest in property, and the probability of erroneous deprivation of that interest, compared with a legitimate public interest that government seeks to serve by such action or policy that deprives the Liberty, Rights or property Interests of such individuals by such action or policy. See Mathews v. Eldridge, 424 US 319, 332, 96 S Ct 893, 47 L Ed 2d 18 (1976). Plaintiff submits these issues, including whether CSU 'exclusionary order' policy, Fort Collins 'camping' and 'trespass' ordinances, as written and applied, are lawful: Whether CSU 'exclusionary orders', City 'camping'. and 'trespass' ordinances, as written and/or applied, denies, substantially or unreasonably interferes with Plaintiff in the practical exercise of his rights guaranteed by the U.S. Constitution. Whether the challenged exclusionary order and ordinances as -written or applied are not reasonably related to achieving a legitimate public interest, or disproportionately severe in relation to the affect of denying or impairing Plaintiffs constitutional rights. Whether the challenged exclusionary order and City ordinances as written or applied denies, impairs or fundamentally infringes upon Plaintiffs constitutional rights or His Inalienable Personal Interests in 'conducting activities of daily living', and whether such infringement of His Constitutional and Inalienable Rights constitutes a 'Taking'. 8 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 8 of 21 ARGUMENT Plaintiff's claims are grounded upon his Fourteenth Amendment rights; that: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor sh·a11 any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Plaintiff has stated facts to support claims asserted under Title 42 U.S. Code §§ 1981, 1983, 1985, and 1986 to prove that individual Defendant's, acting under color of law, did knowingly and willfully, deprive Plaintiff of his lawful individual right of access and use of CSU campus by issuing unconstitutional 'exclusionary orders' in violation of C.R.S. § 18-9-109(1). Defendant's have not denied that CSU is public property. C.R.S. § 18-4-201 defines what misconduct would constitute "enters unlawfully" or "remains unlawfully", and states: "A person who, regardless of his or her intent, enters or remains in or upon premises that are at the time open to the public does so with license and privilege unless the person defies a lawful order not to enter or remain, personally communicated to him or her by the owner of the premises or some other authorized person." Because C.R.S. § 18-'4-201 states that the public have license and privilege to enter and remain on property open to the public. Also, the municipal court issued a judgment and sentencing order that stated Plaintiff was prohibited from going to CSU for one year from December 1, 2020. Thus, Plaintiff asserts that the statute of limitations extended to December 1, 2022; so, the Court does have subject matter jurisdiction to grant relief under Title 42 U.S Code§§ 1981, 1983, 1985, and 1986. 9 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 9 of 21 ARGUMENT Defendant individuals are not entitled to sovereign immunity. The United States Supreme Court decision in Ex parte Young, 209 U.S. 123 (1908), does provide an additional exception to immunity in certain suits for prospective declaratory judgment or injunctive relief against state officials. Under Ex parte Young and its progeny, the Eleventh Amendment will not bar a suit against a state official providing that the plaintiff seeks (1) only declaratory or injunctive relief that is properly characterized (in substance) as forward looking relief rather than money damages; (2) for an ongoing violation of federal law; (3) aimed at state officers acting in their official capacities, not the state itself. Hill v. Kemp, 478 F.3d 1236, 1255-56, 1259 (10th Cir. 2007). C.R.S § 23-30-102 (1) identifies the CSU Board of Governors authority; stating: "The board of governors of the Colorado state university system is a body corporate, capable in law of suing and being sued; ... having duties and powers to control, manage, and direct the fiscal and all other affairs of the Colorado state university system and the entities it governs; and of causing to be done all things necessary to carry out the provisions of this article." Title 42 U.S. Code§ 1981 (a) Statement of equal rights: "All persons within the jurisdiction ofthe United State~ shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." Further, (c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. 