United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER ORDER ADOPTING REPORT
AND RECOMMENDATION AND DISMISSING CASE WITH
N. PARRISH UNITED STATES DISTRICT COURT JUDGE.
plaintiff Wendy Jo Romero, proceeding in forma pauperis
(“IFP”), initiated this action against Utah's
Office of Recovery Services (“ORS”) and several of
its employees on January 21, 2016. (ECF No. 3). As required
by the IFP statute, Magistrate Judge Warner screened the
complaint and issued an order on September 16, 2016, finding
that it failed to state a claim upon which relief can be
granted. (ECF No. 9). He also granted Ms. Romero leave to
amend to address the deficiencies identified in that order.
October 14, 2016, Ms. Romero filed her amended complaint.
(ECF No. 10). On October 14, 2018, Magistrate Judge Warner
issued a Report and Recommendation that Ms. Romero's
amended complaint be dismissed with prejudice on grounds that
it again failed to state a claim upon which relief can be
granted. (ECF No. 11). Ms. Romero filed a timely objection to
that Report and Recommendation, (ECF No. 13), and as a
result, the court “must determine de novo”
whether her objections have merit. Fed R. Civ. P. 72(b)(3).
screening an IFP complaint, “the court shall dismiss
the case at any time if the court determines that . . . the
action or appeal . . . fails to state a claim on which relief
may be granted[.]” 28 U.S.C. § 1915(e)(2)(B)(ii).
“A court reviewing the sufficiency of a complaint
presumes all of [the] plaintiff's factual allegations are
true and construes them in the light most favorable to the
plaintiff.” Hall v. Bellmon, 935 F.2d 1106,
1109 (10th Cir. 1991). Legal conclusions “are not
entitled to the assumption of truth” but “must be
supported by factual allegations.” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). Although detailed
factual allegations are not required, “a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. at 678 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible when the plaintiff has pleaded “factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
Romero does not object to a specific portion of Magistrate
Judge Warner's Report and Recommendation. Rather, she
asserts that her complaint generally states a claim for
relief, directing the court to review “pages 2 thru
27” for “the listed events” that give rise
to her claim.She also restates her allegations that
“ORS (defendant) thru employees has chosen to show
unfair, discrimination, improper actions, to the plaintiff,
for many years[.]”
more confusion to Ms. Romero's objection to dismissal,
however, is that she also requests the “transfer of
this case to a lower court (Third District Court)[.]”
Of course, having originated in this court, there is no
mechanism by which her case may be transferred to a state
forum. However, to the extent that this order is not found to
have preclusive effect by Utah's Third District Court,
she remains free to initiate an action in that forum.
address Ms. Romero's broad objection to the Report and
Recommendation, the court conducts a brief review thereof.
Judge Warner construed Ms. Romero's complaint to allege
claims against ORS and its employees under 42 U.S.C.
§§ 1983 and 1985 for religious and gender
discrimination. Magistrate Judge Warner analyzed the
viability of the claims against the employees in their
individual and official capacities. As to claims against ORS
(an arm of the state of Utah) as well as claims against ORS
employees in their official capacities (functionally suits
against ORS), Magistrate Judge Warner found that Ms.
Romero's complaint was barred by sovereign immunity,
given that she seeks money damages. And even if Utah elected
to waive its immunity, the Supreme Court has made clear that
the 42d Congress, in enacting the Civil Rights Act of
1871-which created the enforcement provisions of §§
1983 and 1985-did not include states within the definition of
“persons” liable under these provisions. See
Will v. Mich. Dep't of State Police, 491 U.S. 58, 71
Judge Warner further found that to the extent Ms. Romero
intended to sue ORS employees in their individual capacities,
those employees enjoy qualified immunity. Conducting a
qualified immunity analysis, Magistrate Judge Warner found
that that the facts in the complaint, accepted as true, did
not establish a constitutional violation because
“[w]hile Plaintiff recites many facts about the
handling of her case by ORS and the Individual Defendants,
she makes no connection between those facts and her religious
affiliation.” He concluded that, aside from conclusory
statements that Ms. Romero experienced discrimination, the
complaint contained insufficient factual allegations to
support her claim for relief.
because Ms. Romero had already been given leave to amend to
attempt to state a cognizable claim, Magistrate Judge Warner
concluded that the amended complaint should be dismissed with
reviewed the applicable law and Ms. Romero's amended
complaint de novo, the court agrees with Magistrate Judge
Warner that, for the reasons above, that complaint fails to
state a claim upon which relief can be granted. The court
further finds that in light of Ms. Romero's failure to
address the legal and factual ...