HomeMy WebLinkAbout2023-1112 - Perry V. State Of Colorado, Et Al. - 09 - State's Answer Brief (3)
23-1112
IN THE UNITED 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
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'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; 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-Appellees.
On Appeal from the United States District Court For the District of Colorado The Honorable Raymond P. Moore District Judge D.C. No. 21-cv-02306-RM-KLM
THE STATE’S ANSWER BRIEF
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ORAL ARGUMENT IS NOT REQUESTED.
PHILIP J. WEISER Attorney General
s/ Allison Ailer
Allison Ailer* Senior Assistant Attorney General Civil Litigation and Employment Law Section Attorneys for State Defendant-Appellees
*Counsel of record
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TABLE OF CONTENTS
PAGE
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STATEMENT OF PRIOR OR RELATED APPEALS ................................... 1
JURISDICTIONAL SATEMENT .................................................................. 1
ISSUES FOR REVIEW .................................................................................. 1
STATEMENT OF THE CASE ....................................................................... 2
SUMMARY OF THE ARGUMENT ............................................................... 6
ARGUMENT .................................................................................................. 7
I. The firm waiver rule bars appellate review of Mr. Perry’s
lawsuit. ................................................................................................... 7
A. Standard of Review ............................................................................ 8
B. The firm waiver rule bars appellate review of the February 1,
2023 recommendation to dismiss Mr. Perry’s claims against
the State of Colorado and Colorado State University. .................... 10
C. The firm waiver rule also bars appellate review of the
February 13, 2023 recommendation dismissing Mr. Perry’s
claims against the CSU Board of Governors and Mr.
Vasconcellos. .................................................................................... 11
II. The district court lacked personal jurisdiction over the
individually named state and Colorado State University
employees. ............................................................................................ 13
A. Standard of Review .......................................................................... 13
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B. Mr. Perry waived his right to review the district courts
exclusion of the individually named State and Colorado State
University employees as defendants. .............................................. 14
C. The district court lacked personal jurisdiction over the
individual State and Colorado State University employees. .......... 15
III. The State is immune. ......................................................................... 17
A. Standard of Review .......................................................................... 17
B. The Eleventh Amendment bars Mr. Perry’s claims. ....................... 17
IV. Mr. Perry failed to state a claim against Mr. Vasconcellos
because he failed to allege personal participation. ............................. 19
A. Standard of Review .......................................................................... 19
B. Mr. Perry failed to state a § 1983 claim because he failed to
allege how Mr. Vasconcellos personally participated. .................... 20
CONCLUSION ............................................................................................. 23
CERTIFICATE OF COMPLIANCE ............................................................ 25
CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY
REDACTIONS ......................................................................................... 26
CERTIFICATE OF SERVICE ..................................................................... 27
ATTACHMENTS:
1. ECF No. 73 Order and Recommendation of United States
Magistrate Judge, February 21, 2023
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2. ECF No. 74 Recommendation of United States Magistrate Judge,
February 13, 2023
3. ECF No. 76 Order, February 17, 2023
4. ECF No. 77 Plaintiff's Objection to Recommendation, February 27,
2023
5 ECF No. 80 Order, March 21, 2023
6. ECF No. 81 Final Judgment, March 21, 2023
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TABLE OF AUTHORITIES
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CASES
Ashcroft v. Iqbal, 556 U.S. 662 (2009). .................................................. 20, 21
Barsten v. Dept. of Interior, 896 F.2d 422 (9th Cir. 1990).......................... 15
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). ................................ 20
Colorado Environmental Coalition v. Wenker, 353 F.3d 1221 (10th
Cir. 2004) ........................................................................................... 17, 19
Foote v. Speigel, 118 F.3d 1416 (10th Cir. 1997) ......................................... 21
Greiss v. Colorado, 841 F.2d 1042 (10th Cir. 1988). .................................... 18
Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007); ............................................. 19
Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210 (10th Cir. 2011) ...... 21
McCray v. Social Sec. Admin., 435 F.Supp.3d 1186 (D.N.M. 2020). .......... 12
Moore v. U.S., 950 F.2d 656 (10th Cir. 1991) ..................................... 9, 10, 11
Oklahoma Radio Assocs. V. Fed. Deposit Ins. Corp., 969 F.2d 940
(10th Cir. 1992). ........................................................................................ 16
Old Republic Insur. Co. v. Continental Motors, Inc., 877 F.3d 895 (10
Cir. 2017). ................................................................................................ 13
Pahls v. Thomas, 718 F.3d 1210 (10th Cir. 2013) ........................................ 22
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984). ............ 18
Robins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008) ................................. 22
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Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760 (10th
Cir. 2013) ................................................................................................. 21
Summer v. State of Utah, 927 F.2d 1165 (10th Cir. 1991), .......................... 9
Thomas v. Arn, 474 U.S 140 (1985). .............................................................. 9
U.S. ex rel Ruotsinoja v. Bd. Of Governors of the Colo. State Univ.
