## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 20 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EMIL A. TONKOVICH,

Plaintiff - Appellant,

v. No. 00-3136 KANSAS BOARD OF REGENTS; UNIVERSITY OF KANSAS; JAMES TURNER; WILLIAM R. DOCKING; KENNETH C. HAVNER; and ROBERT V. TALKINGTON,

Defendants, and ROBERT C. CALDWELL; TOM E. HAMMOND; JOHN B. HIEBERT; KAREN KREPPS; JOHN G. MONTGOMERY; PHYLLIS NOLAN; FRANK C. SABATINI; SIDNEY WARNER; GENE A. BUDIG; DELBERT M. SHANKEL; P. DELBERT BRINKMAN; DAVID E. SHULENBURGER; ROBERT H. JERRY, II; SIDNEY A. SHAPIRO; REGINALD L. ROBINSON; A. KIMBERLY DAYTON; ELINOR P. SCHROEDER; ELLEN E. SWARD; SANDRA C. MCKENZIE; ANN VICTORIA THOMAS; ROSE A. MARINO; H. RUTHERFORD TURNBULL, III; NANCY ANN DAHL; E. P. JOHNSEN; JOHN MICHEL; and DELORES RINGER,-2-

individually and in their individual capacity; and ROBERT HEMENWAY, Chancellor, Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 95-CV-2199)

Emil A. Tonkovich, pro se (Richard P. Hutchison of Landmark Legal Foundation, Kansas City, Missouri, on the briefs). William Scott Hesse, Assistant Attorney General, St ate of Kansas, Topeka, Kansas (Timothy B. Mustaine of Foulston & Siefkin L .L.P., Wichita, Kansas, for Appellee Jerry; Bruce D. Mayfield, Overland Park, K ansas, and Michael Evan Jaffe of Arent, Fox, Kintner, Plotkin & Kahn, Washi ngton, D.C., for Appellees Dayton, Robinson, Schroeder, Shapiro, and Sward; Tammy M. Samogye of Lathrop & Gage L.C., Overland Park, Kansas, for App ellees Turnbull, Dahl, Johnsen, Michel, and Ringer; Thomas A. Hamill of Martin, Pringle, Oliver, Wallace & Swartz, L.L.P., Overland Park, Kansas, fo r Appellees Marino and Thomas; Jeffrey A. Chanay of Entz & Chanay, Topeka, Kansas, for Appellees Brinkman, Budig, Hemenway, Shankel, and Shulenberge r; John I. O’Connor of The Advocates Group, Pittsburg, Kansas, for Appelle e MacKenzie; Carla J. Stovall, Attorney General for the State of Kansas, Topeka, Kansas, for Appellees Caldwell, Hammond, Hiebert, Krepps, Montgomery, Nol an, Sabatini, and Warner, on the brief), for Defendants-Appellees.

_________________________ Before KELLY , McKAY , and MURPHY , Circuit Judges.

_________________________ McKAY , Circuit Judge.

________________________-3-

Following a lengthy administrative hearing process, Plaintiff was fired from his tenured teaching position at the University of Kansas School of Law for allegedly engaging in a sex act with one of his stu dents after discussing grades. He subsequently sued the University, the Board of R egents, and numerous University administrators and professors in their o fficial and individual capacities, asserting violations of state law and 4 2 U.S.C. § 1983. His § 1983 claim specifically alleged, in relevant part, that Defendants, individually and collectively, had violated his Fourteenth Amendmentrights to substantive and procedural due process and equal protection. Plaintiff sought both monetary and equitable relief. In 1996, the district court dismissed the § 1983 cl aims against the University, the Board of Regents, and the administr ators and professors in their official capacities, except the University Chancell or, on Eleventh Amendment grounds. The individual Defendants then sought qua lified immunity from the federal claims, which this court eventually granted in Tonkovich v. Kansas Board of Regents , 159 F.3d 504 (10th Cir. 1998) [hereinafter Tonkov ich I ], based on the fact that Plaintiff had not alleged any conduct that constituted due process or equal protection violations. This court remanded t he case to the district court for dismissal of the individual Defendants and for addi tional proceedings consistent with the opinion. See id. at 534.-4-

