Kerkhoff v. West Valley City District Court ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 23, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KEVIN LEE KERKHOFF,
Plaintiff-Appellant,
v. No. 15-4038
(D.C. No. 2:14-CV-00209-RJS-DBP)
WEST VALLEY CITY DISTRICT (D. Utah)
COURT; ATTORNEY GENERAL’S
OFFICE,
Defendants-Appellees.
_______________________
CORY R. WALL; THADEUS
WENT; BRETT BOLTON; KEVIN
BISHOP,
Defendants.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
*
The Court concludes that oral argument would not materially aid our
consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). Thus, we have decided the appeal based on the briefs.
Our order and judgment is not binding precedent, except under the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.
Mr. Kevin Lee Kerkhoff suffered physical injuries in a 1992 incident
of workplace violence, which led to criminal proceedings against a third
party. Decades later, Mr. Kerkhoff sued, alleging that the West Valley City
District Court and the Utah Attorney General’s Office had failed to enforce
Utah laws and to notify Mr. Kerkhoff of his need to submit restitution
information. According to Mr. Kerkhoff, he was unaware that restitution
would be available.
The West Valley City District Court and the Utah Attorney General’s
Office moved to dismiss for failure to state a claim. See Fed. R. Civ. P.
12(b)(6). The district court granted the motion, reasoning that (1) the
doctrine of claim preclusion barred the claims against the West Valley City
District Court and (2) both defendants avoided liability because of
Eleventh Amendment immunity and expiration of the statute of limitations.
Mr. Kerkhoff appeals, appearing pro se. We affirm because Mr. Kerkhoff
has not challenged some of the district court’s rationales for the order of
dismissal. 1
We engage in de novo review of the district court’s dismissal.
Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013). Because Mr.
1
When Mr. Kerkhoff appealed, the district court had not disposed of
the claims against four other defendants. But while the appeal was
pending, the district court entered a final decision terminating the
remaining claims. Thus, if the notice of appeal was premature, it has
ripened, creating appellate jurisdiction. Fields v. Okla. State Penitentiary,
511 F.3d 1109, 1111 (10th Cir. 2007). Mr. Kerkhoff has not appealed the
rulings made during the pendency of this appeal.
2
Kerkhoff appears pro se, we construe his filings liberally. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Even liberally construed, Mr. Kerkhoff’s appeal briefs do not address
two of the district court’s reasons for dismissing the claims: Eleventh
Amendment immunity and the statute of limitations. Instead, Mr. Kerkhoff
contends that a prior action was improperly dismissed. 2 We might credit
these contentions as an attack on the district court’s determination that
claim preclusion bars his current claims against the West Valley City
District Court. But even if we were to agree with Mr. Kerkhoff on claim
preclusion, he has not addressed the district court’s rationales based on
Eleventh Amendment immunity and the statute of limitations. As a result,
we would decline to disturb the district court’s order of dismissal even if
we were to credit Mr. Kerkhoff’s appellate arguments. See Bones v.
Honeywell Int’l, Inc., 366 F.3d 869, 877 (10th Cir. 2004) (holding that the
plaintiff waived the alternative ground given by the district court by
challenging only the district court’s first ground for the ruling).
2
In 2001, Mr. Kerkhoff brought a federal action against the Utah
Third District Court (among others). Mr. Kerkhoff alleged that the Third
District Court had failed to notify him of court proceedings. This 2001
claim against the Third District Court was dismissed based on Eleventh
Amendment immunity.
3
We affirm.
Entered for the Court
Robert E. Bacharach
Circuit Judge
4