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Home My WebLink About2023-1112 - Perry V. State Of Colorado, Et Al. - 05 - City Answer BriefUNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ROBERT-LAWRENCE: PERRY, Plaintiff-Appellant, v. Each 'STATE OF COLORADO' Individual employee, executive officer, and/or administrative official acting personally, individually, and/or in combination namely, Alita King, Thomas Lynch, and Daniel McDonald, and each 'doe' administrator, agent, and/or executive, and Steven Vasconcellos, and 'doe' judicial administrators; AND, The 'CITY OF FORT COLLINS', et. al., including each Individual administrative official, agent, employee and or executive officer, acting personally, individually, and or together, including each individual member of the city council and Mayor, the City Attorney, the City Manager, Darin Atteberry, Ross Cunniff, Gerry Horak, Ray Martinez, Kristin Stephens, Ken Summers, Wade Troxell, including 'doe' agents, administrators, executives, officers and / or each 'doe' appointee administrator, agent, police officer, official, and 'City' employees, namely, Brandi Lynn Case No. 23-1112 Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 1 ii Neito, Dan Callahan, Jill Hueser, and Ryan Westlind; AND, CSU BOARD OF GOVERNORS, for 'CSU', and each individual member of the 'CSU Board of Governors', for 'COLORADO STATE UNIVERSITY' and each 'doe' and or named administrators, agents, employees or officials acting personally, individually, and or together, namely, Scott Harris, Jeff Goetz, Jesse Ihnen, Michael Lohman, Phil Morris, Derek Smith, Lynn Johnson, Mark Gill, and Nic Olsen, and each heir appointee and/or official; each Individual Jointly and Severally Liable as Co- Defendants. Defendant-Appellee. APPELLEE CITY OF FORT COLLINS’ ANSWER BRIEF On appeal from the United States District Court for the District of Colorado The Honorable Raymond P. Moore, Senior United States District Judge Civil Action No. 1:21-cv-02306-RM-KLM ORAL ARGUMENT IS NOT REQUESTED THIS DOCUMENT HAS BEEN CONVERTED TO NATIVE PDF July 31, 2023 Mark S. Ratner, Esq. Katherine N. Hoffman, Esq. HALL & EVANS, L.L.C. 1001 17th Street, Suite 300 Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 2 iii Denver, CO 80202 Phone: (303) 628-3300 ratnerm@hallevans.com hoffmank@hallevans.com ATTORNEYS FOR DEFENDANT- APPELLEE CITY OF FORT COLLINS Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 3 iv TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES .................................................................................... iv I. STATEMENT OF PRIOR OR RELATED APPEALS ......................................... 1 II. CERTIFICATE OF COUNSEL REGARDING SEPARATE BRIEFS………...1 III. STATEMENT ON THE ISSUES ........................................................................ 1 IV. STATEMENT OF FACTS……………………………………………………..1 V. PROCEDURAL HISTORY…………………………………………………….4 VI. SUMMARY OF ARGUMENT ........................................................................... 6 VII. ARGUMENT ..................................................................................................... 9 A. PLAINTIFF FAILS TO PRESENT ANY ARGUMENT CONCERNING HOW THE DISTRICT COURT ERRED IN DISMISSING THIS ACTION……………………………………………………………………..9 B. THE DISTRICT COURT DID NOT ERR IN DISMISSING PLAINTIFF’S COMPLAINT FOR FAILING TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED………………………………………….10 C. THE DISTRICT COURT APPLIED THE CORRECT STANDARD IN REVIEWING PLAINTIFF’S COMPLAINT AND OTHER PLEADINGS……………………………………………………………….26 D. IN THE ALTERNATIVE, THIS COURT MUST AFFIRM THE DISMISSAL OF THIS ACTION ON DIFFERENT GROUNDS…………..29 STATEMENT REGARDING ORAL ARGUMENT ............................................. 31 CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7) .................................. 33 Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 4 v CERTIFICATE OF DIGITAL SUBMISSION ....................................................... 34 CERTIFICATE OF HARD COPY SUBMISSION ................................................ 35 ATTACHMENTS: ECF No. 63 (7-25-22) Plaintiff’s Motion for Appointment of Counsel ECF No. 67 (8-15-22) City’s Response to [63] Plaintiff’s Motion to Appoint Counsel ECF No. 75 (2-13-23) Minute Order Denying [63] Motion for Appointment of Counsel ECF No. 77 (2-27-23) Plaintiff’s Objection to Recommendation Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 5 vi Table of Authorities Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009)………………………………………………………………..8 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007))……………………………………………………………….8 Brown v. Reardon, 770 F.2d 896, 907 (10th Cir. 1985)……………………………………………….26 BV Jordanelle, LLC v. Old Republic Nat’l Title Ins. Co., 830 F.3d 1195 (10th Cir. 2016)……………………………………………………..3 Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994)…………………………………………………….19 Cochran v. City of Wichita, 2018 U.S. Dist. LEXIS 165825 (D. Kan. Sept. 9, 2021)…………………………20 Cotner v. Hopkins 795 F.2d 900 (1986)………………………………………………………………18 Dias v. City and County of Denver, 567 F.3d 1169 (10th Cir. 2009)…………………………………………………...18 Dist. Of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983)………………………………………………………………11 Drake v. Fort Collins, 927 F.2d 1156 (10th Cir. 1991)……………………………………………………10 F.C.C. v. Beach Communications, Inc., 508 U.S. 307 (1993)………………………………………………………………20 Fogle v. Pierson, Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 6 vii 435 F.3d 1252 (10th Cir. 2006)…………………………………………………...16 Galbreath v. City of Oklahoma, 568 Fed. Appx. 534, 540 (10th Cir. 2014)………………………………………..30 Heck v. Humphrey, 512 U.S. 477 (1994)………………………………………………………………10 Int'l Assoc. of Machinists and Aerospace Workers v. Tennessee Valley Authority, 108 F.3d 658 (6th Cir. 1997)……………………………………………………...27 Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000)………………………………………..19-21, 23-24 Khalik v. United Air Lines, 671 F.3d 1188 (10th Cir. 2012)………………………………………...