Brown v. Griggs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

MIKEL R. BROWN, MEMORADUM DECISION AND

ORDER ADOPTING REPORT AND

Plaintiff, RECOMMENDATION

v. Case No. 1:22-cv-00091-RJS-CMR

DARRELL GRIGGS, et al., Chief Judge Robert J. Shelby

Defendants. Magistrate Judge Cecilia M. Romero

Now before the court is Plaintiff Mikel R. Brown’s Objection1 to Magistrate Judge

Cecilia M. Romero’s Report and Recommendation (the Report).2 In the Report, Judge Romero

recommends this court grant Defendants’ Motion to Dismiss.3 For the reasons stated below, the

Report is ADOPTED with one modification,4 and Defendants’ Motion to Dismiss is GRANTED.

BACKGROUND5

In March 2022, Brown attended a Utah State Senate committee meeting to hear debate on

proposed HB60.6 Brown wore a shirt with the words “WE THE PEOPLE.”7 Before the meeting

1 ECF 47, Objection to Report & Recommendation Re: ECF 34 and Order Denying ECF 41 (Objection).

2 ECF 44, Report & Recommendation Re: ECF 34 and Order Denying ECF 41 (Report & Recommendation).

3 Id.; see also ECF 34, Defendants’ Motion to Dismiss and Memorandum in Support (Motion to Dismiss).

4 The court dismisses some claims with prejudice that Judge Romero recommended dismissing without prejudice.

See infra note 173.

5 The court accepts all well-pleaded factual allegations as true and views them in the light most favorable to Brown.

See Truman v. Orem City, 1 F.4th 1227, 1235 (10th Cir. 2021). Because the court is limited to the four corners of

the complaint when considering a Rule 12(b)(6) motion, it does not take judicial notice of the body camera videos

filed by Defendants. See Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); see also ECF 40, Reply

Memorandum Supporting Motion to Dismiss Amended Complaint (Defendants’ Reply) at 3–4 (stating the videos are

not critical to Defendants’ Motion to Dismiss); ECF 23-1, Notice of Conventional Filing.

6 ECF 25, Amended Complaint ¶ 24.

7 Id. ¶ 25.

started, attendees passed around a clipboard with stickers reading, “Vote Yes, HB60.”8 Brown

took two stickers, placing one on his hat and one on his phone case.9 He saw other attendees put

the stickers on their shirts.10

As Brown waited for the meeting to start, he noticed the Sergeant-at-Arms of the Utah

State Senate—Defendant Darrell Griggs—“going around the room and demanding that the

stickers be removed.”11 Brown asked Griggs what rule prohibited the stickers, but Griggs did

not answer.12 Brown nevertheless offered to “replace the sticker.”13

Griggs was not appeased, and he motioned toward Defendant Wade Breur, a Utah

Highway Patrol officer, and referring to Brown said, “Let’s ask him [] to step outside.”14 Breur

then explained that while stickers were allowed in the House, the Senate had different rules.15

Brown commented that he had worn stickers in Senate committee meetings before, and Breur

replied that Defendant Daniel McCay—the senator chairing the meeting—decided what rules

were enforced.16 Brown asked if he had to remove the sticker on his phone, and Breur began

explaining that signs and banners were prohibited in committee meetings.17 Brown replied, “It’s

8 Id. ¶ 27.

9 Id. ¶ 29.

10 Id.

11 Id. ¶¶ 2, 30. Defendants state Griggs “was an employee under the Sergeant’s direction,” but did not become

Sergeant-at-Arms until after the meeting. Motion to Dismiss at 8 n.1. However, they acknowledge that fact is not

relevant to their Motion, id., so the court will not consider it further.

12 Id. ¶¶ 32–34. Brown recorded these events on his phone, and his Complaint includes a link to a website where he

uploaded the video. Id. ¶ 31. Because the Complaint describes the events, it is not necessary for the court to cite the

video. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002) (stating “court may consider

documents referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do not

dispute the documents’ authenticity”).

13 Amended Complaint ¶ 34.

14 Id. ¶¶ 6, 35.

15 Id. ¶ 36.

16 Id. ¶¶ 3, 37–38.

17 Id. ¶ 39.

not a sign.”18 Breur then stated, “I will give you [one] chance to take off any visible stickers

before the meeting begins, and if you don’t, then you’re out.”19 Brown and Breur continued to

discuss the rule prohibiting stickers, and Breur stated the rule carried the effect of law, but he

could not identify the specific rule.20

Breur walked away, and Brown saw him speaking with Griggs, McCay, and Defendant

Greg Holley, a Utah Highway Patrol officer.21 McCay then opened the meeting and began

discussing the meeting rules.22 He stated stickers were not allowed and the meeting would be in

recess for five minutes because some attendees were not following that rule.23

Once the meeting was in recess, Griggs told Brown to put his stickers away.24 Brown

asked where the stickers needed to go, and Griggs told him to “fold them up and put them

someplace where they can’t be seen.”25 Brown removed his stickers and asked if Griggs wanted

them, but received no reply.26 Brown then gave Griggs one of his stickers, and Griggs asked for

the other sticker.27 Brown refused and said he would flip it over, and Griggs commented, “Ok, if

you turn it over hopefully we won’t have to take it.”28

Brown and Griggs discussed the stickers some more, and Brown asked what law he was

