                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               NOV 9 1999
                                      TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 BENJAMIN J. CHAVEZ and VIOLA F.
 CHAVEZ, d/b/a SANTA FE
 SOUTHWEST JEWELRY,

          Plaintiffs-Appellants,
                                                             No. 97-2309
 v.
                                                     (D.C. No. CIV-96-1656-SC)
                                                      (District of New Mexico)
 BENNETT PROPP, CARMELITA
 HOUTMAN, and DEBI McNEIL,

          Defendants-Appellees.


                                   ORDER AND JUDGMENT*


Before BRORBY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
WEST,** Senior District Judge.



      Benjamin J. Chavez and Viola F. Chavez, doing business as Santa Fe Southwest

Jewelry (“Chavezes”), street vendors in Santa Fe, New Mexico filed a civil rights action

in the United States District Court for the District of New Mexico against Bennett Propp,

Carmelita Houtman and Debi McNeil, also street vendors in Santa Fe, New Mexico.

      *
         This order and judgment is not binding precedent, except under the doctrines of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.

       Honorable Lee R. West, Senior District Judge, United States District Court for
      **

the Western District of Oklahoma, sitting by designation.
After filing an answer, the defendants filed a joint motion to dismiss pursuant to Fed. R.

Civ. P. 12(b)(1) and 12(b)(6). The district court granted defendants’ motion to dismiss

and dismissed the “case in its entirety.” Chavezes appeal. We affirm.

       Since this dismissal is based primarily on Fed. R. Civ. P. 12(b)(6), Chavezes’

complaint must be analyzed in some detail. In their complaint, the Chavezes described

themselves as jewelry makers who sell their wares on the Santa Fe Plaza under a license

issued by the City of Santa Fe. They described the defendants as craft vendors who also

sell their wares on the Santa Fe Plaza, and alleged that the defendants “have acted and

conspired to act individually and together under the color of State law.” The Chavezes

asserted federal jurisdiction pursuant to 42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988 and

2000(a) and “the constitutions and laws of the United States and the State of New Mexico

and 28 U.S.C. §§ 1341 and 1343.”1 The Chavezes then alleged that the Santa Fe Plaza is

a place of public accommodation in downtown Santa Fe which has historically and

traditionally been a place for sale of contemporary arts and crafts. They went on to state

that the vending of crafts in the Plaza is divided into two areas, one on the portal in front

of the Palace of Governors where only Native Americans are permitted to sell arts and

crafts, and a second area across the street from the first one, where Santa Fe allocates and


       1
         In addition to their federal claims, the Chavezes alleged six supplemental state
claims, with which we are not here concerned. The district court dismissed the state
claims without prejudice. If the district court was correct in dismissing Chavezes’ federal
claims, it did not err in declining to exercise supplemental jurisdiction over Chavezes’
state claims. 28 U.S.C. § 1367(c)(3).

                                             -2-
licenses spaces for the sale of arts and crafts by non-Indians, with the Chavezes and the

defendants competing on the non-Indian Plaza vending spaces.

       Getting down to specifics, the Chavezes alleged in their complaint that in the

spring of 1996, Defendants Houtman and McNeil began using other persons to sell their

crafts on the Plaza who were “nephews” and not true members of their immediate family,

which practice was prohibited by the Santa Fe Use Ordinance. The Chavezes state that

they “vocally opposed” the defendants use of “nephews,” but the two defendants

continued to use “nephews” in their vending business. The Chavezes further alleged that

the defendants employed and paid a mentally disabled homeless man to “threaten, disturb

and harm” them and their business. In this latter regard the Chavezes alleged that when

they attempted in state court to obtain a restraining order against the homeless man, the

defendants contested their request for a restraining order and, based on defendants’

testimony, the state court denied their request for a restraining order. The Chavezes went

on to allege that the defendants in their efforts to “get back” at the Chavezes secured from

a state court three successive ex parte temporary restraining orders and an injunction

which placed “unreasonable restrictions” on them. In connection with the issuance of the

temporary restraining orders, the Chavezes alleged that the defendants had numerous ex

parte communications with the state judge who issued the orders. In the last of their so-

called “general allegations” the Chavezes alleged that the defendants were “motivated by




                                            -3-
a strong dose of racial and cultural animosity” against them and that they “violated” the

Chavezes’ constitutionally protected civil rights.

