JILL N. PARRISH, District Judge.
Before the Court is United States Magistrate Judge Paul M. Warner's Report and Recommendation, (Docket No. 64), regarding a motion to dismiss filed by Defendants Bradford Cooley, Robin Wilkins, Jeffery Hall, Ethan Rampton, and Mark Knighton (collectively, the "County Defendants"), (Docket No. 54), as well as an earlier motion to dismiss filed by Defendant Daniel Herboldsheimer, (Docket No. 53).
The factual and procedural background of this case is fully articulated in the Magistrate's Report. (Docket No. 64, at 2-4). In essence, Plaintiff alleges that Defendant Herboldsheimer, his subordinate, vindictively and wrongfully filed a complaint with county prosecutors, accusing Plaintiff of falsifying a report filed by Defendant Herboldsheimer as part of his duties as a deputy constable at the Salt Lake County justice court. Plaintiff further alleges that County Defendants and Defendant Herboldsheimer thereafter conspired to prosecute him without probable cause. The criminal charges that allegedly arose from this conspiracy were eventually dismissed by a state court judge for lack of probable cause.
Plaintiff brings this lawsuit against Defendant Herboldsheimer and County Defendants, asserting claims under 42 U.S.C. §§ 1983, 1985 and various state law causes of action.
The court reviews those portions of the Magistrate's Report and Recommendation "to which objection is made" de novo. 28 U.S.C. § 636(b)(1). The standard of review for the underlying motions to dismiss is well-articulated in the Magistrate's Report and Recommendation, (Docket No. 64, at 4), and will be discussed in more detail below.
At the outset, the court notes that a substantial portion of Plaintiff's Objection to the Magistrate's Report and recommendation is simply lifted word-for-word from his memoranda in opposition to the underlying motions to dismiss. (Compare Docket Nos. 55, 56 with Docket No. 68). Though this practice hews dangerously close to a waiver for lack of specificity, see United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996) ("[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review."), the court will nonetheless consider Plaintiff's objections insofar as they are discernible. The court will first address Plaintiff's claims against Defendant Herboldsheimer, then his claims against County Defendants, and, finally, his request for leave to amend.
Plaintiff makes several objections to the Magistrate's recommendation of dismissal of all claims against Defendant Herboldsheimer. The court will address these objections as they pertain to a) Plaintiff's claims against Defendant Herboldsheimer under § 1983, b) Plaintiff's claims against Defendant Herboldsheimer under § 1985, and c) Plaintiff's state law claims against Defendant Herboldsheimer.
Plaintiff first objects to the Magistrate's conclusion that his complaint failed to state a claim under 42 U.S.C. § 1983 against Defendant Herboldsheimer. Specifically, the Magistrate determined that the complaint failed to allege any facts indicating that Defendant Herboldsheimer was "acting under color of law" as required by § 1983. The Magistrate explained that an individual acts "under color of law" when he "exercise[s] power `possessed by virtue of state law and made possible only because [he] is clothed with the authority of state law.'" West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031 (1941)). Based on this principle, the Magistrate concluded that Defendant Herboldsheimer was not acting under color of law when he allegedly violated Plaintiff's rights. In response to the Magistrate's report, Plaintiff seems to argue that Defendant Herboldsheimer exercised authority under the color of state law simply because he worked at the South Salt Lake City Justice Court and his report to prosecutors pertained to his duties as a deputy constable. After considering Plaintiff's objections, this court agrees with the Magistrate.
As an initial matter, it is not clear from the face of the complaint that Defendant Herboldsheimer was in fact an employee of either the State of Utah or Salt Lake County. Although it is likely that Defendant Herboldsheimer has some legal link to state or municipal authority in his role as a deputy constable, the complaint states only that Defendant Herboldsheimer was an employee of Plaintiff, (Docket No. 28, at 2), and points to no statutory basis for Defendant Herboldsheimer to exercise authority derived from state law.
