Ostler et al v. Harris et al
Filing
174
MEMORANDUM OPINION AND ORDER granting in part and denying in part 165 Plaintiff's Motion for Leave to File a Second Amended Complaint. See Memorandum Opinion and Order for details. Signed by Judge Bruce S. Jenkins on 9/9/2019. (kms)
FILED
2019 SEP 9 PM 4:09
CLERK
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
CALVIN DONALD OSTLER, individually
and as personal representative of the Estate of
Lisa Marie Ostler, KIM OSTLER, and the
minor children of Lisa Marie Ostler, C.K.,
E.L.K., and L.M.O., through their adoptive
parents and next friends, CALVIN DONALD
OSTLER and KIM OSTLER,
Plaintiffs,
MEMORANDUM OPINION AND
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
MOTION FOR LEAVE TO FILE A
SECOND AMENDED COMPLAINT
v.
HOLLY PATRICE HARRIS, ZACHARY
PAUL FREDERICKSON, TODD ALLAN
BOOTH, TODD RANDALL WILCOX,
M.D., RONALD PAUL SEEWER, JR.,
BRENT LEE TUCKER, JAMES M.
WINDER, PAM LOFGREEN, RICHARD
BELL, JOHN DOE, whose true name is
unlmown, and SALT LAKE COUNTY, a
political subdivision of the State of Utah,
Case No. 2: 18-cv-00254
Judge: Bruce S. Jenkins
Defendants.
Before the court is Plaintiffs 1 Motion for Leave to File a Second Amended Complaint
(ECF No. 165). Defendants filed an objection. After the Motion was fully briefed and oral
argument was heard on August 9, 2019, with Ross Anderson and Walter Mason appearing for
Plaintiff and Jacque Ramos appearing for Defendants, the court took the matter under
advisement. Having considered the written and oral arguments as well as the relevant law, the
court hereby DENIES the Motion to the extent it attempts to reinstate previously dismissed
1
The Estate is the only remaining Plaintiff at this point. In their briefing, the parties use Plaintiffs, plural; to reflect
the desire to reinstate certain heirs as plaintiffs. However, the court uses the singular to reflect the accurate state of
litigation.
1
plaintiffs and defendants. The court, however, GRANTS leave for Plaintiff (the Estate) to file the
proposed amendments as they relate to its Monell claim against Salt Lake County.
BACKGROUND
On April 26, 2019, the court dismissed without prejudice certain plaintiffs and defendants
from this action. See Mem. Op. Order, ECF No. 139. It affirmed that decision and clarified its
reasoning for doing so on June 7, 2019. See Am. Mem. Op. Order, ECF No. 163. Through their
Motion and Proposed Second Amended Complaint, Plaintiff seeks to reinstate (I) decedent Lisa
Ostler's parents and children (the Heirs) as plaintiffs, and (2) Chief Deputy Pam Lofgreen and
Responsible Health Authority Richard Bell (the Supervisors) as defendants in their individual
capacities. Plaintiff asserts that the proposed amendments relating to the Heirs and Supervisors
clarify the claims and resolve pleading deficiencies previously identified by the court.
DISCUSSION
The.court "should freely give leave [to amend] when justice so requires." Fed. R. Civ. P.
15(a)(2). However, the court may deny leave in its discretion ifthere is "undue delay, undue
prejudice to the opposing party, ... or futility of amendment." By/in v. Billings, 568 F.3d 1224,
1229 (10th Cir. 2009). Defendants raise these three reasons for the court to deny leave to amend.
I.
Undne Delay
In the Tenth Circuit, when a court examines "undue delay," emphasis is on the
adjective-undue. Minter v. Prime Equip. Co., 451F.3d1196, 1205 (10th Cir. 2006). To this
end, courts focus "primarily on the reasons for delay." Id. at 1206. Here, although Defendants
argue the Motion could have and should have been filed sooner, Plaintiff counters that
Defendants and their belated disclosures are the reason for delay, so it is not undue.
2
The comi finds Plaintiffs Motion is timely as it was filed two weeks after the court's
amended order dismissing the Heirs and one month after Plaintiff received Defendants' belated
disclosures. It is concerning that Defendants' documents still trickle in, even on the morning of
oral argument when discovery had closed more than two months prior. Defendants claim they
have attempted full compliance with discovery requests despite several setbacks, but it is clear
these best efforts have fallen short. For example, Defendants acknowledged at oral argmnent that
they have not fully complied with the court's discovery order entered nearly six months ago. See
Order on Pis.' Mot. Compel, ECF No. 77. Once Plaintiff received belated disclosures, it acted
quickly and accordingly to file this Motion, without undue delay.
