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Schultz v. Averett

United States District Court, D. Utah, Central Division

August 22, 2018

CHARLES A. SCHULTZ, Plaintiff,
v.
MICHAEL AVERETT, HEATHER BATEMAN, KASEY BATEMAN, JAY BINKERD, JONATHAN BLOTTER, ERIC BUNKER, LYNN CRISLER, LAMBERT DEEGAN, MICHAEL DUGGIN, JOHN GLODOWSKI, DIANE GROASE, DANIEL HARVATH, KIM NORRIS, ED PRESSGROVE, LANCE TURNER, PAM SKINNGER, LYNNE SCHINDURLING, FRANCIS SMITH, GARY WALTON, GARY WEIGHT, and THE TOWN OF DANIEL, Defendants.

          REPORT AND RECOMMENDATION TO GRANT THE DEFENDANTS' MOTION TO DISMISS

          EVELYN J. FURSE, UNITED STATES MAGISTRATE JUDGE.

         District Judge Jill N. Parrish Magistrate Judge Evelyn J. Furse The Defendants Michael Averett, Heather Bateman, Kasey Bateman, Jay Binkerd, Jonathan Blotter, Eric Bunker, Lynn Crisler, Lambert Deegan, Michael Duggin, John Glodowski, Diane Groase, Daniel Harvath, Kim Norris, Ed Pressgrove, Lance Turner, Pam Skinnger, Lynne Schindurling, Francis Smith, Gary Walton, Gary Weight, and the Town of Daniel (collectively, “the Daniel Defendants”) move the Court[1] to dismiss Plaintiff Charles Schultz's Amended Complaint. (Defs.' Mot. to Dismiss & Supp'g Mem. (“Mot.”), ECF No. 33.) The Daniel Defendants ask the Court to dismiss all of the claims in Mr. Schultz's Amended Complaint for failure to state a claim upon which this Court can grant relief. (Id. at vii-xii.)

         In response, Mr. Schultz agreed to voluntarily dismiss his tortious interference with economic relations (tenth cause of action), tortious interference with prospective business relations (eleventh cause of action), intentional infliction of emotional distress (twelfth cause of action), and negligent infliction of emotional distress (thirteenth cause of action) claims against Eric Bunker and Lynne Shindurling because the Governmental Immunity Act shields Mr. Bunker and Ms. Shindurling from suit on these claims. (Mem. in Opp'n to Mot. to Dismiss (“Opp'n”) 20-21, ECF No. 35.) On June 4, 2018, Mr. Schultz filed a notice of voluntary dismissal of his tenth, eleventh, twelfth, and thirteenth causes of action. (Voluntary Dismissal, ECF No. 46.) The Daniel Defendants stated they would stipulate to dismissing the claims with prejudice. (Defs.'s Response to Pl.'s Voluntary Dismissal, ECF No. 47.) Therefore, the undersigned RECOMMENDS the District Judge DISMISS Mr. Schultz's tortious interference with economic relations (tenth cause of action), tortious interference with prospective business relations (eleventh cause of action), intentional infliction of emotional distress (twelfth cause of action), and negligent infliction of emotional distress (thirteenth cause of action) claims against Eric Bunker and Lynne Shindurling with prejudice. See accord S.H. ex rel R.H. v. Utah, 865 P.2d 1363, 1364-65 (Utah 1993) (affirming dismissal with prejudice on the basis of governmental immunity).

         Mr. Schultz also agrees to the dismissal of his tortious interference with prospective business relations (ninth cause of action), intentional infliction of emotional distress (fifteenth cause of action), and negligent infliction of emotional distress (sixteenth cause of action). (Opp'n 21, ECF No. 35.). Therefore, the undersigned RECOMMENDS the District Judge DISMISS Mr. Schultz's ninth, fifteenth, and sixteenth causes of action.

         Regarding the remaining claims, the undersigned carefully considered the parties' briefing, [2] took all factual allegations as true, and RECOMMENDS the District Judge GRANT the Daniel Defendants' Motion and DISMISS the following claims. Specifically, the undersigned RECOMMENDS the District Judge DISMISS: (1) Mr. Schultz's first cause of action for unlawful taking of property under the United States Constitution because he has not sought monetary relief under the Utah Constitution Article I, section 22, (2) Mr. Schultz's second cause of action for unlawful taking under the Utah Constitution because Article I, section 7 does not provide for a takings claim, (3) Mr. Schultz's eighth cause of action for tortious interference with economic relations because he has not alleged that the individual defendants interfered by improper means, and (4) Mr. Schultz's fourteenth cause of action for a violation of Fourteenth Amendment because he has not alleged facts demonstrating the Daniel Defendants acted irrationally and abusively towards him when they did not permit him to build a house on his property. The undersigned further RECOMMENDS the District Judge grant Mr. Schultz fourteen days to file a second amended complaint curing the problems identified regarding the individual defendants and the eighth and fourteenth cause of actions and correct any other aspects Mr. Schultz wishes to correct. The undersigned further RECOMMENDS the District Judge DENY the remainder of the Motion.