But even if Herboldsheimer were properly considered a public employee, "the fact that a tort was committed by an individual employed by the state does not, ipso facto, warrant attributing all of the employee's actions to the state." Jojola v. Chavez, 55 F.3d 488, 493 (10th Cir. 1995). Instead, "it is the plaintiff's burden to plead, and ultimately establish, the existence of `a real nexus' between the defendant's conduct and the defendant's `badge' of state authority in order to demonstrate action was taken `under color of state law.'" Id. at 494. Plaintiff has failed to do so here. Despite Plaintiff's assertions to the contrary, there is no "real nexus" between Defendant Herboldsheimer's filing of a report with prosecutors and any authority derived from state law that he exercised as a deputy constable. The mere fact that Defendant Herboldsheimer worked in a government-run justice court is insufficient to establish that he acted with authority derived from a government entity. See Jojola, 55 F.3d at 493. And although the report itself dealt with Defendant Herboldsheimer's duties as a deputy constable, there is absolutely no indication that the filing of the report was an exercise of "power possessed by virtue of state law" or that his report was "made possible only because [he was] clothed with the authority of state law." West, 487 U.S. at 49 (internal quotations omitted); How v. City of Baxter Springs, 217 F. App'x 787, 793 n.5 (10th Cir. 2007) (holding that a county clerk did not act under color of state law when she filed a criminal defamation complaint against an outspoken citizen because there was no evidence that she "used her position as a city clerk to gain an advantage in the filing of her complaint"). There is certainly no colorable allegation here that reporting his supervisor's alleged malfeasance to county prosecutors was a typical function of Defendant Herboldsheimer's employment. "After all, any citizen can report suspicious activity to the police" and there is no indication in the complaint that Defendant Herboldsheimer was acting as anything other than a citizen by reporting Plaintiff's alleged activity to prosecutors. See Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1156-57 (10th Cir. 2016) (holding that city parking enforcement officers were not acting "under color of law" when they reported plaintiff's potentially criminal activity to the police while on duty). Thus, the Magistrate properly concluded that Plaintiff has failed to allege any facts that indicate that Defendant Herboldsheimer acted under color of state law as required by § 1983.
Still, Plaintiff insists that his claim against Defendant Herboldsheimer under § 1983 may survive because he has alleged "joint action" under § 1983. (Docket No. 68, at 9-10). The Magistrate determined that Plaintiff "fail[ed] to allege sufficient facts showing an agreement and concerted action between or among [Defendant] Herboldsheimer and any of the County Defendants[,]" (Docket No. 64, at 6), and this court agrees. Plaintiff has alleged that Defendant Herboldsheimer provided information to County Defendants and that they "encourage[ed]" Defendant Herboldsheimer to provide "false information as being accurate," (Docket No. 28, at 7), but these conclusory allegations alone do not support an inference of joint action. The Tenth Circuit has "consistently held that furnishing information to law enforcement officers, without more, does not constitute joint action under color of state law. Rather, joint action arises only when an officer's decision to initiate an arrest or a prosecution was not independent of a private party's influence." Schaffer, 814 F.3d at 1157 (citation omitted).
Plaintiff has made no factual allegations that would support an inference that the County Defendants' decision to prosecute him was somehow contingent on Defendant Herboldsheimer's influence. In fact, the complaint clearly alleges that the County Defendants did not decide to prosecute Plaintiff until after they had conducted their own independent investigation. (Docket No. 28, at 6-8); see also Schaffer, 814 F.3d at 1158 (holding that witnesses who testified against plaintiff did not participate in joint action with police or prosecutors because the decision to arrest the plaintiff was made only after an independent investigation); Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1454 (10th Cir. 1995) (contrasting previous Tenth Circuit cases where "the record indicated that [arresting] police officers had made an independent decision to make the challenged arrest," indicating a lack of "joint action" under § 1983, and a case where the arresting officer "did not make an independent investigation but relied on the judgment" of a reporting witness, indicating "joint