                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                          August 18, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
DEREK THIESS,

      Plaintiff - Appellant,

v.                                                          No. 19-1394
                                                (D.C. No. 1:17-CV-02261-PAB-SKC)
CITY OF WHEAT RIDGE, COLORADO,                               (D. Colo.)
a home rule municipality; KENNETH
JOHNSTONE, in his individual capacity,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and MORITZ, Circuit Judges.
                 _________________________________

      Derek Thiess claims that the City of Wheat Ridge, Colorado, and the head of

the city’s building department, Kenneth Johnstone, subjected him to frequent,

arbitrary harassment as he tried to expand and remodel a home. Thiess sued,

asserting various claims under both federal and state law. Defendants moved to

dismiss, and Thiess never responded to that motion. The district court eventually



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
granted the motion with prejudice as to Thiess’s federal claims and declined

jurisdiction over his state-law claims.

      Thiess now appeals that ruling. We have jurisdiction under 28 U.S.C. § 1291,1

and we affirm.

I.    STANDARD OF REVIEW

      The parties dispute the appropriate standard of review in light of Thiess’s

failure to respond to the motion to dismiss. Defendants say the most this court may

do is review for plain error—and because Thiess does not assert plain error, this court

must affirm. Cf. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011)

(“[T]he failure to argue for plain error and its application on appeal . . . surely marks

the end of the road for an argument for reversal not first presented to the district

court.”). Thiess counters that the traditional de novo standard still applies.

      Because we find that we would reach the same outcome even under de novo

review, we will apply that standard. We leave for another day the question of what

standard of review applies in circumstances such as these, where a party fails to

respond to a motion to dismiss and then appeals from the order granting that motion

on the merits.

      Under de novo review, we apply the same standard as the district court, i.e.,

we “assume the[] veracity” of the plaintiff’s “well-pleaded factual allegations,” and

      1
         See Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1209 n.1
(10th Cir. 2000) (“Federal appeals courts have consistently held . . . that they have
jurisdiction to review a district court order dismissing federal claims on the merits
where the district court subsequently exercised its discretion under [28 U.S.C.]
§ 1367 to remand supplemental state law claims to state court.”).
                                            2
then ask whether the complaint “contain[s] sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

678, 679 (2009) (internal quotation marks omitted).

II.    BACKGROUND & PROCEDURAL HISTORY

       We accept as true the following allegations from Thiess’s second amended

complaint (his final complaint in the district court).

       Thiess is a general contractor who operates through his company, The

Mystinfield Group, LLC, to remodel homes. He is also a manager of Colleton

Holdings, LLC, which purchased a residential property in Wheat Ridge in September

or October 2011. The Wheat Ridge Housing Authority, “an entity closely tied to

[defendant] Kenneth Johnstone,” had been planning to buy the same property, but

Colleton bought it first. Aplt. App. at 22.

       Colleton contracted with Thiess’s company, Mystinfield, to remodel the home

and construct an addition. For the next few years, Thiess ran into frequent and

unusual red tape within Wheat Ridge’s building department, which Johnstone

supervised. For example, the building department sometimes delayed or rejected

permits for spurious reasons, such as for submitting plans on the wrong color of

paper even though the department had no paper color requirement. When the

department granted permits, it granted them for a shorter duration than was otherwise

typical. Sometimes the department would issue violation notices against the property

before having inspected it for the violation in question.



                                              3
         At the direction of Johnstone or others within city management, the Wheat

Ridge Police Department closely monitored the property for signs of unpermitted

activity and encouraged a neighbor to make complaints in that regard. On at least

one occasion, the building department ordered remedial measures on the property and

then, when Mystinfield’s subcontractor went out to perform that remediation, the

police cited the subcontractor for unpermitted work.

         At Johnstone’s and a city councilmember’s instigation, the city brought a

municipal criminal action against Thiess in February 2015, alleging building code

violations—the only time on record the city had criminally prosecuted such

violations. In June 2015, while the original prosecution was still pending, the city

instituted a second prosecution, alleging that Thiess had been working without a

permit on a particular day—“a day Thiess was not even present in Wheat Ridge.” Id.

at 39.

         In September 2015, the city dropped both prosecutions at Johnstone’s

direction. By this time, however, Thiess had decided he could no longer endure the

“targeted harassment,” and he listed the property for sale. Id. at 42.

         While the property was on the market, the building department continued to

issue violation notices, apparently including a violation based on attempting to sell

the property without a city permit. Eventually Thiess obtained the necessary permit.

He—or, more accurately, Colleton—sold the property at a loss in April 2016.

         The city treated the new owner and developer “very differently,” and did not

“subject[] [them] to the same building code requirements.” Id. at 45. The new owner

                                            4
resold the property in February 2017 for more than double the price at which it

bought the property from Colleton.