18 Id. ¶ 40.

19 Id.

20 Id. ¶¶ 42–44.

21 Id. ¶¶ 5, 46, 49.

22 Id. ¶¶ 50–53.

23 Id. ¶¶ 53–54.

24 Id. ¶ 56.

25 Id. ¶ 57.

26 Id. ¶ 58.

27 Id. ¶ 60.

28 Id.

violating but received no answer.29 At this point, Brown’s sticker was folded and “not visibly

noticeable to anyone within [his] immediate vicinity.”30 Some attendees, including Brown,

began questioning Griggs about his Ukrainian flag lapel pin.31 Griggs “appear[ed] to take issue

with this questioning” and demanded that Brown hand over his sticker.32 When Brown refused,

Griggs motioned toward Holley, who motioned for Brown to come with him.33 Brown

responded, “[T]he sticker is put away.”34

Holley and Defendant Seth Dalton (another Utah Highway Patrol officer)35 approached

Brown and told him he was being removed from the meeting.36 Holley grabbed Brown’s arm

“in an attempt to forcibly remove [him] from the meeting,” but then let go and explained Brown

was being removed for disruptive behavior.37 When Brown responded that the meeting was in

recess and not disrupted, Holley replied, “Do you want to be arrested or do you want to leave?”38

Brown answered, “I complied. I took the sticker away.”39 Holley then told Brown he was under

arrest, and Holley and Dalton grabbed his arms.40

Breur approached Brown from behind and began pushing him across the room, with help

29 Id. ¶¶ 61–64.

30 Id. ¶ 63.

31 Id. ¶¶ 65–66.

32 Id. ¶ 67.

33 Id. ¶ 68.

34 Id.

35 Id. ¶ 4.

36 Id. ¶¶ 69–71.

37 Id. ¶ 72.

38 Id. ¶ 74.

39 Id.

40 Id. ¶¶ 76–77.

from Holley and Dalton.41 Two other Utah Highway Patrol officers, Defendants Roger Daniels

and Ernest Peterson,42 came to help with the arrest, and Brown’s arms were “forcibly placed

behind his back,” and he was handcuffed.43 Other meeting attendees questioned the arrest, in

some instances addressing their comments to McCay.44

Shortly after being removed from the meeting, Brown had a panic attack and went “limp

to the floor.”45 Breur, Dalton, Holley, Daniels, and Peterson then carried Brown to a basement

holding room.46 After about ten minutes, Brown heard Breur and Dalton discussing what crimes

to charge Brown with.47 Brown heard Breur ask an unknown person over the phone if Brown

“was removed from the meeting because of his shirt and/or the sticker.”48 Breur also asked if the

meeting was still in recess and how long Brown would be banned for.49

After Brown had been in handcuffs for about thirty minutes, they were removed and

Breur Mirandized him.50 Brown told Breur he was having a panic attack and asked to speak with

his attorney, who the officers said was upstairs.51 The officers would not let him leave, and a

medical team arrived to take Brown’s vitals.52 When the medical team finished, the officers said

41 Id. ¶ 78.

42 Id. ¶¶ 7–8.

43 Id. ¶ 80.

44 Id. ¶¶ 79, 82.

45 Id. ¶ 83.

46 Id. ¶ 84.

47 Id. ¶ 85.

48 Id.

49 Id.

50 Id. ¶¶ 86–87.

51 Id. ¶¶ 89–90.

52 Id. ¶¶ 90–91.

they would take Brown upstairs to speak with his attorney when they finished questioning him.53

Dalton told Brown he was being cited for disrupting a meeting or procession.54 Brown was

fingerprinted and then released.55

The Salt Lake City prosecutor later moved to dismiss the case against Brown,

acknowledging “the apparent confusion” over what speech was permitted at the meeting

undermined a reasonable likelihood of success at trial.56 The case against Brown was dismissed

in April 2022.57

PROCEDURAL HISTORY

In July 2022, Brown initiated this action in federal court.58 He filed an Amended

Complaint in October 2022, alleging the events described above.59 As Defendants, he named

