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Warnick v. Cooley

United States District Court, D. Utah

March 29, 2017




         Before the Court is United States Magistrate Judge Paul M. Warner's Report and Recommendation, (Docket No. 64), regarding a motion to dismiss filed by Defendants Bradford Cooley, Robin Wilkins, Jeffery Hall, Ethan Rampton, and Mark Knighton (collectively, the “County Defendants”), (Docket No. 54), as well as an earlier motion to dismiss filed by Defendant Daniel Herboldsheimer, (Docket No. 53).


         The factual and procedural background of this case is fully articulated in the Magistrate's Report. (Docket No. 64, at 2-4). In essence, Plaintiff alleges that Defendant Herboldsheimer, his subordinate, vindictively and wrongfully filed a complaint with county prosecutors, accusing Plaintiff of falsifying a report filed by Defendant Herboldsheimer as part of his duties as a deputy constable at the Salt Lake County justice court. Plaintiff further alleges that County Defendants and Defendant Herboldsheimer thereafter conspired to prosecute him without probable cause.

         The criminal charges that allegedly arose from this conspiracy were eventually dismissed by a state court judge for lack of probable cause.

         Plaintiff brings this lawsuit against Defendant Herboldsheimer and County Defendants, asserting claims under 42 U.S.C. §§ 1983, 1985 and various state law causes of action.[1]Defendant Herboldsheimer and County Defendants brought separate motions to dismiss the claims against them as alleged in Plaintiff's amended complaint. (Docket Nos. 53, 54). Oral argument on the motions was held before the Magistrate on May 18, 2016. (Docket No. 63). On July 22, 2016, the Magistrate filed his Report and Recommendation. (Docket No. 64). After review of the parties' submissions and arguments, the Magistrate concluded that certain state law claims were barred by the Utah Governmental Immunity Act and that each of the remaining claims against each of the defendants failed to state a claim upon which relief could be granted. Accordingly, the Magistrate recommended that the motions to dismiss be granted. On August 26, 2016, Plaintiff filed his Objections to the Magistrate's Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(c), (Docket No. 68), requesting de novo review of the two motions to dismiss. Soon thereafter, the County Defendants and Defendant Herboldsheimer each filed a response to Plaintiff's Objections, defending the Magistrate's decision in their favor. (Docket Nos. 72, 73). Exercising jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1367, the court now reviews de novo the Magistrate's decision under 28 U.S.C. § 636(b)(1). Having considered the previous filings, the Magistrate's decision, Plaintiff's objections, and the Defendants' responses, this court adopts in part and modifies in part the Magistrate's Report and Recommendation as explained below.


         The court reviews those portions of the Magistrate's Report and Recommendation “to which objection is made” de novo. 28 U.S.C. § 636(b)(1). The standard of review for the underlying motions to dismiss is well-articulated in the Magistrate's Report and Recommendation, (Docket No. 64, at 4), and will be discussed in more detail below.


         At the outset, the court notes that a substantial portion of Plaintiff's Objection to the Magistrate's Report and recommendation is simply lifted word-for-word from his memoranda in opposition to the underlying motions to dismiss. (Compare Docket Nos. 55, 56 with Docket No. 68). Though this practice hews dangerously close to a waiver for lack of specificity, see United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996) (“[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.”), the court will nonetheless consider Plaintiff's objections insofar as they are discernible. The court will first address Plaintiff's claims against Defendant Herboldsheimer, then his claims against County Defendants, and, finally, his request for leave to amend.

         I. Claims Against Defendant Herboldsheimer

         Plaintiff makes several objections to the Magistrate's recommendation of dismissal of all claims against Defendant Herboldsheimer. The court will address these objections as they pertain to a) Plaintiff's claims against Defendant Herboldsheimer under § 1983, b) Plaintiff's claims against Defendant Herboldsheimer under § 1985, and c) Plaintiff's state law claims against Defendant Herboldsheimer.

