Opinion
Case No. 2:00-CV-660 PGC.
April 18, 2005
ORDER
Plaintiff, Johnnie B. Millsap, an inmate at the Utah State Prison, filed a pro se civil rights complaint under 42 U.S.C. § 1983. See 42 U.S.C.A. § 1983 (West 2003). Plaintiff has since filed a Second Amended Complaint with the assistance of counsel. Before the Court is Defendants' combined Motion to Dismiss and Motion for Judgment on the Pleadings, which has been fully briefed by all parties.
ANALYSIS I. Motion to Dismiss
Defendants move for dismissal of the common law causes of action enumerated in Plaintiff's Second Amended Complaint; these include claims for malicious prosecution, negligent supervision, and intentional infliction of emotional distress. Defendants assert that these claims are jurisdictionally barred under the doctrine of sovereign immunity as codified in the Utah Governmental Immunity Act ("Immunity Act" or "Act"). See Utah Code Ann. §§ 63-30-1 thru 63-30-38 (repealed 2004). Defendants argue that two of Plaintiff's causes of action are specifically prohibited under the Immunity Act. Defendants also assert that Plaintiff failed to comply with the Act's notice-of-claim requirement for each of his claims.
A. Standard of Review
"A motion to dismiss based on sovereign immunity is treated as a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)." Neiberger v. Hawkins, 70 F. Supp 2d. 1177, 1181 (D. Colo. 1999). A Rule 12(b) (1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). Finally, the burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
B. Sovereign Immunity
The Utah Governmental Immunity Act "codified the common law principle of sovereign immunity and created various exceptions to the doctrine." Brittan v. State, 882 P.2d 666, 669 (Utah Ct.App. 1994). Utah Code Ann. § 63-30-10, states:
Immunity from suit of all governmental entities is waived for injuries proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury arises out of, in connection with, or results from: [the following . . .]Id. (Emphasis added.) Thus, although the Act generally waives immunity from suit for injuries caused by negligent official acts of governmental entities, it nevertheless preserves immunity in most instances by identifying a host of specific exceptions. Included among the exceptions are claims for "(2) assault, battery, false imprisonment, false arrest, malicious prosecution . . . infliction of mental anguish, or violation of civil rights. . . ." Id. § 63-30-10(2) (emphasis added).
The Utah Governmental Immunity Act was repealed in July 2004, and replaced by the Governmental Immunity Act of Utah.See Utah Code Ann. §§ 63-30d-101 to 63-30d-904 (West 2004). The earlier statute was in effect at all times relevant to this action and is therefore controlling.
Plaintiff concedes that the Act effectively bars his claim for malicious prosecution. In addition, Plaintiff's allegations of intentional infliction of emotional distress clearly fall within the exception for claims based on "infliction of mental anguish."See Oliver v. Woods, 21 F. Supp 2d. 1325, 1332 (D. Utah 1998) (interpreting "infliction of mental anguish" to include claims for intentional infliction of emotional distress). Thus, the Court concludes that Plaintiff's claims for malicious prosecution and intentional infliction of emotional distress are barred by sovereign immunity and must be dismissed for lack of subject matter jurisdiction.
C. Notice of Claim Requirement
Defendants assert that Plaintiff's claims are also barred for failure to allege compliance with the Utah Governmental Immunity Act's notice-of-claim requirement, which states:
The notice-of-claim provision applies to each of Plaintiff's common law claims, including those dismissed in part I-B, supra.
A claim against a political subdivision or against its employee for an act or omission occurring during the performance of the employee's duties within the scope of employment, or under the color of authority, is barred unless notice of claim is filed with the governing body of the political subdivision . . . within one year after the claim arises. . . .Utah Code Ann. § 63-30-13 (Supp. 2003) (emphasis added).
Plaintiff asserts that a copy of his original complaint was mailed to the Juab County Clerk in July of 2000, thereby satisfying the notice-of-claim requirement here. Utah law requires strict compliance with the notice-of-claim provision.Bischel v. Merritt, 907 P.2d 275, 279 (Utah App. 1995). The Utah Supreme Court has clearly distinguished a complaint from a valid notice of claim. See Johnson v. Utah State Retirement Office, 621 P.2d 1234, 1236 (Utah 1980). Even assuming that Plaintiff's complaint qualified as a notice of claim under Utah's Immunity Act, Plaintiff cannot show that the complaint was received by Juab County within one year after the claim arose. The acts giving rise to Plaintiff's claims allegedly occurred in 1993, whereas Plaintiff's complaint was not filed until 2000. Furthermore, even actual notice of a claim by a governmental entity does not excuse a claimant's strict compliance with the requirements of the Immunity Act. See Rushton v. Salt Lake County, 977 P.2d 1201, 1203 (Utah 1999). Thus, the Court concludes that Plaintiff's common law claims are barred for failure to comply with the notice-of-claim requirement under the Utah Governmental Immunity Act.
CONCLUSION
Based on the doctrine of sovereign immunity, and the Utah Governmental Immunity Act, the Court concludes that it lacks subject matter jurisdiction over Plaintiff's common law claims for malicious prosecution, negligent supervision and intentional infliction of emotional distress. The only remaining claims in this case allege unlawful arrest and unlawful search and seizure under the Fourth Amendment. Defendants have stated their intention to move for summary judgment on these claims once Plaintiff responds to the Martinez report. Plaintiff has refused to respond to the Martinez report on the ground that he is now represented by counsel. Thus, Defendants may proceed to summary judgment immediately. Defendants are checked to file their summary judgment motion by May 26, 2005.Accordingly, IT IS HEREBY ORDERED that Defendants' motion to dismiss Plaintiff's common law claims for malicious prosecution, negligent supervision, and intentional infliction of emotional distress, is GRANTED under Rule 12(b)(1). Fed.R.Civ.P. 12(b)(1).