ROSALIE CHILCOAT, an individual, Plaintiff Counter Defendant - Appellant, v. SAN JUAN COUNTY, a political subdivision of the state of Utah; KENDALL G. LAWS, and Defendants - Appellees, and ZANE ODELL, Defendant Counterclaimant, v. MARK FRANKLIN, Counter Defendant.
No. 21-4039
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
July 22, 2022
PUBLISH. Appeal from the United States District Court for the District of Utah (D.C. No. 4:19-CV-00027-DN). FILED United States Court of Appeals Tenth Circuit. Christopher M. Wolpert, Clerk of Court.
R. Blake Hamilton (Ashley M. Gregson and Ryan M. Stephens with him on the brief), Dentons Durham Jones Pinegar,
Before CARSON, BRISCOE, and ROSSMAN, Circuit Judges.
ROSSMAN, Circuit Judge.
Rosalie Chilcoat appeals the district court‘s orders granting Defendants’ motion for judgment on the pleadings under
BACKGROUND
I. 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 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 off-road 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.
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 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
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 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
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
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 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
Prosecutor Laws and San Juan County moved for judgment on the pleadings under
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
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 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
I. 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
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 individual-capacity claims against Prosecutor Laws under
“Absolute prosecutorial immunity is a complete bar to a suit for damages under
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 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
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 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 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
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;
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
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 probable-cause 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 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 (“[The] 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 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
“[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 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 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
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 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 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
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
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 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
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
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
For municipal liability, the defendant must be an official policymaker for the municipality—not the state. See McMillian, 520 U.S. 784-85. Whether an official is a final policymaker
Here, the district court correctly looked to Utah law and relied on
Prosecutor 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
We affirm the district court‘s order granting Defendants’ motion for judgment on the pleadings under
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. Odell. As part of this litigation, Ms. Chilcoat deposed Commissioner Lyman. Ms. Chilcoat then sought leave to amend her complaint under
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
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 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
The district court denied Ms. Chilcoat‘s motion to amend under
B. Motion to amend standard
Under
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
In our de novo review, we accept as true the well-pleaded 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 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 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.
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 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 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
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 render her allegations speculative under
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
amended complaint as futile under
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 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). 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
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 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.
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) (“[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.