FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 31, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DAVID WEBB,
Plaintiff - Appellant,
v.
No. 16-4199
STATE OF UTAH; ALPINE CITY; (D.C. No. 1:16-CV-00017-JNP)
AMERICAN FORK CITY; BLUFFDALE (D. Utah)
CITY; BOUNTIFUL CITY; BRIGHAM
CITY; CEDAR CITY; CEDAR HILLS
CITY; CENTERVILLE CITY;
CLEARFIELD CITY; CLINTON CITY;
COTTONWOOD HEIGHTS CITY;
DRAPER CITY; EAGLE MOUNTAIN
CITY; ENOCH CITY; EPHRAIM CITY;
FARMINGTON CITY; FARR WEST
CITY; GRANTSVILLE CITY;
HARRISVILLE CITY; HEBER CITY;
HERRIMAN CITY; HIGHLAND CITY;
HOLLADAY CITY; HOOPER CITY;
HURRICANE CITY; HYRUM CITY;
IVINS CITY; KAYSVILLE CITY;
LAYTON CITY; LEHI CITY; LOGAN
CITY; OGDEN CITY; OREM CITY;
PARK CITY; PAYSON CITY; PLAIN
CITY; PLEASANT GROVE CITY;
PLEASANT VIEW CITY; PRICE CITY;
PROVIDENCE CITY; PROVO CITY;
RICHFIELD CITY; RIVERDALE CITY;
RIVERTON CITY; ROOSEVELT CITY;
ROY CITY; ST. GEORGE CITY; SALT
LAKE CITY; SANDY CITY; SANTA
CLARA CITY; SANTAQUIN CITY;
SARATOGA SPRINGS CITY; MIDVALE
CITY; MOAB CITY; MURRAY CITY;
NEPHI CITY; NIBLEY CITY; NORTH
LOGAN CITY; NORTH OGDEN CITY;
NORTH SALT LAKE CITY;
SMITHFIELD CITY; SOUTH JORDAN
CITY; SOUTH OGDEN CITY; SOUTH
SALT LAKE CITY; SOUTH WEBER
CITY; SPANISH FORK CITY;
SPRINGVILLE CITY; SUNSET CITY;
SYRACUSE CITY; CITY OF
TAYLORSVILLE; CITY OF TOOELE;
TREMONTON CITY; VERNAL CITY;
WASHINGTON TERRACE CITY; WEST
BOUNTIFUL CITY; WEST HAVEN
CITY; WEST JORDAN CITY; WEST
POINT CITY; WEST VALLEY CITY;
WOODS CROSS CITY,
Defendants - Appellees.
–––––––––––––––––––––––––––––––––––
DAVID WEBB,
Plaintiff - Appellant,
v.
No. 16-4201
HEATHER S. WHITE, Attorney, Snow (D.C. No. 2:15-CV-00512-DN)
Christensen & Martineau; FRANK (D. Utah)
MYLAR, Attorney, Mylar Law PC;
SNOW CHRISTENSEN & MARTINEAU;
MYLAR LAW; R. BLAKE HAMILTON;
ASHLEY M. GREGSON; DURHAM
JONES & PINEGAR,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
*
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of these appeals. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are 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 This order and judgment is not binding precedent, except under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. It may be cited,
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_________________________________
Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
_________________________________
Upset at the dismissal of some claims in his wrongful-arrest suit, Plaintiff David
Webb filed two suits against those he deemed responsible for the dismissals. The United
States District Court for the District of Utah dismissed these two follow-on suits for lack
of jurisdiction and Plaintiff appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we
agree with the dismissals but remand with instructions to dismiss the two suits without
prejudice.
I. Background1
The genesis of this dispute was an allegedly wrongful arrest of Plaintiff on July
20, 2011. He sued the Weber County Government and numerous other government
officials and police officers on several federal-law and state-law claims. The court
dismissed some defendants on various grounds, including immunity and qualified
immunity, in March 2015.
Four months later, in July 2015, Plaintiff sued the attorneys who represented the
dismissed defendants (the Attorney Defendants), claiming that their assertions of
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
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As the district court noted, Plaintiff’s complaints and arguments are difficult to follow.
See R. (16-4201) at 329 (“The vast majority of the [complaint] is not factual narrative,
but rather is legal argument and conclusions. The facts alleged are limited, vague, and
difficult to discern, as they are intertwined with Plaintiff’s oft repeated legal argument
and conclusions.” (footnotes omitted)). Although we grant pro se pleadings a “generous
construction,” and read them “more liberally than those composed by lawyers,”
Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1024 (10th Cir. 2012), this
generosity “has limits,” id.
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immunity and qualified immunity violated his rights and led to the wrongful dismissal of
his claims. According to Plaintiff, Utah and (presumably) all its subdivisions and
employees were barred from asserting immunity because of receipt of federal funds under
42 U.S.C. § 2000d-7. He sought an injunction barring any future assertion of immunity
or qualified immunity, “general damages as . . . proven at a trial,” and $304 for towing-
related fees. R. (16-4201) at 296–97.