       Based on the general allegations in their complaint, the Chavezes asserted ten

causes of action. The first four were federal claims and the remaining six were

supplemental state claims. In Count 1 the Chavezes alleged that the defendants had

violated their right to free speech and association by not giving them an opportunity to be

heard before the restraining orders were issued. In Count 2 the charges alleged that the

defendants violated their right to due process of law by obtaining multiple restraining

orders and an injunction without allowing them an opportunity to be heard. In Count 3

the Chavezes alleged that the defendants violated their right to equal protection of the law

in their efforts to move them to the “west side” of the Plaza where other Hispanic vendors

were located. Count 4 of the complaint was based on alleged “discrimination in a place

of public accommodation,” the Chavezes alleging that defendants had discriminated

against them in the “peaceful enjoyment of their sales activities on the Santa Fe Plaza by

acts and conduct motivated by racial hostility and hatred.” All remaining counts were

supplemental state claims. After filing an answer, the defendants filed a joint motion to

dismiss under Fed. R. Civ. P. 12(b)(l) (lack of jurisdiction) and 12(b)(6) (failure to state a

claim). As stated, the district court granted defendants’ motion to dismiss and dismissed

the Chavezes’ federal claims, Counts 1 through 4, and then dismissed without prejudice

Chavezes’ supplemental claims, Counts 5 through 10.


                                             -4-
       We believe the present controversy is controlled by Crabtree v. Muchmore, 904

F.2d 1475 (10th Cir. 1990). The district court’s memorandum order in Crabtree is

attached to our opinion, on appeal, as an appendix. The complaint in Crabtree was

against three attorneys, and a state district court judge, alleging a civil rights action under

42 U.S.C. § 1983 wherein the defendants in that case conspired in the “seizure of certain

property” belonging to the plaintiffs. In holding that the plaintiffs’ complaint did not

allege sufficient facts to state a claim under § 1983, the district court carefully analyzed

the complaint and the legal authorities applicable thereto in great detail. In that case, like

the instant case, there were allegations of ex parte communications with a state judge,

overreaching and the like.

       On appeal in Crabtree, in affirming the district court’s dismissal of the claims

against the three attorneys, we spoke as follows:

                      In No. 89-6073, we affirm the district court’s dismissal
              of the complaint under Fed. R. Civ. P. 12(b)(6) for
              substantially the reasons stated in the district court’s order of
              January 30, 1989, which we attach hereto. We hold that the
              district court correctly construed the complaint as stating
              insufficient facts tending to show that the attorneys had an
              understanding or agreed plan with Judge Cook sufficient to
              state a cause of action for conspiracy. We also hold that the
              district court properly analyzed the requirements under Lugar
              v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L.
              Ed.2d 482 (1982), for alleging a cause of action under a “joint
              participation” theory.

Crabtree at 1476.



                                              -5-
       In this court, Chavezes’ basic position, as set forth in their brief, is that the district

court erred in dismissing their federal claims, and that their complaint contained sufficient

facts to support a § 1983 claim. In other words, the allegations in their complaint are

sufficient to show that the defendants acted under color of state law and that in so doing

they jointly participated with a state actor, the state district court judge.2 We disagree. In

our view, Crabtree controls the instant appeal, and we are in accord with the reasoning of

the district court in the instant case and the result it reached, namely, dismissal of the

Chavezes’ federal claims and a dismissal without prejudice of its supplemental state

claims.

       After the district court’s entry of its order of dismissal, the defendants filed in the

district court a motion for attorney’s fees. The district court granted that motion but did

not at that time fix the amount thereof. In the instant appeal the Chavezes challenge that

particular order. Since the amount of the attorney’s fees was not fixed by the district

court at that time, the Chavezes cannot in the present proceeding challenge the district

court’s granting of defendants’ motion for attorney’s fees. See Phelps v. Washburn

University of Topeka, 807 F.2d 153, 154 (10th Cir. 1986). We are advised that


       2
        At oral argument, counsel raised certain matter that was not raised in Chavezes’
brief. We generally do not consider issues raised for the first time in oral argument which
were not raised in the briefs. Thomas v. Denny’s, Inc., 111 F.3d 1506, 1510 n. 5 (10th
Cir. 1997), citing Durham v. Xerox Corp., 18 F.3d 836, 841 n.4 (10th Cir. 1994). Other
matter, though mentioned in the Chavezes’ brief, was not “adequately briefed,” and is
therefor deemed waived. See Gross v. Burggraf Const. Co., 53 F.3d 1531, 1547 (10th
Cir. 1995).

                                              -6-
subsequently the district court did fix the amount of attorney’s fees, and the Chavezes

have filed a notice of appeal from that order, which appeal is now pending in this court.

No. 98-2144, Chavez v. Propp, et al.3

       Judgment affirmed.

                                                  ENTERED FOR THE COURT

                                                  Robert H. McWilliams
                                                  Senior Circuit Judge




       We are further advised that the district court still later imposed sanctions against
       3

the Chavezes’ attorney. An appeal was taken from that order and is also pending in this
court. No. 99-2218, Livingston, et al, v. Propp, et al. That appeal was consolidated with
No. 98-2144, Chavez v. Propp, et al, and the consolidated case is now in the briefing
stage.

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