                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     April 6, 2012
                        UNITED STATES COURT OF APPEALS
                                                     Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 DONNA WHITNEY, individually and
 as parent and heir of DILLON
 WHITNEY, deceased,

          Plaintiff-Appellee,

 v.

 DIVISION OF JUVENILE JUSTICE                           No. 09-4230
 SERVICES, a subdivision of the State         (No. 2:09-CV-00030-DAK-PMW)
 of Utah; UTAH DEPARTMENT OF                             (D. Utah)
 HUMAN SERVICES, a subdivision of
 the State of Utah; STATE OF UTAH,

          Defendants-Appellants,

 QUEST YOUTH SERVICES, a Utah
 corporation; KYLE LANCASTER;
 DAN MALDONADO; JASON
 KAUFUSI; HENRY KAUFUSI; HUY
 NGUYEN; BARRY HOWARD,

          Defendants.


                                ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and HOLMES, Circuit Judges.




      *
              This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
      Sixteen-year-old Dillon Whitney, a juvenile delinquent previously in the

custody of the State of Utah, died while placed in a community-based “proctor

home” in late November of 2007. While living there, he received approval for an

outside home visit. However, after his home visit, Mr. Whitney made an

unauthorized trip to a friend’s apartment. While at the apartment, he fell down a

flight of stairs and sustained injuries that ultimately led to his death. 1

      Mr. Whitney’s mother, Donna Whitney, filed suit in state court against

numerous Utah state entities (collectively, the “State”) seeking, inter alia,

damages both under 42 U.S.C. § 1983 and state tort law. 2 The claims were all

predicated on the State’s alleged negligence in taking care of her son. The State

removed the case to the U.S. District Court for the District of Utah on January 15,

2009. Nearly a year later, the district court denied in part a Rule 12(b)(6) motion

filed by the State, which sought dismissal of the plaintiff’s state-law claims under

the Governmental Immunity Act of Utah (“GIA”). 3 The State filed an


      1
              The district court set forth the relevant background facts in detail in
its decision. Whitney v. Dep’t of Juvenile Justice Servs., No. 2:09CV30 DAK,
2009 WL 4544391, at *1–2 (D. Utah Nov. 25, 2009).
      2
            Initially, Mr. Whitney’s father was a plaintiff in this action. See
Whitney, No. 2:09CV30 DAK, 2009 WL 4544391, at *1 n.1. However, on
October 17, 2009, he filed a stipulation of dismissal with prejudice against all
defendants. The district court entered an order dismissing his claims, leaving
only Donna Whitney’s claims for adjudication. See id.
      3
              The district court granted a portion of the State’s motion to dismiss
relating to the plaintiff’s claims brought pursuant to 42 U.S.C. § 1983, on the
basis that the State is not a “person” within the meaning of that statute. See

                                           -2-
interlocutory appeal seeking review of the district court’s order on the question of

immunity. We affirm.

                                           I

      Section 63G-7-301(4) of the GIA reflects the State of Utah’s decision to

waive its immunity from suit for “any injury proximately caused by a negligent

act or omission of an employee committed within the scope of employment.”

However, “[i]mmunity from suit . . . is not waived . . . if the injury arises out of,

in connection with, or results from[] . . . the incarceration of any person in any

state prison, county or city jail, or other place of legal confinement.” Utah Code

Ann. § 63G-7-301(5)(j) (emphasis added). The district court determined that §

63G-7-301(5)(j) did not bar the instant suit because, although Mr. Whitney was in

a Utah proctor home and (technically) under the State’s official restrictions, he

was not “confine[d] . . . to a secure facility” and was thus “[not] ‘incarcerated’ in

a place of ‘legal confinement’ for purposes of the [GIA].” Whitney, No.

2:09CV30 DAK, 2009 WL 4544391, at *5. Consequently, it concluded that the

State was “not entitled to immunity under the incarceration exception to the

waiver of governmental immunity [relating to the plaintiff’s negligence claims].”

Id.




Whitney, No. 2:09CV30 DAK, 2009 WL 4544391, at *3. Moreover, the court
made rulings on other matters that are not relevant to the issues in this appeal.
See id. at *5.

                                          -3-
       The State’s appeal raises two primary arguments. First, it contends that the

plain language of § 63G-7-301(5)(j) clearly supports the proposition that Mr.

Whitney’s injury “ar[o]se[] out of[] . . . [his] incarceration . . . [in a] place of

legal confinement,” Utah Code Ann. § 63G-7-301(5)(j), because he “was in the

State’s legal custody at all relevant times” while at the proctor home. Aplt.

