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Grayeyes v. Nielson

United States District Court, D. Utah, Central Division

September 16, 2018

WILLIE GRAYEYES, an individual, and TERRY WHITEHAT, an individual, Plaintiffs,
v.
JOHN DAVID NIELSON, as Clerk/Auditor of San Juan County, a political subdivision of the state of Utah, Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART [65] SAN JUAN COUNTY DEFENDANTS' MOTION TO DISMISS

          David Nuffer United States District Judge.

         Defendant San Juan County Clerk John Nielson, and former defendants San Juan County Sheriff Deputy Colby Turk and San Juan County Attorney Kendall Laws filed a motion to dismiss (“Motion to Dismiss”).[1] Defendants Colby Turk, Kendall Laws, Wendy Black, and Spencer Cox were subsequently dismissed as parties.[2] Plaintiffs Willie Grayeyes and Terry Whitehat filed a response[3] and the remaining defendant, John Nielson, replied.[4]

         A previously entered Memorandum Decision and Order[5] reserved some issues, but denied the Motion to Dismiss as to “Plaintiffs' failure to sufficiently plead equal protection and due process claims brought under 42 U.S.C. § 1983.”[6] Defendant Nielson's Reply states that his motion to dismiss the following claims remains at issue:

1) Plaintiffs' First Cause of Action and claims under 42 U.S.C. §§ 1981, 1985, and 1988, and 52 U.S.C. § 10502;
2) Plaintiffs' Second Cause of Action and right to travel claim under 42 U.S.C. § 1983; and
3) Plaintiffs' Fourth Cause of Action seeking review of Defendant Nielson's residency decision.[7]

         STANDARD

         Under Federal Rule of Civil Procedure 12(b)(6), a party may move for dismissal of a complaint for “failure to state a claim upon which relief can be granted.”[8] Dismissal under Rule 12(b)(6) is appropriate when the complaint, standing alone, is legally insufficient to state a claim for which relief may be granted.[9] In making this determination, courts “liberally construe the pleadings and make all reasonable inferences in favor of the non-moving party.”[10] “[G]ranting a motion to dismiss is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice. Thus, a well- pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.”[11]

         DISCUSSION

         The First Cause of Action must be dismissed in light of the Lieutenant Governor's dismissal as a party.

         Plaintiffs' First Cause of Action is a facial challenge to various provisions of the Utah Election Code against Lt. Governor Spencer Cox.[12] The Lt. Governor has been dismissed as a Defendant in case, [13] as a result, any claims directly asserted against him must also be dismissed.

         The Complaint fails to state a valid claim under 42 U.S.C. § 1981, 42 U.S.C. § 1988, and 52 U.S.C. § 10502, but adequately pleads a claim under 42 U.S.C. § 1985.

         The Complaint alleges violations of Plaintiffs' constitutional rights to vote, to free speech, to run for elected office, and to vote for candidates of choice under 42 U.S.C. §§ 1981, 1985, 1988, and 52 U.S.C. § 10502.[14] In a footnote to the Motion to Dismiss, [15] Defendant Nielson argues that these claims are inadequately pleaded. Except to generally state that the Complaint asserts violations of Plaintiffs' constitutional rights under these statutory provisions, [16] Plaintiffs did not respond to the footnote. In his reply, Defendant Nielson reasserted that Plaintiffs' claims under 42 U.S.C. §§ 1981, 1985, 1988, and 52 U.S.C. § 10502 are inadequately pleaded.[17]

         The Complaint fails to state a claim under 42 U.S.C. § 1981.[18] “Section 1981 prohibits discrimination against protected classes while their members engage in protected activities.”[19]“[T]o establish a prima facie case of discrimination under § 1981, the plaintiff must show: (1) that the plaintiff is a member of a protected class; (2) that the defendant had the intent to discriminate on the basis of race; and (3) that the discrimination interfered with a protected activity as defined in § 1981.”[20] The Complaint includes allegations that Plaintiff Grayeyes is a member of a protected class[21] and that Defendant Nielson discriminated against him on the basis of race.[22] However, the Complaint does not include factual allegations to suggest that racial discrimination interfered with a protected activity under Section 1981.[23] “Section 1981 is not confined to contractual matters, though it is most often invoked in that context. It deals with the protection of a limited range of civil rights, including the right to make and enforce contracts, to sue, and to give evidence.”[24] Accordingly, Plaintiffs' claims under Section 1981 are inadequately pleaded.

