Raiser v. Brigham Young Univ.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 10, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

AARON RAISER, also known as T.G.,

Plaintiff-Appellant,

v. No. 06-4066
(D.C. No. 2:04-CV-896-TC)
TH E CHURC H OF JESU S CH RIST (D. Utah)
OF LA TTER-DAY SAINTS;
B RIG H A M Y O U N G U NIV ER SITY,

Defendants-Appellees.

OR D ER AND JUDGM ENT *

Before KELLY, L UC ER O, and HA RTZ, Circuit Judges.

Aaron Raiser sued Brigham Y oung University (BYU) and the Church of

Jesus Christ of Latter-Day Saints (the Church) after BYU stated in other litigation

that he had a “known . . . psychiatric history.” R., Vol. 1, Doc. 9 (Ex. A at ii).

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
The district court granted BYU and the Church summary judgment. W e exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.

B ACKGROUND

According to his father, M r. Raiser has been diagnosed as suffering from

bipolar schizophrenia. H is parents committed him to the Central Ohio Psychiatric

Hospital for treatment in February 1991. But after several months he escaped and

traveled to Provo, Utah.

In August 1991 the BYU police department received the following

information regarding M r. Raiser:

W alked away from Psychiatric Hospital in Columbus, OH.
BYU grad and [returning missionary]; may find his way to [Salt Lake
City] or Provo. Not dangerous, but peculiar behavior. Call parents
Ed or Loraine, or sister Ginny [phone number omitted] if seen. Call
collect; leave message.

Supp. R., Vol. 2, Doc. 152, Ex. A (Police Record at 4). M r. Raiser’s father

testified that he or another family member probably supplied this information.

In January 1992 M r. Raiser met with BYU General Counsel and Church

Stake President, Eugene Bramhall, 1 “in order to obtain approval to attend BYU as

a graduate student,” id., Doc. 153, Ex. C (Aaron Raiser Aff. at 1). Three months

1
In the Church, a stake president presides over a group of wards. Scott v.
Hammock, 870 P.2d 947, 949 n.1 (Utah 1994). Stake presidents “receive no
formal educational training as clergymen, are not compensated by the Church, and
perform their ecclesiastical duties in addition to their vocations.” Id.

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later Bramhall sent BYU’s admissions committee a conditional endorsement for

M r. Raiser’s admission:

Aaron meets all of the usual admission standards. However,
by personal observation, confirmed by his bishop [D an Towsey] &
family, it is apparent that he has an emotional or psychological
deficit. I am also told, but have not personally verified that he has
been hospitalized for schizophrenia & that he has something called a
“sensory deficit” as well. I believe that he presently takes no
medication for his condition. I believe that Aaron can benefit from
intensive counseling, & that the possibility of his receiving important
counseling is highest if he is admitted to the university.

Id., Vol. 2, Doc. 153, Ex. A. M r. Raiser “was given approval to attend BYU.”

Id., Ex. C (Aaron Raiser Aff. at 1).

In July 1996, however, M r. Raiser was “banned from campus,” id. at 2, and

was therefore unable to “attend church and church related activities on Sundays,”

id. at 3, because his student ward met on campus. He appealed to the chairman of

BYU’s access committee, Dave Thomas, who also worked in BYU’s Office of

General Counsel. After purportedly discussing the matter with Bramhall, as

urged by M r. Raiser, Thomas gave M r. Raiser permission to attend church on

campus.

In 2002 M r. Raiser sued BYU pro se in federal district court, alleging that

he had been abused and mistreated by campus police. See Raiser v. Brigham

Young Univ., No. 2:02-cv-975 (D. Utah) (Am. Compl. at 3) (Raiser I). In a

motion to dismiss the complaint, the assistant general counsel for BYU, Erik

Davis, wrote the following passage, which spawned the present litigation:

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 M r. Raiser has an extensive history of encounters with the
Police . . . . M ost of the . . . encounters w ith M r. Raiser have been in
response to calls from concerned students or faculty members who
have felt threatened or uneasy because of M r. Raiser’s presence on
campus at unusual times and places and/or his bizarre or suspicious
behavior and appearance. . . . These incidents and the circumstances
surrounding them have justifiably caused BYU Police officers to
treat M r. Raiser with a certain amount of caution, but their actions
towards M r. Raiser have in all ways been reasonable and justified in
light of M r. Raiser’s suspicious and bizarre behavior and his known
. . . psychiatric history.

R., Vol. 1, Doc. 9, Ex. A (M em. in Support of M ot. to Dismiss at i-ii) (emphasis

added).

