UNITED STATES COURT OF APPEALS
Filed 8/23/96
FOR THE TENTH CIRCUIT
______
DENNIS O’NEILL, )
)
Plaintiff-Appellant, )
)
v. ) No. 96-1214
) (D.C. No. 95-Z-863)
THE BOARD OF COUNTY COMMISSIONERS ) (Dist. of Colorado)
OF THE COUNTY OF LAKE, JANIS A. )
FAIRCHILD, KEN BAKER, KEN BAKER, )
P.C., LLOYD E. SCHOOLEY, REATHA A. )
SCHOOLEY, DALLAS H. FULLERTON, )
LEONARD CAMPBELL, VIRGIL NEAL )
CAMPBELL, and PAUL CAMPBELL, )
)
Defendants-Appellees. )
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ORDER AND JUDGMENT*
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Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
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After examining the briefs and the 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. 34.1.9. The case is therefore ordered
submitted without oral argument.
Dennis O’Neill (O’Neill) appeals from the district court’s
dismissal with prejudice of his civil rights complaint filed
pursuant to 18 U.S.C. § 1983.
*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of Tenth Cir. R. 36.3.
O’Neill owned real property in Lake County, Colorado, which
was secured by a Deed of Trust and a Promissory Note in favor of
appellees, Leonard Campbell, Virgil Neal Campbell, Paul Campbell,
Lloyd E. Schooley, Reatha A. Schooley, and Dallas H. Fullerton
(collectively “the Campbells”). When O’Neill failed to make
certain payments, the Campbells initiated foreclosure proceedings,
through their attorney, appellee Ken Baker (Baker), with the Public
Trustee for Lake County, Colorado, appellee Janis A. Fairchild
(Fairchild). Fairchild set the foreclosure sale for April 1, 1993.
O’Neill filed an objection to the sale and on March 18, 1993,
Fairchild changed the sale date to April 29, 1993. O’Neill claims
he did not receive notice of the new date of sale.
Pursuant to Colo. R. Civ. P. 120(d), a hearing was held on
April 23, 1993, for authorization of the foreclosure sale. O’Neill
attended the hearing without counsel.1 During the hearing, the
court inquired as to the date of the foreclosure sale. Baker
replied that it was set for April 28, 1993, or “next Friday,” April
30, 1993. After the hearing, the court determined that O’Neill had
defaulted on the promissory note and granted the Order Authorizing
Sale.
Pursuant to the order, Fairchild held the foreclosure sale on
1
Although O’Neill had retained counsel for this
proceeding, counsel was unable to attend due to a scheduling
conflict and the district court denied O’Neill’s request for a
continuance on the morning of the hearing.
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April 29, 1993, and the subject property was sold. On July 23,
1993, O’Neill filed a Motion For Reconsideration of Order
Authorizing Sale and to Void Sale. On September 24, 1993, O’Neill
filed a Petition for Mandamus and Prohibition with the Colorado
Supreme Court. Both motions were based on O’Neill’s claim that he
was denied procedural due process because the foreclosure sale
occurred before the statutory seven day period for him file a
Notice of Intent to Cure had elapsed. On September 28, 1993, the
district court denied O’Neill motion for reconsideration and on
September 30, 1993, the Colorado Supreme court denied O’Neill’s
petition for mandamus. Finally, on October 29, 1993, the Lake
County District Court approved the sale.
On April 19, 1995, O’Neill filed this civil rights action in
district court pursuant to 18 U.S.C. § 1983 alleging, inter alia,
that he was denied procedural due process because the foreclosure
sale occurred before the statutory seven day period allowed for the
filing of a Notice of Intent to Cure after a Rule 120 hearing had
elapsed. On April 10, 1996, the district court granted appellees’
motions to dismiss and dismissed O’Neill’s complaint on the grounds
that: (1) the federal district court lacked subject matter
jurisdiction because O’Neill sought appellate review of a state
court decision; (2) O’Neill’s claims were barred by the doctrine of
collateral estoppel; and (3) O’Neill failed to state a claim upon
which relief can be granted.
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On appeal, O’Neill reiterates his due process claim. He
specifically contends that the district court erred in finding
that: his claims sought to vacate, reverse or modify a state court
decision, therefore, depriving the district court of subject matter
jurisdiction; his claims were barred by the doctrine of collateral
estoppel; and his complaint failed to sufficiently plead the
specifics of conspiracy between public officials and private
litigants.
We review the district court dismissal for lack of subject
matter jurisdiction de novo.2 Thomas Brooks Chartered v. Burnett,
920 F.2d 634, 641 (10th Cir. 1990).
The federal courts are courts of limited jurisdiction and may
only adjudicate cases within their authority, Hackbart v.
Cincinnati Bengals, Inc., 601 F.2d 516, 521 (10th Cir.), cert.
denied, 444 U.S. 931 (1979), and “[i]t is well settled that federal
district courts are without authority to review state court
judgments where the relief sought is in the nature of appellate
review.” Anderson v. Colorado, 793 F.2d 262, 263 (10th Cir. 1986).
See Facio v. Jones, 929 F.2d 541, 543 (10th Cir. 1991). Where a
constitutional claim has, or could have been, reviewed by a state
appellate court, a litigant may not use § 1983 as a vehicle in a
2
Although the district court found alternative grounds
to dismiss O’Neill’s complaint, we need only address the issue of
subject matter jurisdiction because without jurisdiction we are
without authority to consider anything else.
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federal district court through which to seek reversal. Anderson,
793 F.2d at 263. “Any such federal review has to be addressed
directly to the United States Supreme Court from the state’s
highest court pursuant to 28 U.S.C. § 1257.” Facio, 929 F.2d at
543.
The Colorado courts have considered, or had the opportunity to
consider, O’Neill’s claims of deprivation of due process and have
denied relief. Therefore, we affirm substantially for the reasons
set forth in the district court’s Order of April 10, 1996.
O’Neill’s motion for Correction or Modification of the record
is denied. Appellees’, the Board of County Commissioners for the
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County of Lake and Fairchild, request for attorney fees and
sanctions is denied.
AFFIRMED.
Entered for the Court:
James E. Barrett,
Senior United States
Circuit Judge
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