10 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 10 of 21 ARGUMENT 28 U.S.C. § 636 (b)(1) prohibits a magistrate from determining a Fed.R.Civ.P. 12(b)(6) motion to dismiss. Therefore. the magistrate acted without legal authority to review the motions to dismiss and issue a recommendation. Petitioner objects to the conduct of the magistrate in reviewing the Motions to Dismiss and issuing a recommendation to dismiss all claims for relief. Such action is contrary to COURT ORDERS that were not vacated. In the recommendation, the magistrate states pursuant 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 undersig·ned for a recommendation regarding disposition. See [#52, #54]. Assignment of the magistrate in this case is in clear error of law and contrary to court orders. The August 27, 2021 Docket entry 6 states: MINUTE ORDER Re:[Dkt 5]. Consent/Non-Consent Form to Jurisdiction of Magistrate Judge filed by Robert-Lawrence Perry. IT IS HEREBY ORDERED that this case shall be assigned to a District Judge under D.C.COLO.LCivR 40.1 (c)(B) and D.C.COLO.LCivR 40.1(a), by Magistrate Judge Kristen L. Mix on 08/27/2021. (alave,) (Entered: 08/27/2021) [Dkt. 6] ORDE.R REFERRING CASE to Magistrate Judge ~risten L. Mix. Pursuant to 28 U.S.C. § 636(b)(1 )(A) and (B) and Fed. R. Civ. P. 72(a) and (b), this case is referred to the assigned United States Magistrate Judge to (3) hear and determine pretrial matters, including discovery and other non-dispositive motions. [Dkt. 9] 11 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 11 of 21 ARGUMENT State Defendant's cannot 'exclude' banish anyone from public property. CSU Defendant's assert that the 'trespass' ordinance may be applied to public property to permanently ban anyone; similarly, State Defendant's assert that the state trespass statute may be applied to public property to permanently ban ·anyone; these assertions presume that banishment is lawful, which is proven false by tti'ese cases: People v. Blakeman, 170· Cal. App. 2d 596, 339 P.2d 202 (Dist Ct. App. 1959); the California Court of Appeals overturned the county court order probation revocation based upon violation of a district court order of banishment as a condition of probation. The district court_ order of probation on condition of banishment was determined to be void citing: In re Scarborough, 76 Cal.App.2d 648 [ 173 P.2d 825), an order suspending sentence on a condition of banishment for two years was deemed the granting of probation upon a void condition. Said the court: "The same principle which prohibits the banishment of a criminal from a state or from the United States applies with equal force to a county or city. The old Roman custom of ostracizing a citizen has not been adopted in the United States. The so-called 'floating sentence,' ['suspended sentence or 'deferred judgment'] too frequently resorted to in some inferior courts, falls in the same category. There is no statute in California authorizing such judgments." (P. 650. See also the authorities cited on p. 649 of 76 Cal.App.2d, and 15 Am.Jur. 112, Crim. Law,§ 453.) Ex parte Scarborough, 76 ·cal. App. 2d 648, 173 P.2d 825 (Dist. Ct. App. 1946); The probation condition contained in the judgment that it would be suspended in part if the defendant left Stockton and San Joaquin County and remained away for two years, is, in effect, an unlawful increase of.punishment by banishment not provided'by statute, and therefore void. (People v. Baum, 251 Mich. 187 [ 231 N.W. 95, 70 A.LR: 98); Ex parte Sheehan, 100 Mont. 244 [ 49 P.2d 438, 442); People v. Lopez, 81 Cal. App. 199, 203 [ 253 P. 169); 24 C.J.S. § 1991, p. 1216.) In holding that a condition of a judgment requiring banishment from the state is illegal and void, the court said in the Baum case, supra, that: "To permit one state to dump its convict criminals into another would entitle the state believing itself injured thereby to exercise its police and military power, in the interest of its own peace, safety, and welfare, to repel such an invasion. It would tend to incite dissension, provoke retaliation, and disturb that fundamental equality of political rights among the several states which is the basis of the Union itself. Such a method of punishment is not authorized by statute, and is impliedly prohibited by public policy." Banishment is not acknowledged as lawful punishment in any state. 12 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 12 of 21 The City enforced CSU 'exclusionary orders' applying the trespass ordinance to public property under presumption that CSU has the authority to deny access to anyone for any reason, such as: 'feeding squirrels'. The United States District Court issued the following opinion over 50 years ago in Dunkel v. Elkins, 325 F. Supp. 1235 (1971). "Defendants urge that plaintiff's use of public land and property is a "privilege withdrawable by the State at any time for any reason." We do not agree. While the State undoubtedly possesses power to control the use made of its premises, it cannot do so without regard to the Constitution." Also, this point of law was specifically.addressed in Watson v. Board of Regents of University of Colorado 512 P.2d 1162, when the Colorado Supreme Court issued the opinion that: "The Colorado Supreme Court