Prisbry v. Barnes et al

Filing 36

MEMORANDUM DECISION AND ORDER ADOPTING 32 REPORT AND RECOMMENDATIONS re 11 Motion to Dismiss, 25 Motion to Amend/Correct, and 31 Motion to Amend/Correct: case is dismissed with prejudice. Signed by Judge David Nuffer on 3/27/18 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
TERRY PRISBRY, 1
Plaintiff,

MEMORANDUM DECISION AND
ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
Case No. 2:17-cv-00723-DN-PMW
KEITH C. BARNES, GARY R. HERBERT,
and MATTHEW B. DURRANT,

District Judge David Nuffer

Defendant.
The Report and Recommendation 2 issued by United States Magistrate Judge Paul M.
Warner on March 1, 2018 recommends that Defendants’ Motion to Dismiss 3 be granted;
Plaintiff’s Motion to Amend Complaint 4 be denied; and this case be dismissed with prejudice.
Plaintiff timely objected to the Report and Recommendation on March 14, 2018. 5
Specifically, Plaintiff objected to the Magistrate Judge’s determinations that (1) Plaintiff is not
entitled to the appointment of counsel; (2) judicial immunity precludes Plaintiff’s claims against
Defendant Keith C. Barnes (“Judge Barnes”); (3) Plaintiff’s claims for injunctive relief are
barred; (4) Plaintiff failed to state a claim on which relief may be granted against Defendants
Gary R. Herbert (“Governor Herbert”) and Matthew C. Durrant (“Chief Justice Durrant”); and
(5) amendment of Plaintiff’s complaint would be futile.

1

Plaintiff’s last name is spelled two different ways in his court filings: “Prisbry” and “Prisbrey.”

2

Docket no. 32, filed Mar. 1, 2018.

3

Docket no. 11, filed July 21, 2017.

4

Docket no. 25, filed Sept. 18, 2017.

5

Plaintiffs [sic] Oposition [sic] Resonse [sic] to Courts [sic] Report and Recomendations [sic] (“Objection”),
docket no. 35, filed Mar. 15, 2018.

De novo review 6 has been completed of those portions of the Report and
Recommendation to which objection was made, including the record that was before the
Magistrate Judge and the reasoning set forth in the Report and Recommendation. Because the
analysis and conclusions of the Magistrate Judge are correct, they are accepted and the Report
and Recommendation 7 is ADOPTED.
DISCUSSION
Plaintiff is Not Entitled to the Appointment of Counsel
Plaintiff asserts that he has a disability caused by a traumatic brain injury. 8 He argues that
“[t]his court has the ability to appoint council [sic] for a fair trial [and] equal protection under
the law yet it has elected not to . . . .” 9
“There is no constitutional right to appointed counsel in a civil case.” 10 Rather, “[t]he
appointment of counsel in a civil case is left to the sound discretion of the district court.” 11
Factors for making this determination include: “the merits of the litigant’s claims, the nature of
the factual issues raised in the claims, the litigant’s ability to present his claims, and the
complexity of the legal issues raised by the claims.” 12
As discussed below, Plaintiff’s claims are without merit. This is not because Plaintiff
lacks the ability to present his claims or to adequately convey information and argument.

6

28 U.S.C. § 636(b).

7

Docket no. 32, filed Mar. 1, 2018.

8

Objection at 2.

9

Id.

10

Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989).

11

Shabazz v. Askins, 14 F.3d 533, 535 (10th Cir. 1994).

12

Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).

2

Plaintiff’s Complaint 13 and his arguments 14 are thorough and readily understandable. Nor are
Plaintiff’s claims deficient because Plaintiff is appearing pro se, and the factual and legal issues
are complex. They are not. Rather, Plaintiff’s claims fail because the facts Plaintiff alleges
cannot support his claims as a matter of law. These circumstances do not justify the appointment
of counsel. Appointed counsel would not materially assist Plaintiff or the disposition of this case.
Therefore, Plaintiff is not entitled to the appointment of counsel. The Magistrate Judge’s
determination was correct.
Judge Barnes is Entitled to Absolute Judicial Immunity
Judge Barnes is a state court judge for Utah’s Fifth Judicial District Court, who presided
over Plaintiff’s divorce case. 15 Plaintiff alleges that Judge Barnes’s rulings in that case violated
Plaintiff’s constitutional rights. 16 He seeks monetary damages and injunctive relief. 17
“[J]udges of general jurisdiction are absolutely immune from monetary liability for their
judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been
done maliciously or corruptly.” 18 The only exceptions are when the “actions are not taken in the
judge’s judicial capacity[,]” or when the actions, “though judicial in nature, [are] taken in the
complete absence of all jurisdiction.” 19

13

Docket no. 2-1, filed June 30, 2017.

