United States District Court, D. Utah, Central Division
DECISION AND ORDER GRANTING MOTION FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT AS TO SOUTH JORDAN CITY AND ERIN GADD (ECF
NO. 88) AND REPORT AND RECOMMENDATION TO DENY MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT AS TO JONATHAN
CAMPBELL, EDWARD MONTGOMERGY, AND GENE MOSS (ECF NO.
J. FURSE MAGISTRATE JUDGE.
Matthew Gadd filed a Motion for Leave to File Second Amended
Complaint and Supporting Memorandum. (Mot. for Leave to File
2d Am. Compl. ("Mot."), ECF No. 88.) Mr. Gadd seeks
leave to amend his Complaint as to Defendants South Jordan
City, Erin Gadd, South Jordan City Justice Court Prosecutor
Edward Montgomery ("Prosecutor Montgomery"), and
South Jordan City Police Department Officer Jonathan Campbell
("Officer Campbell"), and further seeks to add
South Jordan City Justice Court Officer Gene Moss
("Officer Moss") as a defendant (the Court refers
to South Jordan City, Officer Campbell, Prosecutor
Montgomery, and Officer Moss collectively as the "South
Jordan Defendants"). The South Jordan Defendants opposed
Mr. Gadd's Motion for Leave to File the Second Amended
Complaint, (South Jordan Defs.' Mem. in Opp'n to
Pl.'s Mot. for Leave to File 2d Am. Compl.
("Opp'n"), ECF No. 91), but Ms. Gadd did not.
3, 2018, the undersigned held a hearing on Mr. Gadd's
Motion. (ECF No. 112.) During the hearing, the South Jordan
Defendants conceded that the District Judge's prior Order
allowing the claims against South Jordan City to proceed
binds the Court but indicated their continued opposition to
the proposed amendments as to Prosecutor Montgomery, Officer
Campbell, and Officer Moss.
the South Jordan Defendants concede the appropriateness of
Mr. Gadd's amendment as to South Jordan City, Ms. Gadd
does not oppose Mr. Gadd's amendment as to her, and
Federal Rule of Civil Procedure 15(a)(2) provides that courts
should freely grant leave to amend when justice requires, the
Court GRANTS Mr. Gadd's Motion as to South Jordan City
and Ms. Gadd. Further, because Mr. Gadd's amended
allegations only allege actions within the scope of a
prosecutor's role, they fail to overcome prosecutorial
immunity. Therefore, the undersigned RECOMMENDS that the
District Judge DENY Mr. Gadd's Motion as to Prosecutor
Montgomery. As to Officer Campbell and Officer Moss, Mr. Gadd
fails to show that the alleged unconstitutional actions were
clearly established as unconstitutional at the time. Thus,
the proposed amendment fails to overcome qualified immunity.
Accordingly, the undersigned recommends District Judge DENY
Mr. Gadd's Motion as to these two Defendants as well.
Gadd initiated this action on September 16, 2015, (Compl.,
ECF No. 1), and filed his First Amended Complaint on November
5, 2015 (1st Am. Compl., ECF No. 19). Mr. Gadd asserted 42
U.S.C. § 1983 claims for malicious prosecution against
South Jordan City, Prosecutor Montgomery, and Officer
Campbell, and common law malicious prosecution and abuse of
process claims against Ms. Gadd. (See 1st Am.
Compl., ECF No. 19.)
allegations in this case arise out of charges that South
Jordan City filed- and subsequently dropped-against Mr. Gadd
for allegedly violating a Temporary Protective Order
("TPO"). (See generally 1st Am. Compl.,
ECF No. 19.) A court issued the TPO on June 23, 2014 at the
request of Mr. Gadd's then-wife, Ms. Gadd. (Id.
¶ 20 & Ex. D, Temp. Protective Order, June 30,
2014.) The TPO placed restrictions on Mr. Gadd's
communications with Ms. Gadd but did not place any
restrictions on Mr. Gadd's ability to contact or
communicate with his children. (1st Am. Compl., ¶¶
26-27, & Ex. D, Temp. Protective Order, June 30, 2014,
ECF No. 19.) On June 30, 2014, Mr. Gadd sent separate text
messages to his two oldest children. (1st Am. Compl. ¶
39, ECF No. 19.) Shortly thereafter, Ms. Gadd contacted the
South Jordan City Police Department asking them to charge Mr.
Gadd with violating the TPO. (Id. ¶ 43.) South
Jordan dispatched Officer Campbell to investigate.
(Id. ¶ 44.) On June 30, 2014, Officer Campbell
filed his police report and screening paperwork with
Prosecutor Montgomery, a South Jordan City prosecutor.
(Id. ¶ 50.) On July 15, 2014, Mr. Montgomery
filed charges against Mr. Gadd in the Justice Court of South
Jordan City, charging him with two counts of violation of a
protective order. (Id. ¶ 55.) On July 19, 2014,
Mr. Gadd received a summons from the Justice Court of South
Jordan City summoning him to appear for an arraignment on
August 4, 2014. (Id. ¶ 56.) Prior to his
arraignment, a South Jordan City bailiff ordered Mr. Gadd to
a room adjacent to the courtroom and fingerprinted him.