Sys., 43 F.Supp.3d 1190 (D. Colo. 2014). ................................................ 19
U.S. v. One Parcel of Real Property, 73 F.3d 1057(10th Cir. 1996). 9, 12, 15
V-1 Oil Co. v. Utah State Dep’t of Pub. Safety, 131 F.3d 1415 (10th
Cir. 2002). ................................................................................................ 18
CONSTITUTIONS
U.S. Const. amend. XI ........................................................................... 18, 19
STATUTES
28 U.S.C. §§ 1291 and 1295 ........................................................................... 1
42 U.S.C. §§ 1981, 1983, 1985, and 1986 ...................................................... 3
Colo. Rev. Stat. § 24-10-101 et. seq.; ........................................................... 18
RULES
Fed. R. Civ. P. 4. .......................................................................................... 16
Fed. R. Civ. P. 8(a). ...................................................................................... 20
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Fed. R. Civ. P. 10(a). .................................................................................... 15
Fed. R. Civ. P. 12(b)(1) ............................................................................. 4, 17
Fed. R. Civ. P. 12(b)(6). ....................................................................... 4,19, 20
Fed. R. Civ. P. 72 ................................................................................... 6, 7, 8
Fed. R. Civ. P. 72(b)(2). ............................................................................. 8,12
Fed. R. Civ. P. 72(b)(3); .................................................................................. 9
OTHER AUTHORITIES
5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp.
235-236 (3d ed. 2004)); ............................................................................ 20
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STATEMENT OF PRIOR OR RELATED APPEALS
Defendant-Appellees the State of Colorado, Colorado State
University, the CSU Board of Governors, and Steven Vasconcellos
(collectively, the “State”) are not aware of any prior or related appeals.
JURISDICTIONAL SATEMENT
This Court has jurisdiction to review the district court’s entry of
judgment pursuant to 28 U.S.C. §§ 1291 and 1295. However, because
Plaintiff-Appellant Robert Lawrence Perry (hereinafter, “Mr. Perry”)
failed to file specific written objections to the United States Magistrate
Judge’s recommendations dismissing his claims against the State, this
Court should not grant appellate review.
ISSUES FOR REVIEW
1. Did Mr. Perry waive his right to appellate review of the
district court’s factual and legal determinations regarding his claims
against the State by failing to file specific written objections to the
magistrate judge’s February 1, 2023 and February 13, 2023 findings
and recommendations?
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2. Does Mr. Perry’s failure to personally serve the individual
defendants with process and their failure to appear voluntarily in
district court deprive the court of personal jurisdiction of the individual
defendants?
3. Does the Eleventh Amendment confer immunity on the
State of Colorado, arms of the State, and persons acting in their official
capacities against Mr. Perry’s claims in federal court?
4. Did Mr. Perry have to allege personal participation of Mr.
Vasconcellos in alleged constitutional violations to state a § 1983 claim?
