Barbour v. Pratt et al

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
BRANDON BARBOUR,
Plaintiff,
v.
OFFICER STEPHEN PRATT; UTAH
COUNTY SHERIFF’S OFFICE; DAVID O.
LEAVITT; and DOUGLAS E. SMITH,
Defendants.
REPORT AND RECOMMENDATION
TO DISMISS ACTION PURSUANT TO
28 U.S.C. § 1915
Case No. 2:25-cv-00168
Chief District Judge Jill N. Parrish
Magistrate Judge Daphne A. Oberg
Proceeding without an attorney, Brandon Barbour filed this action against a
police officer, a prosecutor, and the Utah County Justice Court, alleging civil rights
violations arising from a traffic stop and prosecution for a traffic violation.1 The court
temporarily granted Mr. Barbour’s motion to waive the filing fee and stayed the case for
screening.2 After screening Mr. Barbour’s complaint under 28 U.S.C. § 1915(e)(2)(B)
and identifying deficiencies, the court invited Mr. Barbour to file an amended complaint,3
1 (See Compl., Doc. No. 1.)
2 (See Order Temp. Granting Mot. to Waive Filing Fee & Notice of Screening Under 28
U.S.C. § 1915, Doc. No. 5.)
3 (See Mem. Decision & Order Permitting Am. Compl. & Temp. Granting Mot. to Waive
Filing Fee, Doc. No. 9.)
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which he did.4 Having reviewed the amended complaint, the undersigned5
recommends the district judge dismiss this action, as follows:
1. 	Because the amended complaint fails to state a plausible claim for relief
under federal law, and further opportunities to amend would be futile, Mr. Barbour’s
federal claims under 42 U.S.C. § 1983 should be dismissed with prejudice pursuant to
28 U.S.C. § 1915(e)(2)(B).
2. 	The court should decline to exercise jurisdiction over Mr. Barbour’s state
law claims, and these claims should be dismissed without prejudice.
LEGAL STANDARDS
When a court authorizes a party to proceed without paying a filing fee, the court
must dismiss the case if it determines the complaint “fails to state a claim on which relief
may be granted” or “seeks monetary relief against a defendant who is immune from
such relief.”6 In determining whether a complaint fails to state a claim, the court uses
the standard for analyzing a motion to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure.7 To avoid dismissal under Rule 12(b)(6), a complaint must allege
“enough facts to state a claim to relief that is plausible on its face.”8 The court accepts
4 (See Am. Compl. & Mem. in Supp. of Am. Compl., Doc. No. 10.)
5 This case is referred to the undersigned magistrate judge under 28 U.S.C.
§ 636(b)(1)(B). (See Doc. No. 13.)
6 28 U.S.C. § 1915(e)(2)(B)(ii)–(iii).
7 Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007).
8 Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007)).
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well-pleaded factual allegations as true and views the allegations in the light most
favorable to the plaintiff, drawing all reasonable inferences in the plaintiff’s favor.9 But
the court need not accept a plaintiff’s conclusory allegations as true.10 “[A] plaintiff must
offer specific factual allegations to support each claim.”11
Because Mr. Barbour proceeds without an attorney (pro se), his filings are
liberally construed and held “to a less stringent standard than formal pleadings drafted
by lawyers.”12 Still, pro se plaintiffs must “follow the same rules of procedure that
govern other litigants.”13 For instance, a pro se plaintiff “still has the burden of alleging
sufficient facts on which a recognized legal claim could be based.”14 While the court
must make some allowances for a pro se plaintiff’s “failure to cite proper legal authority,
his confusion of various legal theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements,”15 courts “will not supply additional factual
9 Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013).
10 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
11 Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
12 Hall, 935 F.2d at 1110.
13 Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)
(citation omitted).
14 Jenkins v. Currier, 514 F.3d 1030, 1032 (10th Cir. 2008) (internal quotation marks
omitted).
15 Hall, 935 F.2d at 1110.
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allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s
behalf.”16
BACKGROUND
Using a form civil rights complaint, Mr. Barbour brought this action under 42
U.S.C. § 1983, alleging the defendants violated his civil rights in various ways.17 Mr.
Barbour checked boxes on the form complaint indicating he is suing police officer
Stephen Pratt and prosecutor David Leavitt in their individual and official capacities, and
the justice court in its official capacity.18 Mr. Barbour’s allegations relate to two
incidents, which he recounted in his original complaint as follows.
First, in September 2022, Mr. Barbour “was pulled over by Officer Pratt who
claimed [Mr. Barbour] was speeding and stated [Mr. Barbour] was doing 50 mph in a []
35 mph zone.”19 Mr. Barbour alleged Officer Pratt “falsely claim[ed] that Mr. Barbour
was speeding,” and “intentionally lied on a police report to issue a false citation.”20
During an ensuing court proceeding, Mr. Leavitt (the prosecutor) offered Mr. Barbour a
plea deal, which Mr. Barbour contends was “based off of [Officer Pratt’s] testimony[,] not
16 Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (citation omitted).
