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

                             FOR THE TENTH CIRCUIT                          April 8, 2019
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 DONNA DROWN,

       Plaintiff - Appellant,

 v.                                                        No. 18-4079
                                                   (D.C. No. 2:16-CV-01273-DB)
 UTAH STATE OFFICE OF                                        (D. Utah)
 EDUCATION; BENJAMIN
 RASMUSSEN; MURRAY CITY
 SCHOOL DISTRICT; STEVEN HIRASE,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, MORITZ, and EID, Circuit Judges.
                  _________________________________

      Donna Drown, proceeding pro se, appeals from the district court’s dismissal of

her lawsuit against the Utah State Board of Education (named as the Utah State

Office of Education) (the Board), the Board’s employee Benjamin Rasmussen, the

Murray City (Utah) School District (MCSD), and MCSD’s employee Steven Hirase.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  BACKGROUND

      Drown was a sixth-grade teacher employed by MCSD. In the 2012-2013

school year, she had a student (B) who acted out. B was larger and stronger than

Drown and would become enraged and violent without warning, sometimes flipping

chairs and tables. B’s behavior aggravated Drown’s diagnosed Post-Traumatic Stress

Disorder (PTSD). Although Drown informed school officials about B’s behavior and

her concern for other students, B remained in her class. When Drown told

Superintendent Hirase that she was obliged to inform parents of a threat to their

children’s safety under Utah Code § 53A-13-302(6)(b),1 he said she had

misinterpreted the law and directed her not to notify parents.

      In May 2013 when a substitute teacher was teaching Drown’s class, B threw a

chair at another student. As she anticipated missing several more days, Drown was

concerned that B would continue to behave violently, and substitute teachers would

not be able to protect the other students. Because of these concerns, she sent a letter

home to parents warning of the unpredictable volatility of an unidentified student in

the classroom.

      MCSD immediately suspended Drown for sending the letter and then

terminated her employment in July 2013. Drown successfully availed herself of

post-termination process, however, and on or about February 1, 2014, MCSD

reinstated her with backpay and removed the termination paperwork from her district



      1
          Now Utah Code § 53E-9-203(6)(b).
                                           2
personnel file. Drown continued to work for MCSD until she voluntarily resigned at

the end of the 2015-2016 school year.

        While Drown’s termination proceedings and appeal were ongoing, the Board,

acting through the Utah Professional Practices Advisory Commission, initiated an

investigation based on a complaint from B’s family. On or about May 20, 2013, the

Board placed a “tag” regarding its investigation on Drown’s file in the Computer

Aided Credentials of Teachers in Utah System (CACTUS), an electronic database

that education personnel throughout the state could access and review. The tag

remained on Drown’s CACTUS file throughout the investigation.

        Although the Board’s investigator recommended that Drown be given a private

letter of warning, the Board chose a more severe sanction. Rasmussen, the Board’s

Director of Law and Professional Practices, issued a January 2, 2015, letter of

reprimand for Drown’s failure to follow Hirase’s directive. The letter eventually was

removed from the CACTUS database, but not Drown’s paper professional licensing

file.

        Drown sued the Board, Rasmussen, MCSD, and Hirase under the Americans

with Disabilities Act (ADA), the Rehabilitation Act, and 42 U.S.C. § 1983. She also

sought extraordinary relief under Utah Rule of Civil Procedure 65B. After review of

the defendants’ motions for judgment on the pleadings and Drown’s responses

thereto, the magistrate judge recommended dismissing all of Drown’s claims. Over

Drown’s objection, the district court adopted the magistrate judge’s recommendations

and dismissed her claims with prejudice.

                                           3
                                    DISCUSSION

      We review a dismissal on the pleadings de novo, applying the same standards

as those applicable to a Fed. R. Civ. P. 12(b)(6) dismissal. Corder v. Lewis Palmer

Sch. Dist. No. 38, 566 F.3d 1219, 1223 (10th Cir. 2009). Under these standards, “a

complaint must contain 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 (2009)

(internal quotation marks omitted). “The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. (internal quotation marks omitted). Accordingly, a

complaint is insufficient “where the well-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct.” Id. at 679 (brackets and internal

quotation marks omitted).

      As a pro se litigant, Drown is entitled to liberal construction of her filings.

Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018), cert. denied, 139 S. Ct.

800 (2019). But we will not act as her attorney, and we address only the claims she

challenges on appeal. See id.

I.    ADA Claims2

      A.     Claims Against State Defendants

      Drown asserted a claim against the Board and Rasmussen (collectively, the

State Defendants) under 42 U.S.C. § 12112, which prohibits a “covered entity” from


      2
       The district court granted judgment to the defendants on Drown’s
Rehabilitation Act claims for the same reasons it had given for dismissing her ADA
                                           4
discriminating against qualified individuals with disabilities. The term “covered

entity” refers to “employer, employment agency, labor organization, or joint

labor-management committee.” Id. § 12111(2). The district court dismissed this

claim as to the State Defendants because they were not Drown’s employer.

