UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ MICHAEL W. BRUZGA; CAROLE A. ZOLNICK, Plaintiffs - Appellants,

v. COUNTY OF BOULDER, acting by and through the Board of County Commissioners; DEB GARDNER, in her official capacity as a Boulder County Commissioner; CINDY DOMENICO, in her official capacity as a Boulder County Commissioner; ELISE JONES, in her official capacity as a Boulder County Commissioner, Defendants - Appellees. No. 19-1133 (D.C. No. 1:18-CV -00594-CMA-MEH) (D. Colo.)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before LUCERO , O’BRIEN , and CARSON , Circuit Judges.

_________________________________ Plaintiffs brought this action under 42 U.S.C. § 1983 assert ing that defendants had deprived them of their interest in housing rehabilitation funds without due

* After examining the briefs and appellate record, this panel has determined unanimously to honor the partie s’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Ci r. R. 34.1(G). The case is therefore submitted without or al 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### January 3, 2020 Christopher M. Wolpert Clerk of Court2 process of law. They also asserted defe ndants had violated Titl e II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132. The distri ct court dismissed plaintiffs’ claims with prejudi ce. It denied their motion to withdraw or dismiss the ADA claim, finding that motion to be moot. Plaintiffs appeal. We affirm, but remand to modify the dismissal of th e ADA claim to be without prejudice.
I. The district court summarized the fa cts underlying plain tiffs’ First Amended Complaint (FAC) as follows: In September 2013, Plaintiffs’ home was damaged by heavy rainfall and flooding that caused Boulder C ounty to be designated a local and federal disaster area. On December 4, 2014, Plaintiffs were awarded $32,812 in Community Development Block Grant-Disaster Recovery (CDBG-DR) funds for the purpose of repairing the flood-related damage. Based on conversations Plaintiffs ha d with personnel in volved with the CDBG-DR program, Plaintiffs believed that the remainder of the $100,000 maximum per residence had been reserved for them as well. On February 3, 2015, Plainti ff Bruzga signed a Beneficiary Agreement, which provided, inter alia , that “Grantee’s obligation under this Agreement to prov ide funds for housing re habilitation funding is expressly made contingent on [Plaintiff Bruzga’s] continued eligibility for and compliance with Grante e’s CDBG-DR program.” However, by letter dated March 11 , 2016, the Board of County Commissioners informed Plaintiff Bruzga that the CDBG-DR award had been canceled. The letter indicated that the reason for cancelation was Plaintiff Bruzga’s failure to comp ly with various CDBG-DR program conditions. Specifically, the letter not ed that Plaintiff Bruzga had not complied with the Beneficiary Agreement because he allegedly failed to: (1) “[r]emedy any existing Land Use Co de and Building Code violations relating to unauthorized work at [Plain tiffs’] home”; (2) “[ r]epair . . . any damage or unauthorized work on [P laintiffs’] home”; and (3) submit a “signed Contractor Addendum and . . . project schedule that would assure the County that [Pla intiffs’] project was making progress toward completion.” At that point, the County had made payments to various contractors totali ng $6,869.58.3 Plaintiffs dispute the factual assertions in the termination letter, arguing that the County’s revocation of th eir benefits was wrongful. In the operative First Amended Complaint, Plai ntiffs claim that the remainder of the CDBG-DR award, and other fundin g they discussed with the County, constitutes an entitlement which was de prived by the Co unty without due process of law. Plaintiffs also s eek injunctive relief under the [ADA]. R., Vol. II at 218-20 (citati ons and footnote omitted). Defendants filed a motion to dismiss th e FAC. They argued plaintiffs had failed to state a procedural due process claim because CDBG-DR Home Rehabilitation funds did not constitute a prop erty right protected by the United States Constitution. They further argued that Br uzga lacked standing to assert his ADA claim and that the licensi ng regulations he challenge d did not violate the ADA. 1 In response plaintiffs argued that their claim was not based solely on a statutory right to CDBG-DR funds but rest ed on a contractually based property right created by the Beneficiary Agreement and related documents. Defendants replied that plaintiffs had failed to state a claim for depriva tion of a contractually based property right because they did not allege that a state-law action for breach of contract would be inadequate to comp ensate them for th e alleged injury. A magistrate judge assigned to th e case recommended that the due-process claim be dismissed because plaintiffs did not have “an individua l, vested property