The district court accordingly dismissed the indivi dual Defendants. This left Plaintiff with only one remaining federal caus e of action: his § 1983 claim for reinstatement against the University Chancellorin his official capacity. The Chancellor moved to dismiss the equity claim for fa ilure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and al l the individual Defendants moved to dismiss the state law claims for lack of f ederal jurisdiction. Based on the Tonkovich I holdings, the district court ruled that Plaintiff had not stated a claim upon which relief could be granted against th e Chancellor and dismissed the § 1983 reinstatement claim. Lacking a cognizable f ederal claim, the court also dismissed the pendent state law claims. Plaintiff appeals, arguing that the district court erred in dismissing the reinstatement claim against the Chancellor, in dism issing the state law claims, and in declining to recuse himself as requested by Plai ntiff in 1995. We have jurisdiction under 28 U.S.C. § 1291. We first address the district court’s decision to d ismiss Plaintiff’s § 1983 due process- and equal protection-based reinstateme nt claim against the University Chancellor. We review de novo a Rule 12 (b)(6) dismissal for failure to state a claim. See Sutton v. Utah State Sch. for the Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). In assessing whether the complaint sufficiently articulates a claim for which relief may be granted , we must accept as true all-5-

well-pleaded allegations and view them in the lightmost favorable to Plaintiff.
See id. If, after doing so, “it appears beyond doubt that” Plaintiff “can prove no set of facts in support of his claim which would entitle him to relief,” then dismissal is required. Id. (quotation and citation omitted). In Tonkovich I , this court discussed Plaintiff’s copious complaint in minute detail. See Tonkovich I , 159 F.3d at 510-15. We do not think it necessaryto do so again. Although Tonkovich I dealt with qualified immunity, its analysis and, more importantly, its holding are germane to our Ru le 12(b)(6) inquiry. The relevance becomes apparent upon comparing the two a nalyses. First, both analytical frameworks employ the same factual lens: “[A]ll of the well-pleaded allegations in the complaint [are accepted] as true .” Id. at 510 (quotations and citation omitted). Second, the qualified immunity inquiry itself—whether Defendants (1) violated (2) clearly established law—requires a court to confront an obvious Rule 12(b)(6) issue: whether Plaintiff has alleged a legal violation at all. Put more specifically, both analyses require the court to determine whether Plaintiff has argued facts that, if proven, would d emonstrate illegal conduct by Defendants for which relief may be granted. Significantly, the Tonkovich I court granted the individual Defendants qualified immunity because it concluded that Plaint iff’s complaint did not indicate that any of the Defendants even violated h is procedural or substantive1 The fact that Tonkovich I disavowed any intent to review the merits of the

case, 159 F.3d at 515-16, does not alter our conclu sion. The panel did not do a Rule 12(b)(6) review of the merits, despite acknowl edging its relation to a qualified immunity analysis, because the court lack ed jurisdiction to do so. Id. However, that does not devalue Tonkovich I ’s relevance to a subsequent Rule 12(b)(6) analysis such as this. Indeed, in light o f the law of the case doctrine, it would be ludicrous to argue that we are free to con strue the same aspects of Plaintiff’s complaint differently than did Tonkovic h I , although we address essentially the same issue. -6- due process or equal protection rights. See id. at 526 (discussing lack of procedural due process violations); id. at 529-32 (discussing lack of substantive due process violations); id. at 532-33 (discussing Plaintiff’s failure to even allege a proper equal protection claim). In short, the co urt took Plaintiff’s factual allegations as true and still determined that none of his asserted rights had been violated. Stare decisis , see United States v. Meyers , 200 F.3d 715, 720 (10th Cir. 2000), and the law of the case doctrine, see McIlravy v. Kerr-McGee Coal Corp. , 204 F.3d 1031, 1034 (10th Cir. 2000), compel us to follow Tonkovich I . That panel’s holding plainly dictates the conclusion that Plaintiff “can prove no set of facts in support of his claim which would entitle h im to relief” and that the complaint must therefore be dismissed pursuant to Rule 12(b)(6). 1 Sutton , 173 F.3d at 1236. Nonetheless, Plaintiff maintains that the district court erred in dismissing his reinstatement claim against the University Chan cellor. He argues that Tonkovich I does not control his appeal for two reasons. Firs t, Plaintiff contends-7-

