Swallow v. South Jordan City et al

Filing 38

MEMORANDUM DECISION AND ORDER granting 24 Motion to Dismiss. Signed by Judge David Nuffer on 6/20/17 (alt)

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

MEMORANDUM DECISION AND
ORDER GRANTING [24]
DEFENDANTS’ MOTION TO DISMISS

v.
Case No. 2:14-cv-00881-DN
SOUTH JORDAN CITY, EDWARD
MONTGOMERY, OFFICER C. WINDER,
OFFICER M. BROWN, OFFICER
WATROUS and JOHN DOES (1–10),

District Judge David Nuffer

Defendants.

Plaintiff Christopher Swallow asserts that his constitutional rights were violated by local
law enforcement and the prosecutor in South Jordan City, Utah. He alleges they unjustly and
unlawfully sided with his ex-wife in incidents between the divorced couple arising out of their
custody arrangement. 1
Defendants South Jordan City, South Jordan City Office of the City Attorney, South
Jordan City Police Department, Edward Montgomery, Officer C. Winder, Officer M. Brown, and
Officer Watrous (the “Defendants”) have denied Mr. Swallow’s claims and filed a Motion to
Dismiss 2 on two general grounds: (1) insufficient service of process 3 and (2) failure to state a
claim. 4 The Defendants also sought sanctions against Mr. Swallow’s counsel under 28 U.S.C.

1

Complaint, docket no. 2, filed Dec. 2, 2014.

2

Defendants’ Motion to Dismiss and Memorandum in Support (“Motion to Dismiss”), docket no. 24, filed Sept. 8,
2015.
3

Id. at 1 (citing Fed. R. Civ. P. 12(b)(5)).

4

Id. at 4 (citing Fed. R. Civ. P. 12(b)(6)).

§ 1927 for unreasonably and vexatiously multiplying litigation against the Defendants, 5 to which
Mr. Swallow responded by seeking sanctions against the Defendants’ counsel for attempting to
intimidate potential plaintiffs from pursuing civil rights claims. 6
Mr. Swallow did not serve the Complaint within 120 days, the time limit then imposed by
Rule 4(m) of the Federal Rules of Civil Procedure pre-amendment. 7 Filing an identical
complaint captioned as an amended complaint after the deadline—without the Defendants’
consent or leave of court—did not cure the deficiency in service of process. 8
The Complaint also failed to state a claim in a number of respects:
•

Because Mr. Swallow was convicted on 11 of the charges against him that arose out of
the incidents asserted in the Complaint, those convictions cannot form the basis of a
§ 1983 civil rights claim unless they have been invalidated, which they have not;

•

Defendant Edward Montgomery (“Prosecutor Montgomery”) is protected by
prosecutorial immunity;

•

Defendants Officer C. Winder, Officer M. Brown, and Officer Watrous (the “Police
Defendants”) are protected by qualified immunity;

•

the police department and city attorney’s office should not have been named separately
from defendant South Jordan City (the “City”), and the Complaint does not plead a basis
for municipal liability against the City;

5

Motion to Dismiss at 15–17, docket no. 24.

6

Memorandum in Support of Plaintiff’s Opposition to Defendants Motion to Dismiss (“Opposition”) at 18–19,
docket no. 36, filed Oct. 21, 2015.
7

Effective after December 1, 2015, the time limit under the Federal Rules of Civil Procedure for service of a
complaint after filing was shortened to 90 days. Fed. R. Civ. P. 4(m).

8

Amended Complaint, docket no. 7, filed July 10, 2015.

2

•

the Complaint likewise fails to state a claim under the nine causes of action asserted
under Utah common law, which are redundant of the federal civil rights claims and
barred by the Governmental Immunity Act of Utah (the “GIA”). 9
For these reasons, the Motion to Dismiss is GRANTED, and the action is dismissed with

prejudice. No sanctions are imposed on either counsel under § 1927 because the standard for
intentional or reckless disregard of the judicial process has not been satisfied.

