UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DAVID BRYAN BALLARD, 

 Plaintiff - Appellant, 

v. 

KEN ANDERSON; JOHN BRADLEY; 

BILL HINES, 

 Defendants - Appellees. 

No. 21-4017 

(D.C. No. 2:19-CV-00306-DAK) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MORITZ, BALDOCK, and EID, Circuit Judges.**

_________________________________ 

In 2002, plaintiff-appellant David Bryan Ballard was convicted after a jury 

trial held in Texas state court and sentenced to twelve years of imprisonment.1

 

Defendant-appellee Ken Anderson served as the judge who presided over Ballard’s 

trial; defendant-appellee John Bradley served as the prosecutor; and defendantappellee Bill Hines served as Ballard’s court-appointed defense attorney. On May 3, 

* This order and judgment is not binding precedent, except under the doctrines 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. 

** 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. 

1

 The facts recounted in this decision are derived from Ballard’s complaint. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 25, 2021

Christopher M. Wolpert 

Clerk of Court
2 

2019, Ballard initiated this pro se suit against Anderson, Bradley, and Hines in the 

U.S. District Court for the District of Utah, alleging that Anderson and Bradley 

“‘abused’ their ‘capacity’ and ‘office,’ while . . . Hines essentially provided 

ineffective assistance of counsel.” R. at 63 (district court memorandum decision & 

dismissal order) (quoting R. at 7 (complaint)). 

Ballard—for reasons that are not disclosed by the record—was incarcerated 

when he filed his complaint, so the district court screened it pursuant to 28 U.S.C. 

§ 1915A.2

 After reviewing the complaint, the district court dismissed the case on the 

alternative grounds that (1) venue was improper in the District of Utah because “[a] 

careful review of the Complaint reveals no reference whatsoever to Utah, let alone 

any allegation that Utah is home to any party, events, omissions or property possibly 

involved in this case,” R. at 64; (2) Anderson was entitled to judicial immunity; (3) 

Bradley was entitled to prosecutorial immunity; (4) Hines did not act under color of 

state law when he functioned as Ballard’s counsel; and (5) Ballard’s suit was 

foreclosed by Heck v. Humphrey, 512 U.S. 477 (1994), because Heck “prevents 

litigants ‘from using a § 1983 action, with its more lenient pleading rules, to 

challenge their conviction or sentence without complying with the more stringent 

2

 28 U.S.C. § 1915A directs a district court to “review, before docketing, if 

feasible or, in any event, as soon as practicable after docketing, a complaint in a civil 

action in which a prisoner seeks redress from a governmental entity or officer or 

employee of a governmental entity.” Id. § 1915A(a). “On review, the court shall 

identify cognizable claims or dismiss the complaint, or any portion of the complaint, 

if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief 

may be granted[] or . . . seeks monetary relief from a defendant who is immune from 

such relief.” Id. § 1915A(b). 
3 

exhaustion requirements for habeas actions,’” R. at 66 (quoting Butler v. Compton, 

482 F.3d 1277, 1279 (10th Cir. 2007)). See R. at 64–66. Ballard now appeals. 

Before this court, Ballard fails to challenge the district court’s conclusion that 

venue was improper. That failure resolves this appeal. “If the district court states 

multiple alternative grounds for its ruling and the appellant does not challenge all 

those grounds in the opening brief, then we may affirm the ruling.” Rivero v. Bd. of 

Regents of Univ. of N.M., 950 F.3d 754, 763 (10th Cir. 2020). Applying that rule 

here, we affirm on the basis that Ballard waived any challenge to the determination 

that the District of Utah is the wrong venue for a suit about actions taken in Texas by 

Texas-based actors during Texas state court proceedings. 

We decline to address the other grounds on which the district court ruled. 

“Because there ‘exists a strong policy to conserve judicial time and resources,’ . . . 

‘preliminary matters such as [venue] should be raised and disposed of before the 

court considers the merits or quasi-merits of a controversy.’” Bel-Ray Co. v. 

Chemrite (Pty) Ltd., 181 F.3d 435, 443 (3d Cir. 1999) (ellipses omitted) (quoting 

Wyrough & Loser, Inc. v. Pelmor Lab’ys, Inc., 376 F.2d 543, 547 (3d Cir. 1967)). 

Thus, having affirmed the district court’s venue ruling, we need not expend effort 

considering the other aspects of the district court’s decision. Additionally, by 

limiting our review, we leave room for “the merits [to] be litigated” “[i]n the proper 

venue.” Offshore Sportswear, Inc. v. Vuarnet Int’l, B.V., 114 F.3d 848, 851 (9th Cir. 

1997). 
4 

Our narrow ruling, however, creates a small procedural hiccup. The district 

court dismissed Ballard’s suit with prejudice, presumably because, in addition to 

deciding that venue was improper, it determined that Ballard failed to state a claim 

upon which relief could be granted. See R. at 64–68. Yet we affirm only on venue 

grounds, and precisely because a dismissal for improper venue does not “operate[] as 

an adjudication on the merits,” Fed. R. Civ. P. 41(b), such dismissals “should be 

without prejudice,” Goff v. Hackett Stone Co., 185 F.3d 874, 1999 WL 397409, at *2 

(10th Cir. 1999) (unpublished table decision).3

 Therefore, we vacate the district 

court’s decision to the extent that it opined on the merits of Ballard’s claims and 

dismissed his suit with prejudice, and we remand for the district court to enter an 

order dismissing the case without prejudice for improper venue. See Goff, 1999 WL 

397409, at *2 (remanding for district court to alter its dismissal). 

Ballard also filed in the district court an application to proceed in forma 

pauperis (“ifp”) on appeal. The district court granted Ballard ifp status for purposes 

of its own proceedings, but it concluded that Ballard should not retain that status on 

appeal. It reached this conclusion because it determined, pursuant to Federal Rule of 

Appellate Procedure 24(a)(3)(A), that Ballard’s “claims . . . are entirely without merit 

and, therefore, [his] appeal is not taken in good faith.” R. at 73.4

3

 Unpublished cases cited in this decision are not binding precedent, but we 

consider them for their persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 

32.1(A), (C). 

4

 As relevant here, Federal Rule of Appellate Procedure 24(a)(3)(A) states that 

“[a] party who was permitted to proceed in forma pauperis in the district-court action 
5 

Ballard has now filed an ifp motion with this court. We have previously 

denied ifp motions in cases where appellants waived their arguments. See Armelin v. 

Donahoe, 515 F. App’x 760, 761 (10th Cir. 2013) (unpublished); Gonzales v. 

Ledezma, 417 F. App’x 824, 826 (10th Cir. 2011) (unpublished). We do so again 

here. 

For the foregoing reasons, we AFFIRM the judgment of the district court 

insofar as the district court determined that venue was improper in the District of 

Utah, we VACATE the remainder of the district court’s decision as well as its 

dismissal of the case with prejudice, and we DENY Ballard’s motion to proceed ifp

on appeal. We REMAND to the district court for entry of an order dismissing the 

case without prejudice for improper venue. 

Entered for the Court 

Allison H. Eid 

Circuit Judge 

. . . may proceed on appeal in forma pauperis . . . unless . . . the district court . . . 

certifies that the appeal is not taken in good faith . . . and states in writing its reasons 

for the certification.”