II.
Undue Prejudice
Like undue delay, courts examine whether any prejudice from granting leave would be
"undue" to the defendants, meaning the amendments would "unfairly" affect their ability to
prepare a defense. Minter, 451 F.3d at 1208. This occurs when a plaintiff raises "an entirely new
and different claim" or "significant new factual issues." Id. Here, Defendants argue Plaintiff
raises a new claim and new factual issues that cannot be addressed now that discovery is closed.
Yet in Plaintiffs view, there are no new claims or new factual issues.
The court finds Plaintiff raises a new claim as to the Heirs, but it is not so new that
Defendants were not on notice of it. As well, Plaintiff added about forty-three pages of new
factual allegations as to the Supervisors, but this is not--or should not be-new information to
Defendants. The information was at all times known to Defendants or could have been known
through reasonably diligent research into the claims against them. Because Defendants have been
on notice of the claims and factual issues from the beginning, there is no undue prejudice by
amendment.
3
III.
Futility of Amendment
An amendment to a claim is futile if the claim would not survive a motion to dismiss. See
Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004). The court, therefore, analyzes a
motion to amend through a motion-to-dismiss lens: It takes all "well-pleaded facts" as true but
need not consider "[t]hreadbare recitals of the elements," "mere conclusory statements," and
"legal conclusion[s] couched as fact." Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Further,
although all reasonable inferences are drawn in the plaintiffs favor, ultimately the proposed
complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell
At!. Corp. v. Twombly, 550 U.S. 544, 547 (2007).
A. Amendments to Reinstate the Heirs as Plaintiffs
The court previously dismissed the Heirs for failure to claim damages for alleged
violations of their own constitutional rights, but the court noted that Berry v. City ofMuskogee,
900 F.2d 1489 (10th Cir. 1990), "does not foreclose wrongful death actions [for heirs] brought as
'pendent state claims."' ECF No. 163 at 6, n.4. Plaintiff argues the Proposed Second Amended
Complaint clarifies that the Heirs were and are pursuing these "pendent state wrongful death
claims." ECF No. 165 at 8, n.7. Specifically, Plaintiff has added a reference to Utah's wrongful
death statute under the Second Cause of Action, which otherwise asserts violations of Lisa's
rights under the Utah Constitution.
The Heirs as Proposed Plaintiffs still do not allege violation of their own Utah
constitutional rights. Rather, they allege that violations of Lisa's constitutional rights give the
Heirs a statutory wrongful death claim. Under Utah's wrongful death statute, an heir must allege
a relative's death was caused by the "wrongful act" of another. Utah Code § 78B-3-106. Here,
4
Lisa's death was allegedly caused by the "wrongful act" ofDefendauts "violat[ing] her
constitutional rights." ECF No. 165 at 8.
The Heirs as Proposed Plaintiffs concede, however, that the wrongful death statute does
not preclude ordinary defenses such as immunity. As Defendauts note, Utah's Governmental
Immunity Act (the UGIA) would bar a statutory wrongful death claim in this action. The
Proposed Plaintiffs attempt to circumvent that bar by arguing the UGIA does not apply if they
allege violations of Lisa's state constitutional rights as a cause of her death. For this they cite
Jensen ex rel. Jensen v. Cunningham: "[The UGIA] does not apply to claims alleging state
constitutional violations." 250 P.3d 465, 479 (Utah 2011). But Jensen involved plaintiffs alleging
violations of their own rights, not the rights of another such as Lisa. Id at 481. The Proposed
Plaintiffs also cite two cases-Tiscareno v. Anderson, 421 Fed. App'x 842 (10th Cir. 2011) and
Brock v. Herbert, 435 Fed. App'x 759 (10th Cir. 2011)-for the proposition that Jensen is not
limited to its facts, suggesting Jensen's holding could be extended to heirs asserting the
constitutional rights of another. The court rejects this argument for three reasons. First, Tiscareno
and Brock also involved plaintiffs alleging violations of their own constitutional rights. Second,
both are unpublished cases. Third, Tiscareno itself expressly acknowledges "it is within the
district court's discretion to continue to exercise jurisdiction in [a] pendent state matter."