Table of Contents
Factual Background ........................................................................................................................ 3
Procedural Background ................................................................................................................... 6
Discussion ....................................................................................................................................... 7
The Complaint Is Dismissed for Insufficient Service of Process. ...................................... 7
The Complaint Is Dismissed for Failure to State a Claim. ................................................. 9
Mr. Swallow’s Convictions Do Not Support a § 1983 Claim. .............................. 10
Prosecutor Montgomery Is Protected by Absolute Immunity. .............................. 11
The Police Defendants Are Protected by Qualified Immunity. ............................. 12
The Complaint Does Not Plead a Basis for Municipal Liability against the City.14
The State Law Claims Are Dismissed under the GIA. .......................................... 15
The Complaint Is Dismissed with Prejudice under Rule 12(b)(6). ....................... 16
No Sanctions Are Imposed Under § 1927. ....................................................................... 17
Order ........................................................................................................................................... 19

FACTUAL BACKGROUND 10
Mr. Swallow’s divorce from his ex-wife was finalized on March 14, 2005. 11 The divorce
resulted in a custody agreement concerning the divorced couple’s three children. 12 Starting in

9

Utah Code Ann. §§ 63G-7-101 et seq.

10

For purposes of this Motion to Dismiss, the facts are drawn from the allegations in the Complaint, which are
accepted as true and construed in Mr. Swallow’s favor. Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174,
1177 (10th Cir. 2007).
11

Complaint ¶ 15, docket no. 2.

12

Id. ¶ 16.

3

2010, law enforcement became involved in a number of incidents arising out of Mr. Swallow’s
contact with his ex-wife and children.
On October 27, 2010, Mr. Swallow went to his ex-wife’s house to speak with his oldest
son. 13 The Defendants charged Mr. Swallow with one count of criminal trespass for entering his
ex-wife’s house on that occasion. 14 At trial on October 28, 2011, Mr. Swallow was found not
guilty by a jury and was acquitted of the trespass charge. 15
A year after the alleged trespass incident, and a few days after the trespass trial, the
couple’s children stayed overnight at Mr. Swallow’s residence two times, once on November 1,
2011 and once on November 6, 2011. 16 On November 28, 2011, the Defendants charged Mr.
Swallow with two counts of custodial interference for these overnight stays. 17 Mr. Swallow was
tried on these two counts of custodial interference and acquitted on February 20, 2013. 18
In the seven months following the overnight stays, Mr. Swallow was charged with 11
more counts of custodial interference arising out of multiple incidents. 19 Some of the charges
were for being late when dropping off the children with his ex-wife. 20 Some of the charges arose
from an incident on February 10, 2012, when Mr. Swallow picked up the children from school
while his ex-wife was at work. 21 Mr. Swallow alleges that the couple previously had arranged for

13

Id. ¶ 20.

14

Id.

15

Id. ¶ 21.

16

Id. ¶ 23.

17

Id.

18

Id. ¶¶ 28–29.

19

Id. ¶ 24.

20

Id. ¶ 27.

21

Id. ¶ 36.

4

him to do so, 22 but that his ex-wife called the police anyway, who arrested Mr. Swallow. 23 Mr.
Swallow went to trial in a consolidated case on the 11 charges of custodial interference. 24 On
June 19, 2013, a jury convicted Mr. Swallow on all 11 counts. 25
Mr. Swallow had additional interactions with law enforcement for the City, which did not
result in arrests or charges. On February 28, 2012, his ex-wife called the police after Mr.
Swallow was late dropping the children off at her house. 26 The police came to Mr. Swallow’s
residence, but Mr. Swallow did not answer. 27 Mr. Swallow alleges that two unmarked police
vehicles followed him the next day when he left his house and did reckless maneuvers to keep up
with his car before he retreated to a friend’s house. 28 When his ex-wife was late dropping off the
children with Mr. Swallow on June 26, 2012, the Defendants declined to investigate or pursue
charges. 29 The responding officer compared Mr. Swallow to “the little boy crying wolf.” 30
Mr. Swallow alleges that he was entitled to spend the 2013 Thanksgiving holiday with
his children. 31 On November 22, 2013, when Mr. Swallow arrived at his ex-wife’s house to pick
up the children, 32 his ex-wife responded by turning him away at the door and locking him out. 33

22

Id. ¶ 35.