Michael Rapich, the Superintendent of the Utah Highway Patrol, as well as Griggs, Dalton,

Holley, Breur, Daniels, Peterson, and McCay.60

The Amended Complaint asserts seven claims. The first four claims are brought under

42 U.S.C. § 1983 and assert violations of Brown’s First, Fourth, Fifth, Sixth, and Fourteenth

Amendment rights.61 The first three claims are asserted against all Defendants, but the fourth

excludes Griggs.62 Generally, Brown asserts Griggs, Dalton, Holley, Breur, Daniels, and

53 Id. ¶ 91.

54 Id. ¶ 92; see also Utah Code § 76-9-103.

55 Amended Complaint ¶ 93.

56 Id. ¶¶ 100–02. See also ECF 25-1, Amended Complaint, Exhibit 1: Prosecutor’s Motion to Dismiss at 8–9.

57 Amended Comlaint ¶ 103. See also ECF 25-1, Amended Complaint, Exhibit 1: Order to Dismiss at 11.

58 ECF 1, Complaint.

59 Amended Complaint ¶¶ 13–103. Brown filed the Amended Complaint after Defendants moved to dismiss a first

time. See ECF 23, Defendants’ Motion to Dismiss; ECF 24, Plaintiff’s Reply to Defendants’ Motion to Dismiss.

60 Amended Complaint ¶¶ 2–9.

61 Id. ¶¶ 123–48.

62 Id. ¶¶ 124–25, 130–31, 136–38, 143–45.

Peterson (collectively, the Officer Defendants) directly violated his constitutional rights, and

McCay and Rapich failed or were deliberately indifferent toward their “duties to train, supervise,

and oversee” the Officer Defendants.63 The remaining three claims are brought under state law:

false imprisonment; malicious prosecution; and aggravated assault, battery, and harassment.64

These state law claims are brought against the Officer Defendants only, excluding Griggs.65

Brown requests declaratory relief, injunctive relief, and money damages.66

Defendants moved to dismiss, arguing the Amended Complaint fails to state a claim upon

which relief can be granted.67 Among other things, Defendants argue legislative, qualified, and

governmental immunity apply.68 After the Motion to Dismiss was fully briefed,69 Brown filed a

Motion for Writ Affidavit of Commercial Liability.70 In his Motion, Brown argued Defendants’

Motion to Dismiss was improperly filed because it was not supported by affidavits.71

The case was referred to Judge Romero under 28 U.S.C. § 636(b)(1)(B), and she issued

the Report, recommending the court grant Defendants’ Motion to Dismiss.72 She also denied

Brown’s Motion for Writ Affidavit of Commercial Liability.73

63 Id.

64 Id. ¶¶ 149–62.

65 Id.

66 Id. at 30–33.

67 Motion to Dismiss at 17; see also Fed. R. Civ. P. 12(b)(6).

68 Motion to Dismiss at 20–22, 24–30, 43.

69 See ECF 35, Plaintiff’s Opposition in Response to Defendants’ Motion to Dismiss (Brown’s Opposition); ECF 40,

Reply Memorandum Supporting Motion to Dismiss Amended Complaint (Defendants’ Reply).

70 ECF 41, Writ for Affidavit of Commercial Liability.

71 Id. at 2–3.

72 See Report & Recommendation at 28–29.

73 Id. at 26–28. Judge Romero had the authority to hear and determine Brown’s Motion. See 28 U.S.C. §

636(b)(1)(A) (explaining what pretrial matters a magistrate judge may “hear and determine”). This court could

reconsider her denial if “it has been shown that the . . . order is clearly erroneous or contrary to law.” Id. Brown has

not asked the court to reconsider the denial of his Motion, so the court does not consider it further.

In the Report, Judge Romero first noted that Brown named all Defendants in both their

official and personal capacities, except for Rapich, whom Brown sued in his official capacity

only.74 Judge Romero then explained that official capacity suits are treated as suits against the

official’s employer, and here, Brown failed to name Defendants’ employer (the State of Utah) as

a party.75 Accordingly, she recommended dismissing without prejudice all official capacity

claims.76 She further explained that without official capacity claims, declaratory and injunctive

relief were not available.77

Next, the Report addressed the claims against McCay in his personal capacity.78 Judge

Romero determined “McCay’s actions to maintain order during the legislative meeting related to

legislation and legislative function, given that the purpose of the meeting was to listen to debate

about the proposed HB60.”79 She thus recommended concluding legislative immunity applies

and dismissing all claims against McCay without prejudice.80

74 Report & Recommendation at 8 (citing Amended Complaint ¶¶ 2–9, 23).

75 Id. at 8–9 (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)).

76 Id. at 9. This court further notes that § 1983 does not abrogate a state’s Eleventh Amendment immunity. Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989) (explaining § 1983 “does not provide a federal forum for

litigants who seek a remedy against a State for alleged deprivations of civil liberties”).

