Petition for Writ of Certiorari — San Juan County, Utah, Petitioner v. Rosalie Chilcoat

Supreme Court briefNov 21, 2022

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APPENDIX

Page

Opinion, United States Court of Appeals for the

Tenth Circuit, July 22, 2022 ...........................1a–48a

Order Denying Petition for Panel Rehearing

and Rehearing En Banc, United States Court

of Appeals for the Tenth Circuit, August 22,

2022 ............................................................... 49a–50a

Order Granting Motion for Judgment on the

Pleadings, United States District Court for

the District of Utah, March 30, 2020............ 51a–63a

Order Denying Motion for Leave to Amend Complaint, United States District Court for the

District of Utah, January 21, 2021 ............... 64a–70a

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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ROSALIE CHILCOAT, an individual,

Plaintiff Counter Defendant Appellant,

No. 21-4039

SAN JUAN COUNTY, a political

subdivision of the state of Utah;

KENDALL G. LAWS,

Defendants - Appellees,

and

ZANE ODELL,

Defendant Counterclaimant,

MARK FRANKLIN,

Counter Defendant.

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Appeal from the United States District Court

for the District of Utah

(D.C. No. 4:19-CV-00027-DN)

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(Filed Jul. 22, 2022)

Karra J. Porter (Anna P. Christiansen and Amber D.

Stargell with her on the briefs), Christensen &

Jensen, P.C., Salt Lake City, Utah, for Plaintiff –

Appellant.

R. Blake Hamilton (Ashley M. Gregson and Ryan M.

Stephens with him on the brief), Dentons Durham Jones

Pinegar, P.C., Salt Lake City, Utah, for Defendants –

Appellees.

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Before CARSON, BRISCOE, and ROSSMAN, Circuit Judges.

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ROSSMAN, Circuit Judge.

Rosalie Chilcoat appeals the district court’s orders

granting Defendants’ motion for judgment on the

pleadings under Federal Rule of Civil Procedure 12(c)

and denying leave to amend her complaint under Federal Rule of Civil Procedure 15(a)(2). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the grant of

judgment on the pleadings, reverse the denial of leave

to amend, and remand for further proceedings.

BACKGROUND

Underlying Facts1

This appeal begins with the closing of a corral

gate in San Juan County, Utah. Zane Odell is a cattle

rancher. He has a permit to graze his cattle in parts of

San Juan County on land held by the U.S. Bureau of

Land Management (“BLM”) and the Utah School and

Institutional Trust Land Administration. On the morning of April 1, 2017, Mr. Odell left his corral gate open

so his cattle could graze on state and federal public

land and then return home to get water on his property. That same evening, Mr. Odell noticed that his corral gate had been shut and latched. Mr. Odell called

the San Juan County Sheriff ’s Department and reported the situation, explaining that but for a 10-foot

gap in his fence, the closure of the corral gate risked

depriving his cattle of water. Sergeant Wilcox came out

to investigate. Mr. Odell and Sergeant Wilcox reviewed

The background facts are taken from the well-pleaded allegations in Ms. Chilcoat’s complaint. See Porter v. Ford Motor Co.,

917 F.3d 1246, 1247 n.1 (10th Cir. 2019). Like the district court,

we also rely on the transcript of the November 2, 2017, preliminary hearing in Ms. Chilcoat’s underlying state criminal case because it was a matter of public record, quoted in the complaint,

central to Ms. Chilcoat’s claims, and the parties did not dispute

its authenticity. The transcript is part of the appellate record, and

its authenticity has never been questioned on appeal. Jacobsen v.

Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002) (“[T]he district 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.”); see also Emps.’ Ret.

Sys. of Rhode Island v. Williams Cos., 889 F.3d 1153, 1158 (10th

Cir. 2018) (considering documents on appeal central to plaintiff ’s

claim and of undisputed authenticity).

video footage from Mr. Odell’s trail camera. The video

showed an SUV towing a trailer come and go near the

corral gate. Part of the SUV’s license plate number was

visible. The SUV belonged to Rosalie Chilcoat and her

husband.

Ms. Chilcoat had long been interested in environmental advocacy for public lands in San Juan County.

As of April 1, 2017, Ms. Chilcoat belonged to two environmental organizations: The Great Old Broads for

Wilderness and Friends of Cedar Mesa. Each group

took positions on public land use allegedly opposed by

Mr. Odell. Ms. Chilcoat had “documented and reported

information to the BLM [about public grazing] and attempted to affect BLM management through proper

channels.” Aplt. App. vol. 1 at 24. She previously complained to BLM about Mr. Odell’s use of public land.

Ms. Chilcoat also had publicly supported criminal

charges against former San Juan County Commissioner Philip Lyman after he “led a protest ride of offroad vehicles through Recapture Canyon.” Id. at 27.

And when Commissioner Lyman was convicted of federal criminal conspiracy, “Ms. Chilcoat had publicly applauded the conviction in local news media, and

[Commissioner] Lyman had publicly blamed Ms. Chilcoat for his criminal conviction.” Id.

On April 3, 2017, a few days after Mr. Odell reported the gate closure, Ms. Chilcoat and her husband

were driving on the county road near Mr. Odell’s property. Mr. Odell was out working in his corral and recognized Ms. Chilcoat’s SUV from the trail-camera

footage. Mr. Odell and two other ranchers caught up

to Ms. Chilcoat and her husband and detained them by

blocking the public roadway. Mr. Odell called the San

Juan County Sheriff ’s Department and was told Ms.

Chilcoat and her husband should not be allowed to

leave until the deputy arrived. While waiting for the

deputy, Mr. Odell accused Ms. Chilcoat and her husband of criminal activity and threatened them with jail

time.

When Deputy Begay arrived, he asked Ms. Chilcoat’s husband if he shut Mr. Odell’s gate two days earlier. Ms. Chilcoat’s husband responded that he had

shut the gate but knew Mr. Odell’s fence had an opening for the cows to enter the corral. Deputy Begay

asked Ms. Chilcoat for her name. She responded with

her first name, “Rosalie.” Deputy Begay then asked

whether her last name was “Franklin,” like her husband’s. Ms. Chilcoat responded, “Yes.”2 Deputy Begay

then told Ms. Chilcoat and her husband they could go.

Two days later, Ms. Chilcoat emailed the local

BLM office. The email described the April 3 incident

near Mr. Odell’s corral and lodged a complaint about

Mr. Odell:

[My husband and I were] accosted by three

cowboys (one of whom I believe was Zane

O’Dell [sic] and one who I believe was Zeb Dalton and one unknown to me) who physically

blocked our vehicle, accused us of criminal

This interaction would later become the basis for charging

Ms. Chilcoat with the misdemeanor count of False Personal Information to a Peace Officer.

activity, threatened us with jail, and prevented our return to the highway. This was a

distressing and fearful experience for both of

us. My husband was falsely accused of preventing livestock from reaching water. The

San Juan County Sheriff was called, responded,

spoke with us and cleared us to leave.

As visitors to our public lands who have long

been interested in public lands grazing and

have documented and reported information to

the BLM and attempted to affect BLM management through proper channels, this assault and behavior by BLM permittees is

unacceptable. I would like to lodge a complaint and ask that this complaint be included

in these permittee[s’] files. . . .

Aplt. App. vol. 1 at 24. Ms. Chilcoat attached a zip file

of photographs to her email. The record suggests these

photographs depicted ponds on BLM land where Mr.

Odell was permitted to graze his cattle. Id. at 61-63,

72-73. According to Mr. Odell, Ms. Chilcoat submitted

these photographs to BLM to indicate he was violating

the scope of his BLM permit. Id. at 72-73.

Over the next few days, Ms. Chilcoat’s husband

made several unsuccessful attempts to reach Sergeant

Wilcox about the April 3 incident. On April 7, 2017,

Sergeant Wilcox presented information about the April

3 incident to the San Juan County Prosecutor, Kendall

Laws. Sergeant Wilcox provided Prosecutor Laws with

statements from Mr. Odell and one of the ranchers at

the scene on April 3. Sergeant Wilcox also informed

Prosecutor Laws about Ms. Chilcoat’s affiliation with

the Great Old Broads for Wilderness organization.

On April 11, 2017, Prosecutor Laws charged Ms.

Chilcoat with two misdemeanors: Trespassing on Trust

Land (Animal Enterprise)3 and False Personal Information to a Peace Officer.4 On April 18, Prosecutor

Laws escalated the criminal prosecution against Ms.

Chilcoat, adding two felony charges: Attempted Wanton Destruction of Livestock (Animal Enterprise)5 and

Retaliation Against a Witness, Victim, or Informant.6

Seven months later, the Utah state court held a

preliminary hearing to determine whether there was

probable cause to support the charges against Ms.

Chilcoat. As relevant to this appeal, Prosecutor Laws

argued there was probable cause to support the witness retaliation charge because, in her April 5 email to

BLM, Ms. Chilcoat had described the April 3 incident

as an “assault.” The state judge rejected this argument

and asked the prosecution if any other evidence supported probable cause. Prosecutor Laws answered affirmatively:

Yes, Your Honor. So the side that—the other

false allegation that is made in the [email]

complaint is with regards to the scope of these

repairs to ponds and things like that. And

there would be sufficient evidence to show

Utah Code Ann. § 53C-2-301 (West 2020).

Utah Code Ann. § 76-8-507(1) (West 2002).

Utah Code Ann. § 76-6-111(4)(d) (West 2021).

Utah Code Ann. § 76-8-508.3 (West 2004).

that some of the exhibits that were presented

to the BLM with that letter were embellished

or changed, altered to make those repairs look

worse than they are. So, yeah, if you want to

take the assault out, I think there’s more than

enough to move forward.

Aplt. App. vol. 1 at 135-36. The judge ruled Ms. Chilcoat would be bound over for trial on the witness retaliation charge but warned Prosecutor Laws that his

theory of prosecution would be limited to proving her

BLM complaint was not made in good faith.7 “You said

you want to do it and so I’ll let you have a crack at

[proving the witness retaliation charge],” the court told

Prosecutor Laws, but “the only way you can proceed on

that one is [based on] non-good faith . . . information

outside of the assault, the use of the word assault.”

Id. at 139. According to Ms. Chilcoat, the state judge

found probable cause supported the witness retaliation

charge “based solely” on Prosecutor Laws’s representation, which Ms. Chilcoat alleges was false, that she altered the photographs attached to her April 5 email to

BLM. Id. at 18.8

In Utah, “[i]f from the evidence the magistrate finds probable cause to believe that the crime charged has been committed

and that the defendant has committed it, the magistrate must order that the defendant be bound over for trial.” Utah R. Crim. P.

7B(b) (emphasis added).

The state judge also concluded probable cause supported

the Trespassing on Trust Land (Animal Enterprise) misdemeanor

and the Attempted Wanton Destruction of Livestock (Animal Enterprise) felony, but the judge refused to bind over Ms. Chilcoat

Ms. Chilcoat’s criminal trial was set for May 21,

2018. On April 9, Ms. Chilcoat filed a motion to “quash

the bindover,” challenging the state court’s probable

cause determination.9 On April 24, the state court denied her motion.10 Ms. Chilcoat then sought review in

the Utah Court of Appeals. A week later, on May 1,

2018, Prosecutor Laws dropped the witness retaliation

charge but continued to pursue the two remaining

charges.

Meanwhile, the Utah Court of Appeals stayed Ms.

Chilcoat’s trial just a few days before it was set to begin

and heard oral argument in her appeal. The appellate

court directed the parties to file briefs explaining why

the state court’s probable cause determination should

on the misdemeanor of False Personal Information to a Peace Officer.