has labeled the access and use of public facilities, such as parks, as a "fundamental" right. The University of Colorado opened its doors to the public. Accordingly, on this basis, we hold that a non-student's right to access to University functions and facilities, which are open to the public at-large, cannot be permanently denied without due process of law under the Fourteenth Amendment. .. " Adding: "Plaintiff urges that the University's exclusion order was void because it issued without procedural due process, i.e., a hearing was not afforded plaintiff prior to his exclusion from University property. We agree." This was the opinion in People in Interest of J.M., 768 P.2d 219, 221 (Colo. 1989). This case was cited in a 2017 Colorado District Court case: The City and County of Denver Parks and Recreation Department implemented a temporary policy, to ban someone for up to (90) days for using drugs in Denver parks. Denver Police used this city parks directive to issue an exclusionary order banning the defendant for smoking marijuana in Denver's City park. The court ruled in favor of the defendant's individual interests in access and use of public property. 13 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 13 of 21 The United States Supreme Court has stated the void-for-vagueness doctrine requires that the penal statute (ordinance) define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 s.c;;t. 1855, 1858, 75 L.Ed.2d 903 (1983). Plaintiff relies upon Robinson, and Pottinger v. City of Miami, 810 F.Supp. 1551 (S.D.Fla.1992), where the district court held that the City practice of arresting homeless individuals for such basic activities as sleeping and eating in public places constitutes cruel and unusual punishment in violation of the Eighth Amendment. See also Johnson ,. v. City of Dallas, 860 F.Supp. 344, 350 (N.D.Tex.1994) (holding that "sleeping in public ordinance as applied against the homeless is unconstitutional"). The 8th Amendment states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusua~ punishments inflicted." U.S. Const. Amend. VIII. In addition to "limit[ing] the kinds of punishment that ·can be imposed on those convicted of crimes," and "proscrib[ing] punishment grossly disproportionate to the severity of the crime," the Eighth Amendment also "imposes substantive limits on what can be made criminal and punished as such." Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711 (1977) (internal citations omitted). A distinction exists between applying criminal laws to punish conduct, which is constitutionally permissible, and use of the law by applying them to punish status, which is not. See Robinson v. California, 370 U.S. 660,666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962) 14 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 14 of 21 ARGUMENT The magistrate committed numerous clear errors of,/aw and preiudicial findings of fact that Petitioner specifically obiects on the following grounds: (1) The magistrate inappropriately refuses to acknowledge individual defendants as necessary parties to the case contrary to FedR.Civ.P. Rule 19 (a)(1)(A). Therefore, all individual defendants were dismissed in clear error of the law. (2) The magistrate committed prejudicial error by waiting. to rule upon Petitioner's Motion for Assignment of Counsel until issuing the recommendation, thus prejudicing Petitioner's opportunity to further amend the Petition for Relief with legal assistance. (3) The magistrate committed clear error by her misinterpreting Petitioner's response to the State's 'Motion to Dismiss' as his voluntary dismissal of claims against individual state defendants in their official and personal capacities and an admission by Petitioner that state defendant were entitled to sovereign immunity and were excused. (4) The magistrate failed to apply the appropriate standard of review for Petitioner as pro se and read the pleading liberally; instead, the magistrate applied a strict standard of review and narrow interpretation of the constitutional merit of Petitioner's claims. (5) The magistrate committed prejudicial error by her granting sovereign immunity to state defendants including individual defendants in their official and personal capacities, and specifically by dismissing the 'State of Colorado' and Colorado State University as defendants 12 days before issuing her full recommendation. The machinations of the magistrate prejudiced the rights of Petitioner to contest her legal maneuvers. 