Hernandez v. Peters ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 11 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
MAXIMO HERNANDEZ, JR.,
Plaintiff - Appellant,
v.
F. WHITTEN PETERS, Secretary of the
Air Force, in his official capacity;
COLONEL GARY D. DILLS, ex 377th No. 01-2370
ABW Wing Commander, in his official D.C. No. CIV-00-1312 PK/LFG
and individual capacities; COLONEL (D. New Mexico)
POLLY PEYER, ex 377th ABW Wing
Commander, in her official and individual
capacities; COLONEL JAN D. EAKLE,
current 377th ABW Wing Commander, in
her official capacity; and GEORGE P.
ELDER, Staff Attorney, in his official and
individual capacities,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before MURPHY, BALDOCK, and O’BRIEN, Circuit Judges.
*
This order and judgment is not binding precedent, except under the doctrines of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.
Plaintiff Maximo Hernandez, Jr. appeals the district court’s grant of Defendants’
motion to dismiss. See Fed. R. Civ. P. 12(b)(6). We have jurisdiction pursuant to 28
U.S.C. § 1291. The parties to this case are familiar with its facts and procedural history,
and we will not repeat them here. This court reviews de novo a district court's dismissal
of a complaint pursuant to Fed. R. Civ. P. 12(b)(6). See McDonald v. Kinder-Morgan,
Inc., 287 F.3d 992, 997 (10th Cir. 2002). We will affirm a dismissal “only when it
appears that the plaintiff can prove no set of facts in support of the claims that would
entitle the plaintiff to relief.” Id. We accept all well-pleaded allegations of the complaint
as true and construe them in the light most favorable to the plaintiff. Id. On appeal,
Hernandez asserts the trial court erred in dismissing his Title VII claims for lack of
jurisdiction and his remaining claims for failure to state a claim on which relief could be
granted.1 The district court memorandum and order set forth a detailed explanation of the
1
Hernandez also asserts the district court erred by (1) placing the case on
administrative track and not permitting him an opportunity to conduct discovery; and (2)
considering a copy of a letter from Defendant Dills without first verifying its authenticity.
Hernandez failed to raise either issue before the district court and is not entitled to assert
these arguments for the first time on appeal. See United States v. Botefuhr, 309 F.3d
1263, 1279 (10th Cir. 2002).
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grounds for dismissal. We affirm substantially for the reasons stated by the district court.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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