14

Plaintiffs [sic] Response to Defendants [sic] Motion to Dismiss be Denied, docket no. 24, filed Sept. 18, 2017;
Objection.
15

Complaint at 3.

16

Id. at 3-7, 9-15.

17

Id. at 7-9.

18

Stump v. Sparkman, 435 U.S. 349, 364-65 (1978) (internal quotations omitted).

19

Mireles v. Waco, 502 U.S. 9, 11-12 (1991).

3

The facts alleged in support of Plaintiff’s claims against Judge Barnes pertain to and arise
out of judicial actions taken by Judge Barnes in his judicial capacity. 20 And Judge Barnes had
jurisdiction to take these judicial actions in Plaintiff’s divorce case. 21 Therefore, Judge Barnes is
entitled to absolute judicial immunity, and Plaintiff’s claim for monetary damages against Judge
Barnes fails as a matter of law. The Magistrate Judge’s determination was correct.
Plaintiff’s Claims for Injunctive Relief are Barred
Plaintiff seeks various forms of injunctive relief under 42 U.S.C. § 1983 from Judge
Barnes’s rulings in Plaintiff’s divorce case. 22 Section 1983 provides that “in any action brought
against a judicial officer for an act or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief
was unavailable.” 23
Plaintiff does not allege and cannot show that Judge Barnes violated a declaratory decree
or that declaratory relief was unavailable. Therefore, Section 1983 bars Plaintiff’s claims for
injunctive relief. The Magistrate Judge’s determination was correct.
Plaintiff Fails to State a Claim Against Governor Herbert and Chief Justice Durrant
Plaintiff asserts claims under 42 U.S.C. § 1983 against Governor Herbert and Chief
Justice Durrant for failing to properly train, monitor, and oversee Judge Barnes. 24 “Under
[Section] 1983, government officials are not vicariously liable for the misconduct of their
subordinates.” 25 “Supervisors are only liable under [Section] 1983 for their own culpable

20

Complaint at 3-7, 12-15.

21

Utah Code Ann. § 78A-5-102(1).

22

Id. at 7-9.

23

42 U.S.C. § 1983.

24

Complaint at 11-13.

25

Serna v. Colorado Dep’t of Corrections, 455 F.3d 1146, 1151 (10th Cir. 2006).

4

involvement in the violation of a person’s constitutional rights.” 26 “[I]t is not enough for a
plaintiff merely to show a defendant was in charge of other state actors who actually committed
the violation.” 27 “[T]he plaintiff must establish a deliberate, intentional act by the supervisor to
violate constitutional rights.” 28 In other words, “the supervisor must be personally involved in
the constitutional violation, and a sufficient causal connection must exist between the supervisor
and the constitutional violation.” 29
Governor Herbert is the chief executive officer of the State of Utah, and as such, is not
Judge Barnes’s supervisor. Separation of Powers prohibits such interference with the judicial
system by the executive branch. 30 Chief Justice Durrant is also not Judge Barnes’s supervisor by
virtue of position as the Chief Justice of the Utah Supreme Court. Therefore, Plaintiff’s claims
against Governor Herbert and Chief Justice Durrant fail as a matter of law.
But even if Governor Herbert and Chief Justice Durrant were Judge Barnes’s supervisors,
Plaintiff fails to allege any personal involvement on their part in the alleged constitutional
violations of Judge Barnes. The only instance in which Chief Justice Durrant is referenced in
Plaintiff’s Complaint is the caption. And the allegations the Governor Herbert and Chief Justice
Durrant failed to properly train, monitor, and oversee Judge Barnes are generalized and
conclusory. These allegations are insufficient to state a claim. 31 Therefore, Plaintiff fails to state

26

Id.

