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 Brya n Ballard was convicted after a jury trial held in Texas state court and sent enced to twelve years of imprisonment. 1 Defendant-appellee Ken Anders on served as the judge w ho presided over Ballard’s trial; defendant-appellee John Bradley serv ed as the prosecutor; and defendantappellee Bill Hines served as Ballard’s cour t-appointed defense a ttorney. On May 3,

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 Court2 2019, Ballard initiated this pro se suit ag ainst 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 disc losed by the record—was incarcerated when he filed his complaint, so the distri ct court screened it pursuant to 28 U.S.C. § 1915A. 2 After reviewing the complaint, the di strict court dismissed the case on the alternative grounds that (1) venue was improper in the Dist rict of Utah because “[a] careful review of the Compla int reveals no refere nce whatsoever to Utah, let alone any allegation that Utah is home to any pa rty, events, omissions or property possibly involved in this case,” R. at 64; (2) A nderson was entitled to judicial immunity; (3) Bradley was entitled to pros ecutorial immunity; (4) Hine s 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 wit hout complying with the more stringent

2 28 U.S.C. § 1915A directs a district c ourt to “review, before docketing, if feasible or, in any event, as soon as practic able after docketing, a complaint in a civil action in which a prisoner seeks redress fr om 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 complain t, 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 . . . s eeks 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 chal lenge the district c ourt’s conclusion that venue was improper. That failure resolves th is appeal. “If the di strict court states multiple alternative grounds for its ruling and the appella nt 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 cha llenge to the determination that the District of Utah is the wrong venue for a suit about acti ons taken in Texas by Texas-based actors during Texa s state court proceedings. We decline to address the other grounds on which the district court ruled. “Because there ‘exists a strong policy to conserve judi cial time and resources,’ . . . ‘preliminary matters such as [venue] should be raised and disposed of before the court considers the merits or qua si-merits of a controversy.’” Bel-Ray Co. v. Chemrite (Pty) Ltd. , 181 F.3d 435, 443 (3 d 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 dist rict 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 sma ll procedural hiccup. The district court dismissed Ballard’s suit with prej udice, presumably because, in addition to deciding that venue was imprope r, it determined that Balla rd 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. Ci v. 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) (unpub lished table decision). 3 Therefore, we vacate the district court’s decision to the extent that it opine d on the merits of Ballard’s claims and dismissed his suit with prej udice, and we remand for the di strict court to enter an order dismissing the case without prejudice for improper venue. See Goff , 1999 WL 397409, at *2 (remanding fo r 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 re tain that status on appeal. It reached this conc lusion 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 thei r persuasive value. See Fed. R. App. P. 32 .1(a); 10th Cir. R. 32.1(A), (C).
4 As relevant here, Federal Rule of Appe llate Procedure 24(a)(3 )(A) states that “[a] party who was permitted to proceed in forma pauperis in the district-court action5 Ballard has now filed an ifp motion with this court. We have previously denied ifp motions in cases where appella nts waived their arguments. See Armelin v. Donahoe , 515 F. App’x 760, 761 (10t h 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 cour t determined that venue was improper in the District of Utah, we VACATE the remainde r 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 c ourt 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.”