Tiscareno, 421 Fed. App'x at *1, n. l. When pressed at oral argument, the Heirs as Proposed
Plaintiffs concede they have found no on-point authority supporting their view that a statutory
wrongful death claim, otherwise barred, is not barred if based on alleged violations of a deceased
relative's constitutional rights. The court also cannot find any on-point authority.
5
The Proposed Plaintiffs ask the court to make a novel statutory interpretation-that there
is no governmental immunity defense so long as a plaintiff alleges a violation of another's
constitutional right. Law and logic suggest against such a sweeping interpretation.
First, the court considers the plain language of the UGIA, the Utah Constitution, and
Utah Supreme Court decisions. Through the UGIA, the State codified its consent to be sued in
certain circumstances. It plainly did not consent to statute-based wrongful death actions arising
out of incarceration. See Utah Code§ 63G-7-201(4)G) (retaining immunity where injury
occurred during incarceration in a county jail). And although the Utah Constitution provides an
alternative, a constitution-based claim for wrongful death, that action too is limited by plain
language: "The right of action to recover damages for injuries resulting in death, shall never be
abrogated ... except in cases where compensation for injuries resulting in death is provided for
by law." Utah Const. Art. XVI, § 5 (emphasis added). Compensation is provided by law in
Utah's wrongful death statute, which is then subject to the UGIA. In a case challenging the
UGIA as allegedly abrogating this constitutional provision, the Utah Supreme Court held the
State's immunity bars a constitutional wrongful death claim. See Tiede v. State, 915 P.2d 500,
504 (Utah 1996). The Court later that year again faced the question of immunity, this time
against an unnecessary rigor claim, one of the same claims raised here by Lisa's Estate and
vicariously by the Heirs. But the Court there expressly noted that a plaintiffs ability to bypass
governmental immunity depends on alleged violations of "his" own constitutional rights. Bott v.
Deland, 922 P.2d 732, 736 (Utah 1996) overruled on other grounds by Spackman ex rel.
Spackman v. Bd ofEduc., 16 P .3d 533 (Utah 2000). In short, the law has closed the door the
Proposed Plaintiffs seek to open. Allowing their claims to enter through a backdoor in provisions
6
for due process and unnecessary rigor-provisions based on another's constitutional rightswould undermine determinations by Utah's Legislature and its highest court.
Lastly, the Proposed Plaintiffs' interpretation reaches too far in logic. On the one hand
they insist the Heirs' statutory claim is separate from a constitutional claim, citing Kinzer v.
Metro. Gov't ofNashville, 451 F. Supp. 2d 931 (M.D. Tenn. 2006), on the other hand their
argument conflates the two claims, seeking the best of both worlds without the worst of either. A
statutory wrongful death claim is held by the Heirs but barred here by the UGIA. Constitutional
due process and unnecessary rigor claims are not barred by the UGIA but are held by Lisa alone.
Yet the Proposed Plaintiffs seek a claim held by the Heirs and exempt from the limitations of the
UGIA. Of the two claims that do exist, they are not to be conflated. They have different
foundations (in statute vs. constitution), different elements (based on another's injury vs. one's
own), different effects under the UGIA (barred vs. not), and different corresponding case law
(cases interpreting one do not necessarily implicate the other).
For these reasons, the court concludes the Heirs as Proposed Plaintiffs allege a statutory
wrongful death claim, but that claim is barred by the UGIA. See Utah Code§ 63G-7-201(4)(j).
This is consistent with Berry and Kinzer: A plaintiff may raise pendent state claims but must still
plausibly plead and surmount defenses like immunity. Because the Heirs as Proposed Plaintiffs
have not done so, the proposed amendments reinstating them are futile.
B. Amendments to Reinstate the Supervisors as Defendants
The court previously dismissed four Supervisor Defendants, including Bell and Lofgreen,
for Plaintiffs failure to allege "affirmative links" between those Defendants' alleged misconduct
7
and the violation of Lisa's federal constitutional right to due process. ECF No. 163 at 3. Plaintiff
argues it has now shown the "affirmative links" for Bell and Lofgreen. ECF No. 165 at 1.
To establish an "affirmative link" for supervisory liability, Plaintiff must plausibly allege
a supervisor's (1) personal involvement, (2) causation, and (3) state of mind. See Schneider v.