In September 2004 M r. Raiser, again acting pro se, filed this suit against

BYU and the Church in federal district court in Utah, claiming that they had

maliciously and falsely asserted that he had a “known . . . psychiatric history.”

R., Vol. 1, Doc. 1 (Compl. at 2); id., Doc. 65 (Am. Compl. at 3). M r. Raiser

alleged (1) that Bishop Towsey had told Bramhall that “Plaintiff had been

institutionalized in another state and declared incompetent.” R., Vol. 1, Doc. 1

(Compl. at 2) (internal quotation marks omitted); id., Doc. 65 (Am. Compl. at 2)

(internal quotation marks omitted); (2) that “[t]his information, that Plaintiff had

a psychiatric history was in turn communicated to others of the general counsel

staff,” and then published in support of the motion to dismiss. R., Vol. 1, Doc. 1

(Compl. at 2); id., Doc. 65 (Am. Compl. at 3); (3) that “information that Plaintiff

had been institutionalized could have come from the [BYU] police department,”

R., Vol. 1, Doc. 1 (Compl. at 3); id., Doc. 65 (Am. Compl. at 3); and (4) that

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Bramhall “communicated the information that Plaintiff was institutionalized to

the police,” R., Vol. 1, Doc. 1 (Compl. at 4); id., Doc. 65 (Am. Compl. at 4). M r.

Raiser pleaded claims for breach of privacy, defamation, “False Light,”

“Violation of Separation of Church State,” and “Violation of American’s w ith

[D ]isabilities Act.” R., Vol. 1, Doc. 1 (Compl. at 5-8).

In December 2004 the Church moved for summary judgment. Later that

month M r. Raiser moved to amend his complaint to add a claim for breach of

confidence. In April 2005 the district court denied the Church’s summary-

judgment motion without prejudice, extended the deadline for discovery to July

19, 2005, and authorized M r. Raiser to depose Davis, Bramhall, and Tow sey. The

district court also ordered that the motion to amend be held in abeyance pending

the resolution of discovery and summary-judgment issues.

In June 2005 M r. R aiser filed another motion to amend the complaint. H e

stated that “[t]he new proposed Complaint . . . is essentially the same as the first

except that it removes two causes of action [defamation and false light] and

simplifies the fact allegations.” R., Vol. 1, Doc. 65 (M ot. at 1). The district court

granted the motion, noting that “[t]he amended complaint is essentially a

streamlined replica of the old complaint.” Supp. R., Vol. 3, Doc. 210 (Order at

10).

On July 26, 2005, after the discovery deadline had passed without M r.

Raiser’s having conducted any depositions, the Church renewed its summary-

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judgment motion. BYU also moved for summary judgment. In February 2006 the

district court granted the motions, ruling that (1) M r. Raiser’s privacy claim

against the Church failed because there was no evidence that the Church disclosed

any private information to the public; (2) M r. Raiser’s privacy claim against BYU

was barred by the judicial-proceeding privilege; (3) M r. Raiser lacked standing to

sue B YU under the First A mendment; and (4) M r. Raiser had withdrawn his AD A

claim. The district court also denied M r. Raiser’s December 2004 motion to

amend, which had been held in abeyance. M r. Raiser appealed.

D ISCUSSION

I. Summary Judgment

W e review de novo the district court’s grant of summary judgment. Stover

v. M artinez, 382 F.3d 1064, 1070 (10th Cir. 2004). Summary judgment is

appropriate if “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). In conducting our analysis,

we view all the facts in the light most favorable to the party opposing summary

judgment and draw all reasonable inferences from the record in that party’s favor.

Stover, 382 F.3d at 1070. But while the burden of showing the absence of a

genuine issue of material fact rests with the party seeking summary judgment, the

opposing party “must do more than simply show that there is some metaphysical

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doubt as to the material facts.” Champagne M etals v. Ken-M ac M etals, Inc.,

458 F.3d 1073, 1084 (10th Cir. 2006) (internal quotation marks omitted). The

opposing party must “make[ ] a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden

of proof at trial.” Id. (internal quotation marks omitted).