17 (See generally Compl., Doc. No. 1.) Citations to this document refer to the CM/ECF
pagination.
18 (See id. at 2–3.)
19 (Id. at 4.)
20 (Id. at 7.)
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evidence.”21 Mr. Barbour also alleged Mr. Leavitt “wait[ed] until a week before the trial
to dismiss the case” while “knowing all along that there was insufficient evidence to
proceed.”22
Second, Mr. Barbour alleged that in January 2023, “the Utah County Justice
[C]ourt sent [a] notice of warrant with intentional mis[]information regarding [the] reason
for [the] warrant.”23 Mr. Barbour also alleged justice court staff “[i]ntentionally provide[d]
incorrect information to the Driver’s License Division, leading to additional criminal
charges and fines.”24
On the section of the complaint form inviting Mr. Barbour to identify which of his
federal rights were violated, Mr. Barbour wrote: “Probable cause under the 4th
Amendment, Search and seizure under the 4th Amendment, Malicious prosecution, Due
process violation, Equal Protection Violation, Intentional Misconduct.”25 Mr. Barbour did
not explain which defendants violated which rights.
The court screened Mr. Barbour’s complaint and found Mr. Barbour failed to state
a § 1983 claim.26 Specifically, the court found prosecutorial immunity barred Mr.
21 (Id. at 4.)
22 (Id. at 8.)
23 (Id. at 4.)
24 (Id. at 8.)
25 (Id. at 3.)
26 (Mem. Decision & Order Permitting Am. Compl. & Temp. Granting Mot. to Waive
Filing Fee, Doc. No. 9.)
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Barbour’s individual-capacity claims against Mr. Leavitt; his official-capacity claims
against Mr. Leavitt and Officer Pratt failed because he did not establish municipal
liability; his individual-capacity claims against Officer Pratt lacked supporting factual
allegations; and the Utah County Justice Court was not a suable entity under § 1983.27
The court permitted Mr. Barbour to amend his complaint.28
Mr. Barbour filed an amended complaint, omitting the prior claims against the
Utah County Justice Court but adding new defendants and claims.29 Specifically, he
adds the Utah County Sheriff’s Office and prosecutor Douglas E. Smith as
defendants.30 And he identifies six “causes of action” and five “claims for relief,” some
of which overlap.31 Mr. Barbour asserts claims under 42 U.S.C. § 1983 for violations of
the Fourth and Fourteenth Amendments, “retaliation and abuse of process,” malicious
prosecution, and municipal liability—all relating to the traffic stop and prosecution.32 He
also brings state-law claims for malicious prosecution and defamation related to those
events.33 Finally, he claims the Utah Driver License Division and unnamed “DLD
27 (Id. at 1, 6–12.)
28 (Id. at 12.)
29 (See Am. Compl. 1–2, 4–7, Doc. No. 10.)
30 (Id. at 1–2.)
31 (See id. at 4–7.)
32 (See id.)
33 (See id. at 5–6.) Mr. Barbour specifies that his malicious prosecution claim is brought
under both 42 U.S.C. § 1983 and Utah common law. (Id. at 6.)
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Officials” violated his Fourteenth Amendment due process rights and a Utah statute34 by
unlawfully suspending his license, although neither the DLD nor any DLD officials are
named as defendants.35 Mr. Barbour seeks monetary damages of $500,000, and a
declaration that the defendants and the DLD violated his rights.36
ANALYSIS
Mr. Barbour’s amended complaint does not state a plausible claim for relief
against any defendant under federal law. Where Mr. Barbour was previously permitted
to amend his complaint and failed to remedy the deficiencies identified in the prior order,
further opportunities to amend his federal claims would be futile and these claims
should be dismissed. In this circumstance, the court should decline to exercise
jurisdiction over the state-law claims, which should be dismissed without prejudice.
Accordingly, the undersigned recommends the district judge dismiss this action in its
entirety.
I. 	Identification of Defendants
As an initial matter, the amended complaint does not clearly identify who Mr.
Barbour is suing. The caption identifies four defendants: 1) Officer Stephen Pratt, “in
his individual capacity”; 2) the Utah County Sheriff’s Office; 3) David O. Leavitt, “in his
individual capacity, Utah County Sher[]iff’s Office Supervisor”; and 4) Douglas E. Smith,
34 Utah Code § 53-3-223(3).
35 (See Am. Compl. 3, 5–6, Doc. No. 10.)
36 (Id. at 7–8.)
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“in his individual capacity, Deputy Utah County Attorney.”37 But in the section of the
amended complaint listing the parties, Mr. Barbour identifies only three defendants:
1) Deputy Stephen Pratt, “in both his individual and official capacities”; 2) Douglas E.
