United States District Court, D. Utah
HARSHAD P. DESAI, Plaintiff,
GARFIELD COUNTY GOVERNMENT, Defendant.
District Judge Jill N. Parrish
REPORT AND RECOMMENDATION TO GRANT DEFENDANT GARFIELD
COUNTY'S 12(b)(6) MOTION TO DISMISS PLAINTIFF'S
AMENDED COMPLAINT (ECF NO. 46) AND ORDER (2) DENYING MOTION
TO LEAVE AMENDED COMPLAINT FILED ON JUNE 11, 2018 (ECF NO.
60) AND (3) DENYING MOTION TO LEAVE CLAIM & RELIEF FILED
ON AUGUST 20, 2018 (ECF NO. 59)
J Furse United States Magistrate Judge
January 9, 2017, pro se Plaintiff Harshad P. Desai, initiated
this case against Garfield County Government (“Garfield
County”) alleging violations of the Civil Rights Act of
1964 (“Title VII”), the Age Discrimination in
Employment Act of 1967 (“ADEA”), and 42 U.S.C.
§§ 1981, 1983, 1985, 1988, 2000e-3, and 2000e-2(j).
(Compl., ECF No. 1.) Mr. Desai based his claims on Garfield
County's failure to hire him for a deputy assessor
position in September 2015. (Compl. 3, 9, ECF No. 1; Attach.
1-3 to Compl., ECF Nos. 1-1-1-3.) After answering the
Complaint, Garfield County moved for judgment on the
pleadings pursuant to Federal Rules of Civil Procedure 12(c)
and 12(h)(2). (Def.'s Mot. & Supporting Mem. for J.
on the Pleadings, ECF No. 9.) In opposing Garfield
County's Motion, Mr. Desai represented to the Court that
this case involves employment discrimination claims only and
that this case and the other he has pending in the District
of Utah relating to his property tax assessments-Desai v.
Garfield County Government, 2:17-cv-1164-DN-EJF (D.
Utah)-are “separate cases with individual identities
and natures.” (Pl.'s Obj. to Def.'s Mot. to
Dismiss the Case, ECF No. 24.)
February 16, 2018, the undersigned issued a Report and
Recommendation recommending that the District Judge grant
Garfield County's Motion and dismiss all of Mr.
Desai's claims. (R. & R. on Def.'s Mot. for J. on
the Pleadings (“R. & R.”), ECF No. 36.) The
Report and Recommendation outlined in detail the many
deficiencies with the Complaint, discussed at length below.
Based on that analysis, the undersigned recommended the
District Judge dismiss Mr. Desai's Title VII, ADEA, 42
U.S.C. §§ 1981, 1983, 1985, 2000e-3, and 2000e-2(j)
claims without prejudice and his § 1988 claim with
prejudice, granting Mr. Desai leave to replead. (Id.
March 30, 2018, the District Judge adopted the Report and
Recommendation in its entirety, including dismissing the
§ 1988 claim with prejudice. (Order Adopting R. & R.
1-2, ECF No. 37.) The District Judge further provided Mr.
Desai until April 27, 2018 to file an amended complaint.
(Id.) When Mr. Desai failed to file an amended
complaint by that date, the District Judge closed the case.
(Order to Close Case, ECF No. 41.) Mr. Desai subsequently
filed a motion to reopen the case, which the District Judge
granted. (Order to Reopen Case & Granting Leave to Amend,
ECF No. 43.) The District Judge also granted Mr. Desai leave
to amend his Complaint, ordered that he file the amended
complaint by July 6, 2018, and instructed Mr. Desai “to
address, if he can, the deficiencies noted in Judge
Furse's Report and Recommendation.” (Id.)
6, 2018, Mr. Desai filed a document entitled “Leave to
Amend the Complaint, ” with attached exhibits. (Leave
to Amend the Compl., ECF No. 44, Exs. 1- 3, ECF Nos.
44-1-44-3, hereinafter “Am. Compl.”) On June 13,
2018, the District Judge entered an order “notif[ying]
Mr. Desai that he need not move for leave to amend, ”
that “[h]e has leave from the court to amend his
complaint, so long as he files it on or before July 6, 2018,
” and denied as moot the request for leave to amend.
(Order Denying as Moot Mot. for Leave to Amend, ECF No. 45.)
Mr. Desai did not file another pleading by July 6, 2018.
out of an abundance of caution, Garfield County interpreted
the “Leave to Amend the Complaint” as Mr.
