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Prisbry v. Barnes

United States District Court, D. Utah, Central Division

March 1, 2018


          David Nuffer Chief District Judge.



         Chief District Judge David Nuffer referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B).[1] Before the court are Defendants Keith C. Barnes, Gary R. Herbert, and Matthew B. Durrant's (collectively, “Defendants”) Motion to Dismiss and Memorandum in Support (the “Motion to Dismiss”), [2] and Plaintiff Terry Prisbrey's (“Plaintiff” or “Mr. Prisbrey”) Motion to Amend Complaint (the “Motion to Amend”).[3] 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 motions on the basis of the written memoranda. See DUCivR 7-1(f). For the reasons set forth below, the court recommends that the Motion to Dismiss be granted, and the Motion to Amend be denied.


         Defendant Keith C. Barnes (“Judge Barnes”) is a Utah Fifth District Court Judge, who presided over Mr. Prisbrey's divorce from Tamara Prisbrey in 2013. Mr. Prisbrey brings suit under 42 U.S.C. § 1983 (“Section 1983”), alleging his constitutional rights were violated by Judge Barnes' rulings in the divorce, and seeking monetary damages and an injunction. Mr. Prisbrey also names Gary R. Herbert, governor of the State of Utah (“Governor Herbert”) and Matthew B. Durrant, Chief Justice of the Utah Supreme Court (“Chief Justice Durrant”) in the complaint (the “Complaint”).[4] The claims against Governor Herbert and Chief Justice Durrant appear to stem from their alleged oversight roles and training responsibilities over state court judges.

         I. The Complaint

         In the Complaint, Mr. Prisbrey alleges misconduct on the part of Judge Barnes, including that Judge Barnes:

1. “acted outside of his official capacity” by receiving testimony from two individuals off the court record;[5]
2. “should have notified Plaintiff of the verdict or the content of the verdict” and “should have instructed [Tamara Prisbrey] on the verdict in a hearing with both parties present;”[6]
3. “show[ed] bias giv[ing] [Tamara Prisbrey] everything she wants and denies Plaintiff every time on everything;”[7]
4. “denied [Mr. Prisbrey] [his] constitutional right to an interpreter” during a hearing;[8]
5. took “life liberty and pursuit of happiness . . . from Plaintiff by giving [his] abusive x [sic] wife mineral rights on both properties this gives her the ability to abuse [him];”[9]
6. “failed to limit asset division to items presented in court;”[10]
7. “failed to assess a value to most of the items awarded to Tamara” Prisbrey;[11] and,
8. “deemed himself an expert appraiser, ” rather than relying on the appraiser's value;[12]

         Allegations against Governor Herbert in the Complaint include that Governor Herbert,

1. “is responsible for all these entities and individuals [sic] training and ensuring they are properly trained and ensuring the oversite [sic] of these officers and individuals;”[13] and,
2. “failed to properly train defendants” in the division of marital assets, in “dealing with disabilities [and] traumatic brain injuries, ” on “[narcissistic] personality disorders, ” that “they must treat both parties as equal not separate standards for each party, ” and, on various other issues ranging from filing documents to findings of fact.[14]

         Besides being named in the caption of the Complaint, Chief Justice Durrant's name does not appear in the Complaint. It is unclear to the court whether the allegations of “fail[ures] to train” in the section captioned “Additional Allegations of Wrong Doings and Claims” at the end of the Complaint relate to Chief Justice Durrant.[15] However, it appears likely to the court that Mr. Prisbrey, at the very least, intended to include Chief Justice Durrant in the allegations regarding the “judicial review bard” organized by the “supreme court” who, according to the Complaint, are “over seers [sic] of the judicial review board and for the training of them.”[16] M r. Prisbrey alleges that this board has “appointed ones that don't investigate thoroughly all complaints like [his] so they are liable for damages and they don't monitor to see if the judicial review board is doing its job properly.”[17]

         There are no allegations in the Complaint that either Governor Herbert or Chief Justice Durrant had any contact with Mr. Prisbrey, or Judge Barnes, or that they took any actions directly related to Mr. Prisbrey's divorce.[18]