Smith, a Deputy Utah County Prosecutor; and 3) the Utah County Sheriff’s Office.38 Mr.
Leavitt is not listed as a party in this section or mentioned anywhere in the amended
complaint, outside the caption. Additionally, later in the amended complaint, Mr.
Barbour indicates certain “causes of action” and “claims for relief” are asserted against
the Utah Driver License Division and “DLD Officials,”39 even though they are not
identified as defendants in the caption or listed as parties.
The court does not address Mr. Barbour’s purported claims against the DLD and
DLD officials, where neither the original complaint nor the amended complaint expressly
identifies them as defendants. Moreover, claims relating to the DLD’s suspension of Mr.
Barbour’s license are only tenuously connected to the claims in the original complaint,
which focused on the traffic stop and prosecution for a traffic violation. If Mr. Barbour
seeks to bring claims against the DLD or its officials, he must file a separate action
naming them as defendants. Such claims have not been properly asserted in this
37 (Id. at 1.)
38 (Id. at 2.)
39 (Id. at 5–6.)
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action. Additionally, where Mr. Barbour does not reassert claims against the Utah
County Justice Court in his amended complaint, these claims are deemed abandoned.40
The analysis below addresses Mr. Barbour’s claims against the four defendants
named as defendants in the amended complaint (in either the caption or the list of
parties): Deputy Smith, the Utah County Sheriff’s Department, Mr. Leavitt, and Mr.
Smith.
II. 	Federal Claims
Mr. Barbour asserts federal claims under 42 U.S.C. § 1983, which provides a
recovery mechanism for violations of federal rights in certain circumstances.41 “To
establish a cause of action under [§] 1983, a plaintiff must allege (1) deprivation of a
federal right by (2) a person acting under color of state law.”42 Mr. Barbour fails to state
a plausible claim for relief under § 1983 against any named defendant. As explained
below, Mr. Barbour does not plausibly allege Deputy Pratt violated his federal rights,
and he does not assert facts supporting municipal liability relating to the traffic stop.
Additionally, the Utah County Sheriff’s Office is not a suable entity. Next, the amended
40 See Tufaro v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 107 F.4th 1121, 1137
(10th Cir. 2024) (“An amended complaint supersedes a prior complaint and renders it of
no legal effect. Failing to replead a claim, when given leave to do so, ordinarily
constitutes abandonment when an amended complaint is filed.” (citation modified)).
41 See 42 U.S.C. § 1983; Watson v. Kansas City, 857 F.2d 690, 694 (10th Cir. 1988)
(Section 1983 “provides a recovery mechanism for deprivation of a federal right.”); see
also Margheim v. Buljko, 855 F.3d 1077, 1084 (10th Cir. 2017) (noting § 1983 is “a
method for vindicating federal rights elsewhere conferred” (citation omitted)).
42 Watson, 857 F.2d at 694.
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complaint contains no allegations relating to Mr. Leavitt. Finally, prosecutorial immunity
bars the claims against Mr. Smith.
A. Deputy Pratt
The amended complaint identifies Stephen Pratt as a Utah County Sheriff’s
Deputy and states he is sued in his individual and official capacities.43 According to Mr.
Barbour, “Deputy Pratt conducted an unlawful traffic stop without probable cause or
reasonable suspicion, knowingly issued a false citation based on fabricated or materially
misleading information, and initiated prosecution based on those false allegations.”44
“The stop was allegedly for speeding, but [Deputy] Pratt’s radar reading and report were
factually inaccurate.”45 Specifically, Deputy Pratt’s “claim that [he] was in a 35 mph
zone is demonstrably false from his own camera footage,” which showed Mr. Barbour
was “traveling between 45–50 mph in a posted 45 mph zone.”46 Mr. Barbor was “cited
for speeding under Utah Code § 41-6a-601 and given warnings for expired registration
(§ 41-1a-1303) and lack of insurance (§ 41-12a-303.2), which had merely been left
43 (Am. Compl. 2, Doc. No. 10.) This statement is found in the list of parties, but the
caption indicates Deputy Pratt is sued only in his individual capacity. (Id. at 1.) This
report and recommendation addresses both individual-capacity and official-capacity
claims against Deputy Pratt.
44 (Am. Compl. 1, Doc. No. 10.)
45 (Id. at 3.)
46 (Id.)
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outside the vehicle while [he] was cleaning it.”47 He was prosecuted but the prosecutor
dismissed the case after five months “without explanation.”48
Mr. Barbour brings claims against Deputy Pratt under § 1983 for: 1) unlawful
seizure under the Fourth Amendment;49 2) violation of due process under the
Fourteenth Amendment;50 3) “retaliation and abuse of process”;51 4) malicious
prosecution;52 and 5) municipal liability (official-capacity claims).53 He also asserts a
defamation claim under state law.54
As explained below, Mr. Barbour’s § 1983 individual-capacity claims against
Deputy Pratt fail because he has not alleged facts sufficient to show Deputy Pratt
violated his federal rights. The municipal liability (official capacity) claims fail for the
same reason—and because Mr. Barbour fails to allege facts showing any violation
resulted from a municipal policy or practice.