         FACTUAL AND PROCEDURAL HISTORY

         The facts from Mr. Schultz's first Complaint have not changed. On September 15, 2016, Mr. Schultz moved the Court to add the Town of Daniel as a defendant after he mistakenly named the Township of Daniel, which is a non-existing entity. (Mot. to Add the Town of Daniel as a Defendant, ECF No. 20.) On September 20, 2017, the District Judge denied the addition of the Town of Daniel to the claims for tortious interference, negligent infliction of emotional distress, intentional infliction of emotional destress, and Utah Code section 17-27a-510, granted Mr. Schultz leave to amend “all other portions of his complaint to substitute ‘the Town of Daniel' for ‘the Township of Daniel.'” (Order Adopting R&R (“Order”), ECF No. 31.) On October 12, 2017, Mr. Schultz filed his Amended Complaint. (Am. Compl., ECF No. 32.) Taking the factual allegations in the Amended Complaint as true, Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), the following facts provide the background for this decision.

         On June 1, 1999, Mr. Schultz purchased a home on 3.71 acres in Wasatch County, Utah. (Am. Compl. ¶ 14, ECF No. 32.) At the time Mr. Schultz purchased the property, Wasatch County had zoned the property residential/agriculture (“RA”). (Id. at ¶ 19.) On May 1, 2002, a fire destroyed Mr. Schultz's property. (Id. at ¶ 18.) In 2002, Wasatch County rezoned Mr. Schultz's property from RA, to residential/agriculture with a five-acre minimum (“RA5”). (Id. at ¶ 33.) Mr. Schultz alleges his home retained its RA designation after the rezoning because Wasatch County grandfathered in his property “as a residential building lot.” (Id. at ¶¶ 34-35.)

         In March 2006, the Town of Daniel filed articles of incorporation with the Wasatch County Recorder. (Id. at ¶ 20.) Mr. Schultz's property sits in the Town of Daniel. (Id. at ¶ 23.) No. one notified Mr. Schultz of the Town of Daniel's incorporation, and he did not know the area became a town until April or May of 2014. (Id. at ¶¶ 24-26.) In 2006 or 2007, the Town of Daniel passed a code that changed Mr. Schultz's property's zoning from RA5 to agriculture. (Id. at ¶¶ 42-43, 50.) The Town of Daniel never informed Mr. Schultz that it rezoned his property. (Id. at ¶ 44.) In fact, Mr. Schultz continued to pay taxes on his property as a residential lot and therefore overpaid his property taxes to the Town of Daniel. (Id. at ¶¶ 45, 52-54.)

         Mr. Schultz first learned the Town of Daniel had changed the zoning of his property in April or May of 2014 while attempting to sell his property. (Id. at ¶ 27.) After experiencing difficulty selling his property, Mr. Schultz contacted the Town of Daniel

who told him a home could not be constructed on his property, because the Town of Daniel had passed Daniel Town Code, Section 8.22.03, that states that Mr. Schultz could not build a new home on his property, because he did not construct a new home on his property, within one year after the home on the property was destroyed by fire, on May 1, 2002, even though the Town of Daniel did not exist until 2006, and did not enact its Town Code until 2006, at the earliest, unless Mr. Schultz could provide the Town of Daniel with a document called a “lot of record.”

(Id. at ¶ 27.) Mr. Schultz alleges multiple representatives from the Town of Daniel “told numerous people who were interested in purchasing Mr. Schultz's property, that they could not build a home on the property.” (Id. at ¶ 31.)

         Between September 15, 2014 and March 10, 2015, Mr. Schultz engaged in multiple attempts to determine whether the Town of Daniel would issue a building permit for his lot. (Id. at ¶¶ 36-40, 47.) On March 10, 2015, Erick Bunker sent Mr. Schultz a letter confirming that the Town of Daniel would not issue a building permit to Mr. Schultz. (Id. at ¶ 47.) On March 30, 2015, Mr. Schultz filed a notice of claim with the Town of Daniel. (Id. at ¶ 57.) Ultimately, Mr. Schultz alleges his “property, under its present zoning, i.e., simply an agriculture lot, is virtually worthless, as no one can build a home on it, and 3.71 acres is not large enough for any type of agriculture use.” (Id. at ¶ 43.)