23

Id. ¶ 38.

24

Id. ¶ 31.

25

Id. ¶ 32.

26

Id. ¶ 50.

27

Id. ¶ 54.

28

Id. ¶¶ 55–60.

29

Id. ¶¶ 64–67, 70.

30

Id. ¶ 69.

31

Id. ¶¶ 73–75.

32

Id. ¶ 76.

33

Id. ¶¶ 78–82.

5

Mr. Swallow filed two police reports regarding the Thanksgiving 2013 incident. 34 The
responding officer, Defendant Watrous, told Mr. Swallow that there was nothing the police could
do to enforce the divorce decree and that Mr. Swallow’s only recourse was through the divorce
court. 35 This action followed.
PROCEDURAL BACKGROUND
Mr. Swallow submitted a notice of claim to the City on December 30, 2013 (the “Notice
of Claim”). 36 The City did not respond to the Notice of Claim and deemed the claim denied after
60 days. 37
On December 2, 2014, Mr. Swallow filed his initial complaint (the “Complaint”). 38 More
than 120 days passed with no proof of service of the Complaint or summonses filed with the
court. On April 15, 2015, the court issued an Order to Show Cause by docket text order
requiring Mr. Swallow to respond and advise the court of the case status. 39 On April 29, 2015,
Mr. Swallow, through counsel, filed a response to the Order to Show cause, representing that
“ongoing settlement negotiations . . . have reached a stalemate.” 40 The Defendants deny that any
settlement negotiations occurred during this time. 41
Mr. Swallow filed an Amended Complaint on July 10, 2015 (the “Amended
Complaint”), 42 more than seven months after the Complaint. Mr. Swallow did not move for

34

Id. ¶ 83.

35

Id. ¶¶ 84–89.

36

Id. ¶ 92.

37

Opposition ¶ 26 at viii, docket no. 36.

38

Complaint, docket no. 2.

39

Docket no. 5, entered Apr. 15, 2015.

40

Plaintiff’s Response to This Court’s Order to Show Cause, docket no. 6, filed Apr. 29, 2015.

41

Motion to Dismiss ¶ 31 at ix, docket no. 24.

42

Amended Complaint, docket no. 7, filed July 10, 2015.

6

leave of court before filing the Amended Complaint. The Defendants did not consent to Mr.
Swallow filing the Amended Complaint. 43 The Amended Complaint, although captioned as
“Amended” and given a new filing date, was otherwise identical to the Complaint. 44
DISCUSSION
The Defendants have moved to dismiss Mr. Swallow’s claims under both Rule 12(b)(5)
for insufficient service of process 45 and Rule 12(b)(6) for failure to state a claim. 46 The Motion
to Dismiss 47 is granted on both grounds.
The Complaint Is Dismissed for Insufficient Service of Process.
A complaint may be dismissed for insufficient service of process under Rule 12(b)(5). 48
Here, Mr. Swallow filed two pleadings—the initial Complaint on December 2, 2014, 49 and the
Amended Complaint on July 10, 2015. 50 Service of these pleadings was insufficient because the
time for service of the Complaint lapsed, and the Amended Complaint was not authorized.
Rule 4(m) of the Federal Rules of Civil Procedure imposes a time limit for service of
summonses. 51 At the time of filing both the Complaint and Amended Complaint, the time limit
for service was 120 days. 52 More than 120 days passed after the Complaint was filed with no
proof of service filed with the court. Under Rule 4(m), if a plaintiff fails to serve the summons

43

Motion to Dismiss at 3, docket no. 24.

44

Amended Complaint, docket no. 7. See also Motion to Dismiss ¶ 35 at 1, docket no. 24; Opposition at 8, docket
no. 36.
45

Fed. R. Civ. P. 12(b)(5).

46

Fed. R. Civ. P. 12(b)(6).

47

Motion to Dismiss, docket no. 24.

48

Fed. R. Civ. P. 12(b)(5).

