Opinion
Case No. 2:01-CV-0551B.
March 5, 2003
OPINION AND ORDER
Before the Court are defendant United States of America's motion to dismiss plaintiffs' first five claims pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and motion for more definite statement as to plaintiffs' sixth, seventh and eighth claims pursuant to Rule 12(e) of the Federal Rules of Civil Procedure. Also before the Court are defendant Salt Lake City Corporation's (hereafter "SLCC") and the individual defendants' motion to dismiss claims one and two of plaintiffs' complaint and motion for partial summary judgment as to plaintiffs' claims three through eight. Having considered the parties' briefs and the relevant law, the Court now issues the following Opinion and Order.
I. INTRODUCTION
Plaintiffs, Jack Brian Dahl and Kim Duncan, bring this action against the United States, SLCC, and the following defendants both in their individual and official capacities: Phil Kearney, Russell Bartlett Jr., Norman Peat, Michael Hardin, Bret L. Hatch, Michael S. Hatch, Foster Lynn Mayo and John Does 1-10. Plaintiffs' first five causes of action allege violations of the United States Constitution and the Constitution of the State of Utah. Specifically, these claims are: (1) cruel and unusual punishment under the Eighth and Fourteenth Amendments to the U.S. Constitution, (2) cruel and unusual punishment under the Utah Constitution, (3) unnecessary rigor under the Utah Constitution, (4) freedom from bodily injury under the Fourteenth Amendment to the U.S. Constitution, and (5) due process under the Fifth Amendment to the U.S. Constitution.
Plaintiffs sixth, seventh and eighth causes of action consist of common law tort claims for intentional infliction of emotional distress, negligent infliction of emotional distress and battery, respectively.
These causes of action arise from two separate but related incidents that occurred on February 22, 2000. The first incident occurred when members of the United States Drug Enforcement Agency ("DEA") and the DEA/Metro Narcotics Task Force executed a search warrant at the residence on the west side of Salt Lake City, Utah. As the search was being conducted, Mr. Dahl and Ms. Duncan pulled into the driveway of the home that was being searched. Mr. Dahl was driving and Ms. Duncan was in the front passenger seat. Upon seeing an automobile in the driveway, some of the officers conducting the search approached the vehicle, and, according to the United States, the officers identified themselves as police officers and asked Mr. Dahl to turn of his vehicle. Mr. Dahl put the car in reverse and backed out of the driveway. Again, according to the United States, Mr. Dahl was driving his vehicle in the direction of one of the officers. Phil Kearney, DEA agent, fired at the automobile, striking Mr. Dahl twice in the chest and once in his arm. After this encounter, plaintiffs then drove to a local convenience store and asked the clerk to call the police. Officers of the Salt Lake City Police Department, including, Bret L. Hatch, Michael S. Hatch, and Foster Lynn Mayo, responded to the call and proceeded to arrest the plaintiffs. According to the plaintiffs' complaint, in carrying out the arrest, the officers "severely damaged Mr. Dahl's arm, insulted him, and forced him to the ground." They also allegedly kicked Ms. Duncan to the ground and kicked her in the face.
II. DISCUSSION
A. United States' Motion to Dismiss and Motion for More Definite Statement
1. United States' Motion to Dismiss Causes of Action One, Two, Three, Four and Five
The United States argues that this Court does not have subject matter jurisdiction against the United States over the first five causes of action of the complaint because, as sovereign, the United States cannot be sued absent its consent, and no such consent has been given. United States v. Sherwood, 312 U.S. 584, 586 (1941). See also, Christensen v. Ward, 916 F.2d 1462 (10th Cir.), cert denied, 489 U.S. 999 (1990). It is well-settled that the United States is immune from suit except where Congress, by specific statute, has waived sovereign immunity. Larson v. Domestic Foreign Commerce Corp., 337 U.S. 682, 693 (1949). Plaintiffs point to three statutes to support jurisdiction, but it appears plaintiffs do not dispute the defendant's claim that the United States' sovereign immunity is not waived by any of these statutes.
