*

After examining the briefs and the 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). 

This case is therefore submitted without oral argument.

FILED

United States Court of Appeals

Tenth Circuit

November 27, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MELISSA L. PHILLIPS,

Plaintiff-Appellant,

v.

JO HUMBLE, Chief of Police; NFN

BRADLEY; SABRINA GETTLER;

ED RUTHERFORD; COFFEYVILLE

POLICE DEPARTMENT; JEFF

MORRIS,

Defendants-Appellees.

No. 08-3004

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 2:07-CV-02452-JAR)

Melissa L. Phillips, pro se.

Kevin M. McMaster and Jennifer M. Hill of McDonald, Tinker, Skaer, Quinn &

Herrington, P.A., Wichita, Kansas, for Defendants-Appellees.

Before KELLY, EBEL, and MURPHY, Circuit Judges.*
2

EBEL, Circuit Judge.

Plaintiff-Appellant Melissa L. Phillips contends that Defendants-Appellees,

various officials and employees of Coffeyville, Kansas, committed wrongful acts

against her during and after a 2007 flood in Coffeyville. The district court

dismissed Ms. Phillips’s complaint for failure to comply with the notification

requirements imposed by the Kansas Tort Claims Act on plaintiffs seeking to

pursue state tort claims against municipalities and their employees. Exercising

our jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM. 

I. Background

Ms. Phillips vocally disagreed with the actions taken by Coffeyville police

officers and officials in connection with a summer 2007 flood. She was

concerned that chemical-and-bacteria laden waters had contaminated parts of the

city. According to Ms. Phillips, she was wrongly silenced, arrested, charged,

threatened, stalked, harassed, and searched for trying to advise officials and warn

citizens of potential dangers.

Ms. Phillips, a law student proceeding pro se, filed a complaint in federal

court listing numerous state tort claims, including negligence, malicious

prosecution, false arrest, continuing trespass, intentional infliction of emotional

distress, defamation, slander, libel, battery, and fraud. She also filed a “motion

for an emergency order” seeking an emergency declaration and injunction to
1

 The statute provides:

Any person having a claim against a municipality which could give rise to

an action brought under the Kansas tort claims act shall file a written notice

as provided in this subsection before commencing such action. . . . Once

notice of the claim is filed, no action shall be commenced until after the

claimant has received notice from the municipality that it has denied the

claim or until after 120 days has passed following the filing of the notice of

claim, whichever occurs first. . . . No person may initiate an action against

a municipality unless the claim has been denied in whole or part.

Kan. Stat. Ann. § 12-105b(d).

3

enforce a variety of environmental statutes, a declaration preventing the police

from further harassing her, and a declaration that, if she is jailed again, she be

placed in county jail where the city defendants will be unable to harm her. 

Appellees filed for dismissal on two grounds: lack of federal jurisdiction and lack

of compliance with Kansas statutory notice requirements. 

Although Phillips focused on state law torts in her complaint, the district

court liberally construed Phillips’s complaint as raising both state law claims and

federal law claims under 42 U.S.C. § 1983. Given the presence of a federal

question, the district court concluded that it could exercise jurisdiction over the

case. However, the district court dismissed the entire complaint because Ms.

Phillips did not provide Coffeyville with advance notice of her claim, as required

by Kan. Stat. Ann. § 12-105b(d).1

 Ms. Phillips appeals this ruling, arguing that

the Kansas notice-of-claim statute is unconstitutional and, even if it is

constitutional, it does not apply to at least some of her claims. 
4

II. Analysis

A. Jurisdiction

Before reaching the merits of this appeal, we address sua sponte two

jurisdictional issues. See Kennedy v. Lubar, 273 F.3d 1293, 1301 (10th Cir.

2001) (“Although . . . we ordinarily do not consider matters not affirmatively

raised by the parties in their opening briefs, this general rule does not apply to

jurisdictional questions.”) (internal citation omitted). Ms. Phillips’s complaint

was clearly focused on state law claims and she does not allege diversity

jurisdiction. Therefore, we must determine whether she has alleged a federal

claim and, thereby, enabled this court to exercise jurisdiction over this appeal. 

Second, we must determine whether the district court’s dismissal was a final and

appealable order under 28 U.S.C. § 1291.