49

Complaint, docket no. 2.

50

Amended Complaint, docket no. 7.

51

Fed. R. Civ. P. 4(m).

52

Id. (Effective after December 1, 2015, the time limit for service was shortened to 90 days.)

7

and complaint within the allotted time, the court must: (1) dismiss without prejudice; (2) order
that service be made within a specified time; or (3) extend the time for service if the plaintiff
shows good cause for the failure. 53 To obtain a basis for its decision, the court issued an Order to
Show Cause requiring Mr. Swallow to respond with a case status report. 54 Mr. Swallow, through
counsel, responded to the Order to Show cause, representing that “ongoing settlement
negotiations . . . have reached a stalemate.” 55 The Defendants deny that any settlement
negotiations in fact had taken place in the case by that time, which Mr. Swallow does not
dispute. 56
Accordingly, Mr. Swallow did not show good cause for the failure to serve the Complaint
within the time limit set by Rule 4(m). 57 Nor did the court order that service be made within a
specified time different from that established by the Rule. 58 Mr. Swallow never did serve the
Complaint, only the subsequent Amended Complaint. 59 Therefore, the Complaint must be
dismissed. 60
Mr. Swallow did not cure the deficiency in service by filing and serving an identical
Amended Complaint more than seven months after the initial Complaint. 61 Under Rule 15 of the
Federal Rules of Civil Procedure, a party may amend its pleading once as a matter of course

53

Id.

54

Docket no. 5, entered Apr. 15, 2015.

55

Plaintiff’s Response to This Court’s Order to Show Cause, docked no. 6.

56

Motion to Dismiss ¶ 31 at ix, docket no. 24; Opposition at 22–23, docket no. 36.

57

Fed. R. Civ. P. 4(m).

58

Docket no. 5, entered Apr. 15, 2015.

59

See Summonses Returned Executed, docket nos. 15–21, filed July 22, 2015.

60

Id.

61

Amended Complaint, docket no. 7. See also Motion to Dismiss ¶ 35 at 1, docket no. 24; Opposition at 8, docket
no. 36.

8

within either 21 days of serving it or 21 days after service of a responsive pleading. 62 Otherwise,
“a party may amend its pleading only with the opposing party’s written consent or the court’s
leave.” 63 Here, the initial Complaint was not served timely, which prevents Mr. Swallow from
amending the Complaint as a matter of course. The Defendants did not consent to Mr. Swallow
filing the Amended Complaint. 64 Nor did Mr. Swallow move for leave of court before filing the
Amended Complaint. The Amended Complaint does not satisfy any of the preconditions for
amending the Complaint. 65
Therefore, the Complaint is dismissed without prejudice 66 for insufficient service of
process, and the Amended Complaint is of no effect for failure to comply with Rule 15. 67
The Complaint Is Dismissed for Failure to State a Claim.
A complaint may be dismissed for failure to state a claim under Rule 12(b)(6). 68 “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.” 69 As the Supreme Court explained in Ashcroft v.
Iqbal, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” 70
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of

62

Fed. R. Civ. P. 15(a)(1).

63

Id. at 15(a)(2).

64

Motion to Dismiss at 3, docket no. 24.

65

The Defendants make an additional timeliness argument under the GIA, which is rendered moot by the other
bases for dismissal addressed in this Memorandum Decision and Order. Motion to Dismiss at 13–14, docket no. 24.
66

Fed. R. Civ. P. 4(m).

67

Fed. R. Civ. P. 15(a).

68

Fed. R. Civ. P. 12(b)(6).

