Smith v. Plati

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 30 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

THEODORE M. SMITH,

Plaintiff-Appellant,
v.

DAVID PLATI, individually and in his
official capacity as Assistant Athletic
No. 99-1375
Director for Media Relations of the
University of Colorado; THE
UNIVERSITY OF COLORADO; and
THE REGENTS OF THE
UNIVERSITY OF COLORADO,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 99-K-491)

David A. Lane, Miller, Lane, Kilmer & Griesen, Denver, Colorado (Theodore M.
Smith, pro se, on the briefs) for Plaintiff-Appellant.

Patrick T. O’Rourke (Kevin J. Kuhn with him on the brief) of Montgomery, Little
& McGrew, Englewood, Colorado, for Defendant-Appellee David Plati in his
individual capacity.

David P. Temple, Assistant University Counsel (Joanne M. McDevitt, Associate
Vice President/Senior Associate University Counsel; and Michael W. Schreiner,
Senior Assistant University Counsel, with him on the brief), Office of University
Counsel, Denver, Colorado, for Defendants-Appellees the Regents of the
University of Colorado and David Plati in his official capacity.
Before EBEL, McKAY and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

Theodore Smith appeals the district court’s dismissal of his claims against

David Plati, the Assistant Athletic Director for Media Relations of the University

of Colorado, the Regents of the University, and the University itself. In addition,

Smith alleges that the district court erred when it ordered him to dismiss a parallel

state court action raising virtually identical claims to those in his federal lawsuit.

We AFFIRM the district court’s dismissal, and, thus, hold that Smith’s final

allegation is moot. 1

1
Smith’s claims against the University and Plati in his official capacity
raise Eleventh Amendment issues. See Buchwald v. Univ. of N.M. Sch. of Med.,
159 F.3d 487, 494 n. 3 (10th Cir. 1998). These must be resolved before a court
may reach the merits. See Fent v. Okla. Water Res. Bd., 235 F.3d 553, 558 (10th
Cir. 2000) (quotation marks and citation omitted). As discussed infra in footnote
3, Smith has abandoned his claims against the University. The Eleventh
Amendment bars Smith’s attempt at recovery of all forms of relief against Plati in
his official capacity except for prospective equitable relief, which is permitted
under Ex parte Young, 209 U.S. 123 (1908), to remedy violations of the
Constitution or federal law . See ANR Pipeline Co. v. Lafaver, 150 F.3d 1178,
1188 (10th Cir. 1998). Since we hold, infra, that Smith has not alleged a
violation of the Constitution or federal law, Ex parte Young does not provide
Smith relief, and, moreover, we need not address Plati’s claim of qualified
immunity.

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 BACKGROUND

A. Smith’s Allegations

Theodore Smith launched and maintains a non-profit website named

Netbuffs.com. It provides information, pictures, chat rooms, and message boards

covering men’s and women’s athletic teams at the University of Colorado at

Boulder. Smith is also a practicing Colorado attorney.

David Plati is the University’s Assistant Athletic Director for Media

Relations. The Athletic Media Relations Office is the liaison between the

University’s athletic department and members of the media.

Smith contends that “[b]eginning in approximately the month of August,

1998,” Plati decided “to censor Netbuffs.com and to do everything possible to

interfere with it.” Smith alleges that while “Plati’s motives . . . are unclear, . . . it

appears he has concluded Netbuffs.com is in some way in competition with the

website still operated by the University’s Office of Media Relations.” For

purposes of this appeal, the most important examples of this alleged interference

are that Plati caused Smith to be detained and ticketed for allegedly trespassing in

a University hallway; that Plati “denied to Claimant Smith resources of the Office

of Athletic Media Relations routinely given to other media and to other fans of

the University”; and that Plati “denied Plaintiff Smith and Netbuffs.com treatment

as ‘media’ or ‘press.’” Smith also alleges that Plati prevented Smith from talking

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to coaches, excluded him from football practices, required him formally to request

and pay for materials given freely to the public, and kept him from distributing

Netbuffs.com advertisements at a University athletic event. 2

B. Procedural History

Smith filed this action in Boulder County District Court in February 1999,

asserting both state and federal (42 U.S.C. § 1983) claims. He moved the state

court for leave to depose Plati before entry of a case management order. The

state court granted the motion and the order was to be entered March 12, 1999.

