Hultberg v. State of Louisiana

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-30208
Summary Calendar
____________________

BRIAN HULTBERG; MARION HULTBERG, Individually and on behalf of
all others similarly situated

Plaintiffs-Appellants

v.

STATE OF LOUISIANA; DEPARTMENT OF JUSTICE OF THE STATE OF
LOUISIANA; DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS OF THE
STATE OF LOUISIANA; WASHINGTON CORRECTIONAL INSTITUTE; MICHAEL J
FOSTER, also known as Mike Foster, Governor, State of Louisiana;
RICHARD IEYOUB, Attorney General, State of Louisiana; RICHARD L
STALDER, Secretary, Department of Public Safety and Corrections;
UNIDENTIFIED PARTIES; FRANK FOIL, Judge; KENNETH J FOGG, Judge; J
LEWIS WATKINS, JR, Judge; JOSEPH KEOGH; BOB HESTER, Judge; J
MICHAEL MCDONALD, Judge; RACHEL MORGAN, Commissioner; VISITACION
RAMERIZ, DR; ANGELINE WALKER

Defendants-Appellees

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-3577-D)
_________________________________________________________________
November 18, 1998

Before KING, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellants, Brian Hultberg and Marion Hultberg

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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(collectively, the Hultbergs), appeal the district court’s

dismissal of their suit seeking declaratory and injunctive relief

pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201. For the

following reasons, we affirm the decision of the district court.

I. BACKGROUND

The Hultbergs’ complaint alleges that, in June 1993, while

Brian Hultberg was confined as an inmate at the Washington

Correctional Institute (WCI), he visited Dr. Visitacion Rameriz

(Dr. Rameriz) complaining of a nodule on his testicle. After

several complaints and further examinations by Dr. Rameriz, Dr.

Rameriz ordered a referral to Charity Hospital in New Orleans

(CHNO) for a second opinion. Allegedly, Dr. Rameriz or Nurse

Angeline Walker (Nurse Walker) failed to complete the referral to

CHNO until January 1994. In March 1994, Brian Hultberg was

diagnosed at CHNO with testicular cancer. Brian Hultberg claims

damages for the alleged delay in the diagnosis of the cancer

caused by the actions or inactions of Dr. Rameriz and/or Nurse

Walker. Marion Hultberg (Brian’s mother) also claims loss of

consortium damages.

Brian Hultberg initiated and exhausted his administrative

remedies under the Corrections Administrative Remedy Procedure

(ARP), Louisiana’s administrative grievance procedure for

resolving inmate complaints within the correctional system. See

La. Rev. Stat. Ann. §§ 15:1171-77 (West 1992). The final step of

his administrative appeal was decided against him on August 17,

1994.

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 The ARP was enacted pursuant to 42 U.S.C. § 1997 et seq.,

which authorizes states to establish grievance procedures for

inmates and allows courts to require exhaustion of those

procedures. The ARP, as amended, is the exclusive remedy

available to Louisiana inmates for all grievances, including

complaints of medical malpractice and personal injury actions,

against the state, the governor, the Louisiana Department of

Public Safety and Corrections (DPSC), or any officials or

employees thereof. See Marler v. Petty, 653 So. 2d 1167, 1170-71

(La. 1995). Under the ARP, an inmate has thirty days from the

date of the final administrative decision within which to seek

judicial review in the Nineteenth Judicial District Court of the

State of Louisiana of an adverse decision by the DPSC. See La.

Rev. Stat. Ann. § 15:1177(A).

The Hultbergs did not file suit in the Nineteenth Judicial

District Court until September 26, 1994, more than thirty days

after the date of the final administrative decision. Their suit

named as defendants the State of Louisiana through the DPSC, Dr.

Rameriz, and Nurse Walker, and requested damages to compensate

the Hultbergs for the delay in diagnosis of Brian’s cancer

alleged to be the fault of the defendants.

On September 18, 1995, the Hultbergs were granted leave to

file a Supplemental Petition, which sought a declaration that the

ARP was “violative of the due process and equal protection

clauses of the United States and Louisiana Constitution[s] and

under the holding in Moore v. Roemer, 567 So. 2d 75 (La. 1990).”