47 (Id.)
48 (Id.)
49 (Id. at 4, 6 (Count I of the “causes of action” and Count I of the “claims for relief”).)
50 (Id. at 6 (Count II of the “claims for relief”).)
51 (Id. (Count III of the “claims for relief”).)
52 (Id. (Count IV of the “claims for relief”).)
53 (Id. at 5, 7 (Count IV of the “causes of action” and Count V of the “claims for relief”).)
54 (Id. at 5 (Count V of the “causes of action”).)
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1. 	Individual-Capacity Claims
a. 	Fourth Amendment
Mr. Barbour claims Deputy Pratt violated his Fourth Amendment rights “by
initiating a stop based on inaccurate, falsified, or fabricated speed zone data, without
reasonable suspicion or probable cause.”55 However, Mr. Barbour fails to plausibly
allege a violation of his Fourth Amendment rights.
The Fourth Amendment guarantees a person’s right to be free from
“unreasonable searches and seizures.”56 “Because a traffic stop is a seizure for
constitutional purposes, it is subject to the Fourth Amendment’s reasonableness
standard.”57 A traffic stop “must be justified by reasonable articulable suspicion that a
traffic violation has occurred.”58 Reasonable suspicion is a “low bar”; it requires only
“some minimal level of objective justification for making the stop.”59 And probable
cause is not required.60
The facts alleged in the amended complaint, even construed in the light most
favorable to Mr. Barbour, do not show Deputy Pratt lacked reasonable suspicion for the
55 (Id. at 6 (Count I of the “claims for relief”); see also id. at 4 (Count I of the “causes of
action,” alleging Deputy Pratt lacked reasonable suspicion for the stop).)
56 U.S. Const. amend. IV.
57 United States v. Frazier, 30 F.4th 1165, 1172–73 (10th Cir. 2022).
58 United States v. Ulibarri, 149 F.4th 1193, 1198 (10th Cir. 2025) (internal quotation
marks omitted).
59 Id. (internal quotation marks omitted).
60 Frazier, 30 F.4th at 1174.
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stop. Mr. Barbour alleges Deputy Pratt pulled him over for speeding.61 According to
Mr. Barbour, Deputy Pratt “false[ly]” or “inaccurate[ly]” reported the speed limit was 35
miles per hour, when the speed limit was actually 45 miles per hour.62 But Mr. Barbour
admits to “traveling between 45–50 mph in a posted 45 mph zone.”63 In other words, he
admits he was, in fact, speeding, even based on the higher speed limit. Mr. Barbour
also claims Deputy Pratt’s radar reading was inaccurate, but he does not explain what
the reading was or how it was inaccurate.64 (According to the original complaint,
Deputy Pratt claimed Mr. Barbour was “doing 50 mph,”65 which is consistent with Mr.
Barbour’s own assertion regarding his speed.) Where Mr. Barbour admits he was
speeding, he fails to allege facts showing Deputy Pratt lacked reasonable suspicion to
pull him over for speeding—regardless of whether the speed limit was higher than
Deputy Pratt claimed. Accordingly, Mr. Barbour fails to state a claim for unreasonable
seizure under the Fourth Amendment.
61 (Am. Compl. 3, Doc. No. 10.)
62 (Id. at 3, 6.)
63 (Id. at 3.)
64 (Id.)
65 (Compl., Doc. No. 1 at 4.)
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b. 	Fourteenth Amendment Due Process
Mr. Barbour asserts three Fourteenth Amendment due process claims,66 and he
identifies one of these as a claim against Deputy Pratt (and the DLD).67 But none of the
factual allegations supporting these claims relate to Deputy Pratt. Instead, the
allegations relate solely to actions by prosecutors and the DLD.68 Where Mr. Barbour
fails to identify what conduct by Deputy Pratt allegedly violated his Fourteenth
Amendment rights, he fails to state a Fourteenth Amendment due process claim against
Deputy Pratt.
c. 	Retaliation and Abuse of Process
Mr. Barbour asserts a claim under 42 U.S.C. § 1983 against Deputy Pratt and
“Prosecutor Smith Defendants” for “retaliation and abuse of process.”69 Some courts
have recognized § 1983 as a vehicle for abuse of process claims, where a constitutional
66 (See Am. Compl. 4–6, Doc. No. 10 (Count III and Count VI of the “causes of action”
and Count II of the “claims for relief”).)
67 (Id. at 6 (Count II of the “claims for relief”).)