Appellees, however, removed the case to federal district court on March 11, 1999,

pursuant to 28 U.S.C. § 1441. Plati also filed a motion for a stay of litigation to

prevent discovery on any issues other than those relating to Plati’s claim of

qualified immunity. On April 20, 1999, the federal district court limited Smith’s

discovery accordingly. Two days later, on April 22, 1999, Smith commenced a

2
In general, when reviewing a motion to dismiss, a court examines only the
allegations made in the complaint. See Sutton v. Utah State Sch. for the Deaf &
Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). Unfortunately, in his Opening
Brief, Smith overstates what allegations were properly before the district court on
the motion to dismiss, both by including items in his Brief that he did not include
in his complaint and by exaggerating allegations that were included in the
complaint. For example, while in the Opening Brief Smith alleges that Plati
falsely told a reporter Smith was guilty of larceny , resulting in an article harming
Smith’s reputation (see Opening Brief at 13), the complaint does not contain this
allegation. In keeping with our obligations under Rule 12(b)(6), the recitation of
Smith’s allegations in the text of the opinion was drawn exclusively from the
complaint.

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“virtually identical state court action in the Boulder District Court (No. 99-CV-

0677), omitting any federal claims so that the new action could not be removed.”

Upon discovering the parallel state action, the federal district court ordered

Smith to dismiss it. Smith complied, but contends on appeal that the district

court’s order was erroneous.

In March 1999, the University and Plati filed a motion to dismiss under

Federal Rules of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction) and

12(b)(6) (failure to state a claim). See Smith v. Plati, 56 F. Supp. 2d 1195, 1199

(D. Colo. 1999). Smith deposed Plati on the issue of qualified immunity on

May 13, 1999. See id. The court heard oral argument regarding the motion to

dismiss, and granted the motion. See id.

C. Issues on Appeal

As interpreted by the district court, Smith’s second amended complaint

makes five claims. First, Smith alleges that Plati and the University violated the

Colorado Open Records Act, see Colo. Rev. Stat. § 24-72-204, by not producing

and permitting Smith to inspect various University documents. Smith failed to

raise this issue on appeal and thus we deem it waived. See State Farm Fire & Cas.

Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (stating that failure to raise

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an issue on appeal in the opening brief waives the issue). 3 Smith’s second, third,

and fourth claims allege that Plati violated 42 U.S.C. § 1983 by causing Smith to

be falsely arrested, retaliating against him for exercising his First Amendment

rights, and denying him his First Amendment right to “gather news” from the

University. Smith’s fifth claim seeks an order of mandamus under Colorado Rule

of Civil Procedure 106(a)(2) 4 requiring Plati and the University to treat him in the

same way that they treat other members of the press. Smith alleges that the First

Amendment guarantees him this right of equal access. 5

Finally, on appeal Smith asserts that the district court erred when it ordered

him to dismiss the parallel state action.

At oral argument, Smith’s counsel conceded that, on appeal, Smith had
3

abandoned his claims against the University. Thus, we consider only the
remaining claims against Plati in his official and individual capacities.
4
The district court noted, and we agree, that “Smith does not specify the
subsection [of Rule 106] under which he seeks relief, but the only one having a
conceivable relevance is Rule 106(a)(2).” Smith, 56 F. Supp. 2d at 1203 (quoting
the language of Rule 106(a)(2)).
5
In his complaint, Smith styles Plati’s actions as violating “the
Constitutions of the United States of America and State of Colorado.” (Complaint
¶ 21.) To the district court and on appeal, however, Smith rested this claim
exclusively on the Speech and Press Clauses of the First Amendment to the
federal Constitution. Therefore, we characterize it as such. See Phillips v.
Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992) (observing that “[a] litigant who
fails to press a point by supporting it with pertinent authority, or by showing why
it is sound despite a lack of supporting authority or in the face of contrary
authority, forfeits the point”) (quoting Pelfresne v. Vill. of Williams Bay, 917
F.2d 1017, 1023 (7th Cir. 1990)).

