Crane v. Utah Department of Corrections et al

Filing 58

MEMORANDUM DECISION AND ORDER granting 16 Motion to Dismiss for Failure to State a Claim; granting 26 Motion to Dismiss; denying 40 Motion to Quash; claims against defendants Jeremy Cottle and Futures Through Choices are dismissed. Signed by Judge David Nuffer on 9/28/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

JANET CRANE, as Administrator of the
Estate of BROCK TURNER,
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER DISMISSING FTC AND COTTLE
Case No. 2:16-CV-1103 DN
District Judge David Nuffer

UTAH DEPARTMENT OF CORRECTIONS,
ALFRED BIGELOW, RICHARD GARDEN,
DON TAYLOR, OFFICER COX, BRENT
PLATT, SUSAN BURKE, FUTURES
THROUGH CHOICES, INC., UNIVERSAL
HEALTH SERVICES, INC., and JEREMY
COTTLE,
Defendants.

Plaintiff, Janet Crane, as Administrator of the Estate of Brock Turner, filed a pro se civil-rights
complaint, see 42 U.S.C.S. § 1983 (2017). The case stems from BrockTurner’s suicide while in state
custody.
Defendants Futures Through Choices (FTC) and Jeremy Cottle have moved separately to be
dismissed from the case. The se motions are granted, but on grounds different than those argued in the
motions. 1 These grounds are raised sua sponte by the court.

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The grounds of statute of limitations and determining whether FTC and Jeremy Cottle were providing medical care are
disregarded because of the clear result under the grounds discussed in this order and because the parties indicated that the
statute of limitations issue may be a matter of unsettled state law and the matter of medical care may be too factually based
to support a dismissal for failure to state a claim.

ANALYSIS
1. Standard for Dismissal
In evaluating the propriety of dismissing a defendant for failure to state a claim upon which
relief may be granted, all well-pleaded factual assertions are taken as true and regarded in a light most
advantageous to the plaintiff. Ridge at Red Hawk L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007). Dismissal is appropriate when, viewing those facts as true, the plaintiff has not posed a
“plausible” right to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Robbins v.
Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). “The burden is on the plaintiff to frame a
‘complaint with enough factual matter (taken as true) to suggest’ that he or she is entitled to relief.”
Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 556). When a civil rights complaint contains
“bare assertions,” involving “nothing more than a ‘formulaic recitation of the elements’ of a
constitutional . . . claim,” the Court considers those assertions “conclusory and not entitled to” an
assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009) (quoting Twombly, 550 U.S. at
554-55). In other words, “the mere metaphysical possibility that some plaintiff could prove some set of
facts in support of the pleaded claims is insufficient; the complaint must give the court reason to
believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”
Red Hawk, 493 F.3d at 1177 (italics in original).
2. There Are Few Factual Allegations as to FTC and Cottle
The Fourth Claim for Relief in the Amended Complaint (at p. 30) lumps together several
defendants, including FTC and Cottle, as Utah Division of Child and Family Services (DCFS)
Defendants. Otherwise, there are few allegations directly stated against FTC and Cottle.

