Roberts v. Cottonwood Heights City et al
Filing
29
MEMORANDUM DECISION and ORDER granting 20 Motion to Dismiss; granting 21 Motion to Dismiss for Lack of Jurisdiction and for Judgment on the Pleadings. Signed by Judge Ted Stewart on 5/3/2016. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
LANI ROBERTS,
Plaintiff,
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS AND FOR
JUDGMENT ON THE PLEADINGS
v.
COTTONWOOD HEIGHTS CITY,
COTTONWOOD HEIGHTS CITY
POLICE DEPARTMENT,
COTTONWOOD HEIGHTS POLICE
CHIEF ROBBY RUSSO, and
COTTONWOOD HEIGHTS POLICE
OFFICER BROADHEAD, in his individual
and official capacity,
Case No. 2:15-CV-839 TS
District Judge Ted Stewart
Defendants.
This matter is before the Court on Defendants Cottonwood Heights City, Cottonwood
Heights City Police Department, and Cottonwood Heights Police Chief Robby Russo’s Motion
to Dismiss,1 and Defendant David Broadhead’s Motion to Dismiss for Lack of Subject Matter
Jurisdiction and for Judgment on the Pleadings. For the reasons discussed below, the Court will
grant the Motions.
I. BACKGROUND
The following facts are taken from Plaintiff’s Amended Complaint and are assumed to be
true for the purposes of Defendants’ Motions.
Plaintiff Lani Roberts is the owner of a 7-Eleven franchise located in Cottonwood
Heights, Utah. The 7-Eleven is a busy convenience store with a relatively small parking lot.
1
Since Defendants have filed an Answer, the Court considers Defendants’ Motion as a
Motion for Judgment on the Pleadings under Rule 12(c).
1
Cottonwood Heights City police officers often use the parking lot, preventing others from doing
so. Plaintiff alleges that “[t]he constant and overwhelming police presence at the 7-Eleven has
interfered with Roberts’ business and resulted in less public traffic to the store.” 2 Plaintiff has
lodged several complaints about officers using the parking lot and met with Cottonwood Heights
Police Chief Robby Russo about the situation. After the meeting, individual officers made clear
that they were offended by Plaintiff’s request that they not use the parking lot.
The Cottonwood Heights Police Department conducted alcoholic beverage sales
compliance checks on Plaintiff’s 7-Eleven store on various occasions. On February 16, 2013,
and again on May 17, 2013, employees failed these compliance checks by allowing an
undercover minor to purchase alcohol. The sales clerks were charged with violations of Utah
Code Ann. § 32B-4-403 for selling and furnishing alcohol to a minor. Plaintiff played no role in
the sales of alcohol to minors.
Cottonwood Heights brought charges against Plaintiff personally for violations of Utah
Code Ann. § 32B-4-403 and § 32B-4-302. The City stated a policy of filing criminal charges
against owners whose businesses had twice failed compliance checks within the last two years.
Plaintiff alleges that Cottonwood Heights brought charges against owners of three other
convenience stores with similar violations. However, charges were not filed against owners of
two other stores with violations. Plaintiff alleges that the owners of these stores did not face
prosecution because of their relationship with the City and the police department.
In state court, the City argued that Utah Code Ann. § 32B-4-302 imposed strict liability
on owners of establishments that violated the law. The stated court rejected this argument,
2
Docket No. 2 Ex. 2 ¶ 20.
2
finding the appropriate standard to be intentionally, knowingly, or recklessly. Cottonwood
Heights moved to dismiss the charges against Plaintiff on September 16, 2014, and those charges
were dismissed. Plaintiff alleges that she has incurred damages as a result of the prosecution.
II. STANDARD OF REVIEW
Under Rule 12 of the Federal Rules of Civil Procedure, a party can move to have a claim
dismissed for “failure to state a claim upon which relief can be granted.” 3 Since Defendants
have filed Answers, the Court considers Defendants’ Motions under Rule 12(c). 4 The Court
applies the same standards in evaluating motions under Rule 12(b)(6) and Rule 12(c). 5
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. 6 Plaintiff must provide “enough facts to state a claim to relief that is
plausible on its face,” 7 which requires “more than an unadorned, the-defendant-unlawfully
harmed-me accusation.” 8 “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.’” 9
3
Fed. R. Civ. P. 12(h)(2)(B).