…………...9 Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005)…………………………………………………………..12, 14 Marshall v. Columbia Lea Reg’l Hosp., 345 F.3d 1157 (10th Cir. 2003)…………………………………………………...22 May v. People, 636 P.2d 672 (Colo. 1981)………………………………………………………..21 McNeil v. United States, 508 U.S. 106 (1993)………………………………………………………………..9 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978)………………………………………………………………31 Murr v. Wisconsin, 137 S. Ct. 1933 (2017)…………………………………………………………….13 Murrell v. Shalala, 43 F.3d 1388 (10th Cir. 1994)…………………………………………………….10 Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 7 viii N. Mill St., LLC v. City of Aspen, 6 F.4th 1216 (10th Cir. 2021)……………………………………………………..12 Ogden v. San Juan Cnty., 32 F.3d 452 (10th Cir. 1994)……………………………………………………….9 Perkins v. Kan. Dep’t of Corr., 165 F.3d 803 (10th Cir. 1999)…………………………………………………….15 Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004)…………………………………………………...20 Renaud v. Wyoming Dep't of Family Servs., 203 F.3d 723 (10th Cir. 2000)…………………………………………………….29 Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923)………………………………………………………………11 Rucks v. Boergermann, 57 F.3d 978 (10th Cir. 1995)……………………………………………………...28 Seegmiller v. Laverkin City, 528 F.3d 762 (10th Cir. 2008)…………………………………………………….20 Tiberi v. Cigna Corp., 89 F.3d 1423 (10th Cir. 1996)…………………………………………………….16 Tilton v. Richardson, 6 F.3d 683 (10th Cir. 1993)……………………………………………………24-25 United States v. Armstrong, 517 U.S. 456 (1996)………………………………………………………………22 United States v. One Parcel of Real Property, 73 F.3d 1057 (10th Cir. 1996)…………………………………………………….11 Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 8 ix Statutes 42 U.S.C. § 1981…………………………………………………………………...3 42 U.S.C. § 1983……………………………………………………………..3-4, 16 42 U.S.C. § 1985……………………………………………………..3, 5, 24-26, 31 42 U.S.C. § 1986………………………………………………………...3, 5, 24, 26 C.R.S. § 13–80–102……..………………………………………………………...16 C.R.S. § 18-4-504…………………………………………………………………..2 Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 9 STATEMENT OF PRIOR OR RELATED APPEALS None. CERTIFICATE OF COUNSEL REGARDING SEPARATE BRIEFS Pursuant to 10th Cir. R. 31.3(D), Defendants believe the issues for the multiple parties are separate and distinct and warrant the filing of separate briefs. In addition, all Defendants are government entities or employees subject to 10th Cir. R. 31.3(B). Therefore, the joint briefing requirement is inapplicable in this matter. STATEMENT OF THE ISSUES Whether the District Court erred in dismissing Plaintiff-Appellant Robert Perry’s (“Plaintiff”) Second Amended Complaint (“Complaint”) against the Defendant-Appellee City of Fort Collins (“City”) pursuant to Fed. R. Civ. P. 12(b). STATEMENT OF FACTS1 As noted in the Recommendation, the parties to Plaintiff’s Complaint and the claims are “moving targets” with Plaintiff continuously withdrawing, clarifying, and/or reasserting certain portions of his claims in his pleadings. [Vol. 1 at 917]. Thus, providing this Court with a factual summary is not a simple task. 1 Plaintiff includes no citations to the record on appeal in his brief. [Op. Br. at 28- 44]. The City requests this Court disregard Plaintiff’s assertions to the extent he misstates the allegations of the Complaint. The relevant facts for Plaintiff’s appeal are the facts as pled in his Complaint, [Vol. 1 at 605-84], which were the facts considered by the District Court in dismissing his Complaint. [Vol. 1 at 971-76]. Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 10 2 A. FACTUAL BACKGROUND Plaintiff is a City resident and a Colorado State University (“CSU”) alum. [Vol. 1 at 606, 625, 910]. During the timeframe relevant to the Complaint, Plaintiff was indigent or homeless. [Vol. 1 at 606, 910]. Plaintiff alleges CSU officers issued him several exclusionary orders for feeding squirrels on campus. [Vol. 1 at 625, 910]. On July 20, 2018, CSU Officer Phil Morris issued Plaintiff an exclusionary order barring him from entering CSU. [Vol. 1 at 634, 911]. On August 7, 2018, after an appeal hearing, the exclusionary order was upheld. [Id.]. On August 24, 2018, a second appeal hearing was held which, again, affirmed the exclusionary order. [Vol. 1 at 635, 911]. On November 20, 2018, Plaintiff demanded an interpretation of CSU’s exclusionary order policy. [Id.]. After allegedly not receiving a response, Plaintiff “returned to CSU.” [Id.]. On May 17, 2019, CSU Officer Derek Smith issued Plaintiff another exclusionary order and a trespass citation pursuant to C.R.S. § 18-4-504. [Vol. 1 at 634, 654, 911]. On July 12, 2019, Officer Smith issued Plaintiff a second trespass citation under F.C.M.C. 17-40(a). [Vol. 1 at 654, 911]. Following a jury trial in Fort Collins Municipal Court, Plaintiff was convicted of trespass and sentenced to 66 days in jail; however, the “60 days were suspended upon [the] condition that Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 11 3 Plaintiff was denied access and use of [CSU] for one year.” [Vol. 1 at 651, 911-12]. Plaintiff appealed and his conviction was affirmed. [Vol. 1 at 652, 912]. B. PLAINTIFF’S CLAIMS Plaintiff brings claims against the City pursuant 42 U.S.C. §§ 1983, 1985, and 1986 challenging the City’s trespass and camping ordinances.2 Regarding the City’s trespass ordinance, F.C.M.C. 17-40(a) provides in relevant part, “[n]o person shall enter or remain unlawfully in or upon property, whether publicly or privately owned.” F.C.M.C. 17-1 defines “enter and remain unlawfully” to include: (1) To enter or remain in or upon privately owned property when not licensed, invited, privileged or otherwise authorized to do so; (2) to enter or remain in or upon publicly owned property that is not open to the public; (3) to 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) to 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. 2 Plaintiff appears to assert for the first time in his Objection and Opening Brief a claim against the City under 42 U.S.C. § 1981. This is improper. While Plaintiff asserted a §1981 claim against the State Defendants in the Complaint [Vol. 1 at 638], he did not assert any §1981 claims against the City in the Complaint [Vol. at 605- 84]. Thus, Plaintiff’s §1981 claim against the City is not properly before this Court and must be disregarded. BV Jordanelle, LLC v. Old Republic Nat’l Title Ins. Co., 830 F.3d 1195, 1204-5 (10th Cir. 2016). Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 12 4 Regarding the City’s camping ordinance, F.C.M.C. 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. Plaintiff brings four claims against Defendants. Claim 1 relates to CSU’s exclusionary order; Plaintiff did not bring this claim against the City. Claim 2 relates to the enforcement of Defendants’ trespass laws and alleges Plaintiff was “unlawfully prosecuted, unlawfully convicted, and unlawfully imprisoned.” [Vol. 1 at 669]. Claim 3 alleges the City’s trespass ordinance violates Plaintiff’s rights under the Fifth, Eighth, and Fourteenth Amendments. Claim 4 alleges the City’s camping ordinance violates Plaintiff’s rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments. Plaintiff seeks declaratory and injunctive relief. PROCEDURAL HISTORY Plaintiff initiated this action by filing a Complaint on August 26, 2021, alleging his constitutional rights were violated pursuant to 42 U.S.C. § 1983. [Vol. 1 at 11-52]. Plaintiff filed an amended Complaint on September 17, 2021. [Vol. 1 at 54-119]. The City filed a Motion to Dismiss Plaintiff’s Amended Complaint on Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 13 5 October 8, 2021. [Vol. 1 at 161-85]. The City’s