77 Report & Recommendation at 10 n.5 (quoting Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1214 (10th Cir. 2022)

(“Under § 1983, a plaintiff cannot sue an official in their individual capacity for injunctive or declaratory relief.”)).

78 Id. at 10–12.

79 Id. at 11. Brown asserts McCay failed to “train, supervise, and oversee” the Officer Defendants. See, e.g.,

Amended Complaint ¶ 125. When concluding legislative immunity applied, Judge Romero focused on McCay’s

actions at the meeting and did not evaluate whether he was also immune from a failure to train claim. Report &

Recommendation at 10–12. The court acknowledges that depending on the circumstances, legislative immunity may

not apply to a failure to train claim. Compare Williams v. Garcia, No. 2:21-cv-08077-MEMF(PLAx), 2023 WL

2139655, at *9 (C.D. Cal. Feb. 17, 2023) (legislative immunity did not apply), with Cmty. Mental Health Servs. v.

Mental Health & Recovery Bd., 395 F. Supp. 2d 644, 655 (S.D. Ohio 2004) (legislative immunity applied).

However, Brown did not allege facts about McCay’s failure to train, see Amended Complaint ¶¶ 24–122, and he

argued legislative immunity did not apply because McCay acted without authority at the meeting when he said

stickers were prohibited, Brown’s Opposition at 16. He also did not discuss a failure to train claim in his Objection.

See generally Objection. Accordingly, the court will not consider further Brown’s references to a possible failure to

train claim.

80 Report & Recommendation at 11–12 (citing Sable v. Myers, 563 F.3d 1120, 1123–24 (10th Cir. 2009)).

Judge Romero then turned to the § 1983 claims against the Officer Defendants in their

personal capacities.81 Brown’s first claim asserts the Officer Defendants violated his Fourth

Amendment rights by arresting him without probable cause.82 The Officer Defendants raised a

qualified immunity defense,83 and Judge Romero evaluated Brown’s claim under both prongs of

the qualified immunity test.84 After a thorough review of the Amended Complaint and relevant

caselaw, she concluded Brown failed to plead a plausible Fourth Amendment violation because

he did not allege facts from which the court could reasonably infer the Officer Defendants lacked

probable cause.85 She also concluded Brown had not shown his asserted right was clearly

established at the time.86 Judge Romero thus concluded the Officer Defendants were entitled to

qualified immunity, and she recommended dismissing this claim with prejudice.87

The Report next addressed Brown’s second § 1983 claim.88 In this claim, Brown asserts

the Officer Defendants arrested him because of his speech and thus violated his First and

Fourteenth Amendment rights “to engage in free speech on an equal basis with other citizens.”89

The Officer Defendants argued they are entitled to qualified immunity on the First Amendment

claim,90 and Judge Romero agreed.91 She concluded Brown had not alleged sufficient facts to

81 Id. at 12.

82 Amended Complaint ¶ 124.

83 Motion to Dismiss at 24–30.

84 Report & Recommendation at 12–18. To defeat a qualified immunity defense, “the plaintiff must show (1) the

defendant’s actions violated a constitutional or statutory right, and (2) that the right was clearly established at the

time of the defendant’s complained-of conduct.” Truman v. Orem City, 1 F.4th 1227, 1235 (10th Cir. 2021).

85 Report & Recommendation at 12–16.

86 Id. at 16–18.

87 Id. at 18; see also id. at 29 n.13 (stating dismissal with prejudice is appropriate where qualified immunity applies).

88 Id. at 18–22.

89 Amended Complaint ¶ 130.

90 Motion to Dismiss at 30–34.

91 Report & Recommendation at 19–20.

support a First Amendment retaliation claim because he had not alleged facts showing either that

the officers lacked probable cause or he was treated differently than other similarly situated

individuals.92 She also concluded Brown had not shown his asserted right was clearly

established.93 Judge Romero thus recommended dismissing this claim with prejudice insofar as

it is based on an alleged First Amendment violation.94

Concerning the Fourteenth Amendment, Judge Romero explained that a plaintiff may not

invoke the Fourteenth Amendment when another amendment more explicitly protects the right at

issue.95 She also recognized that in similar cases, the Tenth Circuit has examined “whether the

plaintiff [has] a viable procedural or substantive due process claim that [is] not covered” by the

more explicit amendment.96 Judge Romero determined the First Amendment more explicitly

protected Brown’s asserted right and that he had not alleged a viable procedural or substantive

due process violation.97 She thus concluded he had failed to sufficiently plead a claim under the

Fourteenth Amendment, and she recommended dismissing this claim without prejudice.98