that Tonkovich I did not address important aspects of his substanti ve and procedural due process claims or his equal protecti on claim and thus cannot provide the basis for dismissing those claims. We disagree. Based on our review of Plaintiff’s briefs, the complaint, and Tonkovich I , we conclude that Tonkovich
I adequately addressed all of Plaintiff’s federal cl aims with possibly one minor exception. Tonkovich I mentioned the underlying facts, see Tonkovich I , 159 F.3d at 514, but arguably never analyzed Plaintiff’ s substantive due process claim that he was accused of and fired for conduct (besid es the sexual encounter) that had not theretofore been prohibited. See Aplt. Br., at 33-36. This conduct included holding a student’s hand while asking her who her favorite teacher was and “negligent” social interaction with students. See id. ; see also Tonkovich I , 159 F.3d at 514. Even if this conduct was not prohibited, Plaintiff’ s claim does not warrant reinstatement because the record plainly shows thatPlaintiff would have been fired solely for his student sexual encounter. Anyadditional findings of misbehavior were simply meant to further justify th e University’s decision. Indeed, the faculty hearing committee, which conduc ted the administrative proceedings and possessed independent authority to recommend whatever sanction it thought appropriate, expressly stated t hat a majority of the committee was “especially persuaded to reach the dismissal re commendation because of the-8-

gravity of the [sex] act that Professor Tonkovich c ommitted in dealing with [the student] and because [the majority of the committee ] believe[s] that the [sex] act and grades discussions accompanied each other.” Ap pellee’s App. at 190-91. In sum, Plaintiff’s allegation that he was fired for h olding another student’s hand or for “negligent” social behavior with students compl etely lacks record support and therefore cannot sustain his claim for reinstatemen t. Second, Plaintiff asserts that Tonkovich I does not mandate dismissal because it dealt solely with the conduct of each in dividual Defendant whereas his remaining equitable reinstatement claim hinges on D efendants’ collective misfeasance. However, this argument ignores the sc ope of Tonkovich I ’s holding. The panel held that not one Defendant violated any of Plaintiff’s asserted federal rights. Short of reconsidering and rejecting Tonko vich I , we fail to see how we could nevertheless find collective wrongdoing warranting the extraordinary remedy of reinstatement. In summary, we agree with the district court that the thorough holdings of Tonkovich I require dismissal of Plaintiff’s reinstatement claim against the University Chancellor. Plaintiff next argues that the district court abuse d its discretion in dismissing without prejudice the state law claims a gainst the individual Defendants. Title 28, section 1367 of the United S tates Code states that “district courts may decline to exercise supplemental jurisdi ction over a claim . . . [if] the-9-

district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c). In the instant case, the distric t court dismissed all of the § 1983 claims over which it had original jurisdicti on. Section 1367 thus expressly grants the court discretion to dismiss the suppleme ntal state law claims as well. Plaintiff has provided no authority, and next to no argument, suggesting how the district court abused its discretion. In fairness, such an argument would be exceedingly difficult to make in the case at hand, where, given the relative lack of pretrial proceedings—including a total absence of d iscovery—considerations of “‘judicial economy, convenience, and fairness’” do not favor “‘retaining jurisdiction.’” Anglemyer v. Hamilton County Hosp. , 58 F.3d 533, 541 (10th Cir. 1995) (quoting Thatcher Enter. v. Cache County Corp

. , 902 F.2d 1472, 1478 (10th Cir. 1990)). Instead, it appears that Plaintiff pr imarily relies on the position that the § 1983 reinstatement claim should never have be en dismissed in the first place, thus negating the need to dismiss the state law claims. However, we have already affirmed the dismissal of the reinstatementclaim and can see no reason in the record why the state law claims were not proper ly dismissed too. See United Mine Workers v. Gibbs , 383 U.S. 715, 726 (1966) (“Certainly, if the fede ral claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well .”); see also Bateman v. City of West Bountiful , 89 F.3d 704, 709 n.5 (10th Cir. 1996); Doe v. Bag an , 41 F.3d-10-

571, 577 (10th Cir. 1994). Finally, Plaintiff asserts that the district judge abused his discretion by refusing to recuse himself, and Plaintiff asks this court to reassign the case on remand to a district court judge outside the Distri ct of Kansas. However, our conclusion that Plaintiff’s federal and state claim s no longer belong in federal court renders the recusal issue, with its request f or prospective relief, moot.
AFFIRMED

.