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

                                                                               June 10, 2020
                                FOR THE TENTH CIRCUIT
                            _________________________________              Christopher M. Wolpert
                                                                               Clerk of Court
 JAMES TILLMON,

           Plaintiff - Appellee,

 v.                                                             No. 19-1134
                                                   (D.C. No. 1:18-CV-00492-RBJ-KLM))
 DOUGLAS COUNTY, in its individual                               (D. Colo.)
 and official capacities, TONY G.
 SPURLOCK, Douglas County Sheriff in
 his official and individual capacities; J.
 YOUNG, Sergeant in Douglas County, in
 her official and individual capacities;
 KIETH PENRY, of the Douglas County
 Sheriff’s Office in his official and
 individual capacities,


           Defendants - Appellants,

 and

 JOHN AND/OR JANE DOE(S), of the
 Douglas County Deputy Sheriff Medical
 Dept, in his, her, or their individual and
 official capacities,

           Defendants.
                            _________________________________

                                ORDER AND JUDGMENT*
                            _________________________________

Before TYMKOVICH, Chief Judge, SEYMOUR and MORITZ, Circuit Judges.

       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive
value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
                        _________________________________

      Defendants appeal the district court order denying their motion to dismiss James

Tillmon’s 42 U.S.C. § 1983 Fourteenth and Eighth Amendment claims and his 42 U.S.C.

§ 1985 Fourteenth Amendment conspiracy claim. They also appeal their motion to

reconsider that denial. For the reasons discussed below, we affirm.

                                      Background

      Pro se plaintiff Tillmon filed claims against Douglas County, Colorado;1 the

Douglas County Sheriff; two employees of the sheriff’s office; and unnamed John

and Jane Does. Tillmon alleged that, while he was an inmate at the Douglas County

jail, defendants subjected him to race-based discrimination, denied him appropriate

medical care, and deprived him of proper notice in connection with disciplinary

hearings. He asserted claims under § 1983 for violations of his equal protection

rights, due process rights, and his right to medical care. And as part of those claims,

Tillmon asserted that Douglas County was liable under a municipal-liability theory.

Tillmon further alleged that defendants conspired to deprive him of his civil rights




      1
        In the below proceedings, defendants argued that Tillmon’s complaint did not
properly name the County. See Colo. Rev. Stat. § 30-11-105 (requiring specific language
for naming counties in lawsuits). The district court agreed, but instead of dismissing the
County, it granted Tillmon leave to amend his complaint. Tillmon has yet to amend his
complaint, but defendants do not raise this issue on appeal. Notwithstanding this naming
issue, we refer to the County by the shorthand “County” or “Douglas County” in this
appeal.
                                            2
under § 1985.

      Defendants moved to dismiss Tillmon’s claims. As relevant here, they argued

that Tillmon failed to state facts sufficient to demonstrate a constitutional violation as

required by Federal Rule of Civil Procedure 12(b)(6). But in doing so, defendants did

not address Tillmon’s § 1983 municipal-liability claim against Douglas County, nor

did they address Tillmon’s § 1985 conspiracy claim. Defendants further stated that

they were entitled to qualified immunity. And they did so in a single, six-sentence

paragraph that discussed the law of qualified immunity and then concluded, without

supporting facts or arguments, that all defendants were immune from Tillmon’s suit.

Then, in reply in support of their motion to dismiss, defendants argued for the first

time that Tillmon failed to sufficiently plead his municipal-liability claim against the

County.

      The district court dismissed Tillmon’s due process claims but concluded that

Tillmon sufficiently pled his medical care and race-based discrimination claims against

both the individual defendants and Douglas County. In doing so, the district court did not

address defendants’ reply-brief arguments regarding municipal liability. The district

court additionally declined to address defendants’ qualified-immunity defense

because the defendants’ failure to develop that issue suggested they “only raise[ed]

the issue of qualified immunity to preserve it from waiver.” App. 160.

      Defendants sought reconsideration of the district court’s order denying their

motion to dismiss. But unlike defendants’ motion to dismiss, their motion for

reconsideration addressed § 1985 conspiracy and supplied new, substantive

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arguments in support of the qualified-immunity defense. The district court dismissed

the reconsideration motion the next day, stating: “The Court ruled based on what the

parties put before the Court. This is not the time to shore up a motion that was

lacking. The defendants will have an opportunity to file a motion for summary

judgment.” App. 179. Defendants now appeal both the order on their motion to

dismiss and the order on their motion for reconsideration.2

                                         Analysis

       On appeal, defendants argue that qualified immunity precludes Tillmon’s

§ 1983 and § 1985 claims against the individual defendants and further argue that