Next, Judge Romero considered Brown’s third claim, which asserts the Officer

Defendants violated his Fifth and Fourteenth Amendment rights by “arbitrarily, capriciously, and

without rational basis” treating him differently than other meeting attendees.99 Because the Fifth

Amendment’s Due Process Clause applies only to federal actors and Brown did not allege any

92 Id.

93 Id.

94 Id. at 22.

95 Id. at 20–21 (citing Albright v. Oliver, 510 U.S. 266 (1994)).

96 Id. at 21 (citing Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007)).

97 Id.

98 Id. at 21–22.

99 Amended Complaint ¶ 136.

Defendant’s actions were attributable to the federal government, Judge Romero recommended

dismissing the Fifth Amendment claim with prejudice.100

The Report next addressed the Fourteenth Amendment, and Judge Romero concluded

Brown had not alleged sufficient facts demonstrating he was treated differently than other

similarly situated individuals.101 She further explained that this Fourteenth Amendment claim is

a class-of-one claim,102 meaning Brown needed to allege that others “‘similarly situated in every

material respect’ were treated differently.”103 Because Brown did not allege other meeting

attendees were similarly situated “in every material respect,” Judge Romero recommended

dismissing this class-of-one claim without prejudice.104

Judge Romero then evaluated Brown’s fourth claim.105 This claim asserts the Officer

Defendants, excluding Griggs, violated Brown’s Sixth and Fourteenth Amendment rights by

“failing to follow applicable statutes and processes and take [Brown] to the magistrate to inform

[him] of the nature and cause of the alleged charge against him.”106 It further asserts the relevant

Defendants violated his right to counsel when they did not initially let him speak with his

attorney.107 Judge Romero first explained Brown has not adequately alleged a Sixth Amendment

100 Report & Recommendation at 22, 24 (citing Koessel v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d 736, 748 n.2 (10th

Cir. 2013)). This court further notes that even if Brown had alleged federal involvement, § 1983 applies only to

constitutional violations “by persons acting under color of state law.” Torres v. Madrid, 141 S. Ct. 989, 994 (2021);

see also 42 U.S.C. § 1983.

101 Report & Recommendation at 23.

102 A class-of-one claim “is one in which a public official, with no conceivable basis for his action other than spite or

some other improper motive (improper because unrelated to his public duties), comes down hard on a hapless

private citizen.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011) (quoting Lauth v.

McCollum, 424 F.3d 631, 633 (7th Cir. 2005)).

103 Id. (quoting Jicarilla Apache Nation v. Rio Arriba Cnty., 440 F.3d 1202, 1210 (10th Cir. 2006)).

104 Report & Recommendation at 23–24.

105 Id. at 24–25.

106 Amended Complaint ¶ 143.

107 Id. ¶ 144.

violation because Sixth Amendment rights do not attach until “at or after the initiation of

adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing,

indictment, information, or arraignment.”108 Because Brown did not allege that adversarial

proceedings took place before or during his detention, Judge Romero concluded his Sixth

Amendment rights had not attached, and she recommended dismissing this claim with

prejudice.109

Judge Romero next recommended dismissing the Fourteenth Amendment claim without

prejudice.110 Brown is invoking the same protections under the Sixth and Fourteenth

Amendments, so she concluded the Sixth Amendment needed to be the guide, not the more

general Fourteenth Amendment.111 She also determined Brown had not alleged “any facts to

support a viable procedural or substantive due process claim.”112

Having addressed all federal claims, the Report turned to Brown’s state law claims.113

Judge Romero recommended the court decline to continue exercising supplemental jurisdiction

over the state law claims, given her recommendation that all federal claims be dismissed.114

Accordingly, she recommended dismissing all state law claims without prejudice.115 She also

notified parties of their right to object, explained the timeline for objecting, and warned that

failure to timely object “may constitute a waiver of objections upon subsequent review.”116

108 Report & Recommendation at 24 (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).

109 Id. at 24–25.

110 Id. at 25.

111 Id.

112 Id.

113 Id. at 25–26.

114 Id. at 26 (citing 28 U.S.C. § 1367(c)(3)).

115 Id.

116 Id. at 29.

Up to this point, Brown had been proceeding pro se.117 However, after Judge Romero

issued the Report, Brown obtained counsel,118 who filed an Objection119 to the Report. The

court now considers Brown’s Objection.

LEGAL STANDARDS

Although Brown is now represented by counsel, he did not have counsel when he filed

his Amended Complaint. The court will thus construe the Amended Complaint liberally.120

Nevertheless, Brown’s Amended Complaint must still comply with the “fundamental

requirements” of the Federal Rules of Civil Procedure.121 Furthermore, because Brown was

represented by counsel when he submitted his Objection, the court will not construe it liberally.