         a. Claims Against Herboldsheimer under § 1983

         Plaintiff first objects to the Magistrate's conclusion that his complaint failed to state a claim under 42 U.S.C. § 1983 against Defendant Herboldsheimer. Specifically, the Magistrate determined that the complaint failed to allege any facts indicating that Defendant Herboldsheimer was “acting under color of law” as required by § 1983. The Magistrate explained that an individual acts “under color of law” when he “exercise[s] power ‘possessed by virtue of state law and made possible only because [he] is clothed with the authority of state law.'” West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031 (1941)). Based on this principle, the Magistrate concluded that Defendant Herboldsheimer was not acting under color of law when he allegedly violated Plaintiff's rights. In response to the Magistrate's report, Plaintiff seems to argue that Defendant Herboldsheimer exercised authority under the color of state law simply because he worked at the South Salt Lake City Justice Court and his report to prosecutors pertained to his duties as a deputy constable. After considering Plaintiff's objections, this court agrees with the Magistrate.

         As an initial matter, it is not clear from the face of the complaint that Defendant Herboldsheimer was in fact an employee of either the State of Utah or Salt Lake County. Although it is likely that Defendant Herboldsheimer has some legal link to state or municipal authority in his role as a deputy constable, the complaint states only that Defendant Herboldsheimer was an employee of Plaintiff, (Docket No. 28, at 2), and points to no statutory basis for Defendant Herboldsheimer to exercise authority derived from state law.

         But even if Herboldsheimer were properly considered a public employee, “the fact that a tort was committed by an individual employed by the state does not, ipso facto, warrant attributing all of the employee's actions to the state.” Jojola v. Chavez, 55 F.3d 488, 493 (10th Cir. 1995). Instead, “it is the plaintiff's burden to plead, and ultimately establish, the existence of ‘a real nexus' between the defendant's conduct and the defendant's ‘badge' of state authority in order to demonstrate action was taken ‘under color of state law.'” Id. at 494. Plaintiff has failed to do so here. Despite Plaintiff's assertions to the contrary, there is no “real nexus” between Defendant Herboldsheimer's filing of a report with prosecutors and any authority derived from state law that he exercised as a deputy constable. The mere fact that Defendant Herboldsheimer worked in a government-run justice court is insufficient to establish that he acted with authority derived from a government entity. See Jojola, 55 F.3d at 493. And although the report itself dealt with Defendant Herboldsheimer's duties as a deputy constable, there is absolutely no indication that the filing of the report was an exercise of “power possessed by virtue of state law” or that his report was “made possible only because [he was] clothed with the authority of state law.” We s t , 487 U.S. at 49 (internal quotations omitted); How v. City of Baxter Springs, 217 F. App'x 787, 793 n.5 (10th Cir. 2007) (holding that a county clerk did not act under color of state law when she filed a criminal defamation complaint against an outspoken citizen because there was no evidence that she “used her position as a city clerk to gain an advantage in the filing of her complaint”). There is certainly no colorable allegation here that reporting his supervisor's alleged malfeasance to county prosecutors was a typical function of Defendant Herboldsheimer's employment. “After all, any citizen can report suspicious activity to the police” and there is no indication in the complaint that Defendant Herboldsheimer was acting as anything other than a citizen by reporting Plaintiff's alleged activity to prosecutors. See Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1156-57 (10th Cir. 2016) (holding that city parking enforcement officers were not acting “under color of law” when they reported plaintiff's potentially criminal activity to the police while on duty). Thus, the Magistrate properly concluded that Plaintiff has failed to allege any facts that indicate that Defendant Herboldsheimer acted under color of state law as required by § 1983.

         Still, Plaintiff insists that his claim against Defendant Herboldsheimer under § 1983 may survive because he has alleged “joint action” under § 1983. (Docket No. 68, at 9-10). The Magistrate determined that Plaintiff “fail[ed] to allege sufficient facts showing an agreement and concerted action between or among [Defendant] Herboldsheimer and any of the County Defendants[, ]” (Docket No. 64, at 6), and this court agrees. Plaintiff has alleged that Defendant Herboldsheimer provided information to County Defendants and that they “encourage[ed]” Defendant Herboldsheimer to provide “false information as being accurate, ” (Docket No. 28, at 7), but these conclusory allegations alone do not support an inference of joint action. The Tenth Circuit has “consistently held that furnishing information to law enforcement officers, without more, does not constitute joint action under color of state law. Rather, joint action arises only when an officer's decision to initiate an arrest or a prosecution was not independent of a private party's influence.” Schaffer, 814 F.3d at 1157 (citation omitted).

