                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          MAR 22 2004
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 THOMAS JACKSON, an individual,

               Plaintiff - Appellant,

          v.

 IASIS HEALTHCARE
 CORPORATION, a Tennessee
 corporation; DAVID R. WHITE, CEO,                       No. 03-4050
 IASIS Healthcare Corporation, an               (D. Ct. No. 2:02-CV-233-ST)
 individual; KEITH TINTLE, former                         (D. Utah)
 CEO, Pioneer Valley Hospital,
 individually; TY BERRETT, Director
 of Physical Therapy, Pioneer Valley
 Hospital, an individual; and DAWN
 BOOTH, Administrator, Pioneer
 Valley Hospital, an individual,

               Defendants - Appellees.


 CENTER FOR LEGAL ADVOCACY,
 doing business as The Legal Center
 for People with Disabilities and Older
 People; COLORADO CROSS-
 DISABILITY COALITION,

               Amici Curiae.


                            ORDER AND JUDGMENT *


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
                                                                       (continued...)
Before TACHA, Chief Circuit Judge, BRORBY, Senior Circuit Judge, and
KELLY, Circuit Judge.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance 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.

      Plaintiff-Appellant Thomas Jackson’s appeal presents two issues. First, he

argues that the district court erred in dismissing his claims based on an incorrect

interpretation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181

et seq. Second, he contends that the district court erred in refusing to allow him

to amend his pleadings. We take jurisdiction under 28 U.S.C. § 1291, REVERSE

the dismissal and denial of leave to amend, and REMAND.

                               I. BACKGROUND

      This case comes to us from a motion to dismiss. The facts as stated in the

complaint follow. Mr. Jackson’s wife, Sherrie Jackson, was a regular volunteer at

Pioneer Valley Hospital (“the hospital”), which IASIS Healthcare Corporation

(“IASIS”) owns and operates. Mrs. Jackson suffered from Multiple Sclerosis and


      *
       (...continued)
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.

                                        -2-
used an electric scooter for mobility. She had difficulty accessing various parts

of the hospital that were not conducive to her scooter. Mr. Jackson repeatedly

brought these impediments to the hospital’s attention, but it failed to correct the

problems fully.

       In an effort to document his complaints, on December 31, 2001, Mr.

Jackson took several digital photographs of the hospital. After taking these

photographs, a hospital security guard “stood over [him] in a manner which

confined [him] to a chair, . . . offensively took [his] digital camera, . . . [and]

deleted [his] pictures.” Despite this incident, Mr. Jackson and his wife continued

their efforts to force the hospital to make itself accessible, and, in response, the

hospital ended Mrs. Jackson’s volunteer work.

       On March 21, 2002, the Jacksons filed suit against IASIS and several of its

employees, alleging various violations of the ADA. Mrs. Jackson subsequently

passed away, after which IASIS filed a motion to dismiss all claims. Mr. Jackson

then filed a motion opposing dismissal, to which IASIS responded. Before the

district court ruled on IASIS’s motion to dismiss, Mr. Jackson filed a motion to

amend in an effort to clarify his initial complaint.   1
                                                           After ordering supplemental


       1
         Specifically, Mr. Jackson’s motion sought leave to remove his wife’s
claims from the suit following her death, clarify that his complaint brought both
retaliation and coercion claims, drop several defendants, add the Disabled Rights
Action Committee as a plaintiff, and add ADA claims relating to a different
                                                                       (continued...)

                                             -3-
briefing and hearing oral argument, the district court dismissed Mr. Jackson’s

claims solely because it believed that the ADA “does not contemplate retaliation

claims for [p]laintiffs with no formal relationship with the employer.”   2



       After this dismissal, IASIS filed a brief opposing Mr. Jackson’s motion to

amend. The district court then denied Mr. Jackson’s motion to amend, relying

primarily on the fact that, in light of its earlier order dismissing Mr. Jackson’s

claims, there were no parties or claims before it. This appeal followed.

                                   II. DISCUSSION

A. Dismissal Pursuant to Rule 12(b)(6)

       1. Standard of Review

       We review de novo the district court’s grant of IASIS’s 12(b)(6) motion.

Aspen Orthopaedics & Sports Medicine, LLC v. Aspen Valley Hosp. Dist.         , 353

F.3d 832, 837 (10th Cir. 2003). In so doing, “[w]e accept all well-pleaded factual

allegations in the complaint as true and view them in the light most favorable to

[Mr. Jackson].”   Id. Moreover, our function on a Rule 12(b)(6) motion “is not to

weigh potential evidence that the parties might present at trial, but to assess

whether [Mr. Jackson’s] complaint alone is legally sufficient to state a claim for



      (...continued)
       1

IASIS-owned facility.
       2
        In light of her passing, the district court also dismissed Mrs. Jackson’s
claims. No party challenges that dismissal on appeal.

                                           -4-
which relief may be granted.”    Id. (quotation omitted).