Motion to Dismiss was fully briefed on November 15, 2021. [Vol. 1 at 329-48, 356-70]. Plaintiff then sought, was granted, and filed the Second Amended Complaint on April 29, 2022. [Vol. 1 at 427-684]. The City filed a Motion to Dismiss on May 13, 2022. [Vol. 1 at 685-705]. Plaintiff filed a Response [Vol. 1 at 793-833], and the City filed a Reply in Support of its Motion to Dismiss [Vol. 1 at 838-53]. On February 13, 2023, Magistrate Judge Kristen L. Mix issued a Recommendation concluding Plaintiff had failed to adequately allege any claims against the City under the Fourth, Fifth, Eighth, or Fourteenth Amendments or 42 U.S.C. §§ 1985 or 1986. [Vol. 1 at 909-48]. The Magistrate Judge declined to exercise supplemental jurisdiction over any remaining state law claims. [Vol. 1 at 946-47]. Plaintiff filed an Objection to the Recommendation. [ECF 77]. The City filed a Response to Plaintiff’s Objection. [Vol. 1 at 949-64]. On March 15, 2021, the District Court issued an Order accepting the Recommendation. [Vol. 1 at 971- 76]. The District Court found no errors in the objected portions of the Recommendation. [Id.]. The District Court also reviewed the non-objected portions of the Recommendation for clear error and determined it contained a correct application of the facts and the law. [Id.]. The District Court overruled Plaintiff’s Objection, accepted the Recommendation, and granted the City’s Motion to Dismiss. Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 14 6 On April 26, 2023, Plaintiff filed a Notice of Appeal. [Vol. 1 at 978-98]. On May 30, 2023, Plaintiff filed his Opening Brief, to which the City now responds. SUMMARY OF ARGUMENT In Plaintiff’s Complaint and Opening Brief, he makes few, if any, specific factual allegations regarding the City’s conduct. Instead, Plaintiff blanketly and repeatedly asserts the City’s ordinances violate his constitutional rights and then proceeds to cite irrelevant cases, presumably to support his claims. As correctly noted in the Magistrate Judge’s Recommendation and the District Court’s Order, Plaintiff’s Complaint failed to articulate any cognizable claims against the City. Specifically, Plaintiff’s Fifth Amendment claim relies on the unsupported assertion he should be able to use his car on public property without any government restrictions, yet he does not provide, and the Magistrate Judge was unaware of any authority supporting this assertion. Plaintiff withdrew his Eighth Amendment claim regarding the City’s trespass ordinance, and he is unable to mount an Eighth Amendment challenge to the City’s camping ordinance because he did not allege he has ever been convicted of violating this ordinance. Plaintiff’s as-applied due process challenge to the City’s trespass ordinance is time-barred, and his similar challenge to the City’s camping ordinance is time-barred in part. Plaintiff’s facial challenge to these two ordinances is improper, and he fails to articulate the absence Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 15 7 of rational basis underlying the City’s actions in support of his substantive due process and equal protection claims. Moreover, Plaintiff’s conspiracy claims are conclusory and devoid of any factual support. On appeal, Plaintiff presents the same arguments rejected by the District Court and fails to provide any basis establishing the District Court erred in dismissing this action. Plaintiff provides this Court with no basis to conclude the District Court committed reversable error in its ruling on the City’s Motion to Dismiss. As a result, the District Court’s determination should be affirmed as a matter of law. Plaintiff asserts various other procedural and substantive issues in support of his appeal, none of which establish error by the District Court or warrant reversal of its Order dismissing this action. Plaintiff contends the Magistrate Judge “refuses to acknowledge individual defendants as necessary parties” but fails to identify any individual defendants or explain how they are necessary to this case. Plaintiff misunderstands the role of the Magistrate Judge and the limited role she had in issuing recommendations—not rulings—on the City’s Motion to Dismiss. Plaintiff similarly misunderstands civil complaint procedure, appearing to argue that because he has only requested declaratory and injunctive relief, his Complaint is exempt from dismissal. This is incorrect—Plaintiff must establish facial plausibility respecting his claims and he has not done so. Plaintiff contests the timing of the Magistrate Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 16 8 Judge’s decision on his Motion for Appointment of Counsel but does not provide any facts in support of his assertion he was prejudiced by the timing of this decision. In the alternative, if this Court disagrees with the lower Court’s determination, the City has provided other bases in support of its Motion to Dismiss Plaintiff’s claims, which can be considered by this Court and which are further outlined below. STANDARD OF REVIEW To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to support plaintiff’s allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. (citing Twombly at 556). Although this standard does not require "detailed factual allegations," it "demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation." Id. (citing Twombly at 555). A complaint "that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. In examining a complaint under Rule 12(b)(6), the court must “disregard conclusory Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 17 9 statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). Although Plaintiff’s pleadings are construed liberally because he is pro se, he still must follow the Federal Rules of Civil Procedure. Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994). Plaintiff’s pro se status does not lessen his duty to comply with various rules governing litigants or substantive law, as he is held to the same standards as counsel licensed to practice before this Court. McNeil v. United States, 508 U.S. 106, 113 (1993); Ogden, 32 F.3d at 455. ARGUMENT A. PLAINTIFF FAILS TO PRESENT ANY ARGUMENT CONCERNING HOW THE DISTRICT COURT ERRED IN DISMISSING THIS ACTION. In its Order, the District Court aptly observed, “Plaintiffs Objection raises few specific issues with the magistrate judge’s analysis and appears to be largely devoted to reasserting arguments he made in response to the Motions to Dismiss. Where he does identify perceived errors, he provides only general or conclusory explanations.” [Vol. 1 at 974-975]. Plaintiff’s Opening Brief suffers the same fatal defects. Plaintiff’s Opening Brief does not advance any substantive arguments concerning any error made by the Magistrate Judge in the Recommendation or the District Court Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 18 10 in its Order dismissing this action. Plaintiff presents no facts, argument, or law establishing the District Court’s ruling was made in error. At best, Plaintiff simply states, in conclusory fashion, he disagrees with the Recommendation and the Order. Although courts construe pro se pleadings liberally, that leniency does not entitle pro se litigants to review of conclusory assertions that the District Court erred in reaching its decision. Drake v. Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (“Despite the liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues.”). Because Plaintiff presents no arguments showing the District Court’s dismissal of this action was error, this Court must affirm the District Court’s ruling. Murrell v. Shalala, 43 F.3d 1388, 1389 n. 2 (10th Cir. 1994) (perfunctory complaints failing to develop an issue are insufficient to invoke appellate review). B. THE DISTRICT COURT DID NOT ERR IN DISMISSING PLAINTIFF’S COMPLAINT FOR FAILING TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED. 1. Plaintiff’s Malicious Prosecution/Wrongful Conviction Claim Plaintiff attempted a malicious prosecution/wrongful conviction claim regarding his trespass conviction. [Vol. 1 at 605-84; Op Br. at 3]. The City, unclear whether Plaintiff was attempting to bring this claim against it, argued Plaintiff’s claim was barred by Heck v. Humphrey, 512 U.S. 477 (1994), and the Rooker- Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 19 11 Feldman doctrine, Dist. Of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923). In the Recommendation, the Magistrate Judge concluded Plaintiff’s Complaint contained no indication the claims regarding CSU’s underlying exclusionary order—resulting in Plaintiff’s trespass conviction—were somehow directed at the City. Plaintiff did not dispute this conclusion in his Objection or his Opening Brief. Moreover, Plaintiff has made no attempt to connect these allegations to the City. This claim, to the extent it was brought against the City, is waived in accordance with well-established law. United States v. One Parcel of Real Property, 73 F.3d 1057, 1059-60 (10th Cir. 1996). 2. Plaintiff’s Fourth Amendment Claim The only basis Plaintiff provides for this claim is his conclusory assertion the City’s camping ordinance violates the Fourth Amendment. [Vol. 1 at 674]. “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, Eighth, and Fourteenth Amendments.” [Vol. 1 at 943]. But Plaintiff did not allege he was searched or his property was seized, and the Magistrate Judge correctly concluded Plaintiff’s allegations were insufficient to state a plausible claim against the City. [Id.]. Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 20 12 Plaintiff did not address this conclusion in his Objection or Opening Brief. Thus, Plaintiff’s Fourth Amendment claim is, likewise, waived. 3. Plaintiff’s Fifth Amendment Claim Plaintiff alleges the City’s trespass and camping ordinances violate the Fifth Amendment; however, the nature of the alleged taking(s) in this case is unclear because of Plaintiff’s threadbare allegations. [Vol. I at 929]. The City and the Magistrate Judge reasonably interpreted Plaintiff’s allegations as attempting a regulatory takings claim. [Vol. I at 697-99, 929]. Plaintiff did not dispute this interpretation. [Vol. 1 at 793-813, 929; see generally Op. Br.]. The Magistrate Judge then thoroughly analyzed Plaintiff’s claim applying both the per se regulatory taking and other regulatory taking frameworks. A “per se” regulatory taking occurs: (1) "where government requires an owner to suffer a permanent physical invasion of her property—however minor," and (2) "regulations that completely deprive an owner of 'all economically beneficial use' of her property.” N. Mill St., LLC v. City of Aspen, 6 F.4th 1216, 1224 (10th Cir. 2021) (quoting Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538 (2005)). The Magistrate Judge concluded Plaintiff did not establish either scenario applied to his claim. [Vol. I at 930]. Plaintiff did not allege a physical invasion of his property. [Id.]. Plaintiff also did not allege the City’s ordinances deprived him of “all economically Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 21 13 beneficial use of [his] property,” nor could he. [Id.]. The City’s ordinances clearly had no impact on the value of Plaintiff’s car, which was the only private property item alleged in his Complaint. [Vol. 1 at 646]. Next, the Magistrate Judge evaluated Plaintiff’s claim applying the other regulatory takings framework. [Vol. 1 at 931]. When a regulation impedes the use of property without depriving the owner of all economically beneficial use, a taking may still be found based on a "complex of factors," including (1) the economic impact of the regulation on plaintiff, (2) whether the regulation has interfered with investment-backed expectations, and (3) the character of the governmental action. Murr v. Wisconsin, 137 S. Ct. 1933, 1943 (2017) (citations omitted). Plaintiff, likewise, did not show any of these factors applied to his claim. [Vol. 1 at 931]. Regarding the camping ordinance, the crux of Plaintiff’s taking claim is that he should be able to use his personal property (his car) however he sees fit and any restriction on this alleged right is a taking. [Id.]. Plaintiff did not cite any cases in support of this assertion, and the Magistrate Judge indicated in the Recommendation, “the Court is unaware of any legal authority supporting such a theory.” [Vol. 1 at 931]. The government can, and does, place limitations on individuals’ abilities to use their personal property in the exercise of its police powers. The issue is not whether the government can impose a limitation but whether the limitation is Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 22 14 “onerous.” Lingle, 544 U.S. at 537. Here, it is not. Nothing in the camping ordinance limited Plaintiff’s ability to use his car for its intended purpose—to drive. While Plaintiff may have wanted to use his car to sleep or conduct activities of daily living, the City’s limitation on these activities on public property in no way deprives Plaintiff of the use of his car for purpose of the Fifth Amendment. Plaintiff’s takings claim regarding the City’s trespass claim is even more attenuated. The takings clause prohibits the government from taking private property without just compensation. Here, Plaintiff alleges the trespass ordinance violated the Fifth Amendment because it deprived him of unlimited access to public property. Plaintiff did not allege he owned any private property taken by the City, and “of course, he does not own the public property at issue.” [Vol. 1 at 931]. In his Opening Brief, Plaintiff does not address any of the arguments raised in the Motion to Dismiss, the conclusions in the Recommendation, or the findings in the Order. Plaintiff provides no factual or legal basis to warrant reversal of the District Court’s determination. Instead, Plaintiff doubles down on his initial conclusory assertions—alleging the City’s ordinances constitute a taking because he says so. [Op. Br. at 9-10, 15, 26]. As such, the District Court’s dismissal of Plaintiff’s Fifth Amendment claim was proper. [Vol. I at 929-32, 971-76]. 