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

                            FOR THE TENTH CIRCUIT               August 31, 2017
                        _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
DAVID WEBB,

     Plaintiff - Appellant,

v.
                                                      No. 16-4199
STATE OF UTAH; ALPINE CITY;                  (D.C. No. 1:16-CV-00017-JNP)
AMERICAN FORK CITY; BLUFFDALE                           (D. Utah)
CITY; BOUNTIFUL CITY; BRIGHAM
CITY; CEDAR CITY; CEDAR HILLS
CITY; CENTERVILLE CITY;
CLEARFIELD CITY; CLINTON CITY;
COTTONWOOD HEIGHTS CITY;
DRAPER CITY; EAGLE MOUNTAIN
CITY; ENOCH CITY; EPHRAIM CITY;
FARMINGTON CITY; FARR WEST
CITY; GRANTSVILLE CITY;
HARRISVILLE CITY; HEBER CITY;
HERRIMAN CITY; HIGHLAND CITY;
HOLLADAY CITY; HOOPER CITY;
HURRICANE CITY; HYRUM CITY;
IVINS CITY; KAYSVILLE CITY;
LAYTON CITY; LEHI CITY; LOGAN
CITY; OGDEN CITY; OREM CITY;
PARK CITY; PAYSON CITY; PLAIN
CITY; PLEASANT GROVE CITY;
PLEASANT VIEW CITY; PRICE CITY;
PROVIDENCE CITY; PROVO CITY;
RICHFIELD CITY; RIVERDALE CITY;
RIVERTON CITY; ROOSEVELT CITY;
ROY CITY; ST. GEORGE CITY; SALT
LAKE CITY; SANDY CITY; SANTA
CLARA CITY; SANTAQUIN CITY;
SARATOGA SPRINGS CITY; MIDVALE
CITY; MOAB CITY; MURRAY CITY;
NEPHI CITY; NIBLEY CITY; NORTH
LOGAN CITY; NORTH OGDEN CITY;
NORTH SALT LAKE CITY;
SMITHFIELD CITY; SOUTH JORDAN
CITY; SOUTH OGDEN CITY; SOUTH
SALT LAKE CITY; SOUTH WEBER
CITY; SPANISH FORK CITY;
SPRINGVILLE CITY; SUNSET CITY;
SYRACUSE CITY; CITY OF
TAYLORSVILLE; CITY OF TOOELE;
TREMONTON CITY; VERNAL CITY;
WASHINGTON TERRACE CITY; WEST
BOUNTIFUL CITY; WEST HAVEN
CITY; WEST JORDAN CITY; WEST
POINT CITY; WEST VALLEY CITY;
WOODS CROSS CITY,

      Defendants - Appellees.

–––––––––––––––––––––––––––––––––––

DAVID WEBB,

      Plaintiff - Appellant,

v.
                                                           No. 16-4201
HEATHER S. WHITE, Attorney, Snow                   (D.C. No. 2:15-CV-00512-DN)
Christensen & Martineau; FRANK                               (D. Utah)
MYLAR, Attorney, Mylar Law PC;
SNOW CHRISTENSEN & MARTINEAU;
MYLAR LAW; R. BLAKE HAMILTON;
ASHLEY M. GREGSON; DURHAM
JONES & PINEGAR,

      Defendants - Appellees.
                      _________________________________

                               ORDER AND JUDGMENT*


*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of these appeals. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are 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,

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                         _________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
                   _________________________________

       Upset at the dismissal of some claims in his wrongful-arrest suit, Plaintiff David

Webb filed two suits against those he deemed responsible for the dismissals. The United

States District Court for the District of Utah dismissed these two follow-on suits for lack

of jurisdiction and Plaintiff appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we

agree with the dismissals but remand with instructions to dismiss the two suits without

prejudice.

       I.     Background1

       The genesis of this dispute was an allegedly wrongful arrest of Plaintiff on July

20, 2011. He sued the Weber County Government and numerous other government

officials and police officers on several federal-law and state-law claims. The court

dismissed some defendants on various grounds, including immunity and qualified

immunity, in March 2015.

       Four months later, in July 2015, Plaintiff sued the attorneys who represented the

dismissed defendants (the Attorney Defendants), claiming that their assertions of

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
1
  As the district court noted, Plaintiff’s complaints and arguments are difficult to follow.
See R. (16-4201) at 329 (“The vast majority of the [complaint] is not factual narrative,
but rather is legal argument and conclusions. The facts alleged are limited, vague, and
difficult to discern, as they are intertwined with Plaintiff’s oft repeated legal argument
and conclusions.” (footnotes omitted)). Although we grant pro se pleadings a “generous
construction,” and read them “more liberally than those composed by lawyers,”
Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1024 (10th Cir. 2012), this
generosity “has limits,” id.

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immunity and qualified immunity violated his rights and led to the wrongful dismissal of

his claims. According to Plaintiff, Utah and (presumably) all its subdivisions and

employees were barred from asserting immunity because of receipt of federal funds under

42 U.S.C. § 2000d-7. He sought an injunction barring any future assertion of immunity

or qualified immunity, “general damages as . . . proven at a trial,” and $304 for towing-

related fees. R. (16-4201) at 296–97.