City of Grand Junction Police Dep 't, 717 F.3d 760, 767 (10th Cir. 2013). The Proposed Second
Amended Complaint hits two out of these three targets. First, personal involvement is plausibly
alleged, as Plaintiff details several problematic policies, customs, and failures to train and
supervise over forty-tlu·ee new pages. Second, causation is alleged as well because these policies,
customs, and failures "set in motion a series of events" the Supervisors "knew or should have
known" could cause constitutional violations, specifically, inadequate medical care for pretrial
detainees with a history of gastrointestinal conditions and substance abuse, like Lisa. Id at 678.
However, Plaintiffs allegations of state of mind fall short of the Tenth Circuit standard.
The state of mind for a substantive due process claim, as raised here under the Fourteenth
Amendment, is "deliberate indifference," a "stringent" standard of fault. Id at 679. In 2018 the
Tenth Circuit charted its three elements: (1) the supervisor must have been "aware of facts" from
which the inference could be drawn that "a substantial risk of serious harm" existed; (2) "he
actually drew that inference," and (3) he was "aware of and fail[ ed] to take reasonable steps to
alleviate the risk." Perry v. Durboraw, 892 F.3d 1116, 1122 (10th Cir. 2018); Arocho v.
Naftiger, 367 Fed. App'x 942, 956 (10th Cir. 2010) ("The traditional standard for supervisory
liability in this circuit requires ... actual knowledge and acquiescence.") (internal marks
omitted). 2 In line with the Perry test, over the last two decades the Tenth Circuit has consistently
2
The deliberate indifference analysis for Fourteenth Ainendment claims is "identical" to§ 1983 claims under the
Eighth Amendment. Perry, 892 F.3d at 1122. Accordingly, the court relies on both Fourteenth and Eighth
Amendment cases in its analysis.
8
found supervisors were aware of a risk to inmates when the allegations or the circumstantial
evidence indicated a supervisor was exposed to prior complaints,3 prior similar incidents, 4 prior
reports or audits, 5 or prior notice of the plaintiffs condition or vulnerabilities. 6 In short, the
supervisor must have been somehow "informed" of the particular alleged risk to inmates like the
plaintiff. Crocker v. Glanz, 752 Fed. App'x 564, 569 (10th Cir. 2018). When this awareness was
not sufficiently alleged, the Tenth Circuit has affirmed dismissal, 7 or it has reversed and
remanded for the district court to dismiss. 8
Here, analyzing Plaintiffs allegations in light of the elements required to show deliberate
indifference, Plaintiff repeatedly alleges the Supervisors did not alleviate risks despite their
duties to do so, but they fail to plausibly allege two necessary elements: that Bell and Lofgreen
were each aware offacts suggesting a substantial risk to inmates and that they actually
acknowledged that risk before disregarding it. Instead, all allusions into the Supervisors' state of
mind are conclusory or insufficient, as the facts cited would not put the Supervisors on notice of
a risk to inmates with a history of gastrointestinal issues and substance abuse, like Lisa. Because
the proposed amendments are extensive and detailed, the court takes a similar approach to
address them below.
3
See, e.g., Perry v. Durborow, 892 F.3d 1116, 1119 (10th Cir. 2018); Keith v. Koerner, 843 F.3d 833, 849 (I 0th Cir.
2016); Tafoya v. Salazar, 516 F.3d 912, 917 (10th Cir. 2008).
4 See, e.g., Poore v. Glanz, 724 Fed. App'x 635, 640 (10th Cir. 2018); Keith v. Koerner, 707 F.3d 1185, 1189 (10th
Cir. 2013); Tafoya, 516 F.3d at 917.
5
See, e.g., Keith v. Koerner, 707 F.3d 1185, 1189 (10th Cir. 2013); Layton v. Bd ofCty. Comm'rs of Oklahoma
Cty., 512 Fed. App'x 861, 864 (10th Cir. 2013).
6 See, e.g., Poore, 724 Fed. App'x at 640 (10th Cir. 2018); Arocho v. Naftiger, 367 Fed. App'x 942, 952 (10th Cir.
2010).
7 See, e.g., Peterson v. Creany, 680 Fed. App'x 692, 696 (10th Cir. 2017); Krugv. Kastner, 661 Fed. App'x 507,
509 (10th Cir. 2016); Arocho, 367 Fed. App'x at 955.
8
See, e.g., Crocker v. Glanz, 752 Fed. App'x 564, 569 (10th Cir. 2018); Vega v. Davis, 572 Fed. App'x 611, 619
(10th Cir. 2014).