In February 2016, Plaintiff filed suit against Utah and some of its subdivisions (the
State Defendants), challenging the assertion of qualified immunity and immunity. He
again claimed that their invocations of immunity resulted in the dismissal of his claims.
He requested injunctive relief barring the assertions of immunity and one billion dollars
in damages.
The district court dismissed both complaints for lack of the standing necessary for
subject-matter jurisdiction because Plaintiff had not adequately alleged any injury to
himself traceable to the Defendants. The court further held that if it had jurisdiction, it
would dismiss the complaints because they failed to state a claim upon which relief could
be granted. The district court dismissed both complaints with prejudice.
II. Discussion
We are not as confident as the district court that Plaintiff lacked standing. To
establish standing, a party must “demonstrate that he has suffered injury in fact, that the
injury is fairly traceable to the actions of the defendant, and that the injury will likely be
redressed by a favorable decision.” Bennett v. Spear, 520 U.S. 154, 162 (1997) (internal
quotation marks omitted). Although not a model of clarity, Plaintiff’s complaints allege
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that his prior claims were dismissed because of the improper assertion of immunity by the
Defendants. This allegation of injury would seem to be fairly traceable to Defendants,
and to be redressable through money damages.
But we need not resolve the issue because Plaintiff’s claims are not sufficiently
colorable to confer jurisdiction. “[A] court may dismiss for lack of subject-matter
jurisdiction ‘when the claim is so insubstantial, implausible, foreclosed by prior decisions
of this Court, or otherwise completely devoid of merit as not to involve a federal
controversy. . . .’” McKenzie v. U.S. Citizenship & Immigration Servs., 761 F.3d 1149,
1156–57 (10th Cir. 2014) (quoting Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83,
89 (1998)). Though Plaintiff casts it in different ways, his entire argument is based on his
theory that 42 U.S.C. § 2000d-7 bars Utah from invoking any immunity doctrines. That
statute states:
A State shall not be immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal court for a violation
of section 504 of the Rehabilitation Act of 1973 [29 U.S.C.A. § 794], title
IX of the Education Amendments of 1972 [20 U.S.C.A. § 1681 et seq.], the
Age Discrimination Act of 1975 [42 U.S.C.A. § 6101 et seq.], title VI of
the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or the
provisions of any other Federal statute prohibiting discrimination by
recipients of Federal financial assistance.
42 U.S.C. § 2000d-7(a). Stretch our imagination as we might, we fail to see in Plaintiff’s
allegations a basis for any cause of action.2 Perhaps he is asserting that § 2000d-7 creates
2
Plaintiff asserts causes of action under ten sources of law against the State Defendants:
(1) 42 U.S.C. § 1983; (2) the First Amendment; (3) the Fourteenth Amendment; (4) 42
U.S.C. § 2000d (Title VI of the Civil Rights Act of 1964); (5) the Utah Constitution; (6)
Intentional Infliction of Emotional Distress; (7) Negligent Infliction of Emotional
Distress; (8) Willful Misconduct; (9) Vicarious Liability; and (10) 18 U.S.C. § 1964(c)
5
a federal right whose violation can be remedied under 42 U.S.C. § 1983. See Blessing v.
Freestone, 520 U.S. 329, 340 (1997) (“In order to seek redress through § 1983, . . . a
plaintiff must assert the violation of a federal right, not merely a violation of federal
law.”). But a federal statute cannot create such a right absent rights-creating language.
See Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002) (statutory provisions relied on by
Plaintiff “fail to confer enforceable rights” under § 1983 because they “entirely lack the
sort of ‘rights-creating’ language critical to showing the requisite congressional intent to
create new rights” (internal quotation marks omitted)). As the Supreme Court explained:
[W]hether a statutory violation may be enforced through § 1983 . . . .
[requires] determin[ing] whether Congress intended to create a federal
right. Thus we have held that the question whether Congress intended to
create a private right of action is definitively answered in the negative
where a statute by its terms grants no private rights to any identifiable class.
For a statute to create such private rights, its text must be phrased in terms
of the persons benefited.
Id. at 283–84. (internal quotation marks and alterations omitted). There is nothing close
to rights-creating language in § 2000d-7.
We therefore hold that the district court lacked jurisdiction over Plaintiff’s claims.
A dismissal for lack of subject-matter jurisdiction, however, should be without prejudice.
See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006). Thus we
REVERSE the district court’s dismissal with prejudice and REMAND with instructions
(RICO). And he asserts causes of action under nine sources of law against the Attorney
Defendants: (1) 42 U.S.C. § 1983; (2) the First Amendment; (3) the Fourteenth
Amendment; (4) 42 U.S.C. § 2000d-7; (5) Title VI of the Civil Rights Act of 1964; (6) 18
U.S.C. § 1964(c) (RICO); (7) Intentional Infliction of Emotional Distress; (8) Negligent
Infliction of Emotional Distress; and (9) 42 U.S.C. § 1981.
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to dismiss Plaintiff’s cases without prejudice.
Entered for the Court
Harris L Hartz
Circuit Judge
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