Bolden v. City of Topeka

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
March 21, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

JAMES L. BOLDEN,

Plaintiff - Appellant,
v. No. 04-3306
CITY OF TOPEKA, KANSAS,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS *
(D.C. NO. 02-CV-2635-KHV)

Bret D. Landrith, Law Offices of Bret D. Landrith, Esq., Topeka, Kansas, for the
Plaintiff - Appellant.

Sherri Price, Assistant City Attorney, City of Topeka, Topeka, Kansas, for the
Defendant - Appellee.

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.

HARTZ, Circuit Judge.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
 James Bolden is not happy with the City of Topeka, Kansas, and several of

its officials. The City demolished as nuisances two buildings he purchased at tax

sales and then refused to extend his janitorial contract. After losing his attempt in

state court to enjoin demolition of his buildings, he sought an injunction in

federal court and eventually amended his federal complaint to include claims

against the City and several individuals arising out of the demolitions and the

termination of his janitorial contract. He alleged discrimination based on race (he

is African-American) and as retaliation for protected speech, in violation of the

Fair Housing Act and several civil-rights statutes. The federal district court

dismissed the claims against the individual defendants because of untimely

service. It granted partial summary judgment on some claims against the City

under the Rooker-Feldman doctrine (which, in essence, forbids appeals from

state-court judgments to federal district court, see Rooker v. Fidelity Trust Co.,

263 U.S. 413, 416 (1923); D. C. Court of Appeals v. Feldman, 460 U.S. 462, 486-

87 (1983)), on the ground that those claims were “inextricably intertwined” with

the state-court litigation he had lost; and it dismissed his racial-discrimination

claim under 42 U.S.C. § 1981 on the ground that the statute creates no private

right of action against state actors. Mr. Bolden’s remaining claim—an allegation

that his janitorial contract was terminated in retaliation for protected

speech—went to the jury, which rendered a verdict for the City.

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 On appeal Mr. Bolden argues that the district court erred (1) in dismissing

the § 1981 claim, (2) in applying the Rooker-Feldman doctrine, (3) in dismissing

the individual defendants, (4) in denying his request for an extension of time to

conduct discovery, and (5) in refusing to admit certain evidence at trial. He also

claims that the magistrate judge assigned to his case was biased against his

attorney. We have jurisdiction under 28 U.S.C. § 1291. We reverse the dismissal

under Rooker-Feldman and the dismissal of the § 1981 claim, and remand for

further proceedings on these dismissed claims. In all other respects we affirm the

judgment below.

I. FACTS AND PROCEDURAL HISTORY

Mr. Bolden purchased two houses, 1146 S.W. Washburn and 421 S.W.

Tyler, at a sheriff’s sale on August 29, 2001. Unbeknownst to him, however, on

August 10 the City, after a hearing of which he had no notice, had ordered that

the Washburn property be demolished within 30 days because it was unfit for

human habitation and beyond repair. Mr. Bolden allegedly became aware of this

when an employee with the City’s Housing and Neighborhood Development

Department (HND) told him that the property “was supposed to have been

obtained by the city” and offered him $5,000 so that he would not “take a big

loss,” as the City was “going to tear it down.” Aplt. App. at 54. Mr. Bolden

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rejected this offer because the property had previously been appraised at $37,000,

although he had paid only $1,900 for it.

At Mr. Bolden’s request the City held another hearing concerning the

property. On October 15, 2001, the hearing officer found that Mr. Bolden had

failed to produce any evidence that he would be able to repair the properties and

affirmed the order of August 10. Mr. Bolden then filed for an injunction in state

court on November 9, 2001, to prevent the destruction of the property, asserting

that the HND had promised him a development grant but was “not following its

own rules.” Id. at 176. He also claimed that HND’s estimates of rehabilitation

costs were too high, which caused him “delays and uncertainty in acquiring

financing.” Id.

Similar developments soon followed with respect to the Tyler property. On

January 23, 2002, Mr. Bolden received notice that it was slated for demolition.

An administrative hearing was held on March 18. Eight days later the hearing

officer found that the Tyler property was unfit for human use and could not be

repaired at a reasonable cost; it issued an order that the structures on the property

be removed or demolished within 30 days. Mr. Bolden filed suit on April 19,

2002, to enjoin the destruction of the Tyler property. The state court consolidated

the two injunction actions and held a hearing on October 30, 2002. Mr. Bolden

was represented by counsel (not the attorney on this appeal).

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 A week later the court denied the requests for injunctions and ordered that

the City could proceed with the demolitions on both properties, finding that

neither could be renovated at a reasonable cost. The court also ruled that

Mr. Bolden had failed to comply with HND’s requirements for receiving funding.

It found “no legal justification for the issuance of an injunction” and ruled that

the City could proceed with the demolition of the structures on the two properties.

Id. at 212.