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 JURISDICTION AND STANDARDS OF REVIEW

A. Jurisdiction

Smith filed this action in state court asserting one federal (42 U.S.C.

§ 1983) and two state claims. Appellees removed it to federal court pursuant to

28 U.S.C. § 1441. The district court had federal question jurisdiction under 28

U.S.C. § 1331 and supplemental jurisdiction over the state law claims under 28

U.S.C. § 1367(a). We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

B. Standard of Review

We review de novo a district court’s dismissal under Rule 12(b)(1) and

12(b)(6). See U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999)

(Rule 12(b)(1)); Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226,

1236 (10th Cir. 1999) (Rule 12(b)(6)). A motion to dismiss under Rule 12(b)

“admits all well-pleaded facts in the complaint as distinguished from conclusory

allegations.” Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976). “We are free

to affirm a district court decision on any grounds for which there is a record

sufficient to permit conclusions of law, even grounds not relied upon by the

district court.” United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994).

Smith is a lawyer proceeding pro se. While we are generally obliged to

construe pro se pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520-21

(1972), we decline to do so here because Smith is a licensed attorney, see

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Olivares v. Martin, 555 F.2d 1192, 1194 n.1 (5th Cir. 1977) (“Mr. Olivares

proceeds pro se in his appeal. We cannot accord him the advantage of the liberal

construction of his complaint normally given pro se litigants because he is a

licensed attorney.”) (citation omitted). 6

DISCUSSION

A. False Arrest Claim

To state a claim under 42 U.S.C. § 1983 for false arrest, Smith must allege

two elements:

First, the plaintiff must prove that the defendant has deprived him of
a right secured by the “Constitution and laws” of the United States.
Second, the plaintiff must show that the defendant deprived him of
this constitutional right “under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory.” This second
element requires that the plaintiff show that the defendant acted
“under color of law.”

Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). In circumstances similar

to this case, this court has noted that the first element of § 1983 may require a

6
Even when a complaint is construed liberally, this court has dismissed pro
se complaints for failure to allege sufficient facts. Hall v. Bellmon, 935 F.2d
1106, 1110, 1114 (10th Cir. 1991). Cf. Drake v. City of Fort Collins, 927 F.2d
1156, 1159 (10th Cir. 1991) (“Despite the liberal construction afforded to pro se
pleadings, the court will not construct arguments or theories for the plaintiff in
the absence of any discussion of those issues.”).

-8-
greater showing to establish a substantive due process claim for false arrest than

what would be required to allege a state law claim of false arrest:

The cases recognize that evaluations of rights and duties under
§ 1983 . . . arising as they do under the Fourteenth Amendment to the
Constitution of the United States, are often different from
counterpart common law actions which arise under state substantive
law. This is not to say that at times the same set of facts will not
give rise to remedies under both § 1983 and the state law of torts.
The differences are . . . in terms of not only the requisite elements
under § 1983, but also in the gravity of the right which has been
invaded. For example, under state common law . . . the slightest
interference with personal liberty is a false imprisonment. It does
not follow that all such invasions however trivial or frivolous serve
to activate remedies under the due process clause of the Fourteenth
Amendment . . . .

Wells v. Ward, 470 F.2d 1185, 1187 (10th Cir. 1972). In Wells,

[w]e refused to find a cause of action under § 1983 . . . where a
student being ticketed for a traffic violation attempted to drive his
car away and refused to sign a ticket. He was taken into custody,
handcuffed, transported ten miles to a Justice of the Peace, not
allowed to make bond on an American Automobile Association bond
card, and kept in a cell for a period in excess of one hour. The
[Wells] court stated that “in the final analysis this incident falls
short, not only because the officers acted in accordance with local
law requiring that a violator be arrested when he fails to sign the
ticket, but also because the case is insubstantial.”

Lessman v. McCormick, 591 F.2d 605, 610 (10th Cir. 1979) (citing Wells, 470

F.2d at 1189).