         The Complaint also fails to state a valid claim under 42 U.S.C. § 1988. Section 1988 “does not create independent causes of action, it simply defines procedures under which remedies may be sought in civil rights actions.”[25] Any claims asserted under Section 1988 are therefore dismissed.

         The Complaint fails to state a claim under 52 U.S.C. § 10502. This statute relates to the durational residency requirements for presidential and vice-presidential elections.[26] The Complaint includes allegations regarding the residency requirements for local elections.[27] On its face, 52 U.S.C. § 10502 does not relate to residency requirements for location elections and the Complaint concedes that “durational residency requirements for candidates, in some instances, may serve a legitimate governmental purpose . . . .[28] More importantly, any allegations in the Complaint regarding residency requirements were made in connection to Plaintiffs' First Cause of Action. As previously discussed, Plaintiffs' First Cause of Action was directed against the Lt. Governor and must be dismissed. Therefore, any claims asserted pursuant to 52 U.S.C. § 10502 must also be dismissed for failure to state a claim for which relief can be granted.

         Finally, Plaintiffs adequately pleaded a claim under 42 U.S.C. § 1985. “Section 1985(3) provides for recovery of damages by a party who is injured as a result of a conspiracy to deprive any person equal protection of the laws.”[29]

To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States.[30]

         Plaintiffs' claims under 42 U.S.C. § 1985 allege a conspiracy to interfere with Plaintiff Grayeyes's right to vote and run for office and provide sufficient allegations of a “racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirator's action.”[31] The Complaint includes allegations that Defendant Nielson conspired with Wendy Black, Kendall Laws, and others to deprive him of his right to vote and run for county commissioner. Defendant Nielson is the only remaining defendant in the case; however, Section 1985 does not require that all conspirators be named as a defendant to an action. It only requires that a named defendant has engaged in a conspiracy with another individual to violate plaintiff's constitutional rights. Based upon the Complaint alone and making all reasonable inferences in Plaintiffs' favor, Plaintiffs have sufficiently pleaded a claim under 42 U.S.C. § 1985.

         The Second Cause of Action adequately states a claim for right to travel..

         Plaintiffs' Second Cause of Action claims that “San Juan County defendants . . . violated Greyeyes's right to travel as that right is vouchsafed to him under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.”[32] “The right of interstate travel has repeatedly been recognized as a basic constitutional freedom.”[33] Defendant Nielson asserts that the right to travel is distinguishable from an individual's movement and protects an individual's ability “to migrate.”[34] However, the right to travel encompasses more than an individual's ability to migrate. “It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily preset in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.”[35]

         The Complaint contains sufficient factual allegations with respect to the first prong-the right of a citizen of one State to enter and to leave another State. Plaintiffs alleged that Plaintiff Greyeyes's work and responsibilities as an official in the Navajo nation required him to travel back and forth from Utah to Arizona.[36] Plaintiffs further allege that Defendant Nielson penalized Plaintiff Grayeyes for traveling outside the State of Utah by construing and applying the Utah Election Code in a manner that resulted in the wrongful rescission of his right to vote and ability to run for county commissioner.[37]

         Whether Plaintiffs' claim ultimately prevails as an as-applied challenge to provisions of the Utah Election Code under 42 U.S.C. § 1983 is yet to be determined and not an appropriate inquiry for a Rule 12(b)(6) motion.[38] Plaintiffs have made sufficient allegations to plead a right to travel claim.

         The Fourth Cause of Action inappropriately seeks appellate review of Defendant Nielson's decision regarding ...


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