4
As Plaintiff has conceded her state-law claims, the Court need not consider that portion
of Defendants’ Motions requesting dismissal for lack of subject matter jurisdiction.
5
See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n. 2 (10th Cir. 2002).
6
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.
7
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
8
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
9
Id. (quoting Twombly, 550 U.S. at 557) (alteration in original).
1997).
3
“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.” 10 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
permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not shown—that the pleader is entitled to
relief. 11
III. DISCUSSION
Plaintiff’s Amended Complaint asserted four causes of action: malicious prosecution,
abuse of process, violation of 42 U.S.C. § 1983 based on malicious prosecution, and violation of
42 U.S.C. § 1983 based on selective prosecution. Plaintiff has conceded her state-law claims for
malicious prosecution and abuse of process, and further concedes that Defendant Cottonwood
Heights Police Department is not a proper party. Thus, the Court need only address Plaintiff’s
two claims under § 1983.
A.
MALICIOUS PROSECUTION
“[A] § 1983 malicious prosecution claim includes the following elements: (1) the
defendant caused the plaintiff’s continued confinement or prosecution; (2) the original action
terminated in favor of the plaintiff; (3) no probable cause supported the original arrest, continued
confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained
10
Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
11
Iqbal, 556 U.S. at 679 (internal citations and quotation marks omitted).
4
damages.” 12 The question presented by Defendants’ Motions is whether Plaintiff has sufficiently
alleged that there was no probable cause to support her prosecution.
“Probable cause exists if the facts and circumstances are sufficient to warrant a person of
reasonable caution to believe a crime has been committed.” 13 Utah Code Ann. § 32B-4-403
makes it is unlawful to sell, offer for sale, or furnish an alcoholic product to a minor. Section
32B-4-302(1)(a) provides:
If a violation of this title is committed by a person in the employ of the occupant
of premises in which the offense is committed, or by a person who is required by
the occupant to be or remain in or upon the premises, or to act in any way for the
occupant, notwithstanding the fact that the offense is committed by a person who
is not proved to have committed it under or by the direction of the occupant, the
occupant is:
(i) prima facie considered a party to the offense committed; and
(ii) liable as a principal offender.
The allegations in the Amended Complaint reveal that Plaintiff’s employees sold
alcoholic products to minors on two occasions in violation of Utah Code Ann. § 32B-4-403.
Plaintiff further alleges that she is the owner of the 7-Eleven franchise that occupies the premise
in which the offenses were committed. Based on the plain language of the statute, Defendants
assert that there was probable cause to prosecute Plaintiff for a violation of Utah Code Ann. §
32B-4-302 and hold her liable as a principal offender, notwithstanding the fact that the offense
was not committed under or by the direction of Plaintiff. The Court agrees. Plaintiff’s Amended
Complaint alleges that two of her employees sold alcohol to minors in violation of Utah Code
Ann. § 32B-4-403. As the owner and occupant of the premises in which the violation was
12
Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008).
13
McCarty v. Gilchrist, 646 F.3d 1281, 1286 (10th Cir. 2011).
5
committed, Plaintiff was “prima facie considered a party to the offense committed” and “liable
as a principal offender.” 14
Plaintiff argues that various factual disputes prevent dismissal. This argument, however,
demonstrates a misunderstanding of the procedural posture of this case. As set forth above, the
facts at issue are taken from Plaintiff’s Amended Complaint and are accepted as true and viewed
in the light most favorable to her. Thus, there are no factual disputes to resolve, as Plaintiff
suggest.
Plaintiff correctly argues that the existence of probable cause is generally a mixed
question of law and fact. However, this does not mean that the existence of probable cause, or
lack thereof, may never be decided on a motion for judgment on the pleadings. The Tenth
Circuit has stated: “The question of probable cause is a mixed question of law and fact. Whether
the circumstances alleged to show it probable or true, and existed, is a matter of fact; but
whether, supposing them to be true, they amount to probable cause, is a question of law.” 15 As
set forth above, even assuming the facts set forth in Plaintiff’s Amended Complaint to be true,
probable cause existed to support Plaintiff’s prosecution.
