Perry v. Colorado

• Decision Date: 13 February 2023
• Docket Number: Civil Action 21-cv-02306-RM-KLM
• Parties: ROBERT-LAWRENCE PERRY, Plaintiff, v. THE STATE OF COLORADO, THE CITY OF FORT COLLINS, CSU BOARD OF GOVERNORS, COLORADO STATE UNIVERSITY, and STEVEN VASCONCELLOS, Defendants.
• Court: U.S. District Court — District of Colorado

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ROBERT-LAWRENCE PERRY, Plaintiff, v. THE STATE OF COLORADO, THE CITY OF FORT COLLINS, CSU BOARD OF GOVERNORS, COLORADO STATE UNIVERSITY, and STEVEN VASCONCELLOS, Defendants.

Civil Action No. 21-cv-02306-RM-KLM

United States District Court, D. Colorado

February 13, 2023

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Kristen L. Mix United States Magistrate Judge

This matter is before the Court on the Motion to Dismiss [#51],^[1] filed by Defendant City of Fort Collins (the “City”), and the Motion to Dismiss [#53], filed by Defendants Colorado State University Board of Governors (the “Board”) and Steven Vasconcellos (“Vasconcellos”) (collectively, the “State Defendants”). Plaintiff, who proceeds as a pro se litigant,^[2] filed Responses [#58, #59], and Defendants filed Replies [#60, #61]. Pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C.COLO.LCivR 72.1(c) the Motions [#51, #53] have been referred to the undersigned for a recommendation regarding disposition. See [#52, #54]. The Court has reviewed the briefs, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court RECOMMENDS that the Motions [#51, #53] be GRANTED.

I. Background^[3]

Plaintiff lives in Fort Collins and is a Colorado State University (“CSU”) alumnus. Second Am. Compl. [#50] ¶¶ 4, 74. At all times relevant to the events underlying this lawsuit, Plaintiff was indigent and/or homeless. Id. ¶ 4. Plaintiff asserts that the CSU campus police issued him several “exclusionary orders,” allegedly for feeding squirrels on campus.^[4] Id. ¶ 76. An exclusionary order “provides for immediate exclusion or banishment” from the CSU campus. Id. ¶ 81. CSU's exclusionary orders are enforced by citations of trespass under Fort Collins Municipal Code § 17-40(a) and Colo. Rev. Stat. § 18-4-504.^[5] Id. The exclusionary orders cite Colo. Rev. Stat. § 18-9-109 as legal authority to remove people from campus who “disrupt, impair, interfere with, or obstruct the lawful missions, processes, procedures, or functions of the institution.” Id. ¶ 82.

On July 20, 2018, a CSU police officer issued Plaintiff a citation for trespassing under Colo. Rev. Stat. § 18-4-504 and an exclusionary order barring him from the CSU campus. Id. ¶ 127. On August 7, 2018, CSU upheld the exclusionary order on appeal after conducting a telephonic hearing. Id. ¶ 129. On August 24, 2018, CSU again affirmed the exclusionary order after Plaintiff submitted a written appeal to the exclusionary order review committee. Id. ¶¶ 130-32. On November 20, 2018, Plaintiff emailed the CSU Board of Governors with questions regarding the exclusionary order policy. Id. ¶ 133. Plaintiff demanded a response within ten days, stating that he would otherwise disregard any exclusionary order and return to CSU. Id. Plaintiff returned to CSU when he did not receive a response within fifteen days. Id.

On May 17, 2019, another CSU police officer issued Plaintiff a citation for trespassing under Colo. Rev. Stat. § 18-4-504 and an exclusionary order. Id. ¶ 134. The CSU police officer allegedly accessed the Colorado Crime Information Center database and purportedly “entered a false report of a permanent criminal protective order against Plaintiff” without a “court ordered restraining order prohibiting Plaintiff from entering CSU property.” Id. ¶ 136. On July 12, 2019, the same CSU police officer issued Plaintiff a second citation for trespassing, this time under Fort Collins Municipal Code § 17-40(a). Id. ¶ 222. It is unclear what specific procedural events took place following Plaintiff's trespass citation under Fort Collins Municipal Code § 17-40(a). It appears that after a jury trial on an unspecified date, Plaintiff was found guilty of trespassing under Fort Collins Municipal Code § 17-40(a). Id. ¶ 280. Plaintiff was sentenced to sixty-six days in jail; however, “60 days were suspended upon [the] condition that Plaintiff was denied access and use of [CSU] for one year.” Id. ¶ 209. Plaintiff appealed and his conviction was affirmed, including the order denying Plaintiff's access and use of CSU property for one year. Id. ¶¶ 210, 213.