action" under § 1983); Murray v. Wal-Mart, Inc., 874 F.2d 555, 559 (8th Cir. 1989) (finding joint action because, inter alia, a prosecutor "made his recommendation to prosecute based on [a witness'] word, not upon an independent investigation of the facts"); Wilson v. McRae's, Inc., 413 F.3d 692, 694 (7th Cir. 2005) ("[R]eliance [by law enforcement on the allegation of victims] does not imply that the victims are exercising state power."). Further, the mere allegation that Defendant Herboldsheimer conspired with prosecutors is not sufficient to create a reasonable inference that he "shared an unconstitutional goal" with County Defendants. See Schaffer, 814 F.3d at 1158; Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998) (explaining that, in order to survive a motion to dismiss, "a plaintiff must allege specific facts showing an agreement and concerted action amongst the defendants" (internal quotations omitted)); Ercoli v. Paiva, 2004 WL 539998, at *2 (N.D. Ill. Jan. 23, 2004) (unpublished) (holding that the "mere fact that [a complaining witness] talked to police cannot be fairly characterized as part of a `conspiracy'" even if the witness was lying; his "cooperation with the police is insufficient to support an inference that he reached an understanding with them to violate the plaintiff's constitutional rights"); cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57, 127 S.Ct. 1955 (2007) ("Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality."); Salehpoor v. Shahinpoor, 358 F.3d 782, 789 (10th Cir. 2004) ("Parallel action . . . does not necessarily indicate an agreement to act in concert."). In other words, Plaintiff has failed to plead sufficient facts to indicate that Defendant Herboldsheimer "had any involvement in [his] . . . prosecution beyond furnishing information to law enforcement officers." Schaffer, 814 F.3d at 1158 (citing Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983)); Lee v. Town of Estes Park, 820 F.2d 1112, 1115 (10th Cir. 1987) (holding that a private individual did not participate in joint action under § 1983 when he reported an alleged crime to police and insisted on specific charges). Accordingly, the Magistrate properly concluded that Plaintiff has failed to allege facts that would support a reasonable inference of joint action under § 1983.
Next, Plaintiff objects to the Magistrate's determination that he has failed to state a claim for conspiracy under § 1985. This court agrees with the Magistrate. As discussed above, Plaintiff has failed to allege facts that would support a plausible inference of concerted action between Defendant Herboldsheimer and County Defendants as required by § 1985. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir. 1990) (explaining that, in the context of a § 1985 claim, "[a] civil conspiracy requires the combination of two or more persons acting in concert"); Tonkovich, 159 F.3d at 533 (requiring evidence of "agreement and concerted action amongst the defendants" in a § 1985 action). Moreover, Plaintiff has failed to allege any facts that would indicate that the alleged conspiracy was "motivated by `some racial, or perhaps otherwise class-based, invidiously discriminatory animus'" as required for claims under § 1985. See Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (quoting Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790 (1971)). Therefore, the Magistrate properly concluded that Plaintiff has failed to state a claim against Defendant Herboldsheimer under § 1985.
Finally, Plaintiff does not challenge the Magistrate's conclusion that the numerous state law claims against Defendant Herboldsheimer outlined in his complaint should be dismissed and has therefore waived any arguments he may have in defense of those claims. See One Parcel of Real Property, 73 F.3d at 1060 ("[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review."). And, in any event, this court agrees with the Magistrate's conclusion that the state law claims against Defendant Herboldsheimer are nothing more than "mere labels and conclusions, and a formulaic recitation of the elements" of various causes of action, and therefore each fails to state a claim. See Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (internal quotations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). Like the others discussed above, these claims against Defendant Herboldsheimer are ripe for dismissal.
Plaintiff also challenges the Magistrate's recommendation that his claims against the County Defendants be dismissed. The court will address these objections as they pertain to a) Plaintiff's claims against County Defendants under § 1983, b) Plaintiff's claims against County Defendants under § 1985, and c) Plaintiff's state law claims against County Defendants.