STATEMENT OF THE CASE
Mr. Perry is a homeless alumnus of CSU, who lives in Fort
Collins. Vol. 1 at 606; 9101. The Colorado State University campus
police issued multiple exclusionary orders and trespassing citations to
Mr. Perry, including one which resulted in Mr. Perry being sentenced to
1 The Record on Appeal contains two volumes. When citing to the Record on Appeal, the State will cite as follows: Vol. ___ (number) at ___ (page of the volume). Four documents from the district court were not included in the Record on Appeal. When referring to those documents, the State will cite the document number as follows: Doc. # ____(number) at ___ (page of the document).
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jail. Vol. 1 at 608. Mr. Perry sued the State and the City, alleging that
he is being unfairly excluded from Colorado State University’s campus
in violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1986. Vol. 1 at 605-
684. In this lawsuit he seeks declaratory and injunctive relief,
challenging his exclusion from Colorado State University’s campus and
the City’s trespass and camping ordinances. Id.
Mr. Perry identified the State of Colorado, the CSU Board of
Governors, Colorado State University, Mr. Vasconcellos, numerous
individually named state employees, and Doe Agents in the caption of
his Amended Petition for Relief. Vol. 1 at 54. A motion to dismiss was
filed to which Mr. Perry filed a response [Vol. 1 at 309-328], stating that
“Plaintiff in not asserting claims against the ‘State of Colorado’ or
‘Colorado State University’ entities. . .” Vol. 1 at 319.
Thereafter, Mr. Perry amended his complaint, captioning it
“Proposed Amended Petition for Relief Motion for Declaratory
Judgment, 28 U.S.C. § 2201” (hereinafter, the “Complaint”). Vol. 1 at
605-684. Mr. Perry again identified the State of Colorado, the CSU
Board of Governors, Colorado State University, Mr. Vasconcellos,
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numerous individually named state employees, and Doe Agents in the
caption of the Complaint. See Vol. 1 at 605. The CSU Board of
Governors and Steven Vasconcellos filed a motion to dismiss under Fed.
R. Civ. P. 12(b)(1) and (6) asserting lack of subject matter jurisdiction
and failure to state a claim. Vol. 1 at 750-767. Mr. Perry filed a
response [Vol. 1 at 813-833] stating that “Plaintiff is not asserting
claims against the ‘State of Colorado’ or ‘Colorado State University’
entities. . .” Vol. 1 at 823.
The district court issued an order to show cause to determine why
the State of Colorado and Colorado State University did not respond to
the Complaint. Doc. # 62. In response to the Order to Show Cause [Vol.
1 at 898-904], counsel for the State directed the Court’s attention to Mr.
Perry’s denial in his Response to the Motion to Dismiss, Vol. 1 at 823,
that claims against the State and Colorado State University were
unintended. Mr. Perry did not object to the State’s Response to the
Order to Show Cause. For this reason, the district court interpreted
Mr. Perry’s Complaint as containing a drafting error. Vol. 1 at 907.
The Order to Show cause was discharged and, on February 1, 2023, the
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Magistrate Judge recommended that the State of Colorado and
Colorado State University be dismissed from this lawsuit. Vol. 1 at 905-
908. Mr. Perry did not object to the Order and Recommendation of
United States Magistrate Judge and on February 17, 2023 an Order
entered adopting the magistrate judge’s recommendation. Doc. # 76.
On February 13, 2023, the United States Magistrate Judge issued
a recommendation to dismiss all claims asserted against the CSU Board
of Governors based upon Eleventh Amendment immunity and to
dismiss all claims against Mr. Vasconcellos for failure to state a claim.
Vol. 1 at 909-948. Mr. Perry timely filed a general objection to the
Recommendation of United States Magistrate Judge, rehashing the
same arguments that he made in response to the Motion to Dismiss.
Doc. # 77. The district court overruled Mr. Perry’s objections, accepted
the recommendation of dismissal, and entered Final Judgment on
March 21, 2023. See Vol. 1 at 971-976; 977. Mr. Perry timely appealed.
Vol. 1 at 978-998.
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SUMMARY OF THE ARGUMENT
Mr. Perry did not object to the February 1, 2023, Order and
Recommendation of the United States Magistrate Judge. Thus, under
the firm waiver rule, Mr. Perry waived appellate review of the
recommendation and final order.
