Kristina Zemaitiene v. Salt Lake County

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
KRISTINA ZEMAITIENE,
Plaintiff - Appellant,
v.
SALT LAKE COUNTY; JAMES
WINDER, former Chief of Police in his
official capacity; UNIFIED POLICE
DEPARTMENT OF GREATER SALT
LAKE; TAYLORSVILLE CITY, a/k/a
City of Taylorsville; TRACY WYANT,
Taylorsville Precinct Chief of Police in his
official capacity; JOEL KNIGHTON, in
his individual and official capacity;
DENISE LOVENDAHL, in her individual
and official capacity; CORPORATION OF
THE PRESIDING BISHOP OF THE
CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS, d/b/a Deseret
Industries; RICK RICKS, in his individual
and official capacity; MELANIE PERRY,
in her individual and official capacity; OFF
DUTY SERVICES,
Defendants - Appellees.
No. 21-4091
(D.C. No. 2:17-CV-00007-DAK)
(D. Utah)
_________________________________
ORDER AND JUDGMENT*
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
April 5, 2022
Christopher M. Wolpert
Clerk of Court
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_________________________________
Before PHILLIPS, BALDOCK, and EID, Circuit Judges.
_________________________________
Kristina Zemaitiene, proceeding pro se, appeals from the district court’s
judgment in favor of the defendants in her civil-rights case. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm a majority of the judgment, but we vacate the
judgment in favor of one defendant on Count 17 and remand for further proceedings.
BACKGROUND
Ms. Zemaitiene worked in a store operated by Corporation of the Presiding
Bishop of the Church of Jesus Christ of Latter-day Saints, doing business as Deseret
Industries (Deseret). One day, she saw an altercation in the parking lot, with two
people struggling with a third person. She ran to help the third person. But things
were not as they seemed. Unknown to her, the two “assailants” were off-duty police
officers who had been hired to provide undercover security at the store, and they
were attempting to arrest the “victim,” a suspected shoplifter. When Ms. Zemaitiene
arrived, the suspect got in his car and drove away.
The officers identified themselves to Ms. Zemaitiene as undercover police
officers working security at the store. One of the officers pulled out her police
badge, then allegedly chest-bumped Ms. Zemaitiene twice. The officers went into
the store and met with Deseret employees to discuss the incident. After waiting in
the hall while the employees and officers spoke in an office, Ms. Zemaitiene entered
the office and reported to one of the employees, a Deseret assistant manager, that the
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officers had assaulted a store customer. She further accused the officer who
chest-bumped her of sexual assault. That officer then arrested Ms. Zemaitiene for
interfering with the shoplifter’s arrest and issued her a written citation. The assistant
manager suspended Ms. Zemaitiene from work and barred her from all of Deseret’s
stores. A few days later, she resigned from her employment.
As a result of the incident, Ms. Zemaitiene was charged in justice court with
interfering with an arresting officer. The prosecutor later amended the misdemeanor
charge to an infraction. Ms. Zemaitiene was convicted of interfering with an
arresting officer both in justice court and in the state district court, following a trial
de novo.
Ms. Zemaitiene brought seventeen federal and state claims against (1) the two
police officers and their governmental supervisors and employers (collectively, the
Governmental Defendants), (2) two Deseret employees who met with the officers
(the Store Employees), (3) Deseret, and (4) the company that contracted with Deseret
to provide security, Off Duty Services, LLC (ODS). The district court disposed of
the claims in three separate orders. First, it dismissed the claims against the
Governmental Defendants and the Store Employees; second, it dismissed the claims
against ODS; and third, it granted summary judgment to Deseret.
Ms. Zemaitiene now appeals. Because she proceeds pro se, we construe her
filings liberally, but we do not act as her counsel. See Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
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DISCUSSION
I. Firm Waiver Rule
The magistrate judge filed three reports and recommendations regarding the
defendants’ dispositive motions. Ms. Zemaitiene, however, did not file objections to
two of the three reports. “This court has adopted a firm waiver rule under which a
party who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.”
Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005). We do not apply
this rule, however, “when (1) a pro se litigant has not been informed of the time
period for objecting and the consequences of failing to object, or when (2) the
interests of justice require review.” Id. (internal quotation marks omitted). Noting
the failure to file objections, this court issued an Order to Show Cause why the firm
waiver rule should not apply, to which Ms. Zemaitiene responded.
The first exception does not apply here. Although Ms. Zemaitiene proceeded
pro se, all the reports advised her of the time period for filing objections and that her
failure to do so might work a waiver. And Ms. Zemaitiene does not contend that she
was not properly notified.
Ms. Zemaitiene’s response instead discusses her challenges in preparing
filings and receiving the district court’s orders, matters which go to the interests of
justice exception. Although we “have not defined the interests of justice exception
with much specificity,” we have noted that “a pro se litigant’s effort to comply, the
force and plausibility of the explanation for [her] failure to comply, and the
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importance of the issues raised are all relevant considerations in this regard.” Id. at
1119-20 (internal quotation marks omitted).
This suit alleges violations of Ms. Zemaitiene’s constitutional rights, and
constitutional questions generally present important issues. Nevertheless,
Ms. Zemaitiene’s efforts to comply and the nature of her explanations for her failures
to comply weigh against applying the interests of justice exception.
A. March 6, 2020, Report and Recommendation
The first report to which Ms. Zemaitiene failed to object was the magistrate
judge’s March 6, 2020, recommendation that the district court grant the motions to
dismiss filed by the Governmental Defendants and the Store Employees. Having
received no objections, the district court adopted the report on March 24, 2020.
Ms. Zemaitiene then requested an extension of time to object, noting that she relied
on public library access to prepare her filings and that the libraries had closed due to
the COVID-19 pandemic. The district court enlarged the time to file objections until
14 days after the library system reopened to the public.
On October 21, 2020, the district court issued an order finding that the Salt
Lake County libraries had reopened by appointment on July 13, 2020, and had fully
reopened on October 5, 2020. Because more than 14 days had passed since the full
reopening and Ms. Zemaitiene still had not filed objections, the district court
reaffirmed its March 24 order. Three months later, Ms. Zemaitiene moved for
another extension of time. The district court denied the motion as untimely.
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Ms. Zemaitiene states that she was unaware of the district court’s October 21,
2020, order because the postal service returned it to the court as undeliverable.
(Ms. Zemaitiene did not have a mailing address and was relying on general delivery
at the time.) She further states that, although the libraries were open, their services
were limited, and due to the threat of COVID-19 and her personal circumstances, she
was uncomfortable visiting in the fall of 2020.
The COVID-19 pandemic undeniably has caused great disruption. But the
district court took account of the pandemic and Ms. Zemaitiene’s need to access the
library by granting what turned out to be a six-month extension. After the libraries
reopened, however, Ms. Zemaitiene failed to demonstrate diligence. Rather than
contacting the court and seeking a further extension based on limited access and her
individual concerns about COVID-19, she let her deadline pass without taking any
action. Moreover, she did not promptly seek an extension after the district court
issued its October 21, 2020, order. Although the postal service returned the order as
undeliverable, it was her responsibility to ensure she remained aware of
developments in her case.
For these reasons, we decline to apply the interests of justice exception to the
firm waiver rule with regard to the March 6, 2020, report. We therefore do not
review the district court’s rejection of the claims against the Governmental
Defendants and the Store Employees.
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B. May 25, 2021, Report and Recommendation
The other report to which Ms. Zemaitiene failed to object was the magistrate
judge’s May 25, 2021, recommendation that the district court grant the motion for
summary judgment filed by Deseret. Having received no objections, the district
court adopted the report on June 24, 2021.
Ms. Zemaitiene states that she did not file objections to the May 25, 2021,
report because she believed it was invalid, given that she previously had moved for
the recusal of both the magistrate judge and the district judge because of their
membership in the Church of Jesus Christ of Latter-day Saints. The magistrate judge
denied her motion to recuse on May 25, 2021, the same day he issued the report. The
district judge subsequently denied her motion to recuse himself also.