1 Bruzga’s ADA claim alleged that under Boulder’s land-use rules and practices, homeowners may ordinarily perform work on their own ho mes even if they are not licensed contractors. As a disa bled homeowner Bruzga was incapable of performing such work for himself. But if he hired and supe rvised laborers to complete work that required a building perm it, Boulder would require him to employ only licensed contractors, t hus imposing a limitation on his ability to perform repair work that did not restrict non-disabled homeowners.4 interest in federal disast er funds that are appropria ted like CDBG-DR award and loans,” id. at 82, and because they failed to cite any case law th at supported the asserted contractually based pr operty right. He also determ ined that plaintiff Bruzga lacked standing to assert his ADA claim a nd had failed to state a claim for an ADA violation. In their objections to the magistra te judge’s recommenda tion, plaintiffs clarified that their claim was based on eith er an express or implied contract with Boulder County. They contended the existe nce of a state-law c ontractual remedy did not preclude them from pursuing a separate , contractually base d due-process claim based on Boulder County’s arbitr ary breach of the contract. Plaintiffs later filed a mo tion to withdraw or dism iss the ADA claim. They stated that a Boulder County building official had assure d them they could undertake certain repair efforts at th eir house without employing licen sed contractors. In view of this representation, they asked the dist rict court to dismiss the ADA claim without prejudice. The district court adopted the magistra te judge’s report and recommendation. But it declined to address whether plaint iffs had a contractua lly based protected property interest. It reasoned instead that assuming plaintiffs had such an interest, they failed to show that a post-deprivati on, state-law action fo r breach of contract would not provide them with ad equate process. Such a stat e-court action, the district court reasoned, would fully protect th e plaintiffs’ alleged interest.5 The district court also adopted the magistrate judge’s recommendations concerning the ADA claim, noting plaintiffs ’ lack of objection to it. It then dismissed all of plaintiffs’ claims with prejudice, noting that an amended complaint would also be subject to dismissa l for the reasons it had stated.
II. We review de novo the district court’s order dismissing a complaint for failure to state a claim. See Sylvia v. Wisler , 875 F.3d 1307, 1313 (10t h Cir. 2017). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 ( 2009) (internal quota tion marks omitted).
III. To state a procedural due process clai m under § 1983, a plaintiff must allege both that he had “a protected interest such that the due process protections were applicable” and that he wa s not “afforded an appropria te level of process.” Merrifield v. Bd. of Cty. Comm’rs , 654 F.3d 1073, 1078 (10t h Cir. 2011) (internal quotation marks omitted). In their opening appeal brief plaintiffs address only the first element: whether they ha d a protected property interest. 2 They do not challenge the district court’s finding th at they failed to satisfy the second element of their claim: that they were not deprived of an appropriate le vel of process because they

2 Although plaintiffs make passing re ferences to Boulder County’s failure to provide them with a hearing, see Aplt. Opening Br. at 8, 14, 15, 17, they do not challenge the district court’ s conclusion that a state-cour t breach of contract action would provide them with adequate process.6 could pursue a state-law breach-of-contract act ion. Failure to challenge this finding justifies affirmance of the di strict court’s dismissal. See Starkey ex rel. A.B. v. Boulder Cty. Soc. Servs. , 569 F.3d 1244, 1252 (10th Cir. 2009) (“When an appellant does not challenge a district court’s alternate ground for its ruling, we may affirm the ruling.”); see also Nixon v. C ity & Cty. of Denver , 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first task of an appellant is to explain to us why the district court’s decision was wrong.”). In their reply brief, plai ntiffs present an argument that potentially implicates the second due-process factor . They argue that under Knick v. Township of Scott , 139 S. Ct. 2162 (2019), they may pursue thei r procedural due process claim even if state-court remedies are available. Ordi narily, arguments not raised until a reply brief are waived. See Starkey , 569 F.3d at 1259. But Knick was decided after plaintiffs filed their openi ng brief. Assuming this timing provides grounds to consider the argument notwithstanding their silence concer ning the state-law breach-of-contract issue in their opening brief, plaint iffs fail to show that Knick requires reversal.
In Knick the Supreme Court addressed whethe r a plaintiff who brings a claim under the Takings Clause of the Fifth Amendment must fi rst seek just compensation under state law—potentially depriving hi m of his federal claim through the application of claim preclusion—before bri nging his federal takings claim in federal

