Appellate Case: 23-1112 Document: 010110997699 Date Filed: 02/09/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 9, 2024 _________________________________ Christopher M. Wolpert Clerk of Court ROBERT-LAWRENCE PERRY,
Plaintiff - Appellant,
v. No. 23-1112 (D.C. No. 1:21-CV-02306-RM- CITY OF FORT COLLINS; KLM) CSU BOARD OF GOVERNORS; (D. Colo.) STEVEN VASCONCELLOS,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, KELLY, and LUCERO, Circuit Judges. _________________________________
This appeal grew out of a clash between Colorado State University
and an alumnus, Mr. Robert-Lawrence Perry. Mr. Perry is homeless, and
the university allegedly excluded him from the campus. The exclusion
* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-1112 Document: 010110997699 Date Filed: 02/09/2024 Page: 2
didn’t stop Mr. Perry, so the City of Fort Collins cited him for trespass
when he returned.
The exclusion from campus and resulting citations for trespass led
Mr. Perry to sue. The magistrate judge recommended dismissal of all the
claims, and the district judge adopted the recommendations.
Mr. Perry appeals. He reargues his underlying claims, but doesn’t
address the district court’s reasons for dismissing the claims.
1. Identification of parties
The district court decided that the only parties were the State of
Colorado, the Board of Governors of Colorado State University, and
Mr. Steven Vasconcellos. Mr. Perry complains that he also sued others.
The court acknowledged that the caption had included many other
individuals, but explained that the body of the complaint itself had limited
the parties to the state, the board of governors, and Mr. Vasconcellos.
Though Mr. Perry obtained this explanation, he didn’t inform the district
court that he was intending to include others as defendants. So we reject
his argument about the district court’s identification of the parties.
2. The Magistrate Judge’s authority to recommend rulings on dispositive matters
The district judge referred the case to a magistrate judge. The
referral encompassed issues that were both dispositive and non-dispositive.
2 Appellate Case: 23-1112 Document: 010110997699 Date Filed: 02/09/2024 Page: 3
For dispositive issues, the magistrate judge could issue “proposed findings
of fact and recommendations.” Doc. 9.
The magistrate judge carried out this referral, submitting proposed
findings of fact and recommendations on the defendants’ motions to
dismiss. Mr. Perry argues that the magistrate judge exceeded her authority
because the referred issues don’t involve trial management. But the referral
also allowed the magistrate judge to recommend rulings on the motions to
dismiss. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b)(1).
Mr. Perry argues that the magistrate judge lacks authority to decide a
motion to dismiss. But the magistrate judge didn’t make rulings; she just
recommended them. These recommendations fell not only within the
district judge’s referral order but also within the scope of the magistrate
judge’s statutory authority. Clark v. Poulton, 963 F.2d 1361, 1363 (10th
Cir. 1992). So we reject Mr. Perry’s challenges to the magistrate judge’s
authority.
3. Vagueness of the university’s policy on exclusionary orders
Mr. Perry also claims that the university’s policy on exclusionary
orders was too vague. The district court concluded that the Board of
Governors enjoyed Eleventh Amendment immunity for the challenges to
the university’s policy on exclusionary orders.
Mr. Perry argues that an exception exists when a claimant seeks
declaratory or injunctive relief against a state official. But the district
3 Appellate Case: 23-1112 Document: 010110997699 Date Filed: 02/09/2024 Page: 4
court explained that this exception doesn’t apply because Mr. Perry had
asserted this claim against the university itself, rather than a state official.
Mr. Perry doesn’t address this rationale. So we reject his challenge to the
ruling.
4. Regulatory taking
Mr. Perry also claims that the city took his personal property in
violation of the Fifth Amendment. This claim apparently stems from the
university’s restrictions on Mr. Perry’s use of his car while at Colorado
State University. The district court dismissed this claim, reasoning that
• the pertinent property was Mr. Perry’s car and
• no one took the car away from him.
Mr. Perry apparently disagrees, but he doesn’t address the district court’s
reasoning. We thus reject Mr. Perry’s challenge to the ruling.