Desai's Amended Complaint and moved to dismiss it,
arguing that Mr. Desai failed to state a claim upon which the
Court may grant relief. (Def. Garfield Cty.'s 12(b)(6)
Mot. to Dismiss Pl.'s Am. Compl. (“Mot.”),
ECF No. 46.) Garfield County argued that Mr. Desai's
Amended Complaint fails to state plausible claims under Title
VII, the ADEA, §§ 1981, 1983, 1985, and 1988 or
under the newly asserted §§ 1986 and 1987. (See
id.) Mr. Desai filed an Objection to Garfield
County's Motion to Dismiss but did not substantively
respond to any of Garfield County's arguments. (Pl.'s
Obj. to Def. Garfield Cty.'s 12(b)(6) Mot. to Dismiss
Pl.'s Am. Compl., ECF No. 48.)
these filings, Mr. Desai attempted to file a document without
complying with the Federal Rules of Civil Procedure. (ECF No.
53.) The Court ordered that the document entitled
“Leave to Amend Complaint” (ECF No. 44) would
constitute the Amended Complaint and the operative pleading
in this matter given that Garfield County treated it as such
and filed a motion to dismiss it and that the Court would not
consider the August 14, 2018 “addendum” to the
Amended Complaint Mr. Desai filed because he had not obtained
leave of court to amend his complaint. (Order, ECF No. 54.)
Mr. Desai filed two Motions, apparently seeking leave to file
a supplement to his Amended Complaint and to file a separate
“claim for relief.” (Mot. to Leave Am. Compl.
Filed on June 11, 2018 (“Mot. to Leave Am.
Compl.”), ECF No. 60; Mot. to Leave Claim for Relief
Filed on August 20, 2018 (“Mot. to Leave Claim for
Relief”), ECF No. 59.) Mr. Desai stated that he
“moves this court to leave amended complaint filed on
June 11, 2018 and the addendum filed on August 14, 2018
(dated August 13, 2018), ” and attaches a document
called “Motion to Enter Amended Complaint, ” with
exhibits, to his Motion. (Mot. to Leave Am. Compl., ECF No.
60; Mot. to Enter Am. Compl. & Exs. 1-3, ECF Nos.
60-1-60-3.) After addressing the Motion to Dismiss, the Court
will address Mr. Desai's Motion to Leave and the attached
“Motion to Enter Amended Complaint, ” which the
Court interprets as an attempt to supplement his existing
Amended Complaint given that he does not identify the
document he seeks to file as a proposed Second Amended
Complaint, and it contains certain allegations and exhibits
that the existing Amended Complaint does not and vice versa.
Garfield County opposed the Motion to Leave Amended
Complaint, arguing that the proposed amendment “does
not identify any additional factual allegations to support
his claim of discrimination” and points out that the
proposed supplement largely seeks to add facts and claims
relating to Mr. Desai's property tax assessments, which
already form the basis of another case Mr. Desai filed in
this District. (Def. Garfield Cty.'s Opp'n to
Pl.'s Mot. to Enter Am. Compl. 1, 3, ECF No. 62.)
Court held a hearing on the pending Motions. (ECF No. 65.) As
addressed below, having considered Garfield County's
Motion to Dismiss, Mr. Desai's Opposition, Garfield
County's Reply, and the parties' arguments at the
hearing, the undersigned RECOMMENDS the District Judge
DISMISS Mr. Desai's claims against Garfield County with
prejudice. Mr. Desai failed to correct the deficiencies in
his original Complaint that the undersigned outlined at
length in the prior Report and Recommendation. His Amended
Complaint fails to state a plausible claim for employment
discrimination under Title VII, the ADEA or 42 U.S.C.
§§ 1981 and 1983, and in fact, pleads facts
inconsistent with recovery for employment discrimination
based on race, color, national origin, or age. Additionally,
Mr. Desai fails to plead facts showing the existence of a
discriminatory Garfield County policy or custom as required
to state claims against a municipality under 42 U.S.C.
§§ 1981 and 1983, and his purported supplement to
his Amended Complaint indicates he cannot identify any such
policy or custom. Mr. Desai also fails to plead facts
sufficient to maintain claims under 42 U.S.C. §§
1985 and 1986, and cannot state a claim under § 1987
since it does not allow for a private right of action.
the Court DENIES Mr. Desai's requests to supplement his
Amended Complaint with additional filings. The Federal Rules
of Civil Procedure do not permit piecemeal pleading because
it confuses the parties and the Court and makes a meaningful
answer impossible. Each case must have one operative
complaint-not a separate amended complaint, supplement, and
claim for relief. Additionally, Mr. Desai's proposed
supplement to his Amended Complaint pleads facts and claims
that duplicate those made in his other pending case in this
District relating to his property taxes and is futile because
it does not add any facts relating to employment
discrimination that could salvage his claims in this case.