Similarly, in Lessman, plaintiff alleged that the mayor of Topeka, a bank,

the police chief, and a police officer conspired to arrest her on a warrant alleging

that she had failed to pay a parking ticket. See id. at 607. Plaintiff asserted that

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she was arrested, taken to the police station, and imprisoned until she paid the

parking ticket. See id. Even after she paid the ticket, she stated that she was held

until a bank employee appeared and told her the bank had prevailed upon the city

to arrest and imprison her because she had failed to respond to the bank’s letters

regarding her indebtedness. See id.

The Lessman court noted, “No specific facts were alleged with respect to

any defendants other than White [the police officer] and Reynolds [the bank

employee], except that they ‘arranged to have the defendant, White, arrest

plaintiff,’ and that they conspired to deprive plaintiff of her rights.” Id. The

district court dismissed the § 1983 claim for failure to state a cause of action.

This court reversed, saying the issue was “close to the line of being an

insubstantial deprivation of liberty, but without the development of facts we

cannot say that it is, at least as to White and Reynolds.” Id. at 611.

This case, in contrast, is not “close to the line.” In his complaint, Smith

mentions false arrest only twice, in paragraphs twelve (“[W]ithout legal or factual

justification of any kind, Defendant Plati caused Plaintiff Smith to be arrested for

‘trespassing’ in a public place in the University’s Office of Media Relations.”)

and seventeen (“Those damages specifically include . . . those attributable to his

own work, incurred by Plaintiff Smith in response to the arrest and order of

exclusion caused by Plati.”). These two references are not sufficient to sustain

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the requirements for an unconstitutional detention under § 1983. They are far

sparser and more conclusory than those made in Lessman, where this court said

the allegations were “close,” yet ultimately sufficient to withstand dismissal. For

example, Smith did not allege that he had been detained for a substantial period

of time, handcuffed or otherwise restrained, physically assaulted by an officer, or

confined in a jail or other room. 7 Even granting Smith’s assertion, as we must on

appeal from a motion to dismiss, that he was “arrested,” we believe Smith has not

alleged enough facts to state a § 1983 claim for deprivation of liberty in violation

of the Fourteenth Amendment. 8

Furthermore, and in contrast to Lessman, we have affirmed a district

court’s dismissal under 12(b)(6) for failure to state a § 1983 claim for retaliation

against a plaintiff’s freedom of speech in a case where the factual allegations

were as sparse as Smith’s. See Eames v. City of Logan, 762 F.2d 83, 86 (10th Cir.

1985). The district court in Eames advised the plaintiff that his First Amendment

allegation was conclusory and required expansion to set forth a claim. See id. at

7
At oral argument, Smith’s counsel admitted that Smith had been only
stopped and given citations by a University officer.
8
Smith’s declaration that he was issued a citation that banned him from the
University’s Boulder campus for one year does not support his § 1983 unlawful
detention claim. We have found no cases, and Smith did not cite any to us, in
which a court found that exclusion from an area supported a claim of unlawful
detention.

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85. Plaintiff was given leave to amend his complaint, but he took no action, so

the court dismissed the complaint without prejudice. See id.

While in this case, the district court did not specifically advise Smith that

his false arrest claim was conclusory, we do not read Eames as imposing an

advisement requirement, particularly where Smith has already filed two amended

complaints. Rather, like Lessman, it stands for the proposition that plaintiffs

must allege sufficient facts to support their § 1983 claims. Bare conclusions,

even read in the light most favorable to plaintiff, may prove insufficient. “The

existence of the § 1983 remedy does not require that federal courts entertain all

suits in which unconstitutional deprivations are asserted. A federal constitutional

question must exist ‘not in mere form, but in substance, and not in mere assertion,

but in essence and effect.’” Wells, 470 F.2d at 1189 (quoting Cuyahoga River

Power Co. v. N. Ohio Traction & Light Co., 252 U.S. 388, 397 (1920)).

