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Jensen v. Bureau of Criminal Information

United States District Court, D. Utah, Central Division

November 6, 2019

EARLE JENSEN, Plaintiff,
v.
BUREAU OF CRIMINAL INFORMATION, MARCUS YOCKEY and BARRY LAWRENCE, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS, DENYING MOTIONS FOR HEARING, DEFAULT AND SUMMARY JUDGMENT

          DUSTIN B. PEAD UNITED STATES MAGISTRATE JUDGE

         The parties consented to the jurisdiction of the undersigned based upon 28 U.S.C. § 636(c). (ECF No. 9.) Presently before the court are five motions. Defendants have moved to dismiss. (ECF No. 10.) And Plaintiff Earle Jensen, who is acting pro se, has filed two motions for a hearing, (ECF No. 12, ECF No. 20), a Motion for Entry of Default (ECF No. 13) and a Motion for Summary Judgment. (ECF No. 17.) The court has carefully reviewed the memoranda submitted by the parties and relevant case law. After doing so, the court decides that under Local Rule 7-1(f), oral argument is unnecessary and the court will determine the motions on the basis of the written papers. As set forth below, the court will grant the Motion to Dismiss and deny Plaintiff's motions.

         BACKGROUND

         In reviewing a motion to dismiss the court sets forth the facts in a light most favorable to the Plaintiff and here, Plaintiff's pleadings are construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers, because Plaintiff is pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Plaintiff Earle Jensen is a truck driver. While travelling to Canada to pick up a load assignment he was stopped at the border and discovered he had an outstanding criminal record in Utah. Compl. ¶ 2, (ECF No. 2-2.) Mr. Jensen told the border agents he thought the convictions in his criminal record had already been dismissed based on a stipulation he previously signed. Upon returning to Utah, Plaintiff went to the Utah Bureau of Criminal Information[1] (Bureau) and obtained his record. It contained “2 situations, which was the same thing.” Id. at p. 2. Plaintiff started expungement proceedings seeking a certificate of eligibility from the Bureau, but the Bureau informed Plaintiff that he had too many criminal episodes and therefore was not allowed to expunge. See Utah Code Ann. § 77-40-105 Eligibility for expungement of conviction - Requirements.

         After being denied a certificate of eligibility, Plaintiff filed a petition for review with the Utah Third District Court challenging the Bureau's decision. Defendant Judge Barry Lawrence was assigned the petition and Defendant Marcus Yockey, Assistant Utah Attorney General, was assigned to defend the Bureau. Eventually Yockey filed a motion for summary judgment and Judge Lawrence agreed with the Bureau's decision rejecting Plaintiff's assertions that some of the convictions should not have been considered because they were old or from traffic court. Having failed in the petition for review, Plaintiff then filed this suit in Third District Court alleging he has been charged twice for the same situation, “not just one [sic] but 4 times.” (ECF No. 2-2 p. 1.) This has allegedly violated Plaintiff's constitutional rights against double jeopardy and he is seeking “3.7 million dollars” as compensation. In the Complaint, Plaintiff states his “question is why was I charged twice for 3 situations when this is clearly in violation of my civil rights. And I should be entitled to 'JUST COMPENSATION.'” (ECF No. 2-2 p.2.)

         DISCUSSION

         I. Standard of Review

         Defendants move to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).[2] The court construes Defendants motion as a facial attack on the claims as pleaded. Therefore, the court applies the standards that are applicable to a Rule 12(b)(6) motion to dismiss for failure to state a cause of action. See Muscogee (Creek) Nation v. Oklahoma Tax Comm'n, 611 F.3d 1222, 1227 (10th Cir. 2010). In reviewing a 12(b)(6) motion to dismiss, the court views the allegations in the light most favorable to the plaintiff. See Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cri. 2005). The truth of each well-pleaded allegation is presumed and dismissal is proper if the plaintiff fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp v. Twombly, 500 U.S. 544, 570 (2007). Although the truth of all well-pleaded factual allegations is assumed and they are viewed favorably for the plaintiff, mere conclusions and recitation of the elements of a claim may not “raise a right to relief above the speculative level.” Id. at 555.

         “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is insufficient to set forth threadbare recitals of elements, the “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” and a complaint that merely offers “labels and conclusions, ” or “a formulaic recitation of the elements of a cause of action, ” is insufficient. Twombly, 550 U.S. at 555. A complaint must consist of more than an “unadorned, the-defendant-unlawfully-harmed me accusation.” Iqbal, 556 U.S. at 678. In the context of a motion to dismiss, the court “may take notice of may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979).

         II. The Bureau of Criminal Identification is not a suable entity

         Defendants argue Plaintiff cannot sue the Bureau because it is a governmental subdivision and there is no statutory authorization for it to be named as a Defendant. The court agrees.

         Normally governmental subdivisions do not qualify as separate suable entities. See Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985) (dismissing the “City of Denver Police Department” because it is not a separate suable entity); Fail v. W.Valley City, 2006 WL 842910, at *2 (D. Utah Mar. 28, 2006) (noting the West Valley City Police Department is not a separate legal entity from West Valley City and thus could not sue or be sued); Whayne v. State of Kansas, 980 F.Supp. 387, 391 (D.Kan.1997) (subunit of city government is not itself a governmental entity subject to suit); see also Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir.1992) (Sheriff's departments and police departments are not usually considered legal entities subject to suit under § 1983). The Utah state legislature has set forth those governmental entities that can sue or be sued: for example, Utah Code § 10-1-202 provides that municipalities may sue and be sued; § 17-50-302(2)(a)(i) allows counties to sue or be sued; § 17B-1-103(1)(b) permits a local district to sue or be sued; and § 54-1-1 allows people to sue the Public Service Commission. If the Utah legislature wanted to allow individuals to sue the Bureau it would have provided authorization to do so. See, e.g, Sebelius v. Cloer, 569 U.S. 369, 378 (2013) (“We have long held that ‘[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.'”). Thus, the court will dismiss the Bureau because it is not a separate suable entity.

         III. Defendant Marcus Yockey has immunity and will be dismissed

         Defendant Yockey argues he is entitled to absolute immunity and therefore must be dismissed. The Supreme Court has recognized that a “prosecutor is fully protected by absolute immunity when performing the traditional functions of an advocate, see, e.g.,Buckley v. Fitzsimmons, 509 U.S. 259, 273 (2000), but is protected only by qualified immunity when he is not acting as an advocate, as where he functions as a complaining witness in presenting a judge with a complaint and supporting affidavit to establish probable cause for an arrest, seeMalley v. Briggs, 475 U.S. 335, 340-341 (1987).” Kalina v. Fletcher, 522 U.S. 118, 118 (1997). State attorneys and agency officials have also been given absolute immunity from suit for “performing certain functions analogous to those of a prosecutor ….” Butz v. Economou, 438 U.S. 478, 515 (1978). For example, an agency official cannot be sued for deciding to initiate administrative proceedings against an individual or corporation. SeeId. Tenth Circuit courts have consistently applied the general rule that when an attorney acts in their capacity as an advocate for the government they are entitled to immunity. See, e.g.,Christensen v. Ward, 916 F.2d 1462, 1474- 75 (10th Cir. 1990) (dismissing claims of negligence against government attorneys who were performing their job because of immunity); Robinson v. Volkswagenwerk AG, ...


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