UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ TREVOR KELLEY, Plaintiff - Appellant,

v. SMITH’S FOOD & DRUG CENTERS, INC., Defendant - Appellee. No. 19-4006 (D.C. No. 2:17-CV-00803-BSJ) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , HOLMES , and MORITZ , Circuit Judges.

________________ _________________ Trevor Kelley, who is disabled and us es a wheelchair, sued Smith’s Food & Drug Centers, Inc. (Smith’s) to compel it to bring its grocery store into compliance with Title III of the Ameri cans with Disabilities Act, 42 U.S.C. §§ 12181-12189 (ADA). The district court dismissed the comp laint as moot. We exercise jurisdiction under 28 U.S.C. § 129 1 and affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist 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. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 27, 2019
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND Mr. Kelley complained about two barriers at Smith’s: (1) th e soap dispensers in the store’s restrooms were too high to reach from a wheel chair; and (2) the signs in the parking lot identifying accessible parking spaces were not ADA-compliant so he could not see the signs to find the acces sible parking spaces, and the lack of ADA-compliant signage failed to discourage parking by nondisable d shoppers. After Smith’s produced evidence that it had permanently re mediated these items, the district court determined th at Mr. Kelley’s claims were moot and dismissed the case with prejudice. As a sanction for his attorney’s repeated failure to comply with the court orders to complete a pretrial order, the court denied Mr. Kelley’s request for attorney fees. Mr. Kelley does not dispute that the two architectural barriers raised in his complaint have been remediated and th at the remediation wa s permanent. He contends, however, that the case is not mo ot because (1) while this litigation was pending he, his ADA expert, and his attorn ey discovered between eight and a dozen additional architectural barrie rs at Smith’s store that vi olated the ADA; and (2) once this litigation ended, ther e was nothing to stop Smith’s from again violating the ADA, since Smith’s did not ha ve a policy to comply with the ADA in the future. Mr. Kelley also challenges the ground for the district court’ s denial of his request for attorney fees and costs.3 II. ADA TITLE III Title III of the ADA proscribes di scrimination in places of public accommodation against persons with disabilities. See 42 U.S.C. § 12182(a). Discrimination includes “a failure to remove architectural barriers, and communication barriers that are structural in nature, in ex isting facilities . . . where such removal is re adily achievable.” Id. § 12182(b)(2)(A)(iv). “The ADA provides a private right of action for preventative relief, including an application for a permanent or temporary injunction or rest raining order for ‘any person who is being subjected to discrimination on the basis of disability in viola tion of’ Title III.” Colo. Cross Disability Coal. v. Herm anson Family Ltd. P’ship I , 264 F.3d 999, 1001-02 (10th Cir. 2001) (quo ting 42 U.S.C. §§ 12182( a)(1), 2000a–3(a)). III. MOOTNESS “The constitutional mootness doctrine is grounded in the Article III requirement that federa l courts may only decide actual ongoing cases or controversies. This court lacks subject matter jurisdicti on if a case is moot.” Keller Tank Servs. II, Inc. v. Comm’r , 854 F.3d 1178, 1192-93 ( 10th Cir. 2017) (citations, brackets, and internal quotation marks omitt ed). To determine whether a party has the requisite “personal stake in the outcome of the laws uit at all stages of the litigation,” the inquiry “is whether granting re lief for the issues before the court will have some effect in the real world.” Id. at 1193 (internal quota tion marks omitted). An action becomes moot when “an intervening circumstance deprives the plaintiff of a personal stake in the out come of the lawsuit.” Id. “[W]hen the defendant4 voluntarily stops the challenged conduct, . . . the claim will be deemed moot only if two conditions exist: [1] [i ]t is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur, [and] [2] [i]nterim reli ef or events have completely and irrevocably eradicated the effects of the alleged violation.” EEOC v. CollegeAmerica Denver, Inc. , 869 F.3d 1171, 1173-74 (10t h Cir. 2017) (footnote omitted) (internal quotation marks omitted). “We review de novo whether a claim is
moot.” Id. at 1173. The district court dismi ssed the case as moot becau se the two architectural barriers alleged in the compla int as violating the ADA we re permanently remediated while this litigation was pending. Neverthe less, Mr. Kelley argues that the court was required to consider additional, unremed iated conditions at Smith’s that he discovered after filing his complaint. A lthough Mr. Kelley filed a motion to amend his complaint to add the allegedly unremedia ted architectural barriers at Smith’s, he does not challenge the denial of the motion to amend. 1 To support his claim that he was entitled to re lief for architectural barriers not included in his complaint, Mr. Kelley relies on four cases from other circuits holding that an ADA plaintiff has standing to seek relief for ADA violations that he or she

