                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 14 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    WILLIAM P. ISHAM,

                Plaintiff-Appellant,

    v.                                                    No. 00-2177
                                                   (D.C. No. CIV-99-886-SC)
    PHYLLIS WILCOX and GARLAND                             (D.N.M.)
    BILLS, in their individual and official
    capacities; MICHAEL FISCHER,
    in his official capacity; SHERMAN
    WILCOX, in his individual and
    official capacities and BOARD
    OF REGENTS OF THE UNIVERSITY
    OF NEW MEXICO,

                Defendants-Appellees.


                             ORDER AND JUDGMENT           *




Before SEYMOUR , BALDOCK , and LUCERO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral




*
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

       Plaintiff William P. Isham brought this action asserting a variety of

claims under 42 U.S.C. § 1983 and state law relating to his employment at the

University of New Mexico. The district court dismissed his federal claims under

Fed. R. Civ. P. 12(b)(6), and it declined to exercise supplemental jurisdiction over

his state law claims. Plaintiff appeals. We review the district court’s decision

de novo, accepting all well-pleaded allegations in the complaint as true and

viewing them in the light most favorable to the plaintiff.   Sutton v. Utah State

Sch. for the Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). A complaint

should not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that

the plaintiff cannot prove a set of facts in support of his claims that would entitle

him to relief. Id.

       The relevant facts, alleged in plaintiff’s complaint and viewed in his favor,

are as follows. Plaintiff was a tenure-track professor in the University’s

linguistics department and helped revise the department’s Signed Language

Interpreting Program. Plaintiff replaced defendant Phyllis Wilcox as coordinator

of the program in 1997-98, and she thereafter began a campaign of harassment

against plaintiff that eventually resulted in his having a nervous breakdown.

Plaintiff complained to University authorities about Phyllis Wilcox’s harassment,


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but no action was taken. In 1999, a committee met to review plaintiff’s tenure.

The committee included defendant Sherman Wilcox, Phyllis’ husband. Plaintiff

objected to Sherman Wilcox’s presence on the committee, but to no avail. The

committee was deadlocked on whether to grant plaintiff tenure, and defendant

Bills, the department chair, broke the tie and voted against tenure. Plaintiff has

since been terminated from employment at the University. Plaintiff brought this

action against the University and several employees seeking damages and

declaratory and injunctive relief, contending that defendants violated his

constitutional rights in several ways and asserting state law claims for detrimental

reliance/promissory estoppel, prima facie tort, breach of implied contract, and

defamation.

       Before we address plaintiff’s arguments on appeal, we must first address

the University’s argument that it is entitled to Eleventh Amendment immunity

from plaintiff’s claims. An “assertion of Eleventh Amendment immunity

challenges the subject matter jurisdiction of the district court, [and hence] the

issue must be resolved before a court may address the merits.”     Martin v. Kansas ,

190 F.3d 1120, 1126 (10th Cir. 1999),     overruled on other grounds , Bd. of

Trustees of Univ. of Ala. v. Garrett   , 121 S. Ct. 955 (2001). Defendants include

the University’s Board of Regents and University employees in their official

capacities, and the University is entitled to Eleventh Amendment immunity.      See


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Buchwald v. Univ. of N.M. Sch. of Med.        , 159 F.3d 487, 494 n.3 (10th Cir. 1998).

Thus, plaintiff’s claims against the University, that is, his claims against the

Regents and University employees in their official capacities, are barred to the

extent he seeks damages and declaratory relief, except to the extent his request for

declaratory relief is ancillary to his request for injunctive relief.     See id. at 494-96

& nn.3 & 8.

       Plaintiff also seeks injunctive relief against the University including

reinstatement to his former position. As we explained in           Buchwald , the Eleventh

Amendment immunity exception enunciated in             Ex parte Young , 209 U.S. 123

(1908), allows this claim to proceed against the defendant employees sued in their

official capacities.   Buchwald , 159 F.3d at 495. We therefore have jurisdiction to

consider the merits of plaintiff’s claims against the defendant University

employees in their official capacities to the extent he seeks prospective injunctive

relief. We also have jurisdiction to consider the claims against the employee

defendants in their individual capacities.

       Plaintiff’s first § 1983 claim alleges that defendants violated his right to

procedural due process with respect to his property interest in tenure and

continued employment at the University. The district court rejected this claim

because it concluded plaintiff had failed to establish that he had been deprived of

a recognized property interest in tenure and continued employment.            See Bunger


                                               -4-
v. Univ. of Okla. Bd. of Regents   , 95 F.3d 987, 990 (10th Cir. 1996) (requirements

of procedural due process apply only to deprivation of interests encompassed by

Constitution’s protection of liberty and property).   1
                                                          Noting that various sources

such as state law or contracts may create a property interest in employment,

the court stated that “[p]laintiff has provided no source for his alleged property

interest in receiving tenure and continued employment.” Appellant’s App. at 12.

