United States District Court, D. Utah
AMENDED MEMORANDUM DECISION AND ORDER GRANTING IN
PART AND DENYING IN PART DEFENDANTS' MOTION TO
N. Parrish, United States District Court Judge
Gadd (“Mr. Gadd”) brings this action against
South Jordan City (the “City”), South Jordan City
Police Department Officer Jonathan Campbell (“Officer
Campbell”), South Jordan City Justice Court Prosecutor
Edward Montgomery (“Mr. Montgomery”), and Erin
Gadd (“Ms. Gadd”). The City, Officer Campbell,
and Mr. Montgomery move for dismissal of the
claim asserted against them under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. (Dockets 11 &
court holds that Mr. Gadd has failed to state a claim against
Mr. Montgomery because Mr. Montgomery is protected by
absolute immunity. Mr. Gadd has, however, adequately stated a
claim against the City and Officer Campbell. Accordingly, the
court GRANTS the Motion to Dismiss as to Mr. Montgomery, but
DENIES the Motion to Dismiss as to Officer Campbell and the
City. (Dockets 11 & 21).
required when reviewing a motion to dismiss, the court
assumes the truth of the following well-plead factual
allegations of the complaint. See Bryson v.
Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008)
(describing this standard).
23, 2014, a two-page Temporary Protective Order
(“TPO”) was issued at the request of Ms. Gadd
against her husband Mr. Gadd. The TPO identified Ms. Gadd as
the “Petitioner” and listed Mr. and Ms.
Gadd's three children as “Other Person(s) Protected
by this Order.” The TPO stated: “Do not contact,
phone, mail, e-mail, or communicate in anyway with the
Petitioner, either directly or indirectly. TEXT ONLY
regarding children and parent time.” (Emphasis in
original). It did not place any restrictions on Mr.
Gadd's ability to contact or communicate with his
Gadd returned home from work on June 24, 2014 to find an
empty house. Shortly after arriving home, he was served a
copy of the TPO by a South Jordan City Police Officer who
instructed him to vacate the premises immediately. The
following day Ms. Gadd filed for divorce.
evening of June 30, 2014, Mr. Gadd sent separate text
messages to his two oldest children. The first message was to
his son and stated: “Hi [redacted name], I've been
thinking about you a lot! I sure love you and miss you. How
are you buddy?” The second message was to Mr.
Gadd's daughter and stated: “Hi bug! I miss you SO
much! How are you doing sweet girl? I think about you all the
time and can't wait to see you! Love, daddy.”
Shortly after the text messages were sent, Ms. Gadd contacted
the South Jordan City Police Department and filed a complaint
with Officer Campbell against Mr. Gadd alleging that he had
violated the TPO.
to Officer Campbell's report, he “spoke with [Ms.
Gadd] about the violation” and “conformed (sic)
in the state system that an active protect of (sic) order was
in place prohibiting [Mr. Gadd] form (sic) contact with their
kids.” Officer Campbell attempted to call Mr. Gadd on
multiple occasions but was not able to make contact.
30, 2014, Officer Campbell filed his police report and
screening paperwork with the South Jordan City prosecutor,
Mr. Montgomery. On July 15, 2014, Mr. Montgomery filed
charges against Mr. Gadd in the Justice Court of South Jordan
City, charging Mr. Gadd with two counts of violation of a
protective order, a Class B Misdemeanor. The charging
document lists Officer Campbell as the sole witness providing
evidence in the case.
19, 2014, Mr. Gadd received a summons from the Justice Court
of South Jordan City summoning him to appear on August 4,
2014, to answer the charges. Upon receipt of the summons, Mr.
Gadd contacted his attorney and requested that he reach out
to Mr. Montgomery to resolve the charges. Mr. Gadd's
attorney unsuccessfully attempted to contact Mr. Montgomery
on three separate occasions. No communication occurred
between Mr. Montgomery and Mr. Gadd's attorney prior to
Mr. Gadd's arraignment on August 4, 2014.
prior to his arraignment, Mr. Gadd was taken to a room
adjacent to the courtroom where he was detained by a court
bailiff. Mr. Gadd was informed that he was to be
fingerprinted. Mr. Gadd objected and expressly denied
permission for the bailiff to take his fingerprints. The
bailiff replied that the fingerprinting was mandatory and
physically grabbed Mr. Gadd's hands to fingerprint him.
Mr. Montgomery was not in attendance at the arraignment. A
pretrial conference was scheduled for October 16, 2014.
September 16, 2014, Mr. Montgomery and Mr. Gadd's
attorney spoke on the telephone regarding the charges filed
against Mr. Gadd. Mr. Gadd's attorney subsequently
emailed Mr. Montgomery pointing out that none of the
restrictions in the TPO prohibited Mr. Gadd from
communicating with his children. Mr. Gadd's attorney
asked Mr. Montgomery to take a second look at the case and
asserted that this appeared “to be a case that should
be dismissed on its face.” Mr. Montgomery replied that
he had reviewed the TPO and agreed with that analysis. Mr.