Appellate Case: 21-2059 Document: 010110665290 Date Filed: 03/31/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 31, 2022 _________________________________ Christopher M. Wolpert Clerk of Court DR. GAVIN CLARKSON, an individual,
Plaintiff - Appellant,
v. No. 21-2059 (D.C. No. 2:18-CV-00870-KRS-GBW) BOARD OF REGENTS OF NEW (D. N.M.) MEXICO STATE UNIVERSITY; ENRICO PONTELLI, in his individual capacity and official capacity as hearing officer,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, KELLY, and CARSON, Circuit Judges. _________________________________
Gavin Clarkson, proceeding pro se,1 appeals the district court’s entry of final
judgment on claims he brought after New Mexico State University (NMSU)
* 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Because Clarkson proceeds pro se, we construe his filings liberally but do not serve as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). Appellate Case: 21-2059 Document: 010110665290 Date Filed: 03/31/2022 Page: 2
terminated his employment. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
I. Background
NMSU employed Clarkson as a tenure-track professor. In 2017, Clarkson
accepted an appointment to serve as the Deputy Assistant Secretary for Policy and
Economic Development (DASPED) at the U.S. Department of the Interior. But he
wanted to continue his academic career, so he sought an unpaid leave of absence
from NMSU. In his request, he discussed the work he would perform as the
DASPED and how it would benefit NMSU. Because the initiatives he would be
“responsible for developing and implementing” as the DASPED would not “happen
overnight,” he “request[ed] an extended leave of absence beginning Monday, August
14[, 2017,] and concluding when faculty report back to campus in . . . January of
2020,” along with “the option, at [Clarkson’s] election, to extend that leave until the
faculty report in . . . January of 2021.” R. at 212. In making this request, Clarkson
acknowledged that his requested leave would be “substantially longer than normal,”
but stated that his “appointment as DASPED is an extraordinary opportunity that . . .
justif[ies] an extended leave.” Id. He also asked that his tenure review be postponed
until the fall semester following his return.
Daniel Howard, the university’s executive vice president and provost,
“approve[d] [Clarkson’s] first request, a leave of absence without pay until January
of 2020.” Id. at 214. Howard also wrote: “I am . . . willing to consider an extension
until January of 2021, but I am going to require that you make a formal request for
2 Appellate Case: 21-2059 Document: 010110665290 Date Filed: 03/31/2022 Page: 3
this extension by August 30 of 2019, at which time I, or whoever is Provost at the
time, will decide whether to grant the extension.” Id. And he agreed to pause
Clarkson’s “tenure clock.” Id.
Clarkson resigned from the DASPED post in December 2017 to run for
Congress. Howard then informed Clarkson that the “agreement for leave without pay
is . . . revoked” and demanded that Clarkson “return for duty on Tuesday, January 16,
2018.” Id. at 215. The parties dispute whether Clarkson returned as required, but do
not dispute that Howard sent Clarkson a notice of proposed termination on January
24 due to Clarkson’s alleged “job abandonment and insubordination.” Id. at 216.
The university scheduled a hearing on Clarkson’s proposed termination. In
advance of the hearing, the university provided Clarkson with documents relevant to
its proposed action as well as the option to have his case heard by either a committee
of three members of the faculty senate or a university dean. Clarkson elected to have
a dean hear his case, and the university selected Enrico Pontelli, the Dean of the
College of Arts and Sciences, to conduct the hearing.
Clarkson had counsel at the hearing, at which Clarkson testified and
questioned university officials. Pontelli issued a written decision about a week after
the hearing upholding the proposed termination.
Clarkson then brought this suit against the NMSU Board of Regents, alleging
wrongful termination, race- and age-based discrimination, that the school’s
termination procedures violated his due process rights, and that the school’s
revocation of his leave of absence breached a contract he had formed with the school
3 Appellate Case: 21-2059 Document: 010110665290 Date Filed: 03/31/2022 Page: 4
regarding leave. In response to the Board’s motion to dismiss, Clarkson agreed to
dismiss the wrongful termination and discrimination claims and filed an amended
complaint that pressed his remaining claims and added four individual defendants,
including Pontelli. Clarkson later voluntarily dismissed his claims against one of the
individual defendants, and the court dismissed the claims against two others because
Clarkson did not serve them, leaving only the Board and Pontelli as defendants.
The district court later granted summary judgment to the remaining
defendants. It concluded that neither the NMSU Board of Regents nor Pontelli, in his
official capacity, were “persons” amenable to suits for damages under 42 U.S.C.
§ 1983. It further determined that to the extent Clarkson sought injunctive relief
against Pontelli in his official capacity, the claim could not succeed because Pontelli
lacked authority to grant the relief Clarkson sought. It also found that the § 1983
claim against Pontelli in his individual capacity failed because the evidence did not
show Pontelli had violated Clarkson’s constitutional rights. And it found Clarkson’s
breach-of-contract claim deficient because he defaulted on his obligation to serve as
the DASPED and therefore could not “demonstrate due performance under the leave
of absence agreement.” R. at 524.