The standard of review for a magistrate judge’s report and recommendation depends on

the sufficiency of the objection. When an objection is both timely and specific, the district court

reviews the magistrate judge’s report and recommendation de novo.122 An objection is timely if

filed within fourteen days of when the recommended disposition was served.123 An objection is

sufficiently specific if it focuses the “court’s attention on the factual and legal issues that are

truly in dispute.”124

Under the Tenth Circuit’s “firm waiver rule,” if an objection is not timely and specific,

117 See Brown’s Opposition at 20 (signed by Brown).

118 ECF 46, Aug. 22, 2023 Notice of Appearance.

119 ECF 47.

120 See Hennessey v. Univ. of Kan. Hosp. Auth., 53 F.4th 516, 524 n.1 (10th Cir. 2022) (liberally construing a

complaint when the plaintiff was represented by counsel on appeal but proceeded pro se in district court).

121 Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994).

122 See Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s

disposition that has been properly objected to.”); United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir.

1996) (“[O]bjections to the magistrate judge’s report and recommendation must be both timely and specific to

preserve an issue for de novo review by the district court.”).

123 Fed. R. Civ. P. 72(b)(2).

124 2121 E. 30th St., 73 F.3d at 1060.

then the objector has waived “review of both factual and legal questions.”125 A court may

decline to apply the firm waiver rule “when the interests of justice so dictate”—for example, if

“the magistrate’s order does not apprise the pro se litigant of the consequences of a failure to

object to findings and recommendations.”126 “[T]his court generally reviews unobjected-to

portions of a report and recommendation for clear error.”127

The Motion to Dismiss standard is also pertinent, as the Report evaluated Defendants’

Motion to Dismiss. Defendants requested dismissal under Rule 12(b)(6) of the Federal Rules of

Civil Procedure, arguing Brown’s Amended Complaint fails “to state a claim upon which relief

can be granted.”128 When reviewing a Rule 12(b)(6) motion, a court must accept all well-

pleaded allegations as true and view them in the light most favorable to the plaintiff.129 “While a

complaint need not recite ‘detailed factual allegations,’ ‘a plaintiff’s obligation to provide the

grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.’”130

If § 1983 defendants assert qualified immunity, they are presumptively immune from

suit.131 “To overcome this presumption, the plaintiff must show (1) the defendant’s actions

violated a constitutional or statutory right, and (2) that right was clearly established at the time of

the defendant’s complained-of conduct.”132 “A right is clearly established ‘when a Supreme

125 Id. at 1059 (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).

126 Moore, 950 F.2d at 659.

127 Zloza v. Indus. Co., No. 4:23-cv-17-RJS-PK, 2023 WL 2760784, at *1 (D. Utah Apr. 3, 2023) (citing Johnson v.

Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) and Fed. R. Civ. P. 72(b) advisory committee’s note to 1983

amendment).

128 Fed. R. Civ. P. 12(b)(6); Motion to Dismiss at 17.

129 Truman v. Orem City, 1 F.4th 1227, 1235 (10th Cir. 2021).

130 Id. (brackets omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

131 Id.

132 Id.

Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from

other courts shows that the right must be as the plaintiff maintains.’”133

ANALYSIS

The court first explains that although the Objection was timely, it is not specific and thus

does not qualify for de novo review. The court then concludes Judge Romero did not clearly err.

I. The Objection does not qualify for de novo review.

Although Brown filed a timely Objection,134 his arguments do not focus the “court’s

attention on the factual and legal issues that are truly in dispute.”135 The Objection thus does not

qualify for de novo review.

As an initial matter, the Objection argues Brown alleged sufficient facts supporting his

First and Fourth Amendment claims.136 He does not argue he alleged sufficient facts supporting

his Fifth, Sixth, or Fourteenth Amendment claims.137 Consequently, Brown has not objected to

Judge Romero’s recommendation that his Fifth, Sixth, and Fourteenth Amendment claims be

dismissed.138 The court will now address Brown’s arguments concerning his First and Fourth

Amendment claims.

Brown first challenges Judge Romero’s probable cause analysis, but his objection is

conclusory and lacks specificity.139 Brown contends “there was no evidence” he violated Utah

Code § 76-9-103 because he “was simply sitting in the audience listening with a very small

133 Id. (quoting Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014)).

134 Brown objected within fourteen days of service of the Report. Compare Report & Recommendation (filed Aug.

8, 2023), with Objection (filed Aug. 22, 2023).

135 2121 E. 30th St., 73 F.3d at 1060.