This court has held that membership in the Church of Jesus Christ of
Latter-day Saints is not a sufficient ground to support a judge’s recusal. See In re
McCarthey, 368 F.3d 1266, 1270 (10th Cir. 2004) (holding that “merely because [the
district judge] belongs to and contributes to the Mormon Church would never be
enough to disqualify him”); see also Bryce v. Episcopal Church in the Diocese of
Colo., 289 F.3d 648, 660 (10th Cir. 2002) (“[C]ourts have consistently held that
membership in a church does not create sufficient appearance of bias to require
recusal.”). Accordingly, Ms. Zemaitiene was not justified in (1) moving for the
judges’ recusal on the ground of their church membership, or (2) failing to file
objections to the May 25, 2021, report because of her belief that the judges should be
recused.
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For these reasons, we decline to apply the interests of justice exception to the
firm waiver rule with regard to the May 25, 2021, report. We therefore do not review
the district court’s decision rejecting the claims against Deseret.
II. Motion to Dismiss by ODS
Ms. Zemaitiene did file objections to the magistrate judge’s report
recommending that the district court grant the motion to dismiss filed by ODS. 1 The
arguments relating to ODS therefore are not subject to the firm waiver rule.
We review de novo the grant of a Rule 12(b)(6) motion to dismiss. VDARE
Found. v. City of Colo. Springs, 11 F.4th 1151, 1158 (10th Cir 2021), cert. denied,
2022 WL 585900 (U.S. Feb. 28, 2022) (No. 21-933). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted). The Supreme Court has specified:
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. The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of the line
between possibility and plausibility of entitlement to relief.
Id. (citations and internal quotation marks omitted).
1 The magistrate judge issued his report and recommendation on September 24,
2020. On October 20, 2020, the district court noted that Ms. Zemaitiene had not filed
objections and adopted the recommendation. But then the district court granted
Ms. Zemaitiene an extension to file objections, and it considered her objections
before ultimately readopting the recommendation.
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Ms. Zemaitiene named ODS in three counts: Counts 7 and 8, under 42 U.S.C
§ 1983, and Count 17, alleging a state-law respondeat superior claim. ODS moved to
dismiss all three counts. Ms. Zemaitiene moved to strike ODS’s motion, claiming it
was untimely. But she did not otherwise respond.
The magistrate judge recommended denying the motion to strike and granting
the motion to dismiss. He recommended dismissing both § 1983 claims because
Ms. Zemaitiene failed to establish that ODS, a private company, was acting under the
color of state law. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)
(“[T]he under-color-of-state-law element of § 1983 excludes from its reach merely
private conduct, no matter how discriminatory or wrongful.” (internal quotation
marks omitted)). The magistrate judge further stated that Ms. Zemaitiene’s
allegations were too conclusory to state a claim for conspiracy. See, e.g., Shimomura
v. Carlson, 811 F.3d 349, 359 (10th Cir. 2015) (“Conclusory allegations of
conspiracy [do] not suffice.”). And he stated that the third claim would also
necessarily fail because a plaintiff cannot pursue respondeat superior liability under
§ 1983. See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003). The
district court accepted the recommendation.
1. § 1983 Claims
On appeal, Ms. Zemaitiene argues she pleaded that ODS acted under color of
state law, and she can satisfy that requirement by applying the “public function” test,
the “symbiotic relationship” test, and/or the “joint action” test. See Gallagher v. Neil
Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (recognizing various
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tests for establishing state action). But even assuming the district court erred in
concluding she failed to plead sufficient facts to establish that ODS acted under color
of state law, we nevertheless affirm the dismissal of the § 1983 claims against ODS.
See Issa v. Comp USA, 354 F.3d 1174, 1178 (10th Cir. 2003) (recognizing that, even
if a district court errs, “we may affirm the district court’s dismissal order if we
independently determine that plaintiff failed to state a claim”).