Tillmon failed to establish § 1983 municipal liability against Douglas County.3 But

before we may consider the merits of these arguments, we must first turn to the



       2
          We note that Tillmon remains pro se on appeal and that he did not file a response
brief. But because Tillmon is the appellee, this lack of briefing does not require us to find
in favor of defendants. See Fed. R. App. P. 31(c) (stating that appellee’s failure to file
response brief results only in forfeiture of oral argument while appellant’s failure to file
opening brief can result in dismissal of appeal).
        3
          Defendants raise two additional arguments. First, they imply that the district
court’s order on the motion to dismiss is internally inconsistent because it dismissed
Tillmon’s due-process claim but did not dismiss Keith Penry, the sheriff’s office
employee who allegedly violated Tillmon’s due-process rights, as a defendant. But we
discern no inconsistency given that Tillmon maintains his § 1985 conspiracy claim
against all defendants. And we decline to consider this perceived inconsistency further
because defendants do not substantively develop this point. See Exum v. U.S. Olympic
Comm., 389 F.3d 1130, 1133 n.4 (10th Cir. 2004) (“Scattered statements in the
appellant’s brief are not enough to preserve an issue for appeal.”). Next, in their
jurisdictional brief, defendants argue that J. Young, another sheriff employee, is entitled
to absolute immunity. But defendants waived this argument by failing to raise it in their
opening brief, and we therefore decline to consider it. See Reedy v. Werholtz, 660 F.3d
1270, 1274 (10th Cir. 2011) (noting that issues not raised in opening brief are waived).

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significant jurisdictional and preservation issues presented by this appeal.

      Generally, we lack jurisdiction to review nonfinal, interlocutory orders, like

those at issue here. See 28 U.S.C. § 1291; Eastwood v. Dep’t of Corr., 846 F.2d 627,

629 (10th Cir. 1988). Nevertheless, defendants propose that we exercise jurisdiction

under the collateral-order doctrine. Under that doctrine, a qualified-immunity denial

is immediately appealable if the denial hinges on an issue of law. Weise v. Casper,

507 F.3d 1260, 1263–64 (10th Cir. 2007). And defendants argue that their qualified-

immunity defense hinges only on legal questions, not factual disputes. But implicit in

the application of the collateral-order doctrine is a predicate requirement for

jurisdiction: the district court must have denied qualified immunity. See Montoya v.

Vigil, 898 F.3d 1056, 1063 (10th Cir. 2018) (stating that “true jurisdictional inquiry

is whether or not the district court decided the qualified-immunity question at issue”).

And so, we must first determine whether the district court denied qualified immunity.

      Here, defendants raised qualified immunity below, and the district court

declined to rule on their defense. This declination has the same effect as a denial

because defendants have, for the time being, lost their right to be immune from this

lawsuit. Workman v. Jordan, 958 F.2d 332, 335–36 (10th Cir. 1992) (concluding that

district court order postponing ruling on qualified-immunity defense constituted

denial because defendants “los[t] their right to be free from the burdens of pretrial

discovery and trial”); see also Montoya, 898 F.3d at 1063 (recognizing qualified-

immunity denials can be either implicit or explicit). Therefore, we have jurisdiction



                                           5
over this appeal.

      But even though we have jurisdiction to consider defendants’ qualified-immunity

defense, we must next decide whether we should reach the merits of a defense that the

district court declined to adjudicate. As a general rule, we “do[] not consider an issue

not passed upon below.” Workman, 958 F.2d at 337. Instead, if a defendant

adequately raises qualified immunity and the district court declines to rule on the

defense, then we typically remand and direct the district court to decide qualified

immunity. See id. But if a defendant does not adequately present the defense to the

district court, then the defense is not preserved for appellate review and we affirm the

district court. See Montoya, 898 F.3d at 1063–64.

      Defendants argue they adequately raised qualified immunity in their motion to

dismiss, and they urge us to reach the merits of their defense. But defendants’

analysis of qualified immunity in that motion was cursory at best. Their argument

consisted of a single paragraph briefly discussing the law of qualified immunity. And

even then, defendants erroneously asserted qualified immunity on behalf of all

defendants even though Douglas County is not entitled to qualified immunity. See

Owen v. City of Independence, 445 U.S. 622, 650–53 (1980) (noting government

entities may not assert qualified immunity). Although the defendants’ single-

paragraph argument in the district court has morphed into 30 pages of appellate

argument, their belated appellate argument cannot remedy their perfunctory assertion

of qualified immunity below. See Wall v. Astrue, 561 F.3d 1048, 1066 (10th Cir.

2009) (determining that claimant’s argument was unpreserved because she “failed to

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present any developed argumentation” to district court); Harrell v. United States, 443

F.3d 1231, 1233 (10th Cir. 2006) (concluding that undeveloped argument to district

court was not preserved for appeal); Tele-Communications, Inc. v. Commissioner of

Internal Revenue, 104 F.3d 1229, 1334 (10th Cir. 1997) (rejecting appellee’s appeal

argument as inadequately preserved where “perfunctory” paragraph of briefing in

district court became 10 pages of argument on appeal).