1 In the “Conclusion” section of his ope ning brief, Mr. Kelle y asserts that the district court erred by “not allowing the motion to amend the complaint” to add the later-discovered ADA violations. Aplt. Opening Br. at 41-42. This is insufficient to warrant appellate review. See Kerber v. Qwest Pension Plan , 572 F.3d 1135, 1146 (10th Cir. 2009) (rejecting a ppellate claim as in adequately briefed because the claim was addressed in only conclusory fashion).5 did not personally encounter as long as the violation was re levant to the plaintiff’s disability. He characteri zes this holding as the “ Doran doctrine.” See Doran v. 7- Eleven, Inc. , 524 F.3d 1034, 1044 (9th Cir. 2008) (“Even if a disabled plaintiff did not know about certain barrier s when the plaintiff first fi led suit, that plaintiff will have a personal stake in the outcome of the controversy so long as his or her suit is limited to barriers related to that person’s particular disa bility.” (internal quotation marks omitted)); 2 Kreisler v. Second Ave. Diner Corp. , 731 F.3d 184, 188 (2d Cir. 2013) (per curiam) (plaintiff who used a wheelchair had standing to pursue relief as to the defendant diner’s lack of a ramp at the entrance, as well as barriers inside the diner related to his disability th at he had not yet encountered); Chapman v. Pier 1 Imports (U.S.) Inc. , 631 F.3d 939, 950 (9th Cir. 2011) (en banc) (court has “Article III jurisdiction to entertain requests for injunc tive relief both to halt the deterrent effect of a noncompliant accommodation and to prevent imminent ‘discrimination’ . . . agains t a disabled individual who pl ans to visit a noncompliant accommodation in the future”); Steger v. Franco, Inc. , 228 F.3d 889, 893-94 (8th Cir. 2000) (blind plaintiff had sta nding to challenge conditions at the defendant’s property that presented risks to blind persons , including those he had not personally encountered, but not those unrel ated to blind persons). But see Davis v. Anthony,
Inc. , 886 F.3d 674, 678 (8th Cir. 2018) (plaintiff who used a wheelchair did not have