See Motion to Quash, State v. Chilcoat, Nos. 171700040,

17170041 (7th Jud. Dist. Ct. Utah April 9, 2018). We reference

filings and orders from the Utah state court and Court of Appeals

proceedings because the documents are referenced in the complaint, Jacobsen, 287 F.3d at 941; appear in the district court’s

docket, Bunn v. Perdue, 966 F.3d 1094, 1096 n.4 (10th Cir. 2020)

(“Some of the relevant . . . filings in district court . . . were not included in the record on appeal, but they are accessible from the

district court docket. We may therefore take judicial notice of the

filings.”); and are publicly filed court records directly relating to

this appeal, United States v. Ahidley, 486 F.3d 1184, 1192 n.5

(10th Cir. 2007) (“[W]e may exercise our discretion to take judicial

notice of publicly-filed records in our court and certain other

courts concerning matters that bear directly upon the disposition

of the case at hand.”).

Ruling on Motion to Quash Bindover, Chilcoat, Nos.

171700040, 17170041 (filed April 24, 2018).

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not be summarily reversed.11 The State of Utah elected

not to defend the state court’s ruling. On July 19, 2018,

the Utah Court of Appeals reversed the state court’s

probable cause determination, ultimately resulting in

the dismissal with prejudice of all remaining criminal

charges pending against Ms. Chilcoat.12 About a year

later, Ms. Chilcoat filed the lawsuit that is the subject

of this appeal.

II.

Procedural History

A. Ms. Chilcoat’s original complaint

On April 10, 2019, Ms. Chilcoat sued Mr. Odell,

Prosecutor Laws, and San Juan County in federal district court in Utah, alleging claims under 42 U.S.C.

§ 1983 against all Defendants and a state-law assault

claim against Mr. Odell.13 Ms. Chilcoat claimed Prosecutor Laws violated her First, Fourth, and Fourteenth

Amendment rights when he “knowingly and/or recklessly made material factual misrepresentations” at

the preliminary hearing to obtain a bindover on the witness retaliation charge. Aplt. App. vol. 1 at 34. According

Order and Sua Sponte Motion for Summary Disposition,

Chilcoat v. State, No. 20180335-CA (Utah Ct. App. July 10, 2018).

Order of Summary Reversal, Chilcoat, Case No. 20180335CA (July 19, 2018); Pretrial Conference/Order of Dismissal, Chilcoat, No. 171700041 (Aug. 27, 2018).

Ms. Chilcoat also claimed Mr. Odell violated her Fourth

and Fourteenth Amendment rights and was “acting under the

color of state law” for § 1983 purposes when he detained Ms. Chilcoat and her husband while waiting for Deputy Begay to arrive.

Ms. Chilcoat did not appeal the dismissal of her claims against

Mr. Odell.

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to Ms. Chilcoat, Prosecutor Laws misrepresented facts

in a judicial proceeding when he told the state court

“there would be sufficient evidence to show that some

of the exhibits that were presented to the BLM with

that letter14 were embellished or changed, altered to

make those repairs look worse than they are.” Id. at

136. Ms. Chilcoat maintained Prosecutor Laws “had no

evidence whatsoever[ ] that Ms. Chilcoat had altered

the photographs attached to her April 5 email.” Id. at

26. Ms. Chilcoat also claimed San Juan County was liable under § 1983 because Prosecutor Laws made

the false statements in his capacity as a final policymaker for the County. Ms. Chilcoat sought compensatory damages and injunctive and declaratory relief.

Prosecutor Laws and San Juan County moved for

judgment on the pleadings under Rule 12(c). The district court granted Defendants’ motion and dismissed

Ms. Chilcoat’s claims against Prosecutor Laws and

San Juan County holding: (1) absolute prosecutorial

immunity barred Ms. Chilcoat’s claims against Prosecutor Laws in his individual capacity; (2) Eleventh

Amendment sovereign immunity barred Ms. Chilcoat’s

claims against Prosecutor Laws in his official capacity;

and (3) Ms. Chilcoat failed to plead a municipal liability claim because Prosecutor Laws acted for the State,

not the County.

At the preliminary hearing, Prosecutor Laws referred to

Ms. Chilcoat’s April 5 email to BLM as a “letter.”

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B. Ms. Chilcoat’s proposed amended complaint15

Ms. Chilcoat continued to litigate her remaining

claims against Mr. Odell. During discovery, she deposed Commissioner Lyman. In this deposition, Ms.

Chilcoat learned about a closed meeting of the San

Juan County commissioners. Based on this new information, Ms. Chilcoat moved to amend her complaint

under Rule 15(a)(2) to add a new municipal liability

claim and reinstate San Juan County as a defendant.

She also requested additional discovery. The proposed

amended complaint alleged the “San Juan County

commissioners held a secret, closed meeting in which

they discussed . . . the gate incident and Rose Chilcoat

specifically,” Aplt. App. vol. 2 at 231, and that the commissioners “made an official decision whereby they directed or encouraged a [C]ounty employee to pursue

criminal charges against Ms. Chilcoat in retaliation for

her political views,” id. at 232-33. The district court denied Ms. Chilcoat’s motion to amend, concluding the

proposed amendment was futile.

This timely appeal followed.

DISCUSSION

Ms. Chilcoat first challenges the district court’s order granting judgment on the pleadings. In support of

reversal, she argues (1) Prosecutor Laws is not entitled

A full discussion of Ms. Chilcoat’s proposed amended complaint appears later in our analysis of the district court’s denial

of leave to amend.

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to absolute prosecutorial immunity because he did not

function as an advocate at the preliminary hearing; (2)

Prosecutor Laws is not entitled to sovereign immunity

because he committed an ongoing violation of federal

law; and (3) Prosecutor Laws acted on behalf of San

Juan County, not the State of Utah, so her municipal

liability claim should have been allowed to proceed. We

reject each argument in turn and affirm the district

court’s grant of judgment on the pleadings.

Ms. Chilcoat also contends the district court erred

in denying her leave to amend because her proposed

amended complaint is not futile under Rule 15(a)(2).

We agree, and accordingly reverse and remand on this

issue.

The District Court Did Not Err in Granting

Defendants’ Motion for Judgment on the

Pleadings.

A. Standard of review

We review de novo the grant of judgment on the

pleadings under “the standard of review applicable to

a Rule 12(b)(6) motion to dismiss.” Tomlinson v. El

Paso Corp., 653 F.3d 1281, 1285-86 (10th Cir. 2011) (citation omitted). Under Federal Rule of Civil Procedure

12(b)(6), a complaint must contain “only enough facts

to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

claim is plausible when the complaint contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Waller v. City & Cnty. of Denver,

932 F.3d 1277, 1282 (10th Cir. 2019) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). When assessing

plausibility, a plaintiff ’s allegations are “read in the

context of the entire complaint.” Ullery v. Bradley, 949

F.3d 1282, 1288 (10th Cir. 2020). Well-pleaded factual

allegations are accepted as true and considered in the

light most favorable to the plaintiff. See Tomlinson, 653

F.3d at 1285-86. “[W]e will uphold the dismissal only if

it appears beyond doubt that [plaintiff ] can prove no

set of facts which would entitle them to relief.” Mink v.

Suthers, 482 F.3d 1244, 1251 (10th Cir. 2007).

B. Prosecutor Laws is entitled to absolute

prosecutorial immunity because he functioned as an advocate at the preliminary hearing.

The district court dismissed Ms. Chilcoat’s individualcapacity claims against Prosecutor Laws under § 1983

based on the doctrine of absolute prosecutorial immunity. Ms. Chilcoat contends the district court erred because Prosecutor Laws was not functioning as an

advocate at the preliminary hearing when he falsely

stated there was probable cause to support the felony

charge of witness retaliation. Reviewing de novo, we

discern no error.

“Absolute prosecutorial immunity is a complete

bar to a suit for damages under 42 U.S.C. § 1983.”

Mink, 482 F.3d at 1258 (citing Imbler v. Pachtman, 424

U.S. 409, 419 n.13 (1976)). In Imbler, the Supreme

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Court had its “first opportunity to address the § 1983

liability of a state prosecuting officer.” 424 U.S. at 420.

Absolute immunity was recognized for a prosecutor’s

activities that are “intimately associated with the judicial phase of the criminal process.” Id. at 430. Guided

by the immunity historically conferred at common law

and the interests behind it, the Court focused on the

adverse impact of unfounded litigation on “the vigorous and fearless performance of the prosecutor’s duty

that is essential to the proper functioning of the criminal justice system.” Id. at 427-28; accord Burns v.

Reed, 500 U.S. 478, 492 (1991) (explaining absolute immunity applies to prosecutors because the “substantial

likelihood of vexatious litigation . . . might have an untoward effect on the independence of the prosecutor”).16

As Imbler and its progeny establish, absolute prosecutorial immunity is intended to protect the judicial process, not the prosecutor. See Briscoe v. LaHue, 460 U.S.

325, 334 (1983) (quoting Imbler, 424 U.S. at 439)

(“[T]he absolute immunity of public prosecutors was

‘based on the policy of protecting the judicial process.’ ”);

Malley v. Briggs, 475 U.S. 335, 342 (1986) (explaining

absolute immunity is conferred “not from an exaggerated esteem for those who perform these functions, and

The Supreme Court has consistently “looked to the common law for guidance in determining the scope of the immunities

available in a § 1983 action.” Rehberg v. Paulk, 566 U.S. 356, 36263 (2012). But “in Imbler, the Court did not simply apply the scope

of immunity recognized by common-law courts as of 1871 but instead placed substantial reliance on post-1871 cases extending

broad immunity to public prosecutors sued for common-law torts.”

Id. at 366.

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certainly not from a desire to shield abuses of office,

but because any lesser degree of immunity could impair the judicial process itself ”).17

Since Imbler, the Supreme Court has prescribed,

and we have followed, a “functional approach” to absolute prosecutorial immunity. Bledsoe v. Vanderbilt, 934

F.3d 1112, 1117 (10th Cir. 2019) (quoting Burns, 500

U.S. at 478); see also Briscoe, 460 U.S. at 342 (“[O]ur

cases clearly indicate that immunity analysis rests

on functional categories, not on the status of the defendant.”). Under the functional approach, we “look to

which role the prosecutor is performing” at the time of

the challenged conduct, Mink, 482 F.3d at 1262, and

examine “the nature of the function performed, not the

identity of the actor who performed it,” Forrester v.

White, 484 U.S. 219, 229 (1988).

When assessing whether the prosecutor is performing a function “intimately associated with the judicial phase of the criminal process,” Imbler, 424 U.S.

at 430, we apply a “ ‘continuum-based approach’ and

the ‘more distant a function is from the judicial process, the less likely absolute immunity will attach,’ ”

Mink, 482 F.3d at 1261 (citation omitted). We begin

The vital interest in safeguarding the judicial process pervades the Court’s reasoning in Imbler. See 424 U.S. at 427 (“The

ultimate fairness of the operation of the system itself could be

weakened by subjecting prosecutors to § 1983 liability.”) (emphasis added); see id. (“[T]he alternative of qualifying a prosecutor’s

immunity would disserve the broader public interest.”) (emphasis

added); see id. at 426 (holding unfounded litigation against prosecutors could have an “adverse effect upon the functioning of the

criminal justice system”) (emphasis added).

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with an obvious benchmark: a prosecutor is absolutely

immune when functioning “within the scope of his duties in initiating and pursuing a criminal prosecution.”

Imbler, 424 U.S. at 410. By “initiating and presenting

the government’s case,” the prosecutor is cast in “the

role of an advocate.” Mink, 482 F.3d at 1261. As we

have summarized, “Prosecutors are entitled to absolute immunity for their decisions to prosecute, their

investigatory or evidence-gathering actions, their evaluation of evidence, their determination of whether

probable cause exists, and their determination of what

information to show the court.” Nielander v. Bd. of

Cnty. Comm’rs, 582 F.3d 1155, 1164 (10th Cir. 2009).

“The doctrine of absolute immunity, however, is

not without limits.” Becker v. Kroll, 494 F.3d 904, 925

(10th Cir. 2007). Absolute prosecutorial immunity is

justified “only for actions that are connected with the

prosecutor’s role in judicial proceedings, not for every

litigation-inducing conduct.” Burns, 500 U.S. at 494.