The district court dismissed Smith’s false arrest claim partially on the

ground that the University officer made an independent evaluation before

stopping and citing Smith. See Smith, 56 F. Supp. 2d at 1206. To determine that

the officer’s evaluation was indeed “independent,” the court must have relied on

the officer’s written report, for nothing in Smith’s complaint gives that

impression. We decline to follow this approach because the police report

constitutes evidence outside of the complaint, and on a motion to dismiss a court

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must restrict its inquiry to “the plaintiff’s complaint alone.” Sutton, 173 F.3d at

1236.

We nevertheless affirm the district court’s dismissal of Smith’s § 1983

“false arrest” claim on the ground that he failed to allege sufficient facts to

support the pleading requirements for an unconstitutional detention. Cf. Sandoval,

29 F.3d at 542 n.6 (“We are free to affirm a district court decision on any grounds

for which there is a record sufficient to permit conclusions of law, even grounds

not relied upon by the district court.”).

B. Retaliation

“Any form of official retaliation for exercising one’s freedom of speech,

including prosecution, threatened prosecution, bad faith investigation, and legal

harassment, constitutes an infringement of that freedom.” Worrell v. Henry, 219

F.3d 1197, 1212 (10th Cir. 2000). Recently, we adopted the following test to

assess a claim of retaliation for exercising one’s freedom of speech “against a

defendant who is neither an employer nor a party to a contract with the plaintiff,”

as is the case here. See id. at 1213. Such a plaintiff must prove: (1) he was

engaged in constitutionally protected activity; (2) the defendant’s actions caused

the plaintiff to suffer an injury that would chill a person of ordinary firmness

from continuing to engage in that activity; and (3) the defendant’s adverse action

was substantially motivated as a response to the plaintiff’s exercise of

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constitutionally protected conduct. See id. at 1212. This approach has been

followed by other circuits. See, e.g, Mendocino Envtl. Ctr. v. Mendocino County,

192 F.3d 1283, 1300 (9th Cir. 1999); Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir.

1998).

Smith’s claim satisfies the first element, for publishing Netbuffs.com is

undoubtedly an activity protected by the First Amendment. For purposes of this

appeal we will assume without deciding that his claim satisfies the third element,

as well. Nevertheless, it founders on the second element. Plati’s actions did not

cause Smith to suffer an injury that would chill a person of ordinary firmness

from continuing to publish an internet site. Plati’s actions may have made it more

difficult to obtain some information regarding the University’s varsity athletic

programs, but alternative avenues to information remained open. In addition,

Plati did nothing to affect an ordinary person’s ability to actually maintain a

website. Plati neither prevented such private websites nor did he have the power

to do so. 9

Smith makes much out of Plati’s “attempts” and “threats” but alleges little
9

concrete, retaliatory action. For instance, Smith alleges that Plati attempted to
induce Smith’s attorney not to represent him and attempted to interfere with
Netbuffs.com by threatening to copyright athletic information. Smith, however,
fails to allege enough context to show why these preliminary (and apparently
unsuccessful) actions would chill a person of ordinary firmness. For example,
perhaps Plati had a legal right to copyright the varsity sports schedules; Smith
never alleges he did not. In the same vein, while Smith alleges that Plati had him
(continued...)

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 The district court in this case recognized this when it wrote, “Smith

continues to possess the ability to publish anything any citizen could by opening a

privately operated website. . . . At all times, Smith retained, and still retains, the

ability to speak freely about any political, social or other concern related to the

University of Colorado athletic programs.” Smith, 56 F. Supp. 2d at 1205. The

focus, of course, is upon whether a person of ordinary firmness would be chilled,

rather than whether the particular plaintiff is chilled. As the Ninth Circuit

explained,

Because it would be unjust to allow a defendant to escape liability
for a First Amendment violation merely because an unusually
determined plaintiff persists in his protected activity, we conclude
that the proper inquiry asks “whether an official’s acts would chill or
silence a person of ordinary firmness from future First Amendment
activities.”

