Kartiganer v. Juab County et al
Filing
76
MEMORANDUM DECISION-Approves and Adopts the Report and Recommendation of Magistrate Judge Alba; and dismisses all other claims in the complaint with prejudice. See Order for details. Signed by Judge Clark Waddoups on 4/21/14. (jmr)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
Adam Kartiganer,
Plaintiff,
v.
MEMORANDUM DECISION
AND ORDER
Case No. 2:10-CV-00842
Judge Clark Waddoups
Juab County, et al.,
Defendants.
Before the court is Magistrate Judge Samuel Alba’s Report and Recommendation (Dkt.
No. 49) recommending partial dismissal of Adam Kartiganer’s case pursuant to 28 U.S.C. §
1915(e)(2). In reviewing the Report and Recommendation under 28 U.S.C. § 636(b)(1)(B), the
court “shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” § 636(b)(1). The court adopts Judge
Alba’s statement of facts and articulation of the standards of review. Mr. Kartiganer objects to
the recommendation that the causes of action be dismissed, arguing (1) that as a pro se litigant he
should be held to a less stringent pleading standard, (2) that federal law governs the statute of
limitations for § 1983 claims, (3) that the magistrate judge failed to explain how the immunity
act bars his claims, and (4) that he has brought forth claims that are plausible. (Dkt. No. 51, at 36). The court will consider each objection in turn.
1. Pleading standard for pro se litigants
To successfully state a claim, a plaintiff must provide more than labels and conclusions to
provide the grounds of his entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
557, 570 (2007). The court is not required to accept as true legal conclusions couched as factual
allegations. Id. at 555. (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Because Plaintiff
is proceeding pro se, the court will liberally construe his pleadings and hold them to a “less
stringent standard than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quotations and citation omitted). Nevertheless, Plaintiff’s pro se status does not
discharge him from having to comply with the Federal Rules of Civil Procedure, nor will the
court assume an advocacy role on Plaintiff’s behalf. See Pedersen v. Mountain View Hosp., No.
1:11-CV-16-CW, 2011 WL 7277319, at *1 (D. Utah Aug. 31, 2011). A pro se plaintiff must at a
minimum set out facts sufficient to support a claim for relief.
Mr. Kartiganer asserts that the court must accept all factual allegations in the light most
favorable to him as a pro se litigant. While this statement of law is correct, he has provided
almost exclusively legal conclusions in his Complaint. The court is not required to accept such
legal conclusions as true nor to view them in a light most favorable to plaintiff. For example,
Mr. Kartiganer alleges an assault and battery, but gives no specific account of what happened.
As noted by Judge Alba, there are no factual allegations in the Complaint that put the Defendants
on notice of what the harmful conduct was. (Dkt. No. 49, at 4).
2. Statute of limitations for § 1983 claims
Mr. Kartiganer is correct that a longer statute of limitations is provided for claims
brought under 42 U.S.C. § 1983 than for some claims brought under Utah law, but the claim
being challenged must actually be governed by § 1983 for the longer statute of limitations to
apply. For § 1983 to apply the Plaintiff must show that he has suffered deprivation of a right
“secured by the Constitution. . . .” 42 U.S.C. § 1983.
Mr. Kartiganer objects to dismissal of the first and seventh claims as being time barred
under the Utah statute of limitations, arguing that they are § 1983 claims. Mr. Kartiganer asserts
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in his first and seventh claims that he was arrested and held in jail for an alleged violation of the
Utah tax code.
Mr. Kartiganer provides no facts that would suggest that his arrest violated
constitutional rights, only that he was arrested for an alleged violation of the law. Mr.
Kartiganer’s allegations provide no basis for the court to find that Mr. Kartiganer was deprived
of a right secured by the Constitution. Even when viewing the facts in the light most favorable
to Mr. Kartiganer, the court finds that these claims do not arise under 42 U.S.C. § 1983.
3. The Utah Governmental Immunity Act
Government entities do not waive immunity under the Utah Governmental Immunity Act
for claims of malicious prosecution and intentional infliction of emotional distress. Utah Code
Ann. § 63G-7-301(5)(b). Therefore, claims of malicious prosecution and intentional infliction of
emotional distress are barred against government entities.
Mr. Kartiganer objects to Judge Alba’s explanation of the Utah Governmental Immunity
Act, asserting that Judge Alba fails to explain how it applies. Mr. Kartiganer alleges that he was
prosecuted maliciously and suffered emotional distress because of the threat of serving prison
time. Mr. Kartiganer asserts that the emotional distress was a result of Juab County’s
prosecution against him. As Judge Alba recommended, these claims fall squarely within the
language of the Act and are expressly barred.
4. Plausibility of Plaintiff’s Claims
Mr. Kartiganer also objects that his claims are plausible and should not be dismissed sua
sponte. As addressed above, however, there are almost no factual allegations contained in Mr.
Kartiganer’s Complaint. Under Twombly, mere conclusory allegations cannot provide a basis for
“plausible” claims to survive a motion to dismiss for failure to state a claim. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (plausibility requires “more than a sheer possibility that a
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defendant has acted unlawfully” but is not “akin to a probability requirement”). Therefore the
court finds that Mr. Kartiganer has failed to assert any plausible claims.
5. Dismissal of Fifth Claim
In addition to adopting Judge Alba’s Report and Recommendation, the court also
considers the fifth claim alleged in the Complaint.
In the fifth claim, Mr. Kartiganer alleges that he was subjected to an illegal search and
seizure by a state law enforcement officer. He fails again, however, to allege that Juab County
was involved in the search and seizure. Additionally, Mr. Kartiganer does not allege that the
State Patrol Officer was employed by Juab County. Even if he were to suggest that Officer Metz
was employed by Juab County, a § 1983 claim cannot be brought against a local government
under a respondeat superior theory. Monell v. New York City Dept. of Social Servs., 436 U.S.
658, 691 (1978). Finally, Mr. Kartiganer provides no factual allegations to support a claim that
Officer Metz subjected him to an illegal search and seizure. Once again, mere conclusory
allegations cannot satisfy the plausibility standard set forth in Twombly and Iqbal. Therefore, the
fifth claim is dismissed with prejudice.
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ORDER
For the reasons set forth above, the court hereby,
1. Approves and Adopts the Report and Recommendation of Magistrate Judge Alba; and
2. Dismisses all other claims in the complaint with prejudice.
DATED this 21st day of April, 2014
BY THE COURT:
____________________________________
Clark Waddoups
United States District Judge
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