Ashdown v. Hayes

Ashdown v. Hayes

IN THE UTAH COURT OF APPEALS

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Bruce William Ashdown,

Plaintiff and Appellant,

v.

Billie Hayes, State of Utah Office of Vocational Rehabilitation, State of Utah, and John Does I-X,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020839-CA
 

F I L E D
(February 12, 2004)
 

2004 UT App 22

 

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Third District, Salt Lake Department

The Honorable Sandra Peuler

Attorneys: Nathan N. Jardine, Salt Lake City, for Appellant

Mark L. Shurtleff, Brent A. Burnett, and Steven A. Combe, Salt Lake City, for Appellee

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Before Judges Bench, Orme, and Thorne.

ORME, Judge:

We have determined that "the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). Issues that were not raised below are not preserved for appeal, see State v. Jensen, 2003 UT App 273,¶9 n.2, 76 P.3d 188, and issues that are "not presented in the opening brief are considered waived." Brown v. Glover, 2000 UT 89,¶23, 16 P.3d 540. The issues preserved for appeal and properly briefed are readily resolved under applicable law.

The trial court's decision to grant the motion to dismiss presents a question of law that we review for correctness. See Mackey v. Cannon, 2000 UT App 36,¶9, 996 P.2d 1081. 42 U.S.C. § 1983 "forbids any person acting under color of state law from depriving any citizen of their federal rights." Patterson v. American Fork City, 2003 UT 7,¶22, 67 P.3d 466. See 42 U.S.C.A. § 1983 (2003). "Although the statute provides the citizen with an effective remedy against those abuses of state power that violate federal law, it does not provide a remedy for abuses that do not violate federal law." Collins v. City of Harker Heights, 503 U.S. 115, 119, 112 S. Ct. 1061, 1065 (1992). "Section 1983

. . . merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807, 811 (1994) (citation omitted).

Ashdown's allegations referencing deprivation of liberty and the Fourteenth Amendment presumably contemplate a due process claim,(1) but "a substantive due process violation requires more than an ordinary tort." Martinez v. Uphoff, 265 F.3d 1130, 1133-34 (10th Cir. 2001). To state a claim, Ashdown "must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking." Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995). The trial court correctly determined that Ashdown's "allegations are insufficient to reach constitutional protection." Hayes's inappropriate sexual innuendos and minimal touching were not sufficiently outrageous to rise above an ordinary tort claim. Under the circumstances of this case, where there was nothing preventing him from avoiding her unwanted sexual advances, Ashdown could, at best, bring intentional tort claims under state law. However, because Ashdown did not challenge the dismissal of his tort causes of action in his brief, we have no occasion to address them or the question of immunity.

Affirmed.

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Gregory K. Orme, Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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William A. Thorne Jr., Judge

1. His equal protection claim, while of questionable merit in any event, was not raised below and, as indicated above, cannot be raised for the first time on appeal.