69

Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

70

556 U.S. 662, 679 (2009).

9

misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to
relief.” 71 Also, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” 72 Setting aside the legal conclusions in the
Complaint, Mr. Swallow’s well-pleaded facts do not state a plausible claim for relief for the
reasons that follow.
Mr. Swallow’s Convictions Do Not Support a § 1983 Claim.
Mr. Swallow claims he has been subject to an unconstitutional, “vindictive assault” on
his rights in his contact with the Defendants. 73 This contact with the Defendants included
allegations of instances where the police declined to make an investigation or arrest, 74 incidents
for which Mr. Swallow was charged but acquitted, 75 and charges on which Mr. Swallow was
convicted. 76 The Supreme Court held in Heck v. Humphrey that a person has no cause of action
under § 1983 based on the unlawfulness of a conviction unless the conviction is reversed,
expunged, impugned by the grant of a writ of habeas corpus, or otherwise invalidated. 77 Mr.
Swallow does not dispute that the Heck rule applies to his convictions. 78 Therefore, the 11
criminal convictions against Mr. Swallow and the incidents resulting in those convictions are not
a basis for pursing relief under § 1983. Mr. Swallow’s § 1983 civil rights claim is limited to
those charges on which he was acquitted and incidents that did not result in charges.

71

Id. (internal quotation marks and citations omitted).

72

Id. at 678.

73

Complaint ¶ 19, docket no. 2.

74

Id. ¶¶ 50–60, 64–70, 72–90.

75

Id. ¶¶ 20–21, 23, 28–29.

76

Id. ¶¶ 24–27, 30–32, 35–45.

77

512 U.S. 477, 486–89 (1983).

78

Opposition at 10, docket no. 36.

10

Prosecutor Montgomery Is Protected by Absolute Immunity.
Mr. Swallow claims that his rights were violated in part by Prosecutor Montgomery, the
prosecutor for the City. 79 “Prosecutors are entitled to absolute immunity for their decisions to
prosecute, their investigatory or evidence-gathering actions, their evaluation of evidence, their
determination of whether probable cause exists, and their determination of what information to
show the court.” 80 While absolute immunity applies to this “judicial phase of the criminal
process,” when a prosecutor acts in an investigative or administrative role, his actions are
protected by only qualified immunity. 81 The extent of the immunity depends on the function
performed, not the identity of the actor. 82 The Tenth Circuit explained in Pfeiffer v. Hartford
Fire Ins. Co. that absolute immunity applies to a prosecutor’s activity which is “intimately
associated with the judicial process.” 83 Preparing a case for trial and plea bargaining qualify for
absolute immunity, while interactions with the press, for example, do not. 84
In this case, Prosecutor Montgomery has immunity for the allegations against him. Mr.
Swallow asserts that Prosecutor Montgomery instigated a “vindictive assault” on Mr. Swallow’s
rights 85 and persecuted him, 86 which are characterizations and conclusions of law that need not
be assumed on a motion to dismiss. 87 Mr. Swallow alleges that Prosecutor Montgomery insisted

79

Complaint ¶ 5, docket no. 2.

80

Nielander v. Bd. of Cty. Comm’rs of Cty. of Republic, Kan., 582 F.3d 1155, 1164 (10th Cir. 2009).

81

Allison v. Utah Cty. Corp., 335 F. Supp. 2d 1310, 1315 (D. Utah 2004) (citing Imbler v. Pachtman, 424 U.S. 409,
430 (1976); DiCesare v. Stuart, 12 F.3d 973, 977 (10th Cir.1993)).
82

Id. (citing Kalina v. Fletcher, 522 U.S. 118, 127 (1997)).

83

929 F.2d 1484, 1489 (10th Cir. 1991).

84

Id. at 1490–93.

85

Complaint ¶¶ 19–22, docket no. 2.

86

Id. ¶ 30, docket no. 2.

87

Iqbal, 556 U.S. at 678.

11

on proceeding to trial on the charges against Mr. Swallow, 88 refused to prosecute Mr. Swallow’s
ex-wife, 89 and directed the Police Defendants to arrest Mr. Swallow. 90 This activity is
“intimately associated with the judicial process.” 91 Even if Prosecutor Montgomery acted outside
of his role as prosecutor in allegedly directing the Police Defendants to arrest Mr. Swallow, that
activity is protected by qualified immunity, as discussed below. Therefore, the claims against
Prosecutor Montgomery are barred by prosecutorial immunity and dismissed.
The Police Defendants Are Protected by Qualified Immunity.
Qualified immunity protects government officials performing discretionary functions
from individual liability in federal claims unless their conduct violates “clearly established
statutory or constitutional rights of which a reasonable person would have known.” 92 The
dispositive inquiry is “whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” 93 If the unconstitutionality of an alleged fact cannot be
resolved as a matter of law, the law is not clearly established, and qualified immunity is
appropriate. 94 Here, qualified immunity applies to the Police Defendants because Mr. Swallow
has not pleaded a constitutional violation of a clearly established right.
Mr. Swallow’s allegations against the Police Defendants concern discretionary functions:
arresting Mr. Swallow for trespass when he was at his ex-wife’s house without her consent; 95