         II. The Proposed Amended Complaint

         Mr. Prisbrey has also moved the court for leave to amend the Complaint. The proposed amended complaint (the “Amended Complaint”)[19] expands the Complaint from sixteen pages to sixty-eight pages. The Amended Complaint seeks to add Judge Paul D. Lyman (“Judge Lyman”), the judge to whom Mr. Prisbrey's divorce case was reassigned after Judge Barnes recused himself, [20] as a defendant, and the Terry Prisbrey Trust as a plaintiff.[21]

         While the Amended Complaint is considerably longer, the additional pages contain substantial argument, but the core allegations remain largely the same as those raised in the Complaint. Although the Amended Complaint now names Chief Justice Durrant, the claims against him and Governor Herbert, just as in the Complaint, arise out of their alleged supervisory roles over the judges presiding over Mr. Prisbrey's divorce, repeating allegations that these defendants failed to properly train and oversee judges.[22] The Amended Complaint also alleges that Governor Herbert failed to enforce or pass laws that would have prevented the alleged harm done to Mr. Prisbrey.[23]

         Similarly, the claims against Judge Barnes remain largely unchanged. The Amended Complaint continues to claim harm from Judge Barnes' decisions in his capacity as a judge, including that he improperly allowed witness testimony;[24] “rushed” Mr. Prisbrey to present evidence;[25] did not properly assess the value of property given to Tamara Prisbrey; did not equitably divide property; and gave mineral rights to a “self-admitted abusive spouse putting [Mr.] Prisbrey in[] harm's way of abuse, physical, control of [Mr.] Prisbrey, ”[26] failed to notify Mr. Prisbrey of the verdict, [27] and failed to appoint an interpreter.[28]

         The claims against Judge Lyman in the Amended Complaint are similar to those against Judge Barnes. Mr. Prisbrey complains that Judge Lyman's decisions in his capacity as a judge violated his civil rights, including that Judge Lyman failed to appoint an interpreter, [29] denied Mr. Prisbrey's motion to have property transferred to him;[30] denied a motion to amend the divorce decree;[31] and “[took] testimony outside of court.”[32]

         In addition, the Amended Complaint adds claims for (1) a “failure to investigate allegations of judicial misconduct, ”[33] (2) violation of Mr. Prisbrey's due process rights in his divorce case, referred to in the Amended Complaint as “Count 2, ”[34] (3) breach of contract, [35] and violation of Title II of the Americans with Disabilities Act (“ADA”) for failure to appoint an interpreter.[36]


         At the outset, the court recognizes that Mr. Prisbrey is proceeding pro se.[37] Therefore, the court will “construe his pleadings liberally and hold the pleadings to a less stringent standard than formal pleadings drafted by lawyers.” Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) (citations omitted). However, Mr. Prisbrey's pro se status does not discharge him from complying with the court's rules and procedures, and the court will not assume an advocacy role on Mr. Prisbrey's behalf. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (noting that the Tenth Circuit “has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants” (quotations and citations omitted)); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“[W]e do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant.”).

         In deciding a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court presumes the truth of all well-pleaded facts in the complaint, but need not consider conclusory allegations. See Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006), cert. denied, 549 U.S. 1209 (2007). The court is not bound by a complaint's legal conclusions, deductions, and opinions couched as facts. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 565 (2007). Further, although reasonable inferences must be drawn in the non-moving party's favor, a complaint will only survive a motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).


         In the Motion to Dismiss, the Defendants argue that Plaintiff's claims against Defendants should be dismissed because (1) Judge Barnes is entitled to absolute judicial immunity for actions for monetary damages that are judicial in nature; (2) Section 1983, as amended by the Federal Courts Improvement Act, bars suits against judges for injunctive relief in these situations; (3) Governor Herbert and Chief Justice Durrant are not liable uner the doctrine of respondeat superior for the constitutional violations of their subordinates; and (4) the Complaint does not allege any facts against Chief Justice Durrant which state a claim.

         Moreover, the Defendants argue that Mr. Prisbrey should not be allowed to amend his complaint because (1) the core allegations of the Complaint remain the same in the Amended Complaint, and still fail for the same reasons the Complaint fails; and (2) the new claims also fail to state a claim upon which relief can be granted, and therefore amendment would be futile.

         I. Judi ...

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