         LEGAL STANDARD

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege “‘enough facts to state a claim to relief that is plausible on its face.'” Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Twombly, 550 U.S. at 547). “‘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.'” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In reviewing a motion to dismiss, the court accepts as true the well-pled factual allegations and views the allegations in the light most favorable to the plaintiff, drawing all reasonable inferences in the plaintiff's favor. Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013). “[A] plaintiff must offer specific factual allegations to support each claim.” Kan. Penn Gaming, 656 F.3d at 1214 (citing Twombly, 550 U.S. at 555). A complaint survives only if it “‘states a plausible claim for relief, '” though courts recognize that “[t]he nature and specificity of the allegations required to state a plausible claim will vary based on context.” Id. at 1214-15 (quoting Iqbal, 556 U.S. at 679).

         Mr. Schultz proceeds pro se. However, Mr. Schultz is an attorney. (Sept. 15, 2014 Letter from Shultz to Shindurling, Ex. 1, ECF No. 35 at 30.) While courts generally construe pro se pleadings broadly, see Jenkins v. Currier, 514 F.3d 1030, 1032 (10th Cir. 2008), the undersigned does not accord the same leniency to filings from attorneys. See Mann v. Boatright, 477 F.3d 1140, 1148 n.4 (10th Cir. 2007) (declining to construe pro se attorney's pleadings liberally).

         DISCUSSION

         I. THE INDIVIDUAL DEFENDANTS

         The Daniel Defendants argue this Court should dismiss all claims against the individual defendants because Mr. Schultz sued the individual defendants in their official capacities. (Mot. 1-2, ECF No. 33.) The Daniel Defendants contend “only members of the Town's legislative body” have authority to make zoning decisions, and therefore, Mr. Schultz sued the individuals “in their official capacities as members of the Town Council.” (Id. at 1.) As such, this Court should dismiss the suit against the individuals because “[s]uits against individuals in their official capacity are suits against the governmental entity, ” and “when the local governmental entity remains a party defendant, there is no need to bring official-capacity actions against local government officials.” (Id. at 2.)

         Mr. Schultz argues that whether he sued the individuals in their individual capacities or in their official capacities lacks relevance because the individual defendants “are not immune from suit for their violations of the Plaintiff's rights under the Fifth and Fourteenth Amendment[s] to the Constitution of the United States, Article I, Section 7 of the Constitution of Utah, or any provision of the Utah Code.” (Opp'n 2, ECF No. 35.) In his Opposition, Mr. Schultz withdrew all of his claims against Ms. Shindurling-after he conceded the Governmental Immunity Act shielded her suit. (Opp'n 20, 24, ECF No. 35.) Therefore, this argument goes to Michael Averett, Heather Bateman, Kasey Bateman, Jay Binkerd, Jonathan Blotter, Eric Bunker, Lynn Crisler, Michael Duggin, John Glodowski, Diane Grose, Daniel Harvath, Kim Norris, Lance Turner, Pam Skinner, Blaine Smith, Francis Smith, Gary Walton, and Gary Weight. Mr. Schultz names Michael Averett, Jonathan Blotter, Eric Bunker, Lynn Crisler, Michael Duggin, Diane Grose, Daniel Harvath, Francis Smith, and Gary Walton in his first, second, third, fourth, fifth, sixth, and seventh causes of action. Mr. Schultz names those individuals and Heather Bateman, Kasey Bateman, Jay Binkerd, John Glodowski, Kim Norris, Lance Turner, Pam Skinner, Blaine Smith, and Gary Weight in his eighth, ninth, fourteenth, fifteenth, and sixteenth causes of action. Lastly, Mr. Schultz names Eric Bunker in his first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelve, thirteenth, fourteenth, fifteenth, and sixteenth causes of action. The Amended Complaint identifies Lance Turner as the Town of Daniel's Mayor. (Am. Compl. ¶ 32, ECF No. 32.) The Amended Complaint never pleads facts explaining what roles the other individually named defendants held or played. Mr. Schultz merely alleges conclusory statements that they rezoned his property, failed to give him notice of the rezoning, and failed to give notice to Wasatch County of the rezoning, affecting his tax assessment. (Id. ¶¶ 22-196.) The failure to plead any facts by itself makes the Amended Complaint inadequate under Rule 8, which requires that a complaint “explain what each defendant did to him or her; when the defendant did it; how the defendant's action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Particularly in the context of claims against multiple government actors, “the complaint [must] make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations against the [governmental entity].” Kan. Penn Gaming, 1215 (quoting Robbins v. Okla., 519 F.3d 1242, 1249-50 (10th Cir. 2008). Thus, to the extent Mr. Schultz can state a claim against the individuals, he must allege what actions the individuals took or failed to take, and in what capacity they acted, that resulted in him not receiving notice of his property being rezoned or his building permit being denied.