Plaintiff first challenges the Magistrate's conclusions regarding his § 1983 claims against County Defendants. Plaintiff alleges that the County Defendants violated § 1983 when they engaged in an "unwarranted investigation" of the Herboldsheimer complaint and prosecuted him "without probable cause or adequate Due Process." (Docket No. 28, at 12). Given a generous reading, Plaintiff's complaint also alleges that the County Defendants violated § 1983 through some form of defamation. See id. at 12-13 (alleging that County Defendants deprived Plaintiff of liberty interests by subjecting him to "public ridicule and loss of business"). The Magistrate determined that Defendants Hall, Cooley, and Rampton's participation in the investigation of the Herbolsheimer complaint and their decision to prosecute Plaintiff were "intimately associated with the judicial phase of the criminal process" and therefore protected by absolute immunity under Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984 (1976). The Magistrate also concluded that all of the allegations against Defendants Knighton and Wilkins under § 1983 and any claims relating to defamation against all of the County Defendants were so conclusory and vague that they failed to give notice to County Defendants of the claims against them. As explained below, this court agrees with much of the Magistrate's reasoning and with the Magistrate's ultimate conclusion that Plaintiff's complaint failed to state a claim against County Defendants under § 1983. Nevertheless, in light of Plaintiff's objection, a portion of the Magistrate's analysis regarding the applicability of absolute immunity requires modification.
First, this court agrees with the Magistrate's conclusion that Defendants Hall, Cooley, and Rampton's decision to file charges against Plaintiff—with or without probable cause—was protected by absolute immunity. The decision to prosecute, including the evaluation of available evidence for probable cause, is part and parcel of a prosecutor's role as an advocate. See Nielander v. Bd. of Cty. Comm'rs, 582 F.3d 1155, 1164 (10th Cir. 2009) ("Prosecutors are entitled to absolute immunity for their decisions to prosecute, their investigatory or evidence-gathering actions, their evaluation of evidence, their determination of whether probable cause exists, and their determination of what information to show the court."); Grant v. Hollenbach, 870 F.2d 1135, 1138 (6th Cir. 1989) ("The decision to prosecute, . . . even if malicious and founded in bad faith, is unquestionably advocatory and at the heart of the holding in Imbler." (internal quotation omitted)). Such actions are absolutely protected so as to allow prosecutors "the latitude to perform their tasks absent the threat of retaliatory § 1983 litigation." Snell v. Tunnell, 920 F.2d 673, 686-87 (10th Cir. 1990). Thus, despite Plaintiff's objections,
However, this court does not agree with the Magistrate's conclusion that the participation by Defendants Hall, Cooley, and Rampton in the investigation of the Herboldsheimer complaint was necessarily protected by absolute immunity. In his complaint, Plaintiff alleges that Defendant Hall, after speaking with Defendant Herboldsheimer regarding Plaintiff's handling of the report, assigned Defendants Wilkins and Knighton to investigate Defendant Herboldsheimer's accusations "with the intent to search for evidence that might give them probable cause to bring an action against" Plaintiff. (Docket No. 28, at 6). The complaint suggests that Defendants Hall, Cooley, and Rampton "were actively engaged in [an] investigatory function by directly participating in the preliminary gathering of evidence that might ripen into a potential prosecution." Id. at 6-7. The Magistrate concluded that these investigative actions "are . . . taken as part of the prosecutor's role as an officer of the court" and were therefore entitled to absolute immunity. (Docket No. 64, at 11). This conclusion is erroneous.
While it is true "that absolute immunity may attach even to . . . administrative or investigative activities `when these functions are necessary so that a prosecutor may fulfill his function as an officer of the court[,]'" see Pfeiffer, 929 F.2d at 1490, it is not clear from the face of the complaint that the investigation conducted by Hall, Cooley, and Rampton was necessary to fulfill that function. "[A] prosecutor is entitled to absolute immunity for those actions that cast him in the role of an advocate initiating and presenting the government's case." Mink v. Suthers, 482 F.3d 1244, 1261 (10th Cir. 2007). In other words, a prosecutorial "advocate" performs functions that are "closely associated with the judicial process." Id. at 1260 (citing Burns v. Reed, 500 U.S. 478, 495, 111 S.Ct. 1934 (1991). Thus, "[t]he more distant a function is from the judicial process, the less likely absolute immunity will attach." Snell, 920 F.2d at 687. More specifically,
Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606 (1993); Eden v. Voss, 105 F. App'x 234, 244 (10th Cir. 2004) ("There is a difference between evaluating evidence in order to prepare for trial and searching for evidence that might give probable cause to bring an action."); Smith v. Garetto, 147 F.3d 91, 94 (2d Cir. 1998) ("Although all investigative activity could be considered in some sense to be `preparing for the initiation of judicial proceedings,' the Supreme Court has sought to draw a line between those preparatory steps that a prosecutor takes to be an effective advocate of a case already assembled and those investigative steps taken to gather evidence." (emphasis added)).
