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, 
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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, State of Kansas, Topeka,

Kansas (Timothy B. Mustaine of Foulston & Siefkin L.L.P., Wichita, Kansas, for

Appellee Jerry; Bruce D. Mayfield, Overland Park, Kansas, and Michael Evan

Jaffe of Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., for Appellees

Dayton, Robinson, Schroeder, Shapiro, and Sward; Tammy M. Samogye of

Lathrop & Gage L.C., Overland Park, Kansas, for Appellees Turnbull, Dahl,

Johnsen, Michel, and Ringer; Thomas A. Hamill of Martin, Pringle, Oliver,

Wallace & Swartz, L.L.P., Overland Park, Kansas, for Appellees Marino and

Thomas; Jeffrey A. Chanay of Entz & Chanay, Topeka, Kansas, for Appellees

Brinkman, Budig, Hemenway, Shankel, and Shulenberger; John I. O’Connor of

The Advocates Group, Pittsburg, Kansas, for Appellee MacKenzie; Carla J.

Stovall, Attorney General for the State of Kansas, Topeka, Kansas, for Appellees

Caldwell, Hammond, Hiebert, Krepps, Montgomery, Nolan, Sabatini, and Warner, 

on the brief), for Defendants-Appellees.

_________________________

Before KELLY, McKAY, and MURPHY, Circuit Judges.

_________________________

McKAY, Circuit Judge.

________________________
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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 students after discussing grades. 

He subsequently sued the University, the Board of Regents, and numerous

University administrators and professors in their official and individual

capacities, asserting violations of state law and 42 U.S.C. § 1983. His § 1983

claim specifically alleged, in relevant part, that Defendants, individually and

collectively, had violated his Fourteenth Amendment rights to substantive and

procedural due process and equal protection. Plaintiff sought both monetary and

equitable relief. 

In 1996, the district court dismissed the § 1983 claims against the

University, the Board of Regents, and the administrators and professors in their

official capacities, except the University Chancellor, on Eleventh Amendment

grounds. The individual Defendants then sought qualified 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 Tonkovich I], based on the

fact that Plaintiff had not alleged any conduct that constituted due process or

equal protection violations. This court remanded the case to the district court for 

dismissal of the individual Defendants and for additional proceedings consistent

with the opinion. See id. at 534.
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The district court accordingly dismissed the individual Defendants. This

left Plaintiff with only one remaining federal cause of action: his § 1983 claim

for reinstatement against the University Chancellor in his official capacity. The

Chancellor moved to dismiss the equity claim for failure to state a claim pursuant

to Federal Rule of Civil Procedure 12(b)(6), and all the individual Defendants

moved to dismiss the state law claims for lack of federal 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 the Chancellor and dismissed the

§ 1983 reinstatement claim. Lacking a cognizable federal 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 dismissing the state law claims, and

in declining to recuse himself as requested by Plaintiff in 1995. We have

jurisdiction under 28 U.S.C. § 1291. 

We first address the district court’s decision to dismiss Plaintiff’s § 1983

due process- and equal protection-based reinstatement 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
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well-pleaded allegations and view them in the light most 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 necessary to do

so again. Although Tonkovich I dealt with qualified immunity, its analysis and,

more importantly, its holding are germane to our Rule 12(b)(6) inquiry. The

relevance becomes apparent upon comparing the two analyses. 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 demonstrate 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 Plaintiff’s complaint did not

indicate that any of the Defendants even violated his procedural or substantive
1The fact that Tonkovich I disavowed any intent to review the merits of the

case, 159 F.3d at 515-16, does not alter our conclusion. The panel did not do a 

Rule 12(b)(6) review of the merits, despite acknowledging its relation to a

qualified immunity analysis, because the court lacked 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 of the law of the case doctrine, it

would be ludicrous to argue that we are free to construe the same aspects of

Plaintiff’s complaint differently than did Tonkovich I, although we address

essentially the same issue.

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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 court 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 him 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 Chancellor. He argues that

Tonkovich I does not control his appeal for two reasons. First, Plaintiff contends
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that Tonkovich I did not address important aspects of his substantive and

procedural due process claims or his equal protection 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 claims 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 (besides 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 that Plaintiff would have been

fired solely for his student sexual encounter. Any additional findings of

misbehavior were simply meant to further justify the University’s decision. 

Indeed, the faculty hearing committee, which conducted the administrative

proceedings and possessed independent authority to recommend whatever

sanction it thought appropriate, expressly stated that a majority of the committee 

was “especially persuaded to reach the dismissal recommendation because of the
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gravity of the [sex] act that Professor Tonkovich committed in dealing with [the

student] and because [the majority of the committee] believe[s] that the [sex] act

and grades discussions accompanied each other.” Appellee’s App. at 190-91. In

sum, Plaintiff’s allegation that he was fired for holding another student’s hand or

for “negligent” social behavior with students completely lacks record support and

therefore cannot sustain his claim for reinstatement. 

Second, Plaintiff asserts that Tonkovich I does not mandate dismissal

because it dealt solely with the conduct of each individual Defendant whereas his

remaining equitable reinstatement claim hinges on Defendants’ collective

misfeasance. However, this argument ignores the scope 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 Tonkovich 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 abused its discretion in

dismissing without prejudice the state law claims against the individual

Defendants. Title 28, section 1367 of the United States Code states that “district

courts may decline to exercise supplemental jurisdiction over a claim . . . [if] the
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district court has dismissed all claims over which it has original jurisdiction.” 28

U.S.C. § 1367(c). In the instant case, the district court dismissed all of the

§ 1983 claims over which it had original jurisdiction. Section 1367 thus expressly

grants the court discretion to dismiss the supplemental 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 discovery—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 primarily relies on the position that

the § 1983 reinstatement claim should never have been dismissed in the first

place, thus negating the need to dismiss the state law claims. However, we have

already affirmed the dismissal of the reinstatement claim and can see no reason in

the record why the state law claims were not properly dismissed too. See United

Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal

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. Bagan, 41 F.3d
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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 District of Kansas. However, our

conclusion that Plaintiff’s federal and state claims no longer belong in federal

court renders the recusal issue, with its request for prospective relief, moot.

AFFIRMED.