Rusk v. University of Utah Healthcare

2016 UT App 243
THE UTAH COURT OF APPEALS
Z ACHARY R.E. R USK,
Appellant,
v.
U NIVERSITY OF U TAH H EALTHCARE
R ISK M ANAGEMENT,
Appellee.
Per Curiam Decision
No. 20160850-CA
Filed December 22, 2016
Third District Court, Salt Lake Department
The Honorable Ryan M. Harris
No. 160905195
Zachary R.E. Rusk, Appellant Pro Se
Curtis J. Drake and Scott G. Pratt, Attorneys
for Appellee
Before JUDGES GREGORY K. O RME, M ICHELE M. C HRISTIANSEN , and
JILL M. POHLMAN .
PER CURIAM:
¶1 	Zachary R.E. Rusk appeals the district court’s dismissal of
his complaint under rule 12(b)(6) of the Utah Rules of Civil
Procedure for failure to state a claim upon which relief can be
granted. This case is before the court on a sua sponte motion for
summary disposition. We affirm.
¶2 	The district court determined that Rusk failed to allege
sufficient 	facts 	in 	support 	of 	his 	legal 	claims. 	The 	factual
statement in the complaint filed on August 18, 2016, included
statements regarding what one must do to “win a malpractice
case.” The complaint did not allege any specific facts regarding
how the doctor or University of Utah Healthcare (the University)

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may have committed malpractice. Similarly, the “request for
relief” contained only conclusory statements about the doctor’s
“duty to act properly” and the doctor’s breach of that duty
“through negligence by making a very big mistake and not
doing what she agreed to do.” In a memorandum accompanying
the complaint, Rusk referred to a tortious interference claim, but
he did not allege material facts in support of that claim. Instead,
he made statements concerning how the doctor required him to
attend an appointment and take medication prior to having
Family and Medical Leave Act (FMLA) forms completed. He
stated that his former employer, Fidelity Brokerage Services
(FBS), 	terminated 	his 	employment 	four 	days 	before 	his
scheduled appointment with the doctor. Finally, Rusk requested
that the University pay him damages to the extent he is unable to
obtain relief in a federal lawsuit he filed against FBS.
¶3 	The University filed a motion to dismiss the complaint
under rule 12(b)(6) for failure to state a claim for relief and on
the alternative ground that Rusk had failed to satisfy statutory
prerequisites to filing a medical malpractice lawsuit. Rusk did
not file any memorandum in opposition to the motion and
instead submitted the matter to the district court for decision.
¶4 	In his response to this court’s sua sponte motion for
summary disposition, Rusk first argues that he was denied a
statutory 	right 	to 	have 	counsel 	appointed 	to 	assist 	him 	in
pursuing his civil medical malpractice and tort claims in this
state 	court 	case. 	Rusk 	cites 	provisions 	authorizing 	the
appointment of counsel by a federal court under section 706(f)(1)
of Title VII of the Civil Rights Act of 1964 in cases alleging
unlawful employment discrimination, see 42 U.S.C. § 2000e-
5(f)(1), 	or 	allowing 	a 	federal 	court 	to 	request 	voluntary
representation by counsel under section 1915(e) of Title 28 of the
United States Code for a civil litigant proceeding “in forma
pauperis” 	in 	federal 	court. 	Neither 	provision 	applies 	to 	or
requires a state court to appoint counsel for Rusk in his civil

