                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       July 13, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    V ICTO R O RV IS; D ESIG N
    FA BRICATORS, a Utah Corporation,

             Plaintiffs-Appellants,
                                                        No. 05-4235
     v.                                           (D.C. No. 2:03-CV-430)
                                                         (D. Utah)
    PLEASANT GROVE CITY, a
    municipal corporation; EDW AR D T.
    SAND ERSON; CAROL HARM ER;
    DA RO LD M CD AD E; BETTY
    M EM M OTT; JIM DAN KLEF; M ARK
    A TW O O D ; K EITH CO RR Y; TINA
    PETERSO N, individually and in her
    capacity as Pleasant Grove City
    Attorney; STAN KLEM ETSON; JIM
    TA UFER; FRA NK M ILLS,

             Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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 Victor O rvis and his business enterprise, Design Fabricators, Inc.,

brought federal civil rights and state tort claims against defendants, the

municipality of City of Pleasant Grove, Utah and individual city officials (the

City). The district court entered summary judgment in favor of the City and

M r. O rvis appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm.

                                          I.

      M r. Orvis operated Design Fabricators, a metal fabricating business, from

his residence. From 1997 through much of 2002, he did not have the

home-occupancy business license required by the City code. In July 2001, the

City informed M r. Orvis and other unlicensed operators of home-based businesses

that they must obtain the license applicable to their type of business. M r. Orvis

applied for a minor-home-occupancy license, describing his business as a home

office. The City questioned the propriety of this application, suspecting that

Design Fabricators was actually an operation that required a major-home-

occupancy license.

      In September 2001, the City sent an inspector and a police officer to

investigate the operation of Design Fabricators. M r. Orvis refused to allow the

inspector full access to his property, in the belief that the requested search was

illegal, discriminatory, and retaliatory. Two months later, the City issued

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citations for operating a business without a license. M r. Orvis was convicted of

these misdemeanor offenses in the Utah Justice Court, Utah County. He then

appealed to the state district court, which rejected his arguments and affirmed the

ruling of the justice court. M r. Orvis then entered a guilty plea, submitted to

sentencing, and appealed to the Utah Court of Appeals. His criminal appeal is

currently pending.

      Also, M r. Orvis was a member of the City’s Planning Commission from

January 1999 through December 2001. He alleges that the City prematurely and

illegally removed him from the Commission in retaliation for his outspoken

opposition of incumbent city officials. For its part, the City asserts that

M r. Orvis’s term simply expired at the end of 2001. It admits that there was

initially some confusion over the length of M r. Orvis’s term, but claims that a

later review indicated that he was appointed only for the duration of a resigning

Commissioner’s term.

                                          II.

      M r. Orvis filed this civil lawsuit for damages while his appeal of the

criminal case was pending in state district court. His civil complaint alleged that,

in prosecuting him for ordinance violations and removing him from the Planning

Commission, defendants violated his constitutional rights to freedom of speech,

equal protection, and due process and also conspired to violate these rights.

Additionally, he brought state-law claims of intentional interference with

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economic relations, trespass, and intentional infliction of emotional distress.

Later, M r. O rvis amended the complaint to add Design Fabricators as a plaintiff.

      The City filed a motion to dismiss claims arising from the business-license

prosecution, arguing that Younger v. Harris, 401 U.S. 37 (1971), required federal

abstention due to the criminal appeal which, at that time, was pending in state

district court. It also moved for summary judgment based on the Utah

Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to -20 (2003)

(governing injuries alleged to be caused by a governmental entity that occurred

before July 1, 2004; repealed and reenacted as U tah Code Ann. §§ 63-30d-101 to

-904), and a failure to demonstrate disputed issues of material fact. M r. Orvis

opposed the City’s filings. In particular, he argued that Younger abstention was

inappropriate.

      By the time the federal district court ruled on the City’s motions, M r. Orvis

had lost his first-level criminal appeal. The district court denied the City’s

Younger motion to dismiss.

      Turning to the summary judgment motion, the court decided that

M r. O rvis’s state law claims were barred by governmental immunity. See Pigs

Gun Club, Inc. v. Sanpete C ounty, 42 P.3d 379, 383-83 (Utah 2002) (setting out

criteria for governmental immunity defense). It then determined that the state

district court’s decision had a preclusive effect on all claims relating to the City’s

handling of business-license matters. Concerning claims based on removal from

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the Planning Commission, the court determined that the record did not

demonstrate any relevant material issues of fact. The district court therefore

granted summary judgment in favor of the City and dismissed the entire case.

                                          III.

      The first issue on appeal raises a threshold question: whether the Younger

doctrine barred the district court from making a substantive ruling on claims

arising from the business-license prosecution. M r. Orvis’s appellate position is

that the doctrine required the district court to either stay these claims w hile

state-court proceedings were ongoing or dismiss them without prejudice.

      The district court’s decision that abstention was not required under Younger

is subject to de novo review. Weitzel v. Div. of Occupational and Prof’l

Licensing, 240 F.3d 871, 875 (10th Cir. 2001). Under the Younger doctrine,

“[e]ven when a federal court would otherwise have jurisdiction to hear a claim,

the court may be obliged to abstain when a federal-court judgment on the claim

would interfere with an ongoing state proceeding implicating important state

interests.” D.L. v. Unified School Dist. No. 497, 392 F.3d 1223, 1227-28

(10th Cir. 2004).

