Chilcoat v. San Juan County ( 2022 )

Appellate Case: 21-4039 Document: 010110714818 Date Filed: 07/22/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 22, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ROSALIE CHILCOAT, an individual,
Plaintiff Counter Defendant -
Appellant,
v. No. 21-4039
SAN JUAN COUNTY, a political
subdivision of the state of Utah;
KENDALL G. LAWS,
Defendants - Appellees,
and
ZANE ODELL,
Defendant Counterclaimant,
v.
MARK FRANKLIN,
Counter Defendant.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 4:19-CV-00027-DN)
_________________________________
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.
Appellate Case: 21-4039 Document: 010110714818 Date Filed: 07/22/2022 Page: 2
_________________________________
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 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
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
1
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).
2
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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
3
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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.
2
This interaction would later become the basis for charging Ms. Chilcoat with
the misdemeanor count of False Personal Information to a Peace Officer.
4
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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
5
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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
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
3
Utah Code Ann. § 53C-2-301 (West 2020).
4
Utah Code Ann. § 76-8-507(1) (West 2002).
5
Utah Code Ann. § 76-6-111(4)(d) (West 2021).
6
Utah Code Ann. § 76-8-508.3 (West 2004).
6
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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
7
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).
8
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 on the misdemeanor of False Personal Information to a Peace Officer.
7
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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 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.
9
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.”).
10
Ruling on Motion to Quash Bindover, Chilcoat, Nos. 171700040, 17170041
(filed April 24, 2018).
11
Order and Sua Sponte Motion for Summary Disposition, Chilcoat v. State,
No. 20180335-CA (Utah Ct. App. July 10, 2018).
8
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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. § 1983against 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 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
12
Order of Summary Reversal, Chilcoat, Case No. 20180335-CA (July 19,
2018); Pretrial Conference/Order of Dismissal, Chilcoat, No. 171700041 (Aug. 27,
2018).
13
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.
14
At the preliminary hearing, Prosecutor Laws referred to Ms. Chilcoat’s April
5 email to BLM as a “letter.”
9
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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.
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
15
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.
10
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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 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.
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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 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 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 individual-capacity claims against
Prosecutor Laws under § 1983 based on the doctrine of absolute prosecutorial
immunity. Ms. Chilcoat contends the district court erred because Prosecutor Laws
12
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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 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
16
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, 362-63 (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.
13
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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 (“[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
17
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).
14
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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
15
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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.
16
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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 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 . . . .”).
18
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.17
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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 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
18
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“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 (“[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
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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 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.”).
20
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“[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.
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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 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
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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
19
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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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 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. 12320
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.
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(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 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
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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 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
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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.
21
Defendants contend we should dismiss Ms. Chilcoat’s prospective relief
claims because she lacks Article III standing. We 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).
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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 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. 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.
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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 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
22
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.
23
See Utah Code Ann. § 76-8-508.3 (West 2004).
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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. 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
24
These facts are taken from the well-pleaded allegations in Ms. Chilcoat’s
proposed amended complaint.
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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.
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,
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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 § 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.
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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. 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 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
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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
34
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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.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 incident on April 3
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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
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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
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not 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 proposed
25
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.
26
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 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
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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.
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. § 1718a-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.”).
27
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.
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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.
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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
1
I join the rest of Judge Rossman’s thorough majority opinion.
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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 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 And when reading count four alongside the background section the
majority cites, the only reasonable conclusion is that the singular county employee who
2
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.
3
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.
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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) (“[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.”).
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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.
4