5. Prosecution, conviction, and sentence for trespass
Mr. Perry alleges a constitutional violation from his prosecution,
conviction, and imprisonment for trespass. But Mr. Perry said in district
court that he was “not seeking damages” or “reversal of his trespass
convictions.” Doc. 59 at 10. 1 So the district court didn’t err in dismissing
1 Mr. Perry was convicted in state court of trespass. The City of Fort Collins argued in federal district court that the civil rights claims on the trespass conviction were (1) premature until Mr. Perry separately obtained expungement or habeas relief and (2) barred under the Rooker-Feldman doctrine. The magistrate judge concluded that Mr. Perry had directed the
4 Appellate Case: 23-1112 Document: 010110997699 Date Filed: 02/09/2024 Page: 5
Mr. Perry’s claims involving his prosecution, conviction, and sentence for
trespass. So we reject his challenge to the ruling.
6. Trespass ordinances
On appeal, Mr. Perry also challenges the constitutionality of the
trespass ordinances. In district court, he asserted that the ordinances were
unconstitutional because they had targeted the homeless. For these claims,
Mr. Perry invoked the prohibition against cruel and unusual punishment
and the rights to equal protection and due process. The district court
concluded that Mr. Perry had abandoned his claim involving cruel and
unusual punishment, that he had failed to allege facts tying his prosecution
for trespass to his homelessness, and that he had waited too long to claim a
denial of due process.
In response, Mr. Perry argues that the district court neglected to
consider the continuing-violation doctrine.
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Appellate Case: 23-1112 Document: 010110997699 Date Filed: 02/09/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 9, 2024 _________________________________ Christopher M. Wolpert Clerk of Court ROBERT-LAWRENCE PERRY,
Plaintiff - Appellant,
v. No. 23-1112 (D.C. No. 1:21-CV-02306-RM- CITY OF FORT COLLINS; KLM) CSU BOARD OF GOVERNORS; (D. Colo.) STEVEN VASCONCELLOS,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, KELLY, and LUCERO, Circuit Judges. _________________________________
This appeal grew out of a clash between Colorado State University
and an alumnus, Mr. Robert-Lawrence Perry. Mr. Perry is homeless, and
the university allegedly excluded him from the campus. The exclusion
* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-1112 Document: 010110997699 Date Filed: 02/09/2024 Page: 2
didn’t stop Mr. Perry, so the City of Fort Collins cited him for trespass
when he returned.
The exclusion from campus and resulting citations for trespass led
Mr. Perry to sue. The magistrate judge recommended dismissal of all the
claims, and the district judge adopted the recommendations.
Mr. Perry appeals. He reargues his underlying claims, but doesn’t
address the district court’s reasons for dismissing the claims.
1. Identification of parties
The district court decided that the only parties were the State of
Colorado, the Board of Governors of Colorado State University, and
Mr. Steven Vasconcellos. Mr. Perry complains that he also sued others.
The court acknowledged that the caption had included many other
individuals, but explained that the body of the complaint itself had limited
the parties to the state, the board of governors, and Mr. Vasconcellos.
Though Mr. Perry obtained this explanation, he didn’t inform the district
court that he was intending to include others as defendants. So we reject
his argument about the district court’s identification of the parties.
2. The Magistrate Judge’s authority to recommend rulings on dispositive matters
The district judge referred the case to a magistrate judge. The
referral encompassed issues that were both dispositive and non-dispositive.
2 Appellate Case: 23-1112 Document: 010110997699 Date Filed: 02/09/2024 Page: 3
For dispositive issues, the magistrate judge could issue “proposed findings
of fact and recommendations.” Doc. 9.
The magistrate judge carried out this referral, submitting proposed
findings of fact and recommendations on the defendants’ motions to
dismiss. Mr. Perry argues that the magistrate judge exceeded her authority
because the referred issues don’t involve trial management. But the referral
also allowed the magistrate judge to recommend rulings on the motions to
dismiss. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b)(1).