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20160850-CA 	3 	2016 UT App 243
lawsuit raising medical malpractice and tortious interference
claims. Similarly, Rusk is not an indigent criminal defendant
who possesses a Sixth Amendment right to appointed counsel.
¶5 	Rule 8 of the Utah Rules of Civil Procedure requires “[a]n
original claim” to “contain a short and plain: (1) statement of the
claim showing that the party is entitled to relief; and (2) demand
for judgment for specified relief.” Utah R. Civ. P. 8(a). Rule
12(b)(6) allows a district court to dismiss a complaint for failure
to 	state 	a 	claim 	upon 	which 	relief 	can 	be 	granted. See id.
R. 12(b)(6). “A complaint states a claim upon which relief can be
granted if it alleges the facts and sets forth the legal basis for an
available legal remedy.” Simmons Media Group LLC v. Waykar,
LLC, 2014 UT App 145, ¶ 15, 335 P.3d 885 (citation and internal
quotation marks omitted). “A motion to dismiss should be
granted only if, assuming the truth of the allegations in the
complaint and drawing all reasonable inferences therefrom in
the light most favorable to the plaintiff, it is clear that the
plaintiff is not entitled to relief.” Hudgens v. Prosper, Inc., 2010 UT
68, ¶ 14, 243 P.3d 1275 (citation and internal quotation marks
omitted). 	“Mere 	conclusory 	allegations 	in 	a 	pleading,
unsupported by a recitation of relevant surrounding facts, are
insufficient 	to 	preclude 	dismissal 	or 	summary 	judgment.”
Chapman v. Primary Children’s Hosp., 784 P.2d 1181, 1186 (Utah
1989).
¶6 	In an appeal from an order granting a motion to dismiss
under rule 12(b)(6), this court reviews only the facts alleged in
the complaint. Franco v. Church of Jesus Christ of Latter-day Saints,
2001 UT 25, ¶ 2, 21 P.3d 198. “[W]e accept the factual allegations
in the complaint as true and consider all reasonable inferences to
be drawn from those facts in a light most favorable to the
plaintiff.” Id. (citation and internal quotation marks omitted).
This court “will affirm the trial court’s dismissal only if it is
apparent that as a matter of law, the plaintiff could not recover
under the facts alleged.” Id. ¶ 10 (citation and internal quotation

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20160850-CA 	4 	2016 UT App 243
marks omitted). This court gives no deference to the district
court’s ruling and reviews it for correctness. See id.
¶7 	Even 	if 	liberally 	construed, 	Rusk’s 	complaint 	merely
stated elements of the claimed causes of action and alleged in
vague and conclusory terms that the doctor or the University
committed acts that would constitute medical malpractice or
tortious interference. In response to the sua sponte motion, Rusk
argues that sufficient facts are alleged in his pleadings and
exhibits “as well as the appendixes attached to the docketing
statement, 	not 	to 	exclude 	that 	of 	the 	notice 	of 	filing 	for
interlocutory appeal.” Neither the district court nor this court is
required to review voluminous extraneous materials in an effort
to address deficiencies in the complaint and identify facts to
support 	a 	plaintiff’s 	legal 	theories. 	Instead, 	the 	factual
allegations made in the complaint must be the focus of the
inquiry under rule 12(b)(6). See id. ¶ 2. In response to the sua
sponte motion, Rusk essentially claims that the doctor’s failure
to fill out the FMLA forms at the time of his email and fax
requests, and instead requiring him to first attend a medical
appointment, resulted in termination of his employment. He
claims these facts demonstrate medical malpractice and tortious
interference. Even if these alleged facts from his response to the
sua sponte motion had been included in the complaint, they
would not demonstrate how he was entitled to relief on his
theories.1
¶8 	To the extent Rusk claims that the district court denied
him the opportunity to amend his complaint, this claim also
lacks merit. Rusk’s motion to amend sought to add a similarly
1. Although the district court dismissed the complaint with
prejudice, the court noted that “the dismissal of these claims
does not necessarily bar Plaintiff from bringing intelligible or
cognizable claims against Defendants at a later time.”

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unsupported and vague “RICO” claim and did not seek to
supplement the allegations in his original complaint.
¶9 	The district court correctly dismissed Rusk’s complaint
for failure to state a claim for relief. Because this court affirms
the district court’s dismissal on the grounds stated in the district
court’s 	ruling 	and 	order, 	it 	is 	unnecessary 	to 	consider 	the
alternative theory advanced by the University, namely that Rusk
failed to satisfy statutory prerequisites before filing a medical
malpractice lawsuit.
¶10 	Affirmed.