We will not extend absolute immunity when a prosecutor functions “in the role of an administrator or investigative officer rather than that of advocate.” Mink, 482

F.3d at 1259 (emphasis omitted) (quoting Imbler, 424

U.S. at 430-31). The public policy considerations that

support the protection of prosecutorial functions are

not applicable to investigative and administrative acts.

See Thomas v. Kaven, 765 F.3d 1183, 1193 (10th Cir.

2014) (“Absolute immunity extends only so far as is

necessary to protect the judicial process.”).

For example, when a prosecutor conducts investigative work normally performed by the police, they are

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not performing a prosecutorial function. See Buckley v.

Fitzsimmons, 509 U.S. 259, 273-74 (1993). “Although

identifying those acts entitled to absolute immunity is

not always easy, the determinative factor is ‘advocacy’

because that is the prosecutor’s main function. . . .” Rex

v. Teeples, 753 F.2d 840, 843 (10th Cir. 1985); see also

Adams v. Hanson, 656 F.3d 397, 403 (6th Cir. 2011)

(“The analytical key to prosecutorial immunity, therefore, is advocacy—whether the actions in question are

those of an advocate.”) (citation omitted).

In resolving Ms. Chilcoat’s appellate claim, our

first task is to identify precisely the wrongful act allegedly performed by Prosecutor Laws and to classify that

act according to its function. Here, that threshold task

is straightforward. As the district court noted, Ms.

Chilcoat’s claims against San Juan County and Prosecutor Laws “arise out of statements made by [Prosecutor] Laws during a preliminary hearing for the state

criminal case.” Aplt. App. vol. 1 at 205 n.24. The record

supports the conclusion that Ms. Chilcoat’s constitutional claims against Prosecutor Laws are based solely

on his courtroom conduct. In her complaint, Ms. Chilcoat alleged Prosecutor Laws “knowingly and/or recklessly made material factual misrepresentations for

the purpose of obtaining a felony criminal charge and

bindover against Ms. Chilcoat” and that he made these

misrepresentations “to the court” at the preliminary

hearing. Id. at 26. Thus, the absolute immunity inquiry

here focuses only on statements made by Prosecutor

Laws in court at the preliminary hearing.

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Using the functional approach,18 the district court

concluded Prosecutor Laws made the allegedly false

statements “in his role as an advocate in court.” Id. at

207. We agree. In Utah, the prosecutor’s role at the preliminary hearing is to “present[ ] evidence sufficient to

sustain ‘probable cause.’ ” State v. Jones, 2016 UT 4,

¶ 12, 365 P.3d 1212, 1215; Utah Const. art. I, § 12;

Utah. R. Crim. P. 7B. There is no serious question that

a preliminary hearing is a judicial proceeding in a

criminal case. Here, Prosecutor Laws argued at the

preliminary hearing that probable cause supported the

witness retaliation charge. “It is clear that a prosecutor’s courtroom conduct falls on the advocacy side of

the line,” Mink, 482 F.3d at 1261, and a prosecutor’s

arguments in court are quintessential advocacy—

whether at trial, Imbler, 424 U.S. at 424, or at a preliminary hearing, Burns, 500 U.S. at 487. As the district court correctly observed, courtroom advocacy is an

activity “intimately associated with the judicial phase

Ms. Chilcoat appears to argue the district court erred in its

analytical approach to the prosecutorial immunity question. She

points to our decision in Mink, where we articulated factors to

guide the analysis, “such as (1) whether the action is closely associated with the judicial process, (2) whether it is a uniquely prosecutorial function, and (3) whether it requires the exercise of

professional judgment.” 482 F.3d at 1261 (citations omitted). According to Ms. Chilcoat, the district court erred by addressing only

the first Mink factor. We disagree. Mink does not stand for the

proposition that a district court errs by failing to consider every

articulated factor. As we explain, the district court correctly applied the functional approach in deciding whether Prosecutor

Laws was entitled to absolute immunity. Moreover, Mink makes

clear the particular factors it recites are relevant “especially when

considering pre-indictment acts,” which are not before us here. Id.

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of the criminal process.” Aplt. App. vol. 1 at 207 (quoting

Mink, 482 F.3d at 1259); see also Samuels v. McDonald,

723 F. App’x 621, 623 (10th Cir. 2018) (“Prosecutorial

immunity covers pretrial advocacy functions, including

the preliminary hearing. . . .”).

Ms. Chilcoat advances several contentions to challenge the conclusion that Prosecutor Laws functioned

as an advocate, but none is availing.

First, Ms. Chilcoat insists Prosecutor Laws cannot

be shielded by absolute immunity because the statements he made to support a probable cause finding

were false. But it is well established that the falsity

Ms. Chilcoat alleges here cannot defeat absolute immunity. In Burns, a prosecutor presented evidence of a

confession at a probable cause hearing without disclosing to the judge that, while the defendant had confessed under hypnosis, she otherwise denied wounding

her children. 500 U.S. at 482-83. The Supreme Court

determined the prosecutor had functioned as an advocate at the probable-cause hearing and was absolutely

immune because, at common law, “prosecutors . . . were

absolutely immune from damages liability . . . for

making false or defamatory statements in judicial proceedings (at least so long as the statements were related to the proceeding).” Id. at 489-90. The alleged

misrepresentations here were made as part of traditional courtroom advocacy during a preliminary hearing; therefore, Prosecutor Laws is entitled to absolute

prosecutorial immunity even if the statements were

false. See Buckley, 509 U.S. at 270 (holding absolute

prosecutorial immunity extends to “making false or

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defamatory statements during, and related to, judicial

proceedings”); see also Becker, 494 F.3d at 925 (“This

immunity applies even if the prosecutor files charges

knowing he lacks probable cause.”).

Relatedly, Ms. Chilcoat suggests a prosecutor cannot function as an advocate before he has sufficient evidence to support probable cause. This argument also

fails. The Supreme Court has held that a prosecutor

functions as an advocate when “determin[ing] that the

evidence [is] sufficiently strong to justify a probablecause finding” and during their “presentation of the information and the motion to the court.” Kalina v.

Fletcher, 522 U.S. 118, 130 (1997).

Our decision in Warnick v. Cooley, 895 F.3d 746

(10th Cir. 2018), is instructive. There, we considered

whether absolute immunity applied “to a prosecutor’s

decision to file charges if the prosecutor had no probable cause to do so.” Id. at 752. In affirming the grant

of absolute prosecutorial immunity, we focused on

the function the prosecutor was performing, not on

whether probable cause actually existed:

It is true that activities undertaken by a prosecutor before probable cause exists often lie

outside the purview of a prosecutor’s role as

an advocate. But while a lack of probable

cause is a good clue a prosecutor is engaging

in activity beyond the scope of advocacy, it is

not determinative. Some functions—like filing

charges—are inherently related to a prosecutor’s role as an advocate, and therefore protected by absolute immunity whether or not

22a

probable cause exists. Hence the well-settled

rule that prosecutors are “entitled to absolute

immunity for the malicious prosecution of

someone whom [they] lacked probable cause

to indict.”

Id. at 752 (internal citation omitted); accord Buckley,

509 U.S. at 271 (“[T]he Imbler approach focuses on the

conduct for which immunity is claimed, not on the

harm that the conduct may have caused or the question whether it was lawful.”). A prosecutor no doubt

functions as an advocate when advancing arguments

in court about something as fundamental to the judicial process as the probable cause determination. See

Nielander, 582 F.3d at 1164 (“Prosecutors are entitled

to absolute immunity for . . . their determination of

whether probable cause exists.”).

To the extent Ms. Chilcoat maintains that, under

Buckley, Prosecutor Laws is not entitled to absolute

immunity because he fabricated evidence, we are not

persuaded. In Buckley, the Supreme Court held the

prosecutors were not entitled to absolute prosecutorial

immunity for their “fabrication of false evidence during

the preliminary investigation of an unsolved crime.”

509 U.S. at 275. The prosecutors in Buckley were working alongside police to fabricate evidence against a suspect before there was probable cause to arrest him. Id.

at 263-64, 274. Here, Ms. Chilcoat’s reliance on Buckley

is misguided. The alleged false statements were made

by Prosecutor Laws at a preliminary hearing after

criminal charges were filed against Ms. Chilcoat—not,

as in Buckley, “during the preliminary investigation of

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an unsolved crime.” Id. at 275. Ms. Chilcoat does not

allege that Prosecutor Laws engaged in any wrongful

conduct outside of the courtroom, and the conduct she

does challenge cannot reasonably be described as serving an investigative function.

Finally, Ms. Chilcoat contends Prosecutor Laws is

not entitled to absolute prosecutorial immunity because he served as a complaining witness at the

preliminary hearing. This argument also fails. “The

Supreme Court has held that a complaining witness,

as opposed to an official acting in a prosecutorial capacity, is not entitled to absolute immunity.” Thomas,

765 F.3d at 1192. A complaining witness historically

referred to one who “procured an arrest and initiated

a criminal prosecution.” Rehberg, 566 U.S. at 370 (citing Kalina, 522 U.S. at 135); see also Malley, 475 U.S.

at 340 (A complaining witness “procure[s] the issuance

of an arrest warrant by submitting a complaint.”); Wyatt v. Cole, 504 U.S. 158, 164-65 (1992) (A complaining

witness “set[s] the wheels of government in motion by

instigating a legal action.”).

“[C]omplaining witnesses were not absolutely immune at common law. In 1871, the generally accepted

rule was that one who procured the issuance of an arrest warrant by submitting a complaint could be held

liable if the complaint was made maliciously and without probable cause.” Malley, 475 U.S. at 340-41. But the

distinctive role played by a complaining witness at

common law has generally given way to today’s system of public prosecution. The Supreme Court has observed that the mid-19th century practice whereby a

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complaining witness “procured an arrest and initiated

a criminal proceeding,” Rehberg, 566 U.S. at 370, has

been superseded in our contemporary judicial system

by a public prosecutor, who “is actually responsible for

the decision to prosecute” and “is shielded by absolute

immunity,” id. at 372.

A public prosecutor assumes the role of a complaining witness, and is not entitled to absolute immunity, when personally vouching for the truth of facts

that provide the evidentiary basis for a finding of probable cause. See Kalina, 522 U.S. at 129-31. In Kalina,

the prosecutor submitted three documents to the court

supporting probable cause, each based on false facts.

522 U.S. at 121. The Supreme Court determined the

prosecutor functioned as an advocate when submitting

two of the three documents: the unsworn information

charging plaintiff with burglary and the unsworn motion for an arrest warrant. Id. at 129. The Court reasoned a prosecutor functions as an advocate when

“determin[ing] that the evidence [is] sufficiently strong

to justify a probable-cause finding” and during their

“presentation of the information and the motion to the

court.” Id. at 130.

But the Court did not extend absolute immunity

for the prosecutor’s submission of the third document,

a sworn probable cause certification for an arrest warrant. Id. at 129-31. By submitting the probable cause

certification under oath, the prosecutor “personally

vouched for the truth of the facts set forth in the certification under penalty of perjury.” Id. at 121 (emphasis added). For that sworn submission, the Court

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determined the prosecutor functioned not as an advocate but as a complaining witness. See id. at 131.

We have likewise observed the distinction between

sworn and unsworn statements when deciding whether

a prosecutor functioned as an advocate or a complaining witness. See Nielander, 582 F.3d at 1164 (“Because

[the prosecutor] did not personally vouch for or even

list any of the facts in the Complaint/Information, he

is entitled to absolute immunity. . . .”); Mink, 482 F.3d

at 1261 (“[A]ttesting to the accuracy of the facts in the

affidavit, the prosecutor [in Kalina] was acting as a

complaining witness.”); Scott v. Hern, 216 F.3d 897, 909

(10th Cir. 2000) (“[In Kalina,] [a]bsolute immunity did

not bar . . . an action based on the alleged false statements in the sworn affidavit.”). As the Eleventh Circuit

has succinctly explained: “The sworn/unsworn distinction is more than critical; it is determinative.” Rivera

v. Leal, 359 F.3d 1350, 1355 (11th Cir. 2004).