Count 7 alleges “Civil Conspiracy to Violate the Right to Equal Protection,”
based on Ms. Zemaitiene’s nationality. R. at 80. To state a claim for conspiracy, a
plaintiff must “allege[] specific facts showing . . . an agreement and concerted action
between” the defendants to violate the plaintiff’s constitutional rights. Shimomura,
811 F.3d at 359. And to overcome a motion to dismiss, a plaintiff must plead facts to
establish a plausible claim, meaning the “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Bell Atl. Corp v. Twombly,
550 U.S. 544, 555 (2007). Conclusory allegations are insufficient to state a claim.
Iqbal, 556 U.S. at 678-79; Shimomura, 811 F.3d at 359. Ms. Zemaitiene’s
allegations with regard to Count 7 against ODS are speculative and conclusory, and
as such, they do not state a plausible claim for relief.
Count 8 alleges “Deliberately Indifferent Policies, Practices, Customs,
Training, and Supervision in violation of the First, Fourth, Fifth and Fourteenth
Amendments.” R. at 82. An entity may be liable for constitutional violations caused
by its policies and procedures. See Dubbs, 336 F.3d at 1216; Schneider v. City of
Grand Junction Police Dep’t, 717 F.3d 760, 769-70 (10th Cir. 2013). But
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Ms. Zemaitiene’s complaint treats the defendant employers as an undifferentiated
whole, and fails to adequately identify or discuss any policy, practice, or custom of
ODS, or lack of training or supervision by ODS, that allegedly led to constitutional
violations. Cf. Pahls v. Thomas, 718 F.3d 1210, 1228 (10th Cir. 2013) (“Plaintiffs
must do more than show that their rights were violated or that defendants, as a
collective and undifferentiated whole, were responsible for those violations.”
(internal quotation marks omitted)). Her conclusory, boilerplate allegations do not
state a plausible claim for relief against ODS in Count 8.
2. Respondeat Superior Claim
The district court correctly held that Ms. Zemaitiene cannot pursue a § 1983
claim against ODS based on respondeat superior liability. See Dubbs, 336 F.3d at
1216. But Ms. Zemaitiene pleaded her Count 17 as a state-law claim, not a § 1983
claim. See R. at 95 (“State Law Claim (Respondeat Superior)”); id. at 406 (“Plaintiff
brings this claim under the state law authorizing suits against employers for the
actions of their employees.”). Therefore, Dubbs is inapplicable; the relevant
questions are whether Utah would recognize a claim for respondeat superior against
ODS, and if so, whether Ms. Zemaitiene pleaded sufficient facts to establish a
plausible claim. The district court did not address those questions.
When the district court does not address an issue, we generally remand for it to
consider the argument in the first instance. See Tabor v. Hilti, Inc., 703 F.3d 1206,
1227 (10th Cir. 2013). We note, however, “[t]he Supreme Court has encouraged the
practice of dismissing state claims or remanding them to state court when the federal
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claims to which they are supplemental have dropped out before trial.” Barnett v.
Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1238
(10th Cir. 2020). Accordingly, although we vacate the judgment in favor of ODS on
Count 17, the district court may decline to exercise supplemental jurisdiction over
this sole remaining claim on remand.
III. Motions to Recuse
Ms. Zemaitiene also challenges the denials of her motions to recuse. We
review the denial of recusal for abuse of discretion. See id. at 1239. As stated above,
however, the motions were based solely on the judges’ membership in the Church of
Jesus Christ of Latter-day Saints, which this court has held is an inadequate ground
for recusal, see McCarthey, 368 F.3d at 1270; Bryce, 289 F.3d at 660. The judges
therefore did not abuse their discretion in denying the recusal motions.
CONCLUSION
We affirm the district court’s judgment in favor of the Governmental
Defendants, the Store Employees, and Deseret. We also affirm the judgment on
Counts 7 and 8 in favor of ODS. But we vacate the judgment on Count 17 in favor of
ODS and remand for the district court either to consider the claim in the first
instance, or to decline to exercise its supplemental jurisdiction.
Entered for the Court
Allison H. Eid
Circuit Judge
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