9
Allegations of State of Mind
Pleading Deficiencies
Plaintiff repeats throughout
that the Supervisors acted
"with deliberate indifference"
when failing to train,
supervise, or remedy certain
policies and customs. Pis.'
Prop. Sec. Am. Compl.1] 56,
59,63-64,67-68, 78,84,96,
100, 102, 104, 108, 111, 115,
ECF No. 165-1.
Other than "[t]hreadbare recitals" of an element and "legal
conclusion[s] couched as fact," Iqbal, 556 U.S. at 678-79 (2009),
Plaintiff does not also asse1t the Supervisors were aware of facts
suggesting substantial risk to inmates, such as prior complaints, prior
instances of injury, prior audits, or prior notice of Lisa's susceptibility
to abdominal pain. See Vega v. Davis, 572 Fed. App'x 611, 618 (10th
Cir. 2014) (holding plaintiffs allegations-that warden "knew about
or was willfully ignorant of' the plaintiffs serious medical needs yet
"failed and refused" to address them-were "not suppmted by facts,
and thus not presumed to be true"); cf Arocho v. Nafziger, 367 Fed.
App'x 942, 952 (10th Cir. 2010) (holding "the facts alleged make out
a plausible case of deliberate indifference" where prison director
"knew" of plaintiffs "serious disease" yet he refused to approve
treatment); Tafoya v. Salazar, 516 F.3d 912, 917 (10th Cir. 2008)
(noting sheriff was "aware" of a sexual assault risk because he knew
of prior sexual assaults at the prison). 9
Lofgreen allegedly "knew"
that the policies, customs, and
failures would cause
employees to violate rights,
and she "knowingly failed" to
properly train her staff on how
to recognize life-threatening
abdominal conditions. ECF
No. 165-1 at 1] l 05, 132.
Without more, the allegations are "naked assertions devoid of further
factual enhancement." Peterson v. Creany, 680 Fed. App'x 692, 696
(10th Cir. 2017) (holding allegations were "conclusory" where
plaintiff stated "only that [the health services administrator] had
failed to properly supervise his staff'); see Arocho, 367 Fed. App'x at
956 (holding, despite allegations that warden "was in position to
correct plaintiffs rights violation and failed to do so," "there [were]
no facts to suggest the [warden] knew of and acquiesced in any act of
deliberate indifference by [his subordinates].").
9 The court here and elsewhere occasionally cites cases decided at the summary-judgment stage but cites them "for
the relevant§ 1983 standards for legal liability, not for the procedural review standards used to determine if a§ 1983
complaint is subject to dismissal." Soto for estate ofJimenez v. Bd. ofCty. Commissioners of Caddo Cty., Okla., 748
Fed. App'x 790, 794 (10th Cir. 2018) (holding district court did not misapply Rule 12(b )(6) standard when relying
on some summary-judgment cases).
'
10
Plaintiff alleges the policies
and customs themselves
"reflect" or "demonstrate" the
Supervisors' deliberate
indifference. ECF No. 165-1 at
125, 128. The "gross
deficiencies" in medical care
also "demonstrated [the
Supervisors] deliberate
disregard for a known" risk to
Lisa and others. Id. at if 136.
There are no allegations that the Supervisors had reason to know of
gmss deficiencies in medical care or that policies and customs were
putting inmates like Lisa at a "known" risk. See Krug v. Kastner, 661
Fed. App'x 507, 509 (10th Cir. 2016) (holding plaintiff failed to
allege warden's deliberate indifference because pleadings made "no
allegation that any other inmate had complained" about the
temperature policy and "never alleged that the warden had reason to
know about [plaintiffs] susceptibility to the cold"); cf Layton v. Ed.
ofCty. Comm'rs of Oklahoma Cty., 512 Fed. App'x 861, 864 (10th
Cir. 2013) (noting sheriff was aware of"several [reports]-all of
which involve matters preceding [plaintiffs] death-that evince
deficiencies in medical care").
Plaintiff alleges the
Supervisors condoned customs
that contravened official
policy, arguing this shows
their deliberate indifference.
ECF No. 165-1 at if 70, 74,
111-13, 116.
