Opinion
Case No. 2:03-CV-01050 PGC.
June 3, 2004
ORDER GRANTING MOTION TO STRIKE AND MOTION TO DISMISS
In this civil rights action, defendant Reed Stringham has filed a motion to dismiss the complaint and a motion to strike Exhibits A and B in Mr. Johnson's response to the motions to dismiss. Defendants Constance Hughes and Salt Lake Community College ("SLCC") have joined in the motion to dismiss. Mr. Johnson opposes both motions and has filed a motion seeking an evidentiary hearing on the motion to strike. The court GRANTS the motions to strike and GRANTS the pending motions to dismiss for the reasons outlined below.
Background
At this stage in the proceedings, the court must take the facts in the light most favorable to the plaintiff. According to the complaint, Mr. Johnson worked for Salt Lake Community College ("SLCC") from July 1, 2000, through April 9, 2003, as the Director of Equal Employment Opportunity ("EEO Director"). In early 2003, an employee of SLCC, Mr. Rivera, discussed employment discrimination problems with Mr. Johnson. Mr. Johnson investigated Mr. Rivera's claims and corroborated them. Mr. Johnson then presented his findings to Ms. Constance Hughes, an attorney with the Utah Office of the Attorney General. According to Mr. Johnson, Ms. Hughes attempted to persuade him to discontinue his department's investigation and issued a new "private" policy regarding investigations. Ultimately, Ms. Hughes, after disputes with Mr. Johnson, prepared and submitted a report on Mr. Rivera herself.
Mr. Johnson claims that after his problems with Ms. Hughes the environment at SLCC became hostile. For example, he claims his department was denied funding. Mr. Johnson submitted his resignation in late March 2003, and he contends that afterwards SLCC employees were told not to trust him.
Mr. Johnson then filed three causes of action in this court: employment discrimination, conspiracy to obstruct justice, and injunctive relief.
Discussion
Motion to Strike (#28-1)
Mr. Johnson's opposition to the motion to strike included two proposed exhibits. Exhibit A is a copy of emails between Ms. Hughes and Mr. Johnson, dated February 27-March 3, 2004. Exhibit B is a letter from Assistant Utah Attorney General Williams Evans to Mr. Johnson, dated June 7, 2002.
The court concludes that neither Exhibit A nor B is relevant to issues in this motion to dismiss. The communication in Exhibit A discusses policy changes regarding investigations of allegations of discrimination. This document does not relate to the issues currently before the court. Though it may have future relevance in this litigation, it does not have any relevance to the legal sufficiency of Mr. Johnson's complaint.
As to the letter from Mr. Evans, this too has no relevance to the legal issues before this court. It was written in June of 2002, over a year before the relevant facts at issue in this case. Additionally, Mr. Evans is not a named party in this litigation, and this single communication has no bearing on any of the legal issues pending before this court. Because neither of these documents is relevant for purposes of this motion the motion to strike is GRANTED and Mr. Johnson's motion for a hearing to establish their authenticity is DENIED.
Title VII
The individual defendants seek dismissal of the Title VII claims against them. Clearly, individuals have no personal liability under Title VII. Because Ms. Hughes and Mr. Stringham were not Mr. Johnson's employer the motion to dismiss the Title VII cause of action against them is GRANTED. Only Mr. Johnson's Title VII claim against SLCC remains.
See Haynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996).
Conspiracy to Obstruct Justice
Mr. Johnson alleges that Ms. Hughes and Mr. Stringham conspired to obstruct justice in violation of 42 U.S.C. § 1985(2), which states in relevant part:
if two or more persons conspire for the purposes of impeding, hindering, obstructing or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons to the equal protection of the laws.
Defendants Stringham and Hughes seek dismissal of the claims under this section for several reasons, and the court agrees.
To properly plead a cause of action for a conspiracy to obstruct justice under this statute, Mr. Johnson must allege that Mr. Stringham and Ms. Hughes conspired because of his race or national origin. Mr. Johnson alleges many facts concerning a possible racial or religious discrimination against Mr. Rivera and his fellow class members. However, Mr. Johnson's complaint fails to explain any racial or other improper motivation for Ms. Hughes and Mr. Stringham's actions against him.
See Lessman v. McCormick, 591 F.2d 605, 608 (10th Cir. 1979); see also, Ward v. St. Anthony Hosp., 476 F.2d 671 (10th Cir. 1973).