15 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 15 of 21 Petitioner filed a Petition tor-Relief. which was a motion for declaratory iudgment that was to be granted or denied, not a complaint subiect to dismissal. (6) Petitioner specifically objects to the treatment of his Petition for Relief and motion for declaratory judgment being treated as ·a complaint subject to dismissal. Petitioner was not seeking compensatory damages, so there were no factual issues in dispute, it was a question of law only, so the case would involve no trial management procedures and the involvement and participation of the magistrate was not proper. [0kt. 1] (7) The magistrate committed clear error of law and prejudicial error by determining that and that no continuing injury exception existed to the statute of limitations, thus barred Petitioner relief, and Petitioner did not adequately state claims for relief. (8) The magistrate committed clear of law and prejudicial error by determining that Petitioner failed to adequately state claims for relief under Title 42 U.S. Code§§ 1981, 1983, 1985, and 1986 for violations of his Fifth, Eighth, and 14th Amendment rights. (9) The magistrate committed clear of law and prejudicial error by determining that Petitioner lacks any private interest right to. conduct activities of daily living and private interest right of access to public places. (10) The magistrate committed clear of law and prejudicial error by dismissing claims for declaratory judgment by refusing to acknowledge original subject matter jurisdiction and incorrectly applied supplemental jurisdiction by determination that Petitioner failed to state claims for relief against the City of Fort Collins and that no constitutional claims would apply to the Board of Governors improperly granting then absolute immunity. 16 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 16 of 21 (11) The magistrate committed clear error of law and prejudicial error by dismissing claims by erroneously finding that the Eleventh Amendment bars Plaintiffs Claim One (regarding the CSU exclusionary policy), and Claim Two (regarding Fifth, Eighth, and Fourteenth Amendment violations) asserted against the Board of Governors. (12) The magistrate committed clear of law and prejudicial error by dismissing claims with prejudice; erroneously finding that Petitioner lacks personal property interests in access to public places; thus concluding that no constitutional violation occurred. (14) The magistrate committed clear error of law and prejudicial error by dismissing claims with prejudice erroneously finding that Petitioner abandoned his 8th Amendment claim with respect to the trespass ordinance and that Petitioner failed to state factual grounds for his claim for declaratory judgment of the City of Fort Collins trespass and camping ordinances. (15) The magist_rate committed .clear error of law and prejudicial error by dismissing claims with prejudice by erroneously finding that Petitioner had failed to state factual grounds to support his claim of violation of his 14th Amendment right to due process regarding the City of Fort Collins·trespass and camping ordinances. (16) The magistrate committed clear error of law and prejudicial error by erroneously finding that Petitioner had failed to state factual grounds to .support his claim that the City of Fort Collins camping and trespass ordinances abridge his constitutional right to conduct activities of daily living and have access to public places, specifically his right of access to CSU campus and to the public transportation facilities. 17 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 17 of 21 (17) The magistrate committed clear error of law and prejudicial error by dismissing claims with prejudice by applying the incorrect standard and erroneously finding that Petitioner's claims for declaratory judgment of facial and as applied of the Fort Collins city ordinances against camping and trespass was time barred. (18) The magistrate committed clear error of law and prejudicial error by dismissing claims with prejudice by applying the incorrect standard and erroneously finding that Petitioner's claims for declaratory judgment of Colorado State University 'exclusionary' order policy was time barred. (19) The magistrate committed clear error of law and prejudicial error by erroneously finding that Petitioner had failed to state factual grounds to support his claim that the CSU police permanent exclusionary order and permanent restraining order prohibiting Petitioner from access to CSU campus and public transportation facilities violated his Fourteenth Amendment rights; that: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" Petitioner stated facts in support of his claim that the State trespass statute was enforced to deny him access to CSU campus and public transportation facilities. C.R.S. § 18'-4-201 defines what misconduct would constitute "enters unlawfully" or "remains unlawfully", and states: "A person who, regardless of his or her intent, enters or remains in or upon premises that are at the time open to the public does so with license and privilege unless the person defies a lawful order not to enter or remain, ... " Petitioner's claim for declaratory judgment simply asked this Court to determine that Petitioner is entitled to access to public property, specifically CSU campus. 