Plaintiffs first cite 28 U.S.C. § 1331 as conferring jurisdiction for their claim. While it is true that § 1331 does confer jurisdiction over civil actions arising under the Constitution, laws or treaties of the United States, it does not waive the sovereign immunity of the United States. Wyoming v. United States, No. 99-8089, 2002 U.S. App. LEXIS 1922 (10th Cir. Feb. 7, 2002).
Plaintiffs also point to §§ 1983 and 1985 of Title 42 as providing jurisdiction in this case. Section 1983 and 1985, however, only authorize suits against "persons." The United States does not fall under the definition of a "person" as defined in these sections. Davis v. United States Department of Justice, 204 F.3d 723, 726 (7th Cir. 2000) (actions under 42 U.S.C. § 1985 and 1986); Affiliated Professional Home Health Car Agency v. Shalala, 1643d 282, 286 (5th Cir. 1999) (actions under 42 U.S.C. § 1981, 1983, 1985, 1986, and 1988). Because none of plaintiffs' proposed grounds for jurisdiction in this case waive sovereign immunity the Court does not have jurisdiction over these claims.
Furthermore, to the extent that the complaint seeks relief from defendant Phil Kearney in his official capacity, this Court also lacks subject matter jurisdiction. Sovereign immunity also shields from suit officers acting in their official capacity. Wyoming v. United States, 279 F.3d 1214 (10th Cir. 2002).
Accordingly, for the foregoing reasons and those stated in the United States' briefs, the United States' motion to dismiss causes of action one, two, three, four and five against the United States and against Phil Kearney in his official capacity is GRANTED and these causes of action are DISMISSED with prejudice.
2. United States' Motion for More Definite Statement as to Causes of Action Six, Seven and Eight — Negligent Infliction of Emotional Distress, Intentional Infliction of Emotional Distress, and Battery
The United States also moves for a more definite statement as to claims six, seven and eight. Rule 12(e) of the Federal Rules of Civil Procedure provides:
If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for more definite statement before interposing a responsive pleading.
Specifically, the United States argues that the complaint fails to sufficiently identify the jurisdictional basis for the common law tort claims or to provide the necessary information to evaluate whether plaintiffs have stated a cognizable claim under the Federal Tort Claims Act. The United States requests that this Court order plaintiffs to: (1) specify the particular defendants against whom the sixth, seventh and eighth causes of action are directed, (2) specify the jurisdictional basis for such claims, including the applicable waiver of sovereign immunity, (3) identify each of the individuals whose actions they contend give rise to such liability, (4) clearly state whether those individuals were acting in their official or individual capacities, and (5) specify the actions that they contend satisfy the elements of each claim.
A12(e) motion for a more definite statement is generally disfavored because of the liberal pleading requirements of the Federal Rules of Civil Procedure. A pleading must provide notice to the opposing party of claims and defenses in terms of general allegations rather than detailed facts. See Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168 (1993).
The complaint in this case identifies the Federal Tort Claims Act as the jurisdictional basis for claims six, seven and eight and the alleged actions which give rise to the claims. However, there are multiple plaintiffs and defendants in this case, and two different incidents of alleged misconduct. The defendants are comprised of federal, state, and local agencies and their respective employees. Based on the complaint, it is not clear which actions by which officials or individuals of certain agencies would lead to liability against the United States or its employees. Thus, with regard to these causes of action, the United States and its employees cannot intelligently plead in response to the complaint. For the foregoing reasons and those stated in the United States' briefs, the United States' motion for a more definite statement is GRANTED.
Accordingly, the Court ORDERS plaintiffs to amend their complaint to specify against which defendants and their respective alleged actions the sixth, seventh and eighth causes of action are directed; the applicable jurisdictional basis of these causes of action as against each defendant and their respective alleged actions; and whether each defendant was allegedly acting in his or her official or individual capacities with regard to these causes of action.
B. Defendant SLCC's Motions to Dismiss and for Partial Summary Judgment
The Court will now turn to defendant SLCC's motions to dismiss.
1. Defendant SLCC's Motion to Dismiss Plaintiffs' First and Second Causes of Action — Cruel and Unusual Punishment Under the United States and Utah Constitutions
Plaintiffs' first and second causes of action allege a violation of the cruel and unusual punishment clauses of the Eighth Amendment to the Constitution of the United States and Article 1 § 9 of the Utah Constitution, respectively. These claims are without merit and must be dismissed.