Although Mr. Perry filed objections to the February 13, 2023
Recommendation of United States Magistrate Judge, his objections
were not sufficiently specific, as required by Rule 72. Doc. # 77. Mr.
Perry’s Opening Brief contains no argument or citation to the record
regarding how the district court or magistrate judge purportedly erred.
Instead, Mr. Perry rehashes the same arguments that he made in the
Complaint, grievances that have already been dismissed. Thus, Mr.
Perry’s objections to the February 13, 2023 recommendation do not
avoid application of the firm waiver rule.
Mr. Perry did not demonstrate that he had properly served the
individual state and Colorado State University employees identified in
his caption. Nor can he allege any waiver of service by any defendant,
other than Mr. Vasconcellos. Thus, Mr. Perry failed to establish that
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the individually named state employees were proper defendants over
whom the district court had personal jurisdiction.
Finally, Mr. Perry failed to identify any specific error committed
by the district court, failed to demonstrate how he had met his burden
of proving jurisdiction, and failed to demonstrate how his factual
allegations plausibly alleged a section 1983 claim against Mr.
Vasconcellos. Under these circumstances, the district court’s order of
dismissal and judgment must be affirmed.
ARGUMENT
I. The firm waiver rule bars appellate review of Mr. Perry’s
lawsuit.
On February 1, 2023, the United States Magistrate Judge issued
her Order and Recommendation, recommending that all claims against
the State of Colorado and Colorado State University be dismissed. Vol.
1 at 905-908. The Order expressly stated the requirements of Fed. R.
Civ. P. 72, that aggrieved parties file specific written objections within
14 days after service of the Recommendation. Vol. 1 at 908. Mr. Perry
did not file written objects to the recommendation and, on February 17,
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2023, the district court dismissed all claims against the State of
Colorado and Colorado State University. Doc. # 76.
In a second recommendation dated February 13, 2023, the
magistrate judge recommended dismissal of all claims against the CSU
Board of Governors and Mr. Vasconcellos. Vol. 1 at 909-948. The
February 13, 2023 recommendation contained the same notice and
warning language referencing the requirements of Rule 72 as the
February 1, 2023 recommendation. Vol. 1 at 947-948. Mr. Perry filed
written objections, but did not specifically identify facts or legal
conclusions the magistrate judge allegedly got wrong. Doc. # 77.
Instead, Mr. Perry insisted that he is entitled to be on the schools’
campus in conclusory fashion. Id.
A. Standard of Review
When a magistrate judge issues findings and recommendations,
an objecting party has 14 days to serve and file specific written
objections. Fed. R. Civ. P. 72(b)(2). The filing of objections to a
magistrate’s report enables the district court judge to focus attention on
those issues - factual and legal – that are at the heart of the parties’
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dispute. Thomas v. Arn, 474 U.S 140, 147 (1985). The district court
judge reviews de novo “any part of the magistrate judge’s disposition
that has been properly objected to,” but in the absence of an objection,
the district court may review a magistrate’s recommendation under any
standard it deems appropriate. Fed. R. Civ. P. 72(b)(3); Summer v.
State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991), citing Thomas v.
Arn, 474 U.S. at 150. An objection is proper if it is both timely and
specific enough to “enable[] the district judge to focus attention on those
issues – factual and legal – that are at the heart of the parties’ dispute.
U.S. v. One Parcel of Real Property, 73 F.3d 1057, 1059 (10th Cir. 1996).
This Circuit has adopted a “firm waiver rule” which provides that
a litigant’s failure to file timely objections to a magistrate judge’s
findings and recommendation waives appellate review of both factual
and legal determinations made in the report. Moore v. U.S., 950 F.2d
656, 659 (10th Cir. 1991). Before applying the rule to pro se litigants
like Mr. Perry, the Court requires the magistrate judge to inform the
pro se party “not only of the time period for filing objections, but also of
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the consequences of a failure to object, ie waiver of the right to appeal
from a judgment of the district court.” Id.