Here, the district court concluded that Prosecutor

Laws did not function as a complaining witness because he was “not under oath and did not provide any

testimony” at the preliminary hearing. Aplt. App. vol.

1 at 206. We agree. The record confirms Prosecutor

Laws did not testify in a judicial proceeding. Nor is

there any allegation that he personally vouched, under

penalty of perjury, for the truth of facts he claimed

supported probable cause on the witness retaliation

charge. A prosecutor does not function as a complaining witness by presenting mistaken information at a

pretrial court appearance. Perhaps Ms. Chilcoat is suggesting Prosecutor Laws was serving as a complaining

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witness simply by prosecuting her—but that, of course,

is a non-starter. Though he initiated the prosecution,

and later participated in pretrial judicial proceedings,

Prosecutor Laws did not engage in any conduct that

placed him in the functional category of a complaining

witness. Prosecutor Laws engaged in advocacy, nothing

more, and is therefore entitled to absolute prosecutorial immunity.19

For these reasons, we affirm the dismissal of Ms.

Chilcoat’s claims against Prosecutor Laws based on

absolute prosecutorial immunity.

C. Prosecutor Laws is entitled to Eleventh

Amendment sovereign immunity in his

official capacity.

The district court dismissed Ms. Chilcoat’s injunctive and declaratory relief claims against Prosecutor

Ms. Chilcoat appears to rely on Rehberg, 566 U.S. 356, to

argue a “person may serve the function of a complaining witness

even if the person does not testify under oath.” Aplt. Br. at 13. In

Rehberg, the Supreme Court held that a witness who testifies during a grand jury proceeding is entitled to the same absolute immunity in a § 1983 action as a witness who testifies at trial.

Notably, the Rehberg Court observed that testifying, whether before a grand jury or at trial, “was not the distinctive function performed by a complaining witness” at common law. 566 U.S. at

371. Thus, the Court concluded one “who testifies before a

grand jury is not at all comparable to a ‘complaining witness.’ ”

Id. Rehberg does not control our analysis here; as we have explained, Kalina does. Under Kalina and our cases, a prosecutor

does not function as a complaining witness unless they testify at

a judicial proceeding or otherwise attest to the truth of facts under oath. Prosecutor Laws did neither.

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Laws on sovereign immunity grounds. Her injunctive

relief claim was dismissed for failure to plead an ongoing violation of federal law under Ex parte Young, and

her declaratory relief claim was dismissed because she

sought a declaration that her rights had been violated.

On appeal, Ms. Chilcoat challenges the district court’s

Eleventh Amendment ruling on two grounds: First, she

contends sovereign immunity is inapplicable because

she sued Prosecutor Laws in his individual capacity.

And second, she contends sovereign immunity does not

bar her claims because Prosecutor Laws committed an

ongoing violation of federal law by chilling the exercise

of her First Amendment rights. We consider, and reject,

each argument.

Eleventh Amendment sovereign immunity bars

suits for money damages against states, state agencies,

and state officers in their official capacities. See Tarrant Reg’l Water Dist. v. Sevenoaks, 545 F.3d 906, 911

(10th Cir. 2008); Couser v. Gay, 959 F.3d 1018, 1022

(10th Cir. 2020).20 While sovereign immunity bars damages claims against state actors in their official capacity, the Ex parte Young doctrine provides an exception

for plaintiffs who (1) allege “an ongoing violation of federal law” and (2) “seek[ ] relief properly characterized

as prospective.” Williams v. Utah Dep’t of Corr., 928

The district court correctly held Prosecutor Laws acted for

the State at the preliminary hearing under section 17-18a-401 of

the Utah Code and thus qualified as a State official for the purposes of sovereign immunity. A full discussion of why the district

court correctly determined Prosecutor Laws acted for the State,

and not for the County, follows in our analysis of Ms. Chilcoat’s

municipal liability claims against San Juan County.

28a

F.3d 1209, 1214 (10th Cir. 2019) (quoting Verizon Md.

Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 645 (2002)). See

generally Ex parte Young, 209 U.S. 123 (1908). Ex parte

Young applies to both injunctive and declaratory relief.

MCI Telecomms. Corp. v. Pub. Serv. Comm’n, 216 F.3d

929, 935 (10th Cir. 2000).

Ms. Chilcoat mistakenly contends sovereign immunity is not relevant here because she sued Prosecutor Laws in his individual capacity. This argument

misunderstands applicable law. Under § 1983, a plaintiff cannot sue an official in their individual capacity

for injunctive or declaratory relief. Brown v. Montoya,

662 F.3d 1152, 1161 n.5 (10th Cir. 2011) (“Section 1983

plaintiffs may sue individual-capacity defendants only

for money damages and official-capacity defendants

only for injunctive relief.”); see also DeVargas v. Mason

& Hanger-Silas Mason Co., 844 F.2d 714, 718 (10th Cir.

1988) (“An action for injunctive relief no matter how it

is phrased is against a defendant in official capacity

only. . . .”). Ms. Chilcoat alleged claims against Prosecutor Laws, but the complaint did not specify in what

capacity. No matter what Ms. Chilcoat may have intended, the law only permits her to sue Prosecutor

Laws for injunctive and declaratory relief in his official

capacity. Thus the district court did not err by interpreting her prospective relief claims as official-capacity

claims.

Ms. Chilcoat next contends the district court

erred in dismissing her injunctive relief claim for failure to plead an ongoing violation of federal law under

Ex parte Young. According to Ms. Chilcoat, Prosecutor

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Laws committed an ongoing violation because his actions chilled the exercise of her First Amendment

rights and she “has an objectively reasonable fear of

future prosecution” if she continues to engage in political and environmental advocacy. Aplt. Br. at 25. Defendants respond that the complaint does not allege

Prosecutor Laws intends to prosecute Ms. Chilcoat

again or that he “has a pattern of prosecuting [Ms.]

Chilcoat when she engages in her environmental activism or other protected speech.” Aplees. Response Br. at

23.

The district court emphasized Ms. Chilcoat’s complaint “focuses on [Prosecutor] Laws’ past actions.”

Aplt. App. vol. 1 at 209. As a result, the district court

concluded her “requests for declaratory and injunctive

relief are not tethered to any alleged continuing violations or threatened harm.” Id. Reviewing de novo, we

agree.

Ms. Chilcoat uses the past tense throughout her

complaint to describe Prosecutor Laws’ actions: for instance, Prosecutor Laws “violated her constitutional

rights,” and “cost her a substantial amount of money.”

Id. at 19 (emphases added). The complaint also stated,

“Ms. Chilcoat had previously raised issues with the Bureau of Land Management regarding [Mr.] Odell’s use

of the land,” id. at 22, but Ms. Chilcoat did not allege

Prosecutor Laws brought charges against her for these

earlier complaints. On appeal, Ms. Chilcoat argues “an

inference can be drawn that [Ms.] Chilcoat may be subjected to more baseless retaliatory actions by [Prosecutor] Laws.” Aplt. Reply Br. at 14. But Ms. Chilcoat does

30a

not plead “factual content that allows the court to draw

the reasonable inference that the defendant is liable

for the misconduct alleged.” Waller, 932 F.3d at 1282

(quoting Iqbal, 556 U.S. at 678). The district court committed no error in concluding Ms. Chilcoat’s claims for

injunctive relief are barred by sovereign immunity.

Finally, Ms. Chilcoat contends the district court

erred by dismissing her declaratory relief claims. According to Ms. Chilcoat, she is entitled to a declaration

that Prosecutor Laws engaged in conduct that chilled

the exercise of her First Amendment rights. Aplt. Br. at

24. We disagree.

The district court correctly understood the Ex

parte Young exception applies only when a plaintiff

“seeks relief properly characterized as prospective.”

Williams, 928 F.3d at 1214 (quoting Verizon Md. Inc.,

535 U.S. at 645). Ex parte Young “may not be used to

obtain a declaration that a state officer has violated a

plaintiff ’s federal rights in the past.” Collins v. Daniels,

916 F.3d 1302, 1316 (10th Cir. 2019) (quoting Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 495

(10th Cir. 1998)). Here, Ms. Chilcoat sought “[a] declaration that the defendants’ actions violated Plaintiff ’s

constitutional rights.” Aplt. App. vol. 1 at 35. This request cannot be properly characterized as seeking prospective relief; thus, Ms. Chilcoat’s declaratory relief

claim necessarily fails to avoid the absolute bar of sovereign immunity.21

Defendants contend we should dismiss Ms. Chilcoat’s prospective relief claims because she lacks Article III standing. We

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We affirm the district court’s dismissal of Ms. Chilcoat’s claims for injunctive and declaratory relief based

on sovereign immunity.

D. Ms. Chilcoat fails to state a claim against

San Juan County for municipal liability.

The district court dismissed Ms. Chilcoat’s municipal liability claims against San Juan County because

Prosecutor Laws “was acting on behalf of the State

when prosecuting Chilcoat, not the County.” Aplt. App.

vol. 1 at 210. Ms. Chilcoat asserts Prosecutor Laws

acted as a final policymaker for San Juan County at

the preliminary hearing, and the district court erred in

concluding otherwise. We reject this argument.

Municipalities can be sued for money damages under § 1983 if a plaintiff alleges a municipal “policy or

custom” that directly caused the violation of plaintiff ’s

constitutional rights. Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 694 (1978). The decision of a municipal employee qualifies as a “policy or custom” if the employee

is the final policymaker for the municipality “in a particular area, or on a particular issue.” Couser, 959 F.3d

need not address this argument. Sovereign immunity, like standing, presents a threshold question of the district court’s subject

matter jurisdiction. Williams, 928 F.3d at 1212 (“[O]nce effectively asserted[,] [Eleventh Amendment] immunity constitutes a

bar to the exercise of federal subject matter jurisdiction.”) (brackets in original). Because we conclude Ms. Chilcoat’s claims do not

fall within the Ex parte Young exception, we need not also address

standing. See Valenzuela v. Silversmith, 699 F.3d 1199, 1205

(10th Cir. 2012).

32a

at 1032 (quoting McMillian v. Monroe Cnty., 520 U.S.

781, 785 (1997)).

For municipal liability, the defendant must be an

official policymaker for the municipality—not the state.

See McMillian, 520 U.S. at 784-85. Whether an official

is a final policymaker for the state or the county depends “on the definition of the official’s functions under

relevant state law.” Id. at 786. This analysis demands

careful consideration of state law because “an official

may be considered a state official for the purpose of one

function and a municipal official for another.” Couser,

959 F.3d at 1025.

Here, the district court correctly looked to Utah

law and relied on section 17-18a-401 of the Utah Code

to conclude Prosecutor Laws acted for the State. On

appeal, Ms. Chilcoat generally contends Prosecutor

Laws acted for the County, but she fails to meaningfully challenge the district court’s reliance on section

17-18a-401.22 This statute provides that a public prosecutor “conduct[s], on behalf of the state, all prosecutions for a public offense committed within a county.”

Utah Code Ann. § 17-18a-401 (West 2013) (emphasis

added). But a public prosecutor “conduct[s], on behalf

Ms. Chilcoat appears to argue without basis that the district court’s conclusion that Prosecutor Laws acted for the State

depended on its ruling that Prosecutor Laws functioned as an advocate for purposes of absolute prosecutorial immunity. See Aplt.

Br. at 25. The analysis of whether Prosecutor Laws acted for the

State (for municipal liability) is wholly separate from the analysis

of whether he functioned as an advocate (for absolute prosecutorial immunity). The district court properly treated the issues as

distinct, and we discern no error.

33a

of the county, all prosecutions for a public offense in

violation of a county criminal ordinance.” Id. (emphasis added). Under Utah law, whether Prosector Laws

acted for the state or the county depends on what crime

he prosecutes: If the crime violates a county criminal

ordinance, then Prosecutor Laws prosecutes on behalf

of the county. But if the crime violates the state criminal code, then he prosecutes on behalf of the state.