88

Complaint ¶ 30, docket no. 2.

89

Id. ¶ 101.

90

Id. ¶¶ 38, 48, 101.

91

Pfieffer, 929 F.2d at 1489.

92

Nielander, 582 F.3d at 1166 (quoting Shero v. City of Grove, 510 F.3d 1196, 1204 (10th Cir. 2007)).

93

Id. (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).

94

Id. (citing Hunter v. Bryant, 502 U.S. 224 (1991)).

95

Complaint ¶¶ 20–21, docket no. 2.

12

arresting Mr. Swallow for taking the children home with him on his ex-wife’s report that doing
so violated their custody arrangement; 96 declining to pursue charges against his ex-wife for
locking him out at Thanksgiving; 97 discussing Mr. Swallow’s police reports from the
Thanksgiving 2013 incident with him and responding that the divorce court offered the only
recourse; 98 and declining to pursue charges against his ex-wife when she was 15 minutes late
dropping off the children with him. 99
In these situations, it would not be clear to a reasonable officer or prosecutor that his or
her conduct was unlawful. 100 A reasonable police officer could have concluded that probable
cause existed to arrest Mr. Swallow on the trespass and based on his ex-wife’s reports. A
reasonable prosecutor could have believed that he was justified in instructing the police to arrest
Mr. Swallow for these same reasons. A reasonable police officer could have believed that Mr.
Swallow’s actions were distinguishable from his ex-wife’s actions in declining to pursue charges
against her. In other words, even accepting Mr. Swallow’s allegations as true for purposes of his
Motion to Dismiss, the allegations do not show a clear violation of constitutional rights as a
matter of law. 101 The Police Defendants and Prosecutor Montgomery have immunity for
performing the discretionary functions described in the Complaint. The preclusive effect of Mr.
Swallow’s state court criminal cases on this case, as raised by the Defendants, is therefore moot.
The federal claims against the Police Defendants must be dismissed.

96

Id. ¶¶ 34–45.

97

Id. ¶ 87.

98

Id. ¶¶ 84, 89.

99

Id. ¶¶ 64–68.

100

Nielander, 582 F.3d at 1166 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).

101

Id. (quoting Shero v. City of Grove, 510 F.3d 1196, 1204 (10th Cir. 2007)).

13

The Complaint Does Not Plead a Basis for Municipal Liability against the City.
Mr. Swallow has not pleaded a case for municipal liability against the City. In this case,
the City also includes the police department and city attorney’s office, which were named as
separate defendants. The Defendants argue, and Mr. Swallow has not disputed, that the police
department and city attorney’s office are merely divisions of the City and not independently
subject to suit. In Kojima v. Lehi City, Judge Furse held that governmental subdivisions do not
qualify as separate entities amenable to suit because the Utah legislature has not included such
subdivisions in the statutes that make the state, counties, municipalities, and other governmental
entities within the state subject to suit. 102 The rule applies in this case.
Viewing the City and its police department and city attorney’s office as a single entity,
the Complaint does not state a claim for municipal liability. Municipalities will be held liable
only if a constitutional violation occurred and the violation was “caused by a government policy
or custom.” 103 “A government policy may be manifested either in the acts of its lawmakers or by
those whose edicts or acts may fairly be said to represent official policy.” 104 Similarly, “custom”
has come to mean an act that, although not formally approved by an appropriate decision maker,
has such widespread practice as to have the force of law. 105
Mr. Swallow argues that Defendants engaged in a pattern of harassment that is evidence
of the existence of a “policy or custom.” 106 The isolated actions of a few police officers toward
one person would not constitute a policy or custom because they are neither established by those

102

No. 2:13–cv–000755–EJF, 2015 WL 4276399, *4 (D. Utah July 14, 2015).

