Auvaa v. City of Taylorsville

• Decision Date: 27 March 2007
• Docket Number: Civil No. 2:06-CV-0684BSJ.
• Citation: 506 F.Supp.2d 903
• Court: U.S. District Court — District of Utah
• Parties: Mary Jane Vea Auvaa, an individual; Joshua Auvaa, an individual; Teine Auvaa, an individual; David Michael GARN, Plaintiffs, v. The CITY OF TAYLORSVILLE, a Municipal Government of the State of Utah, Lorenzo K. Miller, an individual, Lohra L. Miller, an individual, and Miller & Miller Law Offices, Defendants.

506 F.Supp.2d 903

Mary Jane Vea Auvaa, an individual; Joshua Auvaa, an individual; Teine Auvaa, an individual; David Michael GARN, Plaintiffs, v. The CITY OF TAYLORSVILLE, a Municipal Government of the State of Utah, Lorenzo K. Miller, an individual, Lohra L. Miller, an individual, and Miller & Miller Law Offices, Defendants.

Civil No. 2:06-CV-0684BSJ.

United States District Court, D. Utah, Central Division.

March 27, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

D. Bruce Oliver, Salt Lake City, UT, for Plaintiffs.

Peter Stirba, Stirba & Associates, Salt Lake City, UT, Harold H. Armstrong, Craig L. Taylor and Associates, Kaysville, UT, for Defendants.

MEMORANDUM OPINION & ORDER

JENKINS, Senior District Judge.

The plaintiffs brought this action under 42 U.S.C.A. § 1983 (2003),¹ seeking declaratory and injunctive relief, costs and attorney's fees against the City of Taylorsville and two attorneys who act as independent contractors on behalf of the City in conducting criminal prosecutions in the Taylorsville Justice Court and Third District Court. The defendants have moved to dismiss plaintiffs' claims pursuant to Fed. R.Civ.P. 12(b)(6) on the grounds that (1) the plaintiffs do not allege direct participation in wrongful conduct by defendants Lohra Miller, Miller & Miller Law Offices, or the City of Taylorsville; (2) defendant Lorenzo Miller is shielded from civil liability by the doctrines of absolute prosecutorial immunity and qualified immunity; (3) the plaintiffs failed to allege a constitutional violation caused by an unconstitutional policy, custom or procedure on the part of the City for which it may be held liable to these plaintiffs under § 1983;² and (4) the plaintiffs' claims for declaratory and equitable relief are moot in light of intervening rulings by the Utah Court of Appeals. In addition, the City of Taylorsville had previously moved to dismiss on the ground that abstention is required pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

BACKGROUND FACTS

Taking the well-pleaded factual allegations of plaintiffs' complaint as true for purposes of Rule 12(b)(6),³ and including the contents of those documents referenced in the pleading,⁴ this action arises from a sequence of events involving a criminal prosecution.

Following an incident on March 27, 2005, each of the named plaintiffs was cited and charged with two offenses, Interfering with a Legal Arrest (Utah Code Ann. § 76-8-305) and Riot (Utah Code Ann. § 76-9-101). At the conclusion of a jury trial in the Taylorsville Justice Court, each of the plaintiffs was found guilty of interference, and each was acquitted on the riot charge. The plaintiffs then timely appealed their convictions on the interference charge, seeking a trial de novo in the Third District Court. See Utah Code Ann. § 78-5-120 (2002).

In the context of the district court trial de novo, the prosecution sought to retry these plaintiffs on the riot charge as well as the interference charge, to which they objected on grounds of double jeopardy. The state district, court found these objections to be well taken and dismissed the renewed riot charges. The prosecution then sought appellate review of the dismissals,⁵ including a petition for a extraordinary writ requiring the Third District Court to proceed against Mary Jane Auvaa and David Garn on both charges.

As the City of Taylorsville now hastens to point out, the Utah Court of Appeals resoundingly rejected its pleas, denying extraordinary relief on the double jeopardy issue. See Taylorsville City v. Adkins, 2006 UT App 374, 145 P.3d 1161 (2006); Order, dated September 22, 2006, in Taylorsville City v. Christiansen, Case No. 20060731-CA (Utah Ct.App.). The Utah Court of Appeals agreed with the district court that retrial of Auvaa and Garn on the riot charge would violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution as that provision applies to the States. See Bernat v. Allphin, 2005 UT 1, ¶ 10 n. 6, 106 P.3d 707, 711 n. 6 (2005) ("The Double Jeopardy Clause of the United States Constitution was deemed to be applicable to the states through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).").⁶

Following these rulings, Taylorsville avers that it withdrew its opposition to dismissal of the riot charge as against Teine and Joshua Auvaa. (Memorandum in Support of Defendants' Motion to Dismiss for Failure to State a Claim Upon Which Relief May be Granted and for Mootness, filed November 30, 2006 (dkt. no. 13) ("Defs' 11/30/06 Mem."), at 4 ¶ 9, 13.)

