Allison v. Utah County Corp., 2:03-CV-632 PGC.

335 F.Supp.2d 1310

Ronald ALLISON, Plaintiff, v. UTAH COUNTY CORPORATION, et al., Defendants.

No. 2:03-CV-632 PGC.

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

September 14, 2004.

COPYRIGHT MATERIAL OMITTED

Kathleen M. Liuzzi, Dunn & Dunn, Salt Lake City, UT, Michael W. Homer, Jesse C. Trentadue, Suitter Axland, Salt Lake City, UT, for Utah County Corp. adn Sherry Regan.

Allan L, Larson, Heather S. White, Snow, Christensen & Martineau, Salt Lake

City, UT, for Springville City Corp. and Dean Petterson.

Ronald Allison, Springville, UT, Pro se.

MEMORANDUM & ORDER

CASSELL, District Judge.

Plaintiff filed suit under 42 U.S.C. § 1983 against Utah County Corporation, Springville City Corporation, Detective Dean Petterson, and Deputy County Attorney Sherry Ragan¹ alleging that they violated his Fourth Amendment rights. Defendants Utah County and Ragan (hereinafter "Utah County Defendants") have filed a Combined Motion to Quash Service of Process and Motion to Dismiss under Rule 12(b)(5), (6) of the Federal Rules of Civil Procedure. (Dkt.# 5.) Plaintiff has not filed an opposition to the motion.

Plaintiff alleges in his complaint that Defendant Detective Petterson, a Springville City officer, searched his residence and seized property without a warrant in violation of the Fourth Amendment. Plaintiff further alleges that Defendant Ragan conspired with Detective Petterson in the alleged constitutional violation. In addition, Plaintiff alleges that Defendant Utah County, as Defendant Ragan's employer, is responsible for her allegedly unlawful acts. (See Compl. at 2, 5.) The Utah County Defendants seek dismissal on several grounds: (1) failure to make proper service of process, (2) prosecutorial immunity, (3) Eleventh Amendment immunity, and (4) the rule against respondeat superior liability.

I. Failure to Effect Proper Service

"Effectuation of service is a precondition to suit." Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir.1998). Although the court construes pro se pleadings liberally, a pro se litigant is required to follow the same rules of procedure as other litigants. Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.1992). Specifically, a pro se litigant "is still obligated to follow the requirements of Fed.R.Civ.P. 4." DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir.1993); Espinoza v. United States, 52 F.3d 838, 841 (10th Cir.1995). The plaintiff has the burden of establishing the validity of service. FDIC v. Oaklawn Apts., 959 F.2d 170, 174 (10th Cir.1992).

Under Rule 4(j)(2) of the Federal Rules of Civil Procedure, service upon a state, a municipal corporation, or other governmental organization "shall be effected by delivering a copy of the summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state." The Utah Rules of Civil Procedure provide that service upon a county shall be made by delivering a copy of the summons and complaint to the county clerk. Utah R. Civ. P. 4(d)(2)(G)

In the instant case, Plaintiff attempted to effect service on Defendant Utah County by leaving a copy of the summons and complaint with Michelle Grimshaw, a secretary to one of the Utah County commissioners, who happened to be in the commissioners' office when the process server arrived to serve the complaint. (See Return of Service, Dkt # 4.) The summons and complaint were not delivered to Kim Jackson, the Utah County Clerk, as required by the Federal Rules. Therefore, service upon Utah County was ineffective.

With regard to Defendant Ragan, the Federal Rules provide that service upon an individual may be effected

by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

Fed.R.Civ.P. (4)(e)(2).

Service upon Defendant Ragan was attempted by leaving the summons and complaint with a receptionist in Defendant Ragan's office. (See Return of Service, Dkt # 4.) Defendant Ragan had not authorized anyone to accept service on her behalf. Thus, service upon Defendant Ragan was invalid as well.

Under the Federal Rules, a plaintiff must serve the defendants within 120 days of filing the complaint. Fed.R.Civ.P. 4(m). In the instant case, the complaint was filed July 18, 2003, requiring that service be effected by approximately November 15, 2003. The attempted service on defendants was accomplished on November 12, 2003. Thus, Plaintiff has failed to effect valid service within 120 days as required by the Federal Rules. In such a case, the Rules provide as follows:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

Fed.R.Civ.P. 4(m).

"The general rule is that `when a court finds that service is insufficient but curable, it generally should quash the service and give the plaintiff an opportunity to re-serve the defendant.' "Gregory v. United States/United States Bankruptcy Court for the Dist. of Colo., 942 F.2d 1498, 1500 (10th Cir.1991)(quoting Pell v. Azar Nut Co., 711 F.2d 949, 950 n. 2 (10th Cir.1983)); see 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1354 (3d ed.2004). Since it appears that Plaintiff, if given the opportunity, would be able to effect proper service, he should be given a reasonable time to do so as discussed below.

II. Motion to Dismiss Under Rule 12(b)(6)

The Utah County Defendants contend that Plaintiff's claims against them should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. Specifically, they assert that Defendant Ragan is entitled to prosecutorial and Eleventh Amendment immunity, and Defendant Utah County may not be held liable under a theory of respondeat superior.

It is well settled that a complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir.2004); Gonzales v. City of Castle Rock, 366 F.3d 1093, 1096 (10th Cir.2004). In reviewing the complaint, the court accepts all well-pleaded facts as true, construes the complaint liberally, and draws all reasonable inferences in favor of the plaintiff. Gonzales, 366 F.3d at 1096; Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir.2002).

A. Prosecutorial Immunity

Defendant Ragan contends that she is entitled to absolute immunity in her capacity as prosecutor. The Supreme Court has adopted a functional approach to the question of prosecutorial immunity. Prosecutors enjoy absolute immunity from suit for actions that are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); accord DiCesare, 12 F.3d at 977. However, when a prosecutor acts in an investigative or administrative role, his actions are protected by only qualified immunity. DiCesare, 12 F.3d at 977; see Kalina v. Fletcher, 522 U.S. 118, 125-27, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). Thus, in determining immunity, the court examines "the nature of the function performed, not the identity of the actor who performed it." Kalina, 522 U.S. at 127, 118 S.Ct. 502 (quoting Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)).

This "function test" has been fleshed out by the Supreme Court in subsequent cases. In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court held that the Attorney General of the United States was entitled to only qualified, not absolute, immunity for authorizing a warrantless wiretap. In applying the functional approach, the Court noted that Mitchell was not acting in a prosecutorial capacity when the allegedly unconstitutional conduct arose, but instead was performing his national security function. Id. at 520-24, 105 S.Ct. 2806.

Similarly, in Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), the Court held that in providing legal advice to the police during the preliminary investigation of the facts of a criminal case, the prosecutor was entitled only to qualified, not absolute, immunity. The Court stated that "[a]bsolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigation." Id. at 494, 111 S.Ct. 1934. Thus, in determining absolute immunity, courts should "inquire whether the prosecutor's actions are closely associated with the judicial process." Id. at 495, 111 S.Ct. 1934. The Court noted that it would be "incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice." Id.

Finally, in Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), the Supreme Court held that prosecutors were not entitled to absolute immunity for allegedly fabricating evidence during the preliminary investigation of a crime. The Court again applied the function test, noting that a prosecutor's administrative duties and investigative functions that are not related to his role as advocate in preparing for, or initiating, a...