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 asserting 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 parties’ request for a decision on the briefs 

without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is 

therefore 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 3, 2020

Christopher M. Wolpert 

Clerk of Court
2 

process of law. They also asserted defendants had violated Title II of the Americans 

with Disabilities Act (ADA), 42 U.S.C. § 12132. The district court dismissed 

plaintiffs’ claims with prejudice. 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 the ADA claim to be without prejudice. 

I. 

 The district court summarized the facts underlying plaintiffs’ First Amended 

Complaint (FAC) as follows: 

In September 2013, Plaintiffs’ home was damaged by heavy rainfall 

and flooding that caused Boulder County 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 had with personnel involved 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, Plaintiff Bruzga signed a Beneficiary 

Agreement, which provided, inter alia, that “Grantee’s obligation under 

this Agreement to provide funds for housing rehabilitation funding is 

expressly made contingent on [Plaintiff Bruzga’s] continued eligibility for 

and compliance with Grantee’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 comply with various CDBG-DR program 

conditions. Specifically, the letter noted that Plaintiff Bruzga had not 

complied with the Beneficiary Agreement because he allegedly failed to: 

(1) “[r]emedy any existing Land Use Code and Building Code violations 

relating to unauthorized work at [Plaintiffs’] home”; (2) “[r]epair . . . any 

damage or unauthorized work on [Plaintiffs’] home”; and (3) submit a 

“signed Contractor Addendum and . . . project schedule that would assure 

the County that [Plaintiffs’] project was making progress toward 

completion.” At that point, the County had made payments to various 

contractors totaling $6,869.58. 
3 

Plaintiffs dispute the factual assertions in the termination letter, 

arguing that the County’s revocation of their benefits was wrongful. In the 

operative First Amended Complaint, Plaintiffs claim that the remainder of 

the CDBG-DR award, and other funding they discussed with the County, 

constitutes an entitlement which was deprived by the County without due 

process of law. Plaintiffs also seek injunctive relief under the [ADA]. 

R., Vol. II at 218-20 (citations and footnote omitted). 

 Defendants filed a motion to dismiss the FAC. They argued plaintiffs had 

failed to state a procedural due process claim because CDBG-DR Home 

Rehabilitation funds did not constitute a property right protected by the United States 

Constitution. They further argued that Bruzga lacked standing to assert his ADA 

claim and that the licensing regulations he challenged 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 rested 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 deprivation of a contractually based 

property right because they did not allege that a state-law action for breach of 

contract would be inadequate to compensate them for the alleged injury. 

 A magistrate judge assigned to the case recommended that the due-process 

claim be dismissed because plaintiffs did not have “an individual, 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 homes even if they 

are not licensed contractors. As a disabled homeowner Bruzga was incapable of 

performing such work for himself. But if he hired and supervised laborers to 

complete work that required a building permit, Boulder would require him to employ 

only licensed contractors, thus imposing a limitation on his ability to perform repair 

work that did not restrict non-disabled homeowners. 
4 

interest in federal disaster funds that are appropriated like CDBG-DR award and 

loans,” id. at 82, and because they failed to cite any case law that supported the 

asserted contractually based property right. He also determined that plaintiff Bruzga 

lacked standing to assert his ADA claim and had failed to state a claim for an ADA 

violation. 

 In their objections to the magistrate judge’s recommendation, plaintiffs 

clarified that their claim was based on either an express or implied contract with 

Boulder County. They contended the existence of a state-law contractual remedy did 

not preclude them from pursuing a separate, contractually based due-process claim 

based on Boulder County’s arbitrary breach of the contract. 

Plaintiffs later filed a motion to withdraw or dismiss the ADA claim. They 

stated that a Boulder County building official had assured them they could undertake 

certain repair efforts at their house without employing licensed contractors. In view 

of this representation, they asked the district court to dismiss the ADA claim without 

prejudice. 

The district court adopted the magistrate judge’s report and recommendation. 

But it declined to address whether plaintiffs had a contractually based protected 

property interest. It reasoned instead that assuming plaintiffs had such an interest, 

they failed to show that a post-deprivation, state-law action for breach of contract 

would not provide them with adequate process. Such a state-court action, the district 

court reasoned, would fully protect the 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 dismissal 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 (10th 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 quotation marks omitted). 

