Lucero et al v. Weber County Utah et al

Filing 33

MEMORANDUM DECISION and ORDER granting 18 Motion to Dismiss for Failure to State a Claim; granting 20 Motion to Dismiss for Failure to State a Claim. The hearing set for December 1, 2014, is stricken. Signed by Judge Ted Stewart on 10/27/2014. (blh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ANTHONY LUCERO, CHASE
AESCHILMANN, JAMES RIVAS, TROY
RIVERA, JUAN SAUCEDO, BRIAN
BUTLER & OTHERS SIMILARLY
SITUATED,

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS

Plaintiffs,
v.
WEBER COUNTY UTAH, OGDEN CITY,
OGDEN CITY POLICE DEPARTMENT,
DEE SMITH in his official capacity,
OFFICER ANTHONY POWERS, & JOHN
DOES 1-30,

Case No. 1:14-CV-68 TS
District Judge Ted Stewart

Defendants.

This matter is before the Court on a Motion to Dismiss filed by Ogden City, the Ogden
City Police Department, and Officer Anthony Powers (collectively, the “Ogden City
Defendants”) and a Motion to Dismiss filed by Weber County and Dee Smith (collectively, the
“Weber County Defendants”). For the reasons discussed below, the Court will grant
Defendants’ Motions.
I. BACKGROUND
Weber County obtained a civil nuisance injunction against the Ogden Trece gang and its
members pursuant Utah Code Ann. § 76-10-806. The injunction, among other things, prohibits
Trece members who have been served with a copy of it from associating with one another;
confronting, intimidating, annoying, harassing, threatening, challenging, provoking, or assaulting
any person known to be a witness or victim of any activity of Trece; possessing a firearm in

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public or any place accessible to the public; or violating an 11 p.m. to 5 a.m. curfew. The
injunction applies to a twenty-five square-mile “Safety Zone” encompassing nearly the entire
city of Ogden.
Plaintiffs are individuals who claim that they are not Ogden Trece members, but have
either been served with or otherwise affected by the injunction. Plaintiffs assert claims under
both the United States and Utah constitutions, as well as various state-law claims.
II. MOTION TO DISMISS STANDARD
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 Plaintiffs as
the nonmoving party. 1 Plaintiffs must provide “enough facts to state a claim to relief that is
plausible on its face,” 2 which requires “more than an unadorned, the-defendant-unlawfully
harmed-me accusation.” 3 “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.’” 4

1

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.

2

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007).

3

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

4

Id. (quoting Twombly, 550 U.S. at 557) (alteration in original).

1997).

2

“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.” 5 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 shown—that the pleader is entitled to
relief. 6
III. DISCUSSION
A.

OGDEN CITY POLICE DEPARTMENT
Defendants argue that the Ogden City Police Department is not an entity amenable to suit

under 42 U.S.C. § 1983 and should be dismissed.
“Sheriff’s departments and police departments are not usually considered legal entities
subject to suit.” 7 In Martinez v. Winder, the Tenth Circuit found that the City of Denver Police
Department was not a separate suable entity. 8 In addition, this Court has repeatedly held that
police departments are not separate legal entities amendable to suit. 9
Capacity to be sued is determined based upon state law. 10 Thus, if the Ogden City Police
Department has the capacity to sue or be sued under Utah law, it is a legal entity subject to suit
5

Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

6

Iqbal, 556 U.S. at 679 (internal quotation marks and citations omitted).

7

Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992).

8

771 F.2d 424, 444 (10th Cir. 1985).

9

See Fail v. W. Valley City, No. 2:04-CV-1094 PGC, 2006 WL 842910, at *2 (D. Utah
Mar. 28, 2006).
10

Dean, 951 F.2d at 1214.
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and a “person” for purposes of § 1983. 11 Plaintiffs have provided nothing that would suggest
that the Ogden City Police Department has the capacity to sue or be sued under Utah law. There
are provisions of Utah law making clear that counties and other municipalities can sue and be
sued. 12 However, Plaintiffs have failed to point to anything that would support the notion that
the police department may sue or be sued under Utah law.
Plaintiffs refer to the Governmental Immunity Act of Utah, which defines “political
subdivision” as “any county, city, town, school district, community development and renewal
agency, special improvement or taxing district, local district, special service district, an entity
created by an interlocal agreement adopted under Title 11, Chapter 13, Interlocal Cooperation
Act, or other governmental subdivision or public corporation.” 13 Plaintiffs argue that since
police departments are not listed in the definition of “political subdivision” they are amenable to
suit. However, whether a police department is a “political subdivision” of the state under the
Governmental Immunity Act of Utah is not the relevant inquiry. As stated, the Court must
consider whether Utah law permits police departments to sue or be sued.
Plaintiffs point to out-of-circuit decisions that have held that police departments are
suable entities for purposes of § 1983. 14 However, in each of those cases the court was applying
California law. As stated, the Court must apply Utah law and Plaintiffs have pointed to nothing

11

Buchanan v. City of Kenosha, 57 F. Supp. 2d 675, 678 (D. Wis. 1999).

