United States District Court, D. Utah, Central Division
Benson District Judge
REPORT AND RECOMMENDATION
B. Pead Magistrate Judge
case was referred to the court under 28 U.S.C. §
636(b)(1)(B). (ECF No. 5.) On June 2, 2016, the court granted
pro se Plaintiff Harold Robinson (“Plaintiff”)
leave to proceed in forma pauperis. (ECF No. 2.) Plaintiff
filed the original Complaint (“Complaint”) on
June 2, 2016. (ECF No. 3.) Then on March 3, 2017, Plaintiff
filed a Verified First Amended Complaint (“Amended
Complaint”). The Amended Complaint contains over 140
purported facts and 14 causes of action for alleged
violations of Plaintiff's civil rights, and seeks
declaratory relief, injunctive relief, punitive and
compensatory damages, and attorney fees. (ECF No. 21.)
Further, named in this action as defendants are Tad Mecham
(“Mecham”), Jared Hammon (“Hammon”),
Chad Sheppick, Carlos Braceras, Nick Berrie, Rodney Willis,
Brent Smith, and John/Jane Does 1-100 (referred to
collectively as “Defendants”). Mr. Sheppick and
Mr. Berrie were timely served with a copy of the Complaint.
(ECF Nos. 11 and 9.)
interest is a companion matter, Robinson v. Mecham, et
al., 2:15-CV-738, 2017 WL 353992 (D. Utah 2017)
(“Companion Matter”), wherein the Plaintiff's
wife, Denise Robinson, set forth approximately 15 purported
facts and alleged four (4) causes of actions claiming
Defendants Mecham and Hammon violated her civil rights.
Plaintiff was not a named party in the Companion Matter.
Mecham and Hammom moved to have the Companion Matter
dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Magistrate Judge
Wells issued a Report and Recommendation on July 29, 2016
recommending that matter be dismissed because the claims were
not plausible based upon the surveillance video that captured
the events in question. (See 2:15-CV-738 at ECF No.
32.) Soon thereafter, Judge Waddoups converted the motion to
dismiss into a motion for summary judgment and issued a
Memorandum Decision and Order (“Memorandum
Decision”) affirming Magistrate Judge Wells'
recommendations. (See 2:15-CV-738 at ECF No. 44.)
case is before the court on Defendants' Motion to Dismiss
(“Motion”). (ECF No. 27.) For the reasons set
forth below, this court RECOMMENDS the
District Court DENY Defendants' Motion.
about July 1, 2015, Plaintiff and his wife were traveling
through Kanab, Utah in a tractor trailer combination.
Plaintiff was transporting watermelons from Arizona to a
retailer in Salt Lake City. As they approached the Kanab Port
of Entry, a flashing light and sign ordered Plaintiff to exit
the highway and enter the weigh station. After driving across
the scale, a Port of Entry agent ordered the truck to stop
and for Plaintiff to enter the building with paperwork.
inside the building, Plaintiff engaged in a conversation,
which at times became heated, with Port of Entry agents
Mecham and Hammon about how his truck was 1000 pounds
overweight and how Utah did not grant fuel variances. At some
point during the encounter, Hammon and Plaintiff's wife
each request law enforcement respond to the Port of Entry
office to address their respective complaints about the
other. The office at the Kanab Port of Entry is under video
surveillance and therefore some of the events in question
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“[M]ere labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
suffice; a plaintiff must offer specific factual allegations
to support each claim.” Kan. Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (internal
evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the court may consider the complaint itself along with any
attached exhibits and documents incorporated into it by
reference. Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009) (citing Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).
Where a document is not incorporated by reference, the court
may consider it where the complaint “relies heavily
upon its terms and effect, ” thereby rendering the
document “integral” to the complaint.
Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.
2006) (quoting Chambers v. Time Warner, Inc., 282
F.3d 147, 152-153 (2d Cir. 2002)). However, even when an
exhibit or a document is incorporated or is integral to the
complaint, it must be clear on the record that no dispute
exists regarding the authenticity or accuracy. See
Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).