III. 

To state a procedural due process claim under § 1983, a plaintiff must allege 

both that he had “a protected interest such that the due process protections were 

applicable” and that he was not “afforded an appropriate level of process.” 

Merrifield v. Bd. of Cty. Comm’rs, 654 F.3d 1073, 1078 (10th Cir. 2011) (internal 

quotation marks omitted). In their opening appeal brief plaintiffs address only the 

first element: whether they had a protected property interest.2

 They do not challenge 

the district court’s finding that they failed to satisfy the second element of their 

claim: that they were not deprived of an appropriate level of process because they 

 2

 Although plaintiffs make passing references 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-court breach of contract action 

would provide them with adequate process. 
6 

could pursue a state-law breach-of-contract action. Failure to challenge this finding 

justifies affirmance of the district 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. City & 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, plaintiffs 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 their procedural due process claim even if 

state-court remedies are available. Ordinarily, arguments not raised until a reply 

brief are waived. See Starkey, 569 F.3d at 1259. But Knick was decided after 

plaintiffs filed their opening brief. Assuming this timing provides grounds to 

consider the argument notwithstanding their silence concerning the state-law 

breach-of-contract issue in their opening brief, plaintiffs fail to show that Knick

requires reversal. 

In Knick the Supreme Court addressed whether a plaintiff who brings a claim 

under the Takings Clause of the Fifth Amendment must first seek just compensation 

under state law—potentially depriving him of his federal claim through the 

application of claim preclusion—before bringing 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 rights 
7 

when the government takes his property without just compensation, and therefore 

may bring his claim in federal court under § 1983 at that time.” Id. at 2168. The 

Court reasoned that “[t]he Fifth Amendment right to full compensation arises at the 

time of the taking, regardless of [state] post-taking remedies that may be available to 

the property owner.” Id. at 2170. 

Plaintiffs fail to show 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 taking . . . by which the landowner has already 

suffered a constitutional violation” irrespective of the availability of a subsequent 

compensation remedy, id. at 2172 (internal quotation marks omitted), whereas a 

procedural due process violation does not occur 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 Knick has undermined the 

rule that a state breach-of-contract action may provide all the process that is due to 

redress a contractually based deprivation. 

IV. 

Plaintiffs also argue the district court should have granted them leave to amend 

their complaint to present a claim that defendants retaliated against them for the 

exercise of their First Amendment rights. To establish that they requested this relief 

in district court, they cite their objection to the magistrate judge’s recommendation. 

See R., Vol. II at 113 (stating that if the court were inclined to grant the motion to 
8 

dismiss, plaintiffs requested the right to amend the FAC, “in order to advance other 

grounds for this civil rights matter. Those grounds would include violation of 

Plaintiffs’ First Amendment 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 insufficient 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 for 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] complaint 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 apparent from the allegations of their 

complaint, other than their proposed First 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 retaliation claim would have changed the essential nature 

of their complaint. Second, our de novo review 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 for 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 amended complaint, at least one containing the 

same claims, would be subject to dismissal for the reasons it had stated. We also 

note that although plaintiffs are proceeding pro se, Bruzga is a licensed attorney. 
9 

V. 

Finally, plaintiffs complain that the district court ruled on their ADA claim 

without jurisdiction, because the claim had become moot by the time the district 

court made what they characterize as an “advisory” ruling. Aplt. Opening Br. at 23. 

Plaintiffs do not object to dismissal of their 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 recommendation rather than by declining to 

rule on mootness grounds. But the district court could choose between jurisdictional 

defects (standing vs. mootness) as a basis for dismissal, without thereby issuing an 

impermissible, advisory decision. See Citizen Ctr. v. Gessler, 770 F.3d 900, 906 

(10th Cir. 2014) (addressing mootness before standing, explaining that “[b]ecause 

there is no mandatory sequencing of nonmerits 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 dismissal was for lack of standing it should have been 

without prejudice. We therefore 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 dismissal 
10 

with prejudice to a dismissal without prejudice. We grant plaintiffs’ motion to 

amend (supplement) the record on appeal with district court CM/ECF documents 

14-1 and 34-1. The clerk of court is directed 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 view of plaintiffs’ pro se status this 

court previously determined it would take responsibility for assembling the record on 

appeal rather than relying on an appendix.