Here, Plaintiff has alleged that Hall, Cooley, and Rampton directed the investigation into Plaintiff's conduct in order to gather evidence that might amount to probable cause for prosecution. Though this allegation is somewhat threadbare, the complaint as a whole states enough facts to suggest that Hall, Cooley, and Rampton were searching for "clues and corroboration that might give [them] probable cause" to initiate a prosecution against Plaintiff. See Buckley, 509 U.S. at 273. Such searching cannot be construed as "advocacy," and is therefore not entitled to absolute immunity. See id. at 274 ("A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested."); Snell, 920 F.2d at 693 (explaining that "a prosecutor who interrogates a suspect in the first instance" and "an attorney who assists a police officer in investigating a child abuse complaint" are "fulfilling [] investigative, rather than [] prosecutorial, functions"). Accordingly, the court modifies the Magistrate's analysis regarding absolute immunity insofar as it pertains to the County Defendants' investigation of the Herboldsheimer complaint.
Nonetheless, the Magistrate's ultimate conclusion that Plaintiff has failed to state a claim under § 1983 against Defendants Hall, Cooley, and Rampton relating to their investigation of the Herboldsheimer complaint is correct. Even if Defendants Hall, Cooley, and Rampton's participation in the preliminary investigation was not entitled to absolute immunity, Plaintiff has failed to explain how the investigation itself worked a "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. See 42 U.S.C. § 1983. Beyond conclusory allegations that the County Defendants at some unspecified point and in some unspecified way violated "his rights protected under the First, Fourth, Fifth and Fourteenth Amendments [to] the United States Constitution," (Docket No. 28, at 12), Plaintiff has not alleged any specific unconstitutional or unlawful actions by the prosecutors in their investigation of the Herboldsheimer complaint. Plaintiff does allege that all of the County Defendants somehow "encourage[d]" Defendant Herboldsheimer to present false information, but it is not clear whether this actually occurred during the investigation, in preparation for filing charges, or in some sort of preliminary hearing or other proceeding. More importantly, the idea that the prosecutors "encourage[d]" Defendant Herboldsheimer to falsely accuse Plaintiff is inconsistent with0 the complaint itself, which alleges that Defendant Herboldsheimer approached the prosecutors and vindictively falsified the complaint of his own volition. Thus, whether or not Defendants Hall, Cooley, and Rampton were entitled to prosecutorial immunity for their actions in connection with the investigation of the Herboldsheimer complaint is ultimately irrelevant, because Plaintiff has not made any allegation of a cognizable constitutional deprivation arising from the investigation. Thus, his claim against Defendants Hall, Cooley, and Rampton under § 1983 is still subject to dismissal for failure to state a claim.
Next, Plaintiff objects to the Magistrate's conclusion that he has failed to state any constitutional violation that would sustain a § 1983 action against County Defendants. In essence, Plaintiff contends that the Magistrate demands a level of factual specificity that is not required under Fed. R. Civ. P. 8(a), and that his § 1983 claims are supported by sufficient factual allegations to survive a motion to dismiss. This court disagrees. While his complaint need not provide "detailed factual allegations" in order to state a claim, Plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). Moreover, "to withstand a motion to dismiss, a complaint must contain enough allegations of fact `to state a claim to relief that is plausible on its face.'" Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). In this context, "plausible" does not mean "`likely to be true.' Rather, `plausibility' in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs `have not nudged their claims across the line from conceivable to plausible.'" Id. (quoting Twombly, 550 U.S. at 570). Additionally, in order to survive a motion to dismiss, a complaint must "provide fair notice of the grounds for the claims made against each of the defendants." Id. at 1250 (emphasis added). In the context of § 1983 and similar actions, Plaintiff must "plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Aschroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937 (2009). Indeed, claims under § 1983 "against individual government actors pose a greater likelihood of failures in notice and plausibility because they typically include complex claims against multiple defendants." Robbins, 519 F.3d at 1249.