68 Specifically, under Count III of the “causes of action,” Mr. Barbour alleges he was
“deprived of his right to a fair trial and subjected to legal jeopardy without a factual
basis,” and he claims “[f]ailing to recognize the insufficiency of evidence before offering
plea deals” undermined his rights. (Id. at 4.) Under Count VI of the “causes of action”
and Count II of the “claims for relief,” Mr. Barbour alleges the DLD violated his due
process rights by suspending his license without notice, a hearing, or valid adjudication.
(Id. at 5–6.)
69 (Am. Compl. 6, Doc. No. 10 (Count III of the “claims for relief”).)
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violation is alleged.70 And claims of retaliation for exercise of constitutional rights are
cognizable under § 1983 in some contexts.71 But again, the factual allegations
supporting the “retaliation and abuse of process” claim relate solely to the prosecutors’
actions; there are no allegations of any conduct by Deputy Pratt relating to retaliation or
abuse of process.72 Accordingly, even assuming such claims are cognizable, Mr.
Barbour fails to state a § 1983 claim for retaliation or abuse of process against Deputy
Pratt.
d. 	Malicious Prosecution
Mr. Barbour brings a malicious prosecution claim against Deputy Pratt under
§ 1983 and Utah common law.73 He asserts there was “no probable cause for the
70 See, e.g., McRoberts v. Rosas, No. 21-2470, 2022 U.S. Dist. LEXIS 175246, at *24
(D. Kan. Sept. 27, 2022) (unpublished) (“To allege a plausible § 1983 claim for abuse
[of] process, a plaintiff must plead the common law elements of abuse of process as
well as a constitutional violation.” (internal quotation marks omitted)); Jackson v. Kan.
Cnty. Ass’n Multiline Pool, No. 03-4181, 2005 U.S. Dist. LEXIS 5434, at *14 (D. Kan.
Jan. 19, 2005) (unpublished) (same) (citing Taylor v. Meacham, 82 F.3d 1556, 1561
(10th Cir. 1996) (addressing a malicious prosecution claim)). But see Lowrey v. Collela,
No. 1:24-cv-00225, 2025 U.S. Dist. LEXIS 90212, at *10 (D.N.M. May 9, 2025)
(unpublished) (finding § 1983 does not create a cause of action for civil abuse of
process).
71 See, e.g., DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990) (finding a claim of
retaliatory arrest and prosecution for exercise of Sixth Amendment and First
Amendment rights actionable under § 1983).
72 (See Am. Compl. 6, Doc. No. 10 (claiming the prosecutor’s “threat to prosecute
Plaintiff on charges he was not formally cited for constitutes abuse of process and
retaliation for exercising his right to plead not guilty,” and “[t]hese threats chilled
Plaintiff’s rights and coerced self-defensive behavior under fear of punishment”).)
73 (Id. (Count IV of the “claims for relief”).)
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citation,” and “Defendants used fabricated evidence and threats to initiate and maintain
prosecution.”74
A malicious prosecution claim brought under 1983 includes five elements:
“(1) the defendant caused the plaintiff’s continued confinement or prosecution; (2) the
original action terminated in favor of the plaintiff; (3) no probable cause supported the
arrest, confinement, or prosecution; (4) the defendant acted maliciously; and (5) the
plaintiff sustained damages.”75
Mr. Barbour fails to allege facts sufficient to support the third and fourth elements
of a malicious prosecution claim against Deputy Pratt. He does not allege Deputy Pratt
acted maliciously (the fourth element). And although he asserts Deputy Pratt lacked
probable cause for the citation (the third element), the facts alleged in the complaint do
not support this conclusory assertion. Mr. Barbour was cited for speeding in violation of
Utah Code § 41-6a-601.76 That statute provides a person “may not operate a vehicle at
a speed greater than is reasonable and prudent under the existing conditions.”77 And it
states “any speed in excess of” posted speed limits is “prima facie evidence that the
speed is not reasonable or prudent and that it is unlawful.”78 As discussed above, Mr.
74 (Id.)
75 Shrum v. Cooke, 60 F.4th 1304, 1310 (10th Cir. 2023) (emphasis added).
76 (See Am. Compl. 3, Doc. No. 10.)
77 Utah Code Ann. § 41-6a-601(1).
78 Id. § 41-6a-601(3) (emphasis added); see also United States v. Pinder, 641 F. Supp.
3d 1206, 1209 (D. Utah 2022) (“Under Utah Code § 41-6a-601, traveling in excess of
the posted speed limit constitutes a traffic violation.”).
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Barbour admits he was traveling in excess of the posted limit.79 Where this constitutes
prima facie evidence that his speed was unlawful under Utah Code § 41-6a-601, Mr.
Barbour has not alleged facts showing a lack of probable cause for the citation or
prosecution. He fails to state a claim for malicious prosecution against Deputy Pratt.