Prosector Laws made the allegedly false statements while prosecuting Ms. Chilcoat for Retaliation

against a Witness, Victim, or Informant—a felony under Utah law.23 Thus, the district court correctly determined Prosecutor Laws acted on behalf of the State

under section 17-18a-401, and on that basis, properly

dismissed Ms. Chilcoat’s municipal liability claim.

We affirm the district court’s order granting Defendants’ motion for judgment on the pleadings under

Rule 12(c). We turn now to Ms. Chilcoat’s challenge to

the denial of her motion to amend under Rule 15(a)(2).

II.

The District Court Erred in Denying Ms.

Chilcoat’s Motion to Amend.

A. Additional background facts24

After the district court granted Prosecutor Laws

and San Juan County’s motion for judgment on the

pleadings, Ms. Chilcoat’s case proceeded against Mr.

See Utah Code Ann. § 76-8-508.3 (West 2004).

These facts are taken from the well-pleaded allegations in

Ms. Chilcoat’s proposed amended complaint.

34a

Odell. As part of this litigation, Ms. Chilcoat deposed

Commissioner Lyman. Ms. Chilcoat then sought leave

to amend her complaint under Rule 15(a)(2) to add a

municipal liability claim based on new information

learned during the Lyman deposition. She also requested additional discovery.

The proposed amended complaint described Ms.

Chilcoat’s environmental and political advocacy related to public lands and her outspoken views about

Mr. Odell and Commissioner Lyman. She had been the

former associate director of the organization Great Old

Broads for Wilderness and had served on the Board of

Directors of Friends of Cedar Mesa at the time of the

April 1 incident involving Mr. Odell’s gate. Ms. Chilcoat

had also previously complained to BLM about Mr.

Odell’s use of public land and had publicly supported

criminal charges against Commissioner Lyman after

he “led a protest ride of off-road vehicles through Recapture Canyon,” Aplt. App. vol. 2 at 239, “an archaeologically sensitive southeastern Utah canyon,” id. at

233. When Commissioner Lyman was convicted of

federal criminal conspiracy, Ms. Chilcoat “publicly

applauded [his] conviction in local news media, and

[Commissioner] Lyman . . . publicly blamed Ms. Chilcoat for his criminal conviction.” Id. According to Ms.

Chilcoat, Commissioner Lyman “made public statements expressing his support of criminal charges

against Ms. Chilcoat.” Id. at 234. Ms. Chilcoat further

alleged Commissioner Lyman and Prosecutor Laws

were friends. Id. at 239.

35a

According to the proposed amended complaint,

shortly after Ms. Chilcoat and her husband were detained by Mr. Odell and questioned by Deputy Begay

on April 3, the San Juan County commissioners “held

a secret, closed meeting in which they discussed with

San Juan County Sheriff Eldredge the gate incident

and Rose Chilcoat specifically.” Id. at 231. Attendees at

this closed meeting included three County commissioners—Bruce Adams, Rebecca Bennally, and Philip

Lyman. This closed meeting was “not noticed publicly,

not disclosed in any agenda or minutes, and not recorded.” Id. And the County never disclosed this meeting to Ms. Chilcoat during her underlying criminal

case or in response to her discovery demands in the

civil case.

Ms. Chilcoat learned of this meeting only because

Commissioner Lyman testified in his deposition that

Ms. Chilcoat was “widely known and controversial, and

there were some criminal discussions that took place

behind closed doors in a closed meeting.” Id. at 233. According to Ms. Chilcoat, Commissioner Lyman testified

the meeting occurred “soon after [Ms. Chilcoat’s] vehicle was apprehended [on April 3, 2017]” near Mr.

Odell’s ranch, “after the sheriff was involved,” and

“just kind of simultaneously with that whole process

[the filing of charges].” Id. at 232 (second and third alterations in original). The proposed amended complaint stated, “this secret meeting occurred on or after

April 4, 2017,” the day after Ms. Chilcoat and her husband were detained by Mr. Odell, “but earlier than

36a

April 18, 2017,” the day Prosecutor Laws escalated the

criminal charges against Ms. Chilcoat. Id. at 231.

Ms. Chilcoat also alleged that Sergeant Wilcox, after learning about the closure of Mr. Odell’s gate on

April 1, told Deputy Begay, “I think all we’d have is

probably just trespassing. I don’t even think it’s criminal trespassing if it wasn’t done with malice.” Id. at

234. Despite Sergeant Wilcox’s reservations, County

officials filed criminal charges against Ms. Chilcoat.

Based on these allegations, Ms. Chilcoat claimed San

Juan County was liable under § 1983 because the

County commissioners met in a “secret, closed meeting,” id. at 231, and “made an official decision whereby

they directed or encouraged a [C]ounty employee to

pursue criminal charges against Ms. Chilcoat in retaliation for her political views,” id. at 232-33.

The district court denied Ms. Chilcoat’s motion to

amend under Rule 15(a)(2) on the ground that her proposed amended complaint was futile. Ms. Chilcoat contends the district court erred, and we agree.

B. Motion to amend standard

Under Federal Rule of Civil Procedure 15(a)(2),

“[t]he court should freely give leave [to amend] when

justice so requires.” Generally, we review a denial of

leave to amend for abuse of discretion. Castanon v.

Cathey, 976 F.3d 1136, 1144 (10th Cir. 2020). But a district court may withhold leave to amend if the amendment would be futile. United States ex rel. Ritchie v.

Lockheed Martin Corp., 558 F.3d 1161, 1166 (10th Cir.

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2009). When a district court denies amendment based

on futility, “our review for abuse of discretion includes

de novo review of the legal basis for the finding of futility.” Quintana v. Santa Fe Cnty. Bd. of Comm’rs, 973

F.3d 1022, 1033 (10th Cir. 2020) (citation omitted).

Here, the district court concluded the amendment

was futile because the complaint, as amended, failed to

state a plausible municipal liability claim. Full Life

Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir.

2013); Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th

Cir. 2004) (“A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.”).

Because the district court identified failure to state a

claim under Rule 12(b)(6) as the ground for the amendment’s futility, we review the proposed amended complaint de novo to determine whether it states a

plausible municipal liability claim. Quintana, 973 F.3d

at 1033-34.

In our de novo review, we accept as true the wellpleaded factual allegations in the amended complaint

and consider them in the light most favorable to Ms.

Chilcoat. See Tomlinson v. El Paso Corp., 653 F.3d 1281,

1285-86 (10th Cir. 2011). A claim is plausible when the

complaint contains “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Waller v.

City & Cnty. of Denver, 932 F.3d 1277, 1282 (10th Cir.

2019) (citation omitted). When analyzing plausibility,

a plaintiff ’s allegations are “read in the context of the

entire complaint.” Ullery v. Bradley, 949 F.3d 1282, 1288

(10th Cir. 2020). A plaintiff need only “nudge[ ]” her

38a

claim “across the line from conceivable to plausible.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“[A] well-pleaded complaint may proceed even if it

strikes a savvy judge that actual proof of those facts is

improbable, and that a recovery is very remote and unlikely.” Quintana, 973 F.3d at 1034 (citation omitted).

C. Ms. Chilcoat’s proposed amended complaint is not futile.

The district court denied leave to amend on futility

grounds, concluding the proposed amended complaint

“support[ed] only mere speculation or a possibility that

San Juan County made a decision to direct or encourage criminal prosecution against Ms. Chilcoat.” Aplt.

App. vol. 2 at 355. The district court properly engaged

in the first step of the futility analysis by identifying

the reason the proposed amended complaint could be

dismissed. See Foman v. Davis, 371 U.S. 178, 182 (1962)

(“[T]he grant or denial of an opportunity to amend is

within the discretion of the District Court, but outright

refusal to grant the leave without any justifying reason

appearing for the denial is not an exercise of discretion.”). But as Ms. Chilcoat correctly contends, the district court ultimately reached the wrong conclusion.

The district court accepted the truth of Ms. Chilcoat’s allegation that “a meeting [took place] between

San Juan County commissioners and Sheriff Eldredge

where the commissioners discussed Ms. Chilcoat.” Aplt.

App. vol. 2 at 355. But the district court faulted Ms.

Chilcoat for failing to allege that “San Juan County

39a

made a decision to direct or encourage criminal prosecution against [her].” Id. The district court reasoned,

“Nothing in the proposed Amended Complaint demonstrates that the meeting included the County’s decision or encouragement to pursue criminal charges

against Ms. Chilcoat.” Id.

On appeal, Ms. Chilcoat argues the district court

erred in concluding her allegations were “too speculative.” Aplt. Br. at 14. According to Ms. Chilcoat, the

“temporal proximity” of the meeting to the filing of felony charges and the meeting’s secrecy, among other

factors, “suggest the [C]ounty commissioners involved

themselves in the criminal prosecution of Ms. Chilcoat.” Aplt. Br. at 14. We agree. Reading Ms. Chilcoat’s

allegations in the context of her entire proposed

amended complaint, Ullery, 949 F.3d at 1288, and

considering all factual allegations in the light most

favorable to her, Tomlinson, 653 F.3d at 1285-86, we

conclude Ms. Chilcoat’s proposed amended complaint

states a plausible municipal liability claim under

§ 1983 against San Juan County.

1. The alleged chronology supports a

plausible municipal liability claim.

Ms. Chilcoat contends the district court erred by

ignoring the “temporal proximity” of the County commissioners’ meeting to the filing of felony charges

against Ms. Chilcoat. Aplt. Br. at 14. We agree. The district court neglected to consider that Ms. Chilcoat alleged the secret, closed meeting occurred after the

40a

incident on April 3 involving Mr. Odell, but before Prosecutor Laws escalated her criminal charges on April

18. This chronology is critical to the plausibility analysis.

According to the proposed amended complaint,

the San Juan Sheriff ’s Department did not originally

think there was enough evidence to prosecute Ms. Chilcoat for closing Mr. Odell’s gate on April 1. Despite this,

Prosecutor Laws charged Ms. Chilcoat with two misdemeanors. And seven days after filing misdemeanor

charges, Prosecutor Laws escalated Ms. Chilcoat’s

criminal prosecution by adding two felony charges.

During this same seven-day period, the “San Juan

County commissioners held a secret, closed meeting in

which they discussed . . . the gate incident and Rose

Chilcoat specifically.” Aplt. App. vol. 2 at 231.

These allegations, accepted as true and viewed in

the light most favorable to the plaintiff, support a plausible municipal liability claim against San Juan County

and permit the reasonable inference that this secret,

closed-door meeting affected the decision to bring criminal charges against Ms. Chilcoat. See Waller, 932 F.3d

at 1282. We do not know what discovery may bring. But

that is not our concern. At the motion to dismiss stage,

we are tasked with assessing plausibility, not proof. See

Twombly, 550 U.S. at 545 (“[Plausibility] simply calls

for enough fact to raise a reasonable expectation that

discovery will reveal evidence of illegal agreement.”).

The district court should have allowed Ms. Chilcoat to

amend her complaint and pursue discovery. See Quintana, 973 F.3d at 1034 (“[G]iven the low threshold for

41a

amendment and low bar for surviving a motion to dismiss[,] the plaintiffs alleged enough to explore their

Monell claim in the discovery process.”).

2. The alleged secrecy of the meeting

supports a plausible municipal liability claim.

Ms. Chilcoat further contends the district court

erred in concluding her allegations were “speculative”

because the “reason [she] does not have direct evidence

of what happened in the secret meeting is that the participants deliberately chose not to keep any record of

it—even though they were required by law to do so.”

Aplt. Br. at 28-29. This point is well taken. We must

assume the truth of Ms. Chilcoat’s allegation that the

meeting occurred in secret. We also accept as true her

allegations that no record exists of this secret meeting

and that Defendants disclosed no information about

this meeting to Ms. Chilcoat despite her requests in

both the criminal and civil proceeding. Thus Ms. Chilcoat sufficiently alleged that she had no access to information about what took place in the closed meeting.