(Id. ¶ 63.) Mr. Gadd objected and expressly
denied permission to take his fingerprints, but the bailiff
told him it was mandatory and physically grabbed Mr.
Gadd's hands to take the fingerprints. (Id.)
September 2014, Prosecutor Montgomery and Mr. Gadd's
attorney spoke on the telephone and exchanged e-mails
regarding the charges against Mr. Gadd. (Id.
¶¶ 61, 67-68.) Mr. Gadd's attorney pointed out
that none of the restrictions in the TPO prohibited Mr. Gadd
from communicating with his children, (Id. ¶
68.) Prosecutor Montgomery subsequently dropped the charges
against Mr. Gadd, indicating in an e-mail that he agreed with
the analysis of Mr. Gadd's attorney. (Id. ¶
69.) On September 17, 2014-one day after Mr. Gadd initiated
the present action-Mr. Montgomery filed a motion to dismiss
the charges against Mr. Gadd without prejudice, citing
"insufficient evidence" as the reason for
dismissal, and the court granted the motion to dismiss on
September 19, 2014. (Id. ¶ 70-71, 73.)
November 24, 2015, South Jordan City, Prosecutor Montgomery,
and Officer Campbell moved to dismiss the § 1983
malicious prosecution claims asserted against them. (Mot. to
Dismiss 1st Am. Compl., ECF No. 21.) Specifically, they
argued that absolute immunity shielded Prosecutor Montgomery
from suit, that qualified immunity shielded Officer Campbell
from suit, and that Mr. Gadd failed to allege sufficient
factual allegations to establish South Jordan City's
liability. (See id.)
District Judge granted the motion to dismiss as to Prosecutor
Montgomery and denied the motion to dismiss as to South
Jordan City and Officer Campbell. (See Am. Mem.
Decision & Order Granting in Part & Denying in Part
Defs.' Mot. to Dismiss ("Mot. to Dismiss
Order"), ECF No. 29.) With respect to Prosecutor
Montgomery, the District Judge found as follows:
In this case, the allegations in the complaint establish that
Mr. Montgomery's actions fell within his role as a
prosecutor. It is alleged that Mr. Montgomery reviewed
Officer Campbell's statement and the TPO before bringing
charges against Mr. Gadd. Mr. Montgomery subsequently filed a
criminal information charging Mr. Gadd. Mr. Montgomery then
negotiated with Mr. Gadd's attorney and ultimately
dismissed the charges. The complaint does not allege any
actions taken by Mr. Montgomery that are normally performed
by a police officer or detective. Rather, all factual
allegations involve his role as prosecutor.
Because all the factual allegations against Mr. Montgomery
fall within his role as prosecutor, he is entitled to
absolute immunity. This is true even if Mr. Montgomery
knowingly and intentionally filed the criminal charges
against Mr. Gadd without probable cause. Accordingly, Mr.
Montgomery's motion to dismiss the claims against him is
(Id. at 6.) As to Officer Campbell, the District
Judge found Mr. Gadd's allegations concerning the bailiff
sufficient to allege that the bailiff had seized Mr. Gadd
within the meaning of the Fourth Amendment, as required to
bring a claim for malicious prosecution. (Id. at
7-8.) The District Judge further found the underlying Fourth
Amendment right clearly established at the time and therefore
rejected Officer Campbell's qualified immunity defense.
Mr. Gadd alleges that Officer Campbell intentionally and
knowingly falsified a police report in order to institute
legal process. There is no doubt that Officer Campbell had
sufficient notice under Tenth Circuit precedent that such
conduct was unconstitutional. See Pierce v.
Gilchrist, 359 F.3d 1279, 1298-99 (10th Cir. 2004)
(holding that it was a Fourth Amendment violation to
knowingly or recklessly use false information to institute
legal process). Accordingly, taking the factual allegations
in the complaint in the light most favorable to Mr. Gadd,
Officer Campbell is not protected by qualified immunity and
his motion to dismiss is DENIED.
(Id. at 9.) Finally, the District Judge denied the
motion to dismiss as to South Jordan City, finding as
Mr. Gadd has adequately pleaded that the City has a policy or
custom of quotas that incentivizes officials to issue
citations and prosecute crimes without probable cause. If Mr.
Gadd is able to prove those assertions, the City may be found
liable. Accordingly, Mr. Gadd has adequately stated a claim
against the City and the City's motion to dismiss is
(Id. at 10.)
Campbell immediately appealed the District Judge's denial
of qualified immunity. (Notice of Appeal, ECF No. 30.) On
October 26, 2017, the Tenth Circuit reversed the District
Judge's decision on qualified immunity. Gadd v.
Campbell, 712 Fed.Appx. 796 (10th Cir. 2017)
(unpublished). Specifically, the Tenth Circuit found no
analogous precedent clearly established that Officer
Campbell's alleged conduct violated the Fourth Amendment,
and therefore, qualified immunity protected him from suit.
The Supreme Court, then, has taken a rigorous approach to
requiring prior relevant or controlling precedent that
involves factually analogous situations holding similar
conduct to be unconstitutional before an ...