In sum, Mr. Barbour does not allege facts showing Deputy Pratt violated his
federal rights, under any of the asserted claims. Accordingly, Mr. Barbour fails to state
any plausible claim for relief under § 1983 against Deputy Pratt in his individual
capacity.
2. 	Official-Capacity Claims (Municipal Liability)
To the extent Mr. Barbour brings § 1983 claims against Deputy Pratt in his official
capacity, such claims are properly construed as claims against Utah County.80 These
claims fail where Mr. Barbour does not plausibly allege Deputy Pratt violated his federal
rights, as described above. The official-capacity claims also fail because Mr. Barbour
does not allege facts supporting municipal liability.
“[A] local government may not be sued under § 1983 for an injury inflicted solely
by its employees or agents.”81 “Instead, ‘the government as an entity’ may only be held
79 (See Am. Compl. 3, Doc. No. 10 (alleging Mr. Barbour was “traveling between 45–50
mph in a posted 45 mph zone”).)
80 See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978) (“[O]fficial-capacity
suits generally represent only another way of pleading an action against an entity of
which an officer is an agent.”).
81 Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1283 (10th Cir. 2019) (quoting
Monell, 436 U.S. at 694).
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liable ‘when execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury.’”82 “There are three requirements for municipal liability under
42 U.S.C. § 1983: (1) the existence of an official policy or custom; (2) a direct causal
link between the policy or custom and the constitutional injury; and (3) that the
defendant established the policy with deliberate indifference to an almost inevitable
constitutional injury.”83 The “municipal policy or custom” may take one of the following
forms:
(1) 	a 	formal 	regulation 	or 	policy 	statement; 	(2) 	an 	informal 	custom
amounting to a widespread practice that, although not authorized by written
law or express municipal policy, is so permanent and well settled as to
constitute a custom or usage with the force of law; (3) the decisions of
employees with final policymaking authority; (4) the ratification by such final
policymakers of the decisions—and the basis for them—of subordinates to
whom authority was delegated subject to these policymakers’ review and
approval; or (5) the failure to adequately train or supervise employees, so
long as that failure results from deliberate indifference to the injuries that
may be caused.84
Mr. Barbour asserts the Utah County Sheriff’s Office “failed to train, supervise,
and discipline Deputy Pratt despite available evidence that he misrepresented material
82 Id. (quoting Monell, 436 U.S. at 694).
83 Soto v. Bd. of Cnty. Comm’rs of Caddo Cnty., 748 F. App’x 790, 793–94 (10th Cir.
2018) (unpublished) (citing Schneider v. City of Grand Junction Police Dep’t, 717 F.3d
760, 769–70 (10th Cir. 2013)).
84 Waller, 932 F.3d at 1283 (citation omitted).
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facts.”85 He alleges he contacted the Utah County Sheriff’s Office to file a complaint,
but “a supervisor declined to take action and defended Deputy Pratt.”86 And he claims a
“policy or custom of inaction contributed to the violation of [his] rights.”87
These allegations are insufficient to support a plausible claim for municipal
liability. Mr. Barbour’s allegation that Deputy Pratt was not disciplined based on this
incident does not support municipal liability because “a subsequent failure to discipline
cannot be the cause of a prior injury.”88 Mr. Barbour does not allege any particular
deficiencies in training or supervision, nor does he allege facts showing a failure to train
or supervise resulted from deliberate indifference.89 And he does not allege facts
sufficient to infer the existence of a municipal policy or practice related to the alleged
constitutional violations.90
85 (Am. Compl. 7, Doc. No. 10.) In another part of the complaint, Mr. Barbour alleges
the Utah County Sheriff’s Office “failed to adequately train and supervise Officer
Banda.” (Id. at 5.) This appears to be a typographical error, as the amended complaint
contains no other mention of an Officer Banda.
86 (Am. Compl. 3, Doc. No. 10.)
87 (Id. at 7.)
88 Waller, 932 F.3d at 1290 (citing Cordova v. Aragon, 569 F.3d 1183, 1194 (10th Cir.
2009)).
89 See id. at 1285 (noting a “pattern of similar constitutional violations by untrained
employees is ordinarily necessary” to plausibly allege deliberate indifference under a
failure-to-train theory (internal quotation marks omitted)); id. at 1289 (finding no
plausible claim for municipal liability based on failure to supervise, where the plaintiff did
not allege “any facts regarding any supposed supervisory deficiencies”).
90 See Griego v. City of Albuquerque, 100 F. Supp. 3d 1192, 1213 (D.N.M. 2015) (A
plaintiff “cannot simply allege there is a policy in place, but, rather, must plead facts that,
if true, would give rise to a plausible inference that such a policy exists.”).