103
Whitewater v. Goss, 192 F. App’x 794, 796–97 (10th Cir. 2006) (citing Monell v. Dep't of Soc. Servs., 436 U.S.
658, 694 (1978)).
104

Id. at 797 (internal quotation marks omitted).

105

Marshall v. Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1177 (10th Cir. 2003).

106

Opposition at 17–18, docket no. 36.

14

whose edicts represent official policy nor widespread practice. Mr. Swallow has not pleaded
facts to show that the allegedly unlawful acts of the individual defendants were consistent with
or pursuant to any official policy or custom of the City. Therefore, the Complaint fails to state a
claim for municipal liability against the City.
The State Law Claims Are Dismissed under the GIA.
Mr. Swallow’s state law claims must be dismissed under the Governmental Immunity
Act of Utah. 107 The GIA provides:
A governmental entity, its officers, and its employees are immune from suit, and
immunity is not waived, for any injury proximately caused by a negligent act or
omission of an employee committed within the scope of employment, if the injury
arises out of or in connection with, or results from:
....
(b) assault, battery, false imprisonment, false arrest, malicious prosecution,
intentional trespass, abuse of process, libel, slander, deceit, interference with
contract rights, infliction of mental anguish, or violation of civil rights;
....
(e) the institution or prosecution of any judicial or administrative proceeding,
even if malicious or without probable cause;
(f) a misrepresentation by an employee whether or not the misrepresentation is
negligent or intentional;
....
(j) the incarceration of a person in a state prison, county or city jail, or other place
of legal confinement. 108
Mr. Swallow’s state law claims all concern allegations of actions taken within the scope
of the Defendants’ employment. As such, the Defendants in this case are immune from suit for
each of the state law claims, which are: abuse of process, invasion of privacy, malicious
prosecution, negligence, negligent supervision, negligent infliction of emotional distress,
intentional infliction of emotional distress, false imprisonment, and vicarious liability. 109 Each of

107

Utah Code Ann. §§ 63G-7-101 et seq.

108

Id. at § 63G-7-201(4) (emphasis added).

109

Complaint, docket no. 2.

15

these claims are expressly identified in the GIA or proximately result from the enumerated
claims. 110 Mr. Swallow did not dispute this in his Opposition. 111 Applying the GIA, the state law
claims are dismissed. 112
The Complaint Is Dismissed with Prejudice under Rule 12(b)(6).
Mr. Swallow’s claims are dismissed for multiple reasons. Whether the dismissal is with
prejudice or without prejudice depends upon the basis for dismissal. Dismissal for insufficient
service of process is without prejudice. 113 Dismissal under Heck for a civil rights claim based on
a conviction that has not been invalidated is also without prejudice in that a plaintiff is permitted
to bring the § 1983 action if he is later successful in overturning his conviction. 114 On these
bases alone, Mr. Swallow’s Complaint would be dismissed without prejudice and subject to
refiling.
Nevertheless, dismissal with prejudice is appropriate in this case. Dismissal under
12(b)(6) is generally with prejudice where amending would be futile. 115 In Hargrave v. Chief
Asian, LLC, 116 for example, the Tenth Circuit dismissed a trademark case with prejudice,
finding: “No amendment could change the fact that [plaintiff] did not own the contested
trademark.” 117 Mr. Swallow has not moved to amend the Complaint to resolve deficiencies in the

110

Barneck v. Utah Dept. of Transp., 353 P.3d 140, 149 (Utah 2015).

111

Opposition, docket no. 36.

112

By dismissing the state law claims under the GIA and dismissing each of the Defendants on independent
grounds, the court need not decide against exercising supplemental jurisdiction over the state law claims as the
Defendants argue. Motion to Dismiss at 12–13, docket no. 24.
113

Fed. R. Civ. P. 4(m).

