United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
N. Parrish United States District Court Judge.
the court is a Motion for Summary Judgment (ECF No. 121),
filed by defendants University of Utah and William McMahon on
April 26, 2018. For the reasons below, that motion is granted
in part and denied in part.
the instant motion was filed, plaintiff Judith
Zimmerman's operative complaint identified six causes of
action: (1) violation of the Utah Protection of Public
Employees Act (“UPPEA”) against the University;
(2) deprivation of Dr. Zimmerman's liberty interest in
violation of 42 U.S.C. § 1983 against the University and
Dr. McMahon; (3) deprivation of Dr. Zimmerman's liberty
interest in violation of the Utah Constitution against the
University; (4) deprivation of Dr. Zimmerman's right to
free speech in violation of the Utah Constitution against the
University; (5) violation of the Rehabilitation Act
(“Rehab Act”) against the University; (6) and
discrimination on the basis of religion in violation of Title
VII of the Civil Rights Act of 1964 against the University.
The defendant's motion urges the court to grant summary
judgment on each of Dr. Zimmerman's claims.
after the defendants filed their motion, Dr. Zimmerman filed
a Motion to Strike Defendants' Motion for Summary
Judgment (ECF No. 124). The court granted that motion in part
and struck portions of the instant motion. See ECF
No. 136. However, the court required Dr. Zimmerman to respond
to the following issues: (1) whether the University and Dr.
McMahon in his official capacity are persons for purposes of
§ 1983; (2) whether the University is immune under the
Eleventh Amendment from claims under the Utah Constitution
and the UPPEA; (3) whether Dr. Zimmerman can sustain her
Rehab Act claim; (4) whether compensatory and punitive
damages are available under the Rehab Act; and (5) whether
Dr. Zimmerman filed a timely undertaking. Id. at 11.
days later, the parties filed a notice with the court
indicating that the defendants were waiving
Eleventh-Amendment immunity with respect to the claims
arising under the Utah Constitution and under the UPPEA. ECF
No. 137 at 2. The notice also indicated that the defendants
withdrew their argument that Dr. Zimmerman failed to file an
undertaking. Id. Then, in Dr. Zimmerman's
response, Dr. Zimmerman consented to dismissal of her Rehab
Act claim and conceded that the University is not a person
subject to liability under § 1983. ECF No. 140 at 2.
the only issue left for the court to decide on the instant
motion is whether Dr. McMahon is subject to liability in his
official capacity under § 1983.
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The movant bears the initial burden of
demonstrating the absence of a genuine dispute of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the movant has met this burden, the burden then
shifts to the nonmoving party to “set forth specific
facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). To do this, the nonmoving party “must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986).
the nonmoving party bears the burden of proof at trial on a
dispositive issue, that party must go “beyond the
pleadings” and “designate specific facts”
so as to “make a showing sufficient to establish the
existence of an essential element to that party's
case.” Celotex, 477 U.S. at 322. “The
plain language of Rule 56(c) mandates the entry of judgment .
. . against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Id. Thus, summary
judgment is not a “disfavored procedural
shortcut” but rather “an integral part of the
Federal Rules as a whole” that is designed “to
secure the just, speedy and inexpensive determination of
every action.” Id. at 327.
Zimmerman's second cause of action alleges deprivation of
her liberty interest in violation of § 1983. That
statute provides, in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage . . . subjects, or causes to be
subjected, any citizen . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and the laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress . . . .
42 U.S.C. § 1983. However, a suit against Dr. McMahon in
his official capacity is not a suit against Dr. McMahon
personally; rather, it is a suit against his office. See
Brandon v. Holt, 469 U.S. 464, 471 (1985). Consequently,
the defendants argue that a suit against Dr. McMahon in his
official capacity is ...