       On appeal, plaintiff contends that the procedural requirements for making

tenure decisions contained in the University’s Faculty Handbook created

a property interest in tenure and employment. This argument fails for at least

two reasons. First, plaintiff did not raise it in the district court, and this court

generally does not consider arguments made for the first time on appeal.        Sac &

Fox Nation v. Hanson , 47 F.3d 1061, 1063 (10th Cir. 1995). Second, procedural

guarantees in a handbook cannot create a property interest to which due process

requirements apply.    See Bunger , 95 F.3d at 991 (“‘Property’ cannot be defined by

the procedures provided for its deprivation . . . . The university’s promise that it

would follow certain procedural steps in considering the professors’

reappointment did not beget a property interest in reappointment.”) (quotation

omitted).


1
       Plaintiff also claimed that defendants violated his substantive due process
rights, but he does not challenge the district court’s rejection of this claim, and
we therefore do not discuss it.

                                             -5-
         Plaintiff’s second claim under § 1983 alleges that defendants deprived him

of his liberty interest in his name and reputation in the academic community

without the due process guaranteed by the Constitution. To show that defendants

deprived him of his liberty interest in his name and reputation, plaintiff must

prove that defendants made statements that (1) impugned his good name and

reputation; (2) were false; (3) were made in the course of his termination or

foreclosed other employment opportunities; and (4) were published.        Watson v.

Univ. of Utah Med. Ctr. , 75 F.3d 569, 578-79 (10th Cir. 1996). The district court

held that plaintiff failed to allege that defendants made false and stigmatizing

statements about him that were published during the course of his denial of tenure

or which foreclosed other employment opportunities.

         On appeal, plaintiff contends that statements made by Phyllis Wilcox that

were ratified by the University harmed his reputation beyond repair and may

prevent him from finding other work within his chosen field. Even if these

statements could be considered false and stigmatizing, they were not made

during the course of his termination. Further, potential damage to prospective

employment opportunities is too intangible to constitute a deprivation of a liberty

interest. Phelps v. Wichita Eagle-Beacon     , 886 F.2d 1262, 1269 (10th Cir. 1989).

The district court correctly found that plaintiff failed to state a liberty interest

claim.


                                           -6-
        Plaintiff’s final § 1983 claim alleges that he was treated less favorably than

Phyllis Wilcox and that defendants thereby violated his right to equal protection.

He claims that he was denied tenure while at the same time the University failed

to take any action against Wilcox with respect to her harassment of him. He

contends because he is a hearing individual and Wilcox is a hearing-impaired

individual who had filed a discrimination complaint against the University, he

was denied his right to equal protection because of his status. The district court

determined that to state a valid equal protection claim, plaintiff had to show that

he and Wilcox were similarly situated,    see City of Cleburne v. Cleburne Living

Ctr. , 473 U.S. 432, 439 (1985), and that he failed to adequately allege that they

were.

        We agree with the district court’s analysis. Plaintiff and Wilcox were both

professors, but that is where their similarity ends. He was denied tenure, but not

for engaging in the same allegedly outrageous behavior in which Wilcox engaged.

See Tonkovich v. Kan. Bd. of Regents     , 159 F.3d 504, 532-33 (10th Cir. 1998).

Because he has not shown that he and Wilcox were similarly situated, we do not

address the level of scrutiny applicable to his claim.

        In his reply brief on appeal, plaintiff contends that the district court should

have granted him leave to amend his complaint if it concluded the complaint was

deficient. Plaintiff has waived this issue by failing to raise it in his opening brief.


                                            -7-
State Farm Fire & Cas. Co. v. Mhoon    , 31 F.3d 979, 984 n.7 (10th Cir. 1994).

Moreover, in neither the district court nor this court has plaintiff explained how

he would amend his complaint.    See Calderon v. Kan. Dep’t of Soc. & Rehab.

Servs. , 181 F.3d 1180, 1186-87 (10th Cir. 1999).

      We conclude the district court correctly rejected plaintiff’s federal

claims. Plaintiff does not challenge the district court’s decision not to

exercise supplemental jurisdiction over his state law claims. Thus, we

AFFIRM the judgment of the district court dismissing plaintiff’s § 1983 claims

under Rule 12(b)(6) and dismissing his state law claims without prejudice under

28 U.S.C. § 1367(c)(3).



                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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