Opinion
USDC #: 2:02 CV 1209 DAK
May 28, 2003
ORDER DENYING MOTION TO DISMISS AND MOTION FOR PROTECTIVE ORDER AND STRIKING PAPERS
Defendant Utah County moves for dismissal of Plaintiff's complaint, arguing the County is protected by the doctrine of qualified immunity. Defendant Utah County also seeks a protective order to stay its responses to Plaintiff's discovery requests until the court rules on the motion to dismiss. Plaintiff has filed a response to the motion to dismiss, and Defendant has filed a reply. Plaintiff has not responded to the motion for protective order.
Utah County's Combined Motion to Dismiss and Supporting Memorandum of Points and Authorities, Docket No. 23, filed April 14, 2003.
Utah County's Combined Motion for Protective order and Supporting Memorandum of Points and Authorities, Docket No. 24, filed April 14, 2003.
Response to def's [sic] Motion to dismiss [sic] Second Amended Complaint, Docket No. 27, filed April 29, 2003.
Utah County's Reply in Support of Motion to Dismiss, Docket No. 28, filed May 8, 2003.
Discussion — Qualified Immunity
Defendant Utah County asserts that it is entitled to assert the defense of qualified immunity and that Plaintiff does not allege the violation of clearly established federal law, which would overcome a qualified immunity defense. Therefore, Utah County claims the second amended complaint must be dismissed.
Defendant's Motion to Dismiss at 7. See the standard set forth in Murrell v. School District No. 1, Denver, Colo., 186 F.3d 1238, 1251 (10th Cir. 1999).
Contrary to Defendant's position, "municipalities have no immunity from damages liability flowing from their constitutional violations." Specifically, the defense of qualified immunity from section 1983 claims is only available to individual defendants sued in their personal capacity. Contrary to the assertion made its motion to dismiss, Utah County, as a municipal entity, is not entitled to qualified immunity. The motion to dismiss must be denied.
Owen v. City of Independence, 445 U.S. 622, 657, 100 S.Ct. 1398, 1418 (1980).
See, Moore v. City of Wynnewood, 57 F.3d 924, 929 n. 4 (10th Cir. 1995).
See, Owen, 445 U.S. at 638, 100 S.Ct. at 1409.
Discussion — Plaintiff's Discovery Requests
Plaintiff has filed two discovery requests with the Court. Under DUCivR 26-1(b) these are not to be filed with the Court.
Request for discovery, Docket No 20, filed March 17, 2003, and Request for discovery #2, Docket No. 19, filed March 17, 2003.
ORDER
IT IS HEREBY ORDERED that Defendant's Motion to Dismiss [23] is DENIED.
IT IS FURTHER ORDERED the Defendant's Motion for Protective Order [24] is DENIED.
IT IS FURTHER ORDERED that the discovery requests filed March 17, 2003, as Docket Nos. 19 and 20 are STRICKEN from the record.