Plaintiffs filed this action on August 16, 2006, seeking declaratory and equitable relief against further prosecution on the riot charges in the same Third District Court trial de novo proceedings that were the subject of Taylorsville City's writ petitions then pending before the Utah Court of Appeals. As noted above, the defendants have moved to dismiss.

DEFENDANTS' MOTION TO DISMISS

Defendants Lohra Miller and Miller & Miller Law Offices

To be held liable under § 1983, a defendant must be shown to be someone who "subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C.A. § 1983. As the court of appeals has explained: "Section 1983 is not a vicarious liability provision .... In any § 1983 action, the plaintiff must demonstrate the liability of each ... official against whom a claim is made," and "the burden is on the plaintiff to develop facts that show the defendant's responsibility for a constitutional violation." Semi v. Colorado Dept. of Corrections, 455 F.3d 1146, 1155 (10th Cir.2006).

A private actor such as a law firm "cannot be held liable solely because it employs a tortfeasor — or, in other words ... cannot be held liable under § 1983 on a respondent superior theory." Monell v. Dep't of Social Services of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (emphasis in original).⁷ Therefore, in order to hold Miller & Miller Law Offices liable for the alleged tortious acts of its agents, the plaintiffs must show that the firm directly caused the constitutional violation by instituting an official policy of some nature that was the "direct cause" or "moving force" behind the constitutional violations. Pembaur v. City of Cincinnati, 475 U.S. 469, 480-85, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808, 820, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985).

A § 1983 plaintiff must show an affirmative link between a defendant's conduct and a constitutional violation, and that affirmative link "must be alleged in the complaint as well as proven at trial." Stidham v. Peace Officer Standards And Training, 265 F.3d 1144, 1157 (10th Cir. 2001). Here the plaintiffs allege no facts showing any affirmative link between the conduct of Lohra Miller or Miller & Miller Law Offices and any constitutional violation suffered by these plaintiffs; nor do they allege facts that would evidence that Miller & Miller Law Offices had an official policy that was the "direct cause" of any constitutional violation resulting from the alleged conduct of defendant Lorenzo Miller in prosecuting criminal charges against them.⁸

Defendants' motion thus appears to be well taken, and plaintiffs' complaint shall be dismissed as against defendants Lohra Miller and Miller & Miller Law Offices.

The City of Taylorsville

Much the same is true of plaintiffs' § 1983 claims against the City of Taylorsville. Such a claim "`must demonstrate two elements: (1) a municipal employee committed a constitutional violation, and (2) a municipal policy or custom was the moving force behind the constitutional deprivation.'" Walker v. City of Orem, 451 F.3d 1139, 1152 (10th Cir.2006) (quoting Myers v. Okla. County Bd. of County Comm'rs, 151 F.3d 1313, 1318 (10th Cir. 1998)); accord Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006).⁹ Plaintiffs' pleadings may have alleged a constitutional violation committed by the City's prosecutor, but have "identified no municipal policy or custom the execution of which caused [their] injury, a requirement for claims against municipalities" under § 1983 as construed in Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Johnson v. Johnson, 466 F.3d 1213, 1215 (10th Cir.2006).

As pleaded, plaintiffs' § 1983 claims for declaratory and injunctive relief against the City of Taylorsville fail to state a claim upon which relief may be granted, and should likewise be dismissed.

Absolute Prosecutorial Immunity

As the Tenth Circuit explained in Perez v. Ellington, 421 F.3d 1128 (10th Cir.2005), when determining whether a defendant is entitled to absolute immunity, courts employ a functional approach that examines "`the nature of the function [the defendant] performed, not the identity of the actor who performed it.'" Id. at 1133 (quoting Malik v. Arapahoe County Dep't of Soc. Servs., 191 F.3d 1306, 1314 (10th Cir.1999)).

Counsel asserts that defendant Lorenzo Miller "was acting within the scope of his prosecutorial duties," and that "prosecuting attorneys are absolutely immune from suit under § 1983 for actions taken within the scope of `prosecutorial duties,'" citing Imbler v. Pachtman, 424 U.S. 409, 420, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). (Defs' 11/30/06 Mem. at 6.)¹⁰ This assertion assumes that absolute immunity extends to private attorneys who contract to serve as municipal prosecutors.

There appears to be some support for the proposition that "[p]rivate attorneys may have prosecutorial immunity in the proper circumstances." Niebur v. Town of Cicero, 212 F.Supp.2d 790, 824 (N.D.Ill. 2002). See, e.g., Hollowell v. Gravett, 703 F.Supp. 761, 764 (E.D.Ark.1988) (...