We agree with the district court that, despite the fact that the substance of

Ms. Phillips’s complaint is based on state tort law, her pro se complaint can be

liberally construed to allege claims under § 1983. For example, Phillips alleged

that, while she was held in jail, she complained of chest pain and, despite her

complaints, she was not allowed to use her asthma inhaler. Although her

complaint does not specify any federal cause of action, in her response to the

Appellees’ motion to dismiss she alleged, inter alia, that her Fourteenth

Amendment rights were violated when she was denied access to medical

treatment. See Johnson v. Johnson, 466 F.3d 1213, 1216 (10th Cir. 2006)
5

(considering allegations in support of a pro se plaintiff’s § 1983 claims raised for

the first time in his answer to defendants’ motion to dismiss). In conjunction with

the factual allegations in her complaint, this was sufficient to sustain a pro se

§ 1983 claim. Cf. Williams v. Rodriguez, 509 F.3d 392, 401 (7th Cir. 2007)

(stating that denying asthma treatment to a person being temporarily detained by

the police would violate the Fourteenth Amendment where the detainee’s

symptoms were “objectively serious” and the officers were “deliberately

indifferent” to his medical needs) (quotation omitted). Similarly, Phillips’s

allegation that she was arrested without explanation or justification, read in

conjunction with her invocation of the Fourth and Fourteenth Amendments in her

reply to the Appellees’ motion to dismiss, was sufficient to raise a § 1983 claim.

Further, we hold that the district court’s dismissal in this case constituted a

final and appealable order under 28 U.S.C. § 1291. “In Moya v. Schollenbarger,

[465 F.3d 444, (10th Cir. 2006)], . . . [w]e set forth three principles for

determining whether an order of a district court is final and appealable.” Brown

v. Fisher, 251 Fed. Appx. 527, 531 (10th Cir. Oct. 16, 2007) (unpublished). 

“First, if a district court order expressly and unambiguously dismisses a

plaintiff’s entire action, that order is final and appealable.” Moya, 465 F.3d at

450. “Second, where a district court dismissal expressly denies the plaintiff leave

to amend, or the district court’s grounds for dismissal are such that the defect

cannot be cured through an amendment to the complaint, that dismissal (even if it
6

is ambiguous or nominally of the complaint) is for practical purposes of the entire

action and therefore final.” Id. at 450-51. “Third, when the dismissal order

expressly grants the plaintiff leave to amend, that conclusively shows that the

district court intended only to dismiss the complaint; the dismissal is thus not a

final decision.” Id. at 451.

 This case does not fall within the first principle in Moya, because the

district court’s order did not “expressly and unambiguously dismiss [the]

plaintiff’s entire action.” Id. at 450. On page four, the district court stated that

“plaintiff’s complaint is dismissed without prejudice.” (Emphasis added). 

Similarly, on page three, the district court stated that Phillips’s “complaint []

should be dismissed for failure to abide by K.S.A. § 12-105b(d).” (Emphasis

added.) This language seems to indicate that the court was merely interested in

dismissing the complaint and, presumably, would have allowed Phillips to cure

this defect and re-file. See B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d

1282, 1297 n.15 (10th Cir. 2008) (“A dismissal of the complaint is ordinarily a

non-final, nonappealable order.”). There is some ambiguity, however, because

the court’s final statement merely provided that defendants’ motion to

dismiss—which sought dismissal of all Phillips’s claims with prejudice—was

granted, and did not specify whether it was dismissing the entire action or just the

complaint. 
7

Even if the district court had unambiguously stated that the dismissal was

only of the complaint, “an order is not necessarily devoid of finality simply

because it speaks in terms of dismissal of a complaint. Rather, we ‘endeavor to

scrutinize [complaint dismissals] . . . closely in order to pinpoint those situations

wherein, in a practical sense, the district court by its order has dismissed a

plaintiff’s action as well.’” Moya, 465 F.3d at 449 (quoting Petty v. Manpower,

Inc., 591 F.2d 615, 617 (10th Cir. 1979) (per curium)) (alterations added in

Moya). Therefore, despite the language in the district court’s opinion which

might indicate that Phillips is free to bring an amended complaint, we must

examine whether the dismissal was final and appealable under the second

principle in Moya. 

This case falls squarely within the second principle laid out in Moya, which

provides that a dismissal of a complaint without prejudice is a final and

appealable order where “the district court’s grounds for dismissal are such that

the defect cannot be cured through an amendment to the complaint, [so] dismissal

(even if it is ambiguous or nominally of the complaint) is for practical purposes

of the entire action and therefore final.” Moya, 465 F.3d at 450-51; see also B.

Willis, C.P.A., 531 F.3d at 1296 n.15 (holding that dismissal without prejudice

for lack of ripeness was a final appealable order because the plaintiff “could not

have saved its claims by merely amending its complaints”); Abu-Nantambu-El v.