Opening Br. at 13 (emphasis added). Second, it contends that, even if we

disagree with the foregoing argument, we should conclude that Mr. Whitney’s

injury clearly “arose out of his [previous] incarceration[s] at Journey Ranch and

the Salt Lake Valley Detention Center—both places of legal confinement.” Aplt.

Opening Br. at 9.

       We heard oral argument in this case on November 16, 2010. Shortly

thereafter, on our own motion, we certified the first immunity question, regarding

Mr. Whitney’s proctor-home placement, to the Supreme Court of Utah, see

Whitney v. Div. of Juvenile Justice Servs., 404 F. App’x 316, 317 (10th Cir.

2010). We framed the question as follows:

              Is a juvenile delinquent placed in a community-based proctor
              home incarcerated in a place of legal confinement, such that Utah
              has not waived its state sovereign immunity for injuries arising
              out of, in connection with, or resulting from his placement,
              pursuant to the Governmental Immunity Act of Utah, Utah Code
              § 63G-7-301(5)(j)?

Id. On March 6, 2012, the Supreme Court of Utah answered this question in the

negative. See Whitney v. Div. of Juvenile Justice Servs., --- P.3d ----, 2012 WL


                                            -4-
698182, at *1 (Utah Mar. 6, 2012). Generally, it held that the “incarceration

exception” under § 63G-7-301(5)(j) does not apply because “[a] juvenile

delinquent placed in an unsecured community-based proctor home is not

considered ‘incarcerat[ed] . . . [in a] place of legal confinement’ under the

[GIA].” See id. at *5 (first two alterations in original).

                                           II

      Generally, we “have jurisdiction of appeals [only] from . . . final decisions

of the district courts” in this circuit. 28 U.S.C. § 1291 (emphasis added). One

exception to this rule is the “collateral order doctrine,” Brown v. Montoya, 662

F.3d 1152, 1161 (10th Cir. 2011) (internal quotation marks omitted), whereby “a

district court’s ruling may be appealed [on an interlocutory basis] if it ‘fall[s] in

that small class which finally determine[s] claims of right[,] separable from, and

collateral to, rights asserted in the action, too important to be denied review and

too independent of the cause itself to require that appellate consideration be

deferred until the whole case is adjudicated,’” id. (second alteration in original)

(quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)).

Under the collateral order doctrine, this Court has “subject matter jurisdiction to

hear interlocutory appeals from the denial of immunity from suit when state law

creates the immunity.” Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley

Hosp. Dist., 353 F.3d 832, 835 (10th Cir. 2003) (emphasis added); see Lombardo

v. Pa., Dep’t of Pub. Welfare, 540 F.3d 190, 193 (3d Cir. 2008) (noting that an

                                          -5-
order denying a claim of immunity is “immediately appealable under the

collateral order doctrine”); see also Crowe & Dunlevy, PC v. Stidham, 640 F.3d

1140, 1147 (10th Cir. 2011) (“[I]t is undisputed that we have interlocutory

jurisdiction under the collateral order doctrine to review the district court’s denial

of [a] motion to dismiss on grounds of sovereign and judicial immunity.”); Texas

v. Caremark, Inc., 584 F.3d 655, 658 (5th Cir. 2009) (“Denials of motions to

dismiss on sovereign immunity grounds fall within the collateral order doctrine,

and are thus immediately appealable.”); cf. Liberal v. Estrada, 632 F.3d 1064,

1074 (9th Cir. 2011) (noting accord among most circuits on the view that the

“availability of an appeal depends on whether, under state law, the immunity

functions as an immunity from suit or only as a defense to liability”).

      The GIA, in pertinent part, bestows upon Utah governmental entities

“immun[ity] from suit.” Utah Code Ann. § 63G-7-201(1); see Mecham v. Frazier,

193 P.3d 630, 633 (Utah 2008) (noting that the “[GIA] clearly grants immunity

from suit to governmental entities” (emphasis added)). Consequently, “[b]ecause

the [GIA] grants [the applicable state entities] immunity from suit, we have

subject matter jurisdiction to hear this appeal pursuant to the . . . collateral order

doctrine.” Aspen Orthopaedics, 353 F.3d at 837.