136 Objection at 3–6.

137 See id.

138 See id.

139 See id. at 3–5.

sticker on his hat” and because he “did not make any verbal remarks or take any physical action

to disrupt the meeting.”140 Brown does not cite allegations from his Amended Complaint to

support this statement, nor does he cite any legal authority.141 Thus, these are merely conclusory

statements, not specific objections.142

Moreover, it is unclear which parts of the probable cause analysis Brown challenges.

Judge Romero concluded the Officer Defendants were entitled to qualified immunity, and she

assessed both parts of the framework. First, she concluded Brown failed to allege facts from

which the court could infer the Officer Defendants lacked probable cause.143 Next, she

concluded Brown’s asserted right was not clearly established.144 Brown does not identify what

analysis he disagrees with, nor does he engage with the caselaw Judge Romero considered. For

this additional reason, Brown’s argument does not identify the legal issues in dispute.

Brown raises other arguments, but they also lack specifics. For example, in a single

sentence, Brown argues he could not have disrupted the meeting because it “was not in

progress.”145 He does not support this assertion with citations to the Amended Complaint or

legal authority.146 Nor does he identify which part of the Report he is challenging.147 However,

even if the court assumed the meeting was not in progress and Brown could be convicted only if

140 Id. at 3–4.

141 Id.

142 See Segovia v. Astrue, 226 F. App’x 801, 804 (10th Cir. 2007) (unpublished) (holding “conclusory and non-

specific” arguments did not qualify for de novo review); Wofford v. Colvin, 570 F. App’x 744, 745–46 (10th Cir.

2014) (unpublished) (holding de novo review was inappropriate where the plaintiff “failed to identify the particular

errors the magistrate judge committed” and failed “to cite any authority explaining how the magistrate judge’s

recommendations conflicted with governing law”).

143 Report & Recommendation at 15–16.

144 Id. at 16–18.

145 Objection at 6.

146 Id.

147 Id.

it were, Brown does not argue the Officer Defendants lacked probable cause to believe the

meeting was in progress.148 His argument about whether the meeting was in progress thus does

not challenge probable cause—it contends he did not commit a crime. But Judge Romero did

not conclude Brown committed a crime.149 Rather, she concluded the Officers Defendants had

probable cause to believe Brown committed a crime and that his asserted right was not clearly

established.150 Accordingly, Brown’s argument that the meeting was not in progress is not a

specific objection to the Report.

Similarly, Brown contends the Senate “does not have a written rule” prohibiting

stickers.151 He does not identify which part of the Report he is objecting to,152 and the Report

did not conclude there was a written rule.153 Rather, Judge Romero referenced Utah Code § 76-

9-103 and McCay’s statement at the meeting that stickers were not allowed.154 Even assuming

Brown is correct and the Senate does not have a written rule prohibiting stickers, he does not

explain why that undermines Judge Romero’s probable cause analysis.155 This argument does

not justify de novo review.

Brown also argues any statute or rule prohibiting stickers would violate the First

Amendment.156 But Judge Romero noted the legality of a statute or rule is irrelevant to the

148 See id.

149 See Report & Recommendation at 16 n.9.

150 Id. at 12–18.

151 Objection at 4.

152 Id. at 4–5.

153 See Report & Recommendation at 12–22.

154 See id. at 3 (explaining McCay’s statements at the meeting); see also id. 13–14 (citing McCay’s statements and

Utah Code § 76-9-103).

155 Objection at 4–5.

156 Id. at 4 (arguing a rule or policy against stickers “would clearly be in violation of the First Amendment”); see

also id. at 5 (“The government cannot violate a person’s First Amendment rights and then make the simple

questioning of the violation the basis for probable cause to arrest.”).

probable cause analysis “because officers generally may presume that statutes are constitutional

until declared otherwise.”157 Brown does not challenge this point, nor does he explain why the

legality of the underlying rule or statute is relevant to the probable cause analysis.158

Accordingly, he has not identified an issue in dispute.159

Next, Brown argues he sufficiently alleged he was arrested for asking Griggs about his

lapel pin.160 Because Brown does not cite the Report, it is unclear which part of the Report he

disagrees with.161 If Brown is arguing Griggs’ subjective intent negated probable cause, Judge

Romero noted subjective intent was irrelevant to her analysis.162 If Brown is arguing he

sufficiently alleged a First Amendment retaliation claim, that argument is also not specific

enough. Judge Romero concluded the Officer Defendants were entitled to qualified immunity on

the retaliation claim.163 She explained that Brown failed to sufficiently plead either that the

Officer Defendants lacked probable cause or that he was arrested when other similarly situated

individuals were not.164 Brown does not acknowledge the qualified immunity framework, nor

does he explain which part of Judge Romero’s analysis he disagrees with.165 Consequently, the

court is uncertain what conclusion he is challenging, and the argument is not specific enough.