court. See Knick , 139 S. Ct. at 2167. Overruling prior authority, the Supreme Court held “the property owner has suffered a violation of his Fifth Amendment rights7 when the government takes his property w ithout just compensa tion, and therefore may bring his claim in federal cour t under § 1983 at that time.” Id. at 2168. The Court reasoned that “[t]he Fi fth Amendment right to full compensation arises at the time of the taking, regardless of [state] pos t-taking remedies that may be available to the property owner.” Id. at 2170. Plaintiffs fail to s how the reasoning in Knick affects their procedural due process claim. The right discussed in Knick is “the irrevocable right to just compensation immediately upon a taki ng . . . by which the landowner has already suffered a constitutional violation” irrespectiv e of the availability of a subsequent compensation remedy, id. at 2172 (internal quotation marks omitted), whereas a procedural due process violation does not o ccur until or unless the plaintiff has been deprived of adequate process—that is, of “such procedural protections as the particular situation demands,” M.A.K. Inv. Grp., LLC v. City of Glendale , 897 F.3d 1303, 1309 (10th Cir. 2018). Plaintiffs fail to show that Knickhas undermined the rule that a state breach-of-contract action ma y provide all the process that is due to redress a contractually based deprivation.
IV. Plaintiffs also argue the di strict court should have gr anted them leave to amend their complaint to present a claim that defendants reta liated against them for the exercise of their First Amendm ent rights. To establish that they requested this relief in district court, they cite their objection to the magistra te judge’s recommendation.
See R., Vol. II at 113 (stating that if the c ourt were inclined to grant the motion to8 dismiss, plaintiffs requested the right to amend the FAC, “in order to advance other grounds for this civil right s matter. Those grounds w ould include violation of Plaintiffs’ First Am endment rights.”). 3 But they fail to show they followed up with a motion seeking leave to amend the FAC. 4 The mere suggestion that plaintiffs would request leave to amend their complaint was insuff icient to invoke the district court’s authority to permit an amendment. See, e.g. , Garman v. Campbell Cty. Sch. Dist.
No. 1 , 630 F.3d 977, 986 (10th Cir. 2010).

3 Plaintiffs also argue generally that the district court “did not address alternative claims fo r relief that are plausible under the Amended Complaint.” Aplt. Opening Br. at 22. They cite Barrett v. Tallon , 30 F.3d 1296 (10th Cir. 1994), presumably relying on our statement in that case that “[a] co mplaint should not be dismissed under Rule 12(b)(6 ) merely because plaintiff’ s allegations do not support the legal theory he intends to proceed on, and certainly not when other theories are apparent on the face of the complaint.” Id. at 1299 (citation and internal quotation marks omitted). Assuming Barrett remains good law under the current standard for evaluating a complaint, see Bell Atl. Corp. v. Twombly , 550 U.S. 544, 562-63 (2007) (overruling Conley v. Gibson , 355 U.S. 41, 45-46 (1957)), plaintiffs do not specify a potential claim that should have been a pparent from the allegations of their complaint, other than their proposed Firs t Amendment retaliation claim. But that prospective claim did not prevent dismissal under Barrett , for several reasons. First, unlike the potential “garden variety” fraud and conversion claims that could have supplanted the deficiently pleaded RICO claim in Barrett , 30 F.3d at 1299, plaintiffs’ proposed First Amendment reta liation claim would have ch anged the essential nature of their complaint. Second, our de novo re view persuades us that no such claim is facially evident in the FAC. Finally, plaintiffs ’ statement they would seek leave to amend to state such a claim is further evidence that the operative FAC did not already contain such a claim.

4 A district court should not dismiss fo r failure to state a claim in pro se cases unless it is obvious the plaintiff cannot prevail on the alleged facts and amendment would be futile. See Kay v. Bemis , 500 F.3d 1214, 1217 (10th Cir. 2007). The district court determined that an ame nded complaint, at le ast one containing the same claims, would be subject to dismissa l for the reasons it ha d stated. We also note that although plaintiffs are proceedin g pro se, Bruzga is a licensed attorney.9 V. Finally, plaintiffs compla in that the district c ourt ruled on their ADA claim without jurisdiction, because the claim had become moot by the time the district court made what they character ize as an “advisory” ruling. Aplt. Opening Br. at 23. Plaintiffs do not object to dismissal of th eir ADA claim—in fact, they requested it. Their only controversy appears to be with the fact that the district court dismissed the claim by adopting the magistrate judge’s r ecommendation rather than by declining to rule on mootness grounds. But the district court could choose between jurisdictional defects (standing vs. m ootness) as a basis for dismissa l, without thereby issuing an impermissible, advisory decision. See Citizen Ctr. v. Gessler , 770 F.3d 900, 906 (10th Cir. 2014) (add ressing mootness before standi ng, explaining that “[b]ecause there is no mandatory sequencing of nonmer its issues, we have leeway to choose among threshold grounds for denying audience to a case on the merits” (brackets and internal quotation marks omitted)). We discern no error in the dismissal based on lack of standing. That said, because the dism issal was for lack of standing it should have been without prejudice. We theref ore must remand the matter to the district court to modify its judgment accordingly. See Coll v. First Am. Title Ins. Co. , 642 F.3d 876, 892 (10th Cir. 2011).
VI. We affirm the district court’s judgment dismissing plaintiffs’ complaint but remand with instructions to modify its dismissal of the ADA claim from a dismissal10 with prejudice to a dismissal without prej udice. We grant pl aintiffs’ motion to amend (supplement) the reco rd on appeal with district court CM/ECF documents 14-1 and 34-1. The clerk of court is di rected to prepare a supplemental record containing these documents. 5

Entered for the Court

Joel M. Carson III Circuit Judge

5 Although Bruzga is an attorney, in vi ew of plaintiffs’ pro se status this court previously determined it would take responsibility for as sembling the record on appeal rather than relying on an appendix.