Mr. Perry argues that the magistrate judge lacks authority to decide a
motion to dismiss. But the magistrate judge didn’t make rulings; she just
recommended them. These recommendations fell not only within the
district judge’s referral order but also within the scope of the magistrate
judge’s statutory authority. Clark v. Poulton, 963 F.2d 1361, 1363 (10th
Cir. 1992). So we reject Mr. Perry’s challenges to the magistrate judge’s
authority.
3. Vagueness of the university’s policy on exclusionary orders
Mr. Perry also claims that the university’s policy on exclusionary
orders was too vague. The district court concluded that the Board of
Governors enjoyed Eleventh Amendment immunity for the challenges to
the university’s policy on exclusionary orders.
Mr. Perry argues that an exception exists when a claimant seeks
declaratory or injunctive relief against a state official. But the district
3 Appellate Case: 23-1112 Document: 010110997699 Date Filed: 02/09/2024 Page: 4
court explained that this exception doesn’t apply because Mr. Perry had
asserted this claim against the university itself, rather than a state official.
Mr. Perry doesn’t address this rationale. So we reject his challenge to the
ruling.
4. Regulatory taking
Mr. Perry also claims that the city took his personal property in
violation of the Fifth Amendment. This claim apparently stems from the
university’s restrictions on Mr. Perry’s use of his car while at Colorado
State University. The district court dismissed this claim, reasoning that
• the pertinent property was Mr. Perry’s car and
• no one took the car away from him.
Mr. Perry apparently disagrees, but he doesn’t address the district court’s
reasoning. We thus reject Mr. Perry’s challenge to the ruling.
5. Prosecution, conviction, and sentence for trespass
Mr. Perry alleges a constitutional violation from his prosecution,
conviction, and imprisonment for trespass. But Mr. Perry said in district
court that he was “not seeking damages” or “reversal of his trespass
convictions.” Doc. 59 at 10. 1 So the district court didn’t err in dismissing
1 Mr. Perry was convicted in state court of trespass. The City of Fort Collins argued in federal district court that the civil rights claims on the trespass conviction were (1) premature until Mr. Perry separately obtained expungement or habeas relief and (2) barred under the Rooker-Feldman doctrine. The magistrate judge concluded that Mr. Perry had directed the
4 Appellate Case: 23-1112 Document: 010110997699 Date Filed: 02/09/2024 Page: 5
Mr. Perry’s claims involving his prosecution, conviction, and sentence for
trespass. So we reject his challenge to the ruling.
6. Trespass ordinances
On appeal, Mr. Perry also challenges the constitutionality of the
trespass ordinances. In district court, he asserted that the ordinances were
unconstitutional because they had targeted the homeless. For these claims,
Mr. Perry invoked the prohibition against cruel and unusual punishment
and the rights to equal protection and due process. The district court
concluded that Mr. Perry had abandoned his claim involving cruel and
unusual punishment, that he had failed to allege facts tying his prosecution
for trespass to his homelessness, and that he had waited too long to claim a
denial of due process.
In response, Mr. Perry argues that the district court neglected to
consider the continuing-violation doctrine. But the court declined to apply
this doctrine because Mr. Perry had relied on continuation of his injury
rather than the wrongdoing. He presents no reason to question that ruling. 2
So we reject Mr. Perry’s appellate argument.
claims about the trespass conviction to the state defendants rather than the city, and Mr. Perry doesn’t challenge this characterization. 2 In responding to the city’s motion to dismiss, Mr. Perry said that he intended to drop his claims involving “unlawful arrest, unlawful conviction and unlawful imprisonment.” Doc. 58 at 2. The magistrate judge thus concluded that Mr. Perry had withdrawn his claims involving the trespass
5 Appellate Case: 23-1112 Document: 010110997699 Date Filed: 02/09/2024 Page: 6
7. Camping ordinance
Mr. Perry claims that the city’s camping ordinance violates the
Constitution (the protections against cruel and unusual punishment and
regulatory takings and the rights to equal protection and due process). The
district court rejected these claims. For the claim involving cruel and
unusual punishment, the district court reasoned that Mr. Perry’s conviction
hadn’t involved violation of the camping ordinance. For the claim
involving a denial of equal protection, the court reasoned that the
ordinance had no discriminatory purpose or effect. For the claim involving
a denial of due process, the court reasoned that Mr. Perry had provided no
details about the seven times that he was allegedly charged with violations.
