UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JIYING WEI, 

 Plaintiff - Appellant, 

v. 

UNIVERSITY OF WYOMING 

COLLEGE OF HEALTH SCHOOL 

PHARMACY; JANELLE KRUEGER, 

University of Wyoming Clinical Professor; 

TONJA WOODS, University of Wyoming 

Associate Dean of Students; LINDA 

MARTIN, University of Wyoming former 

Dean of School of Pharmacy, individually 

and in their official capacity, 

 Defendants - Appellees. 

No. 18-8011 

(D.C. No. 2:17-CV-00150-NDF) 

(D. Wyo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before McHUGH, MORITZ, and EID, Circuit Judges. 

_________________________________ 

Jiying Wei appeals the district court’s judgment dismissing her complaint with 

prejudice based on claim preclusion and the statute of limitations, and its order 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 7, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

denying her post-judgment motion. Exercising jurisdiction under 28 U.S.C. § 1291, 

we affirm.

BACKGROUND

Wei was a doctoral candidate in the School of Pharmacy (School) at the 

University of Wyoming (University). In early July 2015, after she had been 

dismissed from the pharmacy program, Wei filed a pro se complaint and, soon 

thereafter, an amended pro se complaint (together, the 2015 Complaint). She alleged 

that in 2012, she experienced a bout of depression after being wrongly accused of 

plagiarism during a clinical rotation in South Dakota by a person at the rotation who 

disliked her, and she attempted suicide in an effort to prove her innocence. She also 

claimed that she failed to receive a passing grade in the rotation due to lack of 

professionalism, that she had lost her intern license and was unable to work, and that 

actions taken by the School constituted a “civil rights violation under disability due 

to depression.” Aplt. App. at 12. She alleged that she was dismissed from the 

School on July 29, 2013, and from the University on February 16, 2014. Id. at 13. 

She asked the court to allow her to graduate from the program, to sit for a board 

exam, and for damages for the wrongful plagiarism accusation, the delay in 

graduation, and her suffering. 

The School filed a motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6). The district court granted the motion and dismissed the 2015 Complaint 

with prejudice because the court was unable to draw a reasonable inference from the 

facts alleged that the School was liable for the alleged misconduct. Wei did not 
3 

appeal that judgment or the denial of her post-judgment motion asking the court to 

change the dismissal to one without prejudice. 

On September 9, 2017, Wei filed a pro se complaint against the School, the 

University,1

 and three of its employees, asserting a due process claim under 

42 U.S.C. § 1983 and claims of disability discrimination under the Americans with 

Disabilities Act (ADA) and the Rehabilitation Act. She alleged that during her South 

Dakota rotation in August 2012, she experienced a suicidal crisis and was diagnosed 

with depression. The School placed her on a medical leave of absence and 

conditioned her return on completion of counseling in Cheyenne, Wyoming. In 

October 2012, after two months of counseling, she returned to the program and was 

provided with new rotation assignments in South Dakota and Casper, Wyoming, for 

four months. She alleged that the School ignored her request for an assignment 

closer to her counselor and, while on rotation in South Dakota, she experienced 

depression with withdrawal, crying, and communication issues. She claimed that 

because of her communication issues, she did not receive a passing grade due to lack 

of professionalism. She appealed the grade to both the School and the University and 

asked for permission to repeat the rotation at a different site, but both appeals were 

denied. For relief in this action, Wei sought reinstatement to and graduation from the 

program, the ability to sit for the board exam, and damages. 

 1

 Although the parties debate whether Wei named the School, the University, 

or both, and whether only the University is the proper institutional defendant, our 

disposition does not require us to resolve the issue. 
4 

Because Wei sought to proceed in forma pauperis, the district court screened 

her complaint pursuant to 28 U.S.C. § 1915A. The court dismissed some claims but 

concluded that she had alleged sufficient facts regarding the decision to place her on 

medical leave in August 2012 to state a due process claim under § 1983. The court 

also determined she had adequately stated failure-to-accommodate claims under the 

ADA and the Rehabilitation Act concerning the decision to place her on medical 

leave and the disregard of her request to be assigned to a rotation closer to her 

counselor in October 2012. 