The Constitutional ban against cruel and unusual punishment applies only to those who have been convicted of criminal offenses. Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979); Hewitt v. City of Truth or Consequence, 758 F.2d 1375, 1377 (10th Cir. 1985). Similarly, the cruel and unusual punishment provision of the Utah Constitution is violated where "the sentence imposed in proportion to the offense committed is such as to shock the moral sense of all reasonable men." State v. Gardner, 947 P.2d 630, 633 (1997). Because the plaintiffs do not allege that they have been convicted or sentenced for a criminal act, they fail to state a claim for relief. Accordingly, SLCC's motion to dismiss the first and second causes of action is GRANTED at to all defendants.
Although plaintiffs' brief also addresses their Fourteenth amendment right to be free from bodily injury here, the argument is repeated again in the fourth cause of action. The Court addresses this claim in its discussion of the fourth cause of action.
2. Defendant's SLCC's Motion for Partial Summary Judgment Dismissing Plaintiffs' Third Cause of Action — Unnecessary Rigor Clause of the Utah Constitution
The unnecessary rigor clause in Article I, Section 9 of the Utah Constitution protects persons imprisoned or arrested against unnecessary abuse. State v. M.L.C., 933 P.2d 380, 385 (1997). The alleged treatment must be clearly excessive and unjustified in order to state a claim for relief. Id. SLCC seeks summary judgment dismissing it as a named defendant from plaintiffs' third cause of action because plaintiffs fail to allege or submit sufficient proof that could support an allegation that SLCC committed clearly excessive or unjustified actions constituting unnecessary abuse of the plaintiffs.
Plaintiffs allege that Ms. Duncan was kicked to the ground and was kicked in the face by police officers of Salt Lake City. Plaintiffs also allege that Mr. Dahl was forced to the ground, insulted and had his hands handcuffed behind his back — again by police officers of Salt Lake City — after being shot by a DEA agent in an earlier incident. The Court finds that a reasonable jury could find this alleged conduct to be excessive based on the condition of Mr. Dahl's shoulder at the time of the arrest. However, these alleged actions were not committed by SLCC, but rather by individual Salt Lake City police officers.
Plaintiffs admit that they have failed to allege any actions by SLCC against them that would violate the unnecessary rigor clause, arguing, however, that SLCC is a properly named defendant because it has a responsibility to indemnify the individual police officers for their actions. Plaintiffs make this argument without citation to authority. In response, SLCC argues that even if it is obligated to indemnify the officers, it is not a properly named defendant because plaintiffs have not alleged any misconduct by SLCC as an entity, let alone allegations that would rise to unnecessary rigor.
In the absence of any allegation of flagrant or excessive conduct by SLCC, the Court cannot, absent some authority, find that the bare allegation that SLCC is responsible to indemnify its police officers sufficient to maintain the third cause of action against SLCC. Therefore, SLCC's motion to dismiss the third cause of action against SLCC is GRANTED.
3. Defendant SLCC's Motion for Partial Summary Judgment Dismissing Plaintiffs' Fourth and Fifth Causes of Action — Violation of the Fifth and Fourteenth Amendments
Plaintiffs' fourth and fifth claims allege a violation of the Fifth and Fourteenth amendments based on 42 U.S.C. § 1983. SLCC argues that these claims are not supported as a matter of law.
Plaintiffs also allege a violation of 42 U.S.C § 1985 in its complaint. This section was not addressed by either party in its briefs and is clearly without merit in this case.
Section 1983 imposes liability to "persons" for violations of rights protected by the Constitution or laws of the United States. Municipalities and local governments fall within the definition of "persons" and can be sued directly for monetary relief where the action that is alleged to be unconstitutional, "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 (1977). Violations that occur pursuant to governmental "custom" — actions that have not yet received formal approval from the governmental body — may also be used to find a municipality in violation of the statute. Id. at 690-91. A municipality cannot be held liable, however, solely on a theory of respondeat superior; there must be a direct causal connection between the municipal policies and the constitutional deprivation. Id. at 691. Furthermore, "proof of a single incident of unconstitutional activity" is not sufficient to impose liability unless that incident can be attributed to municipal policy or municipal policymaker. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). The pertinent question then becomes whether the police officers' alleged misconduct was "caused" in any way by SLCC.