2 Mr. Kelley erroneously asserts that the Doran district court converted the proceedings from a Fed. R. Civ. P. 12(b)(1) motion based on mootness to a Fed. R. Civ. P. 56(a) summary-judg ment motion with limited discovery. See Aplt. Opening Br. at 3 n.1. But there apparently was no claim of moot ness in that case.6 standing to sue for unencountered violati ons inside the defendant steakhouse that never injured her because she sued onl y for parking-space violations). These cases, however, addr essed only the plaintiff’s standing . They are irrelevant to the issues presented here—wha t barriers were alle ged in the complaint and were they remediated. Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain “a short and plain st atement of the claim showing that the [plaintiff] is entitled to re lief.” “Rule 8 serves the important purpose of requiring plaintiffs to state thei r claims intellig ibly so as to inform th e defendants of the legal claims being asserted.” Mann v. Boatright , 477 F.3d 1140, 1148 (10th Cir. 2007). Another purpose is to allow the court to de termine whether, if th e facts alleged were proved, the plaintiff woul d be entitled to relief. See Monument Builders of Greater Kan. City, Inc. v. Am. Cemetery Ass’n of Kan. , 891 F.2d 1473, 1480 (10th Cir. 1989). “In general, only disclosures of barri ers in a properly pleaded complaint can provide [the fair notice required by Rule 8]; a disclosure ma de during discovery, including in an expert report, would ra rely be an adequa te substitute.” Oliver v. Ralphs Grocery Co. , 654 F.3d 903, 909 (9th Cir. 2011). “[F]or purposes of Rule 8, a plaintiff must identify the barriers that constitute th e grounds for a claim of discrimination under the ADA in the complaint itself.” Id. The “ Doran doctrine” referenced above “does not help [Mr. Kelley ], because . . . it sh eds no light on what a plaintiff’s complaint must in clude to comply with the fair notice requirement of Rule 8.” Id.7 Mr. Kelley further contends that the di strict court erred by not allowing him to conduct “discovery on the factual issues rais ed by [the] motion [to dismiss for lack of jurisdiction].” Sizova v. Nat’l Inst. of Standards & Tech. , 282 F.3d 1320, 1326 (10th Cir. 2002) (int ernal quotation marks omitted). But he has not pointed to any discovery relevant to the m ootness of the claims raised in his complaint. He conceded that Smith’s had remediated th e architectural barrie rs alleged in the complaint, so th ere remained no factual issues. See id. (“[A] refusal to grant discovery constitutes an abuse of discretion if the denial results in prejudice to a litigant,” and “[p]rejudice is present [onl y] where pertinent facts bearing on the question of jurisdiction are controverted.” (internal quotation marks omitted)). In addition, Mr. Kelley suggests that hi s claims are not moot because Smith’s may violate the ADA in other respects in th e future. He argues that Smith’s was required to have “policies and procedures in place[] to both prevent further barriers and to quickly remedy further barriers as they arise.” Aplt. Open ing Br. at 34. He cites no authority requiring Smith’s to produce such a policy. 3 Moreover, the complaint did not include this claim and Mr. Kelley has not cited “the precise references in the record wh ere the issue was raised and ruled on,” 10th Cir. R.

