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Hansen v. Police Department of Salt Lake City Corp.

United States District Court, D. Utah, Central Division

September 6, 2017

LARRY DRAKE HANSEN, Plaintiff,
v.
THE POLICE DEPARTMENT OF SALT LAKE CITY CORPORATION, Defendant.

          JILL N. PARRISH DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          PAUL M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE

         District Judge Jill N. Parrish referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B).[1] Before the court is Defendant's motion to dismiss.[2] The court has carefully reviewed the written memoranda submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United States District Court for the District of Utah, the court has concluded that oral argument is not necessary and will determine the motion on the basis of the written memoranda. See DUCivR 7-1(f).

         At the outset, the court recognizes that Plaintiff is proceeding pro se in this case. Consequently, the court will construe his pleadings liberally. See, e.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). At the same time, however, it is not “the proper function of the district court to assume the role of advocate for the pro se litigant, ” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and the court “will not supply additional facts, nor will [it] construct a legal theory for [a pro se] plaintiff that assumes facts that have not been pleaded.” Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam). Further,

[t]he broad reading of [a pro se] plaintiff's complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based. . . . [C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based. This is so because a pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted. Moreover, in analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations.

Bellmon, 935 F.2d at 1110 (citations omitted).

         PROCEDURAL BACKGROUND

         Plaintiff filed his original complaint in this matter on October 6, 2015, [3] and it was served on October 13, 2015.[4] In his original complaint, Plaintiff asserted claims for negligence based on purported violations of federal and state crime victims' rights acts. Defendant filed a motion to dismiss on October 16, 2015, [5] and briefing was completed on November 9, 2015. Plaintiff filed an amended complaint on November 9, 2015, which purported to add constitutional due process claims under the Fifth and Fourteenth Amendments.[6] After Defendant moved to dismiss the amended complaint, [7] Plaintiff sought and obtained leave of court to file a second amended complaint without opposition from Defendant.[8] Plaintiff filed his second amended complaint on September 13, 2016.[9] Defendant then filed a motion to dismiss Plaintiff's second amended complaint on September 23, 2016.[10]

         FACTUAL BACKGROUND

         The following facts are taken from Plaintiff's second amended complaint. Shortly after midnight on Sunday, March 4, 2012, Plaintiff was walking down Main Street in Salt Lake City, Utah, near the “Cheers to You” tavern. According to Plaintiff, he was blindly struck in the face by an unknown assailant and knocked to the ground. Plaintiff suffered numerous bruises, abrasions, and a broken nose that required extensive medical treatment. Plaintiff did not see the person who assaulted him. When Plaintiff was interviewed at the scene by Salt Lake City police officers, he could not identify the perpetrator that struck him and caused his injuries.

         The attack on Plaintiff was part of a larger incident involving numerous patrons of the “Cheers to You” tavern who were fighting on the sidewalk and street after exiting the establishment. Salt Lake City police officers responded to the scene where they interviewed and photographed potential criminal suspects as well as victims of criminal assault and battery, including Plaintiff. Police officers obtained a white t-shirt from one suspect that appeared to have blood on it. DNA from the blood on the white t-shirt has not been analyzed.

         A few minutes after the police officers finished their questioning and left the scene, Plaintiff claims that a witness pointed out the assailant to him by showing him a cell phone video of part of the incident. Plaintiff cannot identify this witness and does not allege that this witness ever identified his assailant to police officers or that police officers were aware of the identity of this witness.

         Sometime after the initial incident, Salt Lake City police officers presented Plaintiff with a “six pack” photo lineup, but Plaintiff was unable to identify his assailant in this lineup. As Plaintiff's assailant has never been identified, no arrests have been made and no criminal charges have been filed relating to the assault and battery on Plaintiff.

         Plaintiff alleges that Defendant failed to adequately, diligently, thoroughly, and timely conduct and complete the investigation of the assault against Plaintiff. Consequently, Plaintiff claims he has been deprived of the opportunity to pursue a civil lawsuit against his assailant for damages arising from the assault. Plaintiff also appears to claim that Defendant failed to prevent the criminal assault and battery on him due to an allegedly negligent response to a prior incident that occurred a few minutes earlier at the Circle Lounge, another downtown bar located a few blocks away from the “Cheers To You” tavern. Plaintiff theorizes that his assailant was somehow involved in the incident at the Circle Lounge, and should have been detained by police officers, thus preventing the assault and battery on Plaintiff ...


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