United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER AFFIRMING REPORT &
Waddoups United States District Court Judge
a civil rights action alleging violations of the First,
Fourth, and Fourteenth Amendments arising from an incident at
the Kanab Port of Entry in July 2015. Plaintiff seeks
“monetary damages and injunctive relief” under 42
U.S.C. § 1983. Defendants filed a motion to dismiss the
complaint under Federal Rules of Civil Procedure 12(b)(6).
(Dkt. No. 18.) The matter was referred to United States
Magistrate Judge Brooke Wells under 28 U.S.C. §
636(b)(1)(B). On July 29, 2016, Magistrate Judge Wells issued
a Report and Recommendation, recommending that this court
dismiss plaintiff's complaint because the claims are
“not plausible” based on the surveillance video
that captured the events at issue, and because
plaintiff's complaint failed to state a claim upon which
relief can be granted. (R & R, Dkt. No. 32.) Plaintiff
timely objected to the Report and Recommendation as provided
by Federal Rules of Civil Procedure 72(b) and 28 U.S.C.
§ 636(b)(1)(C). This court has reviewed the Report and
Recommendation and plaintiff's objections de novo. Being
fully advised, the court now accepts the recommendation and
GRANTS defendants' motion, but for the reasons stated
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“[M]ere labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
suffice; a plaintiff must offer specific factual allegations
to support each claim.” Kan. Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (internal
punctuation omitted). Furthermore, Federal Rule of Civil
Procedure 12(d) states that “[i]f, on a motion under
Rule 12(b)(6) matters outside the pleadings are presented to
and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56.” Both parties
submitted the Kanab Port of Entry surveillance videos that
captured the event at issue, and plaintiff submitted
additional law enforcement dispatch audio files as well as
still photographs. In addition to both parties being on
notice, based on their submissions and arguments, that this
matter may be converted to a motion for summary judgment, on
December 14, 2016 the court notified the parties that it
intended to convert the motion to dismiss into a motion for
summary judgment and invited objections by a set deadline.
Neither party objected to the court's notice.
Accordingly, the court will treat defendants' motion as a
motion for summary judgment.
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “At the summary judgment stage,
facts must be viewed in the light most favorable to the
nonmoving party only if there is a genuine dispute as to
those facts.” Scott v. Harris, 550 U.S. 372,
380 (2007). Because the video recording and still photos
“tell[ ] quite a different story” than many of
the facts in plaintiff's complaint, the court also views
the facts in the light depicted by the actual recordings and
photos. Id. at 379-80 (“When opposing parties
tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should adopt that version of the facts
for purposes of ruling on a motion for summary
HISTORY AND FINDINGS
facts upon which the parties agree are cited below. (Mot. to
Dismiss p. 2-6, Opp'n Memo p. 3; Dkt. Nos. 18, 19.) Where
the parties do not agree, the court cites the facts directly
from the plaintiff's copy of the surveillance video and
identifies them as such, or where they are consistent with
the surveillance video, from plaintiff's Opposition Memo.
or about July 1, 2015 at about 4:06 p.m. plaintiff Denise
Robinson was traveling with her husband through Kanab, Utah
in a tractor trailer combination. They were transporting
watermelons to a retailer in Salt Lake City.
they approached the Kanab Port of Entry, a flashing light and
sign ordered plaintiff and her husband to exit the highway
and enter the weigh station.
After driving across the scale, a Port of Entry agent ordered
that the truck stop and the driver enter the building with
all paperwork. Plaintiff accompanied her husband into the
surveillance video at the Kanab Port of Entry captured and
recorded the events at issue. At plaintiff's request, her
copy of the surveillance video was viewed by the court.
the surveillance video begins, defendant Tad Mecham can be
seen sitting at one of the desks in the Port of Entry,
looking out the window at vehicles on the scales, and talking
on a cellphone.
Plaintiff and her husband walked into the Port of Entry
office and Mr. Robinson laid a red folder on the counter.
Mecham stood and began looking at Mr. Robinson's
paperwork while still on her cellphone. (Video
Mecham stated to the caller something like, “I've
got to go, I've got a driver here.” (Video at
Mecham then finished her cell phone call. She indicated to
Mr. Robinson that he was 1000 pounds overweight on his rig.
Mecham and Mr. Robinson continued to discuss the total weight
of his rig versus the weight of his axels. During this
portion of the conversation, Mr. Robinson remained calm,
although he briefly used profanity and expressed surprise or
incredulity that he may be ticketed for having an overweight
axel when the gross weight of his rig was less than the
limit, and because no fuel allowance was given. For her part,
Mecham remained calm during this portion of the conversation
as well, indicating that axel weights, not just gross
weights, are enforced, and that Utah is a “zero
tolerance state.” (Video at 14:18-14:20.)
Robinson stated that in his 15 year driving career, he had
never been issued a citation for such a violation. He then
flipped his driver's license or some other identification
card onto the counter in front of Mecham. (Video at 14:20.)
Mecham stated that she had been at the Port of Entry for 28
years, then turned away from the front counter with the
folder containing the Robinsons' paperwork and placed it
on a side desk, saying, “and I can tell you we never
give an allowance.” (Id.)
this point, the verbal exchange between Mr. Robinson and
Mecham became more heated. Mr. Robinson swore, claimed that
he had been given an allowance multiple times, and began to
raise his voice at Mecham. Mecham then turned back toward Mr.
Robinson, began to raise her voice, and stated, ...