      Furthermore, because the district court assessed the merits of the State’s

motion to dismiss under Federal Rule of Civil Procedure Rule 12(b)(6), we review

its order de novo and apply “the same legal standard” that it did. Jordan-

                                           -6-
Arapahoe, LLP v. Bd. of Cnty. Comm’rs, 633 F.3d 1022, 1025 (10th Cir. 2011);

cf. Moore v. Gunnison Valley Hosp., 310 F.3d 1315, 1316 (10th Cir. 2002) (“This

is an interlocutory appeal of the district court’s denial of Appellants’ Rule

12(b)(6) Motion to Dismiss Appellee’s claim on the ground of absolute immunity.

We review a 12(b)(6) dismissal de novo.” (emphasis omitted)). In that vein, we

must accept as true “all well-pleaded factual allegations in [the] complaint and

view these allegations in the light most favorable to the plaintiff.” Smith v.

United States, 561 F.3d 1090, 1098 (10th Cir. 2009). Concomitantly, “[w]e

review de novo the district court’s interpretation of [Utah] law,” Beardsley v.

Farmland Co-Op, Inc., 530 F.3d 1309, 1313 (10th Cir. 2008) (emphasis omitted),

and in that respect, we apply “the most recent statement of [Utah] law by the

state’s highest court,” Wood v. Eli Lilly & Co., 38 F.3d 510, 513 (10th Cir. 1994).

                                         III

      In determining whether a governmental entity is immune from suit under

Utah law, Utah courts apply a three-part test, inquiring as to “(1) whether the

activity undertaken is a governmental function; (2) whether governmental

immunity was waived for the particular activity; and (3) whether there is an

exception to that waiver.” Peck v. State, 191 P.3d 4, 7 (Utah 2008) (quoting

Blackner v. Dep’t of Transp., 48 P.3d 949, 951 (Utah 2002)) (internal quotation

marks omitted). The parties do not dispute that the State’s placement of Mr.

Whitney in a community proctor home constitutes a “governmental function.”

                                         -7-
See Whitney, --- P.3d ----, 2012 WL 698182, at *2. Similarly, as noted, Utah has

waived immunity “as to any injury proximately caused by a negligent act or

omission of an employee committed within the scope of employment.” Utah

Code Ann. § 63G-7-301(4). The questions presented in this appeal concern only

whether § 63G-7-301(5)(j) provides a cognizable exception under the facts of this

case.

                                          A

        With the Utah Supreme Court’s opinion of March 6, we must conclude that

the district court did not err in declining to apply an exception to § 63G-7-

301(4)’s immunity-waiver provision. It is now clear that “a juvenile placed in an

unsecured community-based proctor home is not incarcerated in a place of legal

confinement.” Whitney, --- P.3d ----, 2012 WL 698182, at *2; see Utah Code

Ann. § 63G-7-301(5)(j). More specifically, under Utah law, “an injured party is

incarcerated in a place of legal confinement only in cases where he was spatially

confined or physically constrained.” Whitney, --- P.3d ----, 2012 WL 698182, at

*3 (emphases added). Because “youth placed in community-based proctor homes

are neither physically restrained nor spatially confined,” id. at *4, and because it

is undisputed that Mr. Whitney was a “youth” that resided at such a location at

the time of his death, the district court correctly concluded that Mr. Whitney was

not “incarcerated” in a “place of legal confinement” under the GIA, see Whitney,

No. 2:09CV30 DAK, 2009 WL 4544391, at *5; see also Whitney, --- P.3d ----,

                                         -8-
2012 WL 698182, at *5 (“Dillon Whitney was neither confined spatially nor

physically.”). Thus, we reject the State’s first asserted ground for substantially

the reasons set forth by the Utah Supreme Court and the district court.

                                          B

       The State lodges an alternative argument on appeal—viz., that the § 63G-7-

301(5)(j) exception to the general immunity waiver applies because Mr.

Whitney’s death “ar[o]se[] out of[] . . . [his] incarceration” at other locations

during his juvenile court proceedings, all of which constitute “place[s] of legal

confinement.” Utah Code Ann. § 63G-7-301(5)(j); see Aplt. Opening Br. at 24.

That is, the State attempts to apply the language of § 63G-7-301(5)(j) broadly to

cover Mr. Whitney’s prior placements—specifically at Journey Ranch and then at

the Salt Lake Valley Detention Center—as “place[s] of legal confinement” from

which his injuries allegedly arose. We find at the outset that the State has

forfeited this argument because it failed to first raise the argument before the

district court.