      Drown acknowledges that she was employed by MCSD, but she asserts that in

issuing the letter of reprimand, the State Defendants acted as agents of MCSD and

therefore also qualify as her employer. See id. § 12111(5)(A) (providing that the

term “employer” includes an agent of an employer). We cannot agree with Drown,

however, that in undertaking the Board’s independent disciplinary review of Drown’s

conduct, the State Defendants became agents of MCSD and therefore “covered

entities” under § 12112 with regard to Drown. We therefore affirm the dismissal of

the § 12112 claims with regard to the State Defendants.

      Drown further asserted a claim against the Board under 42 U.S.C. § 12132,

which provides that “no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any

such entity.” The parties’ pleadings and briefing focused on the “be excluded from

participation in or be denied the benefits of” clause (the exclusion clause), and the

district court concluded that Drown never was denied the benefits of the Board’s



claims. See 29 U.S.C. § 794(d) (adopting ADA standards for Rehabilitation Act
claims). On appeal, Drown does not challenge applying the same standards to the
two sets of claims and does not separately address her Rehabilitation Act claims.
                                           5
services and programs. On appeal, however, Drown argues that the parties and the

court erred in not also analyzing the “be subjected to discrimination by any such

entity” clause (the discrimination clause). She acknowledges that the parties,

including her, focused on the exclusion clause. But she states that they were wrong

to do so, and she asks that the court instruct the district court to dismiss this claim

without prejudice so that she can re-plead under the discrimination clause.

       Although Drown is entitled to liberal construction of her filings, she must also

follow the same rules of procedure that govern other litigants, including constructing

her own arguments. With Drown having titled her claim as a “[v]iolation of

42 U.S.C. § 12132 . . . . for denying Ms. Drown the benefits of the services,

programs, or activities of [the Board],” R. at 29, it is not surprising that the Board,

and then the court, focused on the exclusion clause rather than the discrimination

clause. Drown did not correct any misapprehension of her claim, however, and

before this court, she acknowledges that to now assert a discrimination claim she

would have to amend her complaint. Although we afford some leniency to pro se

litigants, particularly with regard to amendment, Drown’s pro se status does not

entitle her to now replead her claims.

       Drown also complains that the district court did not cite any law when

rejecting her claim under § 12132. A lack of citation, by itself, is not grounds for

reversing the district court’s decision. And to the extent that Drown appeals from the

district court’s rejection of this claim on the merits, we agree with the district court

that Drown’s allegations, both in her original complaint and in her filings in response

                                            6
to the motions for judgment in the pleadings, fail to “nudge” her § 12132 claim

“across the line from conceivable to plausible.” Iqbal, 556 U.S. at 683 (brackets and

internal quotation marks omitted). We therefore affirm the dismissal of the § 12132

claim.

         B.    Claims Against School Defendants

         Drown asserted claims under § 12112 against MCSD and Hirase (collectively,

the School Defendants) based on their handling of Drown’s complaints about B, her

suspension and termination, and her reinstatement. The district court dismissed these

claims as untimely. Drown’s complaint specified that she had filed a charge with the

Equal Employment Opportunity Commission (EEOC) on or about July 1, 2015. But

the events regarding B, the suspension and termination, and the reinstatement all

ended on or about February 1, 2014, which was more than 300 days before Drown

filed the July 1, 2015, EEOC charge. See Proctor v. United Parcel Serv., 502 F.3d

1200, 1206 (10th Cir. 2007) (stating that for an ADA claim to be timely, a plaintiff

must file an EEOC charge within 300 days of the alleged discrimination).

         On appeal, Drown asserts that if she had been allowed to amend, she would

have alleged that she also filed an earlier EEOC charge against the School

Defendants on or about July 13, 2013. Thus, she submits, her ADA claims against

the School Defendants were timely exhausted. It does not appear, however, that

Drown ever informed the district court of this earlier EEOC charge, and we generally

decline to entertain new arguments on appeal, see Richison v. Ernest Grp., Inc.,

634 F.3d 1123, 1127-31 (10th Cir. 2011). Moreover, Drown does not allege that the

                                           7
instant lawsuit (which she filed in 2016) was filed within 90 days of her receipt of a

right-to-sue letter on the 2013 charge. See Proctor, 502 F.3d at 1206 (stating that a

plaintiff must file suit within 90 days of receiving a right-to-sue letter). We therefore

affirm the judgment in favor of the School Defendants on the ADA claims that were

dismissed as not being timely exhausted.