114

Higgins v. City of Tulsa, Okla., 103 Fed. Appx. 648, 651 (10th Cir. 2004).

115

Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir.2006).

116

479 F. App’x 827 (10th Cir. 2012).

117

Id. at 831 (citing Brereton, 434 F.3d at 1219).

16

pleading. More importantly, as in the Hargrave case, 118 no amendment could change certain
dispositive aspects of this case. No amendment would change the fact that certain defendants are
prosecutors and police officers with absolute or qualified immunity. No amendment would
change the fact that the City had no custom or policy on which to base municipal liability. No
amendment would change the application of the GIA barring Mr. Swallow’s state law claims.
Therefore, the Complaint 119 is dismissed with prejudice.
No Sanctions Are Imposed Under § 1927.
Federal courts are empowered by statute to impose sanctions against an attorney where
the attorney “multiplies the proceedings in any case unreasonably and vexatiously.” 120 Such
sanctions may include personally satisfying “the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.” 121 The Tenth Circuit has recognized that the
power to assess costs against an attorney under § 1927 is a power that must be strictly construed
and utilized only in instances evidencing an “intentional or reckless disregard of the attorney’s
duties to the court.” 122 The district courts have discretion whether to impose sanctions under
§1927. 123
In this case, no § 1927 sanctions will be imposed. The Defendants state three reasons for
seeking sanctions against Mr. Swallow’s counsel: (1) reporting to the court that ongoing
settlement discussions had delayed service of process even though counsel was not in contact

118

479 F. App’x at 831.

119

Docket no. 2.

120

28 U.S.C. § 1927.

121

Id.

122

Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987).

123

Griffen v. City of Oklahoma City, 3 F.3d 336, 342 (10th Cir. 1993) (“While Rule 11 requires the district court to
impose sanctions if a document is signed in violation of the Rule, § 1927 merely permits the district court to impose
sanctions against an attorney who multiplies a proceeding.”)

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with the Defendants or their counsel; (2) suing Prosecutor Montgomery for the second time in
two years knowing prosecutorial immunity applies; and (3) filing an amended complaint with no
changes from the initial Complaint and without consent of the Defendants or leave of court. 124
Mr. Swallow’s counsel’s efforts to salvage the Complaint after the 120-day time limit for service
of process had run were questionable at best, but they do not rise to the level of intentional or
reckless disregard of a lawyer’s duties to warrant the imposition of monetary sanctions. 125
Though Mr. Swallow’s claims against Prosecutor Montgomery are dismissed in part due to
prosecutorial immunity, Mr. Swallow had a good faith argument against immunity in this
case, 126 even though the argument was rejected. Dismissal of Mr. Swallow’s claims with
prejudice is an appropriate and sufficient outcome on these issues. Mr. Swallow’s counsel is now
on notice of the rules of law which apply and is strongly cautioned that they will be judged by a
higher standard in the future.
Similarly, Mr. Swallow’s request that sanctions should be imposed against Defendants’
counsel for using § 1927 in a way that allegedly “intimidate[s] would-be plaintiffs from
attempting to prosecute § 1983 claims for violation of their constitutional rights, and deter[s]
attorneys from agreeing to represent such plaintiffs,” 127 is rejected. The litigation strategy and
arguments presented by Defendants through their counsel do not rise to the level of intentional or
reckless disregard of a lawyer’s duties to warrant the imposition of monetary sanctions. 128
Therefore, no sanctions will be awarded.

124

Motion to Dismiss at 15–17, docket no. 24.

125

Braley, 832 F.2d at 1512.

126

Opposition at 12–14, docket no. 36.

127

Opposition at 18, docket no. 36.

128

Braley, 832 F.2d at 1512.

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ORDER
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss 129 is GRANTED.
IT IS FURTHER ORDERED that all claims against the Defendants in this action are
DISMISSED with prejudice.
The Clerk is directed to close the case.
Dated June 20, 2017.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

129

Defendants’ Motion to Dismiss and Memorandum in Support, docket no. 24, filed Sept. 8, 2015.

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