4. Plaintiff’s Eighth Amendment Claim Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 23 15 Regarding the City’s trespass ordinance, the Magistrate Judge concluded Plaintiff abandoned his Eighth Amendment claim regarding this ordinance based on statements he made in his Response to the City’s Motion to Dismiss. [Vol. 1 at 794, 932]. Plaintiff disputes this conclusion; however the only argument he provides in support of his position is a conclusory one—“[t]he 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…” [Op. Br. at 16]. Plaintiff never clarifies his previous remark in his Response to the City’s Motion to Dismiss. [See generally Op. Br.]. Plaintiff also does not articulate how or why the Magistrate Judge’s conclusion—which was made based on Plaintiff’s statements—was erroneous. Plaintiff’s Eighth Amendment claim regarding the City’s camping ordinance similarly failed. Eighth Amendment scrutiny is only applicable after a formal adjudication of guilt. Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 809 (10th Cir. 1999). Nowhere in Plaintiff’s Complaint does he allege he was ever convicted of violating the camping ordinance. The opposite is true—Plaintiff alleges his camping citations resulted in findings of not guilty and dismissal. [Vol. 1 at 639, 674]. Plaintiff provides no basis to warrant reversal of the District Court’s Order dismissing his claim; thus, it should be affirmed. Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 24 16 5. Plaintiff’s Fourteenth Amendment Due Process Claim a. As-Applied Challenge Regarding the City’s trespass ordinance, the Magistrate Judge correctly concluded Plaintiff’s as-applied due process claim was time-barred. [Vol. 1 at 937]. The statute of limitations for a claim brought under § 1983 is determined by “reference to the appropriate state statute of limitation and the coordinate tolling rules.” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006). In Colorado, the statute of limitations is two years. See C.R.S. § 13–80–102(1)(g). Plaintiff’s claim stems from a trespass citation issued on July 12, 2019. [Vol. 1 at 654, 937]. Applying the statute of limitations, Plaintiff had until July 12, 2021, to bring a timely claim challenging the application of the City’s trespass ordinance to him. Yet Plaintiff waited until August 26, 2021, to bring his claim. Thus, Plaintiff’s claim is barred by the statute of limitations. [Vol. 1 at 937]. Plaintiff alleges in conclusory fashion the Magistrate Judge erred in not applying the continuing injury exception to his claim. [Op. Br. at 9]. This is incorrect. The Magistrate Judge considered the continuing injury doctrine and concluded the doctrine did not apply to Plaintiff’s claim. In so concluding, the Magistrate Judge relied on the Tenth Circuit’s ruling in Tiberi v. Cigna Corp., 89 F.3d 1423, 1431 (10th Cir. 1996), holding “the doctrine cannot be employed where Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 25 17 the plaintiff’s injury is definite and discoverable, and nothing prevented the plaintiff from coming forward to seek redress.” [Vol. 1 at 937]. That is precisely the situation here—Plaintiff’s alleged injury was “definite and discoverable” on July 12, 2019, and nothing prevented him from filing a claim against the City anytime between July 12, 2019- July 12, 2021. That Plaintiff alleges he suffered continued injury during his resulting criminal prosecution is irrelevant and unsupported. [Op. Br. at 13]. Likewise, Plaintiff’s as-applied challenge to the City’s camping ordinance is time barred in part. [Vol. 1 at 937-38]. Plaintiff alleges in his Complaint he has been charged with violating the camping ordinance seven times, yet notwithstanding multiple bites at the apple to amend his pleadings, he has only provided the dates for three of these incidents. Plaintiff alleges he was cited with violating the City’s camping ordinance in 2014, 2017, and 2020. [Vol. 1 at 674]. The first two incidents are clearly time-barred having occurred more than two years before Plaintiff filed his initial Complaint against the City. [Vol. 1 at 938]. Regarding the remainder of Plaintiff’s as-applied challenge to the camping ordinance, the Magistrate Judge recommended it be dismissed for failure to state a claim upon which relief could be based. Plaintiff failed to allege even a scintilla of information to support the remaining portion of this claim—“he fails to provide any detail whatsoever about the circumstances underlying these citations, such as when Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 26 18 they occurred, what Plaintiff was doing at the time of the violations, and, for most instances, the dispositions of the citations.” [Vol. 1 at 938]. Plaintiff disputes the District Court’s Order dismissing his as-applied challenge to both ordinances but fails to provide any substantive argument how or why he believes this determination was incorrect. Threadbare allegations of error, without more, are insufficient to warrant reversal of the District Court’s determination and should be denied by this Court. Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986). b. Facial Challenge Plaintiff mounts facial challenges to the City’s trespass and camping ordinances. “Facial challenges are strong medicine.” Dias v. City and County of Denver, 567 F.3d 1169, 1179 (10th Cir. 2009) (citations omitted). The Tenth Circuit has held facial challenges are only appropriate: (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. Id. at 1179-80. Neither of these circumstances applies here, as recognized by the Magistrate Judge in the Recommendation. [Vol. 1 at 939-40]. First, neither of the City’s ordinances threatens to chill any constitutionally protected conduct. Trespassing on Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 27 19 public lands is not a constitutionally protected right, see Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994), nor is sleeping on public property, see Joel v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir. 2000) (collecting cases). Second, both ordinances have been in effect since 1972. [Vol. 1 at 940, citing F.C.M.C. 1972 §§ 60-22, 84-1(E)]. In total, Plaintiff alleges he has been cited with violating the City’s camping and trespass ordinances