Plaintiff argues that the dismissal of the underlying criminal case demonstrates a lack of
probable cause. This argument, however, conflates the elements Plaintiff must sufficiently
14
Utah Code Ann. § 32B-4-302(1)(a).
15
Rouse v. Burnham, 51 F.2d 709, 712 (10th Cir. 1931); see also Smith v. Lamz, 321 F.3d
680, 684 (7th Cir. 2003) (“The determination of probable cause is normally a mixed question of
law and fact, but when ‘what happened’ questions are not at issue, the ultimate resolution of
whether probable cause existed is a question of law . . . .”) (citation omitted).
6
allege to prevail on her claim. Further, the fact that the charges were later dismissed is not
determinative. 16 “Probable cause does not require facts sufficient for a finding of guilt.” 17
Even if Plaintiff sufficiently alleged a constitutional violation, Defendants Russo and
Broadhead would nonetheless be entitled to qualified immunity. Qualified immunity shields law
enforcement officials who reasonably but mistakenly conclude that probable cause is present. 18
“A reasonable mistake in interpreting a criminal statute, for purposes of determining whether
there is probable cause to arrest, entitles an officer to qualified immunity.” 19 “[A]n officer’s
mistake of law may be reasonable if the law is ambiguous (reasonable minds could differ on the
interpretation) and it has never been previously construed by the relevant courts.” 20 As set forth
above, a fair reading of the statute could lead a reasonable officer to conclude that there was
sufficient probable cause to bring charges against Plaintiff. This is especially true since, at least
at the time charges were filed, there had been no construction of the statue by a Utah court.
Plaintiff argues that the question of qualified immunity cannot be determined at this stage
because questions of Defendants’ interpretation of the statute and motivation for bringing the
charges are undecided. However, the inquiry for qualified immunity is an objective one. “We
16
Dutton v. City of Midwest City, 630 F. App’x 742, 745 (10th Cir. 2015); see also
Gaschler v. Scott Cty., Kan., 141 F.3d 1184, at *2 (10th Cir. 1998) (unpublished table decision)
(“The fact that the criminal charges were eventually dismissed does not establish there was no
probable cause to file the charges.”).
17
United States v. Morris, 247 F.3d 1080, 1088 (10th Cir. 2001).
18
Cortez v. McCauley, 478 F.3d 1108, 1120 (10th Cir. 2007).
19
Mocek v. City of Albuquerque, 813 F.3d 912, 927 (10th Cir. 2015).
20
United States v. Cunningham, 630 F. App’x 873, 877 (10th Cir. 2015) (citing Heien v.
N.C., ---U.S.---, 135 S.Ct. 530, 540 (2014)).
7
do not examine the subjective understanding of the particular officer involved.” 21 “An officer’s
subjective understanding of the law is irrelevant.” 22
B.
SELECTIVE PROSECUTION
Plaintiff’s fourth cause of action for selective prosecution is asserted only against
Defendant Cottonwood Heights. “In order to prevail on a claim of selective prosecution, a
[plaintiff] must show that ‘[s]he has been singled out for prosecution while others similarly
situated generally have not been proceeded against for the type of conduct forming the basis of
the charge against [her].’” 23
Here, rather than alleging that she has been singled out for prosecution while others have
not, Plaintiff specifically alleges that owners of other similarly situated convenience stores have
faced prosecution for similar conduct. There are no allegations that the owners of these stores
lodged any complaints against Cottonwood Heights or its police force. While Plaintiff alleges
that two store owners have not faced prosecution, by her own allegations Plaintiff admits that the
majority of store owners with two or more violations have faced prosecution. Therefore, this
claim fails.
IV. CONCLUSION
It is therefore
ORDERED that Defendants’ Motions to Dismiss and for Judgment on the Pleadings
(Docket Nos. 20 and 21) are GRANTED.
21
Heien, 135 S.Ct. at 539.
22
Cunningham, 630 F. App’x at 876.
23
United States v. Furman, 31 F.3d 1034, 1037 (10th Cir. 1994) (quoting United States v.
Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983)).
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The Clerk of the Court is directed to close this case forthwith.
DATED this 3rd day of May, 2016.
BY THE COURT:
Ted Stewart
United States District Judge
9
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