Bangerter v. Roach
Filing
8
MEMORANDUM DECISION AND ORDER- granting 4 Motion to Dismiss and Plaintiff's Complaint is ordered dismissed with prejudice. Signed by Judge David Sam on 5/31/11. (jmr)
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
RENEE BANGERTER,
)
Plaintiff,
Case No.
2:11CV00294 DS
)
vs.
)
CRISTIE ROACH, and DOES 1-50,
Defendants.
MEMORANDUM DECISION
AND ORDER
)
)
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I. INTRODUCTION
Plaintiff has filed a civil rights complaint under 42 U.S.C.
§ 1983.
Named as defendants are Cristie Roach, an employee of the
Office of Guardian Ad Litem, and Does 1-50. In vague and conclusory
fashion, Plaintiff generally alleges that Defendant Roach, acting
under color of law,
illegally obtain[ed] her position as the attorney for
[Plaintiff’s] three minor children, ignor[ed] the neglect
and evidence of mistreatment of the minor children ...
and utilizes her position as the attorney of the
remaining two children to aid a private attorney in
mounting a case for custody through coordinated efforts
to mislead, ignore and manipulate to achieve her and the
other attorney’s desired outcome.
Compl. at ¶¶ 39-40.
Defendant
Roach
moves
to
dismiss
Plaintiff’s
Complaint
Pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim
upon which relief can be granted.
III.
STANDARD OF REVIEW
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.”
355 U.S. 41, 45-46 (1957).
Conley v. Gibson,
After Twombly the complaint must
plead sufficient facts, that when taken as true, provide “plausible
grounds”
that
“discovery
plaintiff’s allegations.
will
reveal
evidence”
Twombly, 127 S. Ct. at 1965.
to
support
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 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).
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III.
A.
DISCUSSION
Acting “under color of state law”.
In order to prevail in a Section 1983 action, a plaintiff must
show that she was injured as a result of state action. Gallagher v.
Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995).
Private conduct, “no matter how discriminatory or wrongful,” may not
be redressed by a § 1983 claim.
American Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999).
Defendant Roach asserts that she cannot be sued for alleged
Constitutional violations under Section 1983 because in her role as
guardian ad litem, she is not a state actor.
See Hennelly v. Flor
De Maria Oliva, 237 Fed. Appx. 318, 320 (10th Cir. 2007), cert.
denied, 552 U.S. 1106 (2008) (quoting Meeker v. Kercher, 782 F.2d
153, 155 (10th Cir. 1986) (“guardians ad litem are not state actors
for purposes of § 1983, because they give their ‘undivided loyalty
to the minor, not the state’”).
“It is the requirement that the
guardian ad litem must exercise independent, professional judgment
that is crucial to the determination of whether a guardian ad litem
acts under color of state law and is therefore a person liable under
§ 1983.
We hold that a guardian ad litem is not acting under color
of state law for purposes of § 1983.”
Plaintiff
counters
that
she
“is
Meeker, 782 F. 2d at 155.
not
seeking
damages
for
Defendant Roach’s plethora of misconduct as the guardian ad litem
that resulted in physical and emotional harm to her children ...
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[but] alleges that Defendant Roach subverted the appointment process
to gain her position as the guardian ad litem for Plaintiff’s three
children with the express intent of rigging the outcome of a custody
battle.”
Opp’n Mem. at 3-4.
Based on these assertions, Plaintiff
requests that the Motion to Dismiss be denied.
Id. at 4.
A careful review of the Complaint fails to reveal any factual
allegations that support Plaintiff’s conclusory assertions, or to
otherwise suggest plausible grounds that Defendant Roach was not
exercising independent professional judgment in her conduct relative
to the minor children thereby making her an agent of the state.
Allegations in the Complaint that Defendant Roach violated Section
1983 prior to her appointment as the minor children’s guardian ad
litem, and that she somehow illegally obtained that position, are
mere conclusions unsupported by any factual allegations.
As such
they are insufficient to support Plaintiff’s position.
Plaintiff urges that, rather than make a blanket conclusion
that Defendant is entitled to absolute immunity, courts should
examine the nexus of the task performed and the judicial process.
“Defendant Roach’s deceit and self appointment as guardian
ad litem is not entitled to absolute immunity because it occurred
before any function that could be closely labeled a ‘judicial act’.
Plaintiff inferences within her complaint are that Defendant Roach’s
conduct lacked any judicial nexus whatsoever.”
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Opp’n Mem. at 3.
If Defendant Roach had acted under color of state law, a
discussion of whether she, nevertheless, was entitled to quasijudicial
immunity
would
appear
appropriate.
However,
after
reviewing the well pleaded allegations of the Complaint, such an
inquiry is unwarranted.
On its face the Complaint is directed at
claims related to Defendant’s appointment and subsequent actions as
guardian ad litem.
See Compl. at ¶¶ 17-19.
No well pleaded
allegations suggest otherwise.
As noted, guardians ad litem are not state actors for purposes
of Section 1983.
As a consequence, therefore, Defendant Roach is
not
to
susceptible
liability
under
that
provision.
Because
Plaintiff pleads that both of her claims are actionable under
Section 1983, her Complaint fails to state a claim against Defendant
Roach upon which relief can be granted.
Having concluded that the Complaint fails to state a claim
under Section 1983, the Court need not, and does not, address
Defendant’s other arguments.
Finally, Plaintiff’s suggestion that at a minimum she should
be allowed to amend her Complaint to plead unspecified state and
common law claims is rejected. As with her Section 1983 claims, she
offers nothing more than general conclusions devoid of supporting
factual allegations as support for her request that she be granted
leave to amend.
While leave to amend should be freely given when
justice requires, a plaintiff seeking to amend a complaint “must
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give adequate notice to the district court and to the opposing party
of the basis of the proposed amendment.”
Calderon v. Kan. Dep’t of
Social & Rehab. Servs., 181 F.3d 1180, 1186-87 (10th cir. 1999).
“Without this information the district court is not required to
recognize, let alone grant, a motion to amend.”
Hall v. Witteman,
584 F.3d 859, 868 (10th Cir. 2009).
III.
CONCLUSION
For the reasons stated, Defendant’s Motion to Dismiss (Doc. #
4) is granted and Plaintiff’s Complaint is ordered dismissed with
prejudice.
DATED this 31st day of May, 2011.
BY THE COURT:
DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT
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