Higley v. State of Utah et al

Filing 57

ORDER adopting Report and Recommendations re 52 Report and Recommendations.; adopting in part Report and Recommendations re 53 Report and Recommendations.; adopting Report and Recommendations re 54 Report and Recommendations.; adopting Report and Recommendations re 55 Report and Recommendations. See Order for details. Signed by Judge Clark Waddoups on 3/23/16. (jmr)

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

MARK LEE HIGLEY,
Plaintiff,
v.

ORDER ADOPTING REPORTS AND
RECOMMENDATIONS
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 complaint1 against various defendants,
including the City of Grantsville, Grantsville City Judge Darold Butcher, and Grantsville Mayors
Merle Cole and Brent Marshall (collectively, the Grantsville Defendants); Wasatch County Justice
Court Judge O. Lane McCotter and prosecuting attorney Scott H. Sweat (collectively, the Wasatch
County Justice Court Defendants); Department of Transportation Officer S. Keating a/k/a Sherrina
Hansen (Ms. Hansen), and Department of Transportation Director Chad Sheppick (Mr. Sheppick).
(See Dkt. Nos. 1, 4). The case was assigned to United States District Court Judge Clark
Waddoups, who referred it to United States Magistrate Judge Evelyn J. Furse under 28 U.S.C.
§ 636(b)(1)(B). (Dkt. No. 5).
The Grantsville Defendants, Wasatch County Justice Court Defendants, Ms. Hansen, and
Mr. Sheppick all seek dismissal of Mr. Higley’s claims against them. (See Dkt. Nos. 15, 27, 34,
35). After briefing from the parties, Judge Furse issued several Reports and Recommendations

1

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).

regarding the Defendants’ motions. (Dkt. Nos. 52, 53, 54, 55). The court has carefully reviewed
these Reports and Recommendations de novo.2 After doing so, the court:
1) APPROVES and ADOPTS in part Report and Recommendation Dkt. No. 52. For the
reasons stated in sections I, II, III and V of Report and Recommendation Dkt. No. 52,
the court GRANTS in part and DENIES in part the Grantsville Defendants’ motion to
dismiss (Dkt. No. 15). The court dismisses without prejudice Mr. Higley’s claims
against Judge Butcher on absolute immunity grounds, dismisses without prejudice
Mr. Higley’s claims against Mayors Cole and Marshall on qualified immunity grounds,
and dismisses Mr. Higley’s claims against Grantsville City without prejudice because
Mr. Higley failed to allege sufficient facts to establish municipal liability;
2) APPROVES and ADOPTS in part Report and Recommendation Dkt. No. 53. For the
reasons stated in sections I and II of Report and Recommendation Dkt. No. 53, the
court GRANTS in part and DENIES in part the Wasatch County Justice Court
Defendants’ motion to dismiss (Dkt. No. 27). The court dismisses without prejudice
Mr. Higley’s claims against Judge McCotter and Mr. Sweat on absolute immunity
grounds;
3) APPROVES and ADOPTS Report and Recommendation Dkt. No. 54. The court
QUASHES service of process on Ms. Hansen, GRANTS Mr. Higley an additional
thirty (30) days from service of this order to serve Ms. Hansen, and DENIES
Ms. Hansen’s motion to dismiss for insufficient service of process (Dkt. No. 27); and
4) APPROVES and ADOPTS Report and Recommendation Dkt. No. 55. The Court
QUASHES service of process on Mr. Sheppick, GRANTS Mr. Higley an additional
thirty (30) days from service of this order to serve Mr. Sheppick, and DENIES
Mr. Sheppick’s motion to dismiss for insufficient service of process (Dkt. No. 35).

2

Mr. Higley filed an objection on February 16, 2016, fourteen days after Report and Recommendation
Dkt. No. 55 was docketed. Because of this timely objection, Mr. Higley is entitled to de novo review of Report and
Recommendation Dkt. No. 55. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991). Mr. Higley’s February
16, 2016 objection was not filed within the required time period for Reports and Recommendations Dkt. Nos. 52, 53,
and 54. See Fed. R. Civ. P. 72(b) (providing that objections must be filed within fourteen days after service of the
Report and Recommendation); Fed. R. Civ. P. 6(a),(d) (explaining how to compute time and providing that where
service is by mail, the court should calculate the time within which a party must respond by adding three days after the
period that would otherwise expire). Accordingly, the court has the discretion to review these Reports and
Recommendations under a less-demanding standard. See Summers, 927 F.2d at 1167. The court declines to do so in
this case and reviews all of the Reports and Recommendations de novo, the standard of review most generous to
Mr. Higley.

2

SO ORDERED this 23rd day of March, 2016.
BY THE COURT:
______________________________
Clark Waddoups
United States District Court Judge

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