Defendants filed a Rule 12(b)(6) motion to dismiss based in relevant part on 

res judicata, also known as claim preclusion, and the statute of limitations. By then 

Wei had obtained counsel, who filed a response that was two pages long and 

contained two arguments that read, in full: 

(1) “Res Judicata is more properly raised [as] a defense in an Answer pursuant 

to [Fed. R. Civ. P.] 8 than in a Rule 12(b)(6) Motion to Dismiss for failure to state a 

cause of action.” Aplt. App. at 108. 

(2) “The court has found that the complaint states a cause of action and has 

ordered the defendant to answer the complaint. At this time the defendant may raise 

the issue of Res Judicata and provide evidence of such.” Id. at 108–09. 

Defendants responded that under Miller v. Shell Oil Co., 345 F.2d 891, 893 

(10th Cir. 1965), they could raise claim preclusion and statute of limitations in a 

Rule 12(b)(6) motion. Aplt. App. at 111. 
5 

The district court granted the motion to dismiss. The court concluded that the 

elements of claim preclusion were met and therefore dismissed with prejudice the 

claims against the School and the individual defendants in their official capacities. It 

also concluded that Wei’s due process claim accrued in August 2012, when the 

School placed her on a medical leave of absence, more than five years before she 

filed her complaint in this action in September 2017 and thus beyond the four-year 

limitations period. The court further determined that her ADA/Rehabilitation Act 

claims accrued no later than August 25, 2013, when she was terminated from the 

pharmacy program after receiving the failing rotation grade. The court derived that 

date by taking judicial notice of a copy of a termination letter filed in Wei’s previous 

action bearing that date. Those claims, the court concluded, were therefore also 

outside the four-year statute of limitations as to all defendants, including the 

individual defendants in their individual capacities. 

Wei filed a motion under Federal Rules of Civil Procedure 59 and 60, arguing 

that because the affirmative defenses were not set out in an answer, she was deprived 

of an opportunity to argue that the previous dismissal with prejudice “was mistakenly 

entered because the dismissal was not based upon the merits, but upon the pro 

se complaint of the plaintiff without being granted leave to amend.” Id. at 128. She 

also argued that the district court was wrong to apply the statute of limitations 

because she alleged in the prior action that her cause of action accrued on 

February 16, 2014, when the University denied her appeal of the grade that led to her 
6 

termination from the program, and thus her complaint in this action was filed within 

the four-year limitations period. 

The district court denied the motion. It concluded that defendants properly 

raised the two affirmative defenses in a Rule 12(b)(6) motion. The district court also 

noted that it could take judicial notice of its own files (i.e., Wei’s prior case) when 

considering a Rule 12(b)(6) motion. The court further concluded that any new 

arguments in the Rule 59/60 motion did not justify relief because such a motion is 

not the proper vehicle to advance new arguments that were available at the time of 

the original motion. 

Wei filed a notice of appeal from the judgment and an amended notice of 

appeal from the denial of the Rule 59/60 motion. 

DISCUSSION

We review a district court’s disposition of a Rule 12(b)(6) motion de novo. 

Warnick v. Cooley, 895 F.3d 746, 750 (10th Cir. 2018). And our review of a district 

court’s denial of motions under Rule 59 and 60 is for abuse of discretion. Walters v. 

Wal-Mart Stores, Inc., 703 F.3d 1167, 1172 (10th Cir. 2013). 

On appeal, Wei contends that (1) claim preclusion does not apply because she 

did not have a full and fair opportunity to litigate the prior matter, and (2) there is 

insufficient evidence regarding accrual of the claims to dismiss based on the statute 

of limitations. Neither of these arguments is preserved for appellate review because 

Wei did not raise them in her response to defendants’ Rule 12(b)(6) motion. 

Accordingly, these arguments are waived on appeal. See Impact Energy Res., LLC v. 
7 

Salazar, 693 F.3d 1239, 1246 n.3 (10th Cir. 2012) (explaining that failure to raise 

issue at appropriate time in the district court waives appellate review). To the extent 

she raised these arguments in her Rule 59/60 motion, we conclude that the district 

court did not abuse its discretion in declining to consider them because motions 

under Rule 59 and Rule 60 are inappropriate for advancing new arguments or 

supporting facts that could have been raised in prior briefing. See Servants of the 

Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). 