Oliva, 282 Fed. Appx. 658, 661-62 (10th Cir. June 18, 2008) (unpublished)
2

 This court’s unpublished opinion in Brown, 251 Fed. Appx. 527, is

distinguishable. In Brown, the district court dismissed plaintiff’s § 1983 claim

because the plaintiff had failed properly to serve the defendants within 120 days,

as required by Fed. R. Civ. P. 4(m). On appeal, this court held that it lacked

jurisdiction over the district court’s dismissal because “the district court did not

intend to dismiss Brown’s entire cause of action and finally dispose of his case. 

The court’s order allowed Brown to re-file and properly serve his complaint upon

the County. . . . Presumptively then, the order of dismissal was not final and

appealable.” Brown, 251 Fed. Appx. at 531. 

Brown is easily distinguished from our case because, as this court explicitly

recognized, that case fell within the third principle laid down in Moya, that “when

the dismissal order expressly grants the plaintiff leave to amend, that

conclusively shows that the district court intended only to dismiss the complaint;

the dismissal is thus not a final decision.” Moya, 465 F.3d at 451. The court in

Brown explicitly stated that it would allow the plaintiff to re-file and then serve

process on the defendants and even explained, in a footnote, how the plaintiff

could amend his complaint in order to avoid dismissal down the line. On appeal,

(continued...)

8

(holding that court had jurisdiction to address appeal of district court’s dismissal

of a complaint without prejudice for failure to exhaust, and collecting cases where

this court exercised jurisdiction under similar circumstances). In this case,

Phillips can only correct the defect pointed out by the district court by providing

advance notice to the state and then filing a new complaint. As this requires more

than a mere amendment of her pleadings, this case falls within the ambit of the

second principle laid out in Moya, and is a final appealable order. See Thayer v.

Utah, 265 Fed. Appx. 710, 712-13 (10th Cir. Feb. 15, 2008) (unpublished)

(holding that dismissal for failure to pay an $.08 filing fee was a final appealable

order because the plaintiff could not cure the defect in the case by merely

amending his complaint).2

 
(...continued)

this court explicitly relied upon the third principle in Moya to conclude that this

order was nonfinal and not appealable. See Brown 251 Fed. Appx. at 531 (stating

that “[t]he third principle [from Moya] is relevant here”). In this case, on the

other hand, there was no comparable statement inviting Phillips to amend her

complaint and re-file. Therefore, the third principle in Moya does not come into

play, and we may rely on the second principle to conclude that, because Phillips

cannot cure the defects in her complaint by amendment alone, the district court’s

dismissal is final and appealable.

9

Finally, the third principle in Moya—under which a seemingly final and

appealable dismissal will be deemed unappealable where the court explicitly

invites the litigant to file an amended complaint and cure the defects in the

original complaint—does not apply in this case. The district court in this case

gave no indication that it would accept—let alone invite—a revised complaint

from Ms. Phillips. Accordingly, the district court’s dismissal was a final

appealable order, and we have jurisdiction over this appeal pursuant to 28 U.S.C.

§ 1291. 

B. The District Court Appropriately Dismissed Ms. Phillips’s State Law

Claims for Failure to Provide Advance Notice

Phillips raised state law claims against the city and city employees acting

within the scope of their employment. Both of these types of claims are covered

by Kan. Stat. Ann. § 12-105b(d)’s notice requirement. See Knorp v. Albert, 28

P.3d 1024, 1028 (Kan. Ct. App. 2001) (holding that state notice statute “applies to

both municipal entities and employees of municipal entities acting within the

scope of their employment”); King v. Pimentel, 890 P.2d 1217, 1225 (Kan. Ct.
10

App. 1995) (explaining that §12-105b(d)’s notice requirement applies to

municipal employees acting within the scope of their employment “[b]ecause a

municipality faces significant liability” whether an action is “brought against it

[or] against its employees”). Because Phillips completely failed to provide the

state with prior notice of these claims, these claims are defective. 

Phillips argues that her sexual battery/intentional infliction of emotional

distress claim against Officer Sabrina Gettler alleges actions outside the scope of

Gettler’s employment and, therefore, this claim should not be barred by the state

notice requirements. In her complaint, Ms. Phillips alleged that Officer Gettler

searched her in an overly intrusive manner in a courthouse bathroom before

allowing her to attend court proceedings. In support of her argument that these

allegations concern activity beyond the scope of Officer Gettler’s employment,

Phillips relies heavily on Miller v. Brungardt, 916 F. Supp. 1096 (D. Kan. 1996). 