The firm waiver rule has two exceptions. The first exception
applies when the magistrate judge’s order does not clearly apprise a pro
se litigant of the consequences of a failure to object. Moore, 950 F.2d at
659. The second exception to the firm waiver rule arises when the
“interest of justice” indicate that the rule should not apply. Id.
B. The firm waiver rule bars appellate review of the
February 1, 2023 recommendation to dismiss Mr.
Perry’s claims against the State of Colorado and
Colorado State University.
Here, Mr. Perry waived his right to appellate review by failing to
file written objections to the February 1, 2023 recommendation for
dismissal of all claims against the State of Colorado and Colorado State
University. None of the exceptions to the firm waiver rule apply.
The first exception does not apply because the magistrate judge’s
recommendation included: (1) a notice that written objections must be
filed; and (2) a warning that failure to object waives appellate review of
factual and legal questions. See Vol. 1 at 908. Mr. Perry has pointed to
no circumstance which excuses his failure to object to the magistrate
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judge’s recommendation. See Opening Brief. Moreover, there is
nothing in the record showing Mr. Perry made any effort to remedy his
failure to object within the prescribed 14-day period. Because the
magistrate judge’s notice was sufficient to appraise Mr. Perry of the
consequences of a failure to object, the first exception to the firm waiver
rule does not apply. Moore, 950 F.2d at 659.
Nor does the second exception to the firm waiver rule apply. The
interest of justice do not weigh in Mr. Perry’s favor because he has not
pointed the Court to any legal error allegedly made by the district court
or provided any justification warranting an exception to the firm waiver
rule’s application in this case. See Opening Brief. Accordingly, the
Court should not review the February 1, 2023 recommendation or any
arguments regarding dismissal of the State of Colorado and Colorado
State University.
C. The firm waiver rule also bars appellate review of the
February 13, 2023 recommendation dismissing Mr.
Perry’s claims against the CSU Board of Governors and
Mr. Vasconcellos.
Mr. Perry filed a timely objection to the February 13, 2023
recommendation, but the objection did not meet the requirements of
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Rule 72(b)(2). Doc. # 77. A party’s objections to a magistrate judge’s
recommendation regarding a dispositive motion must be sufficiently
specific to focus the district court’s attention on the factual and legal
issues that are truly in dispute. One Parcel, 73 F.3d at 1059.
In this case, Mr. Perry did not make specific objections identifying
what particular factual or legal issue of consequence was in dispute.
Doc. # 77. Instead, Mr. Perry argued in conclusory fashion that he has
a right to be on the school’s campus. Id. As the district court judge
stated, Mr. Perry’s objections did not comply with Fed. R. Civ. P.
72(b)(2) because they raised little to no specific issue with the
magistrate judge’s analysis and, instead rehashed arguments Mr. Perry
made in his response to the Motion to Dismiss. Vol. 1 at 974.
“Objections must be made with specificity; general or conclusory
objections are insufficient.” McCray v. Social Sec. Admin., 435
F.Supp.3d 1186, 1191 (D.N.M. 2020). Because Mr. Perry’s objections
were not sufficiently specific, his objections did not preserve any issue
for appellate review. One Parcel, 73 F.3d at 1060.
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No exception to the firm waiver rule is applicable to the February
13, 2023 recommendation. The magistrate judge provided sufficient
notice of the consequences of failing to file specific objections. Vol. 1 at
947-948. Mr. Perry has not provided any argument in his Opening
Brief that implicate fundamental rights or interests of justice. See
Opening Brief. For these reasons, no exception to the firm waiver rule
applies and Mr. Perry waived appellate review of the February 13, 2023
Recommendation of United States Magistrate.
II. The district court lacked personal jurisdiction over the
individually named state and Colorado State University’s
employees.
A. Standard of Review
The district court did not interpret Mr. Perry’s lawsuit as being
asserted against the individually named State and Colorado State
University employees. Vol. 1 at 602-603. The standard of review is de
novo for dismissal based on lack of personal jurisdiction. Old Republic
Insur. Co. v. Continental Motors, Inc., 877 F.3d 895, 903 (10 Cir. 2017).