      Based on the foregoing, Thiess himself (not Colleton or Mystinfield) brought

suit, alleging federal constitutional causes of action (by way of 42 U.S.C. § 1983) and

common-law torts. Thiess’s constitutional causes of action comprised:

            arbitrarily treating Thiess differently as compared to similarly situated

             contractors, in violation of the Equal Protection Clause of the

             Fourteenth Amendment—i.e., a “class of one” claim, see Village of

             Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (“Our

             cases have recognized successful equal protection claims brought by a

             ‘class of one,’ where the plaintiff alleges that she has been intentionally

             treated differently from others similarly situated and that there is no

             rational basis for the difference in treatment.”); and

            a municipal custom, practice, or policy of arbitrarily treating Thiess

             differently as compared to similarly situated contractors, thus making

             the city liable for the class-of-one Equal Protection violation, per the

             doctrine of municipal liability established in Monell v. Department of

             Social Services, 436 U.S. 658 (1978).2

      Defendants moved to dismiss, arguing under Federal Rule of Civil Procedure

12(b)(1) that Thiess lacked standing to sue because the asserted injuries were really

      2
        Thiess also brought a First Amendment retaliation claim, which the district
court eventually dismissed and which Thiess has abandoned on appeal. See Aplt.
Opening Br. at 2 (“[The First Amendment] claim will not be briefed.”).
                                           5
Colleton’s or Mystinfield’s, and alternatively arguing under Rule 12(b)(6) that Thiess

had failed to plead plausible constitutional claims. Defendants also urged the district

court to decline supplemental jurisdiction over the state-law claims.

       As already noted, Thiess never responded to defendants’ motion. A little over

a year later, the district court issued its decision. See Thiess v. City of Wheat Ridge,

No. 17-CV-02261-PAB-SKC, 2019 WL 4511630 (D. Colo. Sept. 19, 2019). The

district court addressed Thiess’s claims on their merits, despite his failure to respond.

Cf. Issa v. Comp USA, 354 F.3d 1174, 1178 (10th Cir. 2003) (“[E]ven if a plaintiff

does not file a response to a motion to dismiss for failure to state a claim, the district

court must still examine the allegations in the plaintiff’s complaint and determine

whether the plaintiff has stated a claim upon which relief can be granted.”).

       The district court mostly agreed with defendants that Thiess’s alleged injuries

belonged to Colleton or Mystinfield, meaning Thiess did not have prudential standing

to bring claims based on those injuries. Thiess, 2019 WL 4511630, at *4–8. The

district court found, however, that the city brought its two criminal prosecutions

against Thiess personally, so Thiess himself could sue for redress of those injuries.

Id. at *8.

       The district court then turned to Thiess’s class-of-one Equal Protection claim,

to the extent it could be connected to the criminal prosecutions. The district court

found that the claim could not satisfy the high pleading standard described in Kansas

Penn Gaming, LLC v. Collins, 656 F.3d 1210 (10th Cir. 2011), and related decisions.



                                             6
Thiess, 2019 WL 4511630, at *9. And, having failed to plead a viable Equal

Protection claim, Thiess’s Monell claim against the city likewise failed. Id. at *10.

       Finally, the district court accepted defendants’ invitation to decline

supplemental jurisdiction over the state-law tort claims. Thus, the court dismissed

the Equal Protection claim with prejudice and the state-law claims without prejudice

to refiling in state court. Id. at *10–11; see also 28 U.S.C. § 1367(c)(3) (“The district

court[] may decline to exercise supplemental jurisdiction . . . [if it] has dismissed all

claims over which it has original jurisdiction . . . .”).

III.   ANALYSIS

       Thiess now appeals the district court’s dismissal order, but Thiess offers no

challenge to the district court’s standing analysis, nor its decision not to exercise

supplemental jurisdiction over the state-law claims. Thus, the only issue before us is

whether Thiess’s allegations of criminal prosecution for building code violations

plausibly state a class-of-one Equal Protection claim—and, if so, whether Thiess has

plausibly alleged that his injuries flow from the city’s actions, thus permitting Monell

liability. On these questions, we are in substantial agreement with the district court

that Thiess’s allegations regarding the criminal prosecutions brought against him do

not meet the high bar described in Kansas Penn Gaming for class-of-one claims. See

656 F.3d at 1215–19. And, in that light, Thiess has no constitutional violation to

attribute to the city through Monell.

       Thiess alternatively requests that we “remand with directions to allow [him] to

amend his class of one equal protection claim and Monell claims to more specifically

                                             7
set forth the identity and characteristics of the similarly situated properties that were

treated differently and without any rational basis therefor.” Aplt. Opening Br. at 15.

This is effectively an argument that the district court erred by dismissing Thiess’s

federal claims with prejudice, rather than with leave to amend. Thiess nowhere

acknowledges that we review such decisions for abuse of discretion. See Hall v.

Witteman, 584 F.3d 859, 868 (10th Cir. 2009); United States ex rel. Stone v. Rockwell

Int’l Corp., 282 F.3d 787, 809 (10th Cir. 2002). Nor does Thiess explain how the

district court abused its discretion when Thiess neither responded to the motion to

dismiss nor asked the district court for leave to amend. Cf. Calderon v. Kan. Dep’t of

Soc. & Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999) (“[N]ormally a court

need not grant leave to amend when a party fails to file a formal motion.”).

“Arguments inadequately briefed in the opening brief,” like this one, “are waived.”

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998).

IV.   CONCLUSION

      For the reasons stated, we affirm the judgment of the district court.


                                             Entered for the Court


                                             Jerome A. Holmes
                                             Circuit Judge




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