       2. Merits

       The district court granted IASIS’s motion to dismiss Mr. Jackson’s claims

because it concluded that the ADA “does not contemplate retaliation claims for

[p]laintiffs with no formal relationship to the employer.” Thus, after noting that

Mr. Jackson had no formal relationship with IASIS, the district court dismissed

Mr. Jackson’s claims, concluding that he “ha[d] suffered no damages because

there is nothing the Defendants can take away, or retaliate against.”

       On appeal, IASIS concedes that the district court incorrectly concluded that

a claim of retaliation under the ADA requires that the plaintiff have a formal

relationship (i.e., employment) with the defendant.      3
                                                             Because IASIS abandons this

point on appeal, we need not address it today.        See United States v. Seminole

Nation of Okla. , 321 F.3d 939, 946 n.5 (10th Cir. 2002) (refusing to address a

matter that a party had abandoned on appeal).

       Despite this concession, IASIS urges us to affirm the district court’s

dismissal, contending that Mr. Jackson “never argues the prima facie case he has

to make if his personal claim of retaliation is to survive a motion to dismiss.” In


       3
         Although we label Mr. Jackson’s argument a retaliation claim, we note
that he insists that he makes both a retaliation claim (i.e., 42 U.S.C. § 12203(a))
and a coercion claim (i.e., 42 U.S.C. § 12203(b)). We need not decide today the
exact nature of his claims because our ruling applies equally to claims under both
sections.

                                           -5-
response, citing to Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 510-13 (2002),

Mr. Jackson argues that he need not plead a prima facie case to survive a Rule

12(b)(6) motion. We agree.

      As the Court noted in Swierkiewicz , the prima facie case under     McDonnell

Douglas Corp. v. Green , 411 U.S. 792 (1973), which we apply to ADA claims, “is

an evidentiary standard, not a pleading requirement.”      Swierkiewicz , 534 U.S. at

510. Indeed, a plaintiff need “satisfy only the simple requirements of Rule 8(a)”

to escape a 12(b)(6) motion.   4
                                   Id. at 513. Finding that Mr. Jackson’s pleadings

satisfy this standard, we reverse the district court’s dismissal.

B. Denial of Leave to Amend

      1. Standard of Review

      We review for abuse of discretion the district court’s decision to deny Mr.

Jackson’s motion to amend.         Hom v. Squire , 81 F.3d 969, 973 (10th Cir. 1996).

Under this standard, we will only reverse the district court’s decision if it was

“arbitrary, capricious, or whimsical” or “based on an erroneous view of the law or

on a clearly erroneous assessment of the evidence.”       Amoco Oil Co. v. United



      4
         Federal Rule of Civil Procedure 8 adopts notice pleading. As the Court
has often instructed, “the Rule mean[s] what it sa[ys] . . . . [A]ll the Rules require
is ‘a short and plain statement of the claim’ that will give the defendant fair
notice of what the plaintiff’s claim is and the grounds upon which it rests.”
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit        , 507
U.S. 163, 168 (1993).

                                             -6-
States Env’t Protection Agency    , 231 F.3d 694, 697 (10th Cir. 2000) (quotations

omitted).

       2. Merits

       “Rule 15(a) of the Federal Rules of Civil Procedure provides that a party

may amend the pleadings after [the opposing party has responded] only by leave

of court or by written consent of the adverse party; and leave shall be   freely given

when justice so requires.”    Hom , 81 F.3d at 973 (emphasis added) (citations

omitted). In explaining this Rule, the Supreme Court has stated:

       If the underlying facts or circumstances relied upon by a plaintiff
       may be a proper subject of relief, he ought to be afforded an
       opportunity to test his claim on the merits. In the absence of any
       apparent or declared reason—such as undue delay, bad faith or
       dilatory motive on the part of the movant, repeated failure to cure
       deficiencies by amendments previously allowed, undue prejudice to
       the opposing party by virtue of allowance of the amendment, futility
       of amendment, etc.—the leave sought should, as the rules require, be
       ‘freely given.’ Foman v. Davis , 371 U.S. 178, 182 (1962).

       Although the district court seemed to base its order denying Mr. Jackson’s

motion to amend on several grounds, we read the order to deny leave primarily

because, after granting IASIS’s motion to dismiss all claims, no parties remained

before the court. As such, the district court ruled that “[i]f [Mr. Jackson] wants

to pursue further claims in this matter, [he] will have to start over.”

       In light of the fact that it erroneously dismissed the underlying complaint,

we find that the district court abused its discretion in denying leave to amend on


                                            -7-
that ground. Thus, we reverse the denial of leave to amend.

                               III. CONCLUSION

      For the foregoing reasons, we REVERSE the district court’s dismissal and

denial of leave to amend. On REMAND, Mr. Jackson may refile a motion to

amend, and the district court should reconsider that motion in light of this

decision.

                                       ENTERED FOR THE COURT,



                                       Deanell Reece Tacha
                                       Chief Circuit Judge




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