Jemaneh v. University of Wyoming , 622 F. App'x 765 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
November 25, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
_________________________________
TEWODROS G. JEMANEH,
Plaintiff - Appellant,
v. No. 15-1121
(D.C. No. 1:12-CV-02383-RM-MJW)
THE UNIVERSITY OF WYOMING; (D. Colo.)
THE UNIVERSITY OF WYOMING
COLLEGE OF HEALTH SCIENCES;
THE UNIVERSITY OF WYOMING
SCHOOL OF PHARMACY; TOM
BUCHANAN, in his individual and
official capacities; NELL RUSSELL, in
her individual and official capacities;
JOSEPH F. STEINER, in his individual
and official capacities; DAVID L.
JONES, in his individual and official
capacities; JOHN H. VANDEL, in his
individual and official capacities;
BEVERLY A. SULLIVAN, in her
individual and official capacities;
JAIME R. HORNECKER, in her
individual and official capacities;
JANELLE L. KRUEGER, in her
individual and official capacities; CARA
A. HARSHBERGER, in her individual
and official capacities; AMY L.
STUMP, in her individual and official
capacities; AGATHA CHRISTIE
NELSON, in her individual and official
capacities; KATHLEEN A.
THOMPSON, in her individual and
official capacities; MARIA A.
BENNETT, in her individual and
official capacities,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, GORSUCH, and McHUGH, Circuit Judges.
_________________________________
In a 118-page complaint Mr. Jemaneh alleged a conspiracy to violate his
constitutional rights and force him to leave the University of Wyoming’s doctor-of-
pharmacy program after he received a failing grade. The district court dismissed the
complaint for failure to state a claim. On appeal, Mr. Jemaneh argues that the district
court erred by allowing the defendants to file successive Rule 12(b) motions to
dismiss, pointing out that Rule 12(g)(2) prohibits a party from “raising a defense or
objection that was available to the party but omitted from [an] earlier [Rule 12(b)]
motion.” Fed. R. Civ. P. 12(g)(2). As it happens, however, there are exceptions to
this rule. Defenses such as failure to state a claim may be raised successively in a
pleading, by a motion for judgment on the pleadings, or as late as trial. Fed. R. Civ.
P. 12(h)(2). And certain Rule 12(b) arguments may be brought as well under Rule
12(c). Albers v. Bd. of Cty. Comm’rs, 771 F.3d 697, 704 (10th Cir. 2014). Even
when a district court does err in permitting successive Rule 12(b) motions, the error
may prove harmless to the plaintiff’s substantial rights. See 28 U.S.C. § 2111. And
*
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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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even assuming (without granting) the district court erred in this case by permitting
successive Rule 12(b) motions, we can discern no more error than that. Mr.
Jemaneh’s opening appellate brief is largely a restatement of his lengthy complaint,
and his argument consists of little more than a few sentences followed by a
conclusory statement that the district court’s decision was contrary to law and fact.
We are mindful of our duty to give his Mr. Jemaneh’s pro se pleadings a liberal
construction, but even in doing so we can discern no reasoned basis for thinking his
substantial rights were harmed by the procedures the district court followed in
adjudicating this case — and neither are we able to discern any error in the merits of
final disposition.
The judgment is affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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