The district court concluded the proposed amended

complaint “support[ed] only mere speculation or a possibility that San Juan County made a decision to direct

or encourage criminal prosecution against Ms. Chilcoat.” Aplt. App. vol. 2 at 355. Just because Ms. Chilcoat cannot allege, before discovery, precisely what

took place behind closed doors at a secret meeting held

by the San Juan County commissioners does not

42a

render her allegations speculative under Rule 12(b)(6).

We see no way Ms. Chilcoat could have alleged facts

about what happened at this secret meeting.25

Finally, recall Ms. Chilcoat alleged Commissioner

Lyman attended the secret meeting, publicly supported her criminal prosecution, and was friends

with Prosecutor Laws, who ultimately filed the criminal charges. While the alleged history of animosity between Commissioner Lyman and Ms. Chilcoat alone

cannot satisfy plausibility, these allegations further

“nudge[ ]” her municipal liability claim “across the line

from conceivable to plausible.” See Twombly, 550 U.S.

at 570.

Considering the allegations in the entire proposed

amended complaint, Ullery, 949 F.3d at 1288, and

viewing all non-conclusory allegations in the light most

favorable to Ms. Chilcoat, we conclude she stated a

plausible municipal liability claim against San Juan

County.26 The district court erred by denying her

At oral argument, counsel for Defendants likewise could

not articulate exactly what more Ms. Chilcoat could or should

have pled about this secret meeting to render the municipal liability claim plausible.

The dissent’s contrary conclusion is animated by an overly

narrow reading of Ms. Chilcoat’s proposed amended complaint. In

section I.D, we affirmed the dismissal of the municipal liability

claim in Ms. Chilcoat’s original complaint, holding the district

court correctly determined Prosecutor Laws was acting on behalf

of the State when he allegedly made false statements during Ms.

Chilcoat’s felony prosecution. The dissent ignores that Ms. Chilcoat’s proposed amended complaint—unlike her correctly dismissed original complaint—does not rest solely on acts taken by

Prosecutor Laws on behalf of the State and instead alleges the

43a

commissioners inflicted the constitutional injury by “direct[ing] or

encourag[ing] a county employee to pursue criminal charges

against Ms. Chilcoat in retaliation for her political views.” Aplt.

App. vol. 2 at 232-33. To be sure, San Juan County is not a final

policymaking authority for Utah, and thus could not be liable under a theory of municipal liability solely for the State’s prosecution of Ms. Chilcoat by Prosecutor Laws. See, e.g., Nielander v.

Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1170 (10th Cir. 2009). But

the question of final policymaking authority is not “categorical” or

“all or nothing,” McMillian v. Monroe Cnty., Ala., 520 U.S. 781,

785 (1997), and proceeds in a nuanced manner, by “particular

area” or “particular issue,” id. Here, the County commission is

both the legislative and executive body in San Juan County. See

Utah Code. Ann. § 17-52a-201(3) (West 2018); see also Pembaur

v. City of Cincinnati, 475 U.S. 469, 480 (1986) (plurality opinion)

(“No one has ever doubted, for instance, that a municipality may

be liable under § 1983 for a single decision by its properly constituted legislative body – whether or not that body had taken similar action in the past or intended to do so in the future—because

even a single decision by such a body unquestionably constitutes

an act of official government policy.”). And a county attorney

wears multiple hats under Utah law: he can act on behalf of the

state or on behalf of the county, depending on the circumstances.

See Utah Code Ann. § 17 18a-401 (West 2013) (describing when

public prosecutors prosecute for the state and when they prosecute for the county); Utah Code. Ann. § 17-18a-405 (West 2014)

(explaining when public prosecutors may act as civil legal counsel

for the state, counties, governmental agencies, or governmental

entities); Utah Code Ann. § 17-18a-501 (West 2013) (laying out

the duties of a county attorney when acting as civil counsel); Utah

Code Ann. § 17-53-101(1)(b) (West 2018) (describing county attorney as a county officer). With this appropriately broader reading

of the amended complaint in mind, Ms. Chilcoat’s municipal liability claim is facially plausible. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

44a

proposed amended complaint as futile under Rule

15(a)(2). See Quintana, 973 F.3d at 1034 (quoting Dias,

567 F.3d at 1178) (“[G]ranting a motion to dismiss is a

harsh remedy which must be cautiously studied, not

only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.”).27 We

therefore reverse the district court’s denial of leave to

amend.

CONCLUSION

We AFFIRM the district court’s order granting

Defendants’ motion for judgment on the pleadings,

REVERSE the district court’s denial of leave to

amend, and REMAND for further proceedings consistent with this opinion, including to allow Ms. Chilcoat an opportunity to proceed with discovery, as she

requested.

Chilcoat v. San Juan Cnty., 21-4039

CARSON, J., concurring in part and dissenting in

part.

The majority concludes that Plaintiff ’s proposed

amended complaint states a plausible municipal liability

Defendants suggest we affirm the district court’s denial of

leave to amend on alternative grounds of undue delay, undue

prejudice, or bad faith. The district court did not pass on these

alternative grounds, and we decline to do so for the first time on

appeal.

45a

claim. I disagree.1 Although I take no issue with the

majority’s chronology or secrecy analysis, I would affirm the district court’s denial of Plaintiff ’s motion for

leave to file an amended complaint because the proposed amended complaint lacks well-pleaded allegations that the county commissioners served as final

policymakers. Without those necessary allegations, the

proposed amended complaint is futile—as the district

court correctly determined.

A municipal liability claim must include factual

allegations that a particular municipal custom or policy was the moving force behind a constitutional injury.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

The decision of a municipal employee satisfies this

“policy or custom” requirement if the employee serves

as a final policymaker for the municipality “in a particular area, or on a particular issue.” McMillian v.

Monroe Cnty., 520 U.S. 781, 785 (1997).

Plaintiff appeals the district court’s conclusion

that her proposed amended complaint lacked sufficient

allegations to state a municipal liability claim against

Defendant San Juan County. In count four of her proposed amended complaint, Plaintiff alleged that “Defendant San Juan County violated [her] constitutional

rights when the San Juan County Commission adopted

a decision to direct or encourage the filing of felony

charges against Plaintiff in retaliation for her activism.” See Aplt. App. Vol. 2 at 246 (emphasis added).

ion.

I join the rest of Judge Rossman’s thorough majority opin-

46a

Rather than grapple with count four’s language, the

majority characterizes Plaintiff ’s claim based on a portion of the proposed amended complaint’s background

section. That portion reads,

Upon information and belief, San Juan

County’s commissioners made an official decision whereby they directed or encouraged a

county employee to pursue criminal charges

against Ms. Chilcoat in retaliation for her political views.

Id. at 232-33 (emphasis added). The majority claims

this background allegation, when considered in the

context of the entire proposed amended complaint, sufficiently states a plausible Monell claim against San

Juan County.2

I agree with the majority that when analyzing

plausibility, we read a plaintiff ’s allegations “in the

context of the entire complaint.” Ullery v. Bradley, 949

F.3d 1282, 1288 (10th Cir. 2020). But the majority opinion departs from this well-established principle. Count

Four, by its plain language, necessarily refers to Prosecutor Laws because he filed the felony charges against

Plaintiff. Neither Plaintiff nor the majority dispute that.3

Either way, the crux of Plaintiff ’s municipal claim is the

same—Plaintiff alleges the commissioners “directed or encouraged” a county employee to file charges against her.

In the amended complaint, Plaintiff specifies that Prosecutor Laws first charged her with two misdemeanors and then later

added two felony charges. Id. at 236-37. She also acknowledges

that he brought these “charges in the name of the State of Utah.”

Id. at 236. And the majority notes in its analysis that Prosecutor

Laws brought and later escalated Plaintiff ’s criminal charges.

47a

And when reading count four alongside the background section the majority cites, the only reasonable

conclusion is that the singular county employee who

brought criminal charges was Prosecutor Laws. Id. at

232-33 (“[T]hey directed or encouraged a county employee to pursue criminal charges against Ms. Chilcoat.” (emphasis added)). So in context of the entire

proposed amended complaint, Plaintiff claims that the

commissioners “directed or encouraged” Prosecutor

Laws to file felony charges against her.

Elsewhere in the opinion, the majority determines

that Prosecutor Laws acted on behalf of the state when

he filed these charges—a proposition with which I

agree. Utah Code § 17-18a-401 provides that a public

prosecutor “conduct[s], on behalf of the state, all

prosecutions for a public offense committed within a

county.” So the ultimate question becomes whether

Plaintiff plausibly alleges that the county commissioners acted as final policymakers in directing or encouraging the state to pursue criminal charges. She did

not.

Nothing in the proposed amended complaint suggests that San Juan County commissioners had final

policymaking authority over what charges the state

brought. But the majority does not question this missing allegation. Indeed, the majority fails to analyze the

question altogether. And that’s contrary to the law in

this circuit—when a county attorney acts on behalf of

the state, Monell liability cannot be imposed against

the county. Nielander v. Bd. of Cnty. Comm’rs of Cnty.

of Republic, Kan., 582 F.3d 1155, 1170 (10th Cir. 2009)

48a

(“[T]he County has no authority over how [the county

attorney] exercises his law enforcement duties; his discretionary authority does not derive from Republic

County, but from the state. . . . Thus, the county attorney’s actions cannot be attributable to the Board of

County Commissioners under a municipal liability

theory.”).

Plaintiff ’s proposed amended complaint facially

seeks to impose municipal liability based on the commissioners’ conduct—not Prosecutor Laws’. But our

case law provides that a county does not have final policymaking authority over how an attorney, acting on

behalf of the state, exercises his law enforcement duties. See id. So even if the county commissioners told

Prosecutor Laws to file criminal charges, they lacked—

as a matter of law—final policymaking authority to issue that directive. For this reason, Plaintiff ’s proposed

amended complaint is futile.

I respectfully dissent.

49a

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

-----------------------------------------------------------------------

ROSALIE CHILCOAT, an individual,

Plaintiff Counter Defendant Appellant,

SAN JUAN COUNTY, a political

subdivision of the state of Utah;

KENDALL G. LAWS,

Defendants - Appellees,

and

No. 21-4039

(D.C. No. 4:19CV-00027-DN)

(D. Utah)

ZANE ODELL,

Defendant Counterclaimant,

MARK FRANKLIN,

Counter Defendant.

-----------------------------------------------------------------------

ORDER

-----------------------------------------------------------------------

(Filed Aug. 22, 2022)

Before CARSON, BRISCOE, and ROSSMAN, Circuit Judges.

-----------------------------------------------------------------------

50a

This matter is before the court on DefendantAppellees’ Petition for Panel Rehearing and Rehearing

En Banc (“Petition”). Having carefully considered the

Petition and the filings in this appeal, we direct as follows.

Appellees’ request for panel rehearing is denied by

a majority of the panel pursuant to Fed. R. App. P. 40.

Judge Carson would grant panel rehearing.

The Petition was transmitted to all judges of the

court who are in regular active service. As no member

of the panel and no judge in regular active service on

the court requested that the court be polled, Appellees’

request rehearing en banc is denied pursuant to Fed.

R. App. P. 35(f ).

Entered for the Court,

/s/ Christopher M. Wolpert

CHRISTOPHER M. WOLPERT,

Clerk

51a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

ROSALIE CHILCOAT,

Plaintiff,

SAN JUAN COUNTY,

KENDALL G. LAWS,

and ZANE ODELL,

Defendants.