While this reasoning alone warrants dismissal of this claim, Mr. Johnson could possibly amend his complaint to address this problem. Other defects, however, can not be remedied. The applicable part of § 1985(2) bars conspiracies to obstruct justice in "any State or Territory." This phrase typically requires the obstruction of justice to occur in connection with a pending state court proceeding. In this case, the alleged attempts to coerce Mr. Johnson into changing his report on Mr. Rivera did not occur during any pending litigation. Even if the court considered the stricken emails between Ms. Hughes and Mr. Johnson, these refer to an investigation and possible subsequent litigation. At the time of the incidents, Mr. Rivera and his fellow class members had not commenced their suit. Because Mr. Johnson has not indicated that any litigation existed at the time of the incidents in question, the court must dismiss the cause of action against Mr. Stringham and Ms. Hughes.
42 U.S.C. § 1942.
See Harrison v. Springdale Water Sewer Com'n, 780 F.2d 1422, 1429 (8th Cir. 1986).
Additional reasons justify dismissal of this cause of action. Mr. Johnson has alleged that Mr. Stringham and Ms. Hughes attempted to coerce him to change his report on Mr. Rivera. A civil rights complaint must identify a specific act that intentionally or deliberately violated an individual's constitutional rights. Merely alleging an attempt to violate a constitutional right is not sufficient to support a claim. Notably, if Mr. Stringham and Ms. Hughes were trying to prevent civil rights litigation against SLCC, their efforts were unsuccessful. Mr. Rivera and his fellow class members currently have litigation pending relating to the concerns he expressed to Mr. Johnson.
Complaint at ¶ 63.
Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir. 1992), cert. denied 509 U.S. 923 (1993).
See, e.g., Sterling v. Borough of Minersville, 232 F.3d 190, 197 (3rd Cir. 2000); Schlessinger v. Salimes, 100 F.3d 519 (7th Cir. 1996), cert. denied, 521 U.S. 1104 (1997).
Rivera v. SLCC, 2:03-CV-00764 DB, Central Division, District of Utah.
Finally, the § 1985(2) claim must be dismissed because Mr. Johnson has not properly plead a required element of a conspiracy. The statute requires, "If two or more persons . . . conspire. . . . ." A conspiracy requires the combination of two or more persons. Because Mr. Stringham and Ms. Hughes both work as employees for the State of Utah, they are the state. As a result, they are not the requisite "two" persons needed for a conspiracy. In essence, Mr. Johnson has alleged that the State of Utah conspired with itself, which is insufficient to meet the elements required for a cause of action under § 1985(2).
Brever v. Rockwell Intern. Corp., 40 F.3d 1119, 1126 (10th Cir. 1994);
See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989).
See Chumpia v. Michigan State Univ., 165 F.3d 26, 1998 WL 708762 (6th Cir. 1998) (unpublished.).
For all of the foregoing reasons, Mr. Johnson has not sufficiently plead a cause of action under § 1985(2) against either Mr. Stringham or Ms. Hughes. Accordingly, the motion to dismiss this cause of action against them is GRANTED.
State Law Claims
Any state law claims Mr. Johnson attempts to raise against all three defendants must be dismissed. In paragraphs 39 and 83 of his complaint, Mr. Johnson vaguely suggests a claim, under Utah Code Ann. § 13-7-4. If this claim has actually been raised, it must be dismissed because no notice of claim has been filed pursuant to Utah Code Ann. §§ 63-30-11(2) and 63-30-12. This failure to file a notice of claim is jurisdictional, and applies to statutory causes of action such as alleged here. Utah courts consistently hold that suit may not be brought against the state, its subdivisions or its employees unless the requirements of the Governmental Immunity Act are strictly followed, including its requirement of compliance with state law notice provisions. Given lack of compliance, any state law claims are dismissed.
See Rushton v. Salt Lake County, 977 P.2d 1201, 1203 (Utah 1999); Jensen v. Reeves, 45 F. Supp.2d 1265, 1278 (D.Utah 1999), aff'd 2001 WL 11389 (10th Cir. 2001 (Utah)).
Hall v. Utah State Dept. of Corrections, 24 P.3d 958, 964 (Utah 2001).
See Hall, 24 P.3d at 905; see also Roosendaal Const. Mining Corp. v. Holman, 503 P.2d 446, 448 (Utah 1972).
Timeliness
The court notes that Mr. Johnson's opposition to the motion to dismiss was filed over two weeks late, with no motion for extension of time or accompanying explanation for the delay. Mr. Johnson's counsel is advised that he must comply with all deadlines for filing pleadings or face the risk of possible sanctions. The court trusts that future filings will be timely.
Conclusion
The court GRANTS Mr. Stringham's motion to strike [28-1]. The motion by Mr. Johnson requesting an evidentiary hearing regarding the motion to strike [35-1] is MOOT. The motions to dismiss by Mr. Stringham [21-1], Ms. Hughes [23-2] and SLCC [24-2] are GRANTED.