Here, Plaintiff's complaint offers little more than "labels and conclusions" and cannot sustain a claim under § 1983. See Twombly, 550 U.S. at 555. Instead, Plaintiff states in conclusory fashion that all of the County Defendants violated his constitutional rights and spends several pages outlining the damage done by these alleged deprivations. As the Magistrate noted, none of these claims differentiates between any of the County Defendants, but simply alleges without elaboration that each and every defendant was somehow involved in each and every alleged deprivation. Thus, the claims fail to "make clear exactly who is alleged to have done what to whom, [and do not] provide each individual with fair notice as to the basis of the claims against him or her[.]" Robbins, 519 F.3d at 1250.
Perhaps more importantly, Plaintiff has failed to allege facts that would suggest how these deprivations occurred. Plaintiff alleges that each County Defendant "malign[ed] [his] character," (Docket No. 28, at 11), but does not allege who said what or even what was said.
Plaintiff next objects to the Magistrate's conclusion that he has failed to state a claim against the County Defendants under § 1985. Again, this court agrees with the Magistrate. As explained above, even accepting Plaintiff's generalized allegations of conspiracy as true, Plaintiff has plainly failed to allege or even suggest that the conspiracy was "motivated by `some racial, or perhaps otherwise class-based, invidiously discriminatory animus'" as required for claims under § 1985. See Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (quoting Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790 (1971)). His claims under § 1985 were therefore properly recommended for dismissal by the Magistrate.
Finally, Plaintiff makes several objections to the Magistrate's conclusion that his complaint fails to state a single viable claim under state law. He objects first to the Magistrate's conclusion regarding his compliance with the Utah Governmental Immunity Act. Next, he objects to the Magistrate's conclusion that the remaining state law claims are not supported by adequate factual allegations to survive a motion to dismiss. These objections are addressed in turn.
Plaintiff first challenges the Magistrate's conclusion that his failure to comply with the notice provisions of the Utah Governmental Immunity Act ("Immunity Act") bars his state law claims against Defendants Hall and Knighton. See Utah Code § 63G-7-401(2) ("Any person having a claim against a governmental entity, or against its employee . . . shall file a written notice of claim with the entity before maintaining the action. . . ."). Plaintiff concedes that he did not expressly name Defendants Hall or Knighton in his Notice of Claim, but argues that he included "John or Jane Does" as potential parties, and that should suffice for notice under the Immunity Act. (Docket No. 68, at 16). This court disagrees.
The Immunity Act explicitly requires that notice of a claim "being pursued against a governmental employee" include "the name of the employee." See § 63G-7-401(3)(a)(iv) (emphasis added). Here, Plaintiff failed to include the names of either Defendant Hall or Defendant Knighton in his submitted Notice of Claim, meaning he has failed to strictly comply with the requirements of the Immunity Act. See Sethunya v. Weber State Univ., 2009 WL 3460303 at *3-*4 (D. Utah Oct. 21, 2009) (unpublished) (holding that failure to expressly name individual employees in Notice of Claim barred claims against those employees under the Immunity Act). The Supreme Court of Utah has consistently required dismissal of claims "when they fail to follow the unambiguous language of the Immunity Act." Li v. Univ. of Utah, 144 P.3d 1142, 1146 (Utah 2006). This is because "the Immunity Act demands strict compliance with its requirements to allow suit against governmental entities. The notice of claim provision, particularly, neither contemplates nor allows for anything less." Wheeler v. McPherson, 40 P.3d 632, 636 (Utah 2002). Plaintiff failed to comply with the strictures of the Immunity Act and therefore the Magistrate properly concluded that his claims against Defendants Knighton and Hall under state law are barred. As a result, the claims must be dismissed for lack of jurisdiction.
