Fuller et al v. Bartholomew et al
MEMORANDUM DECISION AND ORDERgranting 8 Motion to Dismiss for Failure to State a Claim ; granting 8 Motion to Dismiss for Lack of Jurisdiction ; granting 12 Motion to Dismiss for Failure to State a Claim. Signed by Judge Ted Stewart on 10/21/13. (ss)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
DAVID AND RUTH M. FULLER,
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS
BRENT H. BARTHOLOMEW, et al.,
Case No. 2:13-CV-375 TS
This matter is before the Court on two Motions to Dismiss filed by Defendants in this
case. For the reasons discussed below, the Court will grant the Motions.
This case arises out of a dispute that began in Utah state court. Plaintiffs are the
grandparents of certain minor children. In June 2004, Plaintiffs filed a petition in the Fourth
District Juvenile Court alleging that the children’s mother was abusing or neglecting them. In
2005, the parties reached a stipulated agreement which resulted in an Order of Final Disposition.
As part of the Order of Final Disposition, the parties agreed that the minor children would have
no contact with an individual named Kirk Myers or his family. The Order of Final Disposition
allowed for the dismissal of the petition in the juvenile court. Additionally, the Order of Final
Disposition could be enforced by the filing of an Order to Show Cause in the district court by the
Guardian Ad Litem. If the Guardian Ad Litem was no longer representing the children, one of
the parties would be required to petition the court for the appointment of a Guardian Ad Litem.
In June 2011, Plaintiffs filed a Motion for Order to Show Cause Re: Contempt of No
Contact Order in the juvenile court. Plaintiffs sought enforcement of the no contact order,
arguing that the children’s parents should be held in contempt for allowing contact between the
children and Kirk Myers.
The juvenile court found that it lacked jurisdiction to consider the Motion for Order to
Show Cause and transferred the matter to the district court. That issue was appealed to the Utah
Court of Appeals, which upheld the decision of the juvenile court. The Utah Court of Appeals
if Grandparents seek to enforce the provisions of the 2005 order, they must
comply with the terms of the order by either requesting the Guardian Ad Litem to
file an order to show cause or, if no Guardian Ad Litem is currently representing
the children, by petitioning the district court for appointment of a Guardian Ad
Litem. . . . If Grandparents seek to pursue their claim that the no contact
provisions were inappropriately modified or removed by the district court because
Grandparents’ consent was not obtained, that claim must be presented to the
district court where the modification occurred.1
Plaintiffs followed this advice and sought enforcement of the no contact order in the
district court. The district court ultimately ruled that the no contact order was void and
unenforceable, that Plaintiffs had no standing in the underlying divorce action, and that
In re J.F., 264 P.3d 553, 555 (Utah Ct. App. 2011).
domesticating the juvenile court order or assigning a new case number was not legally
appropriate. Plaintiffs appealed the order of the district court, which is currently pending before
the Utah Court of Appeals.
Plaintiffs brought this action against a number of individuals, including state court judges
and commissioners, as well as the Guardian Ad Litem, asserting various claims. At the heart of
Plaintiffs’ claims is their allegation that Defendants conspired together to convince them to settle
the underlying petition through the Order of Final Disposition, which included the no contact
provision. Plaintiffs argue that Defendants “concocted [this] plan” all the while knowing that the
no contact order would not be enforced, to the detriment of Plaintiffs and their grandchildren.2
II. MOTION TO DISMISS STANDARDS
A challenge to subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
may take one of two forms. First, a party may bring a facial attack, which “looks only to the
factual allegations of the complaint in challenging the court’s jurisdiction.”3 Second, a party may
bring a factual attack, which “goes beyond the factual allegations of the complaint and presents
evidence in the form of affidavits or otherwise to challenge the court’s jurisdiction.”4
Where, as here, the challenge is a factual attack, “a district court may not presume the
truthfulness of the complaint’s factual allegations. A court has wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional
Docket No. 1, at 5.
Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 n.1 (10th Cir.