       “[W]e have recognized that where [a] new theory was not ‘intentionally

relinquished or abandoned in the district court,’ but rather ‘the theory simply

wasn’t raised before the district court, we usually hold it forfeited’ and review it

‘under what substantively amounts to (and what we have more recently described

as) the plain error standard.’” United States v. Lamirand, 669 F.3d 1091, 1098

n.7 (10th Cir. 2012) (quoting Richison v. Ernest Grp., Inc., 634 F.3d 1123,

                                         -9-
1127–28 (10th Cir. 2011)). Here, despite its contentions to the contrary on

appeal, the State argued to the district court only that the “arises out of” clause in

§ 63G-7-301(5)(j) should be broadly construed. The record is completely devoid

of any argument made below that Mr. Whitney’s injury arose out of his

incarceration at Journey Ranch or the Salt Lake Valley Detention Center. Nor is

there any indication that the State made an attempt to establish that Mr.

Whitney’s injuries proximately arose from his other prior institutional

commitments.

      Consequently, the district court was denied the ability to weigh in on the

matter. That is, it was not “offer[ed] . . . an [adequate] opportunity to consider

the question” as it is now formulated on appeal in the first instance. United

States v. Norman T, 129 F.3d 1099, 1106 (10th Cir. 1997). “It is the significant

but limited job of our appellate system to correct errors made by the district court

in assessing the legal theories presented to it, not to serve as ‘a second-shot forum

. . . where secondary, back-up theories may be mounted for the first time.’”

Richison, 634 F.3d at 1130 (quoting Tele–Communications, Inc. v. C.I.R., 104

F.3d 1229, 1233 (10th Cir. 1997)). Thus, we find that the State’s new argument is

forfeited.

      The State nevertheless does not argue for the application of plain-error




                                         -10-
review on appeal. 4 Instead, the State continues (erroneously) to maintain that it

did in fact raise the instant argument below. Our thorough review of the record,

however, reveals that this assertion is patently inaccurate. See, e.g., Aplt. App. at

86 (Defs.’ Corr. Reply Mem. Supp. Mot. to Dismiss, filed Sept. 1, 2009) (“Under

the statutes governing Dillon’s confinement in the proctor home . . . [he] was

under the custody and control of the state when he was injured . . . .” (emphases

added)). “[T]he failure to argue for plain error and its application on appeal[] . . .

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

district court.” Richison, 634 F.3d at 1131; see Jordan v. U.S. Dep’t of Justice,

668 F.3d 1188, 1199 (10th Cir. 2011) (“[Plaintiff] has not addressed the belated

nature of his new theories, let alone argued for plain-error review, which ‘surely

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

district court.’” (quoting Richison, 634 F.3d at 1131)); Lamirand, 669 F.3d at

1098 n.7 (declining to review an argument for plain error where the defendant

failed to argue for the application of plain error on appeal). 5 We thus elect not to

      4
             Nor does the State seek to avail itself of any of the well-established
exceptions to application of forfeiture principles. See, e.g., United States v.
Jarvis, 499 F.3d 1196, 1202 (10th Cir. 2007) (“[T]his court has recognized an
exception [to forfeiture] where the argument involves a pure matter of law and the
proper resolution of the issue is certain.”); see also infra note 5 (focusing
specifically on immunity arguments and forfeiture principles).
      5
             With respect to forfeiture, we recognize that significant and unique
considerations attend a State’s argument that it is immune from suit and, in
certain circumstances, those considerations may militate against a finding of
forfeiture. Indeed, we have held that allegations of Eleventh Amendment

