*

This order and judgment is not binding precedent except under the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 31, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAUL KEITH REYES,

Plaintiff - Appellant, No. 10-2152

v. (D. New Mexico)

CENTRAL NEW MEXICO

COMMUNITY COLLEGE; LT. KEAR;

B. RODGERS; A. JARAMILLO; F.

GALLEGOS; M. PERKINS; LEE

CARRILLO; K. TROUNGE,

Defendants - Appellees.

(D.C. No. 1:10-CV-00543-BB-RLP)

ORDER AND JUDGMENT*

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

After examining Appellant’s brief and the appellate record, this court has

determined unanimously that oral argument would not materially assist the

adjudication 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.
1

Reyes’s challenge was confined to the fact of the detention. He made no

claim that the detention lasted longer than reasonably necessary to undertake the

investigation or that the scope exceeded the underlying purpose. See United

States v. Winder, 557 F.3d 1129, 1134 (10th Cir. 2009) (“Generally, an

(continued...)

-2-

Proceeding pro se, Appellant Paul Keith Reyes appeals the district court’s

dismissal of the claims raised in a 42 U.S.C. § 1983 complaint he filed on June 3,

2010. The claims arose from an incident at Central New Mexico Community

College (“CNMCC”). Reyes went to the CNMCC campus to investigate the

circumstances underlying his disenrollment. While on campus, Reyes got into an

argument with an employee in the financial aid office. He alleges defendants

Kear, Rodgers, Jaramillo, Gallegos, Perkins, and Trounge violated his Fourth

Amendment rights when they temporarily detained him on campus and questioned

him about the argument. Reyes’s complaint also contained a breach-of-contract

claim against CNMCC relating to its decision to disenroll him. 

The district court concluded the claims against defendants Kear, Rodgers,

Jaramillo, Gallegos, Perkins, and Trounge should be dismissed with prejudice

because Reyes failed to state sufficient facts from which it could be concluded

these defendants violated his constitutional rights. By Reyes’s own admission,

the argument in the financial aid office became contentious and nearly escalated

to a physical altercation. The district court concluded that, under the conceded

circumstances, the temporary investigative detention was reasonable and Reyes

could not show a deprivation of his Fourth Amendment rights.1

 In addition to
1

(...continued)

investigative detention must last no longer than is necessary to effectuate the

purpose of the stop.”).

-3-

concluding Reyes failed to state a claim for violation of his federal constitutional

rights, the district court also concluded Reyes stated no facts establishing federal

question or diversity jurisdiction over the breach-of-contract claim asserted

against CNMCC. Accordingly, the court refused to exercise supplemental

jurisdiction over that claim and dismissed it without prejudice. 28 U.S.C. §

1367(c)(3); Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995) (concluding it is

common practice for a district court to dismiss state law claims that are “no

longer supplemental to any federal question claim”). 

On appeal, Reyes challenges both the dismissal of his constitutional claim

and his breach-of-contract claim. This court conducts a de novo review of the

dismissal of Reyes’s Fourth Amendment claim. See Perkins v. Kan. Dep’t of

Corr., 165 F.3d 803, 806 (10th Cir. 1999). The sua sponte dismissal of a pro se

complaint pursuant to § 1915(e)(2)(b)(ii) for failure to state a claim “is

appropriate only where it is patently obvious that the plaintiff could not prevail

on the facts alleged, and allowing him an opportunity to amend his complaint

would be futile.” Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997)

(quotation omitted). Even construing Reyes’s complaint liberally and accepting

the allegations therein as true, Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir.

2002), it is clear from the record before this court that Reyes cannot prevail on
-4-

the facts alleged in his complaint and permitting him an opportunity to amend the

complaint would be futile. The district court, thus, did not err by dismissing

Reyes’s Fourth Amendment claim with prejudice.

The district court’s decision not to exercise supplemental jurisdiction over

Reyes’s contract claim is reviewed for abuse of discretion. Nielander v. Bd of

County Comm’rs, 582 F.3d 1155, 1172 (10th Cir. 2009). The applicable statute

clearly permits district courts to “decline to exercise supplemental jurisdiction”

over state law claims if the court “has dismissed all claims over which it has

original jurisdiction.” 28 U.S.C. 1367(c). We have concluded the district court

properly dismissed Reyes’s Fourth Amendment claim. Although Reyes argues the

district court had original jurisdiction over his contract claim, we agree with the

district court that he has failed to allege any facts to support that assertion. 

Accordingly, we conclude the district court did not abuse its discretion when it

declined to exercise supplemental jurisdiction over Reyes’s contract claim. 

Having considered Reyes’s arguments, this court concludes his appeal is

“without merit in that it lacks an arguable basis in either law or fact.” Thompson

v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002). We, thus, dismiss the appeal as

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We deny Reyes’s motion to

proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and remind him of
-5-

 his responsibility for the immediate payment of any unpaid balance of the

appellate filing fee. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge