United States District Court, D. Utah
ORDER ADOPTING REPORT AND RECOMMENDATION (Dkt. 38)
and REPORT AND RECOMMENDATION (Dkt. 39)
Benson United States District Judge
the court are two separate Report and Recommendations issued
by United States Magistrate Judge Paul M. Warner on February
20, 2018, recommending that this court: (1) Grant the Utah
State Office of Education and Benjamin Rasmussen's
(collectively the “State Defendants”) Motion for
Judgment on the Pleadings and Motion to Dismiss (Dkt. No.
38); and (2) Grant the Murray City School District and Dr.
Steven Hirase's (collectively the “School District
Defendants”) Motion for Judgment on the Pleadings and
motion to dismiss (Dkt. No. 39).
parties were notified of their right to file objections to
each Report and Recommendation within fourteen (14) days
after receiving it. Plaintiff filed a consolidated objection
to both recommendations of the magistrate judge. (Dkt. No.
44.) Having reviewed all relevant materials, including
plaintiff's objection, the record that was before the
magistrate judge, and the reasoning set forth in each of the
magistrate judge's Report and Recommendations, the court
agrees with and adopts the analysis and conclusion of the
regard to the State Defendants, the court agrees with the
magistrate judge's conclusion that the State Defendants
are “arms of the state” and not
“persons” for purposes of 42 U.S.C. § 1983,
and are entitled to eleventh amendment immunity. See
Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 574
(10th Cir. 1996). Additionally, because the State
Defendants were not Plaintiff's employer, the State
Defendant's are not subject to Title I of the ADA or
Rehabilitation Act, see PGA Tour, Inc. v. Martin,
532 U.S. 661, 692 (2001), and Plaintiff's claims cannot
stand on Title II of the ADA because Plaintiff was never
denied the benefits of the services and programs provided by
the State Defendants. Finally, the court agrees that
Plaintiff's claim for Rule 65B extraordinary relief is
improperly brought and untimely. See Gilbert v.
Maughan, 379 P.3d 1263 (Utah 2016).
regard to the School District Defendants, the court agrees
that many of Plaintiff's ADA claims are untimely as the
ADA “requires an individual to file a timely
administrative claim within 300 days of the challenged
action.” Davidson v. Am. Online, Inc., 337
F.3d 1179, 1183 (10th Cir. 2003). Applying this
standard, the magistrate judge correctly concluded that any
alleged discriminatory conduct occurring prior to September
4, 2014, cannot provide the basis for Plaintiff's ADA
claims. With regard to Plaintiff's timely claim -
alleging that the School District Defendants failed to
accommodate her disability by failing to communicate certain
information to the school board - the court agrees with the
magistrate judge's conclusion that Plaintiff's
allegations fail to set forth a claim for failure to
accommodate. Similarly, Plaintiff's due process claim,
based on the alleged injury to her good name and reputation,
fails because the facts alleged do not satisfy the standard
set forth in Stidham v. Peace Office Standards and
Training, 265 F.3d 1144, 1153 (10th Cir.
2001), and Plaintiff cannot show that her reputation was
damaged “in connection with [an] adverse action taken
against [her].” Flanagan v. Munger, 890 F.2d
1557, 1571 (10th Cir. 1989).
court also agrees with the magistrate judge's conclusion
that allowing plaintiff to amend her complaint would be
futile. The new allegations and arguments that plaintiff
seeks to set forth in an amended complaint are, by her own
explanation, the same allegations and arguments she
previously presented to the court in her written responses to
the defendants' motions for judgment on the pleadings.
(Dkt. 44 at 13 (asking the court to “review docket
numbers 27 and 28" and informing the court that if
“given leave to amend my original claim I will
incorporate those arguments”.) The new allegations and
arguments were responded to by the defendants in their reply
memoranda, and more importantly, they were expressly
considered, addressed, and rejected by the magistrate judge
in his report and recommendation. Accordingly, the court
agrees with and adopts the conclusion of the magistrate judge
that allowing Plaintiff to amend her complaint would be
Therefore, the court ADOPTS the Report and Recommendations of
the magistrate judge and orders as follows:
State Defendants' Motion for Judgment on the Pleadings
and Motion to Dismiss (Dkt. 15) is GRANTED and Ms.
Drown's claims against the State Defendants are dismissed
with prejudice; and
School District Defendants' Motion for Judgment on the
Pleadings and Motion to Dismiss (Dkt. 19) is GRANTED and Ms.
Drown's claims against the School ...