Although plaintiffs have alleged a single incident of unconstitutional activity, they have failed to even attempt to claim or provide evidence that such alleged activity was "caused" by a SLCC policy, custom, ordinance or regulation. Therefore, because plaintiffs have failed to allege any offending municipal policy or custom this Court holds that SLCC is not liable for the actions of its employees in this case. Accordingly, SLCC's motion for partial summary judgment is GRANTED as to plaintiffs' fourth and fifth causes of action.
4. Defendants SLCC's and its Employees' Motion for Partial Summary Judgment Dismissing Plaintiffs' Sixth, Seventh, and Eighth Causes of Action — Negligent Infliction of Emotional Distress, Intentional Infliction of Emotional Distress, and Battery
Plaintiffs' sixth, seventh, and eighth claims allege violations of the common law torts of intentional infliction of emotional distress, negligent infliction of emotional distress and battery, respectively. SLCC moves for partial summary judgment as to SLCC itself arguing that it is immune for each of these claims based on the Utah Governmental Immunity Act. SLCC also moves for partial summary on behalf off the individual city defendants in their individual capacities.
a. Immunity under Utah Governmental Immunity Act as to SLCC
The Utah Governmental Immunity Act provides immunity to all "governmental entities" from suits alleging injuries that occurred pursuant to the exercise of a "governmental function." Utah Code Ann. § 63-30-3 (2001). Governmental entities include all cities within the state of Utah. Utah Code Ann. § 63-30-2 (2001). A "governmental function" is defined as
any act, failure to act, operation, function, or undertaking of a governmental entity whether or not the act, failure to act, operation, function, or undertaking is characterized as governmental, proprietary, a core governmental function, unique to government, undertaken in a dual capacity, essential to or not essential to a government or governmental function, or could be performed by private enterprise or private persons.
Because the operation of the Salt Lake City police department is "an undertaking of a governmental entity" it clearly fits within the definition of a "governmental function" performed by a "governmental entity." SLCC is, therefore, presumptively protected with immunity from suit. Therefore, SLCC argues that all of plaintiffs' tort claims as plead in the sixth, seventh and eighth causes of action must be dismissed pursuant to Utah Code Ann. § 63-30-10(2). The plaintiffs' concede in their own brief (plaintiffs' response memorandum at p. 5) that SLCC is indeed immune from suit under this provision of the Act.
Accordingly, SLCC's motion for partial summary judgment dismissing plaintiffs' common law tort claims as to SLCC itself is GRANTED, and those causes of action are DISMISSED with regard to SLCC.
b. Motion for Partial Summary Judgment Dismissing Plaintiffs' Sixth, Seventh and Eighth Causes of Action as to the Individual SLCC Employees in Their Official Capacities
Utah Code Ann. § 63-30-4 of the Utah Governmental Immunity Act states: An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable . . . (emphasis added). Thus, the individual SLCC employees may only be liable in their official capacities if SLCC itself is liable. Because SLCC is not liable for plaintiffs' claims for intentional infliction of emotional distress, negligent infliction of emotional distress and battery, plaintiffs' claims six, seven and eight are also DISMISSED as to the individual city employees insofar as suit is brought against them in their official capacities.
c. Motion for Partial Summary Judgment Dismissing Plaintiffs' Sixth, Seventh and Eighth Causes of Action as to the Individual SLCC Employees in their Individual Capacities
The Utah Governmental Immunity Act also states: [N]o employee may be held personally liable for acts or omissions occurring during the performance of the employee's duties, within the scope of employment, or under color of authority, unless it is established that the employee acted or failed to act due to fraud or malice.
The parties' agree that the individual SLCC employees were acting within the scope of their employment when they carried out their official duty to arrest the plaintiffs. The parties disagree that the plaintiffs' have sufficiently plead or alleged that the individual SLCC employees allegedly acted with malice when they arrested the plaintiffs. Therefore, the only remaining question is whether the plaintiffs' complaint sufficiently alleges that the individual city defendants acted with malice at the time of the arrest.