3 The ADA defines one type of discrimina tion as “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services , facilities, privilege s, advantages, or accommodations to individuals with disabi lities, unless the ent ity can demonstrate that making such modifications would fundam entally alter the natu re of such goods, services, facilities, priv ileges, advantages, or acco mmodations.” 42 U.S.C. § 12182(b)(2)(A)(ii). Mr. Ke lley did not allege this type of discrimination.8 28.1(A). Without a specific reference, we w ill not search the reco rd to determine if an issue has been preserved for appeal. Cf. Gross v. Bur ggraf Constr. Co. , 53 F.3d 1531, 1546 (10th Cir. 1995) (declining to search th e record for “ dormant evidence which might require subm ission of the case to a jury”). Because Mr. Kelley “did not raise this argument below a nd does not provide a compelling reason for us to address it on appeal,” we declin e to consider it. Brigance v. Vail Summit Resorts, Inc. , 883 F.3d 1243, 1254-55 (10th Cir. 2018). In any event, there is no dispute that Smith’s remediation of the two ADA viol ations alleged in the complaint are permanent corrections. IV. SANCTION—DENIAL OF CO STS AND ATTORNEY FEES Mr. Kelley also challenges the distri ct court’s order de nying his request for costs and attorney fees as a sanction for hi s attorney’s repeated failure to comply with court orders concerning filing a pretrial order. Mr . Kelley contends that his attorney complied with the dist rict court’s directives to f ile a pretrial order and that the district court should not have imposed the sanction without giving counsel an opportunity to cure or show cause. “A successful [ADA Title III] plaintiff may . . . be en titled to attorney fees and
costs.” Colo. Cross Disability Coal. , 264 F.3d at 1002 (citing 42 U.S.C. § 2000a-3(b)). Section 2000a-3(b) permits the district court to award reasonable attorney fees to the prevailing party at the district c ourt’s discretion. But the term prevailing party does not include “a party that has failed to secure a judgment on the merits or a court-ordered c onsent decree, but has nonethe less achieved the desired9 result because the lawsuit brought about a voluntary change in the defendant’s conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human
Res. , 532 U.S. 598, 600 (2001); accord Moseley v. Bd. of Educ. of Albuquerque Pub. Sch. , 483 F.3d 689, 694 (10th Cir. 2007) (“ [B]ecause the underlying substantive claims are moot, [the plain tiff] cannot recover attorney’s fees and costs.”). “A defendant’s voluntary change in conduct, although pe rhaps accomplishing what the plaintiff sought to achieve by the la wsuit, lacks the necessary judicial imprimatur on the change.” Buckhannon , 532 U.S. at 605. Therefore, we affirm the di strict court’s denial of costs and attorney fees, albeit for reasons other than those stated by the district court. See Safe Streets All. v. Hickenlooper , 859 F.3d 865, 878-79 (10th Cir. 2017) (appellate court may affirm the district cour t’s “ruling on any grounds adequately supported by the record, even grounds not relied upon by the district court” (internal quotation marks omitted)). Mr. Kelley acknowledges that “the law [ does] not allow for an award of costs and fees” when a case is dism issed as moot. Aplt. Openi ng Br. at 36. Instead, he objects to the district court’s characterization of the denial of fees as a sanction. He argues that the district court failed to fo llow the prescribed procedure before issuing sanctions, and asserts that the sanctions order “was utter[ly] s uperfluous and prejudicial,” id. at 42. But he has not explaine d how any action by this court could provide him any relief or how the sanctions order prejudiced him or his attorney, given his concession that he is not entitled to attorney fees and co sts. “[A] federal court has neither the power to render adviso ry opinions nor to decide questions that10 cannot affect the rights of litigan ts in the case before them.” Preiser v. Newkirk , 422 U.S. 395, 401 (1975) (i nternal quotation marks omitte d). Therefore, we do not address Mr. Kelley’s claim th at the district court erred in characterizing the order denying attorney fees and costs as a sanction. V. MISCELLANEOUS ISSUES Smith’s devotes almost five pages of its ten-page appe llate argument to (1) explaining that an Arizona business funded Mr. Kelley’s litigation, (2) describing the other litigation the business has funded, and (3) comparing the other litigation to this case. These matters are not relevant to the issues on a ppeal. In addition, the five pages of legal arguments do not even ment ion several of Mr. Kelley’s appellate arguments—whether discovery was required, whether the “ Doran doctrine” applied, whether Smith’s was required to have an ADA policy, or whether the attorney-fee sanction was appropriate. Smith ’s briefing is unhelpful. In his appellate reply brie f, Mr. Kelley asserts that in arguing he was an agent of the Arizona business—an argument he clai ms the district cour t rejected—Smith’s “made multiple baseless al legations, [made] logic[al] fallacies, and cast multiple aspersions, amounting to ad hominem atta cks on Kelley and his [c]ounsel.” Aplt. Reply Br. at 12. He include s in his appellate reply brie f a request that this court award attorney fees for Smith’s allegedly sanctiona ble argument. “We must deny this request because [Mr. Kelley] failed to file a separate motion or notice reque sting sanctions.” Abeyta v. City of Albuquerque , 664 F.3d 792, 797 (10th Cir. 2011). “[Federal Rule of Appellate Pro cedure 38] requires that before11 a court of appeals may impose sanctions, the person to be sa nctioned must have notice and an opportunity to respond. A separately filed moti on requesting sanctions constitutes notice. A statemen t inserted in a party’s brie f that the party moves for sanctions is not sufficient notice.” Id. (ellipsis and internal quot ation marks omitted). VI. CONCLUSION We affirm the distri ct court’s judgment.

Entered for the Court

Harris L Hartz Circuit Judge