Id. (citation omitted).
facts under Rule 12(b)(1).”5 Such consideration “does not convert the motion to a Rule 56
motion.”6 Rather, a court is only “required to convert a Rule 12(b)(1) motion to dismiss into a
Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the
jurisdictional question is intertwined with the merits of the case.”7
In considering a motion to dismiss for failure to state a claim upon which relief can be
granted under Rule 12(b)(6), all well-pleaded factual allegations, as distinguished from
conclusory allegations, are accepted as true and viewed in the light most favorable to Plaintiff as
the nonmoving party.8 Plaintiff must provide “enough facts to state a claim to relief that is
plausible on its face,”9 which requires “more than an unadorned, the-defendant-unlawfully
“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’”11 “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
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Id. (quoting Twombly, 550 U.S. at 557) (alteration in original).
plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.”12
As the Court in Iqbal stated,
only a complaint that states a plausible claim for relief survives a motion to
dismiss. Determining whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not show[n]—that the pleader is entitled to
Defendants seek dismissal of the claims against them on a number of different grounds.
For the reasons discussed below, the Court agrees that the claims against Defendants must be
Defendants argue that the Court lacks subject matter jurisdiction over Plaintiffs’ claims,
at least to the extent Plaintiffs seek enforcement of the no contact order. Defendants argue that
such claims are barred by either Rooker-Feldman or Younger abstention doctrines.
The Rooker-Feldman14 doctrine “prevents the lower federal courts from exercising
jurisdiction over cases brought by state-court losers challenging state-court judgments rendered
Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
Iqbal, 556 U.S. at 679 (alteration in original) (internal quotation marks and citations
D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263
U.S. 413 (1923).
before the district court proceedings commenced.”15 “This doctrine has a narrow scope,
however, and applies only when a state court judgment is final.”16 As indicated, Plaintiffs’
appeal of the state district court’s decision on the no contact order is currently pending before the
Utah Court of Appeals. Therefore, Plaintiffs’ claims concerning the enforcement of the no
contact order are not barred by Rooker-Feldman because the state court proceedings are not final.
Defendants further argue that Plaintiffs claims are barred by the Younger17 abstention
doctrine. “The Supreme Court has established three factors to be relevant to our decision as to
whether abstention is required under Younger.”18 The Court considers whether: “(1) there is an
ongoing state criminal, civil, or administrative proceeding, (2) the state court provides an
adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings
involve important state interests, matters which traditionally look to state law for their resolution
or implicates separately articulated state policies.”19 “Once these three conditions are met,
Younger abstention is non-discretionary and, absent extraordinary circumstances, a district court
is required to abstain.”20
Lance v. Dennis, 546 U.S. 459, 460 (2006) (per curiam) (internal quotations omitted).
Morkel v. Davis, 513 F. App’x 724, 727 (10th Cir. 2013).
Younger v. Harris, 401 U.S. 37 (1971).
Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir. 2006).
Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir.
2003) (quotation marks and citation omitted).
Considering these factors, the Court finds that it lacks jurisdiction to consider Plaintiffs’
claims to the extent those claims seek enforcement of the no contact order. First, there is an
ongoing state proceeding concerning the no contact order. As stated, Plaintiffs’ appeal of the
district court’s order invalidating the no contact order is pending before the Utah Court of
Appeals. Second, the state court provides an adequate forum to hear the claims related to the
enforceability of a state court order. Third, the state proceedings involve important state interests
as the underlying state case involves both interpretation of state court orders and issues of child
Plaintiffs assert that at least one exception to Younger abstention applies here. There are
three narrow exceptions to Younger abstention: (1) bad faith or harassment, (2) prosecution under
a statute that is flagrantly and patently unconstitutional, or (3) other extraordinary circumstances
that involve irreparable injury.21 Plaintiffs arguments seeking to invoke an exception to Younger
abstention are bound up in their general allegations that Defendants conspired together to nullify
the no contact order. As will be discussed, these allegations are merely conclusory and,
therefore, do not avoid Younger abstention. Therefore, the Court lacks jurisdiction to hear
Plaintiffs’ claims seeking to enforce the no contact order. The Court will, however, consider
Plaintiffs’ claims to the extent they do not seek enforcement of the no contact order.
Younger, 401 U.S. at 50.
