Rudolph v. Sibbett et al

Filing 76

MEMORANDUM DECISION & ORDER OF DISMISSAL: It is therefore ordered that defendants Hanson and Bryne and Plaintiffs conspiracy claim construed against all defendants are DISMISSED. Granting 29 Motion to Dismiss for Failure to State a Claim ; Granting 35 Motion to Dismiss ;Granting 37 Motion to Dismiss for Failure to State a Claim ;Granting 57 Motion to Dismiss for Failure to State a Claim ;Granting 59 Motion to Dismiss for Failure to State a Claim ;Denying 72 Motion for relief from the order dismissing Defendant Huggard. This case is closed. Signed by Judge Clark Waddoups on 10/02/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
HENRY LEE RUDOLPH,
Plaintiff,

MEMORANDUM DECISION & ORDER
OF DISMISSAL

v.
TIMOTHY HANSON et al.,
Defendants.

Case No. 2:14-CV-883-CW
District Judge Clark Waddoups

The Amended Complaint here alleges civil-rights violations regarding Plaintiff’s
prosecution and conviction by the State of Utah for a crime occurring on August 1, 1994. The
procedural facts are best described by the Utah Supreme Court in State v. Rudolph, 970 P.2d
1221 (Utah 1998):
The State charged Rudolph with aggravated burglary, aggravated
sexual assault, and violation of a protective order. He appeared pro
se with the assistance of standby counsel. Following a jury trial in
late 1994, he was convicted of and sentenced on the charges of
aggravated burglary and violation of a protective order, but was
acquitted on the charge of aggravated sexual assault.
Rudolph appealed his convictions to this court. Because significant
portions of the trial transcript were incomplete due to technical
problems with the court reporter's machinery, we summarily
reversed his convictions and remanded his case to the trial court
for a new trial on the aggravated burglary and violation of a
protective order charges. On remand, the trial judge, Judge
Timothy R. Hanson, recused himself, and the case was reassigned
to Judge Pat B. Brian.
In February 1996, Rudolph's new trial began, and he again
appeared pro se. However, during the redirect examination of the
State’s first witness, the court granted Rudolph’s motion for a
mistrial. He also moved to recuse Judge Brian from further

proceedings in the case. Although Judge Brian apparently granted
this motion, he continued to preside over Rudolph’s third trial.
At the third jury trial, Rudolph was represented by court-appointed
counsel. He was again convicted of aggravated burglary and
violation of a protective order and was sentenced to concurrent
prison terms as prescribed by statute. Rudolph now appeals from
these convictions.
Id. at 1223-1224.
Plaintiff names these defendants: Timothy Hanson (judge at one of Plaintiff’s criminal
trials); Karen Stam (Plaintiff’s public defender); Charles Behrens, Barbara Byrne, and Katherine
Bernards Goodman (prosecutors); Erin Riley (Assistant Attorney General representing State in
Plaintiff’s state post-conviction proceeding); Michael Sibbett, Keith Hamilton, Jesse Gallegos,
and Curtis Garner (Utah Board of Pardons and Parole (BOP) members). 1 Service of the
Amended Complaint on Hanson, Byrne, Sibbett, and Hamilton remains unexecuted. Pending
motions to dismiss have been filed by Stam, Behrens and Bernard Goodman (together), Riley,
Gallegos, and Garner.
UNSERVED DEFENDANTS
The Court ordered service on all defendants in this case; however, despite extra efforts,
Hanson, Byrne, Sibbett, and Hamilton remain unserved. Even so, the Court exercises its
screening authority to dismiss these defendants.
A. Standard of Review
This Court shall dismiss any claims in a complaint filed in forma pauperis if they are
frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary

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Two defendants--Alex Huggard and Jeremy Holt--have already been dismissed from this action. (See Docket Entry
#s 44 & 66.)

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relief against an immune defendant. 28 U.S.C.S. § 1915(e)(2)(B) (2017). "Dismissal of a pro se
complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot
prevail on the facts he has alleged and it would be futile to give him an opportunity to amend."
Perkins v. Kan. Dep't of Corrs., 165 F.3d 803, 806 (10th Cir. 1999). When reviewing a
complaint’s sufficiency complaint the Court "presumes all of plaintiff's factual allegations are
true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d
1106, 1109 (10th Cir. 1991).
Because Plaintiff is proceeding pro se the Court must construe his pleadings "liberally"
and hold them "to a less stringent standard than formal pleadings drafted by lawyers." Id. at
1110. However, "[t]he broad reading of the plaintiff’s complaint does not relieve [him] of the
burden of alleging sufficient facts on which a recognized legal claim could be based." Id. While
Plaintiff need not describe every fact in specific detail, "conclusory allegations without
supporting factual averments are insufficient to state a claim on which relief can be based." Id.
B. Defendant Hanson
It is well settled that judges "are absolutely immune from suit unless they act in 'clear
absence of all jurisdiction,' meaning that even erroneous or malicious acts are not proper bases
for § 1983 claims." Segler v. Felfam Ltd. P'ship, No. 08-1466, 2009 U.S. App. LEXIS 10152, at
*4 (10th Cir. May 11, 2009) (unpublished) (quoting Stump v. Sparkman, 435 U.S. 349, 356-57
(1978)). Regarding the allegations here, Defendant Hanson acted in a judicial capacity in
presiding over a criminal trial, so he is entitled to absolute immunity. See Doran v. Sanchez, No.
08-2042, 2008 U.S. App. LEXIS 17987, at *2 (10th Cir. Aug. 19, 2008) (unpublished).
Defendant Hanson is thus dismissed.