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Accordingly, Mr. Barbour fails to state any plausible claim for relief against
Deputy Pratt in his official capacity—properly construed as municipal liability claims
against Utah County.
B. Utah County Sheriff’s Office
Mr. Barbour names the Utah County Sheriff’s Office as the defendant in his
municipal liability claims under § 1983.91 But a local sheriff’s office is “not an
independent legal entity that can sue or be sued under Section 1983.”92 Even if
construed as claims against Utah County,93 the claims fail because Mr. Barbour does
not plausibly allege facts supporting municipal liability or an underlying violation of
federal rights, as explained above.
91 (See Am. Compl. 5, 7, Doc. No. 10 (Count IV of the “causes of action” and Count V of
the “claims for relief”).)
92 Nugent v. Davis Cnty. Sheriff’s Off., No. 1:21-cv-00086, 2022 U.S. Dist. LEXIS
101003, at *2 (D. Utah June 6, 2022) (unpublished) (finding Davis County Sheriff’s
Office was not a suable entity); see also Ketchum v. Albuquerque Police Dep’t, No.
91-2200, 1992 U.S. App. LEXIS 5134, at *6 (10th Cir. Mar. 12, 1992) (unpublished)
(“[P]olice departments . . . are not suable entities under § 1983, because they lack legal
identities apart from the municipality.” (citing Martinez v. Winner, 771 F.2d 424, 443
(10th Cir. 1985))).
93 Some courts have construed pro se complaints against a sheriff’s department as
asserting a claim against the county. See, e.g., Faircloth v. Wilcox, No. 2:24-cv-00807,
2024 U.S. Dist. LEXIS 213388, at *1 n.2 (D. Utah Nov. 21, 2024) (unpublished) (“[T]he
sheriff’s office is not an entity that can sue and be sued. Thus, an official-capacity claim
is construed to be against the main governmental entity . . . .” (citations omitted)); Tyler
v. Utah, No. 2:07-cv-00004, 2008 U.S. Dist. LEXIS 103769, at *8 (D. Utah Dec. 23,
2008) (unpublished) (“[T]he Court construes Plaintiff’s claim against the Sheriff’s Office
as a claim against Salt Lake County itself.”).
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C. Mr. Leavitt
As noted, while Mr. Barbour identifies Mr. Leavitt as a defendant in the caption,
the amended complaint contains no other mention of Mr. Leavitt. Because Mr. Barbour
does not allege any specific conduct by Mr. Leavitt or identify how Mr. Leavitt harmed
him, he fails to state a claim against Mr. Leavitt.94
The original complaint identified Mr. Leavitt as a prosecutor,95 and the amended
complaint makes several generic references to a “prosecutor” or “prosecutors.”96 It is
not apparent these refer to Mr. Leavitt, where the caption of the amended complaint
identifies him as a “Utah County Sher[]iff’s Office Supervisor” rather than a prosecutor.97
But even if references to “prosecutors” in the amended complaint could be construed to
include Mr. Leavitt, Mr. Leavitt is entitled to prosecutorial immunity for the same reasons
as Mr. Smith, as noted below.
D. Mr. Smith.
The amended complaint identifies Mr. Smith as a Deputy Utah County
Prosecutor and indicates he is sued in his individual capacity.98 Mr. Barbour alleges
94 See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007)
(“[T]o state a claim in federal court, a complaint must explain what each defendant did
to him or her; when the defendant did it; how the defendant’s action harmed him or her;
and, what specific legal right the plaintiff believes the defendant violated.”).
95 (Compl., Doc. No. 1 at 7–8.)
96 (See Am. Compl. 3, Doc. No. 10.)
97 (Id. at 1.)
98 (Id. at 1–2.)
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that after he pleaded not guilty to the speeding citation, prosecutors “threatened to
pursue full prosecution on all charges, including those where only [a] warning had been
issued” (for expired registration and lack of insurance).99 The case “experienced
multiple continuances,” and Mr. Barbour spent five months preparing for trial.100 During
this time, Mr. Barbour missed a hearing and a bench warrant was issued, and the DLD
suspended his license for failure to comply with a traffic ticket.101 One week before trial,
the prosecutor “dismissed the case without explanation.”102 (Elsewhere in the
complaint, Mr. Barbour alleges the case was “dismissed on evidentiary grounds.”)103
Mr. Barbour brings claims against Mr. Smith under § 1983 for malicious
prosecution,104 violation of his Fourteenth Amendment due process rights,105 and
“retaliation and abuse of process.”106 He asserts Mr. Smith “proceeded without
probable cause and offered plea deals before reviewing evidence”; “fail[ed] to recognize
the insufficiency of evidence before offering plea deals”; and subjected him to legal
99 (Id. at 3.)
100 (Id.)
101 (Id.) As noted, Mr. Barbour asserts this suspension was unlawful, but this claim is
not addressed because DLD is not named as a defendant.