12

Utah Code Ann. § 10-1-202 (stating that municipalities may sue and be sued); id. § 1750-302(2)(a)(i) (stating that counties may sue and be sued).
13

Id. § 63G-7-102(7).

14

Streit v. Cnty. of L.A., 236 F.3d 552, 565 (9th Cir. 2001); Karim-Panahi v. L.A. Police
Dep’t, 839 F.2d 621, 624 n.2 (9th Cir. 1988); Shaw v. Cal. Dep’t of Alcoholic Beverage Control,
788 F.2d 600, 605 (9th Cir. 1986).

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in Utah law that would indicate that police departments are amenable to suit. Therefore, the
Court will dismiss Plaintiffs’ claims against the Ogden City Police Department.
B.

OGDEN CITY AND WEBER COUNTY
Plaintiffs assert claims against both Ogden City and Weber County. “To establish a

claim for damages under § 1983 against municipal entities or local government bodies, the
plaintiff must prove (1) the entity executed a policy or custom (2) that caused the plaintiff to
suffer deprivation of constitutional or other federal rights.” 15
Plaintiffs must show the existence of an official policy or custom “to distinguish acts of
the municipality from acts of employees of the municipality.” 16 Municipal policies or customs
include the following:
(1) a formal regulation or policy statement; (2) an informal custom amounting to a
widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well settled as to constitute a custom or
usage with the force of law; (3) the decisions of employees with final
policymaking authority; (4) the ratification of such final policymakers of the
decisions—and the basis for them—of subordinates to whom authority was
delegated subject to these policymakers’ review and approval; or (5) the failure to
adequately train or supervise employees, so long as that failure results from
deliberate indifference to the injuries that may be caused. 17
Plaintiffs argue that they “had their freedom of association rights trampled, their freedom
of religion trampled, the right to possess firearms was trampled, their right to consume alcohol if
they were of legal drinking age with no restrictions was trampled, [and] they were subjected to

15

Moss v. Kopp, 559 F.3d 1155, 1168 (10th Cir. 2009).

16

Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986).

17

Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (quoting BrammerHoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189–90 (10th Cir. 2010)) (internal
quotation marks and alteration omitted).

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an unconstitutional curfew.” 18 While Plaintiffs have alleged that they suffered a deprivation of
their constitutional rights, they have failed to sufficiently allege that the municipal Defendants
executed a policy or custom that caused the deprivation. Without more, Plaintiffs’ claims against
Ogden City and Weber County fail. Therefore, the Court will dismiss Plaintiffs’ claims against
Ogden City and Weber County without prejudice.
C.

OFFICER ANTHONY POWERS
Plaintiffs alleged that Officer Anthony powers is an employee “of the Ogden

Police Department who played a key and integrated role in bringing the initial action against
the now Plaintiffs.” 19 Though far from clear, it appears that Plaintiffs are asserting claims
against Defendant Powers based on testimony he provided at the hearings that ultimately resulted
in the issuance of the injunction. 20 Defendants argue that Defendant Powers is immune from
suit.
Because of the dearth of allegations against Defendant Powers, it is difficult to address
the claims against him. If Defendant Powers merely testified at the hearings, then he would be
entitled to absolute immunity. 21 If, however, Defendant Powers was a complaining witness, he
would not be entitled to absolute immunity, only qualified immunity. 22 A complaining witness
is one who “set[s] the wheels of government in motion by instigating a legal action.” 23
18

Docket No. 26, at 6–7; Docket No. 29, at 5.

19

Docket No. 3 ¶ 15.

20

See Docket No. 3 Ex. B; Docket No. 19 Ex. 4 (“During the multiple hearings, Officer
Powers testified in the hearings, making numerous allegations about alleged gang activity.”).
21

Briscoe v. LaHue, 460 U.S. 325, 345–46 (1983).

22

Malley v. Briggs, 475 U.S. 335, 340 (1986).

23

Wyatt v. Cole, 504 U.S. 158, 164–65 (1992).
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A complaining witness may be entitled to qualified immunity. 24 Qualified immunity
protects officials “from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” 25 Once the qualified immunity defense is asserted, the plaintiff “bears a heavy two-part
burden” to show, first, “the defendant’s actions violated a constitutional or statutory right,” and,
second, that the right was “clearly established at the time of the conduct at issue.” 26 In this case,
Plaintiffs have failed to sufficiently allege that Defendant Powers violated a clearly established
constitutional or statutory right when he testified during the state court proceedings. Therefore,
he is entitled to qualified immunity as to these claims.
D.

DEE SMITH
Defendant Dee Smith is the Weber County Attorney. Plaintiffs allege that “Defendant

Smith inserted himself into the actions of serving the Injunction.” 27 Plaintiffs bring claims
against Defendant Smith in his official capacity.
Plaintiffs’ claims for monetary damages against Defendant Smith in his official capacity
are barred. “Neither states nor state officers sued in their official capacity are ‘persons’ subject
to suit under section 1983.” 28 However, state officers sued in their individual capacities “are

24

Malley, 475 U.S. at 340–43.

25

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

26

Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008) (internal quotation marks

omitted).
27

Docket No. 3 ¶ 21.