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C. Defendant Byrne
A prosecutor acting within the scope of her duties enjoys absolute immunity from suit
under § 1983. Imbler v. Pachtman, 424 U.S. 409, 424 (1976). As a prosecutor, Defendant
Byrne’s acts, as alleged by Plaintiff, relate to advocacy before the court. Defendant Byrne is
therefore entitled to absolute prosecutorial immunity from this lawsuit.
D. Defendants Sibbett and Hamilton
These defendants will be treated together with their fellow BOP members in a section
below granting the motion to dismiss of Defendants Gallegos and Garner.
E. Conspiracy Claim against all Defendants
The Court includes in its screening section its short analysis regarding Plaintiff's
conspiracy claim. Such a claim requires Plaintiff to “specifically plead 'facts tending to show
agreement and concerted action.'" Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005)
(quoting Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983)). Plaintiff has not
met this responsibility in his complaint; his vague assertions that multiple people lied to effect
his illegal trial and incarceration, and, therefore, a conspiracy must be involved, are not enough.
This claim is thus dismissed as to all defendants.
MOTIONS TO DISMISS OF REMAINING DEFENDANTS
A. Standard of Review
To withstand a motion to dismiss brought under Federal Rule of Civil Procedure
12(b)(6), “a complaint must have enough allegations of fact, taken as true, ‘to state a claim to
relief that is plausible on its face.’” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214
(10th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While “‘a court

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must accept as true all of the allegations contained in a complaint,’” this rule does not apply to
legal conclusions. Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A] plaintiff must
offer specific factual allegations to support each claim.” Id. (citation omitted). A complaint
survives only if it “‘states a plausible claim for relief.’” Id. (quoting Iqbal, 556 U.S. at 679); see
also Manzanares v. Reyes, No. 2:14-CV-40, 2015 U.S. Dist. LEXIS 136437, at *3-5 (D. Utah
Sep. 14, 2015) (report and recommendation).
B. Defendant Stam
Defendant Stam’s motion was filed February 9, 2017. (Docket Entry # 57.) Plaintiff was
given thirty days to respond but did not. In any event, Defendant Stam’s argument is irrefutable.
“It is axiomatic that before a litigant may pursue and claim that he has been deprived of a
constitutional right--including the right to due process of law--he must first establish that the
challenged conduct constituted ‘state action.’” United States v. Int’l Bd. of Teamsters, 156 F.3d
354, 359 (2d Cir. 1998); see also Lindsey v. Thomson, 275 Fed. Appx. 744, 746 (10th Cir. 2007).
Public defenders do not act under color of state law when representing clients. Polk
County v. Dodson, 454 U.S. 312, 325 (1981); see also Shue v. Custis, 531 Fed. Appx. 941, 942
(10th Cir. 2013) (“It is long established that public defenders do not act under color of state law
while providing legal assistance to a client accused of criminal wrongdoing.”). Public defenders
act independent of any state authority. See Zapata v. Public Defenders Office, 252 Fed. Appx.
237, 239 (10th Cir. 2007). The Court thus grants Defendant Stam’s motion to dismiss.