A. Breach of Privacy

M r. Raiser’s privacy claim appears to be premised on the public disclosure

of an embarrassing private fact. See Shattuck-Owen v. Snowbird Corp., 16 P.3d

555, 558 (Utah 2000) (addressing an invasion-of-privacy claim against an

employer who allowed numerous people to view a surveillance video of the

employee-plaintiff’s sexual assault). Regarding the Church’s liability on this

claim, there is no dispute that the disclosure about M r. Raiser’s “known . . .

psychiatric history” w as not made by the Church, but by Erik Davis, a BYU

attorney. M r. Raiser speculates about a number of other possible disclosures by

people affiliated with the Church, but all the alleged disclosures w ere private

conversations, with the possible exception of the disclosures of information to the

police. M r. Raiser’s father, however, testified that the likely source of the

information received by the police was M r. Raiser’s family, and there is no

contrary evidence. A viable privacy claim requires a disclosure “to the public at

large, or to so many persons that the matter must be regarded as substantially

certain to become one of public knowledge.” Id. at 558 (internal quotation marks

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omitted). As a matter of law these alleged disclosures were too limited to be

considered public.

A s for B YU , its disclosure in a court pleading that M r. Raiser has a “know n

. . . psychiatric history” was protected by Utah’s judicial-proceeding privilege.

To qualify for the privilege, the challenged statements “must be (1) made during

or in the course of a judicial proceeding; (2) have some reference to the subject

matter of the proceeding; and (3) be made by someone acting in the capacity of

judge, juror, witness, litigant, or counsel.” DeBry v. Godbe, 992 P.2d 979, 983

(U tah 1999) (internal quotation marks omitted); see also Russell v. Thom son

Newspapers, Inc., 842 P.2d 896, 906 n.37 (Utah 1992) (extending the privilege to

invasion-of-privacy claims). The statement concerning M r. Raiser’s mental

health was relevant to M r. Raiser’s claim in Raiser I that the police had abused

and mistreated him.

M r. Raiser appears to seek an exception to the judicial-proceeding privilege

when the district court has neither sealed nor conducted an in camera review of a

document before allowing “a disclosure of highly sensitive information obtained

through an unlawful act.” Aplt. Br. at 43. But he cites no authority for the

proposition, nor are we aware of any. See Rios v. Ziglar, 398 F.3d 1201, 1206 n.3

(10th Cir. 2005) (“To make a sufficient argument on appeal, a party must advance

a reasoned argument . . . and it must support its argument with legal authority.”

(internal citation omitted)).

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 To the extent that M r. Raiser is claiming that BYU made other disclosures,

none were public, so there would be no liability. See Shattuck-Owen, 16 P.3d at

558. W e conclude that the district court did not err in granting summary

judgment on M r. Raiser’s privacy claims.

B. Establishment Clause

The First Amendment’s Establishment Clause provides that “C ongress shall

make no law respecting an establishment of religion.” U.S. Const., amend. I.

This proscription applies to the States via the Fourteenth Amendment. See

Cantwell v. Connecticut, 310 U .S. 296, 303-04 (1940). An Establishment Clause

violation occurs if (1) the challenged government action lacks a secular purpose;

(2) the action’s principal or primary effect advances or inhibits religion; or (3) the

action fosters an excessive governmental entanglement with religion. Utah

Gospel M ission v. Salt Lake City Corp., 425 F.3d 1249, 1259 (10th Cir. 2005).

M r. Raiser’s claim is of the excessive-entanglement variety. He alleged that the

“[state] statute . . . which allows [BYU] to maintain a state empow ered police

force . . . fosters an excessive governmental entanglement with religion,” and that

“[t]he state/church entanglement has injured Plaintiff . . . [by] allow[ing] private

information concerning Plaintiff to be exchanged between [BYU] and its police.”

R., Vol. 1, Doc. 1 (Compl. at 8, ¶¶ 67, 71); id., Doc. 65 (Am. Compl. at 5, ¶¶ 45,

49).

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 To have standing to assert an Establishment Clause violation, M r. Raiser

“must allege personal injury fairly traceable to [BYU’s] allegedly unlawful

conduct and likely to be redressed by the requested relief.” O’Connor v.

Washburn Univ., 416 F.3d 1216, 1222 (10th Cir. 2005) (emphasis omitted), cert.

denied, 126 S. Ct. 1469 (2006). Conducting de novo review, see Raiser v. United

States, 325 F.3d 1182, 1183 (10th Cir. 2002), we agree with the district court that

M r. Raiser lacks standing. Nothing in the record suggests that M r. Raiser’s injury

from the alleged exchange of private information between BY U and its police

force occurred because of any entanglement betw een government and religion.

As far as this case is concerned, the relationship between BY U and its police

force was indistinguishable from that between a secular private university and its

police force. There was simply no religious component to the police force’s

conduct. M r. Raiser’s argument amounts to saying that liability arises under the

Establishment Clause for any conduct by the police force of a university

controlled by a religious denomination.