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 In response, the defendants filed a peremptory exception of

failure to seek timely judicial review pursuant to La. Rev. Stat.

Ann. § 15:1177(A) on the ground that the suit had been filed more

than thirty days after the administrative decision had been

rendered.

On August 25, 1997, defendant-appellee, Nineteenth Judicial

District Commissioner Rachel P. Morgan (Commissioner Morgan),

recommended that the defendants’ exception be granted.1 On

September 22, 1997, defendant-appellee, Nineteenth Judicial

District Judge J. Michael McDonald (Judge McDonald), entered

judgment in favor of defendants, dismissing the Hultbergs’ claims

as recommended by Commissioner Morgan. Judge McDonald did not

reach the merits of the Hultbergs’ administrative grievance and

did not explicitly address the Hultbergs’ challenge to the

constitutionality of the ARP. The Hultbergs filed an appeal with

the Louisiana First Circuit Court of Appeal, challenging the

dismissal of their suit and raising the unconstitutionality of

the ARP. This appeal is currently pending.

On November 19, 1997, the Hultbergs filed the present suit

on behalf of themselves and a purported class of others similarly

situated against the State of Louisiana, the Louisiana Department

of Justice (LDJ), the DPSC, the WCI, Governor Michael J. Foster

(Governor Foster), Attorney General Richard Ieyoub (Attorney

1
Under Louisiana law, the Nineteenth Judicial District has
two Commissioners who serve a function in connection with inmate
litigation similar to that of United States Magistrate Judges in
federal court.

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General Ieyoub), Secretary Richard Stalder (Secretary Stalder),

certain judges of the First Circuit Court of Appeal (Frank Foil

(Judge Foil), Kenneth J. Fogg (Judge Fogg), and J. Lewis Watkins,

Jr. (Judge Watkins)), certain judges of the Nineteenth Judicial

District Court (Joseph Keogh (Judge Keogh), Bob Hester (Judge

Hester), Judge McDonald, and Commissioner Morgan), Dr. Rameriz,

and Nurse Walker.

The Hultbergs request declaratory and injunctive relief

pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201. They contend

that, although following the procedures set forth in the ARP is a

prerequisite to filing a claim in state or federal court, the ARP

does not preclude filing a de novo lawsuit after exhausting the

ARP’s administrative steps. They further contend that the

universal interpretation of the ARP as an inmate’s “exclusive

remedy” for all grievances denies the Hultbergs and all others

similarly situated “procedural and substantive due process of law

including: (1) adequate access to court; (2) the opportunity to

be heard at a meaningful time and in a meaningful matter [sic];

(3) the right to an impartial decision maker; and (4) the right

to statutes that are not unconstitutionally vague.” The

Hultbergs claim that the ARP is unconstitutional on its face

and/or as applied, and request a declaration that the ARP is

unconstitutional under the United States Constitution and/or that

it violates the Louisiana Constitution and laws. Finally, the

Hultbergs request that the district court consider, de novo, the

merits of their personal injury claims which have been dismissed

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by the Nineteenth Judicial District Court.

All defendants, except for the WCI and Nurse Walker, moved

for dismissal in the district court on various grounds, including

(1) lack of subject matter jurisdiction under the Rooker-Feldman

doctrine; (2) Eleventh Amendment immunity; (3) failure to state a

claim under 42 U.S.C. § 1983; and (4) lack of standing.

On January 28, 1998, the district court found that the

Eleventh Amendment bars the Hultbergs’ claims against the State

of Louisiana, the LDJ, the DPSC, and the defendant state

employees and officials, and that it also bars their claims based

upon Louisiana law for declaratory and injunctive relief. The

district court further found that, under the Rooker-Feldman

doctrine, it lacked subject matter jurisdiction to hear the

Hultbergs’ claims, and that the Hultbergs had failed to state a

claim under § 1983. Finally, the district court declined to

decide the Hultbergs’ declaratory judgment action, refused to

allow a trial on the merits of the Hultbergs’ negligence claims,

and dismissed the claims against the remaining defendants. On

February 27, 1998, the Hultbergs filed a timely notice of appeal.