eight times since 2014. [Vol. 1 at 674]. Pre-enforcement review is wholly inappropriate for two almost forty-year- old ordinances which have been previously enforced. [Vol. 1 at 940]. Plaintiff challenges the District Court’s Order dismissing his facial challenge to the City’s camping ordinance; it is unclear whether he also challenges the dismissal of his facial challenge to the City’s trespass ordinance. [Op. Br. at 7, 9]. As with Plaintiff’s other arguments, he does not meaningfully address any of the conclusions in the Recommendation or the rulings in the Order; he simply argues they were incorrect. [Op. Br. at 16]. Because Plaintiff does not advance any substantive factual or legal arguments in support of his unclear facial challenge, this Court should affirm the District Court’s determination. c. Substantive Challenge As noted in the Recommendation, the precise basis for Plaintiff’s substantive due process challenge is “not entirely clear”; however, the Magistrate Judge Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 28 20 concluded “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.” [Vol. 1 at 940]. “Homeless persons are not a suspect class, nor is sleeping out-of-doors a fundamental right.” Joel, 232 F.3d at 1357; see Cochran v. City of Wichita, 2018 U.S. Dist. LEXIS 165825, *22 (D. Kan. Sept. 9, 2021) (collecting cases).3 If an ordinance does not infringe upon a fundamental right or target a protected class, claims are evaluated under rational basis review. Seegmiller v. Laverkin City, 528 F.3d 762, 771 (10th Cir. 2008). Thus, rational basis is appropriate here, which is the standard applied by the Magistrate Judge. [Vol. 1 at 940-42]. Under rational basis, an ordinance "need only be rationally related to a legitimate government purpose." Powers v. Harris, 379 F.3d 1208, 1215 (10th Cir. 2004). Legislative enactments are entitled to a “strong presumption of validity” so much so that review under this standard must be a “paradigm of judicial restraint.” F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313-15 (1993). Regarding the City’s trespass ordinance, the Magistrate Judge concluded in the Recommendation that Plaintiff did not adequately allege the absence of rational basis underlying this ordinance, writing “[b]y way of example only, he has not 3 The City files and serves Plaintiff with copies of all unpublished judicial dispositions cited herein pursuant to Fed. R. App. P. 32.1(b). Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 29 21 sufficiently alleged that the 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). Notably, cities across the country have enacted trespass ordinances for this purpose. The Magistrate Judge concluded Plaintiff’s substantive challenge to the City’s camping ordinance failed for the same reason—failure to adequately allege the absence of rational basis. [Vol. 1 at 942]. Other courts have denied substantive challenges to similar camping laws, finding rational basis exists for believing that prohibiting sleeping and conducting daily living activities on public property could improve aesthetics, sanitation, public health, and safety. See Joel, 232 F.3d at 1358- 59. Plaintiff argues the City’s camping ordinance is not related to any government interests because other City ordinances address “the anticipated misconduct associated with the ‘camping’ life-style of ‘homeless’ people,” thereby implying the City’s camping ordinance is unnecessary. [Op. Br. at 27]. Plaintiff’s argument is inapposite. First, the list of ordinances provided by Plaintiff against littering, disorderly conduct, harassment, etc. proscribe certain conduct. The proscribed offenses are committed, and the corresponding ordinances are enforced against homeless and non-homeless alike, and Plaintiff has not established otherwise. That there are other City ordinances on the books related to similar government objectives Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 30 22 (improving aesthetics, sanitation, public health, and safety) establishes these objectives as legitimate and important to the City. The City is not aware, and Plaintiff has not provided, any authority limiting the number of ordinances the City can enact for the same or similar government objectives. Both ordinances easily survive rational basis review. Plaintiff offers no substantive response to the Magistrate Judge’s analysis or the District Court’s Order, other than to generically state the determination was incorrect. [Op. Br. at 16]. Plaintiff does not specify why he believes the City’s ordinances do not bear a rational relationship to any government interests. Therefore, this Court should affirm the District Court’s dismissal of Plaintiff’s substantive due process challenge. 6. Plaintiffs’ Fourteenth Amendment Equal Protection Claim The standard for proving a violation of Equal Protection based on selective enforcement is a “demanding” one. United States v. Armstrong, 517 U.S. 456, 463 (1996). The 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) (citing Armstrong, 517 U.S. at 465). Plaintiff alleges the City targets homeless individuals through enforcement of its camping and trespass ordinances. As outlined above, Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 31 23 homeless persons are not a suspect class. Joel, 232 F.3d at 1357. Therefore, rational basis is the appropriate review standard. [Vol. 1 at 934]. Regarding the City’s trespass ordinance, Plaintiff repeatedly alleges in conclusory fashion the City targets homeless individuals through enforcement of this ordinance. However, repetition does not transform Plaintiff’s conclusory allegation into a well-plead one. Nowhere in the Complaint does Plaintiff allege he was targeted by the City through the enforcement of its trespass ordinance because he was homeless. Indeed, Plaintiff’s allegations establish the opposite is true. Plaintiff alleges CSU issued him an exclusionary order for feeding squirrels and then alleges CSU officers issued Plaintiff a trespass citation for violating the exclusionary order. This demonstrates Plaintiff was prosecuted solely because of his actions. Moreover, Plaintiff does not specifically assert the City enforced its trespass ordinance with discriminatory purpose or effect. Plaintiff’s selective enforcement claim regarding the City’s camping ordinance failed for the same reason, namely the complete dearth of any information establishing how, when, and why the City selectively enforced its camping ordinance against Plaintiff because of his homelessness. Notably, courts have upheld camping ordinances like the City’s camping ordinance. In Joel, the Court upheld a similar camping ordinance, finding “[t]he fact that the vast majority of Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 32 24 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.” 