MEMORANDUM

DECISION AND

ORDER GRANTING

SAN JUAN

COUNTY DEFENDANTS’

MOTION FOR

JUDGMENT ON

THE PLEADINGS

(Filed Mar. 30, 2020)

Civil No. 4:19-cv-00027DN-PK)

District Judge David Nuffer

Before the court is Defendants San Juan County

and Kendall G. Laws’ (collectively “San Juan County

Defendants”) Motion for Judgment on the Pleadings

(“Motion”)1 requesting that the Court dismiss Plaintiff

Rosalie Chilcoat’s claims against them. The Motion is

based on absolute prosecutorial immunity, Eleventh

Amendment sovereign immunity, and for failure to

state a claim for municipal liability. It is important

Docket no. 21, filed July 10, 2019; Memorandum in Opposition to San Juan County Defendants’ Motion for Judgment on the

Pleadings, docket no.., filed August 14, 2019; Reply Memorandum

in Support of San Juan County Defendants’ Motion for Judgment

on the Pleadings, docket no. 33, filed August 30, 2019; Supplemental Memorandum in Opposition to San Juan County Defendants’ Motion for Judgment on the Pleadings, docket no. 39, filed

October 28, 2019. Oral argument was heard on October 30, 2019.

52a

that this order does not determine whether the facts

alleged in the Complaint are true or false. As is later

explained, the decisive issues are well established legal principles protecting public officials, even if wrongful actions were taken. Based on these legal principles

and for other reasons discussed below, the Motion is

GRANTED. The claims against the San Juan County

Defendants are DISMISSED.

BACKGROUND ...................................................

STANDARD OF REVIEW—MOTION FOR

JUDGMENT ON THE PLEADINGS ...............

DISCUSSION ......................................................

Third Cause of Action - 42 U.S.C. § 1983

(Against Defendant Laws)................................

Absolute Prosecutorial Immunity .............

II. Eleventh Amendment Sovereign Immunity ...............................................................

III. Prospective Injunctive and Declaratory

Relief ..........................................................

Fourth Cause of Action - 42 U.S.C. § 1983

(Against Defendant San Juan County) ............

ORDER ................................................................ 10

53a

BACKGROUND2

The San Juan County Sheriff ’s Office began investigating a suspected trespassing incident on April 1,

2017.3 Two days later, a few witnesses who thought

Rosalie Chilcoat’s vehicle matched the description of

the suspected trespasser, confronted Chilcoat about

the incident.4 After the confrontation, Chilcoat sent a

letter to the Federal Bureau of Land Management

(“BLM”) that accused the witnesses of accosting and

assaulting her.5

On April 11, 2017, Defendant Laws, the San Juan

County Attorney, filed an information against Chilcoat

charging her for two misdemeanor counts: (1) Trespassing on Trust Lands and (2) False Personal Identity

to a Peace Officer.6 A few days later, Laws filed an

Amended Information charging Chilcoat with two additional felonies: (1) Attempted Wanton Destruction of

Livestock and (2) Retaliation Against a Case Witness,

Victim, or Informant.7 The witness retaliation charge

The facts set forth below are drawn from the allegations of

the Complaint, which are accepted as true for purposes of deciding the Motion.

Complaint and Jury Demand (“Complaint”) ¶¶ 11-13,

docket no. 2, filed April 10, 2019.

Id. ¶ 15.

Id. ¶ 22.

Id. ¶ 27.

Id. ¶ 28.

54a

was based on Chilcoat’s complaint to the BLM about

her interaction with the witnesses.8

During the preliminary hearing on November 2,

2017, the court limited evidence the prosecution could

use for the witness retaliation charge. Laws was instructed that he could only use evidence showing that

Chilcoat sent the BLM complaint in bad faith.9 The

language about being assaulted could not be the basis

for the charge.10 In response to the court’s limiting instruction, Laws stated that he could present pictures

that Chilcoat submitted to the BLM with her letter

that were “embellished or changed, [or] altered[.]”11

As a result, the court ended up binding over Chilcoat on the retaliation charge.12 Six months later Laws

dropped the charge.13

Chilcoat filed a complaint alleging Section 1983

claims against Laws and San Juan County. Chilcoat

asserted that her constitutional rights were violated

by the statement Laws made during the preliminary

hearing about the evidence for the retaliation charge,

which was “utterly false,” and “wholly of his own fabrication.”14 Chilcoat also alleged that since Laws is a

Id. ¶ 29.

Transcript of Preliminary Hearing at 85, Exhibit A to Motion, docket no. 21-1, filed July 10, 2019.

Id. at 81.

Id. at 82.

Complaint, supra note 2, ¶ 32.

Id. ¶ 35.

Id. ¶ 31.

55a

final decision-maker for the County, the County should

be liable under Section 1983 for Laws’ statement.15

STANDARD OF REVIEW—MOTION

FOR JUDGMENT ON THE PLEADINGS

Rule 12(c) specifically provides that “[a]fter the

pleadings are closed—but early enough not to delay

trial—a party may move for judgment on the pleadings.”16 A motion for judgment on the pleadings is reviewed under the same standard as a Rule 12(b)(6)

motion to dismiss.17 In order to withstand a motion to

dismiss under Bell Atlantic Corp. v. Twombly,18 and

Ashcroft v. Iqbal,19 a plaintiff must allege enough facts,

“taken as true, to state a claim to relief that is plausible on its face.”20 A plaintiff must “offer specific factual

allegations to support each claim.”21 While the Court

must “accept as true all of the allegations contained in

a complaint,” this requirement is “inapplicable to legal

conclusions.”22 The determination of plausibility will

Id. ¶ 73.

Fed. R. Civ. P. 12(c).

Leiser v. Moore, 903 F.3d 1137, 1139 (10th Cir. 2018) (citation omitted).

550 U.S. 544 (2007).

556 U.S. 662 (2009).

Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214

(10th Cir. 2011) (quoting Twombly, 550 U.S. at 570) (internal quotation marks omitted).

Id.

Id. (quoting Iqbal, 556 U.S. at 678) (internal quotation

marks omitted).

56a

be a “context-specific task that requires the reviewing

court to draw on its judicial experience and common

sense.”23 Therefore, “in ruling on a motion to dismiss, a

court should disregard all conclusory statements of law

and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the

defendant is liable.”24

DISCUSSION

Third Cause of Action - 42 U.S.C. § 1983

(Against Defendant Laws)

Chilcoat’s sole cause of action against Laws is

for a violation of her constitutional rights under 42

U.S.C. § 1983.25 Chilcoat alleges that Laws violated her

First, Fourth, and Fourteenth Amendment rights. But

regardless of the specific constitutional provisions

listed in the Complaint, Chilcoat’s Section 1983 claim

Id. (quoting Iqbal, 556 U.S. at 679) (internal quotation

marks omitted).

Id. The Court may also consider “matters of public record,”

Wright & Miller, 5B Fed. Prac. & Proc. Civ. § 1357 (3d ed.) (December 2019 update) (citations omitted), as well as documents

that are “referred to in the complaint if the documents are central

to the plaintiff ’s claim and the parties do not dispute the documents’ authenticity.” Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210,

1215 (10th Cir. 2007) (citation omitted). The claims against the

County Defendants arise out of statements made by Laws during

a preliminary hearing for the state criminal case. The transcript

is a matter of public record and is quoted by Plaintiff in her Complaint. Therefore, the court has taken judicial notice of the transcript of the preliminary hearing in deciding this motion.

Complaint, supra note 2, ¶ 66.

57a

against Laws is barred by both absolute prosecutorial

immunity and Eleventh Amendment sovereign immunity.

Absolute Prosecutorial Immunity

Chilcoat’s Section 1983 claim for damages against

Laws in his individual capacity is barred by prosecutorial immunity. The Supreme Court has adopted a

“functional approach” to determine whether a prosecutor is entitled to absolute immunity.26 When a prosecutor is acting as an advocate for the State, the

prosecutor is entitled to absolute immunity.27

Chilcoat argues that, in allegedly giving false information to the judge at the preliminary hearing,

Laws was acting as “a complaining witness” rather

than as an advocate,28 and thus has no claim to immunity for conduct undertaken in that role.29 However,

the transcript of the preliminary hearing demonstrates that Laws was not under oath and did not provide any testimony.30

Mink v. Suthers, 482 F.3d 1244, 1259 (10th Cir. 2007) (citing Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976)).

Buckley v. Fitzsimmons, 509 U.S. 259, 272 (1993).

Complaint, supra note 2, ¶¶ 30-31, 69.

Kalina v. Fletcher, 522 U.S. 118, 129-31 (1997) (prosecutor

acted as “complaining witness rather than a lawyer” in certifying

document “[u]nder penalty of perjury” and was therefore not entitled to absolute immunity for such act).

Transcript of Preliminary Hearing, supra note 8.

58a

The sworn/unsworn distinction is more than

critical; it is determinative. In Kalina, a prosecutor filed three documents with the court:

(1) an information charging the defendant in

that case with burglary; (2) a motion for an

arrest warrant; and (3) a sworn certification of

probable cause, which contained two inaccurate factual statements. 522 U.S. at 121, 118

S.Ct. at 505. The Supreme Court held that the

prosecutor acted as an advocate except for his

swearing to the truth of the certification. Id.

at 129, 118 S.Ct. at 509. In that regard alone,

the Court held that the prosecutor functioned

as a complaining witness, which meant that

he was not protected by absolute immunity so

far as the contents of the certification were

concerned. See id. at 130, 118 S.Ct. at 510

(“Testifying about facts is the function of the

witness, not of the lawyer.”).31

Rivera v. Leal, 359 F.3d 1350, 1355 (11th Cir. 2004)

(where, among other things, prosecutor “never personally swore

to the truth of any information he shared with the court,” “he did

not function as a complaining witness”); Adams v. Hanson, 656

F.3d 397, 409 (6th Cir. 2011) (“Hanson’s [allegedly false] unsworn

statements during a pretrial court appearance[ ] by the prosecutor in support of taking criminal action against a suspect, are acts

of advocacy protected by absolute immunity.”) (citations and quotation marks omitted); Hendrickson v. Cervone, 661 F. App’x 961,

967 (11th Cir. 2016) (unpublished) (reaffirming sworn-unsworn

distinction and holding prosecutor who, among other things, allegedly falsely certified to having sworn testimony to support

charges, but who was not alleged to have “personally swor[n] to

the truth of the facts in the information,” was entitled to absolute

immunity for alleged conduct).

59a

Because Laws was not testifying at the preliminary hearing, he was not acting as a witness. Rather,

his statements were made in his role as an advocate in

court and were therefore “activities intimately associated with the judicial phase of the criminal process.”32

He is therefore absolutely immune from personal liability for them. Accordingly, the third cause of action is

DISMISSED as to Chilcoat’s claim for damages.

II.

Eleventh Amendment Sovereign Immunity

To the extent Chilcoat’s third cause of action is

brought against Laws in his official capacity, he is

entitled to sovereign immunity under the Eleventh

Amendment. The Eleventh Amendment immunizes

states from suit in federal court.33 This includes employees that act on behalf of the state, or other public

officials sued in their official capacity for money

damages or declaratory relief for past actions.34 Under

Mink, 482 F.3d at 1259 (citation and internal quotation

marks omitted).

See Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995).

See Kentucky v. Graham, 473 U.S. 159, 165-68 (1985) (a

suit against an individual acting in an official capacity is properly

treated as a suit against the state itself and is barred under the

Eleventh Amendment); V-1 Oil Co. v. Utah State Dep’t of Pub.

Safety, 131 F.3d 1415, 1422 (10th Cir. 1997) (“Eleventh Amendment ‘does not permit judgments against state officers declaring

they violated federal law in the past’ ”) (quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146

(1993)); White v. Colorado, 82 F.3d 364, 366 (10th Cir. 1996)

(Eleventh Amendment sovereign immunity barred § 1983 claims

for damages and declaratory judgment against prison officials in

their official capacities).

60a

Utah law an attorney who serves as a public prosecutor “conduct[s], on behalf of the state, all prosecutions

for a public offense committed within a county or prosecution district.”35 Since Laws was acting on behalf of

the state during the preliminary hearing, “Eleventh

Amendment immunity . . . shield[s] [Laws] from liability in his official capacity.”36

III. Prospective Injunctive and Declaratory

Relief

An “action for injunctive relief no matter how it is

phrased is against a defendant in official capacity

only[.]”37 Eleventh Amendment immunity to an injunction claim may be avoided, under certain circumstances, by the Ex parte Young38 doctrine. This doctrine

allows a plaintiff to sue the state for prospective relief

if the plaintiff alleges “an ongoing violation of federal

law[.]”39 That circumstance is not present here, so the

third cause of action is likewise DISMISSED as to the

request for injunctive relief.