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In identifying FTC, the Amended Complaint states:
Defendant [FTC] is a private 501(c)(3) corporation, located in Bountiful,
Utah. At all relevant times, FTC was operating under contract with DCFS,
received juveniles via in-custody detention, and was acting under color of
law. At all relevant times, FTC employed the staff member(s) who
physically assaulted Brock while Brock was involuntarily confined at its
facility in 2008.
(See Docket Entry # 39, ¶ 30.)
Regarding Cottle, the Amended Complaint reads:
[Defendant Cottle], at all relevant times, was the CEO and Managing
Director of Provo Canyon School, who failed to provide adequate mental
health treatment to Brock, failed to provide reasonably safe conditions of
confinement, failed to adequately train and supervise the staff, and further
failed to protect Brock from being subjected to inhumane conditions as
well as from being physically attacked by staff members.
(See id., at ¶ 16.) Other than this, Defendant Cottle is not mentioned by name in the Amended
Complaint.
No individual FTC staff members are named in the Amended Complaint. The Amended
Complaint does allege in the Factual Background and Fourth Claim for Relief that individual FTC staff
members attacked Brock (Amended Complaint, at ¶¶ 14, 31, and 132) and but never names them.
3. The Section 1983 Claim Against FTC and Cottle Are Dismissed
Section 1983 establishes a private cause of action for persons deprived “of any rights,
privileges, or immunities secured by the [Federal] Constitution and laws” by a person acting under
color of state law. 42 U.S.C.S. § 1983 (2017). The Amended Complaint specifically alleges that DCFS
Defendants are liable to Plaintiff under § 1983 because they violated the Fourteenth Amendment
guarantee
that a person who is involuntarily confined to a juvenile facility retains
liberty interests that are protected by the due process clause, including but
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not limited to, the right to reasonably safe conditions of confinement; the
right to be free from unreasonable bodily restraints; and the right to such
minimally adequate training of facility staff as reasonably may be required
by such liberty interests.
(See Amended Complaint, at ¶ 123.)
The allegations against FTC and Cottle fail, for different reasons.
a. FTC
FTC was contracted by a state agency, DCFS; so, this Order assumes, without deciding, that
FTC is named in the Amended Complaint as an arm of the State of Utah. Otherwise, this private entity
could not be sued under § 1983 (as a state actor).
As to claims against the State, generally, the Eleventh Amendment prevents “suits against a
state unless it has waived its immunity or consented to suit, or if Congress has validly abrogated the
state’s immunity.” Ray v. McGill, No. CIV-06-0334-HE, 2006 U.S. Dist. LEXIS 51632, at *8 (W.D.
Okla. July 26, 2006) (unpublished) (citing Lujan v. Regents of Univ. of Cal., 60 F.3d 1511, 1522 (10th
Cir. 1995); Eastwood v. Dep’t of Corrs., 846 F.2d 627, 631 (10th Cir. 1988)). Plaintiff asserts no basis
for concluding that the State has waived its immunity or that its immunity has been legislatively
abrogated. Because any claims against the State are precluded by Eleventh Amendment immunity, this
court has no subject-matter jurisdiction to consider them. See id. at *9. Therefore, the § 1983 claim
against FTC must be dismissed.
b. Cottle
Defendant Cottle is named only in a passive capacity as director of Provo Canyon School
(PCS). There are no assertions that he even knew of Brock or Brock’s PCS stay, or had any personal