Next, Plaintiff challenges the Magistrate's conclusion that each of his remaining state law claims fail to state a claim for relief and should be dismissed. Plaintiff again contends that the Magistrate demands a level of factual specificity at odds with the Twombly/Iqbal pleading standard. This court again disagrees. Plaintiff has provided a generalized factual scenario at the beginning of his complaint and a conclusory list of the elements under each cause of action without any substantive elaboration. Some of the claims do not even fully articulate the elements of the stated cause of action. (See, e.g., Docket No. 28, at 14) (alleging that "[t]he acts and/or omissions of defendants, and each of them, constitute an action of malicious prosecution" without further elaboration). These pleadings fail to state a claim because they do not "inform the defendants of the actual grounds of the claim against them." Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008). Instead, this approach to pleading leaves the County Defendants (and this court) to piece together what acts, if any, may fulfill the requirements of each claim. A pleading in compliance with Rule 8(a) must not only provide "a short and plain statement of the claim"—it must also "show[] that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a)(2) (emphasis added). "Threadbare recitals of the elements of a cause of action supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678; see also Glenn v. First Nat'l Bank, 868 F.2d 368, 372 (10th Cir. 1989) (affirming dismissal of complaint where trial court refused to "do [plaintiffs'] work for them to connect assertions with elements of" their claim). Thus, the Magistrate properly concluded that each cause of action alleged by Plaintiff under state law fails to state a claim.
In concluding his Objections, Plaintiff requests leave to amend should the court uphold the Magistrate's Report and Recommendation and dismiss his complaint. Leave to amend is to be given "freely . . . when justice so requires." Fed. R. Civ. P. 15(a)(2). Indeed, the purpose of Rule 15(a) is "to provide litigants the maximum opportunity for each claim to be decided on the merits rather than on procedural niceties." Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (internal quotations omitted) (quoting Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)). However, the decision to allow or deny leave to amend is ultimately left to the discretion of the trial court. Id. (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795 (1971)). And a trial court may deny leave to amend upon "a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment." Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). "In the Tenth Circuit, untimeliness alone is an adequate reason to refuse leave to amend." Duncan v. Manager, Dep't of Safety, 397 F.3d 1300, 1315 (10th Cir. 2005). Relevant here, a trial court may also deny leave to amend where a plaintiff fails to file a written motion and instead "merely suggest[s] she should be allowed to amend if the court conclude[s] her pleadings [a]re infirm." See Garman v. Campbell Cnty. Sch. Dist. No. 1, 630 F.3d 977, 986 (10th Cir. 2010).
Applying the above principles, the court must deny Plaintiff's request for leave to amend. First, Plaintiff has failed to file a proper motion with the court for leave to amend—his request arises only as an "in-the-alternative" afterthought to his Objections to the Magistrate's Report. "This is insufficient." See Garman, 630 F.3d at 986 (affirming denial of a nearly identical request couched in a response to a motion to dismiss). Perhaps more importantly, Plaintiff's request does not suggest appropriate grounds for amendment and he has failed to proffer a proposed amended complaint in violation of local rules.
Finally, Plaintiff's failure to submit a proposed amended complaint, coupled with the lateness of the request (nearly three years after the first amended complaint was filed), suggests that Plaintiff cannot in fact cure the complaint.
Based on the foregoing, the court ORDERS as follows:
SO ORDERED.
Additionally, Plaintiff seems to argue that the Magistrate erred because the burden is on County Defendants to establish absolute immunity as an affirmative defense. See Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934 (1991) (explaining that "the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question"). This argument appears to arise from the Magistrate's conclusion that "most of Plaintiff's allegations are vague and conclusory and do not sufficiently allege that Cooley, Rampton, and Hall acted outside the scope of their traditional roles as prosecutors." (Docket No. 64, at 10). While Plaintiff need not specially plead around affirmative defenses like absolute immunity, see Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920 (1980) (explaining that immunity is an affirmative defense and that the burden of pleading is on defendant, not plaintiff); Banks v. Geary Cty. Dist. Court, 645 F. App'x 713, 717 (10th Cir. 2016) (unpublished), "[a] district court may grant judgment as a matter of law under Federal Rule of Civil Procedure 12(b)(6) on the basis of an affirmative defense . . . when the law compels that result[,]" Caplinger v. Medtronic, Inc., 784 F.3d 1335, 1341 (10th Cir. 2015). Here, the Magistrate concluded that the applicability of prosecutorial immunity to the alleged conduct was evident on the face of the complaint. Because the facts alleged in the complaint plainly implicated prosecutorial immunity, the Magistrate's analytical focus on that affirmative defense was proper. See id.