      A Younger argument, however, may be waived. W hen a litigant has

“voluntarily submitted to a federal forum . . . the principles of comity underlying

the Younger abstention doctrine do not demand that the federal court force the




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case back into the State’s own system.” M orrow v. Winslow, 94 F.3d 1386,

1390-91 (10th Cir. 1996) (quotations omitted).

      M r. Orvis did not assert a Younger argument in district court. Indeed, he

argued vigorously against the City’s dismissal motion, stating that his “claims in

this federal action are in no way calculated to interfere w ith the state court

action” and that “in light of the requirements of the Younger abstention

doctrine . . . dismissal in this case would be inappropriate.” Aplt. App. at 8. M r.

Orvis has explicitly waived issues related to abstention under Younger. He may

no longer claim that the Younger doctrine required the district court to refrain

from ruling on his business-license claims until the completion of state

proceedings. 1

1
       M r. Orvis also argues that his business-license claims should have been
dismissed without prejudice because they are premature until he succeeds in his
state court appeal. Aplt. Br. at 13. It is true that a § 1983 plaintiff who has been
convicted in a criminal prosecution cannot challenge the process leading to his
conviction unless and until the conviction has been invalidated. See Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). It is equally true that if an appellant
“failed to make [an] argument in the district court, we conclude that the argument
has been waived and decline to consider it.” Oliveros v. M itchell, 449 F.3d 1091,
1095 (10th Cir. 2006). And this court has noted that a Heck defense is not
jurisdictional. See Jiron v. City of Lakewood 392 F.3d 410, 413, n.1 (10th Cir.
2004) (citing Okoro v. Bohman, 164 F.3d 1059, 1061 (7th Cir. 1999)).

       W e find no indication in the record before us that M r. Orvis argued this
issue in district court. His response to the City’s summary judgment motion
stated that he w as “able to meet [his] burden of going forward on [his]
constitutional claims” and that he should be allowed “to proceed to trial.” Aplt.
App. at 50. W e therefore do not consider his prematurity argument on appeal.
See Jiron, 392 F.3d at 410, n.1 (evaluating the substance of plaintiff’s claims
                                                                        (continued...)

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                                         III.

      The second issue on appeal is whether the district court’s summary

judgment ruling failed to give appropriate consideration to the parties’

presentation of factual evidence. “[W]e review the district court’s grant of

summary judgment de novo, applying the same legal standards as employed by

the district court. In doing so, we review the record in the light most favorable to

the party opposing summary judgment.” B-S Steel of Kan., Inc. v. Tex. Indus.,

439 F.3d 653, 660 (10th Cir. 2006) (quotation omitted). Summary judgment is to

be granted if “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law .” Fed. R. Civ. P. 56(c).

      The district court applied the doctrine of res judicata to dispose of the

claims relating to the business-license prosecution. This doctrine “forecloses

litigation of [claims or] issues which were actually decided or could have been

decided in a previous action.” Santana v. City of Tulsa, 359 F.3d 1241, 1246 n.3

(10th Cir. 2004). Res judicata applies if four elements are satisfied: (1) the prior

suit must have ended with a judgment on the merits; (2) the parties must be

identical or in privity; (3) the suit must be based on the same cause of action; and

1
 (...continued)
“because the district court dismissed [the] entire set of claims, with prejudice, and
because Heck at best would only support a dismissal without prejudice”).

                                          -7-
(4) the plaintiff must have had a full and fair opportunity to litigate the claim in

the prior suit.” Plotner v. AT & T Corp., 224 F.3d 1161, 1168 (10th Cir. 2000).

       The court determined that all four elements were met. Following recent

Utah law , the court decided that, for res judicata purposes, M r. Orvis’s state

criminal conviction was a final adjudication until reversed, modified, or set aside.

See Youren v. Tintic Sch. Dist., 86 P.3d 771, 773 (Utah Ct. App. 2004). Also,

M r. Orvis does not argue that the parties and causes of action were not identical

or that he lacked a full and fair opportunity to pursue his contentions in state

court. 2   The record does not reveal any legal error in the district court’s res

judicata ruling.

       M oreover, we conclude that the district court correctly entered summary

judgment on M r. Orvis’s claims arising from the termination of his service on the

Planning Commission. As the district court noted, M r. Orvis failed to come

forward with evidence that his removal from the Commission was in retaliation

for his exercise of free speech, a restriction of a liberty or property interest, or a

violation of his equal protection rights.



2
       Appellants’ Appendix does not provide any documentation from
M r. Orvis’s appeal to the Utah Court of Appeals. Thus, this court cannot describe
the issues before that court with any certainty. “A party who seeks to reverse the
decision of a district court must provide an adequate record for this court to
determine that error was committed.” Travelers Indem. Co. v. Accurate
Autobody, Inc., 340 F.3d 1118, 1119 (10th Cir. 2003); see also 10th Cir. R.
30.1(A)(1) (stating that “[t]he appellant must file an appendix sufficient for
considering and deciding the issues on appeal”).

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The judgment of the district court is AFFIRMED.


                                          Entered for the Court


                                          M ary Beck Briscoe
                                          Circuit Judge




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