         Plaintiff has made no factual allegations that would support an inference that the County Defendants' decision to prosecute him was somehow contingent on Defendant Herboldsheimer's influence. In fact, the complaint clearly alleges that the County Defendants did not decide to prosecute Plaintiff until after they had conducted their own independent investigation. (Docket No. 28, at 6-8); see also Schaffer, 814 F.3d at 1158 (holding that witnesses who testified against plaintiff did not participate in joint action with police or prosecutors because the decision to arrest the plaintiff was made only after an independent investigation); Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1454 (10th Cir. 1995) (contrasting previous Tenth Circuit cases where “the record indicated that [arresting] police officers had made an independent decision to make the challenged arrest, ” indicating a lack of “joint action” under § 1983, and a case where the arresting officer “did not make an independent investigation but relied on the judgment” of a reporting witness, indicating “joint action” under § 1983); Murray v. Wal-Mart, Inc., 874 F.2d 555, 559 (8th Cir. 1989) (finding joint action because, inter alia, a prosecutor “made his recommendation to prosecute based on [a witness'] word, not upon an independent investigation of the facts”); Wilson v. McRae's, Inc., 413 F.3d 692, 694 (7th Cir. 2005) (“[R]eliance [by law enforcement on the allegation of victims] does not imply that the victims are exercising state power.”). Further, the mere allegation that Defendant Herboldsheimer conspired with prosecutors is not sufficient to create a reasonable inference that he “shared an unconstitutional goal” with County Defendants. See Schaffer, 814 F.3d at 1158; Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998) (explaining that, in order to survive a motion to dismiss, “a plaintiff must allege specific facts showing an agreement and concerted action amongst the defendants” (internal quotations omitted)); Ercoli v. Paiva, 2004 WL 539998, at *2 (N.D. Ill. Jan. 23, 2004) (unpublished) (holding that the “mere fact that [a complaining witness] talked to police cannot be fairly characterized as part of a ‘conspiracy'” even if the witness was lying; his “cooperation with the police is insufficient to support an inference that he reached an understanding with them to violate the plaintiff's constitutional rights”); cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57, 127 S.Ct. 1955 (2007) (“Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.”); Salehpoor v. Shahinpoor, 358 F.3d 782, 789 (10th Cir. 2004) (“Parallel action . . . does not necessarily indicate an agreement to act in concert.”). In other words, Plaintiff has failed to plead sufficient facts to indicate that Defendant Herboldsheimer “had any involvement in [his] . . . prosecution beyond furnishing information to law enforcement officers.” Schaffer, 814 F.3d at 1158 (citing Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983)); Lee v. Town of Estes Park, 820 F.2d 1112, 1115 (10th Cir. 1987) (holding that a private individual did not participate in joint action under § 1983 when he reported an alleged crime to police and insisted on specific charges). Accordingly, the Magistrate properly concluded that Plaintiff has failed to allege facts that would support a reasonable inference of joint action under § 1983.

         b. Claim against Herboldsheimer under § 1985

          Next, Plaintiff objects to the Magistrate's determination that he has failed to state a claim for conspiracy under § 1985. This court agrees with the Magistrate. As discussed above, Plaintiff has failed to allege facts that would support a plausible inference of concerted action between Defendant Herboldsheimer and County Defendants as required by § 1985. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir. 1990) (explaining that, in the context of a § 1985 claim, “[a] civil conspiracy requires the combination of two or more persons acting in concert”); Tonkovich, 159 F.3d at 533 (requiring evidence of “agreement and concerted action amongst the defendants” in a § 1985 action). Moreover, Plaintiff has failed to allege any facts that would indicate that the alleged conspiracy was “motivated by ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus'” as required for claims under § 1985. See Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (quoting Griffin v. Breckenridge, 403 U.S. 88, 101- 02, 91 S.Ct. 1790 (1971)). Therefore, the Magistrate properly concluded that Plaintiff has failed to state a claim against Defendant Herboldsheimer under § 1985.

         c. Claims Against ...

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