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B. Mr. Perry waived his right to review the district courts
exclusion of the individually named State and Colorado
State University employees as defendants.
In the caption of the Complaint, Mr. Perry named the defendants
as follows: State of Colorado and individual state employees, Alita King,
Thomas Lynch, and Daniel McDonald, each ‘doe’, and Steven
Vasconcellos, and ‘doe’ judicial administrators.
Additionally, Mr. Perry’s caption identified the following
defendants: CSU Board of Governors and individual Colorado State
University employees Scott Harris, Jeff Goetz, Jesse Ihnen, Michael
Lohman, Phil Morris, Derek Smith, Lynn Johnson, Mark Gill, and Nie
Olsen. Vol. 1 at 605. In the Parties section of the Complaint, Mr. Perry
did not indicate anyone other than Mr. Vasconcellos as an individually
named defendant. Vol. 1 at 606-607. Mr. Vasconcellos waived service
[Doc. # 22], but no other state or Colorado State University employee
waived. Mr. Perry did not serve any individual. Because Mr. Perry did
not serve any individual, the district court accepted Mr. Perry’s
Complaint only as to five parties – the State of Colorado, the City of
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Fort Collins, the Board, Colorado State University, and Mr.
Vasconcellos. Vol. 1 at 602-603. Mr. Perry did not object.
Mr. Perry now belatedly contests the exclusion of the individual
state and Colorado State University employees. In his written
objections Mr. Perry claimed that the individually named state and
Colorado State University employees were proper and necessary
parties. Doc. # 77. But Mr. Perry does not point to any specific fact or
cite to any specific legal authority in support of his position that the
magistrate judge erred on this issue. See id. Thus, the firm waiver rule
bars appellate review. One Parcel, 73 F.3d at 1060.
C. The district court lacked personal jurisdiction over the
individual State and Colorado State University employees.
If, however, the Court determines Mr. Perry preserved this issue
for appeal, then the district court’s order must still be affirmed. The
caption of a complaint must include the names of all parties. Fed. R.
Civ. P. 10(a). A proper defendant is named if allegations in the body of
the complaint make it clear the party is intended as a defendant.
Barsten v. Dept. of Interior, 896 F.2d 422, 423 (9th Cir. 1990).
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Additionally, a plaintiff must serve a copy of the complaint on
each individual defendant, unless service is waived. Fed. R. Civ. P. 4.
Personal service under Rule 4 serves two purposes: (1) notifying a
defendant of the commencement of an action against him/her; and (2)
providing a ritual that marks the court’s assertion of jurisdiction over
the lawsuit. Oklahoma Radio Assocs. V. Fed. Deposit Ins. Corp., 969
F.2d 940, 943 (10th Cir. 1992). “Service of process is the mechanism by
which a court having venue and jurisdiction over the subject matter of
an action asserts jurisdiction over the person of the party served.” Id.
Here, although Mr. Perry included the individually named state
and Colorado State University employees in the caption of the
Complaint, Mr. Perry did not identify the individuals in the body of his
complaint under the “Parties” heading. Vol. 1 at 606-607. Mr. Perry has
not and cannot point the court to a return of service demonstrating that
he complied with the personal service requirements of Rule 4. There
are no proof of service filings in the record. Mr. Perry has not argued,
nor can he prove that the individually named state and Colorado State
University employees were served. For this reason, the district court
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did not have personal jurisdiction over the individually named state and
Colorado State University employees and, the district court’s order of
dismissal must be affirmed.
III. The State is immune.
A. Standard of Review
The State moved to dismiss this case under both Fed. R. Civ. P.
12(b)(1). Vol. 1 at 750-767. The District Court dismissed Mr. Perry’s
claims against the CSU Board of Governors under Rule 12(b)(1) for lack
of subject matter jurisdiction. Vol. 1 at 971-976. The standard of
review is de novo for dismissal under Rule 12(b)(1). Colorado
Environmental Coalition v. Wenker, 353 F.3d 1221, 1227 (10th Cir.
