Ball et al v. Division of Child and Family Services et al

Filing 53

MEMORANDUM DECISION granting 40 Motion to Dismiss and plaintiffs' claims against these defendants are dismissed with prejudice. So Ordered. Signed by Judge David Sam on 4/19/12. (jmr)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
JAMES BALL and SARAH BALL,
individually and on behalf of
J.B.,
Plaintiffs,

)
)

Case No. 1:11CV00028 DS

)

vs.

)
MEMORANDUM DECISION
)

DIVISION OF CHILD AND FAMILY
SERVICES, DAVIS COUNTY,
MARIBETH MAYFIELD, HEATHER
BAKER, ROSIE HOLMES, DANNY
THOMAS, JOSEPH LEIKER, DEANN
TAYLOR, MARK ROBERTSON, JOANN
CARPER, TEENA CARPER, SCOTT
CARPER, and DOES 1-10,
Defendants.

)
)
)
)
)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
This matter is before the court on the defendants’ Division of
Child

and

Holmes,

Family

Danny

Services

Thomas,

(“DCFS”),

Joseph

Leiker,

Maribeth
DeAnn

Mayfield,

Taylor,

and

Rosie
Mark

Robertson (hereafter collectively “State Defendants”)motion to
dismiss pursuant to Fed.R.Civ.P. 12(c) providing for judgment on
the pleadings. (Doc. # 40) The basis of defendants Division of
Child and Family Services, DeAnn Taylor and Mark Robertson’s motion
to dismiss is the doctrine of sovereign immunity. Each of the
individual State Defendants, Mark Robertson, Maribeth Mayfield,
Rosie Holmes, Danny Thomas, Joseph Leiker, and DeAnn Taylor request

that plaintiffs’ Amended Complaint be dismissed with prejudice
based on the doctrine of qualified immunity.
The court has received and reviewed briefing from all parties
on the State Defendants’ motion to dismiss and is prepared to rule
without the assistance of oral argument.
I.

See DUCivR 7-1(f).

Legal Standard
A motion of judgment on the pleadings is subject to the same

standards as a motion to dismiss under Fed. R. Civ. P. 12(b)(6).
Nelson v. State Farm Mut Auto Ins. Co., 419 F. 3d 1117, 1119 (10th
Cir. 2005).

In Bell Atlantic Corp. V. Twombly, 127 S. Ct. 1955,

1965 (2007), the Court changed the way a motion to dismiss is
analyzed.

Previously, a complaint was sufficient “unless it

appeared without a doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

After Twombly the

complaint must plead sufficient facts, that when take as true,
provide “plausible grounds” that “discovery will reveal evidence”
to support plaintiff’s allegations.

Twombly, 127 S.Ct. at 1965.

The burden is on the plaintiff to frame a “complaint with enough
factual matter (taken as true) to suggest” that he or she is
entitled to relief.

Id.

“Factual allegations must be enough to

raise a right to relief above the speculative level.”

Id.

The

allegations must be enough that, if assumed to be true, the
plaintiff plausibly (not just speculatively) has a claim for
2

relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir.

2008).
In reviewing the Complaint the Court accepts as true all well
pleaded allegations of the complaint and views them in the light
most favorable to the non-moving party. Anderson v. Blake, 469 F.3d
910, 913 (10th Cir. 2006).

Legal conclusions, deductions, and

opinions

are,

couched

presumption.

as

facts

however,

not

given

such

a

Mitchell v. King, 537 F.2d 385 (10th Cir. 1976);

Swanson v. Bixler, 750 F.2d 810 (10th Cir. 1984). Accordingly, given
the State Defendants’ assertion that they accept the facts as plead
in the Amended Complaint, the court will not restate those facts
here but incorporates them by this reference.
II.

Analysis
Turning to the State Defendants’ arguments regarding sovereign

immunity, there is no dispute about the legal standard.
state

agencies,

and

state

officials

acting

in

their

States,
official

capacities are not “persons” acting under color of state law.