M r. Raiser argues that nevertheless the district court could not rule that he

lacked standing, because “BY U never challenged injury due to excessive

entanglement.” Aplt. Br. at 46. But even if a defendant fails to raise any

standing defense, the federal courts must still consider the issue of standing sua

sponte to ensure that there is subject-matter jurisdiction. United States v. Colo.

Sup. Ct., 87 F.3d 1161, 1166 (10th Cir. 1996). M r. Raiser also asserts that “BYU

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[h]as [a]dmitted [a]n Establishment Clause [v]iolation.” Aplt. Br. at 48. But w e

find no support in the record for that assertion. Of course, we would remand to

the district court to consider a standing argument raised for the first time on

appeal if the plaintiff had been deprived of the opportunity to marshall evidence

that would support standing; but M r. Raiser does not suggest w hat possible

evidence he could add on this matter if given an opportunity.

W e conclude that the district court properly ruled that M r. Raiser lacked

standing to proceed under the Establishment Clause.

II. Discovery

M r. Raiser appears to argue that summary judgment was inappropriate

because he was hampered in his discovery efforts by the district court, BYU, and

the Church. W e review discovery rulings for an abuse of discretion. See

Champagne M etals, 458 F.3d at 1082 n.7.

Among other things, M r. Raiser claims that (1) he was denied the

opportunity to depose Davis by telephone; (2) he was not allowed to reschedule

Davis’s deposition; (3) he was denied any opportunity to depose Thomas; (4) the

district court found that “BYU was not being cooperative, but only required them

to answer 2 of the Interrogatories,” Aplt. Br. at 18, which were not signed by an

attorney of record, id. at 34; (5) the district court would not require BYU to

produce the “Access Committee notes regarding the Bramhall-Thomas

conversations,” id. at 19; and (6) BYU failed to answer various discovery

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requests. But even if these claims were valid, the alleged errors did not affect the

outcome of the case. None of the discovery sought would render public any

disclosure by the Church or undermine BYU’s judicial-proceeding privilege.

Accordingly, we reject M r. Raiser’s discovery argument as moot. Cf. Kirkland v.

St. Vrain Valley Sch. Dist. No. Re-1J, 464 F.3d 1182, 1197 (2006) (discovery

dispute moot because the defendants were entitled to qualified immunity in any

event).

III. Pleading Am endment

M r. Raiser argues that the district court erred in denying his motion to add

a breach-of-confidence claim to the complaint. W e review for an abuse of

discretion the denial of a motion to amend the complaint. E.SPIRE Comm., Inc.

v. N.M . Pub. Regulation Comm’n, 392 F.3d 1204, 1211 (10th Cir. 2004). “A

court properly may deny a motion for leave to amend as futile when the proposed

amended complaint would be subject to dismissal for any reason, including that

the amendment would not survive a motion for summary judgment.” Id. (internal

quotation marks omitted).

The district court denied M r. Raiser’s motion as futile. W e agree. Utah’s

judicial-proceeding privilege would apply to this claim. See Russell, 842 P.2d at

906 n.37. And communications within the BYU administration would not have

breached any promise of confidentiality.

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 IV. Use of a Pseudonym

Finally, M r. Raiser challenges the district court’s denial of his motion for

sanctions against the Church for revealing his identity while his motion to use a

pseudonym was still under consideration. The district court ultimately denied M r.

Raiser’s motion to use a pseudonym, and another panel of this court affirmed,

observing that Raiser I also included an unsuccessful interlocutory appeal on the

pseudonym issue, and that afterward M r. Raiser’s identity remained in the public

domain in connection with the litigation. See Raiser v. Church of Jesus Christ of

Latter-D ay Saints, 182 F. App’x 810, 811 (10th Cir. 2006). The district court did

not abuse its discretion in denying the motion for sanctions. See Australian Gold,

Inc. v. Hatfield, 436 F.3d 1228, 1243 (10th Cir. 2006) (“[W]e review a district

court’s decision whether or not to impose sanctions . . . for an abuse of

discretion.”).

The judgment of the district court is AFFIRMED. 2

Entered for the Court

Harris L Hartz
Circuit Judge

2
M r. Raiser’s motions to strike and for the same panel to hear this appeal
and appeal No. 06-4116 are denied. M r. Raiser’s motions for an extension of
time, for “Actual Justices [to] Decide the Above M otions,” and for a panel
member to draft the disposition are denied as moot.

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