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involvement with or knowledge of Brock or the assaults. And so Plaintiff’s claim against him has no
factual support.
To survive dismissal for failure to state a claim, a § 1983 claim must clearly state what each
individual defendant did to violate Plaintiff’s civil rights. See Bennett v. Passic, 545 F.2d 1260, 126263 (10th Cir. 1976) (stating personal participation of each named defendant is essential allegation in
civil-rights action). “To state a claim, a complaint must ‘make clear exactly who is alleged to have
done what to whom.’“ Stone v. Albert, No. 08-2222, 2009 U.S. App. LEXIS 15944, at *4 (10th Cir.
July 20, 2009) (unpublished) (emphasis in original) (quoting Robbins, 519 F.3d at 1250). Moreover,
Plaintiff may not name an entity or individual as a defendant based solely on supervisory position. See
Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (stating supervisory status alone is
insufficient to support liability under § 1983). Plaintiff disregarded these tenets in drafting this claim
against Defendant Cottle and the claim is therefore dismissed.
4. The Claim Against FTC and Cottle of Unnecessary Rigor under the Utah Constitution Fails
The Sixth Claim for Relief alleges a claim against all defendants under Article I, section 9 of the
Utah Constitution. It states in pertinent part, “Persons arrested or imprisoned shall not be treated with
unnecessary rigor.” The Tenth Circuit set forth the requirements of such a claim:
To violate the clause, the Utah Supreme Court requires the government
action expose a person to a “substantial risk of serious injury.” Dexter v.
Bosko, 2008 UT 29 ¶ 19, 184 P.3d 592, 597 (Utah 2008). . . . And “[w]hen
the claim of unnecessary rigor arises from an injury, a constitutional
violation is made out only when the act complained of presented a
substantial risk of serious injury for which there was no reasonable
justification at the time.” Id. “[T]he conduct at issue,” moreover, must be
“more than negligent to be actionable.” Id. at 597, 2008 UT 29 ¶ 21. In
addition to these demanding standards, a complainant must also establish:
(1) a “flagrant violation” of the Constitution: (2) “existing remedies” do
not redress the injuries: and (3) equitable relief is inadequate. Jensen ex
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rel. Jensen v. Cunningham, 250 P.3d 465, 478, 2011 UT 17 ¶ 48 (Utah
2011).
To establish the “flagrant violation” element, the complainant must how
“the conduct violates clearly established constitutional rights of which a
reasonable person would have known.” Id. at 482. . . . In the absence of
clear, on point precedent recognizing the claimed right, the defendant’s
conduct must be egregious and unreasonable. Jensen, 250 P.3d at 482,
2011 UT 17 ¶ 67; see also Dexter, 184 P.3d598, 2008 UT 29 ¶ 25 (“If an
official knowingly and unjustifiably subjects an inmate to circumstances
previously identified as being unnecessarily rigorous, that is obviously a
flagrant violation. Where a clear prohibition has not been previously
known to the official, more may be required to establish a flagrant
violation.”). An officer violates the unnecessary rigor clause in an
egregious manner where his act presents an “obvious and known risk of
harm” and he acts without “reasonable justification,” knowing that risk.
Dexter, 184 P.3d 598, 2008 UT 29 ¶ 25.
Brown v. Larsen, 653 Fed. Appx. 577, 578-579 (10th Cir. 2016).
Plaintiff includes FTC and Cottle in her unnecessary-rigor claim against without alleging they
did anything. The true culprits of these allegations are “unknown Defendants.” Guerrero v. Crowther,
2017 U.S. Dist. LEXIS 53803, at *9 (D. Utah Apr. 6, 2017) (quotation marks & citation omitted).
Plaintiff’s allegations that FTC and Cottle failed to protect Brock from assault without establishing any
basis that they even knew assaults were possible or happening; that random employees “with a history
of violence pose[d] a danger to” Brock, and that FTC and Cottle were themselves “deliberately
indifferent to [Brock’s] safety, are conclusory statements devoid of supporting factual allegations and
are insufficient to support their claims.” See id. (citing Iqbal, 129 S. Ct. at 1949-50) (stating
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements
does not suffice” and “[w]hile legal conclusions can provide the framework of a complaint, they must
be supported by factual allegations”). The conclusions in Guerrero apply to these defendants.
No supporting factual allegations reflect that [FTC and Cottle’s] alleged
actions presented a substantial risk of serious injury to [Brock] for which
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there was no reasonable justification. No supporting factual allegations
regarding [FTC and Cottle] reflect that [they] knowingly and unjustifiably
subjected [Brock] to circumstances previously identified as unnecessarily
rigorous so as to constitute a flagrant violation. No supporting factual
allegations reflect that [FTC and Cottle’s] alleged conduct was egregious
and unreasonable. No supporting factual allegations reflect that [FTC and
Cottle’s] alleged acts presented an obvious and known serious risk of
harm and that [they] acted without reasonable justification knowing that
risk. No supporting allegations reflect that [FTC and Cottle] personally
participated in the alleged unconstitutional conduct, or that there is a
causal connection between [their] alleged action and the alleged
deprivation. And no factual allegations support that [FTC and Cottle]
knew anything about [Brock’s] housing situation [or about staff’s potential
to assault facility residents]. Because of these shortcomings, Plaintiff’s
Utah Constitutional claim is subject to dismissal.
Guerrero at *9-11.
For the reasons so well stated in Guerrero, the Sixth Claim for Relief under the Utah
Constitution is dismissed as to FTC and Cottle.

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CONCLUSION
Defendants FTC and Cottle--Plaintiff’s complaint fails to state a claim upon which relief may
be granted. See 28 U.S.C.S. § 1915(e)(2)(B)(ii) (2017).
Accordingly, IT IS HEREBY ORDERED that their motions to dismiss are GRANTED, albeit
on different grounds from what they argued. (Docket Entry #s 16 & 26.) Claims against defendants
FTC and Cottle are DISMISSED.
IT IS FURTHER ORDERED that the motion by Brock’s former attorneys to quash Plaintiff’s
subpoenas for their records regarding Brock is DENIED. (Docket Entry # 40.)
Signed September 28, 2017.
BY THE COURT

________________________________________
David Nuffer
United States District Judge

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