United States District Court, D. Utah, Northern Division
MEMORANDUM DECISION AND ORDER
M. WARNER, CHIEF UNITED STATES MAGISTRATE JUDGE
parties in this case have consented to Chief Magistrate Judge
Paul M. Warner conducting all proceedings, including entry of
final judgment, with appeal to the United States Court of
Appeals for the Tenth Circuit. See 28 U.S.C. §
636(c); Fed.R.Civ.P. 73. Before the court is a motion to
dismiss filed by defendants the Utah Attorney
General's Office (“UAG's Office”) and the
Internet Crimes Against Children Task Force
(“ICAC”) (collectively, the “State
Defendants”). The court has carefully reviewed the
written memoranda submitted by the parties. Pursuant to Civil
Rule 7-1(f) of the Rules of Practice for the United States
District Court for the District of Utah, the court has
concluded that oral argument is not necessary and will decide
the motion on the basis of the written memoranda.
See DUCivR 7-1(f).
Crystal Malmstrom (“Malmstrom”) and Shawn Lay
(“Lay”) (collectively, “Plaintiffs”)
filed their complaint (the “Complaint”) in
January 2018, alleging violation of their constitutional
rights when officials from the UAG's Office detained
Malmstrom in her vehicle and searched her home. Plaintiffs allege
that State Defendants conducted the allegedly unlawful
detainment and search in retaliation for a previous lawsuit
filed by Malmstrom against the State of Utah and the Utah
Division of Child and Family Services. The State
Defendants filed the instant motion to dismiss arguing the
Complaint should be dismissed as to the State Defendants
because they are immune under the Eleventh Amendment, and are
not “persons” within the meaning of 42 U.S.C.
§ 1983 (“Section 1983”). Plaintiffs opposed
the motion to dismiss, and the State Defendants did not file
a reply memorandum.
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, “a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim for relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A court should “assume the
factual allegations are true and ask whether it is plausible
that the plaintiff is entitled to relief.”
Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir.
2009). “The court's function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the
plaintiff's complaint alone is legally sufficient to
state a claim for which relief may be granted.”
Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.
1991). Thus, “the complaint must give the court reason
to believe that this plaintiff has reasonable likelihood of
mustering factual support for these claims.” Ridge
at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177
(10th Cir. 2007) (emphasis omitted). “In evaluating a
Rule 12(b)(6) motion to dismiss, courts may consider not only
the complaint itself, but also attached exhibits, and
documents incorporated into the complaint by
reference.” Smith v. United States, 561 F.3d
1090, 1098 (10th Cir. 2009) (citations omitted).
court is mindful that Plaintiffs are proceeding pro se in
this case and that “[a] pro se litigant's pleadings
are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991); see also Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003)
(“Because [plaintiff] proceeds pro se, we construe his
pleadings liberally.”). At the same time, however, it
is not “the proper function of the district court to
assume the role of advocate for the pro se litigant, ”
Bellmon, 935 F.2d at 1110, and the court “will
not supply additional facts, nor will [it] construct a legal
theory for [a pro se] plaintiff that assumes facts that have
not been pleaded.” Dunn v. White, 880 F.2d
1188, 1197 (10th Cir. 1989) (per curiam). Further,
[t]he broad reading of [a pro se] plaintiff's complaint
does not relieve the plaintiff of the burden of alleging
sufficient facts on which a recognized legal claim could be
based. . . . [C]onclusory allegations without supporting
factual averments are insufficient to state a claim on which
relief can be based. This is so because a pro se plaintiff
requires no special legal training to recount the facts
surrounding his alleged injury, and he must provide such
facts if the court is to determine whether he makes out a
claim on which relief can be granted. Moreover, in analyzing
the sufficiency of the plaintiff's complaint, the court
need accept as true only the plaintiff's well-pleaded
factual contentions, not his conclusory allegations.
Bellmon, 935 F.2d at 1110 (citations omitted).
motion to dismiss argues that the Complaint should be
dismissed as to the State Defendants for two reasons. First,
because the State Defendants are entitled to sovereign
immunity under the Eleventh Amendment to the U.S.
Constitution. And, second, because the State Defendants are
not “persons” as defined by 42 U.S.C. §
Eleventh Amendment Sovereign Immunity
Eleventh Amendment bars actions against states and state
entities in federal court. See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 98 (1984).
“Eleventh Amendment immunity . . . precludes
unconsented suits in federal court against a state and arms
of the state.” Wagoner Cty. Rural Water Dist. No. 2
v. Grand River Dam Auth., 577 F.3d 1255, 1258 (10th Cir.
2009) (citing Steadfast Ins. Co. v. Agric. Ins. Co.,
507 F.3d 1250, 1252-53 (10th Cir. 2007)). The UAG's
Office is an arm of the State of Utah and is thus entitled to
sovereign immunity under the Eleventh Amendment. See
Johnson v. Salt Lake Cmty. Coll., No. 2:11-CV-00231,
2011 WL 2636840, at *2 (D. Utah June 2, 2011), report and
recommendation adopted, No. 2:11-CV-231, 2011 WL 2652368
(D. Utah July 6, 2011) (“As governmental entities of
the State of Utah, defendant Salt Lake Community College and
defendant the Utah Attorney General's Office are entitled
to sovereign immunity under the Eleventh Amendment.”).
Because ICAC is a division of the UAG's Office, it is
subject to the same defenses and immunities as the UAG's
Office, including Eleventh Amendment immunity.
concede that “[t]he State of Utah does have immunity
under the 11th amendment” and that “the scope of
immunity afforded to government employees is governed by
separate rules.” The majority of Plaintiffs' opposition
to the motion to dismiss either reiterates the facts set
forth in the Complaint, or focuses on the actions of the
individual defendants sued in their official capacity.
Plaintiffs do not argue State Defendants have consented to be
sued, nor have they persuaded the court that any exception ...