Mendocino Envtl. Ctr., 192 F.3d at 1300 (quoting Crawford-El v. Britton, 93

F.3d 813, 826 (D.C. Cir. 1996), vacated on other grounds, 520 U.S. 1273 (1997)

(internal quotation marks and citation omitted in Mendocino)). Nevertheless,

9
(...continued)
excluded from football practices, he does not allege that he had a right to attend
football practices. While it is true that when reviewing a motion to dismiss we
must accept a plaintiff’s allegations as true and view them in the light most
favorable to the plaintiff, see Sutton, 173 F.3d at 1236, we need not – and,
indeed, should not – manufacture allegations that are not there. As noted above,
Smith is a practicing attorney and we decline to construe his pleading liberally.

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Smith’s persistence in maintaining his website offers some evidence that Plati’s

actions did not prevent such private speech.

In any event, we conclude the district court was correct to dismiss this

claim and we affirm.

C. First Amendment Right of “Newsgathering”

Smith alleges that there is “some sort of right to newsgathering” protected

by the First Amendment, which Plati and the University violated by declining to

provide him certain information about its varsity athletic programs. See Opening

Brief at 38. We disagree.

It is well-settled that there is no general First Amendment right of access to

all sources of information within governmental control. See Houchins v. KQED,

Inc., 438 U.S. 1, 9 (1978); see also id. at 15 (“Neither the First Amendment nor

the Fourteenth Amendment mandates a right of access to government information

or sources of information within the government’s control.”); Lanphere &

Urbaniak v. Colorado, 21 F.3d 1508, 1511 (10th Cir. 1994) (“[T]here is no

constitutional right, and specifically no First Amendment right, of access to

government records.”). This applies equally to both public and press, for the

press, generally speaking, do not have a special right of access to government

information not available to the public. See Houchins, 438 U.S. at 11; Pell v.

Procunier, 417 U.S. 817, 834 (1974); Saxbe v. Wash. Post Co., 417 U.S. 843, 850

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(1974); Branzburg v. Hayes, 408 U.S. 665, 684-85 (1972); Zemel v. Rusk, 381

U.S. 1, 17 (1965). 10

Smith does not point to any Supreme Court or Tenth Circuit precedent

establishing the right of access he seeks. Smith’s citation to Branzburg is not to

the contrary. In Branzburg, the Supreme Court remarked that “without some

protection for seeking out the news, freedom of the press could be eviscerated,”

408 U.S. at 681, and “news gathering is not without its First Amendment

protections,” id. at 707. These statements are prefatory dicta and do not create a

right of access. In fact, in Houchins the Supreme Court expressly rejected

Smith’s suggestion: “[The Court’s observation in] Branzburg v. Hayes . . . that

‘news gathering is not without its First Amendment protections,’ in no sense

implied a constitutional right of access to news sources.” 438 U.S. at 10 (citation

omitted).

10
The Supreme Court has recognized that the First Amendment guarantees
access to government records pertaining to criminal proceedings if (1) there has
been a tradition of access to the information and (2) public access benefits the
functioning of the particular process in question. See, e.g., Press-Enter. Co. v.
Superior Court (Press Enterprise II), 478 U.S. 1, 8 (1986) (finding a conditional
right of access to California pre-trial criminal proceedings). Cf. Journal Pub. Co.
v. Mechem, 801 F.2d 1233, 1236-37 (10th Cir. 1986) (applying a similar analysis
to coverage of certain aspects of a civil trial). Because Smith’s claims do not
involve a claim of denied coverage of a criminal trial in particular, or any trial
proceeding in general, we do not find those cases particularly relevant.

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 Therefore, we conclude that Smith has not demonstrated that his alleged

right of access to University athletic information exists, as a member of either the

public or the press. Thus, the district court’s dismissal of this claim was proper.

D. Claim for Mandamus for Violation of First Amendment Right of Equal Access

Smith seeks an order of mandamus under Colorado Rule of Civil Procedure

106(a)(2) requiring Plati to give Smith equal access to all information given to

other members of the press. (See Complaint ¶¶ 19-22.) Smith grounds his claim

for mandamus relief on the assertion that there is “some sort of protection against

arbitrary and even malicious giving of access to some but denial to others.”

In considering whether to issue a writ of mandamus, Colorado courts have

generally applied a three-part test: (1) a plaintiff must have a clear right to the

relief sought; (2) the defendant must have a clear duty to perform the act

requested; and (3) there must be no other available remedy. See Sherman v. City

of Colorado Springs Planning Comm’n, 763 P.2d 292, 295 (Colo. 1988).

Mandamus will lie to compel a ministerial act, but it is an inappropriate remedy

when the agency or officer has discretion. See Ahern v. Baker, 366 P.2d 366, 369

(Colo. 1961); Menchetti v. Wilson, 597 P.2d 1054, 1056 (Colo. Ct. App. 1979)

(“C.R.C.P. 106 relief in the nature of mandamus will be granted only in cases

where a clear legal duty exists for an administrative officer to perform a

ministerial act.”). “[M]andamus will not lie to enforce duties generally, or to

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control and regulate a general course of official conduct for a long series of

continuous acts to be performed under varying conditions.” Ahern, 366 P.2d at

369. For example, the Colorado Supreme Court has held that mandamus under

Rule 106 is appropriate to compel an ousted government officer to turn over the

books and papers of the office to the newly appointed office-holder. See Kepley

v. People ex rel. Everson, 230 P. 804, 805-06 (Colo. 1924). In contrast, the

Colorado high court explained that “mandamus will not ordinarily be granted to

compel police officers to enforce the police or criminal laws generally, such as

laws regulating intoxicating liquors.” Ahern, 366 P.2d at 369 (citation and

alterations omitted).

It is clear that under Colorado law mandamus does not lie to compel Plati

to treat Smith like all other members of the media. Plati’s job requires him to

make on-going decisions regarding what University athletic information is made

public, given to the press, or kept confidential – and every variety of decision in

between – under constantly changing circumstances. Smith asks this court to

control and regulate the general course of Plati’s official conduct as Assistant

Athletic Director for Media Relations for a long series of continuous acts

performed under varying conditions. Mandamus is not appropriate in this case

because it would require a court constantly to be looking over Plati’s shoulder and

assessing whether, for instance, after consulting with the football coach and the

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athletic director, Plati’s decision to permit five media photographers to set up

their cameras on the sidelines during a home football game meant Plati had to

grant sidelines access to Smith as well.

Therefore, while on a different ground than the district court, we affirm the

dismissal of this claim. Cf. Sandoval, 29 F.3d at 542 n.6.

E. Anti-Injunction Act

Smith objects that the district court erred when it ordered him to dismiss

the state court action which asserted virtually identical claims. Given that we

affirm the dismissal of Smith’s substantive claims, we hold that the issue is moot.

An issue becomes moot when it becomes impossible for the court to grant “any

effectual relief whatsoever” on that issue to a prevailing party. See Church of

Scientology v. United States, 506 U.S. 9, 12 (1992) (citing Mills v. Green, 159

U.S. 651, 653 (1895)).

Smith had an opportunity to fully and fairly litigate the state law claims in

federal district court and to raise those issues on appeal. Those claims are now

disposed of and any subsequent litigation would be barred by res judicata. See

Cromwell v. County of Sac, 94 U.S. 351, 352-53 (1876) (holding that under res

judicata, or claim preclusion, a final judgment on the merits of an action

precludes the parties or their privies from re-litigating issues that were or could

have been raised in the prior action); see also Kremer v. Chem. Constr. Corp., 456

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U.S. 461, 466-67, 485 (1982) (holding that once decided in a court of competent

jurisdiction, the merits of a legal claim are not subject to redetermination in

another forum); Stokke v. S. Pac., 169 F.2d 42, 43 (10th Cir. 1948) (same). 11

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s dismissal of

Smith’s claims. We also DISMISS as moot Smith’s allegation that the district

court erred when it ordered Smith to dismiss his parallel state court action.

11
Indeed, Smith concedes that this issue has now become moot: “Plaintiff
Smith should have been allowed to continue with his state court action, and he
should now be allowed to continue the action the court below told him he could
bring in the state courts even when, if Smith prevails in any way on this appeal,
the court below once again regains jurisdiction of this case upon remand.”
(Opening Brief at 63 (emphasis added).) Since we have affirmed the district
court’s dismissal on all claims, Smith has not “prevail[ed] in any way on this
appeal.”

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