Opinion
Case No. 2:00cv-797 TS.
October 27, 2004
ORDER GRANTING DEFENDANT STRINGFELLOW'S MOTION TO DISMISS
This matter is before the Court on Defendant's Motion to Dismiss, filed April 20, 2004. Plaintiff failed to respond to the motion, and although he appears pro se in this action, he is still held to applicable procedural standards. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). Although failure to respond may result in dismissal, DUCiv 7-1 (d), the Court follows the Tenth Circuit's general guidelines in examining the merits of the Motion to Dismiss in this action. Issa v. COMP USA, 354 F.3d 1174, 1177-78 (10th Cir. 2003) (stating that court must examine merits upon failure to respond to motion to dismiss for failure to state a claim) (citing Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002) (stating that court must examine summary judgment motion under applicable standard when party fails to respond to motion)).
Plaintiff commenced this action on October 10, 2000, alleging that Defendant violated Plaintiff's civil rights under the United States and Utah Constitutions. Plaintiff claims that on February 25, 1998, Defendant violated Plaintiff's rights of due process and those against self-incrimination under the Fifth and Fourteenth Amendments of both the Utah and United States Constitutions by failing to give Miranda warnings prior to an interrogation. Plaintiff mailed a Notice of Claim to the Salt Lake City Attorney on April, 23, 2001, more than three years after the incident. On January 2, 2001, Defendant submitted a Motion to Dismiss the action, which the Court granted with regard to the claims for alleged federal civil rights violations. The single remaining claim asserting the violation of state constitutional rights was dismissed by the Court on February 12, 2004, for failure to prosecute. Plaintiff subsequently filed a Motion to Reopen the Case on March 11, 2004, which was granted by the Court on April 5, 2004.
Defendant's arguments for dismissal of Plaintiff's remaining claims are based on both procedural and substantive aspects of the Governmental Immunity Act of Utah ("the Immunity Act"). Specifically, Defendant argues that: (1) Plaintiff failed to comply with notice of claim requirements because he gave notice to the City Attorney more than a year after the cause of action arose, and (2) Defendant is entitled to governmental immunity under the Immunity Act. Because these claims fall under the Immunity Act, the instant Motion challenges subject matter jurisdiction, and the Court therefore construes this Motion as a 12(b)(1) Motion under the Federal Rules of Civil Procedure.
On a substantive level, the Immunity Act governs all claims against government employees arising out of the performance of their duties. Utah Code Ann. § 63-30d-101. The Immunity Act provides sovereign immunity from claims involving alleged injuries which "arise out of, in connection with, or results from . . . false imprisonment, false arrest, malicious prosecution, . . . abuse of process, . . . deceit, . . . or violation of civil rights." § 63-30d-301(5). However, the Immunity Act does not apply when there is a constitutional claim and the Act unreasonably regulates, impairs, or destroys the constitutional rights that form the basis of the claim. Bott v. Deland, 922 P.2d 732, 736-37 (Utah 1996). To overcome governmental immunity in these circumstances, the plaintiff is held to a "heightened standard of pleading" in which he must assert all factual allegations necessary to determine that the defendant clearly violated established law. Jensen v. Reeves, 45 F. Supp. 2d 1265, 1278 (D. Utah 1999) (citing Sawyer v. County of Creek, 908 F.2d 663, 667 (10th Cir. 1990), aff'd, 3 Fed. Appx. 905 (10th Cir. 2001)).
Procedurally, the Immunity Act requires filing of a notice of claim as a prerequisite to suit. § 63-30d-401. This notice must be submitted within one year after the claim arises. § 63-30d-402. Under the circumstances in dispute in this action, the notice must have been filed with the City Recorder. § 63-30d-401(2). Even when a claim is constitutional in nature, a plaintiff must comply with the procedural requirements of the Immunity Act. Jensen, 45 F. Supp. 2d at 1278, aff'd, 3 Fed. Appx. 905, 6-7 (10th Cir. 2001) (noting possible exception where plaintiff claims that procedural requirements unreasonably impair constitutional rights). Strict compliance with the notice requirements of the Immunity Act is required. Wheeler v. McPherson, 40 P.3d 632, 635-36 (Utah 2002) (declining to adopt "substantial compliance" interpretation). Failure to provide the notice of claim to the individuals specified by the Immunity Act precludes conferral of subject matter jurisdiction. Brown v. Utah Transit Authority, 40 P.3d 638, 639 (Utah 2002) (finding that sending notice to UTA instead of UTA's governing board did not constitute strict compliance and therefore failed to confer subject matter jurisdiction under Immunity Act); Wheeler, 40 P.3d at 636-37 (finding that sending notice to county commissioners instead of county clerk failed to confer subject matter jurisdiction). Moreover, the timing requirements for the notice of claim under the Immunity Act constitute a type of statute of limitations, and when they are not met, there is no conferral of subject matter jurisdiction. Rushton v. Salt Lake County, 977 P.2d 1201, 1204 (Utah 1999); Harward v. Utah County, 6 P.3d 1140, 1142-43 (Utah Ct. App. 2000).
Because delivery of the notice was clearly given to the wrong person when it was given to the City Attorney instead of the Recorder, this Court finds that Plaintiff's notice of claim to the City Attorney did not meet the strict compliance notice requirements of Section 63-30d-401(2). Further, the Court finds that even if Plaintiff's notice of claim was delivered to the City Recorder, it was substantially outside of the timing requirements set forth by Section 63-30d-402. As Plaintiff's notice of complaint was filed more than two years after the statute of limitations had run, Plaintiff cannot now bring this action. Therefore, because Plaintiff failed to comply with the notice of claim requirements, subject matter jurisdiction has not been conferred in this action. Because this Court finds that Plaintiff's claims may be dismissed based on the procedural requirements of the Immunity Act, the issue of whether Defendant is protected by the substantive aspects of the Immunity Act in this action need not be addressed.
The Court notes that Plaintiff also names John Does I-V and Jane Does I-V as parties in this action, and brings the same claims against them as are brought against Defendant Stringfellow. Because these defendants are police officers, making claims against them similarly subject to the Immunity Act, the Court finds that the above analysis also causes the claims against them to be dismissed for lack of subject matter jurisdiction.
Based upon the above, it is hereby
ORDERED that Defendant Stringfellow's Motion to Dismiss is GRANTED. It is further
ORDERED that Plaintiff's claims against John Does I-V and Jane Does I-V are similarly dismissed. The Clerk of the Court is directed to close this case forthwith.