And

as such, they are covered by Eleventh Amendment sovereign immunity
which bars claims against these defendants unless the state has
waived that immunity. See Will v. Mich. Dep’t of State Police, 491
U.S. 58, 65-66 (1989). The State of Utah has not waived immunity for
the Plaintiffs’ causes of action. See Utah Code Ann. § 63g-7-101 et
seq. (2010). Plaintiffs did not challenge the dismissal of DCFS

3

based

on

the

doctrine

of

sovereign

immunity.

Accordingly,

plaintiffs’ claims against DCFS are dismissed with prejudice.
The plaintiffs’ First through fifth Causes of Action against
State Officials Mark Robertson and DeAnn Taylor allege failure to
properly supervise, train, and investigate defendants Mayfield,
Baker,

Holmes

and

Leiker;

ratification

of

these

defendants

Mayfield, Baker, Holmes and Leiker’s conduct; and, the policy,
practice, and custom of condoning the conduct of these individual
state defendants acting in their official capacity. Nevertheless,
plaintiffs acknowledge that personal liability under § 1983 cannot
be based on a theory of respondeat superior; rather “under § 1983
{personal liability] must be based on personal involvement in the
alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416,
1423

(10th

Cir.

1997).

And

despite

plaintiffs’

assertion

and

citation to 10th Circuit authority that where an affirmative link
exists between the constitutional deprivation alleged and either the
supervisors’ exercise of control or direction, or their failure to
supervise,

plaintiffs

have

not

plead

facts

which

meet

the

“affirmative link” threshold. To be more specific, as noted by
defendants, “there is not one factual allegation” made against
defendants Robertson and Taylor in the Amended Complaint. See State
Defs. Memo in Support at 3. Accordingly, based on the facts alleged
in the Amended Complaint and the law as stated in J.W. v. State of
Utah, 647 F.3d 1006,1010-12 (10th Cir. 2011), plaintiffs’ claims

4

against Robertson and Taylor in their official capacity are barred
by the doctrine of sovereign immunity.
In addition, even accepting all facts as plead in the Amended
Complaint and construing the plaintiffs’ allegations in the light
most favorable to claimants, the court finds that each of the state
officials acting in their individual capacity are entitled to
qualified immunity with regard to how they acted in pursuit of
obtaining the Removal Order and how they behaved after the order was
issued.
“Qualified immunity is designed to shield public officials from
liability and ensure that erroneous suits do not even go to trial.”
Oliver v. Woods, 209 F.3d 1179, 1185 (10th Cir. 2000). Furthermore,
the Tenth circuit has held that qualified immunity protects “all but
the plainly incompetent or those who knowingly violate the law.”
Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir. 2006). The Supreme
court has given further definition by stating that “[q]ualified
immunity shields an [official from suit when she makes a decision
that, even if constitutionally deficient, reasonably misapprehends
the law governing the circumstances she confronted.” Brosseau v.
Haugen, 543 U.S. 194, 125 S. Ct. 596, 599 (2004). And finally, as
noted by both plaintiffs and defendants in the briefs provided to
the court, qualified immunity may be denied, “only if, on an
objective

basis,

it

is

obvious

that

no

reasonably

competent

[official] would have concluded the actions were constitutional.”

5

Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir. 2006). Accordingly,
with the defendants having asserted immunity, plaintiffs must prove
(1) that the facts alleged make out a violation of a constitutional
right, and/or (2) that a reasonable municipal official would have
known they were violating such a constitutional right. Pearson v.
Callahan, 120 S. Ct. 808, 816 (2009).
Plaintiffs allege “harassing and threatening conduct,” “filing
false reports and lying,” “discrimination” against Mr. Ball because
of suspected Asperger’s Syndrome, and abuse of power and undue delay
in establishing visitation and reunification of the plaintiffs’
family.

These

statements

are,

however,

conclusions

with

insufficient factual support. As stated above, allegations must be
enough that, if assumed to be true, the plaintiffs plausibly (not
just

speculatively)

have

a

claim

for

relief.

See

Robbins

v.

Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). The factual
allegations upon which plaintiffs base their conclusory allegations
involve beginning a child abuse investigation based on the request
of the child’s grandparents; requesting that the parents sign a
safety agreement; presenting options for protection from domestic
violence, and establishing conditions with respect to domestic
violence counseling in order for the child to remain in the home.
These facts as well as the others presented in plaintiffs’
Answer to the motion to dismiss, as opposed to the conclusions
plaintiffs have drawn, resulted in a state court Order of removal

6

to which plaintiffs were parties.1 In addition, even accepting that
the individual defendants made false statements once the removal
proceedings were requested by the grandparents, their actions are
protected. See Cline II v. State of Utah, 2005 UT App 498, ¶ 18,
where the Utah court of Appeals held that even deliberate falsehoods
presented by a state official did not affect application of the
doctrine of qualified immunity where, as here, plaintiffs could have
challenged the allegedly false statements in the state court removal
setting where they were afforded all necessary procedural due
process and were not unconstitutionally deprived of the right of
association.

Nothing

in

9th

the

Circuit

case

presented

by

plaintiffs compels a contrary conclusion.2
In short, the court cannot deduce from the factual statements
in the Amended Complaint that any of the individual defendants
committed a constitutional violation. Furthermore, plaintiffs have
not made a “substantial showing of deliberate falsehood or reckless
disregard for the truth” as required by the Tenth Circuit. See Jones
v.

Thomas,

1992

WL

367908

(10th

Cir.)

(unpublished)(internal

citations omitted).

1

Because the court concludes that the immunity doctrine
clearly precludes this suit against the State and the individual
State Defendants the court will not address the effects of the
Rooker-Feldman doctrine. See PJ ex rel. Jensen v. Wagner, 603 F.3d
1182, 1194 (10th Cir. 2010).
2

Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101,
1109 (9th Cir. 2009).
7

With respect to plaintiffs’ allegation that their subjective
and objective expectation of privacy was violated by the actions of
the State Defendants, neither the recording of their visit with J.B.
nor revelation of the psychological test results to J.B.’s foster
parents created a constitutional violation. In the context of child
abuse investigations, both are reasonable precautions to take.
Plaintiffs’ cited no supporting authority for their proposition that
these actions amounted to constitutional violations while the State
Defendants presented compelling argument and authority justifying
the actions of the State Defendants on both counts.

The court

incorporates pages 5-6 of the State Defendants’ Reply Memo herein
by reference.
Finally, the court notes, as argued by the State Defendants,
that the Utah Governmental Immunity Act requires that when a claim
is

brought

against

a

government

employee

in

their

individual

capacity such a claim must allege that: “the employee acted or
failed to act through fraud or willful misconduct[,]” Utah Code Ann.
§ 63G-7-202(3)(c)(i)(2009).

See State Defendants’ Reply Memo at 8.

“Further, in Thomson v. Salt Lake County, 584 F.3d 1304, 1322-24
(10th Cir. 2009), the Tenth Circuit held that: ‘Under the Utah
Governmental

Immunity

Act,

a

plaintiff’s

claim

against

a

governmental entity or employee is barred by sovereign immunity
unless the plaintiff can demonstrate that the government officials
‘acted or failed to act through fraud or malice.’ Utah Code Ann. §

8

63-304(3)(b)(i)(2003).” Even accepting as true each of plaintiffs
allegations

about

the

harassing,

threatening,

discriminatory

conduct, there is no allegation from which the court can find that
defendants’

conduct

amounted

to

fraud,

malice

or

willful

misconduct.3
Plaintiffs’ claims amount to opinion, conclusory statements,
and subjective beliefs.

Based on all the evidence presented by

plaintiffs, the court finds that the plaintiffs failed to carry
their burden of proving(1) that the facts alleged make out a
violation of a constitutional right, and/or (2) that a reasonable
municipal official would have known they were violating such a
constitutional right. Accordingly, the State Defendants’ motion to

3

The State Defendants assert that plaintiffs have failed to
file a notice of claim with regard to their state law claims, which
is allegedly also fatal to such claims pursuant to Utah Code Ann.
§ 63G-7-402. The court will not address this argument given its
finding that the plaintiffs’ claims are barred by the immunity
doctrine.
9

dismiss pursuant to Fed. R. Civ. P. 12(c) is granted and plaintiffs’
claims against these defendants are dismissed with prejudice.4
SO ORDERED.

DATED this 19th day of April, 2012.
BY THE COURT:

DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT

4

By this reference, the court incorporates the State
Defendants’ arguments and authority contained in the briefing
relating to this motion into this memorandum decision.
10