      Moreover, reaching the merits of their qualified-immunity defense would

require us to consider the substantive arguments defendants first raised in their

motion for reconsideration. But “arguments raised for the first time in a motion for

reconsideration are not properly before the [district] court and generally need not be

addressed.” United States v. Trestyn, 646 F.3d 732, 742 (10th Cir. 2011) (alteration

in original) (quoting United States v. Castillo-Garcia, 117 F.3d 1179, 1197 (10th Cir.

1997), overruled on other grounds by United States v. Ramirez-Encarnacion, 291

F.3d 1219 (10th Cir. 2002)). And this is especially true here, where the district court

refused to consider defendants’ belated arguments for reconsideration. See Workman,

958 F.2d at 337.

      Defendants nevertheless suggest they preserved this defense because they

argued in their motion to dismiss that, under Rule 12(b)(6), Tillmon’s alleged

constitutional violations failed to state a § 1983 claim. And defendants argue that

their Rule 12(b)(6) arguments substantiate their qualified-immunity defense,

implying that these arguments below preserved the defense on appeal. But we have

previously held that an appellant’s “failure-to-state-a-claim argument[s]” cannot

                                           7
substantiate an otherwise unsubstantiated qualified-immunity defense. See Montoya,

898 F.3d at 1064. And although Rule 12(b)(6) arguments can be “exceedingly”

similar to arguments in support of qualified immunity, qualified immunity “is

conceptually distinct from the merits of the plaintiff’s claim.” Id. at 1064–65 (second

quoting Mitchell v. Forsyth, 472 U.S. 511, 527–28 (1985)); cf. Burke v. Regalado,

935 F.3d 960, 1003 (10th Cir. 2019) (concluding that motion arguing that § 1983

claim was unsupported under Federal Rule of Civil Procedure 50 did not, on its own,

preserve qualified-immunity defense for appeal). And here, defendants’ motion to

dismiss clearly delineates between its discussion of Rule 12(b)(6) and its discussion of

qualified immunity. Although defendants’ arguments supporting the former could also

have supported the latter, their motion to dismiss made no attempt to do so.

Accordingly, defendants’ reliance on their Rule 12(b)(6) failure-to-state-a-claim

arguments do not save an appeal predicated entirely on a qualified-immunity defense.

See Montoya, 898 F.3d at 1064–65.

      Finally, Douglas County requests that we adjudicate the merits of Tillmon’s

municipal-liability claim. Because the County is not entitled to qualified immunity,

we do not have jurisdiction over its appeal under the collateral-order doctrine. See

Owen, 445 U.S. at 650–53. Instead, we can only entertain its appeal by exercising

supplemental-appellate jurisdiction, also called pendent jurisdiction. See Cummings

v. Dean, 913 F.3d 1227, 1235 (10th Cir. 2019) (noting that we can exercise

jurisdiction over pendent, nonappealable claims), cert. denied sub nom. Cummings v.

Bussey, 140 S. Ct. 81; United States v. Botefuhr, 309 F.3d 1263, 1272 n.7 (10th Cir.

                                            8
2002) (“adopt[ing] the modern approach of referring to ‘pendent subject[-]matter

jurisdiction’ as ‘supplemental subject[-]matter jurisdiction’”). Supplemental

jurisdiction empowers appellate courts with the discretion to “exercise jurisdiction

over an otherwise nonfinal and nonappealable lower court decision that overlaps with

an appealable decision.’” Id. (quoting Cox v. Glanz, 800 F.3d 1231, 1255 (10th Cir.

2015)). But defendants’ municipal-liability arguments, like their qualified-immunity

arguments, are unpreserved because defendants failed to raise those arguments until

the reply to their motion to dismiss and the district court did not address them. See

FDIC v. Noel, 177 F.3d 911, 915 (10th Cir. 1999) (noting arguments first raised in

reply brief to district court are unpreserved for appellate review if district court did

not address arguments). And we see no reason to exercise supplemental jurisdiction

here given that neither the appealable claim nor the municipal-liability claim is

preserved for appellate review. See Moore v. City of Wynnewood, 57 F.3d 924, 929

(10th Cir. 1995) (noting that we consider adequacy of appellate record when

determining whether to exercise pendent jurisdiction). Accordingly, we decline to

exercise supplemental jurisdiction.

                                       Conclusion

       Exercising jurisdiction under the collateral-order doctrine, we conclude that

defendants did not preserve their qualified-immunity arguments for appellate review. We

therefore decline to reach the merits of their qualified-immunity defense. And because we

do not reach the merits of defendants’ appealable arguments, we decline to exercise



                                            9
supplemental jurisdiction over their municipal-liability arguments. Accordingly, we

affirm the district court.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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