The present appeal followed.

II. DISCUSSION

A. Abandoned Claims

The Hultbergs do not challenge the district court’s

determination that their suit against the State of Louisiana, the

LDJ and the DPSC should be dismissed because these entities are

immune from suit under the Eleventh Amendment and are not

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“persons” under § 1983. Nor do they contest the district court’s

conclusion that the WCI lacks the procedural capacity to be sued.

An appellant who does not raise and argue an issue in its initial

brief on appeal is deemed to have abandoned that issue. See

Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (citing

cases). We therefore affirm the dismissal of these defendants.

As to the state judicial officials, the Hultbergs have

abandoned any claims against Judge Foil, Judge Fogg, Judge

Hester, Judge Watkins and Judge Keogh by not arguing those claims

on appeal.2 They have similarly abandoned their claims for

injunctive relief against the remaining judges, Judge McDonald

and Commissioner Morgan, by not contesting the district court’s

conclusion that their complaint failed to state a § 1983 claim

against the judicial defendants because, under § 1983, injunctive

relief is inappropriate against judicial officers acting in their

judicial capacity unless a declaratory decree was violated or

declaratory relief was unavailable.

Finally, the Hultbergs have abandoned their claims for

declaratory and injunctive relief under the Louisiana

2
Judge Watkins and Judge Keogh were both deceased at the
time that the Hultbergs’ complaint was filed seeking declaratory
and injunctive relief against them. The only apparent connection
between this case and Judges Watkins, Keogh, Foil, Fogg, and
Hester is that these judges participated in state court decisions
construing the ARP as an inmate’s exclusive remedy and upholding
the application of the ARP’s 30-day peremptive time period. See
Blackwell v. Louisiana Dep’t of Pub. Safety & Corrections, 690
So. 2d 137 (La. Ct. App. 1997) (Judge Foil and Judge Fogg
comprised the 2-member majority affirming the decision of Judge
Keogh); Carter v. Lynn, 637 So. 2d 690 (La. Ct. App. 1994) (Judge
Fogg and Judge Watkins formed the 2-member majority affirming the
decision of Judge Hester).

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Constitution and laws by not challenging the district court’s

conclusion that those claims are barred by the Eleventh

Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 106 (1984).

Thus, the claims that remain are (1) the claims for

declaratory and injunctive relief against Governor Foster,

Attorney General Ieyoub, Secretary Stalder, Dr. Rameriz, and

Nurse Walker; (2) the claims for declaratory relief against Judge

McDonald and Commissioner Morgan; and (3) the claims for damages

under Louisiana law based on the alleged medical negligence of

Dr. Rameriz and Nurse Walker.

B. The Rooker-Feldman Doctrine

The district court determined that it was without subject

matter jurisdiction to consider the Hultbergs’ claims under the

Rooker-Feldman doctrine. A district court’s dismissal for lack

of subject matter jurisdiction is reviewed de novo. See Home

Builders Assoc. v. City of Madison, Miss., 143 F.3d 1006, 1010

(5th Cir. 1998); St. Paul Reinsurance Co. v. Greenberg, 134 F.3d

1250, 1252 (5th Cir. 1998).

Under the Rooker-Feldman doctrine, the district court may

not consider collateral attacks on state court judgments, even if

it is alleged that the state court’s actions were

unconstitutional. See District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 486 (1983); Rooker v. Fidelity Trust Co.,

263 U.S. 413, 415-16 (1923); Liedtke v. State Bar, 18 F.3d 315,

317 (5th Cir. 1994). Nor may a party circumvent this rule by

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bringing a § 1983 action which alleges that the state court