Defendants next argue that Plaintiffs lack standing. “To demonstrate standing, a plaintiff
must allege actual or threatened personal injury, fairly traceable to the defendant’s unlawful
conduct and likely to be redressed by a favorable decision of the court.”22
Defendants argue that Plaintiffs lack standing because any injury is traced to the
grandchildren, not Plaintiffs, because it is the grandchildren who have had contact with allegedly
unsavory individuals. However, Defendants ignore that Plaintiffs were the ones who brought the
petition in juvenile court alleging that the children’s mother was abusing or neglecting the
grandchildren. Further, Plaintiffs were among the parties that reached an agreement, including
the no contact order, which resulted in the Order of Final Disposition. Based upon this, the Court
finds that Plaintiffs have sufficiently alleged that they have been harmed by the invalidation of
the no contact order. Therefore, there are sufficient allegations to demonstrate standing.
Defendants Davis, Noonan, and Patton are state court judges who presided over the
various state court proceedings detailed above. Defendants argue that they are entitled to
“A long line of [Supreme Court] precedents acknowledge that, generally, a judge is
immune from a suit for money damages.”23 The same is true for commissioners.24 The Supreme
Foremaster v. City of St. George, 882 F.2d 1485, 1487 (10th Cir. 1989).
Mireles v. Waco, 502 U.S. 9, 9 (1991).
Thomas v. Palacios, 73 F.3d 374, at *1 (10th Cir. 1995) (unpublished) (“Judges and
individuals performing judicial and quasi-judicial functions are entitled to absolute immunity.”).
Court has recognized that “[a]though unfairness and injustice to a litigant may result on occasion,
‘it is a general principle of the highest importance to the proper administration of justice that a
judicial officer . . . shall be free to act upon his own convictions, without apprehension of
personal consequences to himself.’”25
Judicial immunity is not “overcome by allegations of bad faith or malice” or corruption.26
This immunity can be overcome only when a judge either (1) acts outside the judge’s judicial
capacity, or (2) takes judicial action in absence of all jurisdiction.27 Acts outside a judge’s
judicial capacity are those not “normally performed by a judge” or those where a party does not
believe the party is dealing with a judge in the judge’s judicial capacity.28
In this case, Defendants Davis, Noonan, and Patton were all acting in their respective
roles as state court judges and commissioners. Plaintiffs allege that Defendants should not be
entitled to immunity because they acted outside their jurisdiction. However, the allegations to
support this assertion are merely conclusory and need not be accepted. Therefore, the Court finds
that Defendants Davis, Noonan, and Patton are entitled to absolute immunity and the claims
against them will be dismissed.
Mireles, 502 U.S. at 9 (quoting Bradley v. Fisher, 13 Wall. 335, 347 (1872)).
Id. (citing Pierson v. Ray, 386 U.S. 547, 554 (1967)).
Id. at 11-12.
Id. at 12.
GUARDIAN AD LITEM
Defendant Bartholomew is the Guardian Ad Litem who assisted in the development of
the Order of Final Disposition. Defendant Bartholomew argues that he is not a state actor under
42 U.S.C. § 1983 and is entitled to quasi-judicial immunity.
The Tenth Circuit has held that “guardians ad litem are not state actors for purposes of §
1983.”29 Plaintiffs argue that Bartholomew became a state actor when he conspired with the
other Defendants. However, the allegations used to support a conspiracy claim are deficient.
The Tenth Circuit has held that “[w]hen a plaintiff in a § 1983 action attempts to assert the
necessary ‘state action’ by implicating state officials or judges in a conspiracy with private
defendants, mere conclusory allegations with no supporting factual averments are insufficient;
the pleadings must specifically present facts tending to show agreement and concerted action.”30
Because there are no facts to support the alleged conspiracy, the Court will dismiss Plaintiffs’
§ 1983 claims against Bartholomew.
In addition, this Court has held that “[a] guardian ad litem is entitled to absolute
quasi-judicial immunity from suit for conduct within the scope of his or her duties as a guardian
ad litem.”31 Plaintiffs argue that Defendant Bartholomew was acting outside the scope of his
duties and was not advocating on behalf of his clients. However, this argument rests upon
Plaintiffs’ conclusory and unsupported allegations that Defendant Bartholomew conspired with
Morkel v. Davis, 513 F. App’x 724, 730 (10th Cir. 2013).
Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983).
Gallacher v. Kisner, 2009 WL 2058432, at *7 (D. Utah 2009); see also Bolin v. Chavez,
24 F. App’x 936, 940 (10th Cir. 2001).
the other Defendants to nullify the no contact order. Since there are no factual allegations to
support this claim, the Court finds that Defendant Bartholomew is entitled to quasi-judicial
immunity and will dismiss the claims against him.