For the claim involving a regulatory taking, the court reasoned that the city
hadn’t taken any of Mr. Perry’s property. Mr. Perry doesn’t say what he
thinks is wrong with the district court’s reasoning. So we reject Mr.
Perry’s challenges to these rulings.
8. University’s policy on exclusionary orders
Mr. Perry claims that the university’s policy on exclusionary orders
violates the Constitution. But the district court concluded that the
ordinance. On appeal, Mr. Perry reasserts his trespass claims without addressing his statements that he was withdrawing these claims.
6 Appellate Case: 23-1112 Document: 010110997699 Date Filed: 02/09/2024 Page: 7
university enjoys Eleventh Amendment immunity as an arm of the state,
and Mr. Perry doesn’t address that conclusion. So we reject this challenge.
9. Claims under 42 U.S.C. § 1981
In the complaint, Mr. Perry asserted claims under 42 U.S.C. § 1981.
But he asserted these claims against only the state and the university, not
the city. As discussed above, the district court dismissed the claims against
the state and university based on Eleventh Amendment immunity, and
Mr. Perry doesn’t address that reasoning. So we reject his challenges on
the claims invoking § 1981.
10. Claims under 42 U.S.C. § 1985(3)
Mr. Perry claimed that the city had violated 42 U.S.C. § 1985(3).
This section addresses conspiracies to deprive individuals of equal
protection or equal privileges and immunities. Tilton v. Richardson, 6 F.3d
683, 686 (10th Cir. 1993). The district court dismissed this claim based on
a failure to allege facts reflecting a conspiracy.
On appeal, Mr. Perry argues that § 1985(3) covers conspiracies that
are private as well as “official.” Appellant’s Opening Br. at 18. But the
district court didn’t say otherwise. The court dismissed this claim based on
the failure to adequately allege a conspiracy—not the private nature of the
conspiracy. Mr. Perry’s appellate argument thus doesn’t address the district
court’s reasoning. So we reject his argument involving the claims under
§ 1985(3).
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11. Claims under 42 U.S.C. § 1986
Mr. Perry also complains that the district court shouldn’t have
dismissed his claims under 42 U.S.C. § 1986. But liability under § 1986
depends on liability under § 1985. Brown v. Richardson, 770 F.2d 896, 907
(10th Cir. 1985). And as noted above, the district court didn’t err in
dismissing the claims under § 1985(3). See Part 10, above. So we conclude
that the district court didn’t err in dismissing the claims under § 1986.
12. Timing of the district court’s ruling on the motion for appointment of counsel
In district court, Mr. Perry moved for appointment of counsel. The
magistrate judge denied the motion when she recommended dismissal of
the remaining claims. Mr. Perry argues that the magistrate judge waited too
long to rule on the motion for appointment of counsel.
Courts ordinarily have discretion on when to rule on motions.
Mr. Perry sought appointment of counsel only after the parties had finished
briefing on the motions to dismiss. So the magistrate judge could
reasonably defer consideration of the motion to appoint counsel until after
the ruling on the motions to dismiss.
In denying the motion to appoint counsel, the magistrate judge
explained that she couldn’t force an attorney to take the case. See Rachel v.
Troutt, 820 F.3d 390, 396–97 (10th Cir. 2016). The magistrate judge could
only ask an attorney to represent Mr. Perry. See id. If his claims had
8 Appellate Case: 23-1112 Document: 010110997699 Date Filed: 02/09/2024 Page: 9
survived the motions to dismiss, the magistrate judge might have
appropriately considered counsel essential for further briefing or for trial.
In these circumstances, the magistrate judge could reasonably defer
consideration of the request for counsel until she could recommend a
ruling on the motions to dismiss. So the court didn’t err in its timing.
Affirmed.
Entered for the Court
Robert E. Bacharach Circuit Judge