decision caused a deprivation of rights protected by the

Constitution. See Howell v. Supreme Court, 885 F.2d 308, 311

(5th Cir. 1989); Hagerty v. Succession of Clement, 749 F.2d 217,

220 (5th Cir. 1984). Any constitutional questions that are

“inextricably intertwined” with the issues in the state court

proceeding must be resolved by the state courts. Feldman, 460

U.S. at 483-84 n.16; see Liedtke, 18 F.3d at 317. A litigant

aggrieved by an adverse decision of the state courts on a

constitutional question has a remedy in the Supreme Court of the

United States through a petition for writ of certiorari. See

Liedtke, 18 F.3d at 317; Howell, 885 F.2d at 311. Even if the

constitutional issues are not raised in the state court

proceeding, the federal courts still lack jurisdiction to address

such questions if they are inextricably intertwined with the

state court decision. See Feldman, 460 U.S. at 484 n.16; Howell,

885 F.2d at 312.

In Feldman, the Supreme Court distinguished between

constitutional challenges to state court decisions in particular

cases, which are impermissible under Rooker-Feldman, and “general

challenges to state bar rules, promulgated by state courts in

nonjudicial proceedings, which do not require review of a final

state-court judgment in a particular case.” Feldman, 460 U.S. at

486. Federal courts have jurisdiction to consider these “general

constitutional attacks.” Musslewhite v. State Bar, 32 F.3d 942,

946 (5th Cir. 1994); see Feldman, 460 U.S. at 486. The Hultbergs

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argue that their suit raises general challenges to the

constitutionality of the ARP and thus falls within the Feldman

exception.

However, “a general constitutional attack that is

nonetheless inextricably intertwined with a state court judgment

. . . cannot be properly heard in federal court.” Musslewhite,

32 F.3d at 946 (internal quotation marks omitted). A

constitutional challenge is “inextricably intertwined” with a

state court judgment when the district court, in essence, is

asked to review the state court decision, see Ritter v. Ross, 992

F.2d 750, 754 (7th Cir. 1993) (quoting Feldman, 460 U.S. at 483-

84 n.16), and the challenge is not “‘separable from and

collateral to’ the merits of the state-court judgment,” id.

(quoting Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 21 (1987)

(Brennan, J., concurring) (further citation omitted)).

Moreover, “[t]he Feldman exception does not apply when a

constitutional claim has already been decided by the state

court,” because this would run afoul of the principle that

district courts may not review final state court judgments in

particular cases. Howell, 885 F.2d at 312. In the Louisiana

proceeding, the Hultbergs presented the same constitutional

challenges to the ARP that they raise here. The decision of the

state court, that the Hultbergs’ suit should be dismissed because

it was not timely filed under the ARP, was an implicit rejection

of the Hultbergs’ constitutional challenges to that statute. To

allow the Hultbergs’ claims to proceed in federal court would

10
require the district court to review that determination of the

state court. “This the District Court may not do.” Feldman, 460

U.S. 462, 484 n.16.3 The Hultbergs’ remedy is to seek review

through Louisiana’s appellate process and, ultimately, through

petition for writ of certiorari to the Supreme Court of the

United States.

In sum, we affirm the district court’s conclusion that,

under the Rooker-Feldman doctrine, it lacked subject matter

jurisdiction to entertain the Hultbergs’ suit. Because this

conclusion is determinative of all the federal claims raised in

this appeal, we need not, and will not, consider whether Eleventh

Amendment immunity protects the state officials from suit,

whether the Hultbergs lack standing, whether the Hultbergs have

stated a § 1983 claim, whether Dr. Rameriz is entitled to

qualified immunity under § 1983, or whether the district court

abused its discretion in refusing to grant declaratory relief.

Moreover, pursuant to 28 U.S.C. § 1367(c)(3), the district court

was within its discretion in dismissing the Hultbergs’ state law

medical negligence claims once it dismissed “all claims over

3
Rooker itself, in which the Supreme Court held that
federal district courts lack jurisdiction to review state court
judgments, involved a challenge to a state court’s judgment
partly on the ground that the judgment gave effect to an
unconstitutional state statute. See Rooker v. Fidelity Trust
Co., 263 U.S. 413, 414-15 (1923). That the state court’s
judgment gives effect to an unconstitutional state statute is the
essence of the Hultbergs’ challenge here. Alternatively, the
Hultbergs seek to set aside the state court’s judgment on the
ground that it resulted from an unconstitutional application of
the ARP “so that they may have their day in court.” This clearly
asks the federal court to review and overturn a state court
judgment.

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which it ha[d] original jurisdiction.” 28 U.S.C. § 1367(c)(3).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the

district court.

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