18 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 18 of 21 Title 42 U.S.C.' § 1985(3) states, in pertinent part: "If two or more persons in any State or Territory conspire for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal prote·ction of the laws, or of equal privileges and immunities under the laws; Petitioner asserts that C.R.S. § 18-4-201 acknowledges his individual right and privilege of access to public places and his immunity from prosecution for trespass on public property and that such prosecution and threat of future prosecution deprives him of his right of equal privileges and immunities guaranteed by 42 U.S.C. § 1985(3). (20) The magistrate .committed clear error of law and prejudicial error by dismissing Petitioner's claims with prejudice by erroneously finding that Petitioner failed to provide factual support for his 42 U.S.C. § 1985(3) and § 1986 claims. (21) The magistrate committed clear error of law and prejudicial error by citing cases which did not support the magistrate's findings of fact and conclusions of law. Just by way of example: the magistrate cites Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) as support for the finding and conclusion that Petitioner failed to provide factual support for his 42 U.S.C. § 1985(3) and § 1986 claims. However, the court in Tilton, found that "§ 1985(3) covers only conspiracies 'aimed at interfering with rights that are protected against private, as well as official, encroachment.'" See Tilton, 6 F.3d at 686. Unlike the facts in this case where the defendants have acted officially and under color of law, the court in Tilton determined that his claims failed because the actions were attributable to private individuals not officials acting under color of law. 19 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 19 of 21 " SUMMARY CONCLUSION Plaintiff has stated facts to support claims asserted under Title 42 U.S. Code §§ 1981, 1983, 1985, and 1986 to prove that individual Defendant's, ,acting under color of law, did knowingly and willfully, deprive Plaintiff of his lawful individual right of access and use of CSU campus by issuing 'exclusionary orders' ruled unconstitutional over 50 years ago by the Colorado Supreme Court in Watson v. Board of Regents of University of Colorado 512 P.2d 1162, and by the United States District Court in Dunkel v. Elkins, 325 F. Supp. 1235 (1971). Such denial of equal access to university property is also considered a violation of C,.R.S. § 18-9-109(1). CSU police enforced the permanent 'exclusionary order' with 'trespass' citations under C.R.S. § 18-4-504, though C.R.S. § 18-4-201 states that the public has license and privilege to enter and remain on property open to the public. Further, CSU police cited Petitioner with 'trespass' under the City ordinance that grants police authority to permanently deny access to public property, which conflicts with C.R.S. § 18-4-201, so the City is not entitled to assert home-rule status. Petitioner continues to be subject to permanent'exclusion from CSU, therefore, he is entitled to prospective relief. Wfierefore, Petitioner respectfully requests the Court deny the magistrate's recommendation and conduct de novo review under 28 U.S.C. § 636(b)(1)(C). Dated: This 27th day of February 2023. Signed by: s/s: 'Robert-Lawrence: 'Perry, Man 20 PETITIONER'S OBJECTION TO RECOMMENDATION Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 20 of 21 CERTIFICATE OF SERVICE I, Robert-Lawrence: Perry, Plaintiff, hereby certify that I sent a complete, correct and true copy of the foregoing Objection to Reco~mendation addressed to each Attorney of Record for all Defendants by first-class U.S. Mail, postage pre-paid, and/or by emailing documents, such as agreed by consent to the following: Attorneys for Defendants, The City of Fort Collins, et al. Darin Atteberry, City Manager 300 La Porte Ave., (City Hall) Fort Collins, CO 80522 Phone: (970) 221-6520 hoffmank@hallevans.com ratnerm@hallevans.com The State of Colorado, et. al. for: Steven Vasconcellos 1300 Broadway, 10th Floor Denver, Colorado 80203 Phone: (720) 508-6000 Carman.VanPelt@coag.gov Dated this: February 27, 2023 Signed pursuant to C.R.S. 4-3-402 by, Robert-Lawrence: Perry, Trustee for: 4786 McMurry Ave., Unit 242 Fort Collins, Colorado 80525 fort_scout@yahoo.com Phone: (970) 980-1849 Colorado State University, et, al. Attn.: Jannine Mohr, Attorney 1300 Broadway, 10th Floor Denver, Colorado 80203 Phone: (720) 508-6000 Skip.Spear@coag.gov Allison.Ailer@coag.gov CSU Board of Governors, for: Colorado State University, et al. 555 seventeenth St., Suite 1000 Denver, Colorado 80201 Phone: (970) 491-6425 Denise. Munger@coag.gov ROBERT LAWRENCE PERRY, Person PETITIONER'S OBJECTION TO RECOMMENDATION 21 Case 1:21-cv-02306-RM-KLM Document 77 Filed 02/27/23 USDC Colorado Page 21 of 21