232 F.3d at 1360, n. 5. Here, Plaintiff does not provide any more than conclusory assertions in support of his claim. While Plaintiff alleges he has been cited with violating the City’s camping ordinance seven times, he does not allege the involved officers commented on his homelessness or engaged in conduct revealing a motivation to charge him because of his homelessness. Plaintiff does not even allege these officers were aware Plaintiff was homeless. Plaintiff also does not allege any facts showing the City has cited other homeless individuals with violating the camping ordinance because of these individuals’ homelessness. Plaintiff appears to dispute the District Court’s Order dismissing his selective enforcement claim but he, likewise, does not attempt to address any of the substantive reasons outlined in the Recommendation or the Order. Conclusory, unsupported assertions are insufficient to establish facial plausibility or any error by the District Court in dismissing his claim. 7. Plaintiff’s Section 1985 and 1986 Claims To establish a §1985(3) claim, a plaintiff must allege: (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. Tilton v. Richardson, 6 F.3d 683, Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 33 25 686 (10th Cir. 1993). “However, §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 (citations omitted). Plaintiff alleges the City violated §1985(3) in two ways: (1) City employees conspired to violate Plaintiff’s rights during his criminal trial (this claim appears to have been withdrawn by Plaintiff), and (2) City officers conspired to enforce an overly broad and vague camping ordinance. [Vol. 1 at 945]. Fatal to Plaintiff’s claim, he did not allege any facts in support of either assertion. Indeed, Plaintiff did not allege the most basic of information necessary to establish a cognizable conspiracy claim, including the names of the involved City personnel, how each were involved, when this occurred, and the substance of the alleged conspiracy. Because of this, the Magistrate Judge concluded Plaintiff failed to adequately allege a conspiracy under §1985(3) and recommended dismissal of this claim. Plaintiff disputes the Magistrate Judge’s Recommendation and specifically takes issue with the Magistrate Judge’s citation to Tilton. [Op. Br. at 18]. In so arguing, Plaintiff misunderstands the purpose of the Court’s citation to Tilton. The Magistrate Judge merely cited to Tilton to outline the requirements of a §1985(3) claim, including the requirement that any such claim be based on a racial animus or Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 34 26 another class-based invidiously discriminatory animus. [Vol. 1 at 943-45]. Plaintiff fails to offer any additional argument in support of his argument the District Court erred in dismissing his §1985(3) claim; accordingly, the Order dismissing Plaintiff’s § 1985(3) claim should be affirmed. A §1986 claim is dependent upon the existence of a valid claim under §1985. [Vol. 1 at 945, citing Brown v. Reardon, 770 F.2d 896, 907 (10th Cir. 1985)]. “Because Plaintiff failed to adequately allege a claim under § 1985, his § 1986 claim also fails.” [Vol. 1 at 945]. Plaintiff, likewise, offers no legal authority or substantive argument to refute the cases cited or analysis contained in the Recommendation or the District Court’s Order dismissing his §1986 claim. C. THE DISTRICT COURT APPLIED THE CORRECT STANDARD IN REVIEWING PLAINTIFF’S COMPLAINT AND OTHER PLEADINGS. Plaintiff asserts various other procedural and substantive reasons in support of his appeal. Plaintiff’s arguments are stated in conclusory fashion with no factual support. Plaintiff rarely provides legal authority in support of his position, and when he does, the cited authorities do not support his assertions. First, Plaintiff argues the Magistrate Judge erroneously dismissed numerous individuals named in the Complaint’s case caption as parties to this action. [Op. Br. at 8, 14]. Plaintiff misunderstands the Magistrate Judge’s Order on Plaintiff’s Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 35 27 Motion to Amend Petition for Relief and other related motions. [Vol. 1 at 602-3]. The Magistrate Judge granted Plaintiff leave to file his Complaint against five Defendants only: (1) State of Colorado, (2) City, (3) CSU Board of Governors, (4) CSU, and (5) Steven Vasconcellos because none of the other individuals listed in the case caption were included under the “Parties” heading in the body of the Complaint. [Id.]. Accordingly, the other individuals named in the case caption were not dismissed; they were never parties to this action. Notably, Plaintiff never clarified his intentions regarding which individuals he wished to name as defendants to this lawsuit, he did not timely oppose the Magistrate Judge’s decision, and he never sought leave of Court to further amend his Complaint. Moreover, Plaintiff does not allege which individuals in the case caption are “necessary parties” and how and why they are necessary to this case. This argument is wholly conclusory. Second, Plaintiff alleges the Magistrate Judge erred in “misinterpreting Petitioner’s Petition for Relief and Motion for Declaratory relief as a complaint subject to dismissal.” [Op. Br. at 8, 15]. Contrary to Plaintiff’s conclusory assertions, requests for declaratory relief can be subject to dismissal. "A request for declaratory relief is barred to the same extent that the claim for substantive relief on which it is based would be barred.” Int'l Assoc. of Machinists and Aerospace Workers v. Tennessee Valley Authority, 108 F.3d 658, 668 (6th Cir. 1997). A Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 36 28 plaintiff seeking declaratory relief must allege sufficient facts in support of a claim; failure to do so—as is the situation here—could subject a complaint for declaratory relief to dismissal. Third, Plaintiff alleges the Magistrate Judge exceeded her authority by reviewing and issuing recommendations on Defendants’ Motions to Dismiss. [Op. Br. at 8, 20]. This is incorrect as recognized by the District Court in its Order, “Plaintiff is simply mistaken about the role of magistrate judges in making recommendations on dispositive motions.” [Vol. 1 at 975]. The Magistrate Judge did not issue any rulings on the City’s Motion to Dismiss; rather, the Magistrate Judge issued recommendations on the City’s Motion to Dismiss. This is permissible and, indeed, standard practice in district court pursuant to 28 U.S.C. 636(b)(1)(B). Fourth, Plaintiff alleges the timing of the Magistrate Judge’s denial of his Motion for Appointment of Counsel prejudiced his ability to pursue his claims. [Op. Br. 14, 18]. In evaluating Plaintiff’s request for counsel, the Magistrate