United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER ADOPTING IN PART REPORT
N. PARRISH United States District Judge.
Salt Lake City Corporation moved to dismiss plaintiff Larry
Hansen's second amended complaint. [Docket 24].
Magistrate Judge Warner issued a Report and Recommendation
that this court grant the motion and dismiss the complaint
with prejudice. [Docket 33]. Mr. Hansen objected in part to
the Report and Recommendation, but conceded that several of
his causes of action should be dismissed with prejudice.
[Docket 34]. He acknowledged that his first and second claims
for gross negligence should be dismissed. He also agreed that
his third claim should be dismissed in part, but argued that
the portion of this claim that alleged a cause of action for
violations of Article 1, Section 7 of the Utah Constitution
should not be dismissed. Thus, the counts that remain in
dispute in this case are the third claim under Article 1,
Section 7 of the Utah Constitution, the fourth claim under
Article 1, Section 11 of the Utah Constitution, and the Fifth
claim for denial of his right to “access to the
courts” under the United States Constitution.
Mr. Hansen filed an objection, the court “must
determine de novo” whether his objections have merit.
Fed.R.Civ.P. 72(b)(3) (“The district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”);
see also United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996) (“[W]e
hold that 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.”).
OBJECTION TO DISMISSAL OF THE FIFTH CLAIM FOR VIOLATIONS OF
MR. HANSEN'S RIGHT TO “ACCESSTO THE
United States Constitution guarantees access to the
courts. Christopher v. Harbury, 536 U.S.
403, 414-15 (2002). A cause of action to vindicate this
constitutional right may fit into one of two categories. A
forward-looking claim challenges government actions that
effectively bar a plaintiff from litigating a cause of action
at the present time. Id. at 413. A forward-looking
claim seeks the removal of this impediment so that the
plaintiff may pursue a remedy in the courts. For example,
prisoners may seek the use of a law library or plaintiffs may
request the waiver of filing fees that unreasonably impede
access to a court of law. Id. A backward-looking
claim, on the other hand seeks damages caused by government
actions that prevented a plaintiff from litigating a cause of
action that can no longer be pursued no matter what the
government does in the future. Id. at 413-14.
Hansen asserts a backward-looking access to the courts claim.
He alleges that the Salt Lake City Police Department failed
to properly investigate his assault and identify his
assailant. The department's substandard investigation, he
argues, prevented him from suing his attacker. Because the
statute of limitations has now run on his claim against this
unknown individual, Mr. Hansen is now prevented from ever
asserting a tort claim in the courts. He contends, therefore,
that Salt Lake City violated his constitutional right to
access to the courts and that the city should now be held
liable for the damages that he would have recovered in a
lawsuit against his assailant.
Warner recommends that Mr. Hansen's access to the courts
claim be dismissed because he does not have a constitutional
right to the arrest or criminal prosecution of another
person. See Town of Castle Rock, Colo. v. Gonzales,
545 U.S. 748, 768 (2005) (“[T]he benefit that a third
party may receive from having someone else arrested for a
crime generally does not trigger protections under the Due
Process Clause, neither in its procedural nor in its
‘substantive' manifestations.”); Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A]
private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.”). Mr. Hansen
objects, arguing that the cases cited in the Report and
Recommendation are distinguishable and do not address an
access to the courts claim. This court determines that it is
not necessary to resolve the specific objection raised by Mr.
Hansen. Upon reviewing Mr. Hansen's access to the court
claim, the court determines that dismissal of this claim is
required for an independent reason: The constitutional right
to access to the courts does not require a police department
to allocate some constitutional minimum amount of its
resources to identify the perpetrator of a crime so that the
victim can sue the perpetrator.
circuit courts that have recognized a backward-looking access
to the courts claim have only done so in cases where
“obstructive actions by state actors” has
prevented an individual from pursuing a civil claim.
Flagg v. City of Detroit, 715 F.3d 165, 174 (6th
Cir. 2013). The Tenth Circuit, for example, has suggested
that where law enforcement officers threatened to revoke a
potential plaintiff's probation if he filed a civil
rights action based upon his arrest, such conduct may violate
the right of access to the courts. McKay v. Hammock,
730 F.2d 1367, 1375 (10th Cir. 1984). The Seventh Circuit has
held that that planting evidence to conceal an unlawful
killing committed by police officers unconstitutionally
deprived the deceased's family members of an opportunity
to vindicate the killing through judicial redress. Bell
v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir.
1984). The Fifth Circuit has also held that “if state
officials wrongfully and intentionally conceal information
crucial to a person's ability to obtain redress through
the courts, and do so for the purpose of frustrating that
right, and that concealment and the delay engendered by it
substantially reduce the likelihood of one's obtaining
the relief to which one is otherwise entitled, they may have
committed a constitutional violation.” Crowder v.
Sinyard, 884 F.2d 804, 812 (5th Cir. 1989); accord
Flagg, 715 F.3d at 173 (“In backward-looking
[access to the courts] claims, . . . the government is
accused of barring the courthouse door by concealing or
destroying evidence so that the plaintiff is unable to ever
obtain an adequate remedy on the underlying claim.”);
Vasquez v. Hernandez, 60 F.3d 325, 328 (7th Cir.
1995) (“[W]hen police officers conceal or obscure
important facts about a crime from its victims rendering
hollow the right to seek redress, constitutional rights are
Hansen's claim is qualitatively different from the claims
made in the cases that have recognized a backward-looking
access to the courts cause of action. He does not allege that
Salt Lake City actively obstructed his civil suit against his
unknown assailant or that the city destroyed or concealed
evidence. Mr. Hansen's claim is that the city did not try
hard enough to assist his civil litigation efforts against an
unknown third party. But, “[t]he constitutional right
of access to the civil courts plainly does not encompass a
right to receive assistance in gaining access to the civil
courts.” Brown v. Grabowski, 922 F.2d 1097,
1116 (3d Cir. 1990).
the Constitution does not impose a duty on government
entities to actively assist the civil litigation efforts of
crime victims, Mr. Hansen's federal access to the courts
claim fails as a matter of law. This fundamental legal
impediment makes amendment of this claim futile. Therefore,
Mr. Hansen's fifth cause of action for violations of his
right to access to the courts is dismissed with prejudice.
OBJECTIONS TO THE DISMISSAL OF THE THIRD CLAIM UNDER ARTICLE
1, SECTION 7 OF THE UTAH CONSTITUTION AND THE FOURTH CLAIM
UNDERARTICLE1, SECTION11 OF THE UTAH CONSTITUTION
Warner also recommended that Mr. Hansen's claims under
the Utah Constitution be dismissed because lawsuits based
upon injuries proximately caused by assault and battery or
the violation of civil rights are barred by the Utah
Governmental Immunity Act. Utah Code § 63G-7-201(4)(b).
Mr. Hansen objected, arguing that “the Utah
Governmental Immunity Act does not apply to claims alleging
state constitutional violations.” Jensen ex rel.
Jensen v. Cunningham, 250 P.3d 465, 479 (Utah 2011).
court need not reach the merits of Mr. Hansen's objection
because the court dismisses without prejudice his state
constitutional claims for an independent reason. As noted
above, all of Mr. Hansen's federal claims have been
dismissed. “When all federal claims have been
dismissed, the court may, and usually should, decline to
exercise jurisdiction over any remaining state claims.”
Smith v. City of Enid ex rel. Enid City Comm'n,
149 F.3d 1151, 1156 (10th Cir. 1998). Because the only
remaining claims arise under the Utah Constitution, and
because Mr. Hansen acknowledges that his state constitutional
claims raise several novel questions of state law, the court
dismisses his ...