Mr. Bolden filed a request for a new trial, which was denied. Now

represented by Bret Landrith (the attorney who submitted the briefs for

Mr. Bolden on this appeal), he filed a notice of appeal on December 18, 2002; but

he then filed a motion to withdraw the appeal, and it was dismissed on May 5,

2003. Meanwhile, on November 21, 2002, the City had notified Mr. Bolden that

his contract to provide janitorial services would lapse at the end of December.

On December 20, 2002, Mr. Bolden filed suit in the United States District

Court for the District of Kansas against the City; Mayor Harry Felker; and two

City employees, Jay Oyler and Mike McGee. The suit sought a temporary

restraining order (TRO) “to prevent the imminent danger and irreparable harm

including taking away his janitorial contract in retaliation for protected speech

and the demolition of his real property in violation of his civil rights guaranteed

under the Constitution of the United States and 42 U.S.C. §§ 1981, 1983 and

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1985.” Id. at 14. On February 4, 2003, the federal district court denied the

request for a TRO and dismissed the complaint. The court held that (1) under the

Rooker-Feldman doctrine it had no jurisdiction over Mr. Bolden’s claims relating

to the demolition of his properties because the claims were “inextricably

intertwined” with the state court’s decision that the City may proceed with

demolition, and (2) Mr. Bolden had failed to allege sufficient facts to support

federal jurisdiction on his contract claim. The district court did, however, grant

Mr. Bolden leave to file an amended complaint.

The First Amended Complaint, filed on April 29, 2003, alleged that the

City had terminated his janitorial contract in retaliation for his protected speech in

state court, in violation of 42 U.S.C. §§ 1981 and 1983; and had denied him

rehabilitation loans on account of his race, in violation of § 1981 and the Fair

Housing Act, 42 U.S.C. § 3605 (FHA). It also alleged that the demolition of his

properties (the structures on the Washburn property had been demolished on

January 27 and those on the Tyler property had been demolished on February 12)

had been unlawful in several respects: the use of funds from the United States

Department of Housing and Urban Development (HUD) violated 42 U.S.C.

§ 1982, action under an unreasonable and discriminatory housing code violated

§ 1983, and failure to comply with HUD regulations violated § 1981. The

amended complaint also alleged a variety of additional claims not at issue on this

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appeal. And it added as defendants Kevin Rooney (an employee of HND), Meg

Perry (allegedly the City Director of Code Compliance Services), Jeff White

(interim director of HND), McPherson Construction (the contractor that the City

had hired to demolish Mr. Bolden’s properties), and HUD. It did not specify

which defendants committed which actions, alleging only that the various

wrongful acts were by “the defendants” and that “the defendants who are

individuals . . . acted together to violate” Mr. Bolden’s rights, in violation of 42

U.S.C. § 1985. Aplt. App. at 126.

The amended complaint sought a declaration that the City had enforced its

housing regulations against him “so as to constitute an unconstitutional restraint

on his freedom in violation of 42 U.S.C. § 1983,” id. at 146; had demolished his

houses “without probable cause, in violation of the Fourth and Fifth Amendments

to the Constitution, and 42 U.S.C. §§ 1982, 1983,” id. at 147; and had tortiously

interfered with his janitorial contracting business. It also requested injunctive

relief to prevent the defendants “from interfering in [Mr. Bolden’s] bidding on

federal and private janitorial contracts.” Id. at 103.

On May 23, 2003, the City moved to dismiss all claims against it relating to

the demolition of the structures or to the City’s refusal to provide funding for

repair of those structures. It argued that the claims were barred by the Rooker-

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Feldman doctrine and precluded by res judicata because of the prior proceedings

in state court. Four days later the City filed its answer to the amended complaint.

With leave of court Mr. Bolden filed his Second Amended Complaint on

August 15, 2003. It removed McPherson Construction and HUD as defendants

and sought damages and attorney fees for the first time. It continued to request

injunctive relief (preventing the defendants from interfering with his bidding on

janitorial contracts) and declaratory relief (that the defendants had wrongfully

used federal funds to demolish his properties).

On February 2, 2004, the district court dismissed without prejudice the

claims against the individual defendants because they had not been served in a

timely manner. Shortly thereafter, on February 13, 2004, the district court

granted the City’s motion to dismiss under the Rooker-Feldman doctrine the

claims arising out of the City’s demolition of his properties and its refusal to

provide funding to rehabilitate the properties.

Four days later the district court issued its Pretrial Order, which would

“supersede all pleadings and control the subsequent course of this case.” Id. at

887. The Pretrial Order left only two claims for disposition. Both related to the

termination of Mr. Bolden’s janitorial contract: a claim under § 1981 (alleging

racial discrimination) and a claim under § 1983 (alleging retaliation for protected

speech). Because this particular § 1981 claim had not been pleaded in the Second

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Amended Complaint, the City objected to inclusion of the claim in the pretrial

order. The district court overruled the objection. The City then moved for

summary judgment on the two remaining claims.

On May 25 the district court granted the City’s motion with respect to the

§ 1981 discrimination claim, holding that tort claims against state actors arising

under § 1981 must be brought under § 1983. The remaining claim—that the City

had violated § 1983 by terminating Mr. Bolden’s janitorial contract in retaliation

for his protected speech—was tried to a jury in July 2004. The jury returned a

verdict in favor of the City.