II.   Section 1983 Claims

      The district court rejected Drown’s claims under § 1983 that the defendants

violated her rights under the ADA and the Rehabilitation Act and her right to due

process. The only part of the § 1983 decision that Drown challenges on appeal is the

district court’s determination that Rasmussen was entitled to Eleventh Amendment

immunity from § 1983 claims. Drown does not contest that the State Defendants

qualify as arms of the state, but she asserts that the district court erred in concluding

that she had not identified any ongoing violation of federal law that would entitle her

to proceed against Rasmussen under Ex parte Young, 209 U.S. 123 (1908).3

      The Eleventh Amendment protects a state and its arms from suit without their

consent. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,

144 (1993). Under Ex parte Young, however, a plaintiff may seek injunctive relief

against a state officer, acting in his official capacity. 209 U.S. at 159. “In

determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment



      3
        Because the Ex parte Young exception applies only to individual defendants,
see P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993),
Drown’s prospective-relief argument applies only to Rasmussen.
                                            8
bar to suit, a court need only conduct a straightforward inquiry into whether the

complaint alleges an ongoing violation of federal law and seeks relief properly

characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md.,

535 U.S. 635, 645 (2002) (brackets and internal quotation marks omitted). But “the

exception is narrow: It applies only to prospective relief, does not permit judgments

against state officers declaring that they violated federal law in the past, and has no

application in suits against the States and their agencies, which are barred regardless

of the relief sought.” P.R. Aqueduct & Sewer Auth., 506 U.S. at 146 (citation

omitted).

       Drown asserts the continued retention in her permanent file of a letter of

reprimand that resulted from discrimination constitutes an ongoing violation of

federal law, and her request to have the letter removed from the file is properly

characterized as prospective relief. We agree with the district court, however, that

these circumstances do not allow application of the Ex parte Young exception.

See Buchheit v. Green, 705 F.3d 1157, 1159 (10th Cir. 2012) (“Because he is merely

seeking to address alleged past harms rather than prevent prospective violations of

federal law, we can only reasonably categorize such relief as retrospective.”).

III.   Claim for Rule 65B Relief

       Drown also sought relief against the State Defendants under Utah Rule of Civil

Procedure 65B, which provides for “extraordinary relief” against certain uses of (or

failures to use) state authority “[w]here no other plain, speedy and adequate remedy



                                            9
is available.” Utah R. Civ. P. 65B(a). The district court dismissed this claim on the

ground that it was improperly brought and untimely.

      The heading of one of Drown’s appellate arguments ostensibly challenges the

dismissal of the Rule 65B claim, but the assertions in the body of the argument seem

to go more toward establishing that Drown timely exhausted her administrative

remedies with regard to her ADA claims against the School Defendants. This

argument fails to show that the district court erred in determining the Rule 65B claim

was improperly brought and untimely. See Gilbert v. Maughan, 379 P.3d 1263,

1268-69 (Utah 2016) (rejecting Rule 65B claim for untimeliness and failure to show

the lack of a “plain, speedy, and adequate remedy”). Accordingly, we affirm the

dismissal of this claim.

IV.   Remaining Issues

      During the briefing on the defendants’ motions, Drown filed documents

denominated as “counterclaims” and requested leave to amend. The magistrate judge

treated her filings as responses to the defendants’ motions. Drown complains that the

magistrate judge did not address her request to amend or notify her that her request

was not properly filed. But the district court did consider her allegations, concluding

that amendment would be futile. We agree with the district court that Drown’s

additional allegations do not establish plausible claims for relief. See Iqbal, 556 U.S.

at 678-79.

      Drown also suggests that the district judge was biased, noting that statistics

show that he allows non-pro se complaints to proceed more than three times as often

                                          10
as pro se complaints. It does not appear that Drown ever argued for recusal in the

district court, however, and in any event, this argument does not adequately establish

grounds for recusal, see Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial

rulings alone almost never constitute a valid basis for a bias or partiality motion.”);

United States v. Cooley, 1 F.3d 985, 993-94 (10th Cir. 1993) (stating that factors

“which will not ordinary satisfy the requirements for disqualification” include

“speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar

non-factual matters” and “prior rulings in . . . another proceeding, solely because they

were adverse”).

      Finally, Drown requests this court’s assistance in obtaining counsel who would

not be conflicted from representing her because of ties to MCSD or the state. She

states that she is not seeking appointment of counsel for financial reasons, but simply

needs assistance in locating counsel who would be willing and able to represent her.

Even if the court were in a position to assist with such a request, which it is not, the

request is moot because we are affirming the dismissal of her claims.

                                    CONCLUSION

      The district court’s judgment is affirmed.


                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




                                           11