28

Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994) (citing Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 70–71 (1989)).

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‘persons’ subject to suit under section 1983.” 29 Therefore, while Plaintiffs appear to assert only
claims for money damages against Defendant Smith in his official capacity, the Court will
consider Plaintiffs claims against Defendant Smith as if they were brought against him in his
individual capacity.
Defendants argue that Defendant Smith is either entitled to absolute prosecutorial
immunity, quasi-judicial immunity, or qualified immunity.
Plaintiffs’ claims against Defendant Smith are unclear. To the extent that Plaintiffs are
bringing claims against Defendant Smith based on his participation in the proceedings that
resulted in the issuance of the injunction, Defendant Smith would be entitled to absolute
prosecutorial immunity. The Tenth Circuit has held that “a prosecutor’s activities related to
initiating and pursuing a criminal prosecution and presenting the state’s case at trial are
absolutely immune from liability.” 30 “A prosecutor’s participation in a probable cause hearing
and his presentation of evidence in support of a search warrant are therefore subject to absolute
immunity. A prosecutor’s statements in the courtroom and in pleadings that are relevant to the
subject matter of the proceeding are likewise absolutely immune.” 31 Thus, if Plaintiffs are
asserting claims against Defendant Smith based on his in-court efforts to obtain the injunction,
Defendant Smith is entitled to absolute immunity.
The only specific allegation against Defendant Smith is that he was involved in serving
the injunction. “[O]fficial[s] charged with the duty of executing a facially valid court order
enjoy [ ] absolute immunity from liability for damages in a suit challenging conduct prescribed
29

Id.

30

Glaser v. City & Cnty. of Denver, Colo., 557 F. App’x 689, 704 (10th Cir. 2014).

31

Id.

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by that order.” 32 “[F]or the defendant state official to be entitled to quasi-judicial immunity, the
judge issuing the disputed order must be immune from liability in his or her own right, the
officials executing the order must act within the scope of their own jurisdiction, and the officials
must only act as prescribed by the order in question.” 33 Plaintiffs appear to argue that Defendant
Smith was acting outside of the scope of his jurisdiction by serving the injunction. However,
Plaintiffs have pointed to nothing that would suggest Defendant Smith did not have the authority
to serve a properly issued court order. Therefore, Defendant Smith is entitled to quasi-judicial
immunity with respect to Plaintiffs’ claims concerning service of the injunction.
Even if Defendant Smith was not entitled to either absolute prosecutorial immunity or
quasi-judicial immunity he would be entitled to qualified immunity. Plaintiffs have provided
insufficient allegations from which the Court could find that obtaining and serving an injunction
would violate a clearly established constitutional or statutory right. Therefore, Plaintiffs’ claims
against Defendant Smith must be dismissed.
E.

STATE-LAW CLAIMS
Plaintiffs bring various state-law claims, including several claims under the Utah

Constitution. Plaintiffs do not oppose Defendants’ Motions as they relate to their state common
law claims. Therefore, Plaintiffs’ claims for defamation, intentional infliction of emotional
distress, and negligent hiring, supervision, and retention will be dismissed with prejudice.

32

Moss, 559 F.3d at 1163 (second and third alterations in original)

33

Id.

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Under United Mine Workers v. Gibbs, 34 “a federal court can retain jurisdiction following
dismissal of all federal claims if the remaining state claims derive from the same common
nucleus of operative facts and a plaintiff would ordinarily be expected to try all of them in one
proceeding.” 35 However, “[e]ven where a ‘common nucleus of operative fact’ exists, federal
jurisdiction is not mandatory over pendent claims or parties.” 36 Federal district courts may
decline supplemental jurisdiction in certain situations, including when “the claim raises a novel
or complex issue of State law, [or] . . . the claim substantially predominates over the claim or
claims over which the district court has original jurisdiction.” 37 “[T]he Supreme Court
repeatedly has determined that supplemental jurisdiction is not a matter of the litigants’ right, but
of judicial discretion.” 38
Because Plaintiffs do not oppose dismissal of their state-law claims, and the claims based
on the Utah Constitution involve complex issues of state law, the Court will decline to exercise
supplemental jurisdiction over those claims and they will be dismissed without prejudice.

34

383 U.S. 715 (1966).

35

Bank of Okla., N.A., Grove Branch v. Islands Marina, Ltd., 918 F.2d 1476, 1479–80
(10th Cir. 1990) (citing Gibbs, 383 U.S. at 725).
36

Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165
(10th Cir. 2004).
37

28 U.S.C. § 1367(c) (2012).

38

Estate of Harshman, 379 F.3d at 1165 (citing City of Chi. v. Int’l Coll. of Surgeons,
522 U.S. 156, 173 (1997); Gibbs, 383 U.S. at 726).

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IV. CONCLUSION
It is therefore
ORDERED that Defendants’ Motions to Dismiss (Docket Nos. 18 and 20) are
GRANTED as set forth above. The hearing set for December 1, 2014, is STRICKEN.
The Clerk of the Court is directed to close this case forthwith.
DATED this 27th day of October, 2014.
BY THE COURT:

Ted Stewart
United States District Judge

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