Chilcoat alleges that Laws’ knowing or reckless

misrepresentations leading to her bindover were made

Utah Code Ann. § 17-18a-401(1) (emphasis added).

Nielander v. Board of County Commissioners of County of

Republic, Kansas, 582 F.3d 1155, 1164 (10th Cir. 2009).

DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 844

F.2d 714, 718 (10th Cir. 1988) (citation omitted).

209 U.S. 123 (1908).

Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland,

535 U.S. 635, 645 (2002).

61a

“in retaliation for [her] political and environmental

views and/or public advocacy in relation to the criminal prosecution of Laws’ friend [Phillip] Lyman.”40 In a

supplemental memorandum, she adds that this retaliation has resulted in the chilling of her First Amendment rights due to “the threat of future retaliation,”

and that this constitutes “an ongoing/prospective injury.”41

Chilcoat’s Complaint makes no mention of any

concern regarding future retaliation. Rather, it focuses

on Laws’ past actions, asserting that they “were in violation of Ms. Chilcoat’s rights.”42 She seeks “[a] declaration that the defendants’ actions violated Plaintiff ’s

constitutional rights” and vaguely requests “[i]njunctive relief as determined by the Court.”43 The requests

for declaratory and injunctive relief are not tethered to

any alleged continuing violation or threatened harm.

That being the case, the Ex parte Young doctrine cannot penetrate Laws’ sovereign immunity shield.44

To the extent the claim for declaratory relief is

asserted against Laws in his individual capacity, it

nevertheless fails for the same reason. A request for

Id. ¶ 67

Supplement, supra note 1, at 3.

Complaint, supra note 2, ¶ 68 (emphasis added).

Complaint, supra note 2, at 19.

Collins v. Daniels, 916 F.3d 1302, 1316 (10th Cir. 2019)

(recognizing that Ex parte Young doctrine does not allow plaintiff

to “obtain a declaration that a state officer has violated a plaintiff ’s federal rights in the past”) (citation and quotation marks

omitted).

62a

declaratory relief that will not “affect[ ] the behavior of

the defendant toward the plaintiff ” merely seeks an

advisory opinion.45 Chilcoat’s claims for damages

based on Laws’ alleged conduct fail (as against Laws

due to prosecutorial immunity, and as against the

County as explained below), and her claim for injunctive relief is barred by sovereign immunity. As a result, her claim for declaratory relief seeks nothing

more than “the satisfaction of a declaration that

[Chilcoat] was wronged.”46 On that ground, it is DISMISSED as well.

Fourth Cause of Action - 42 U.S.C. § 1983

(Against Defendant San Juan County)

Chilcoat also alleges that San Juan County is liable for the actions of Laws during the preliminary

hearing. To hold a municipality liable under Section

1983, a plaintiff must demonstrate, among other things,

that there is an “official municipal policy” that caused

a constitutional violation.47

In this case, even if there were a constitutional violation by Laws, there is no plausible allegation of the

existence of an official policy or custom by the County

that caused the alleged constitutional violation. As explained above, Laws was acting on behalf of the State

when prosecuting Chilcoat, not the County. Therefore,

Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir.

1997) (citations and quotation marks omitted).

Id. at 1299 (citation omitted).

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

63a

his actions cannot be considered the “policy” of the

County.48 And a single allegation that Laws misstated

facts in a preliminary hearing does not constitute an

official policy or custom of the County. Therefore, Chilcoat has failed to sufficiently allege that the County is

liable under Monell. The fourth cause of action is DISMISSED.

ORDER

For the foregoing reasons, IT IS HEREBY ORDERED that Defendants’ Motion for Judgment on the

Pleadings49 is GRANTED. Plaintiff ’s claims against

Laws and San Juan County are DISMISSED in their

entirety.

SIGNED March 27, 2020

BY THE COURT:

/s/ David Nuffer

David Nuffer

United States District Judge

Nielander v. Board of County Commissioners of County of

Republic, Kansas, 582 F.3d 1155, 1170 (10th Cir. 2009) (affirming

summary judgment for municipality on claims brought against it

based on alleged conduct of county attorney, who was state official

and therefore “not a municipal policymaker”) (emphasis in original).

Docket no. 21, filed July 10, 2019.

64a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

ROSALIE CHILCOAT,

Plaintiff,

ZANE ODELL, SAN

JUAN COUNTY, and

KENDALL G. LAWS,

Defendants.

MEMORANDUM

DECISION AND

ORDER DENYING

PLAINTIFF’S MOTION

TO AMEND

(Filed Jan. 21, 2021)

Civil No. 4:19-cv-00027DN-PK)

District Judge David Nuffer

Plaintiff Rosalie Chilcoat seeks leave to amend

her Complaint1 to reinstate San Juan County as a defendant and allow thereby additional discovery of the

allegations in Ms. Chilcoat’s proposed Amended Complaint.2 San Juan County opposes Ms. Chilcoat’s Motion to Amend arguing that the proposed Amended

Complaint is futile, and the Motion to Amend is untimely, unduly prejudicial, and brought in bad faith.3

Complaint and Jury Demand (“Complaint”), docket no. 2,

filed April 10, 2019.

Motion to Amend Complaint (“Motion to Amend”), docket

no. 70, filed October 23, 2020.

Opposition to Motion to Amend (“Response”), docket no. 75,

filed November 6, 2020.

65a

Because Ms. Chilcoat’s proposed Amended Complaint4 fails to meet the plausibility standard of Rule

12(b)(6), it is futile and therefore it is contrary to the

interests of justice to grant leave to amend. Therefore,

Ms. Chilcoat’s Motion to Amend is DENIED.

BACKGROUND5

This dispute arises out of a criminal prosecution

of a wilderness advocate, Plaintiff Rosalie Chilcoat, for

an alleged trespassing incident in the Spring of 2017.6

On April 10, 2019, Ms. Chilcoat filed her original

Complaint against San Juan County, San Juan County

Attorney Kendall Laws, and Zane Odell.7 In her

Complaint, Ms. Chilcoat alleged Section 1983 claims

against Mr. Laws and San Juan County.8 She asserted

that her constitutional rights were violated by a statement that Mr. Laws made during the preliminary

hearing about the evidence for a retaliation charge.9

Ms. Chilcoat also alleged that since Mr. Laws is a final decision-maker for San Juan County, the County

Amended Complaint, docket no. 72-2, filed October 26,

2020.

The facts set forth below are drawn from the allegations of

Ms. Chilcoat’s original Complaint and her proposed Amended

Complaint, which are accepted as true for purposes of deciding

the Motion to Amend.

Amended Complaint ¶¶ 11-13.

Complaint ¶¶ 2-4.

Id. ¶¶ 66-74.

Id. ¶¶ 67-68.

66a

should be liable under Section 1983 for Mr. Laws’s

statement.10

On March 30, 2020, an order11 granted San Juan

County and Mr. Laws’s motion for judgment on the

pleadings12 dismissing all of Ms. Chilcoat’s claims against

them. Specifically, the Section 1983 claim against San

Juan County was dismissed because there “was no

plausible allegation of the existence of an official policy

or custom by the County that caused the alleged constitutional violation.”13

Ms. Chilcoat’s Motion to Amend seeks, based on

new evidence, to reinstate San Juan County as a defendant.14 According to Ms. Chilcoat, the new evidence

suggests that her criminal charges were pursued at

the direction of, or inducement by, San Juan County’s

commissioners during a “secret, closed meeting in

which they discussed with San Juan County Sheriff Eldredge the gate incident and Rose Chilcoat specifically.”15

Id. ¶¶ 72-74.

Memorandum Decision and Order Granting San Juan

County Defendants’ Motion for Judgment on the Pleadings at 9,

docket no. 63, filed March 27, 2020.

San Juan County Defendants’ Motion for Judgment on the

Pleadings, docket no. 21, filed July 10, 2019.

Memorandum Decision and Order Granting San Juan

County Defendants’ Motion for Judgment on the Pleadings at 9.

Motion to Amend at 2.

Amended Complaint ¶ 22.

67a

STANDARD OF REVIEW

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that “a party may amend its pleading

only with . . . the court’s leave [and] when justice so requires.”16 In making this determination, courts enjoy

broad discretion.17 Reasons for denying amendment

include, but are not limited to, “undue delay, undue

prejudice to the opposing party, bad faith or dilatory

motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.”18

Futility is apparent under the standard in Rule

12(b)(6) when the complaint, standing alone, is legally

insufficient to state a claim upon which relief may be

granted.19 Each cause of action must be supported by

enough sufficient, well-pleaded facts to be plausible on

its face.20 In reviewing a complaint on a Rule 12(b)(6)

motion to dismiss and in evaluating futility on a motion to amend, factual allegations are accepted as true

and reasonable inferences are drawn in a light most

favorable to the plaintiff.21 However, “the plausibility

standard . . . asks for more than a sheer possibility

Fed. R. Civ. P. 15(a)(2).

Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (internal quotations omitted).

Id. (internal quotations omitted).

Fed. R. Civ. P. 12(b)(6); Sutton v. Utah State Sch. for the

Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d

1381, 1384 (10th Cir. 1997).

68a

that a defendant has acted unlawfully.”22 Therefore, to

show an entitlement to relief, the facts must “permit

the court to infer more than the mere possibility of misconduct.”23

DISCUSSION

Section 1983 provides a civil action for the deprivation of Constitutional rights.24 “To state a claim under § 1983, a plaintiff must allege the violation of a

right secured by the Constitution and laws of the

United States, and must show that the alleged deprivation was committed by a person acting under color

of state law.”25 A plaintiff can show that a municipal

policy or custom violated her Constitutional rights

through the decisions of an official with final policymaking authority.26

Ms. Chilcoat’s proposed Amended Complaint alleges

San Juan County violated her “constitutional rights

when the San Juan County Commission adopted a decision to direct or encourage the filing of felony charges

against [Ms. Chilcoat] in retaliation for her activism.”27

Ms. Chilcoat contends that newly discovered evidence,

from the deposition of former County Commissioner

Philip Lyman, supports the claim that the County

Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009).

Id.

42 U.S.C. § 1983.

West v. Atkins, 487 U.S. 42, 48 (1988).

Starrett v. Wadley, 876 F.2d 808, 818 (10th Cir. 1989).

Amended Complaint ¶ 82.

69a

made that decision in a “secret, closed meeting in

which [the commissioners] discussed with San Juan

County Sheriff Eldredge the gate incident and Rose

Chilcoat specifically.”28 “Philip Lyman stated that Ms.

Chilcoat was ‘widely known and controversial, and

there were some criminal discussions that took place

behind closed doors in a closed meeting.’ ”29 Ms. Chilcoat also points out that “Philip Lyman made public

statements expressing his support of [the] criminal

charges.”30

These allegations support only mere speculation

or a possibility that San Juan County made a decision

to direct or encourage criminal prosecution against Ms.

Chilcoat. Accepted as true, these facts allege a meeting

between San Juan County commissioners and Sheriff

Eldredge where the commissioners discussed Ms. Chilcoat. Nothing in the proposed Amended Complaint

demonstrates that the meeting included the County’s

decision or encouragement to pursue criminal charges

against Ms. Chilcoat. The proposed Amended Complaint does not state a plausible claim for relief under

Section 1983. Therefore, it is futile.

Id. ¶ 22.

Id. ¶ 26.

Id.

70a

ORDER

IT IS HEREBY ORDERED that Ms. Chilcoat’s

Motion to Amend31 is DENIED.

Signed January 21, 2021

BY THE COURT:

/s/ David Nuffer

David Nuffer

United States District Judge

Docket no. 70, filed October 23, 2020.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.