Higley v. State of Utah et al

Filing 51

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; granting 33 Motion to Strike ; adopting Report and Recommendations re 47 Report and Recommendations.; granting 13 Motion to Dismiss for Failure to State a Claim. Signed by Judge Clark Waddoups on 1/11/16. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

MARK LEE HIGLEY,
Plaintiff,
v.

ORDER ADOPTING REPORT AND
RECOMMENDATION
Case No. 2:14-cv-00506-CW-EJF

UTAH STATE LEGISLATURE, et al.,
Defendants.

District Judge Clark Waddoups
Magistrate Judge Evelyn J. Furse

This case arises out of Mark Lee Higley’s pro se complaints1 against various defendants,
including the State of Utah and Governor Gary Herbert, for alleged violations of Mr. Higley’s
civil rights. (See Dkt. Nos. 1, 4, 26, 29). The case was assigned to United States District Court
Judge Clark Waddoups, who then referred it to United States Magistrate Evelyn J. Furse under 28
U.S.C. § 636(b)(1)(B). (Dkt. No. 5). The State of Utah and Governor Herbert filed a motion to
dismiss the complaint (Dkt. No. 13). After briefing from the parties, Judge Furse issued a Report
and Recommendation recommending that the court grant the motion to dismiss without prejudice
because 1) the State of Utah enjoys Eleventh Amendment immunity from suit, and 2) Mr. Higley
failed to state a claim upon which relief could be granted against Governor Herbert. (Dkt. No. 47).
Judge Furse also recommended that the court strike Mr. Higley’s Second Amended Complaint
(Dkt. No. 33), reasoning that Mr. Higley had failed to provide sufficient factual detail to support

1

As did Judge Furse, the court liberally construes Mr. Higley’s filings because he is proceeding pro se. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir.
2007). This is a rule of construction that favors pro se litigants, like Mr. Higley.

adding additional defendants. Id. Mr. Higley objected to the Report and Recommendation (Dkt.
No. 49).
The court has reviewed the Report and Recommendation de novo 2 and has carefully
considered Mr. Higley’s original Complaint, the Amended Complaint, and Second Amended
Complaint. After doing so, the court agrees with Judge Furse’s careful analysis with respect to
each issue. Accordingly, the court APPROVES and ADOPTS the Report and Recommendation
(Dkt. No. 47) and dismisses Mr. Higley’s claims against the State of Utah and Governor Herbert
without prejudice.3 In addition, the court grants the motion to strike Mr. Higley’s Second
Amended Complaint.
SO ORDERED this 11th day of January, 2016.
BY THE COURT:
______________________________
Clark Waddoups
United States District Court Judge

2

The court notes that Mr. Higley did not file his objection until January 4, 2016, twenty-five days after the
Report and Recommendation was docketed. Cf. Fed. R. Civ. P. 72(b) (providing that objections must be filed within
fourteen days after service of the Report and Recommendation). In the absence of a timely objection, the court has the
discretion to review the Report and Recommendation under a less-demanding standard. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991). The court declines to do so in this case, and reviews the complaint de novo—the
standard of review most generous to Mr. Higley.
3

Although Judge Furse did not recommend dismissal on the grounds that Mr. Higley failed to properly serve
these defendants under Federal Rule of Civil Procedure 4, she did explain to him the ways in which his service was
deficient. She also explained that insufficient service of process can result in dismissal. (Dkt. No. 47, pp. 9–10).
Although Mr. Higley’s objection takes issue with Judge Furse’s explanation on this point, the court notes that this
information may prove to be useful to him should he choose to refile his complaint against these defendants.

2