                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       June 5, 2007
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 CH RISTENA W HITE,

               Plaintiff - Appellant,

          v.
                                                        No. 06-4225
 SCOTT JOHN OCKEY, also known as                         (D. Utah)
 Scott J. Ockey, also known as Scott             (D.C. No. 2:06-CV -17-TS)
 Ockey, also known as J. Scott Ockey,
 doing business as CCA Corporation;
 M A RK SH U RTLEFF; C HA RLENE
 BARLOW , State of Utah Attorney
 General’s office, individually and in
 their official capacity; M ICH AEL
 HINES; PA UL FIENDT, State of Utah
 Securities Division, individually and
 in their official capacities,

               Defendants - Appellees.



                            OR D ER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.




      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. 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not binding precedent except under the doctrines of law of the case, res judicata,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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      After being convicted on state charges of securities fraud in 2002,

Christena White filed in the United States District Court for the District of Utah a

pro se complaint against Scott Ockey (M s. W hite’s previous landlord), the Utah

Attorney General’s Office, Attorney General M ark Shurtleff, Assistant Attorney

General Charlene Barlow, the Utah Securities Division, and two Securities

Division officials, M ichael Hines and Paul Fiendt. W e will refer to the

defendants other than M r. Ockey as the State Defendants. The complaint alleges

against the State Defendants federal claims under 42 U.S.C. § 3604 (the Fair

Housing Act) and 42 U.S.C. § 1983, and state-law claims for abuse of process,

tortious interference with economic development, negligent interference with

economic development, and intentional infliction of emotional distress. In

addition, it alleges a defamation claim against A ssistant A ttorney General Barlow.

Against M r. Ockey, it alleges the above claims, as well as actions for trespass,

conversion, interference with quiet enjoyment of rental property, defamation,

fraud, deceptive business practices, malicious prosecution, sexual harassment,

constructive eviction, civil extortion, unjust enrichment, and a violation of the

Racketeer Influenced and Corrupt O rganizations Act (RICO), see 18 U.S.C.

§ 1964(c).

      Both the State Defendants and M r. Ockey filed motions to dismiss. The

district court granted the State D efendants’ motion, dismissing M s. W hite’s

§ 1983 claim on Eleventh Amendment grounds and the state-law claims under the

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Utah Governmental Immunity Act (UGIA), Utah Code Ann. § 63-30-1 et seq.

(Supp. 2003). As further grounds for dismissing some of the claims, it ruled that

(1) M s. Barlow had absolute immunity for actions as a prosecutor, (2) M s. W hite

had failed to allege the falsity of the statements that M s. Barlow made about her

in an affidavit, and (3) the complaint makes no allegations of misconduct by

Attorney General Shurtleff. In a separate order the district court granted

M r. Ockey’s motion to dismiss, holding that the claims against him should have

been brought as counterclaims in an earlier suit.

      On appeal M s. W hite’s sole contentions are that (1) the district court erred

in dismissing her claims against the State Defendants on immunity grounds, (2)

the district court improperly allowed a magistrate judge to w rite the court’s

orders; (3) the magistrate judge w as prejudiced against her; (4) the district court

separated the claims against M r. Ockey from the claims against the State

Defendants; (5) the district court accepted untimely filings from the defendants;

and (6) the district court denied her a fair trial under the Sixth Amendment. W e

affirm.

      Before turning to M s. W hite’s contentions w e must address the State

Defendants’ assertion that we lack jurisdiction because M s. W hite’s notice of

appeal does not designate the dismissal order but only the district court’s order

denying her objections to the dismissal order. Under Fed. R. App. P. 3(c)(1)(B)

“[t]he notice of appeal must . . . designate the judgment, order, or part thereof

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being appealed.” But we construe M s. W hite’s pleadings liberally because she

brought the action pro se, see Johnson v. Johnson, 466 F.3d 1213, 1214 (10th Cir.

2006). M oreover, “[t]he requirements of Rule 3 should be liberally construed.

M ere technicalities should not obstruct the consideration of a case on its merits.”

Nolan v. U.S. Dept. of Justice, 973 F.2d 843, 846 (10th Cir. 1992) (citations,

brackets and internal quotation marks omitted). Thus, a notice of appeal

designating a ruling on a postjudgment motion is ordinarily effective to appeal the

judgment itself. See Foman v. Davis, 371 U.S. 178, 181 (1962) (notice of appeal

from denial of leave to amend w as “effective, although inept, attempt to appeal

from the judgment sought to be vacated.”); Jones v. Nelson, 484 F.2d 1165, 1168

(10th Cir. 1973) (notice of appeal from denial of motion for new trial was

effective as notice to appeal final judgment); Cheney v. M oler, 285 F.2d 116,

117–118 (10th Cir. 1960) (same). W e therefore have jurisdiction to consider this

appeal and turn to the merits of the dismissal of the claims against the State

Defendants.