Amended Complaint asserts the following facts:
• Mr. Desai “is brown in skin color, Hindu by
religion, immigrant from India, male” and “>50
in age.” (Am. Compl. 2, ECF No. 44.)
• Mr. Desai “filed with UALD [Utah
Antidiscrimination and Labor Division] to investigate, and
establish the facts.” (Id. at 10.)
• “Garfield County - 5, 000 population in 1990 and
still 5, 000 in 2018. Demography - >80% local whites,
>80% Christians, >80% republicans (majority by
default). Economy - About 85% institutional jobs [City,
County, Law Enforcement (UHP, Sheriff, state prison, etc.),
state. Federal (BLM, National Forest, Post Office, etc.),
hospital owned by the county, etc.).” (Id.)
• “The position was advertised. This was a show.
The person for the position was predetermined[.]”
(Id. at 11.)
• The selection/interviewing committee included the
following four people:
o “(a) Jon Torgersen (Local white, former mayor) - who
had numerous crossings with the plaintiff in the past like
but not limited to incident of > 15 dead rabbits thrown at
the plaintiff (in Panguitch Inn garage). The issue never
resolved but mayor lost sleep over the plaintiff's
persistence on the issue. City police chief (local white,
deceased now) was engaged in grand theft. Initially, the
plaintiff was suspected. The plaintiff struggled to clear his
name thru exposure of the truth.” (Id. at
o “(b) Joseph Thompson (local white, elected county
assessor) - The plaintiff is at crossing for years for
illegal activities in assessor department.”
(Id. at 12.)
o “(c) Trudi Owens (Local white woman, city council
woman) - She closed her doors (as city council woman) for the
plaintiff (for >5 years) as there are numerous issues
(like nails in head) for her. Also, her daughter is director
of Garfield county travel council (> 1 million / year in
income from 12.25% transient tax). The plaintiff is perceived
as thorn in bed for exercising his rights to access public
record, review minutes, etc.” (Id.)
o “(d) Tiffnie Wood (local white woman, assistant clerk
of Garfield County) - The plaintiff is at cross with her for
exercising civil rights (access public records, when
obstructed the plaintiff's citing of Utah codes, etc. Her
question to the plaintiff was - ‘Can you work with
us?' The plaintiff's response was - ‘I worked
>16 years in 4 large corporations. For >20 years, I Am
deal with all kinds of people in motel business. -----------
.'” (Id. at 12-13.)
• “A local white young pregnant woman was hired
(for the position of deputy assessor). The plaintiff saw her
only once. Upon filing with UALD, the new hired
disappeared.” (Id. at 13.)
• Mr. Desai identifies as “politically independent
(unaffiliated).” (Id. at 15.) Mr. Desai
concludes that Garfield County is “engaged in
employment discrimination practice for personal gains,
” (Am. Compl. at 19, ECF No. 44), and that the
County's conduct violates Title VII, the ADEA, and 42
U.S.C. §§ 1981, 1981a, 1983 (apparently premised on
violations of Amendments 1, 5, 6, 7, 9, & 14), 1985,
1987, and 1988. (Id. at 2-9, 19.)
survive a motion to dismiss, 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 Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 547 (2007)).
“‘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). The court need not accept the plaintiff's
conclusory allegations as true. Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). “[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) (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
court construes the filings of a pro se plaintiff liberally
and holds them “to a less stringent standard than
formal pleadings drafted by lawyers, ” Hall,
935 F.2d at 1110, a pro se plaintiff must
“‘follow the same rules of procedure that govern
other litigants.'” Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)
(quoting Nielsen v. Price, 17 F.3d 1276, 1277 (10th
Cir. 1994)). Thus, a pro se “plaintiff still has
‘the burden of alleging sufficient facts on which a
recognized legal claim could be based.'”
Jenkins v. Currier, 514 F.3d 1030, 1032 (10th Cir.
2008) (quoting Hall, 935 F.2d at 1110). While the
court must make some allowances for “the [pro se]
plaintiff's failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements[, ]” Hall, 935 F.2d at 1110,
“the court cannot take on the responsibility of serving
as the litigant's attorney in constructing arguments and
searching the record.” Garrett, 425 F.3d at
840; see also Whitney v. New Mexico, 113 F.3d 1170,
1175 (10th Cir. 1997) (acknowledging court should “not
supply additional factual allegations to round out a [pro se]
plaintiff's complaint or construct a legal theory on a
GARFIELD COUNTY'S MOTION TO DISMISS
Mr. Desai Fails to State a ...