2004).
B. The Eleventh Amendment bars Mr. Perry’s claims.
The district court correctly determined the CSU Board of
Governors is immune to Mr. Perry’s claims and that dismissal under
Rule 12(b)(1) was warranted. Vol. 1 at 918-920. The Eleventh
Amendment barred Mr. Perry’s claims against the State of Colorado,
Colorado State University, and Mr. Vasconcellos, in his official capacity.
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The Eleventh Amendment bars suits in federal court for damages
and injunctive relief against states, state agencies, and state officials in
their official capacities, unless the state unequivocally waives its
immunity or Congress expressly abrogates the state’s immunity in
creating a statutory cause of action. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 97-102 (1984). A state’s waiver must be
express and unequivocal. V-1 Oil Co. v. Utah State Dep’t of Pub. Safety,
131 F.3d 1415, 1421 (10th Cir. 2002). It is well established that the
Colorado Governmental Immunity Act does not waive Eleventh
Amendment immunity for claims under § 1983. Colo. Rev. Stat. § 24-
10-101 et. seq.; Greiss v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir.
1988).
In this case, Mr. Perry sued the CSU Board of Governors and
Steven Vasconcellos, a judicial administrator, in his official capacity.
See Vol. 1 at 605. The Eleventh Amendment expressly bars Mr. Perry’s
claim against the State of Colorado. U.S. Const. amend. XI. The
Eleventh Amendment also bars Mr. Perry’s claims against the CSU
Board of Governors because the Board is an “arm-of-the-state.” U.S. ex
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rel Ruotsinoja v. Bd. Of Governors of the Colo. State Univ. Sys., 43
F.Supp.3d 1190, 1196 (D. Colo. 2014). Finally, the Eleventh
Amendment bars official capacity lawsuits against state employees like
Mr. Vasconcellos. See Hill v. Kemp, 478 F.3d 1236, 1255-56 (10th Cir.
2007); U.S. Const. amend. XI. For these reasons, this Court should
affirm the district court’s order of dismissal and judgment on Mr.
Perry’s claims.
IV. Mr. Perry failed to state a claim against Mr. Vasconcellos
because he failed to allege personal participation.
A. Standard of Review
The State moved to dismiss this case under both Fed. R. Civ. P.
12(b)(6). Vol. 1 at 750-767. The District Court dismissed Mr. Perry’s
claims against Mr. Vasconcellos under Rule 12(b)(6) for failure to state
a claim. Vol. 1 at 971-976. The standard of review is de novo for
dismissal under Rule 12(b)(6). Colorado Environmental Coalition v.
Wenker, 353 F.3d at 1227.
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B. Mr. Perry failed to state a § 1983 claim because he failed
to allege how Mr. Vasconcellos personally participated.
The district court correctly determined that Mr. Perry’s claims
against Mr. Vasconcellos were not plausible under the Rule 12(b)(6)
standard because Mr. Perry failed to allege personal participation. Vol.
1 at 926-927. A complaint cannot survive a motion to dismiss without
some factual context sufficient to state a claim to relief that is
“plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
556-557 (2007). To survive dismissal for failure to state a claim, a
complaint must contain factual allegations sufficient to “raise a right to
relief above the speculative level.” Id.at 555. To do so, “‘[t]he pleading
must contain something more . . . than . . . a statement of facts that
merely creates a suspicion [of] a legally cognizable right of action.’” Id.
(quoting 5 C. Wright & A. Miller, Federal Practice and Procedure §
1216, pp. 235-236 (3d ed. 2004)); see also Fed. R. Civ. P. 8(a). A party
must plead affirmative factual content, as opposed to a merely
conclusory recitation that the elements of a claim have been satisfied,
that “allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
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U.S. 662, 679 (2009). The court is not obliged to take as true a legal
conclusion couched as a factual allegation. Id. at 678. Dismissal is
proper “where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct. Id. at 679.
