United States District Court, D. Utah
MEMORANDUM DECISION & ORDER GRANTING DEFENDANT
HOLMAN'S MOTION TO DISMISS AND RULING ON OTHER
WADDOUPS, DISTRICT JUDGE
Holman's Motion to Dismiss, (Doc. No. 61), is at issue
here. Plaintiff responded to the motion. (Doc. Nos. 63, 64,
66, 67, 76, 86, 92, 98, 103, & 105.) Defendant Holman
replied to the responses. (Doc. No. 68.) Having carefully
considered the filings and the law, the Court grants
Defendant Holman's Motion to Dismiss based on the statute
survive a Rule 12(b)(6) motion to dismiss, a complaint must
set forth facts demonstrating a plausible claim for
relief." Defeudis v. Wolfenden, No.
2:13-CV-429-CW, 2013 U.S. Dist. LEXIS 79069, at *2 (D. Utah
June 6, 2014) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). While a court will "presume
the truth of all well-pleaded facts in the complaint,"
it "need not consider conclusory allegations" in
determining whether a claim for relief is plausible.
Defeudis v. Wolfenden, No. 2:13-CV-429-CW, 2013 U.S.
Dist. LEXIS 79069, at *2 (D. Utah June 6, 2014) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). When a plaintiffs claims are time-barred, the
defendant is entitled to dismissal under Rule 12(b)(6).
See Kartiganer v. Juab County, No. 2:10-CV-842-CW,
2012 U.S. Dist. LEXIS 73422, at *4-5 (D. Utah Apr. 6, 2012)
(report and recommendation) (dismissing plaintiffs claims
with prejudice as "time barred by the statute of
limitations"), adopted by 2012 U.S. Dist. LEXIS
73419 (D. Utah May 25, 2012).
Plaintiff proceeds pro se, his pleadings are
'"liberally construed'" and held to a
'"less stringent standard than formal pleadings
drafted by lawyers.'" See Id. at *4-5. But
'"a pro se plaintiff requires no special legal
training to recount the facts surrounding his alleged injury,
'" and must therefore '"provide such facts
if the court is to determine whether he makes out a claim on
which relief can be granted.'" Rudolph v.
Hanson, No. 2:14-cv-883-CW, 2015 U.S. Dist. LEXIS
113125, at *l (D. Utah Aug. 25, 2015) (quoting Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). A court
thus will not '"assume the role of advocate for a
pro se litigant'" by "'supplying]
additional facts" or "constructing] a legal theory
for plaintiff that assumes facts that have not been
pleaded.'" Id. (quoting Dunn v.
White, 880 F.2d 1188, 1197 (10th Cir. 1989)).
asserts that-in July 2003-Defendant Holman, of Utah
Department of Occupational and Professional Licensing (DOPL),
denied him a general-contractor's license. Plaintiff
contends Defendant Holman based the denial on Holman's
statement that "disabled individuals need not be general
contractors." (Doc. No. 64, at 5.) On these allegations,
Plaintiff filed this federal civil-rights action on April 13,
2015. He also argues these facts support a claim under Title
II of the Americans with Disabilities Act (ADA). See
42 U.S.C.S. § 12132 (2019) ("Subject to the
provisions of this title, no qualified individual with a
disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by an such entity.").
Holman challenges Plaintiffs claims under the applicable
statute of limitations. "Generally, a limitation defense
is an affirmative defense and the burden of proof is on the
party asserting it." Larson v. Snow College,
189 F.Supp.2d 1286, 1292 (D. Utah 2000).
§ 1983 and ADA claims "fall under the four-year
statute of limitation period of [Utah Code Ann. §
78B-2-307 (2018)]." Id.; see also Fratus v.
Deland, 49 F.3d 673, 675 (10th Cir. 1995)
("Utah's four-year residual statute of limitations .