         Therefore, the undersigned RECOMMENDS the District Judge dismiss Mr. Schultz's claims against the individually named defendants for failure to state a claim against them. The undersigned further RECOMMENDS the District Judge give Mr. Schultz fourteen days to amend his Complaint to include more detailed factual pleadings against the individuals. The undersigned notes that the Daniel Defendants initially answered the Complaint without raising this issue. Further, in their opposition to Mr. Schultz's Motion to Add the Town of Daniel, the Daniel Defendants never raised this issue. Under these circumstances, Mr. Schultz should have the opportunity to amend those claims that would not prove futile. See Gee v. Pacheco, 627 F.3d 1178, 1195 (10th Cir. 2010) (holding dismissal with prejudice only appropriate where plaintiff obviously cannot prevail on the facts alleged).

         In making this amendment, Mr. Schultz must bear in mind that to make a claim for financial damages against an individual for federal constitutional violations, a plaintiff must state a claim under 42 U.S.C. § 1983. See Watson v. City of Kan., 857 F.2d 690, 694 (10th Cir. 1988) (holding to state a claim under § 1983, “a plaintiff must allege (1) deprivation of a federal right by (2) a person acting under color of state law”). If Mr. Schultz intends to state a claim against the individuals under § 1983, he should specify whether he does so in their individual or official capacities. “A [§ 1983] suit against a municipality and a suit against a municipal official acting in his or her official capacity are the same.” Watson, 857 F.2d at 695 (citations omitted); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.”). Furthermore, “[b]ecause the real party in interest in an official-capacity suit is the governmental entity and not the named official, ‘the entity's ‘policy or custom' must have played a part in the violation of federal law.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985) (quoting Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 694 (1978))). Conversely, individual capacity suits “seek to impose individual liability upon a government officer for actions taken under color of state law. Thus … ‘it is not enough to show that the official, acting under the color of state law, caused the deprivation of a federal right.'” Hafer, 502 U.S. at 25 (quoting Kentucky v. Graham, 473 U.S. at 166).

         As currently pled, the Amended Complaint focuses on the individual Defendants' actions towards Mr. Schultz and his property (see e.g., Am. Compl. ¶¶ 63-64, 69-70, 76-77, 90-91, 97-98, 104-05, and 116-18), and implicates an official policy.

Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, and injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by that body's officers.

Monell, 436 U.S. at 690. “Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 1359 (2011) (citations omitted). Because the Amended Complaint says nothing about whether the individually named defendants belong to the Town of Daniel's land use board or town council or other legislative body within the Town, the undersigned cannot discern whether the individual defendants' alleged actions constitute official municipal policy and/or individual action.

         Additionally, to the extent Mr. Schultz seeks to sue the individual defendants in their individual capacities under § 1983, he must allege specific facts showing how each individual defendant violated his federal constitutional rights. See Robbins, 519 F.3d at 1249. Conclusory allegations will not suffice. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).

         II. THE CLAIMS

         A. Unlawful Taking of Property in Violation of the United States Constitution and Utah Constitution (First and Second Causes of Action)

         Mr. Schultz alleges the Daniel Defendants unlawfully rezoned his property “to simply an agricultural lot, upon which no home may be constructed, ” unlawfully taking his property in violation of the Fifth and Fourteenth Amendments of the United States Constitution, (Am. Compl. ¶¶ 60-61, ECF No. 32), and Article I, section 7 of the Utah Constitution (id. ¶ 67).

         1. Federal Taking Claim

         “The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment … prohibits the government from taking private property for public use without just compensation.” Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001); see also U.S. CONST. amend. V. The Daniel Defendants argue this Court should dismiss Mr. Schultz's Fifth Amendment claim because Mr. Schultz has not yet pursued an inverse condemnation action under Utah law to obtain just compensation for a taking. (Mot. 2-3, ECF No. 33.) The Daniel Defendants contend “where the state provides a remedy to compensate a landowner for a taking, a federal takings claim cannot be brought until the Plaintiff has been denied just compensation pursuant to the state law scheme.” (Id. at 2.) Mr. Schultz argues he does not need to ...


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