II. Discussion
A. The District Court’s Dismissal of Claims
Clarkson argues the district court erred in dismissing his wrongful termination
and discrimination claims. But he agreed to dismissal of these claims and sought
permission to file an amended complaint asserting only claims for “breach of
4 Appellate Case: 21-2059 Document: 010110665290 Date Filed: 03/31/2022 Page: 5
contract” and “a violation of 42 U.S.C. § 1983 based on the denial of Dr. Clarkson’s
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Appellate Case: 21-2059 Document: 010110665290 Date Filed: 03/31/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 31, 2022 _________________________________ Christopher M. Wolpert Clerk of Court DR. GAVIN CLARKSON, an individual,
Plaintiff - Appellant,
v. No. 21-2059 (D.C. No. 2:18-CV-00870-KRS-GBW) BOARD OF REGENTS OF NEW (D. N.M.) MEXICO STATE UNIVERSITY; ENRICO PONTELLI, in his individual capacity and official capacity as hearing officer,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, KELLY, and CARSON, Circuit Judges. _________________________________
Gavin Clarkson, proceeding pro se,1 appeals the district court’s entry of final
judgment on claims he brought after New Mexico State University (NMSU)
* 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. 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. 1 Because Clarkson proceeds pro se, we construe his filings liberally but do not serve as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). Appellate Case: 21-2059 Document: 010110665290 Date Filed: 03/31/2022 Page: 2
terminated his employment. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
I. Background
NMSU employed Clarkson as a tenure-track professor. In 2017, Clarkson
accepted an appointment to serve as the Deputy Assistant Secretary for Policy and
Economic Development (DASPED) at the U.S. Department of the Interior. But he
wanted to continue his academic career, so he sought an unpaid leave of absence
from NMSU. In his request, he discussed the work he would perform as the
DASPED and how it would benefit NMSU. Because the initiatives he would be
“responsible for developing and implementing” as the DASPED would not “happen
overnight,” he “request[ed] an extended leave of absence beginning Monday, August
14[, 2017,] and concluding when faculty report back to campus in . . . January of
2020,” along with “the option, at [Clarkson’s] election, to extend that leave until the
faculty report in . . . January of 2021.” R. at 212. In making this request, Clarkson
acknowledged that his requested leave would be “substantially longer than normal,”
but stated that his “appointment as DASPED is an extraordinary opportunity that . . .
justif[ies] an extended leave.” Id. He also asked that his tenure review be postponed
until the fall semester following his return.
Daniel Howard, the university’s executive vice president and provost,
“approve[d] [Clarkson’s] first request, a leave of absence without pay until January
of 2020.” Id. at 214. Howard also wrote: “I am . . . willing to consider an extension
until January of 2021, but I am going to require that you make a formal request for
2 Appellate Case: 21-2059 Document: 010110665290 Date Filed: 03/31/2022 Page: 3
this extension by August 30 of 2019, at which time I, or whoever is Provost at the
time, will decide whether to grant the extension.” Id. And he agreed to pause
Clarkson’s “tenure clock.” Id.
Clarkson resigned from the DASPED post in December 2017 to run for
Congress. Howard then informed Clarkson that the “agreement for leave without pay
is . . . revoked” and demanded that Clarkson “return for duty on Tuesday, January 16,
2018.” Id. at 215. The parties dispute whether Clarkson returned as required, but do
not dispute that Howard sent Clarkson a notice of proposed termination on January
24 due to Clarkson’s alleged “job abandonment and insubordination.” Id. at 216.
The university scheduled a hearing on Clarkson’s proposed termination. In
advance of the hearing, the university provided Clarkson with documents relevant to
its proposed action as well as the option to have his case heard by either a committee
of three members of the faculty senate or a university dean. Clarkson elected to have
a dean hear his case, and the university selected Enrico Pontelli, the Dean of the
College of Arts and Sciences, to conduct the hearing.
Clarkson had counsel at the hearing, at which Clarkson testified and
questioned university officials. Pontelli issued a written decision about a week after
the hearing upholding the proposed termination.
Clarkson then brought this suit against the NMSU Board of Regents, alleging
wrongful termination, race- and age-based discrimination, that the school’s
termination procedures violated his due process rights, and that the school’s
revocation of his leave of absence breached a contract he had formed with the school
3 Appellate Case: 21-2059 Document: 010110665290 Date Filed: 03/31/2022 Page: 4
regarding leave. In response to the Board’s motion to dismiss, Clarkson agreed to
dismiss the wrongful termination and discrimination claims and filed an amended
complaint that pressed his remaining claims and added four individual defendants,
including Pontelli. Clarkson later voluntarily dismissed his claims against one of the
individual defendants, and the court dismissed the claims against two others because
Clarkson did not serve them, leaving only the Board and Pontelli as defendants.