Plaintiff filed this lawsuit on August 26, 2021. See [#1]. On April 29, 2022, Plaintiff filed the Second Amended Complaint [#50], asserting §§ 1983, 1985, and 1986 claims. Claim 1 relates to CSU's exclusionary order policy. Id. ¶¶ 260-273. This claim asserts that CSU's exclusionary order policy violates Plaintiff's substantive and procedural due process rights under the Fifth and Fourteenth Amendments and that the exclusionary orders deny Plaintiff equal protection in violation of the Fourteenth Amendment. Id. ¶¶ 263, 264, 269. Claim 2 appears to relate to the enforcement of the State and City Defendants' trespass laws. Id. ¶¶ 274-285. This claim appears to assert that CSU and the City denied Plaintiff's right to due process and equal protection of the law under the Fifth and Fourteenth Amendments and that Plaintiff “continues to suffer, actual, irreparable, permanent injury due to enforcement of the state and city trespass laws.” Id. ¶¶ 283, 285. Claim 2 also asserts that Plaintiff was “unlawfully prosecuted, unlawfully convicted, and unlawfully imprisoned,” appearing to assert a violation of the Eighth Amendment. Id. ¶ 276. Claim 3 relates to the City's trespass ordinance. Id. ¶¶ 286-296. This claim asserts that the City's trespass ordinance denies Plaintiff his “Eighth, Fifth, and Fourteenth Amendment Rights to due process and equal protection of the law.” Id. ¶ 288. Claim 4 relates to the City's camping ordinances. Id. ¶¶ 297-306. This claim asserts that the City's camping ordinances violate his “Constitutional Rights under the 4th, 5th, 8th and 14th Amendments.” Id. ¶ 306. Plaintiff seeks declaratory and injunctive relief. Id. ¶¶ 273, 285, 296, 306.

The Court further discusses the construction of Plaintiff's claims in Section III.A. below.

In the City's Motion [#51], the City contends that Plaintiff's claims challenging the City's trespass and camping ordinances must be dismissed because: (1) the statute of limitations bars Plaintiff's claims in part; (2) Plaintiff lacks standing to seek prospective relief regarding the City's trespass ordinance; (3) the Rooker-Feldman doctrine bars Plaintiff's wrongful conviction claim; (4) the City is entitled to absolute immunity for its employees' actions related to Plaintiff's criminal prosecution under the trespass ordinance; and (5) Plaintiff fails to plausibly plead any constitutional violation. Motion [#51] at 1-2.

In the State's Motion [#53], the State Defendants contend that Plaintiff's claims challenging the exclusionary orders should be dismissed because: (1) the Court lacks subject matter jurisdiction; and (2) Plaintiff fails to state a claim upon which relief can be granted. Motion [#53] at 5, 7.

II. Standard of Review

A. Fed.R.Civ.P. 12(b)(1)

The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because “federal courts are courts of limited jurisdiction,” the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P. 12(b)(1). Statutes conferring subject matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing [subject matter jurisdiction] rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the Court “may not presume the truthfulness of the complaint's factual allegations.” Id. at 1003. With a factual attack, as in this case, the moving party challenges the facts upon which subject matter jurisdiction depends. Id. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing.” Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir.), cert. denied, 484 U.S. 986 (1987)). The Court's reliance on “evidence outside the pleadings” to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment pursuant to Fed.R.Civ.P. 56. Id.

B. Fed.R.Civ.P. 12(b)(6)

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.”). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 17 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim for relief that is plausible on its face.'” Robbins v. Oklahoma, 519 F.3d...