Calkins v. Davis School District et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support

D. UtahJuly 26, 2016

1 David L. Church (659) BLAISDELL, CHURCH & JOHNSON, LLC. 5995 South Redwood Road Salt Lake City, Utah 84123 Tel: 801.261.3407 Fax: 801.261.3503 bclaw@xmission.com Attorney for Defendants Bountiful City, Matthew Combs and J.C. Ynchausti IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, NORTHERN DIVISION ANDREW CALKINS, Plaintiff, v. DAVIS SCHOOL DISTRICT, et al. Defendants. MOTION TO DISMISS Case No. 1:15cv00060-DN-EJF Judge David Nuffer Magistrate Judge Evelyn J. Furse Defendants Bountiful City, Matthew Combs, and J.C. Ynchausti, by and through undersigned counsel David L. Church, submit this Motion to Dismiss pursuant to FRCP 7, 12(b)(6) and DUCivR7-1. RELIEF SOUGHT AND GROUNDS FOR THE MOTION The defendants, Bountiful City (the “City”), Matthew Combs , a City Police officer, and J.C. Ynchausti, former City prosecuting attorney, (collectively, the “Bountiful City defendants”) seek dismissal of the complaint for failure to state a claim against these Defendants upon which Case 1:15-cv-00060-DN-EJF Document 18 Filed 07/26/16 Page 1 of 7 2 relief can be granted. This motion is brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, The complaint should be dismissed because it does not allege facts linking the Bountiful City Defendants to a violation of the Plaintiff’s rights under Title VII of the Civil Rights Act of 1964. The plaintiff, in order to withstand a motion to dismiss, must provide “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). INTRODUCTION The Plaintiff’s complaint recites that it is brought under Title VII of the Civil Rights Act of 1964. The allegations in the Complaint that involve the Bountiful Defendants are very limited. Matthew Combs is a Bountiful City police officer. The complaint alleges that he approached the Plaintiff at a school ground; threatened to Tazer him; searched him; and then told him to leave the school grounds. Mr. Ynchausti was the Bountiful City prosecutor. He filed trespass charges against The Plaintiff arising out of the interaction with Officer Combs. The complaint alleges that he agreed to a plea arrangement with the Plaintiff. There are no specific allegations against the City other than the allegations about Officer Combs and Mr. Ynchausti. FACTS For purposes of a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), all well-pleaded factual allegations, as distinguished from conclusory allegations, are accepted as true and viewed in the light most favorable to the plaintiff as the nonmoving party. GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 Case 1:15-cv-00060-DN-EJF Document 18 Filed 07/26/16 Page 2 of 7 3 (10th Cir. 1997). The facts alleged in the complaint that involve the Bountiful City Defendants are sparse. The following two paragraphs, set forth exactly as pled in the complaint, are the only factual allegations concerning the Bountiful City Defendants. When the police arrived Jeff Love the head custodian, told them I was supposed to be there, and I was just leaving. They asked if I had a gun I said no. And with out cause they asked if they could search me. I calmly said no. Then he threatened to Tazer me. And grabbed me, and searched me. Matthew Combs ignored Jeff Love, and said he called Brad Vallace, and Matthew Combs said Brad Vallace said I was not supposed to be there. I assured him that I had never talked to Brad that day, the police told me to leave. I left the property, and never went back. Approximately 15 days later I was charged with trespassing upon school property. I met with J.C. Ynchausti prosecutor in pretrial, and asked him for all that he had on this case he said he would give it to me, and never did. I told him that my boss told the police when they arrived that I was supposed to be there. That I was just leaving. And that he had no evidence that someone in authority told me to leave, because they didn't. We agreed in pretrial no contest plea, and $300 dollar fine, and no plea abeyance. I agreed to this only because the prosecutor refused to cooperate. The prosecutor does not understand what an agreement is. We went to the judge, and the prosecutor told the judge, no contest plea, no fine, and it held in abeyance. There are no other factual allegations in the complaint that involve Bountiful City or its employees. ARGUMENT This complaint in its present form fails to state a claim against the Bountiful City Defendants. The Plaintiff, in order to withstand a motion to dismiss, must provide “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). This requires “more than an unadorned, the-defendant-unlawfully harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and Case 1:15-cv-00060-DN-EJF Document 18 Filed 07/26/16 Page 3 of 7 4 conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557) (alteration in original). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). As the Court in Iqbal stated: only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief. Iqbal, 556 U.S. at 679 (internal quotation marks and citations omitted). These principles hold true even in the case of a pro se litigant: “Although we liberally construe the complaint of a pro se plaintiff, the liberal construction rule ‘does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be heard.’” Miller, supra at 1572. It is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991). The complaint asserts that the Plaintiff’s claim arises under Title VII of the Civil Rights Act of 1964 for employment discrimination. The facts pled against the Bountiful City Defendants do not constitute a plausible claim for relief against them for either discrimination or retaliation arising out of Plaintiff’s employment. Case 1:15-cv-00060-DN-EJF Document 18 Filed 07/26/16 Page 4 of 7 5 Title VII makes it unlawful “to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” (42 U.S.C. § 2000e-2(a)(1)). To set forth a prima facie case of discrimination, the Plaintiff must establish that (1) he is a member of a protected class, (2) he suffered an adverse employment action, (3) he qualified for the position at issue, and (4) he was treated less favorably than others not in the protected class. See Sanchez v. Denver Pub. Sch. 164 F.3d 527, 531 (10th Cir.1998). Title VII also makes it unlawful for an employer to retaliate against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter.” (42 U.S.C. § 2000e-3(a)) To state a prima facie case for retaliation under Title VII, The plaintiff must show (1) that he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action. See Twigg v. Hawker Beechcraft Corp. 659 F.3d 987, at 998 (10th Cir. 2011). There are no specific allegations in the complaint about Bountiful City itself. There are no allegations that the City is an employer of the Plaintiff or acted in any way as an agent of the Plaintiff’s employer. The complaint lacks insufficient detail to support any Title VII claim against the City. All of the allegations against Officer Combs arise out of his acting as a police officer of the City. The only allegations against him are that he threatened the Plaintiff with a “Tazer”, searched the Plaintiff and asked the Plaintiff to leave the school grounds. There are no Case 1:15-cv-00060-DN-EJF Document 18 Filed 07/26/16 Page 5 of 7 6 allegations that any of the conduct was related to Plaintiff’s employment or his status as a person within a class protected by Title VII. The claims against J.C. Ynchausti are also devoid of any facts relating Mr. Ynchausti to discrimination or retaliation regarding the Plaintiff’s terms or conditions of employment. Even if the complaint was read broadly to include a claim against Mr. Ynchausti for violating Plaintiff’s right in a broader sense then under Title VII of the Civil Rights Act of 1964, this complaint would still demand dismissal as to Mr. Ynchausti. All of the allegations against Mr. Ynchausti involve his role in prosecuting the Plaintiff for trespass. A prosecutor acting within the scope of his/her duties enjoys absolute immunity from suit. See Imbler v. Pachtman, 424 U.S. 409, 424 (1976). All of the allegations against Mr. Ynchausti arise directly from his role as a prosecutor. CONCLUSION For the foregoing reasons the complaint should be dismissed for failure to state a claim for relief. Dated this 26th day of July 2016. /s/ David L. Church David L. Church BLAISDELL, CHURCH & JOHNSON, LLC. Attorneys for Bountiful City Matthew Combs J.C. Ynchausti Case 1:15-cv-00060-DN-EJF Document 18 Filed 07/26/16 Page 6 of 7 7 CERTIFICATE OF SERVICE I hereby certify that on July 26nd, 2016, I caused a true and correct copy of the foregoing MOTION TO DISMISS to be served via United States Mail upon the following: Andrew Calkins 1082 W. 550 S. Layton, Utah 84071 /s David L. Church Case 1:15-cv-00060-DN-EJF Document 18 Filed 07/26/16 Page 7 of 7