In Miller, the court refused to apply the Kansas notice statute to plaintiff’s claim

of sexual harassment/intentional infliction of emotional distress, concluding that

sexual harassment was not within the scope of the defendant’s employment and,

therefore, “the Kansas notice requirement does not attach to the plaintiff’s” sexual

harassment/intentional infliction of emotional distress claim against the

defendant. Id. at 1101. In turn, Miller relied for this idea on this court’s

statement that “sexual harassment simply is not within the job description of any
11

supervisor or any other worker in any reputable business.” Hicks v. Gates Rubber

Co., 833 F.2d 1406, 1417-18 (10th Cir. 1987) (internal quotation omitted).

Both Miller and Hicks involved employees’ claims against their employers

arising out of their supervisors’ sexually inappropriate activities. See Hicks, 833

F.2d at 1411; Miller, 916 F. Supp. at 1101. Even if it is true that an employee’s

sexual harassment of another employee will generally be deemed to be beyond the

scope of the perpetrator’s employment, the same cannot be said of overly

intrusive police searches. Phillips has not alleged an isolated, gratuitous sexual

advance or contact. Rather, her claim is that Sabrina Gettler conducted an overly

intrusive search of Phillips’s person and that, because the scope of the

search—particularly the search of Phillips’s breasts—was unjustified, the

unwanted contact with an intimate part of her body amounted to sexual

harassment and battery. Where, as here, a police officer conducts an allegedly

overly intrusive search of a litigant in a courthouse, we cannot say that the search

was outside the scope of the officer’s employment. Cf. Garner v. Wahl, Nos.

94,014; 94,015; 94,018; 94,019; 94,020, 2005 WL 3098727, at *9 (Kan. Ct. App.

Nov. 18, 2005) (unpublished) (holding that police officers were acting within the

scope of their employment “[i]n investigating and arresting [the plaintiff]”). 

Officer Gettler’s search of Phillips—although it may have crossed the lines of

reasonableness and propriety—was conducted within the scope of her

employment. 
12

Finally, Phillips argues that the Kansas notice statute is unconstitutional

because it treats the government more favorably than other tort defendants. This

court has previously approved a very similar state notice statute, concluding that

“the [state] legislature may place reasonable restrictions on” the right to sue the

state government, and “[t]he requirement that claimants give notice of their claim

is a reasonable restriction that applies equally to all persons wishing to sue the

government.” Day v. Mem’l Hosp. of Guymon, 844 F.2d 728, 732 (10th Cir.

1988). Accordingly, we hold that the district court correctly dismissed the state

tort claims for lack of compliance with § 12-105b(d). 

C. Ms. Phillips Failed to Argue on Appeal the Dismissal of her Federal

Claims

Ms. Phillips has not argued on appeal the dismissal of her § 1983 claims, so

we do not decide whether the district court erred by dismissing those claims. In

her briefs on appeal, Ms. Phillips challenged the fairness and constitutionality of

the Kansas notice statute, and argued that, even if Kansas’s notice statute is

generally appropriate, it should not apply to her state claims of sexual battery and

intentional infliction of emotional distress. She did not, however, raise and argue

any explicit challenge to the application of Kansas’s notice statute to her federal

claims under § 1983, so we do not reach that issue. See Doebele v. Sprint/United

Mgmt. Co., 342 F.3d 1117, 1140 (10th Cir. 2003) (holding that issues not raised

on appeal are deemed waived); Davoll v. Webb, 194 F.3d 1116, 1128-29 (10th
3

 Even though Ms. Phillips failed to raise a challenge on appeal to the

dismissal of her federal claims, we may still exercise appellate jurisdiction over

the district court’s dismissal of her state law claims. As we have observed, 

[t]he scope of a federal court’s jurisdictional power . . . does not

fluctuate with the fate of a federal claim at trial or on appeal, but exists

if the federal claim initially had substance sufficient to confer subject

matter jurisdiction on the court. . . . Thus, a district court has the

constitutional power to exercise supplemental jurisdiction over state

claims even after a federal claim has been dismissed, provided the

federal claim was not insubstantial from the outset. The same rule

applies on appeal. 

United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1219-20

(10th Cir. 2000) (internal quotation omitted).

4

Although the issue is not raised on appeal, and accordingly we do not

address it, for future reference we direct the attention of the district court to

Felder v. Casey, 487 U.S. 131, 140 (1988), and Rosa v. Cantrell, 705 F.2d 1208,

1221 (10th Cir. 1982).

13

Cir. 1999) (declining to reach a non-jurisdictional issue that “was not raised

below or on appeal”).3

 Accordingly, we do not decide whether the district court

appropriately dismissed Ms. Phillips’s § 1983 claims.4

III. Conclusion

For the foregoing reason, we AFFIRM the district court’s dismissal of Ms.

Phillips’s claims.