102 (Id.)
103 (Id. at 4.)
104 (Id. (Count II of the “causes of action”).)
105 (Id. (Count III of the “causes of action”).)
106 (Id. at 6 (Count III of the “claims for relief”).)
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jeopardy without a factual basis.107 He also claims Mr. Smith’s “threat to prosecute
[him] on charges he was not formally cited for constitutes abuse of process and
retaliation for exercising his right to plead not guilty.”108
Mr. Barbour’s § 1983 claims against Mr. Smith are barred by the doctrine of
prosecutorial immunity. “State prosecutors are entitled to absolute immunity against
suits brought pursuant to § 1983 for activities intimately associated with the judicial
process, such as initiating and pursuing criminal prosecutions.”109 This protects
prosecutors’ “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.”110 Prosecutors enjoy such
immunity “even if it leaves ‘the genuinely wronged defendant without civil redress
against a prosecutor whose malicious or dishonest action deprives him of liberty.’”111
Mr. Barbour’s claims against Mr. Smith are all based on activities intimately
associated with the judicial process, including his decision to prosecute, his assessment
107 (Id. at 4.)
108 (Id. at 6.)
109 Carbajal v. McCann, 808 F. App’x 620, 631 (10th Cir. 2020) (unpublished) (quoting
Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994)); see also Blair v. Osborne, 777
F. App’x 926, 929 (10th Cir. 2019) (unpublished) (“Prosecutorial immunity bars claims
for damages against a prosecutor sued in her individual capacity.”).
110 Nielander v. Bd. of Cnty. Comm’rs of Cnty. of Republic, Kan., 582 F.3d 1155, 1164
(10th Cir. 2009).
111 Carbajal, 808 F. App’x at 631 (quoting Imbler v. Pachtman, 424 U.S. 409, 427
(1976)).
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of probable cause, the plea negotiations, and the dismissal of charges. Prosecutorial
immunity protects all these activities.112 Accordingly, prosecutorial immunity bars Mr.
Barbour’s § 1983 claims against Mr. Smith.
* * *
In sum, Mr. Barbour fails to state a plausible claim for relief under 42 U.S.C.
§ 1983 against any of the defendants. “Dismissal of a pro se complaint for failure to
state a claim is proper only where it is obvious that the plaintiff cannot prevail on the
facts he has alleged and it would be futile to give him an opportunity to amend.”113 The
court previously identified many of the same deficiencies in Mr. Barbour’s original
complaint, including prosecutorial immunity and the insufficient allegations regarding
Deputy Pratt—and gave Mr. Barbour an opportunity to amend. But Mr. Barbour’s
amended complaint still fails to state a claim. Under these circumstances, further
opportunities to amend would be futile. Accordingly, the undersigned recommends the
district judge dismiss Mr. Barbour’s federal claims under § 1983 with prejudice, pursuant
to 28 U.S.C. § 1915(e)(2)(B).
112 See Stein v. Disciplinary Bd., 520 F.3d 1183, 1194 (10th Cir. 2008) (“Deciding
whether to bring charges—which necessarily includes an evaluation of whether there
has been sufficient investigation to support charges—is a quintessential prosecutorial
function protected by absolute immunity.”); Arnold v. McClain, 926 F.2d 963, 967 (10th
Cir. 1991) (noting absolute prosecutorial immunity protects plea negotiations); Chacon
v. Watson, No. CIV 03-438, 2004 U.S. Dist. LEXIS 28252, at *21 (D.N.M. May 6, 2004)
(unpublished) (“A prosecutor’s decision regarding dismissal of charges is entitled to
absolute prosecutorial immunity because it is intimately associated with the judicial
phase of the criminal process.” (internal quotation marks omitted)).
113 Kay, 500 F.3d at 1217 (citation omitted).
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III. 	State Law Claims
Where Mr. Barbour fails to state a claim under federal law, the court should
decline to exercise jurisdiction over his state law claims.114 Therefore, the undersigned
recommends the district judge dismiss Mr. Barbour’s state law claims without prejudice.
RECOMMENDATION
Because Mr. Barbour’s amended complaint fails to state a plausible claim for
relief under federal law, and further opportunities to amend these claims would be futile,
the undersigned recommends the district judge (1) dismiss Mr. Barbour’s federal claims
under 42 U.S.C. § 1983 with prejudice; (2) decline to exercise jurisdiction over Mr.
Barbour’s state law claims and dismiss them without prejudice; and (3) dismiss this
action. Mr. Barbour has the right to object to this Report and Recommendation within
fourteen days, and failure to object may be considered a waiver of objections.115
DATED this 9th day of January, 2026.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
114 See Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir.
1998) (“When all federal claims have been dismissed, the court may, and usually
should, decline to exercise jurisdiction over any remaining state claims.”).
115 See 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b).
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