Wei has preserved for appellate review portions of one threshold procedural 

argument—that it was improper for defendants to raise the affirmative defenses of 

claim preclusion and the statute of limitations in a Rule 12(b)(6) motion without 

having first raised them in an answer. We disagree. In Miller v. Shell Oil Co., we 

held that “a defendant may raise an affirmative defense by a motion to dismiss for the 

failure to state a claim.” 345 F.2d 891, 893 (10th Cir. 1965). More specifically, we 

have explained that it is appropriate to resolve a statute of limitations defense on a 

Rule 12(b)(6) motion “when the dates given in the complaint make clear that the 

right sued upon has been extinguished.” Sierra Club v. Okla. Gas & Elec. Co., 

816 F.3d 666, 671 (10th Cir. 2016) (internal quotation marks omitted). Although 

here the district court gleaned the date it found relevant for the limitations calculation 

by taking judicial notice of a filing in Wei’s first case, it was entitled to do so. See 

Warnick, 895 F.3d at 754 n.6 (observing that in reviewing a Rule 12(b)(6) motion, a 
8 

court can consider “matters of which a court may take judicial notice”).2

 And in 

Tri-State Truck Ins., Ltd. v. First National Bank of Wamego, 564 F. App’x 345 

(10th Cir. 2014), we reasoned that “‘when all relevant facts are shown by the court’s 

own records, of which the court takes notice,’” the affirmative defense of claim 

preclusion “‘may be upheld on a Rule 12(b)(6) motion without requiring an answer.’” 

Id. at 347 (quoting Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992)).3

The two Supreme Court cases Wei relies on are not to the contrary because 

they do not state that affirmative defenses must be raised in an answer or cannot be 

raised in a Rule 12(b)(6) motion, but only that claim preclusion is an affirmative 

defense “that must be pleaded,” Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 

402 U.S. 313, 350 (1971), and “[o]rdinarily, it is incumbent on the defendant to plead 

and prove such a defense,” Taylor v. Sturgell, 553 U.S. 880, 907 (2008). And the 

four cases from other circuits she cites are either not on point or are contrary to Tenth 

Circuit precedent.4

 In sum, we see no error in the district court’s conclusion that 

 2

 In her reply brief, Wei argues for the first time that this was improper, but we 

do not ordinarily consider arguments not properly presented to the district court, 

Impact Energy Res., LLC, 693 F.3d at 1246 n.3, or those raised for the first time on 

appeal in a reply brief, Sierra Club, 816 F.3d at 676 n.9. We decline to do so here. 

3

 We cite to this unpublished case for its persuasive value consistent with 

10th Cir. R. 32.1. 

 

4

 Those cases are: O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 

2015) (“[A]lthough a plaintiff need not anticipate or overcome affirmative defenses 

such as those based on the statute of limitations, if a plaintiff alleges facts sufficient 

to establish a statute of limitations defense, the district court may dismiss the 

complaint on that ground”); Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1023 

(continued) 
9 

defendants could properly raise their affirmative defenses in the first instance in a 

Rule 12(b)(6) motion. 

CONCLUSION

 The district court’s judgment and its order denying Wei’s post-judgment 

motion are affirmed. 

Entered for the Court 

Allison H. Eid 

Circuit Judge 

 

(9th Cir. 2010) (“Although Rule 8 requires affirmative defenses to be included in 

responsive pleadings, absent prejudice to the plaintiff, the district court has discretion 

to allow a defendant to plead an affirmative defense in a subsequent motion.”); 

United States v. N. Trust Co., 372 F.3d 886, 888 (7th Cir. 2004) (“Dismissal under 

Rule 12(b)(6) was irregular, for the statute of limitations is an affirmative defense. A 

complaint states a claim on which relief may be granted whether or not some defense 

is potentially available.” (citation omitted)); and Xechem, Inc. v. Bristol-Myers 

Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004) (“Orders under Rule 12(b)(6) are not 

appropriate responses to the invocation of defenses, for plaintiffs need not anticipate 

and attempt to plead around all potential defenses. Complaints need not contain any

information about defenses and may not be dismissed for that omission.”).