27

Id. (internal quotations omitted).

28

Id. (internal quotations omitted).

29

Id. (internal quotations omitted).

30

Utah Const. Art. V, § 1; United States v. Will, 449 U.S. 200, 2018 (1980).

31
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009);
Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1995).

5

a claim on which relief may be granted against Governor Herbert and Chief Justice Durrant. The
Magistrate Judge’s determination was correct.
Amendment of Plaintiff’s Complaint is Futile
Plaintiff has twice sought leave to amend his Complaint. In his First Motion to Amend,
Plaintiff sought to expand the Complaint from 16 pages to 68 pages; add Judge Paul D. Lyman
(“Judge Lyman”) as a defendant; add Terry Prisbrey Trust as a plaintiff; and add claims for
failure to investigate, violation of due process, breach of contract, and violation of the Americans
with Disabilities Act. 32 In his Second Motion to Amend, Plaintiff sought to add factual
allegations regarding his state court protective order case, and a claim for emergency injunctive
relief to obtain the appointment of counsel in his state court cases. 33
Rule 15 of the Federal Rules of Civil Procedure provides that “a party may amend its
pleading only with . . . the court’s leave [and leave] should [be] freely give[n] when justice so
requires.” 34 However, justice does not require leave to amend when amendment would be
futile. 35 “A proposed amendment is futile if the complaint, as amended, would be subject to
dismissal.” 36
The amendments Plaintiff seeks with his First Motion to Amend are futile. Despite being
considerably longer, the additional pages in Plaintiff’s proposed Amended Complaint are
primarily legal opinion and argument. And despite asserting additional claims, Plaintiff’s core

32

Motion to Amend Complaint (“First Motion to Amend”) at 1, docket no. 25, filed Sept. 18, 2017; Amended
Complaint, docket no. 25-2, filed Sept. 18, 2017.
33
Motion to Amend Complaint, Request for Immediate Injunctive Relief and or Assistance (“Second Motion to
Amend”), docket 31, filed Feb. 26, 2018. Plaintiff’s Second Motion to Amend is addressed in the first instance
because it was not addressed in the Magistrate Judge’s Report and Recommendation.
34

Fed. R. Civ. P. 15(a)(2).

35

Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571 (10th Cir. 1993).

36

Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s Inv’rs Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999).

6

allegations against Judge Barnes, Governor Herbert, and Chief Justice Durrant remain the same.
For the reasons discussed above, Judge Barnes would still be entitled to absolute judicial
immunity, and Plaintiff would still fail to state a claim on which relief may be granted against
Governor Herbert and Chief Justice Durrant. Additionally, the allegations against Judge Lyman,
who is now presiding over Plaintiff’s divorce case, pertain to and arise out of judicial actions
taken by Judge Lyman in his judicial capacity. 37 Judge Lyman is entitled to absolute judicial
immunity for these actions. Therefore, Plaintiff’s proposed Amended Complaint would be
subject to dismissal and is futile. The Magistrate Judge’s determination was correct.
Likewise, the amendments Plaintiff seeks with his Second Motion to Amend are futile.
The additional factual allegations regarding Plaintiff’s state court protective order case do not
alter the above analysis of Plaintiff’s claims. And the additional claim for emergency injunctive
relief fails for the same reasons as the claims for injunctive relief in Plaintiff’s Complaint.
Therefore, the proposed amendments in Plaintiff’s Second Motion to Amend would be subject to
dismissal.
Finally, because Plaintiff’s claims fail and amendment of Plaintiff’s Complaint is futile, it
is appropriate that this case be DISMISSED with prejudice. Therefore, the analysis and
conclusions of the Magistrate Judge are accepted, and the Report and Recommendation 38 is
ADOPTED.

37

Amended Complaint at 3, 38-40.

38

Docket no. 32, filed Mar. 1, 2018.

7

ORDER
IT IS HEREBY ORDERED that the Report and Recommendation 39 is ADOPTED. This
case is DISMISSED with prejudice.
The Clerk is directed to close the case.
Signed March 27, 2017.
BY THE COURT

________________________________________
District Judge David Nuffer

39

Docket no. 32, filed Mar. 1, 2018.

8