      “Dismissal of a pro se complaint under Rule 12(b)(6) for failure to state a

claim is proper only where it is obvious that the plaintiff cannot prevail on the

facts [s]he has alleged and it would be futile to give h[er] an opportunity to

amend.” Johnson, 466 F.3d at 1214–15 (internal quotation marks omitted). W e

review de novo a district court’s dismissal for failure to state a claim upon which




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relief can be granted. See Ruiz v. M cDonnell, 299 F.3d 1173, 1181 (10th Cir.

2002).

         The district court correctly dismissed the state-law claims under the UGIA .

At the time of the incidents alleged by M s. W hite it provided:

         A claim against the state, or against its employee for an act or
         omission occurring during the performance of the employee’s duties,
         within the scope of employment, or under color of authority, is
         barred unless notice of claim is filed with the attorney general within
         one year after the claim arises, or before the expiration of any
         extension of time granted under Section 63-30-11, regardless of
         whether or not the function giving rise to the claim is characterized
         as governmental.

Utah Code Ann. § 63-30-12 (emphasis added) (The UGIA was superseded by the

Governmental Immunity Act of Utah, Utah Code Ann. § 63-30d-101ff (2004), but

the provision quoted here was not materially changed by its successor,

§ 63-30d-402). All the events alleged in the complaint occurred between

August 8, 2001, and January 14, 2004. M s. W hite’s Notice of Claim to the Utah

Attorney General, however, was filed on M ay 2, 2006— more than one year after

the last of the alleged events. Although M s. W hite asserts that the Utah

Constitution’s Supremacy Clause, Utah Const. art. I, § 3 (w hich states that Utah is

a part of the Federal Union and that the federal Constitution is supreme),

som ehow defeats the U G IA , she does not suggest how.

         Turning to M s. W hite’s federal claims, the district court correctly ruled that

the Eleventh Amendment protected the State Defendants from M s. W hite’s § 1983



                                            -5-
claims against them in their official capacities. See Ruiz, 299 F.3d at 1180. The

district court also properly dismissed the individual-capacity claim against

M s. Barlow because of her prosecutorial immunity. See Imbler v. Pachtman, 424

U.S. 409, 431 (1976) (“[I]n initiating a prosecution and in presenting the State’s

case, the prosecutor is immune from a civil suit for damages under § 1983.”).

And the court properly dismissed Attorney General Shurtleff from the § 1983 suit

because the complaint failed to mention him in its allegations; he would not be

liable simply on the ground that he was a supervisor, see Jenkins v. Wood, 81

F.3d 988, 994 (10th Cir. 1996) (“[T]here is no concept of strict supervisor

liability under section 1983.” (internal quotation marks omitted)).

      The district court failed, however, to address either M s. W hite’s Fair

Housing Act claim or her § 1983 claims against H ines and Fiendt in their

individual capacities. Nevertheless, we may affirm the judgment below “on any

grounds for which there is a record sufficient to permit conclusions of law, even

grounds not relied upon by the district court.” See Mann v. Boatwright, 477 F.3d

1140, 1145 (10th Cir. 2007) (internal quotation marks omitted).

      M s. W hite’s Fair Housing Act claim fails to state a cause of action against

the State Defendants because it does not allege that the State Defendants

discriminated against her on the basis of race, color, religion, sex, familial status,

or national origin. See 42 U.S.C. § 3604(a). As to the claims that Hines and

Fiendt violated M s. W hite’s constitutional rights by entrapping her and later

                                          -6-
committing perjury, the complaint is so bare of pertinent factual allegations that it

fails to “nudge[] [her] claims across the line from conceivable to plausible,” and

therefore must be dismissed. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955,

1960 (2007).

      Finally, we reject M s. W hite’s remaining contentions. Her assertions that

the district court abused its discretion by “bringing in” a magistrate judge “to

write the court’s dismissals” and that the magistrate judge “was prejudiced in the

way he wrote motions to dismiss, ” A plt. Br. at 2, are supported by no specific

facts (or even specific allegations) nor any legal argument. She likewise fails to

explain how the district court erred “by separating the Defendants [sic] Ockey

from the Defendants of the State,” id., presumably a reference to the district

court’s disposing of her claims in two separate orders. And her contention that

the district court abused its discretion by “consistently accepting untimely filings

from both the State Defendants and Defendant Ockey,” id. at 2–3, is not

accompanied by any recitation of which filings were untimely and why they

should not have been accepted. W e reject as well her claim that the dismissal of

her claims violated her “Sixth Amendment right to a fair trial.” Id. at 2. That

amendment applies only to “criminal prosecutions.” U.S. Const. amend V I. Even

if we construe her claim as a Seventh Amendment claim, that argument too fails.

See Smith v. Kitchen, 156 F.3d 1025, 1029 (10th Cir. 1997) (proper dismissal




                                         -7-
under Fed. R. Civ. P. 12(b)(6) establishes that there were no facts to be tried, so

Seventh Amendment right to jury trial is not implicated).

       W e AFFIRM the judgment below. W e DENY M s. W hite’s motion to

supplement the record and overrule her objection to our order permitting the

filing of M r. O ckey’s brief.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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