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Desai v. Garfield County Government

United States District Court, D. Utah

January 17, 2019

HARSHAD P. DESAI, Plaintiff,

          District Judge Jill N. Parrish


          Evelyn J Furse United States Magistrate Judge

         On 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.)

         On February 16, 2018, the undersigned[1] 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. at 21.)

         On 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.)

         On June 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.

         Apparently 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.)

         Following 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.)

         Subsequently, 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.)

         The 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.

         Further, 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.


         The 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 11-12.)
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.)


         To 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 679).

         While a 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 plaintiff's behalf”).



         A. Mr. Desai Fails to State a ...

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