                                         -11-
immunity may be raised for the first time on appeal. See, e.g., U.S. ex rel.
Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008) (noting that arguments
for Eleventh Amendment immunity “may be raised at any time, even on appeal
for the first time”); Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d
1226, 1231 (10th Cir. 1999) (“Because the Eleventh Amendment defense has
jurisdictional attributes, it may be raised at any point, including for the first time
on appeal.” (citations omitted)); Garcia v. Bd. of Educ. of Socorro Consol. Sch.
Dist., 777 F.2d 1403, 1406–07 (10th Cir. 1985) (“[W]e find that the school board
is not estopped from raising eleventh amendment immunity at this time.”).
However, the State—which removed this action to federal court—has not sought
to insulate itself from application of forfeiture principles by reliance on Eleventh
Amendment immunity. That probably is for good reason. See, e.g., Lombardo,
540 F.3d at 198 (holding that “voluntary removal waives a State’s immunity from
suit in a federal forum”); Meyers ex rel Benzing v. Texas, 410 F.3d 236, 244 n.7
(5th Cir. 2005) (discussing the Supreme Court’s decision in Lapides v. Bd. of
Regents of Univ. Sys. of Ga., 535 U.S. 613, 620–21 (2002), and noting that “[t]he
act of removal without more is sufficient to waive the state’s immunity”); cf.
Estes v. Wyo. Dep’t of Transp., 302 F.3d 1200, 1205–06 (10th Cir. 2002)
(reasoning broadly in addressing whether Wyoming waived sovereign immunity
as to a federal claim by removal and observing that “[t]he Supreme Court has
consistently held that a State waives its sovereign immunity when it voluntarily
appears in federal court”). In any event, we are not obliged to raise or assess sua
sponte this Eleventh Amendment immunity issue, see Orenduff, 548 F.3d at 942
(“[A] court may raise the issue of Eleventh-Amendment immunity sua sponte but,
unlike subject-matter jurisdiction, it is not obligated to do so.”); 13 Charles Alan
Wright, et al., Federal Practice and Procedure § 3524.1, at 261 (3d ed. 2008)
(collecting cases and noting that “while a federal court may raise an Eleventh
Amendment defense sua sponte, it is under no obligation to do so”), and we
venture no definitive opinion concerning the viability of such an Eleventh
Amendment argument on these facts.

       Moreover, the State does not suggest that any other state-immunity
considerations (apart from the Eleventh Amendment) protect it from application
of forfeiture principles, when it failed to advance the immunity argument at issue
before the district court. Compare Myers, 410 F.3d at 250 (rejecting Texas’s
argument “based on a novel theory of the structure of state sovereign immunity”
to the effect that “if a state, which has not waived its immunity as to a claim in
state court, removes a suit on such a claim to federal court, even though the state
thereby waived its Eleventh Amendment forum immunity by the removal, that

                                         -12-
address the State’s alternative argument that Mr. Whitney’s injury “arose out of

his [previous] incarceration at Journey Ranch and the Salt Lake Valley Detention

Center.” Aplt. Opening Br. at 9.

                                        IV

      For the foregoing reasons, we AFFIRM the district court’s order denying




state may still assert its inherent or basic immunity from suit and have the
plaintiffs’ suit dismissed” (emphasis added)), with Lombardo, 540 F.3d at
192–94, 198 n.7 (“discern[ing] two distinct types of state sovereign immunity:
immunity from suit in federal court and immunity from liability” and holding that
“a State may waive one without waiving the other” and reaching the question of
Pennsylvania’s immunity from liability, in part on the basis that “issues of state
sovereign immunity may be raised at any time, including for the first time on
appeal” (quoting Chittister v. Dep’t of Cmty. and Econ. Dev., 226 F.3d 223, 227
(3d Cir. 2000)) (internal quotation marks omitted)); Jonathon R. Siegel, Waivers
of State Sovereign Immunity and the Ideology of the Eleventh Amendment, 52
Duke L.J. 1167, 1233–34 (2003) (noting that “state sovereign immunity has two
independent aspects: it is partly an immunity from suit in a particular forum
(federal court) and partly a substantive immunity from liability” and that
“removal should be understood to waive only forum immunity [i.e., immunity
from suit in federal court]” (emphasis added)). Therefore, any such
argument—based on general state-immunity principles (apart from the Eleventh
Amendment)—would be waived due to inadequate briefing. See, e.g., EEOC v.
C.R. England, Inc., 644 F.3d 1028, 1051 n.18 (10th Cir. 2011) (“[W]e routinely
have declined to consider arguments that are not raised, or are inadequately
presented, in an appellant’s opening brief.” (quoting Bronson v. Swensen, 500
F.3d 1099, 1104 (10th Cir. 2007)) (internal quotation marks omitted)). Thus, we
conclude that the State has forfeited its second immunity argument regarding Mr.
Whitney’s prior placement in facilities other than a proctor home, and we decline
to review the argument.

                                       -13-
the State’s motion to dismiss on the basis of immunity under the GIA. 6



                                              Entered for the Court


                                              JEROME A. HOLMES
                                              Circuit Judge




      6
            Because we conclude that the State has not established that it is
immune from suit under the GIA, we need not (and do not) address the plaintiff’s
argument that the GIA’s application in this case violates numerous provisions of
Utah’s Constitution. See Aplee. Br. at 3–5.

                                       -14-