Judge applied the four-prong standard outlined in Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995), and determined “Plaintiff has demonstrated his ability to state facts and assert claims for relief” and “[t]he legal issues presented are not overly complex, novel, or particularly difficult to state or analyze.” [ECF 75 at 2-3]. Accordingly, the Magistrate Judge denied Plaintiff’s request. Like with Plaintiff’s Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 37 29 other arguments, he does not substantively address the Magistrate Judge’s analysis or determination. Plaintiff does not indicate how he was prejudiced by the timing of this ruling. Also, the timing of Plaintiff’s Motion does not support his argument. Plaintiff did not file this Motion until July 25, 2022, which was after he had twice amended his Complaint and after he had already responded to all Defendants’ Motions to Dismiss. Fifth, Plaintiff argues the Magistrate Judge “failed to apply the appropriate standard of review for Petitioner as pro se…” [Op. Br. at 14]. In so doing, Plaintiff ignores the plain language in the Recommendation. There were multiple instances in which the Magistrate Judge exhibited confusion as to whether Plaintiff was attempting certain claims because the allegations were unclear. Notwithstanding this confusion, the Magistrate Judge liberally construed Plaintiff’s allegations to be asserting certain claims and analyzed these claims as if they were clearly asserted. D. IN THE ALTERNATIVE, THIS COURT MUST AFFIRM THE DISMISSAL OF THIS ACTION ON DIFFERENT GROUNDS. If this Court disagrees with the District Court’s finding that Plaintiff failed to allege any plausible claims against the City, the Court can nonetheless affirm the dismissal on the other grounds raised in the City’s Motion to Dismiss. See Renaud v. Wyoming Dep't of Family Servs., 203 F.3d 723 (10th Cir. 2000). Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 38 30 First, if this Court determines Plaintiff did not withdraw his Eighth Amendment claim regarding the City’s trespass ordinance, Plaintiff’s allegations are nonetheless insufficient to establish a cognizable claim against the City. [Vol. 1 at 700-1]. Indeed, Plaintiff did not articulate how the trespass ordinance violates the Eighth Amendment. [Id.]. Second, Plaintiff failed to establish an Eighth Amendment violation regarding the City’s camping ordinance because he did not allege any facts showing his conduct was involuntary. [Vol. 1 at 699-700]. Third, regarding Plaintiff’s as-applied challenge to the City’s trespass ordinance, this claim fails because a reasonable person in Plaintiff’s position would have “‘fair notice from the language’ of the [ordinance] ‘that the particular conduct that he engaged in was punishable.’” Galbreath v. City of Oklahoma, 568 Fed. Appx. 534, 540 (10th Cir. 2014) (citations omitted). A reasonable person in Plaintiff’s position would have understood Plaintiff’s conduct—entering CSU after being issued an exclusionary order—was prohibited by the trespass ordinance, thus the facts as applied to Plaintiff do not support a due process violation. Fourth, neither the City’s trespass ordinance nor camping ordinance is overbroad. [Vol. 1 at 9-10]. Both ordinances regulate conduct (not speech) and penalize activities constituting special harms to the City and its residents. Fifth, the City’s trespass and camping ordinances are not void for vagueness. [Vol. 1 at 694-95]. Both ordinances clearly outline the Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 39 31 prohibited conduct and the exceptions, and both ordinances are sufficiently specific that a person of ordinary intelligence could understand them. Sixth, to the extent Plaintiff can establish a conspiracy under §1985(3), which the City disputes, Plaintiff does not adequately allege the City was involved in an alleged conspiracy or even knew it existed. The City is not liable for the actions of its employees by application of respondeat superior. Monell v. Dept. of Social Servs., 436 U.S. 658, 694 (1978). CONCLUSION For the foregoing reasons, Defendant-Appellee City of Fort Collins respectfully requests the judgment of the United States District Court be affirmed. STATEMENT REGARDING ORAL ARGUMENT Defendant-Appellee does not request oral argument. Respectfully submitted this 31st day of July, 2023. s/ Katherine Hoffman Mark S. Ratner, Esq. Katherine N. Hoffman, Esq. of HALL & EVANS, L.L.C. 1001 17th St., Suite 300 Denver, CO 80202 Phone: 303-628-3300 ratnerm@hallevans.com hoffmank@hallevans.com ATTORNEYS FOR DEFENDANT-APPELLEE CITY OF FORT COLLIN Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 40 32 CERTIFICATE OF SERVICE I hereby certify that on July 31, 2023, I electronically filed the foregoing Brief of Appellee with the Clerk of this Court using the appellate CM/ECF system. A copy was sent electronically and via first class mail to Appellant at the below address: Robert Lawrence Perry 4786 McMurry Ave., Unit 242 Fort Collins, CO 80525 Fort_scout@yahoo.com July 31, 2023 /s/Katherine N. Hoffman Katherine N. Hoffman Counsel for City of Fort Collins Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 41 33 CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing brief complies with the requirements of Fed. R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point Times New Roman, a proportionally spaced font. I further certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7) because it contains 6,993 words according to the count of Microsoft Word. July 31, 2023 /s/Katherine N. Hoffman Katherine N. Hoffman Counsel for City of Fort Collins Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 42 34 CERTIFICATE OF DIGITAL SUBMISSION Pursuant to this Court’s CM/ECF User’s Manual, I hereby certify that: (i) this brief contains no information subject to the privacy redaction requirements of 10th Cir. R. 25.5; and (ii) the ECF submission was scanned for viruses with the most recent version of Windows Defender Antivirus using the most recent security definitions and, according to that program, is free of viruses. July 31, 2023 /s/Katherine N. Hoffman Katherine N. Hoffman Counsel for City of Fort Collins Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 43 35 CERTIFICATE THAT ELECTRONIC COPY AND REQUIRED HARD COPIES ARE IDENTICAL I hereby certify that seven hard copies of this brief, which are required to be submitted to the Clerk’s Office within five days of electronic filing pursuant to 10th Cir. R. 31.5, are exact copies of that which was filed with the Clerk of the Court using the electronic filing system on July 31, 2023. July 31, 2023 /s/Katherine N. Hoffman Katherine N. Hoffman Counsel for City of Fort Collins Appellate Case: 23-1112 Document: 010110896269 Date Filed: 07/31/2023 Page: 44