“Individual liability under § 1983 must be based on personal
involvement in the alleged constitutional violation.” Schneider v. City
of Grand Junction Police Dep’t, 717 F.3d 760, 768 (10th Cir. 2013)
(citing Foote v. Speigel, 118 F.3d 1416, 1423 (10th Cir. 1997)). More
specifically, “[b]ecause vicarious liability is inapplicable to ... § 1983
suits, a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676.
The Iqbal standard has “greater bite” in the “context of a § 1983
claim against individual government actors, because ‘they typically
include complex claims against multiple defendants.’” Kansas Penn
Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (citations
omitted). Where several government actors are named as defendants,
“it is particularly important … that the complaint make clear exactly
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who is alleged to have done what to whom, to provide each individual
with fair notice as to the basis of the claims against him or her, as
distinguished from collective allegations against the state.’” Robins v.
Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (emphasis in original).
Further, “the plaintiff's facile, passive-voice showing that his rights
‘were violated’ will not suffice. Likewise insufficient is a plaintiff's more
active-voice yet undifferentiated contention that ‘defendants’ infringed
his rights. … Rather, it is incumbent upon a plaintiff to identify specific
actions taken by particular defendants ….” Pahls v. Thomas, 718 F.3d
1210, 1225-26 (10th Cir. 2013) (internal citations and quotation marks
omitted, emphasis in original).
Here, the district court correctly determined that Mr. Perry did
not identify any specific action taken by Mr. Vasconcellos that violated
his rights. See Vol. 1 at 926-927. Mr. Perry did not point to any fact or
cite to a single legal authority in his Objections demonstrating personal
participation was not an essential element of a § 1983 claim. See Doc. #
77. Furthermore, Mr. Perry’s Opening Brief is devoid of any legal
authority challenging the requirement that he allege personal
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participation. Because the district court’s dismissal with prejudice of
all claims against Mr. Vasconcellos was correct, the order and judgment
should be affirmed.
CONCLUSION
Mr. Perry waived appellate review by failing to file sufficiently
specific written objections to the magistrate judge’s findings and
recommendations. Even if he had preserved his right to review, the
dismissal of Mr. Perry’s claims should be affirmed because he failed to
prove the district court erred. Therefore, the district court’s order of
dismissal and judgment should be affirmed.
RESPECTFULLY Submitted on 30, August 2023,
PHILLIP J. WEISER Attorney General s/ALLISON AILER___________ ALLISON AILER* Senior Assistant Attorney General 1300 Broadway St., 6th Floor Denver, CO 80203 Phone: (720) 508-6617 Allison.ailer@coag.gov
Attorney for State Defendant-Appellees
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Counsel of record*
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CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed.
R. App. P. 32(a)(7)(B) because this brief contains 4142 words,
excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(i).
This brief complies with the typeface requirements of Fed.
R. App. P. 32(a)(5) and the type style requirements of Fed. R. App.
P. 32(a)(6) because this brief has been prepared in a proportionally
spaced typeface using Microsoft Word 2010 in 14-point Century
Schoolbook.
Dated: August 30, 2023
s/ Allison Ailer
ALLISON AILER
Counsel for State Defendant-Appellees
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CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY
REDACTIONS
I hereby certify that with respect to the foregoing:
(1) all required privacy redactions have been made per 10th Cir.
R. 25.5;
(2) if required to file additional hard copies, that the ECF
submission is an exact copy of those documents;
(3) the digital submissions have been scanned for viruses with
the most recent version of a commercial virus program, CrowdStrike
Falcon Sensor, and that according to the program are free of viruses.
Dated: August 30, 2023
s/ Allison Ailer
ALLISON AILER
Counsel for State Defendant-Appellees
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CERTIFICATE OF SERVICE
I hereby THE STATE’S ANSWER BRIEF was electronically
served via ECF on all parties this 30th day of August, 2023, and a hard
copy was deposited via U.S. Mail, with first class postage prepaid,
addressed to:
Robert-Lawrence: Perry 4786 McMurry Avenue, Unit 242 Fort Collins, CO 80525 fort_scout@yahoo.com
Plaintiff Pro Se
s/ Denise Munger
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