Cartwright v. Salt Lake Community College et al
MEMORANDUM DECISION granting in part and denying in part 7 Motion to Dismiss. Signed by Judge Ted Stewart on 12/7/12. (ss)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
LYNNE FREED CARTWRIGHT,
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS
SALT LAKE COMMUNITY COLLEGE,
CYNTHIA BIOTEAU, DONALD L.
PORTER, STEVE PARRISH, BRENT H.
GOODFELLOW, KENT FERREL, DAVE
THOMAS, CRAIG GARDNER, and
Case No. 2:12-CV-86 TS
This matter is before the Court on Defendants Salt Lake Community College, Cynthia
Bioteau, Donald Porter, Brent Goodfellow, Kent Ferrel, Steve Parrish, Dave Thomas, Craig
Gardner, and Deneece Huftalin’s (collectively “Defendants”) Motion to Dismiss.1 Defendants
move to dismiss Plaintiff’s Complaint for lack of subject matter jurisdiction under Federal Rule
of Civil Procedure 12(b)(1) and failure to state a claim under Rule 12(b)(6). For the reasons
discussed more fully below, the Court will grant in part and deny in part Defendants’ Motion.
Docket No. 7.
On May 5, 2012, Plaintiff filed a complaint under 42 U.S.C. § 1983 alleging that
Defendants’ actions in terminating her employment deprived Plaintiff of her property interest in
her job without due process of law under the Fourteenth Amendment to the U.S. Constitution.
Plaintiff further alleges that Defendants’ actions have prevented her from obtaining comparable
employment. Plaintiff’s Complaint seeks money damages as well as injunctive relief. The
following factual statement is drawn from Plaintiff’s Complaint.
Plaintiff was employed with Salt Lake Community College (“SLCC”) as the Internal
Auditor. On November 8, 2005, Kent Ferrel (“Ferrel”), who was Controller and Acting Vice
President at SLCC at all times relevant, began the process of termination by issuing Plaintiff a
written warning. On April 11, 2006, Plaintiff met with Brent Goodfellow (“Goodfellow”), and
Goodfellow provided Plaintiff written notice of SLCC’s intent to terminate Plaintiff’s
employment. Plaintiff subsequently provided additional documentation for Goodfellow’s
review. On April 18, 2006, Goodfellow sent Plaintiff an additional written notice of SLCC’s
intent to terminate Plaintiff’s employment. That notice indicates that:
After spending a considerable amount of time evaluating and reviewing the
documentation presented in your response and correlating it with information
collected through resources of the College, I have determined that there is
sufficient information to substantiate cause for termination of your employment at
[SLCC] as the Internal Auditor. This termination is effective today, April 18,
The notice also informed Plaintiff that if she disagreed with her termination, the SLCC grievance
procedure was available to her.
Docket No. 4, at 5–6.
On May 15, 2006, Plaintiff submitted a formal grievance with SLCC and requested to
proceed directly to a hearing with the grievance committee. Lynn Miller (“Miller”) signed
Plaintiff’s submission, acknowledging receipt on behalf of SLCC. Plaintiff then received a letter
from Craig Gardner (“Gardner”), the Director of Human Resources, asking Plaintiff to work with
Deneece Huftalin (“Huftalin”), the Student Services Vice President.
Plaintiff met with Huftalin on or about May 31, 2006. This meeting did not result in a
resolution of Plaintiff’s grievance. Plaintiff informed Huftalin at that time that she planned to
proceed with the grievance process. On June 28, 2006, Plaintiff received a letter from Gardner
Since you did not contact me by June 21, which was 10 working days after
receiving this instruction from VP Huftalin, and since you have not submitted a
completed grievance hearing request form to the Human Resources Office, this
letter is to inform you that your grievance has been terminated in accordance with
College policy and procedure. Therefore, your administrative remedies with
SLCC have been exhausted.3
Plaintiff responded to Gardner on July 3, 2006, explaining that she had filed a formal
grievance as of May 15, 2006, and renewing her request to proceed with her grievance remedies.
Plaintiff provided courtesy copies of her response to the Business Services Vice President,
Dennis Klaus, and Risk Manager Nancy Sanchez. Plaintiff received no reply.
II. STANDARD OF REVIEW
Defendants challenge the sufficiency of Plaintiff’s Complaint under Federal Rule of Civil
Procedure 12(b)(1). Defendants’ Rule 12(b)(1) motion constitutes a facial attack on the
allegations of subject matter jurisdiction contained in Plaintiff’s Complaint. Accordingly, for
Docket No. 16 Ex. B, at 2.
purposes of Defendants’ 12(b)(1) arguments, the Court will presume all of the allegations
contained in Plaintiff’s Complaint to be true.4
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.5 Plaintiff must provide “enough facts to state a claim to relief that is
plausible on its face,”6 which requires “more than an unadorned, the-defendant-unlawfully
harmed-me accusation.”7 “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.’”8
“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.”9 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
See Ruiz v. McDonnel, 299 F.3d 1173, 1180 (10th Cir. 2002).
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).
Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
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
In considering the adequacy of a plaintiff’s allegations in a complaint subject to a motion
to dismiss, a district court not only considers the complaint, but also “documents incorporated
into the complaint by reference, and matters of which a court may take judicial notice.”11 Thus,
notwithstanding the usual rule that a court should consider no evidence beyond
the pleadings on a Rule 12(b)(6) motion to dismiss, “[a] district court may
consider documents referred to in the complaint if the documents are central to the
plaintiff’s claim and the parties do not dispute the documents’ authenticity.”12
Defendants move for dismissal of Plaintiff’s Complaint as a matter of law on the
following basis: (1) SLCC is not a “person” subject to suit under § 1983; (2) the Complaint is
barred by the applicable statute of limitations; (3) the Eleventh Amendment to the United States
Constitution grants Defendants immunity from suit in their official capacity; and (4) the
Complaint fails to meet the applicable pleading standards.
SECTION 1983 AND STATUTE OF LIMITATIONS
In the course of the briefing on this Motion, each of the parties made certain concessions.
First, Plaintiff conceded that SLCC is not a “person” subject to suit under § 1983. Next,
Defendants conceded that Plaintiff’s Complaint is not barred by the applicable statute of
Iqbal, 556 U.S. at 678–79 (alteration in original) (internal quotation marks and citations
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citing 5B
WRIGHT & MILLER § 1357 (3d ed. 2004 & Supp. 2007)).
Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting Jacobsen v.
Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)).
limitations. Therefore, the Court will grant Defendants’ Motion in part and dismiss SLCC, but
will deny Defendants’ Motion to the extent it seeks dismissal of this case on statute of limitations
ELEVENTH AMENDMENT IMMUNITY
The Eleventh Amendment provides that “[t]he judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against one of
the United States by citizens of another state, or by citizens or subjects of any foreign state.”13
“The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be
sued by private individuals in federal court.”14 This Eleventh Amendment sovereign immunity
extends to public universities as arms of the state because any awards to the plaintiff in damages
would come from the state treasury.15 Similarly, Eleventh Amendment immunity also applies to
public officers sued in their official capacity because any awards in damages would “to a virtual
certainty” come from state funds.16
Here, Plaintiff’s Complaint names each of the Defendants in their official capacity.
Further, Plaintiff included in her prayer for relief a claim for money damages. Because
Defendants are state officials, a damage award against Defendants in their official capacities
would, to a virtual certainty, come from state funds. Thus, Plaintiff is precluded by the Eleventh
U.S. Const. amend. XI.
Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001).
Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 575 (10th Cir. 1996).
Edelman v. Jordan, 415 U.S. 651, 668 (1974).
Amendment from bringing a claim for damages against the Defendants in their official
Plaintiff does not appear to dispute this result in her opposition to Defendants’ Motion.
Rather, Plaintiff argues that the Ex parte Young exception applies to Plaintiff’s claims for
prospective injunctive relief. While Plaintiff raises an intriguing issue, that issue is not before
the Court on this Motion. Defendants’ Motion seeks only the exclusion of retrospective
In light of the preceding analysis, the Court finds that the Eleventh Amendment
forecloses recovery of money judgment from the Defendants in their official capacities and, thus,
the Court is without jurisdiction to grant such relief. As Defendants have not sought dismissal of
Plaintiff’s claims for prospective injunctive relief, the Court expresses no opinion on the viability
of those claims.
Defendants’ final argument is that Plaintiff has failed to plead facts sufficient to state a
claim for relief against the Defendants in their personal capacities.
In order to sufficiently plead a § 1983 claim, a plaintiff must assert facts that would create
a plausibility of liability. In order to establish personal liability in a § 1983 claim, “it is enough
to show that [a public] official, acting under color of state law, caused the deprivation of a federal
See id. at 663 (“[W]hen the action is in essence one for the recovery of money from the
state, the state is the real, substantial party in interest and is entitled to invoke its [Eleventh
Amendment] sovereign immunity from suit even though individual officials are nominal
right.”18 In the area of employment, a plaintiff must show that the defendant deprived her of the
property of her employment without due process of law as defined in the Due Process Clause of
the Fourteenth Amendment.19 “[T]he root requirement” of the Due Process Clause is “that an
individual be given an opportunity for a hearing before he is deprived of any significant property
interest” such as his job.20 This is a Constitutional guarantee independent of any legislative
action.21 As such, a violation of school policy or state law does not in and of itself constitute a
constitutional deprivation for § 1983 purposes.22
Further, in order to find an individual personally liable under a § 1983 claim, it must be
shown that the individual personally and “deliberately” deprived the defendant of her property
right without due process.23 This personal involvement criteria does not mean that an individual
must directly participate in the deprivation of rights but only that the individual must cause
deprivation of those rights.24 It is possible to cause the deprivation of due process rights through
acquiescence rather than direct participation.25
Kentucky v. Graham, 473 U.S. 159, 166 (1985).
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985).
Id. at 542 (quoting Mullane v. C. Hanover Bank & Trust Co., 339 U.S. 306, 313
Id. at 541.
Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 522 (10th Cir. 1998).
See Iqbal, 556 U.S. at 676; Daniels v. Williams, 474 U.S. 327, 331 (1986); Woodward v.
City of Worland, 977 F.2d 1392, 1399 (10th Cir. 1992).
Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010) cert. denied, 131 S. Ct.
Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006).
Here, Plaintiff alleges that Defendants deprived her of the property of her employment
without due process of law because she was denied a formal grievance hearing as required by
SLCC policy. A violation of SLCC policy is not itself actionable under § 1983. However, it is at
least plausible that Defendants’ failure to grant Plaintiff a formal grievance hearing constitutes a
denial of Plaintiff’s due process rights. To maintain a claim against Defendants in their personal
capacities for this alleged deprivation, Plaintiff must plead facts sufficient to demonstrate that
each Defendant, through his or her personal and deliberate actions, deprived Plaintiff of the
grievance hearing—thus creating the plausibility that they deprived her of her job without due
process of law.
Turning to the individual Defendants, the Court begins by noting that Plaintiff’s
Complaint contains no factual allegations against Defendants Cynthia Bioteau, Donald Porter,
Steve Parrish, and Dave Thomas. In her opposition, Plaintiff asserts that these Defendants are
liable in their personal capacities because they were involved in Plaintiff’s termination as
demonstrated by the documents referenced in Plaintiff’s Complaint. Plaintiff’s argument is
unavailing. Even if these Defendants were involved in Plaintiff’s termination, Plaintiff has made
no factual allegations that they were in any way involved in the deprivation of her right to a
hearing. For this reason, the Court finds that Plaintiff has failed to plead facts sufficient to
maintain a cause of action against these Defendants.
Similarly, the Court will grant Defendants’ Motion as to Defendants Goodfellow and
Ferrel. While Plaintiff’s Complaint contains factual allegations against Goodfellow and Ferrel,
these factual allegations relate only to the decision to terminate Plaintiff. Therefore, Plaintiff has
failed to state a claim for relief against Defendant Goodfellow and Ferrel.
The remaining Defendants, Gardner and Huftalin, present a more difficult case. The
relevant facts asserted against Huftalin are that Huftalin had a meeting with Plaintiff, that the
grievance was not settled in that meeting, and that Huftalin knew that Plaintiff intended to
continue with the grievance process. At best, Plaintiff may argue that Huftalin acquiesced in the
deprivation of her right to a hearing. This argument however must fail, as Plaintiff has included
no allegations from which the Court could surmise that Huftalin was even aware that Plaintiff
would later be deprived of the opportunity for a grievance hearing. As such, the Court finds that
Plaintiff has failed to alleged sufficient facts to state a claim against Huftalin in her personal
The relevant facts asserted against Gardner are that he sent a letter to Plaintiff informing
her that her administrative remedies had been exhausted because she had not requested a formal
grievance hearing, even though other asserted facts indicate that she had requested a hearing.
Additionally, Gardner did not respond to Plaintiff’s subsequent inquiries asking for the hearing
that she had previously requested. Although these facts do not necessarily show that Gardner
deliberately denied her a hearing, they do plausibly suggest that such could be the case. These
facts raise the claim against Gardner from a speculative and conceivable level to a plausible
level, and they create a reasonable expectation that discovery will reveal evidence that he did
deliberately deprive Plaintiff of her due process rights. Therefore, the Court will deny
Defendants’ Motion to the extent it seeks dismissal of Plaintiff’s claims against Defendant
Gardner in his personal capacity.
In sum, the Court finds that Plaintiff’s Complaint fails to state a claim for relief against
the named Defendants in their personal capacities, with the exception of Defendant Gardner.
LEAVE TO AMEND
Plaintiff asserts in her opposition that, in the event the Court finds her Complaint
deficient, she should be granted leave to amend prior to dismissal. However, Plaintiff has not
provided “adequate notice to the [Court] and to the opposing party of the basis of the proposed
amendment.”26 Therefore, the Court is under no obligation to recognize Plaintiff’s request as a
motion for leave to amend.27 If, after receipt of this Court’s ruling, Plaintiff is inclined to seek
leave to amend, Plaintiff may file a properly supported motion for leave to amend pursuant to
Federal Rule of Civil Procedure 15 and DUCivR 15-1 for the Court’s consideration.
Based on the foregoing, the Court finds it is without jurisdiction to hear Plaintiff’s claim
for money damages against Defendants in their official capacity. In addition, the Court will grant
Defendants’ Motion to the extent it seeks dismissal of SLCC and dismissal of all claims against
Defendants in their personal capacities, with the exception of Plaintiff’s claims against
Defendant Gardner. It is therefore
ORDERED that Defendants’ Motion to Dismiss (Docket No. 7) is GRANTED IN PART
AND DENIED IN PART, pursuant to the terms of this Order.
Calderon v. Kan. Dep’t of Soc. and Rehab. Servs., 181 F.3d 1180, 1186–87 (10th Cir.
DATED December 7, 2012
BY THE COURT:
United States District Judge
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