STATE OF UTAH, FOURTH DISTRICT COURT, AND OFFICE OF THE
GUARDIAN AD LITEM
Defendants State of Utah, Fourth District Court, and Office of the Guardian ad Litem
seek dismissal, arguing that they are not state actors. The Tenth Circuit has held that “[n]either
the state, nor a governmental entity that is an arm of the state for Eleventh Amendment purposes,
nor a state official who acts in his or her official capacity, is a ‘person’ within the meaning of §
Plaintiffs seemingly agree that the State of Utah, the Fourth District Court, and Office of
the Guardian ad Litem are not “persons” for purposes of § 1983. Plaintiffs appear to argue that
the claims against these entities should be construed as claims against the individual Defendants
in their official capacities.
“In Ex parte Young, the Supreme Court carved out an exception to Eleventh Amendment
immunity for suits against state officials seeking to enjoin alleged ongoing violations of federal
law.”33 While “[t]he Ex parte Young doctrine operates as an exception to the general rule of
sovereign immunity that states may only be sued with their consent,” Plaintiffs have not
Harris v. Champion, 51 F.3d 901, 905-06 (10th Cir. 1995).
Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1155 (10th Cir. 2011).
presented sufficient allegations to proceed on this basis.34 Specifically, Plaintiffs have not
alleged an ongoing violation of federal law. Therefore, any claim against Defendants in their
official capacity fails.
In addition, Plaintiffs seek to bring claims against the municipal Defendants under a
theory of respondeat superior. The Supreme Court has limited the liability of municipalities
under § 1983, stating that “a municipality cannot be held liable solely because it employs a
tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory.”35 “Instead . . . [the Court has] required a plaintiff seeking to impose liability on
a municipality to identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.”36
A policy can be based on the decisions of “officials whose acts may fairly be said to be
those of the municipality.”37 However, it is not enough to identify conduct properly attributable
to the municipality.38
The plaintiff must also demonstrate that, through its deliberate conduct, the
municipality was the ‘moving force’ behind the injury alleged. That is, a plaintiff
must show that the municipal action was taken with the requisite degree of
culpability and must demonstrate a direct causal link between the municipal
action and the deprivation of federal rights.39
MCI Telecomms. Corp. v. Pub. Serv. Comm’n of Utah, 216 F.3d 929, 939 (10th Cir.
2000) (citing Ex parte Young, 209 U.S. 123, 159-60 (1908)).
Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).
Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997).
Id. at 403-04.
Id. at 404.
Plaintiffs have made no such showing here. Therefore, the claims against these entities
must be dismissed.
JAY JENSEN AND ACAFS
Defendants Jay Jensen and ACAFS seek dismissal on a number of grounds. Plaintiffs
identify Defendant Jensen as “a practicing custody evaluator and operator of a non-profit service
organization utilized extensively (and sometimes exclusively) by the Fourth District Family
Courts systems for parent-children exchanges and other family legal services in Utah County.”40
Plaintiffs further allege that “Dr. Jensen and ACAFS (Utah Academy) was a provider enjoying
several forms of exclusive use by Commissioner Patton and the Fourth District Court.”41 Though
less than clear, it appears that Dr. Jensen conducted a custody evaluation in the underlying
divorce case. Plaintiffs allege that Dr. Jensen was aware of wrongdoing by certain individuals.
Plaintiffs further allege that Dr. Jensen was part of the conspiracy at issue in their Complaint.
Reviewing these allegations, the Court finds that they fail to state a claim against
Defendant Jensen and ACAFS. While Plaintiffs generally allege that Defendant Jensen was a
part of the conspiracy, this is a conclusory allegation that need not be accepted. There are simply
no allegations that support any cause of action against Jensen and ACAFS. Therefore, they will
Docket No. 1, at 4.
Id. at 5.
It is therefore
ORDERED that Defendants’ Motions to Dismiss (Docket Nos. 8 and 12) are
GRANTED. The Court further finds that allowing amendment would be futile. Therefore, the
Clerk of the Court is directed to close this case forthwith.
DATED October 21, 2013.
BY THE COURT:
United States District Judge
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