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C. Defendants Behrens and Bernards-Goodman
Plaintiff objected to Defendants’ joint motion to dismiss. (Docket Entry #s 35 & 41.)
Defendants persuasively argue that, as criminal prosecutors, they have absolute immunity from
Plaintiff’s claims as alleged.
“[A]bsolute immunity defeats a suit at the outset, so long as the official’s actions were
within the scope of the immunity.” PJ v. Wagner, 603 F.3d 1182, 1195 (10th Cir. Utah 2010)
(brackets in original) (internal quotation marks omitted) (quoting Spielman v. Hildebrand, 873
F.2d 1377, 1381 (10th Cir. Kan. 1989); Imbler v. Pachtman, 424 U.S. 409, 430 (U.S. 1976)).
Both Defendants Behrens and Bernards-Goodman were deputy district attorneys at the time they
prosecuted Plaintiff. Behrens represented the State of Utah in the first trial, and BernardsGoodman represented the State of Utah in the third trial, and both are entitled to absolute
immunity. The United States Supreme Court, in Imbler, held “that in initiating a prosecution and
in presenting the State’s case, the prosecutor is immune from a civil suit for damages under §
1983.” 424 U.S. at 431. Plaintiff’s allegations against Behrens and Bernards-Goodman relate
only to their actions in prosecuting him. This entitles them to absolute prosecutorial immunity.
See Coleman v. Stephens, No. 16-6057, 2016 U.S. App. LEXIS 11656, at *2 (10th Cir. June 23,
2016). Moreover, Plaintiff has alleged no facts which, taken as true, would remove Defendants
from the coverage of prosecutorial immunity.
Accordingly, the Count concludes that Defendants Behrens and Bernard-Goodman are
entitled to absolute immunity and the Amended Complaint should be dismissed with prejudice
with respect to them.

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D. Defendant Riley
Plaintiff objected to Defendant’s joint motion to dismiss. (Docket Entry #s 37 & 46.)
Defendant persuasively argues that, as a criminal prosecutor representing the State in a postconviction proceeding, has absolute immunity from Plaintiff’s claims as alleged.
The Tenth Circuit has held, “’Absolute immunity applies to the adversarial acts of
prosecutors during post-conviction proceedings, including direct appeals, habeas corpus
proceedings, and parole proceedings, where the prosecutor is personally involved in the
subsequent proceedings and continues his role as an advocate.’” Ellibee v. Fox, 244 Fed. Appx.
839, 844-45 (10th Cir. 2007) (quoting Spurlock v. Thompson, 330 F.3d 791, 799 (6th Cir. 2003));
see also Robinson v. Volswagenwerk AG, 940 F.2d 1369, 1373 (10th Cir. 1991) ( noting absolute
immunity also has been extended to government lawyers involved in civil proceedings). In
Ellibee, the Plaintiff tried to say that prosecutorial immunity did not apply to counsel “acting as a
defense counsel for the stat in a civil habeas action” and was explicitly rejected by the Tenth
Circuit. Id.
The Count therefore concludes that Defendant Riley is entitled to absolute immunity and
the Amended Complaint should be dismissed with prejudice as to her.
E. Defendants Sibbett, Hamilton, Gallegos and Garner
Defendant Garner filed a motion to dismiss. (Docket Entry # 29.) Plaintiff responded.
(Docket Entry # 33.) Defendant Gallegos filed a substantially similar motion to dismiss. (Docket
Entry # 59.) Plaintiff filed objections to their arguments. (Docket Entry # 61.)
Because the arguments for Garner and Gallegos are essentially the same as those that
would be made for Sibbett and Hamilton, the Court grants the motions to dismiss as to all four of

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these BOP defendants. (Garner’s Motion to Dismiss, Docket Entry # 29, p. 5 n.2) (“Although
they have yet to be served, these same arguments apply to former Utah Board of Pardons and
Parole members Michael Sibbett, Keith Hamilton, and Jesse Gallegos. Requiring service upon
them is therefore futile and a waste of judicial resources.”).
The Tenth Circuit has long held that members of the BOP are “absolutely immune from
damages liability for actions taken in performance of the [BOP’s] official duties.” Knoll v.
Webster, 838 F.2d 450 451 (10th Cir. 1988). This means that these BOP defendants may not be
sued because Plaintiff did not like or disagreed with decisions they made as members of BOP.
None of the Amended Complaint’s claims overcome BOP Defendants defense of absolute
immunity. The Court therefore grants BOP Defendants’ motions to dismiss.
CONCLUSION
In screening the Amended Complaint, the Court concludes that it fails to state a claim
upon which relief may be granted regarding Defendants Hanson and Byrne and Plaintiff’s broad
conspiracy claim construed to be against all Defendants.
IT IS THEREFORE ORDERED that Defendants Hanson and Byrne and Plaintiff’s
conspiracy claim construed against all Defendants are DISMISSED.
IT IS FURTHER ORDERED that motions to dismiss as to Defendants Stam, Behrens,
Bernards-Goodman, Riley, Sibbett, Hamilton, Gallegos, and Garner are all GRANTED. (Docket
Entry #s 29, 35, 37, 57 & 59.)

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IT IS FINALLY ORDERED that Plaintiff’s motion for relief from the order dismissing
Defendant Huggard is DENIED. (Docket Entry # 72.)
This case is CLOSED.
DATED this 2nd day of October, 2017.
BY THE COURT:

CLARK WADDOUPS
United States District Judge

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