Although contravening policies could put inmates at risk, Plaintiff
does not allege that the Supervisors knew of facts suggesting the
condoned customs created that risk. Cf Perry, 892 F.3d at 1119, 1122
(noting sheriff knew of sexual assault risk because he knew that male
officers regularly entered female pods, despite contrary to policy, as
well as knew of a prior complaint of sexual assault and "blind spots"
in the surveillance system).
Plaintiff alleges that Bell,
knowing of Lisa's death, did
nothing to change the policies
or customs, suggesting his
deliberate indifference. ECF
No. 165-1atif58.
This alleges Bell at least became aware of a risk after Lisa's death. It
does not allege that he was on notice of a risk to Lisa or others before
her death. See Peterson, 680 Fed. App'x at 696 (noting allegations
against the responsible health authority, that he did "nothing after
learning of [plaintiff receiving a harmful] prescription," were too
"conclusory" and "insufficient to allow the reasonable inference that
[he] incurs liability under§ 1983").
Plaintiff lists several other
inmates who died or were
seriously injured at the jail.
ECFNo. 165-1atif137.
Some instances are not similar to put the Supervisors on notice of a
risk to inmates like Lisa-e.g., a death by inmate attack is unlike
death by inadequate medical care. And for the similar instances, there
is no allegation that they happened before Lisa's death such that the
Supervisors were "on notice" of a similar risk to Lisa and others.
Tafoya v. Salazar, 516 F.3d at 917; cf Keith v. Koerner, 707 F.3d
1185, 1189 (10th Cir. 2013) (holding plaintiff plausibly alleged
deliberate indifference where prison warden "was aware of multiple
incidents of unlawful sexual conduct" preceding plaintiffs rape).
11
Plaintiff alleges Bell
disregarded an "obvious risk." ·
ECF No. 165-1at136. And
Lofgreen "reasonably should
have known," that the policies,
customs, and failures would
cause employees to violate
rights. Id. at if 132.
Even if a risk was obvious to others, there are no facts to suggest it
was obvious to Bell. See Tafoya, 516 F.3d at 916 ("An official's
failure to alleviate a significant risk of which he was unaware, no
matter how obvious the risk or how gross his negligence in failing to
perceive it, is not ... a constitutional violation.") (emphasis added).
And alleging that Lofgreen "should have known" confuses the
supervisory liability standard with the one for municipal liability. See
Barney v. Pulsipher, 143 F.3d 1299, 1308 n.5 (10th Cir. 1998) ("In
the prison conditions context, deliberate indifference is a subjective
standard requiring actual knowledge of a risk by the official. In the
municipal liability context, deliberate indifference is an objective
standard which is satisfied if the risk is so obvious that the official
should have known of it.").
In sum, what is alleged is insufficient, what is not alleged is telling. Plaintiff does not
allege that the Supervisors knew of prior complaints, prior instances of inadequate medical care
for abdominal pain, or prior audits suggesting deficiencies in the Jail's medical care. Plaintiff
does not allege that the Supervisors knew of Lisa's gastrointestinal condition or the events
leading up to her death, e.g., if a nurse told Bell of Lisa's complaints. To the contrary, it is
alleged at least as to Bell, "nothing indicated [to him] that Lisa was experiencing a medical
emergency." ECF No. 165-1atif72(a). Thus, the Proposed Second Amended Complaint does
not allege enough "factual content" for the court to "draw the reasonable inference" that the
Supervisors had the actual knowledge required for deliberate indifference and are therefore
"liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Because the§ 1983 claim for
supervisory liability would not survive a motion to dismiss, the amendments as to the
Supervisors are futile.
However, the proposed amendments go beyond Plaintiffs claims for supervisory
liability; they also affect the Monell claim for municipal liability. Municipal liability requires "an
official policy or custom," which may include "a final decision by a municipal policymaker, or
deliberately indifferent training or supervision." Schneider, 717 F.3d at 769. Although the court
12
concludes the proposed amendments would be futile against the Supervisors, they may not be
futile against the County. Therefore, the proposed amendments should proceed against the
County subject to further review, should Defendants choose to raise the issue.
ORDER
Plaintiffs Motion is DENIED to the extent it attempts to reinstate the previously
dismissed Heirs and Supervisors as Proposed Parties. It is GRANTED to the extent the proposed
amendments support Plaintiffs Monell claim against the County.
IT IS SO ORDERED.
··~)·i
I
DATED this
day of September, 2019.
\>(,.
/
/
/
\
.
Hon. Bruce S.lenkins
United States/District CoUlt, Dfotrict of Utah
13
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