       In February 2016, Plaintiff filed suit against Utah and some of its subdivisions (the

State Defendants), challenging the assertion of qualified immunity and immunity. He

again claimed that their invocations of immunity resulted in the dismissal of his claims.

He requested injunctive relief barring the assertions of immunity and one billion dollars

in damages.

       The district court dismissed both complaints for lack of the standing necessary for

subject-matter jurisdiction because Plaintiff had not adequately alleged any injury to

himself traceable to the Defendants. The court further held that if it had jurisdiction, it

would dismiss the complaints because they failed to state a claim upon which relief could

be granted. The district court dismissed both complaints with prejudice.

       II.    Discussion

       We are not as confident as the district court that Plaintiff lacked standing. To

establish standing, a party must “demonstrate that he has suffered injury in fact, that the

injury is fairly traceable to the actions of the defendant, and that the injury will likely be

redressed by a favorable decision.” Bennett v. Spear, 520 U.S. 154, 162 (1997) (internal

quotation marks omitted). Although not a model of clarity, Plaintiff’s complaints allege


                                               4
that his prior claims were dismissed because of the improper assertion of immunity by the

Defendants. This allegation of injury would seem to be fairly traceable to Defendants,

and to be redressable through money damages.

       But we need not resolve the issue because Plaintiff’s claims are not sufficiently

colorable to confer jurisdiction. “[A] court may dismiss for lack of subject-matter

jurisdiction ‘when the claim is so insubstantial, implausible, foreclosed by prior decisions

of this Court, or otherwise completely devoid of merit as not to involve a federal

controversy. . . .’” McKenzie v. U.S. Citizenship & Immigration Servs., 761 F.3d 1149,

1156–57 (10th Cir. 2014) (quoting Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83,

89 (1998)). Though Plaintiff casts it in different ways, his entire argument is based on his

theory that 42 U.S.C. § 2000d-7 bars Utah from invoking any immunity doctrines. That

statute states:

       A State shall not be immune under the Eleventh Amendment of the
       Constitution of the United States from suit in Federal court for a violation
       of section 504 of the Rehabilitation Act of 1973 [29 U.S.C.A. § 794], title
       IX of the Education Amendments of 1972 [20 U.S.C.A. § 1681 et seq.], the
       Age Discrimination Act of 1975 [42 U.S.C.A. § 6101 et seq.], title VI of
       the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or the
       provisions of any other Federal statute prohibiting discrimination by
       recipients of Federal financial assistance.

42 U.S.C. § 2000d-7(a). Stretch our imagination as we might, we fail to see in Plaintiff’s

allegations a basis for any cause of action.2 Perhaps he is asserting that § 2000d-7 creates


2
  Plaintiff asserts causes of action under ten sources of law against the State Defendants:
(1) 42 U.S.C. § 1983; (2) the First Amendment; (3) the Fourteenth Amendment; (4) 42
U.S.C. § 2000d (Title VI of the Civil Rights Act of 1964); (5) the Utah Constitution; (6)
Intentional Infliction of Emotional Distress; (7) Negligent Infliction of Emotional
Distress; (8) Willful Misconduct; (9) Vicarious Liability; and (10) 18 U.S.C. § 1964(c)

                                             5
a federal right whose violation can be remedied under 42 U.S.C. § 1983. See Blessing v.

Freestone, 520 U.S. 329, 340 (1997) (“In order to seek redress through § 1983, . . . a

plaintiff must assert the violation of a federal right, not merely a violation of federal

law.”). But a federal statute cannot create such a right absent rights-creating language.

See Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002) (statutory provisions relied on by

Plaintiff “fail to confer enforceable rights” under § 1983 because they “entirely lack the

sort of ‘rights-creating’ language critical to showing the requisite congressional intent to

create new rights” (internal quotation marks omitted)). As the Supreme Court explained:

       [W]hether a statutory violation may be enforced through § 1983 . . . .
       [requires] determin[ing] whether Congress intended to create a federal
       right. Thus we have held that the question whether Congress intended to
       create a private right of action is definitively answered in the negative
       where a statute by its terms grants no private rights to any identifiable class.
       For a statute to create such private rights, its text must be phrased in terms
       of the persons benefited.

Id. at 283–84. (internal quotation marks and alterations omitted). There is nothing close

to rights-creating language in § 2000d-7.

       We therefore hold that the district court lacked jurisdiction over Plaintiff’s claims.

A dismissal for lack of subject-matter jurisdiction, however, should be without prejudice.

See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006). Thus we

REVERSE the district court’s dismissal with prejudice and REMAND with instructions




(RICO). And he asserts causes of action under nine sources of law against the Attorney
Defendants: (1) 42 U.S.C. § 1983; (2) the First Amendment; (3) the Fourteenth
Amendment; (4) 42 U.S.C. § 2000d-7; (5) Title VI of the Civil Rights Act of 1964; (6) 18
U.S.C. § 1964(c) (RICO); (7) Intentional Infliction of Emotional Distress; (8) Negligent
Infliction of Emotional Distress; and (9) 42 U.S.C. § 1981.

                                              6
to dismiss Plaintiff’s cases without prejudice.

                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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