. . governs suits brought under [§] 1983."). Such
actions typically accrue on the date of the alleged
violation, see Garza v. Burnett, 672 F.3d 1217, 1219
(10th Cir. 2012), or "when the plaintiff knows or has
reason to know of the injury that is the basis of the
action." Workman v. Jordan, 32 F.3d 475, 482
(10th Cir. 1994). "A plaintiff need not know the full
extent of his injuries before the statute of limitations
begins to run," Industrial Constructors Corp. v.
U.S. Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir.
1994); see also Romero v. lander, 461 Fed.Appx. 661,
669 (2012) (§ 1983 case), and "it is not necessary
that a claimant know all of the evidence ultimately
relied on for the cause of action to accrue." Baker
v. Bd. of Regents of State of Kan., 991 F.2d 628, 632
(10th Cir. 1993) (emphasis in original).
the four-year statute of limitations here, the Court
concludes that Plaintiffs claim against Defendant Holman is
barred as untimely. Plaintiffs claim arises from a single
allegation: Based on disability, Defendant denied Plaintiff a
state general-contractor's license. This occurred and was
known to Plaintiff in July 2003. The statute of limitations
therefore expired in July 2007. This action was not filed
until almost eight years later-on April 13, 2015.
argues statutory and equitable tolling apply. The statutory
tolling that he suggests is based on Utah Code sections that
apply to estates and legal disability. See, e.g.,
Utah Code Ann. §§ 78B-2-223 (2018) ("[Sections
regarding recovery of an estate] "shall not apply to
minors or others under legal disability to sue at the time
when the right of action first accrues."); id.
§ 78B-2-224(2) ("A statute of limitations may not
be applied to a person's ability to bring an action
during a period in which the person is: (1) a minor; or (2)
mentally incompetent."). None of these situations apply
to Plaintiff and he makes no real effort to assert supporting
facts. He does refer to "the doctrine of fraudulent
concealment," (Doc. No. 86, at 2), with no supporting
fact scenario. He also states that real estate "sales
contracts in 2003 were disrupted by Holman's actions in
2003." (Id. at 10.) However, the contracts
involved were "interfered" with in 2003, so that
argument does not help Plaintiff, even if these statutes were
somehow applicable. Moreover, if Plaintiff is asking the
Court to infer "legal disability" from the fact
that he is physically disabled, the Court is unable to do so;
there are no facts or law hinted at to support this.
other equitably based arguments are more creative. For
instance, he alleges, "In July 2003, Wayne Holman's
policy to discriminate against Plaintiffs disability to deny
renewal of his general contracting license has infected every
court proceeding to the present." (Doc. No. 67, at 8.)
He lists a series of hospitalizations and other setbacks,
including financial challenges, his divorce, and criminal
charges and convictions, traces causation for the whole of it
back to the actions of Defendant Holman: "All this
because Wayne Holman does not believe WHEEL CHAIR individuals
should not [sic] be contractors." (Doc. No. 64, at
7-10.) Plaintiff proposes a theory of continuing wrongs be
applied to these circumstances to presumably show that the
statute of limitations has never started on his license
denial. Recently he stated, "Even the University of Utah
Medical Records has joined the conspiracy [that began with
Defendant Holman] as a hostile witness who refuses to produce
medical records." (Doc. No. 105, at 3.) He sums up:
"The conspiracy of Wayne Holman, DOPL and State of Utah
who has used petitioner's illness and disease to
aggravate an assault that has lasted over ten (10)
years." (Id. at 1.) He urges criminal
liability, citing racketeering law, alleging this case
involves a "pattern requir[ing] planned, ongoing,
continuing crime." (Id. 86, at 11.)
conclusory allegations meet the definition of
"frivolous"- they "lack an arguable basis
either in law or in fact." Neitzke v. Williams,
490 U.S. 319, 325 (1989). It is "patently obvious"
that these arguments are irrational and contrived.
McGinnis v. Freudenthal, 426 Fed.Appx. 625, 628
(10th Cir. 2011). The Court therefore rejects them.
short, Plaintiffs § 1983 and ADA claims against
Defendant Holman are barred by the applicable four-year
statute of limitations. So, regardless of whether Plaintiff
can otherwise state a claim upon which relief may be granted,
his claims against Defendant Holman fail.