In scrutinizing a complaint for allegations of malice, the District Court for the District of Utah has looked for allegations that "defendants acted with any `ill will' towards the [Plaintiff]," sufficient enough for the court to "conclude or reasonably infer that defendants intended to harm [Plaintiff] or acted so deliberately indifferent that such a result was unavoidable." Apffel v. Huddleston, 50 F. Supp.2d 1129, 1141 (D. Utah 1999); see Manuel v. State, 344 So.2d 1317, 1319 (Fla.Dist.Ct.App. 1977) (reasoning that an act is done with "malice" if it is done with ill will, hatred, spite, or an evil intent).
Defendants correctly state that plaintiffs did not allege malice or ill will in their complaint. Moreover, they argue that plaintiffs' have failed to allege any well pleaded facts from which the Court could infer that the individual SLCC employees acted with malice toward the plaintiffs. Defendants argue that plaintiffs' assert merely conclusory allegations that the employees "insulted" Mr. Dahl, "forced him to the ground", and "handcuffed his hands behind his back." Defendants also argue that plaintiffs' statements that the employees "kicked Kim Duncan to the ground," and "kicked her in the face" are similarly conclusory. In Apffel, the court found that mere conclusory allegations are an inadequate basis upon which to conclude or infer that a party acted with malice. Id. at 1141. However, plaintiffs' argue this Court should infer malice from the allegedly wrongful actions of defendants, even if the complaint pleads conclusory allegations.
The Court agrees with defendants and finds that plaintiffs' have not only failed to directly plead malice in their complaint, but have not offered any allegations upon which this Court can infer the individual SLCC employees acted with malice when arresting the plaintiffs. Plaintiffs do not offer any insight into how defendants insulted them, or even what insulting expression was uttered. Plaintiffs provide no facts as to whether the SLCC arresting officers were even aware Mr. Dahl's shoulder was injured to such a degree that it may have caused injury to have his arms handcuffed behind his back. Plaintiffs similarly fail to allege sufficient facts surrounding the alleged actions toward Ms. Duncan in order for the Court to infer malice. For example, plaintiffs do not allege that she was kicked on purpose, as opposed to an inadvertent act, during the arrest, or if she was allegedly called offensive names during the alleged incident that would indicate some sort of ill will, thereby, enabling this Court to infer malice from alleged actions of the individual SLCC employees acting in their individual capacities.
Given the current state of the pleadings the Court finds insufficient allegations of malice as required by state law. Accordingly, the individual SLCC employee defendants' motion for partial summary judgment as to claims six, seven and eight is GRANTED WITHOUT PREJUDICE to the extent it alleges violations in their individual capacities.
IV. CONCLUSION
A. Defendant United States' Motion to Dismiss and for a More Definitive Statement
For the forgoing reasons, defendant United States' motion for dismissal of claims one, two, three, four, and five is GRANTED with prejudice as to defendant United States of America and defendant Phil Kearney in his official capacity. Defendant United States' motion for a more definite statement as to the sixth, seventh and eighth causes of action is GRANTED.
B. Defendant SLCC's Motions to Dismiss and for Partial Summary Judgment
Defendant SLCC's motion to dismiss causes of action one and two is GRANTED with prejudice. Defendant SLCC's motion for partial summary judgment as to the third cause of action is GRANTED with prejudice. Defendant SLCC's motion for partial summary judgment as to claims four, five, six, seven and eight is GRANTED with prejudice.
C. Defendant Individual SLCC Employees' Motion for Partial Summary Judgment as to plaintiffs' Sixth, Seventh, and Eighth Causes of Action
The individual SLCC defendants employees' motion for partial summary judgment is GRANTED with prejudice for each individual city defendant as to claims six, seven and eight insofar as they are alleged to have acted within their official capacity. The employees' motion for partial summary judgment is GRANTED without prejudice as to claims six, seven and eight insofar as the individual city defendants are alleged to have acted in their individual capacities.