157 Report & Recommendation at 14 n.6 (quoting Mocek v. City of Alburquerque, 813 F.3d 912, 928 (10th Cir.

2015)).

158 See Objection at 4–5.

159 See 2121 E. 30th St., 73 F.3d at 1060.

160 Objection at 5–6.

161 Id.

162 Report & Recommendation at 14 n.8 (quoting Frey v. Town of Jackson, Wyoming, 41 F.4th 1223, 1233 (10th Cir.

2022) (“The subjective mindset of the arresting officer does not matter—rather, we ask whether the totality of the

circumstances, viewed objectively, justifies the arrest.”)).

163 Id. at 19–20.

164 Id.

165 Objection at 5–6.

In sum, none of Brown’s arguments focus the “court’s attention on the factual and legal

issues that are truly in dispute.”166 The Objection thus does not qualify for de novo review.167

II. The court adopts the Report.

After reviewing the filings and the relevant legal authority, the court concludes Judge

Romero did not clearly err. The court therefore ADOPTS the Report with one modification.168

CONCLUSION

For the reasons stated, the Defendants’ Motion to Dismiss169 is granted, and the Report

and Recommendation170 is ADOPTED with one modification.171 All official capacity claims are

dismissed without prejudice. The personal capacity claims are dismissed as follows:

• Brown’s first cause of action172 is dismissed with prejudice;173

• Brown’s First Amendment claim brought under the second cause of action,174

Fifth Amendment claim brought under the third cause of action,175 and Sixth

166 See 2121 E. 30th St., 73 F.3d at 1060.

167 Although the court may decline to apply the firm waiver rule “when the interests of justice so dictate,” Moore,

950 F.2d at 659, Brown has not argued the exception applies, and the court sees no reason to invoke it.

168 See infra note 173.

169 ECF 34.

170 ECF 44.

171 See infra note 173.

172 Amended Complaint ¶¶ 123–28.

173 See Report & Recommendation at 29 n.13 (explaining why dismissal with prejudice is appropriate when qualified

immunity applies). Judge Romero recommended dismissing all claims against McCay without prejudice. See id. at

28. However, because supervisory liability claims require a constitutional violation, dismissal with prejudice is

appropriate where the accompanying claims against the Officer Defendants were dismissed with prejudice. See

Arnold v. City of Olathe, 35 F.4th 778, 793 (10th Cir. 2022) (explaining supervisory liability requires an

“affirmative link” to a “constitutional deprivation”); see also Johnson v. City of Roswell, 752 F. App’x 646, 652

(10th Cir. 2018) (unpublished) (“Without a constitutional violation, Johnson’s § 1983 failure-to-supervise/train

claim against Chief Smith in his individual and official capacities also fails.”).

174 Amended Complaint ¶¶ 129–34.

175 Id. ¶¶ 135–41.

Amendment claim brought under the fourth cause of action!”® are dismissed

with prejudice; !7”

e Brown’s Fourteenth Amendment claims brought under the second, third, and

fourth causes action!”® are dismissed without prejudice;!”’ and

e Brown’s fifth, sixth, and seventh causes of actions!®° are dismissed without

prejudice.

Thirty days from today, the court will direct the Clerk of Court to close the case unless

Brown has filed a motion seeking leave to file a second amended complaint.'*! Motions seeking

leave to amend must comply with DUCivR 15-1.

SO ORDERED this 18th day of September 2023.

BY THE COURT:

KA

United States Chief District Judge

1% Td. WJ 142-48.

177 See Report & Recommendation at 29 n.13.

Amended Complaint 4 129-48.

1 See Report & Recommendation at 29 n.13.

18 Amended Complaint 4 149-62.

'81 Brown argues he should be given leave to file a second amended complaint before his case is dismissed.

Objection at 2-3. He specifically argues that because he is now represented by counsel, he should have time to

remedy the Amended Complaint’s deficiencies. Jd. He cites Curley v. Perry in support, stating, “[D]ismissal under

Rule 12(b)(6) without affording the plaintiff notice or an opportunity to amend is proper only when it is patently

obvious that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his

complaint would be futile.” 246 F.3d 1278, 1281-82 (10th Cir. 2001) (quotation simplified). But Curley considered

a dismissal under 28 U.S.C. § 1915(e)(2), which permits a court to sua sponte dismiss a pro se complaint for, among

other things, failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)Gi). The Report here considered a motion to

dismiss and did not recommend dismissal sua sponte. See Report & Recommendation at 1. Thus, the standard

articulated in Curley does not govern. Moreover, Brown cannot request leave to amend in his Objection, and he has

not filed a separate motion seeking leave to amend. See DUCivR 7-1(a)(3).

20