Treff v. Turner, et al

----ooOoo---- Robert Shawn Treff,

Plaintiff and Appellant,

v.

Jory Turner, Vaneta Buffington, Allen Julien, and John Does 1-10,

Defendants and Appellees. )
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) MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981341-CA

F I L E D
January 28, 1999

         1999 UT App 023

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Fifth District, Cedar City Department
The Honorable J. Philip Eves

Attorneys:
Robert Shawn Treff, Appellant Pro Se
Jan Graham and Brent A. Burnett, Salt Lake City, for Appellees

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Before Judges Greenwood, Davis, and Jackson.

PER CURIAM:

Appellant appeals from an order of the district court dismissing his complaint and striking his response to appellees' motion to dismiss. We affirm. 1

Appellant raises the following issues on appeal: (1) whether the district court erred in ruling that appellant failed to state a claim for relief; (2) whether the district court erred in ruling that the Governmental Immunity Act is constitutional 2; and(3) whether the district court erred in striking appellant's response memorandum as untimely.

In reviewing an order of the district court dismissing a complaint for failure to state a claim for relief pursuant to Utah R. Civ. P. 12(b)(6), this court is obliged to construe the complaint in the light most favorable to the plaintiff and indulge all reasonable inferences in its favor. St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991); Heiner v. S.J. Groves & Sons Co., 790 P.2d 107, 109 (Utah Ct. App. 1990). We will affirm only where it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of its claim. Heiner, 790 P.2d at 109.

The district court's decision to dismiss the complaint for failure to state a claim for relief was based upon three premises: (1) appellant's failure to comply with the notice requirements of the Governmental Immunity Act; (2) appellant's failure to plead fraud or malice against the individual appellees, as required by Utah Code Ann. § 63-30-4; and (3) appellant's failure to allege any set of facts that would support a conclusion that his constitutional rights had been violated. The district court's order of dismissal is proper upon any one of the three grounds.

The Utah Governmental Immunity Act provides an exclusive procedure for suing governmental entities and their employees for injuries resulting from a governmental function. Under the Act, a plaintiff must give timely notice of his intent to file a claim against a governmental entity or its employees before maintaining the cause of action. Madsen v. Borthick, 658 P.2d 627, 630 (Utah 1983). Moreover, under the Act, a state employee cannot be sued individually for injuries resulting from the exercise of a governmental function unless he acts fraudulently or maliciously. Utah Code Ann. § 63-30-4(4) (1997); Ross v. Schackel, 920 P.2d 1159, 1161-62 (Utah 1996). It is undisputed that appellant failed to comply with the notice requirements of the Act and failed to allege that appellees acted with fraud or malice. Thus, appellant is precluded from stating any claim for relief against appellees.

In addition, appellant has clearly failed to allege any set of facts that would support a conclusion that his constitutional rights have been violated. He cites to no case law or other precedent that establishes a duty on the part of the appellees to ensure that his prison file is error free. He fails to allege any facts that indicate his due process rights in hearings before the Board of Pardons as expressed in Labrum v. Board of Pardons, 870 P.2d 902 (Utah 1993), have been violated. He fails to identify any constitutionally protected right to eat in the commissary or to compel a prison official not to laugh at anti-Semitic jokes told by other inmates. Because appellant fails to state factual allegations showing that his constitutional rights were violated in relation to his treatment in prison, he has failed to state a claim for relief.

Appellant asserts that the district court erred in striking his memorandum in response to appellees' motion to dismiss. He argues that his response was filed within the allotted time, alleging that he placed the response in the prison mail two days before the filing deadline. He invokes application of the federal "mailbox rule." Appellees correctly point out that this court has rejected the federal mailbox rule, which states that papers filed by an inmate are deemed filed when placed in the prison mail repository. See State v. Parker, 936 P.2d 1118 (Utah Ct. App. 1997). In Utah, papers filed by a party are deemed filed when they are received and filed by the clerk of the court or the judge. Appellant's response was not received and filed by the court before the deadline imposed by the court, despite the fact that he was given an extremely liberal 45 extra days to prepare his response to a motion that ordinarily requires a response within 10 days. It was well within the district court's discretion to strike appellant's untimely response memorandum, and the court did not abuse its discretion in doing so.

Accordingly, we affirm the trial court.

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Pamela T. Greenwood,
Associate Presiding Judge

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James Z. Davis, Judge

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Norman H. Jackson, Judge

1. This case is again before the court pursuant to an order reassigning the case for consideration by a panel that does not include Judge Judith M. Billings, based upon her voluntary recusal.

2. Appellant did not challenge the constitutionality of the Governmental Immunity Act before the district court. It is well-settled that this court will not entertain an issue raised for the first time on appeal, even a constitutional one, unless there are exceptional circumstances or plain error can be shown. State v. Webb, 790 P.2d 65, 77-78 (Utah Ct. App. 1990). Appellant makes neither showing. Accordingly, we do not address the constitutional challenge.