The district court later granted summary judgment to the remaining
defendants. It concluded that neither the NMSU Board of Regents nor Pontelli, in his
official capacity, were “persons” amenable to suits for damages under 42 U.S.C.
§ 1983. It further determined that to the extent Clarkson sought injunctive relief
against Pontelli in his official capacity, the claim could not succeed because Pontelli
lacked authority to grant the relief Clarkson sought. It also found that the § 1983
claim against Pontelli in his individual capacity failed because the evidence did not
show Pontelli had violated Clarkson’s constitutional rights. And it found Clarkson’s
breach-of-contract claim deficient because he defaulted on his obligation to serve as
the DASPED and therefore could not “demonstrate due performance under the leave
of absence agreement.” R. at 524.
II. Discussion
A. The District Court’s Dismissal of Claims
Clarkson argues the district court erred in dismissing his wrongful termination
and discrimination claims. But he agreed to dismissal of these claims and sought
permission to file an amended complaint asserting only claims for “breach of
4 Appellate Case: 21-2059 Document: 010110665290 Date Filed: 03/31/2022 Page: 5
contract” and “a violation of 42 U.S.C. § 1983 based on the denial of Dr. Clarkson’s
due process rights.” R. at 74. He therefore waived appellate review of the district
court’s dismissal. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127 (10th Cir.
2011) (noting that when a “theory was intentionally relinquished or abandoned in the
district court, we usually deem it waived and refuse to consider it”).
B. The District Court’s Grant of Summary Judgment
“We review de novo the district court’s grant of summary judgment . . . .”
Ezell v. BNSF Ry. Co., 949 F.3d 1274, 1278 (10th Cir. 2020). Summary judgment is
proper “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
conducting our review, “we view the evidence in the light most favorable to the
non-moving party.” Ezell, 949 F.3d at 1278 (internal quotation marks omitted).
“After the moving party has identified a lack of a genuine issue of material fact, the
nonmoving party has the burden to cite to specific facts showing that there is a
genuine issue for trial.” Id. (internal quotation marks omitted). “The nonmoving
party must be specific to satisfy its burden, either by citing to particular parts of
materials in the record or by showing that the moving party has relied on insufficient
or inadmissible evidence.” Id. (internal quotation marks omitted).
To the extent Clarkson re-asserts arguments he presented to the district court,
we affirm for substantially the reasons cited by the district court. We do not consider
the arguments Clarkson raises for the first time on appeal because he does not argue
that they support reversal under plain-error review. See Richison, 634 F.3d at 1131
5 Appellate Case: 21-2059 Document: 010110665290 Date Filed: 03/31/2022 Page: 6
(“[T]he failure to argue for plain error and its application on appeal . . . surely marks
the end of the road for an argument for reversal not first presented to the district
court.”).
C. Clarkson’s Request for Further Relief
Clarkson asks us to direct the district court to authorize him to amend his
complaint and compel document production. He does not provide a record citation
showing he asked for this relief in the district court, and we therefore decline his
invitation. See 10th Cir. R. 28.1(A) (requiring parties to “cite the precise references
in the record where the issue was raised and ruled on”); United States v. Henson,
9 F.4th 1258, 1274 (10th Cir. 2021) (“[A]s a general rule, we do not consider an issue
not presented, considered, and decided by the district court.” (emphasis and internal
quotation marks omitted)), petition for cert. filed (U.S. Dec. 20, 2021) (No. 21-6736);
United States v. Suggs, 998 F.3d 1125, 1141 (10th Cir. 2021) (noting that “we are a
court of review, not of first view” (internal quotation marks omitted)).
D. Clarkson’s Motion to Supplement the Record
Clarkson attached 31 exhibits to his opening brief. He then filed a motion
seeking to supplement the record to include 30 of these exhibits.
Under Federal Rule of Appellate Procedure 10(e), a party may modify the
record on appeal “only to the extent it is necessary to ‘truly disclose what occurred in
the district court.’” United States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000)
(brackets omitted) (quoting Fed. R. App. P. 10(e)(1)). “This court will not consider
material outside the record before the district court.” Id. Indeed, while “Rule 10(e)
6 Appellate Case: 21-2059 Document: 010110665290 Date Filed: 03/31/2022 Page: 7
allows a party to supplement the record on appeal,” it “does not grant a license to
build a new record.” Id. (internal quotation marks omitted).
The exhibits Clarkson seeks to add to the record fall into three general
categories: (1) documents not presented to the district court in any form;
(2) documents presented to the district court in a different form, such as with
different portions highlighted; and (3) copies of publicly available documents, such
as NMSU regulations. Our precedent forecloses supplementing the record with
documents from the first two categories because we “will not consider material
outside the record before the district court.” Id. And we need not supplement the
record to include the documents in the third category because the documents falling
in this category cited to or by the district court are already in the record. See R. at
208–11, 219–24. We therefore deny Clarkson’s motion to supplement the record.
III. Conclusion
We affirm the district court’s entry of final judgment.
Entered for the Court
Paul J. Kelly, Jr. Circuit Judge