II. DISCUSSION

Mr. Bolden raises six contentions on appeal: (1) the district court erred in

dismissing his § 1981 claim; (2) the district court erred in dismissing claims under

the Rooker-Feldman doctrine; (3) the district court erred in dismissing the

individual defendants from the case; (4) the district court erred in denying him an

extension of time to complete discovery; (5) the district court erred in excluding

certain evidence from the trial; and (6) he was harmed by bias directed against his

counsel by the magistrate judge.

A. § 1981

42 U.S.C. § 1981(a) states:

Statement of equal rights. All persons within the jurisdiction of the
United States shall have the same right in every State and Territory

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 to make and enforce contracts, to sue, be parties, give evidence, and
to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and
shall be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other.

Mr. Bolden claims that the City violated 42 U.S.C. § 1981 by cancelling his

janitorial contract on the basis of race. The district court, relying on Jett v.

Dallas Independent School District, 491 U.S. 701 (1981), dismissed the claim on

the ground that “Section 1983 provides the exclusive remedy for damages against

a state actor for claims which arise under Section 1981.” Aplt. App. at 1161.

The district court accurately stated the law but, in our view, applied it with

too heavy a hand. Apparently the § 1981 claim could have escaped dismissal if

Mr. Bolden had merely added an allegation that he sought relief on the claim

under § 1983. Dismissal on such a technical ground, without granting leave to

amend, would rarely be appropriate. As we shall see, the thrust of Jett was not to

impose a technical pleading requirement but to clarify that a § 1981 claim against

a local government cannot be predicated on respondeat superior, a limitation

imposed on § 1983 claims. We now proceed to analyze Jett and whether later

legislation overruled its requirement that § 1981 claims for damages against

municipalities be brought under § 1983. Determining that Jett is still good law,

we then turn to whether dismissal of Mr. Bolden’s § 1981 claim was therefore

appropriate. We hold that it was not.

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 Norman Jett, a white male, was an employee of the Dallas Independent

School District and the head football coach at South Oak Cliff High School,

which had become predominantly African-American. After clashes with the

principal, he was reassigned to another school. See Jett, 491 U.S. at 705-07. A

few months later he resigned and filed suit against the school district and the

South Oak principal. See id. at 707. He brought claims under 42 U.S.C. §§ 1981

and 1983 alleging that the school district had denied him due process when he

was deprived of a constitutionally protected property interest in his coaching

position; had violated the First Amendment by retaliating against him for

statements to the press regarding the school’s sports program; and had violated

the Equal Protection Clause and § 1981 by reassigning him on the basis of his

race. See id. These claims were tried to a jury, which found for Mr. Jett on all

claims. See id. The school district moved for judgment notwithstanding the

verdict, arguing that there could be no liability because “there was no showing

that [Jett’s] injuries were sustained pursuant to a policy or custom of the school

district.” Id. at 708. The district court rejected this argument, holding that Jett’s

racial-discrimination claim “was cognizable under § 1981 as well as § 1983, and .

. . that liability is permitted on solely a basis of respondeat superior when the

claim is one of racial discrimination under § 1981.” Id. (internal quotation marks

omitted).

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 On appeal the Fifth Circuit “rejected the District Court’s conclusion that

the [school district’s] liability for [the principal’s] actions could be predicated on

a theory of respondeat superior under § 1981,” noting that the Supreme Court in

Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), had

held that “Congress did not intend municipalities to be subject to vicarious

liability for the . . . violations of their employees.” Jett, 491 U.S. at 710. In

rejecting a suggestion for rehearing en banc, the court issued a second opinion,

again holding that “respondeat superior liability against local governmental

entities was unavailable under § 1981.” Id.

The Supreme Court granted certiorari. It stated that the two questions

before it were “whether 42 U.S.C. § 1981 [which at the time was identical to the

present § 1981(a)] provides an independent federal cause of action for damages

against local governmental officials, and whether that cause of action is broader

than the damages remedy available under 42 U.S.C. § 1983, such that a

municipality may be held liable for its employees’ violations of § 1981 under a

theory of respondeat superior.” Id. at 705. Although noting that it had

previously recognized an implied damages remedy for violations of § 1981 by

private actors, see id. at 731, the Court refused to extend that remedy to

encompass claims against state actors, such as municipalities. Examining the

legislative history of §§ 1981, 1983, and 1988, four members of the Court

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determined that the remedy provided by § 1983 was intended to be the sole

remedy for civil-rights violations by state actors. See id. at 733-36. They said

“that the express ‘action at law’ provided by § 1983 for the ‘deprivations of any

rights, privileges, or immunities secured by the Constitution and laws’ provides

the exclusive federal damages remedy for the violation of the rights guaranteed by

§1981 when the claim is pressed against a state actor.” Id. at 735. Justice

Scalia, the essential fifth vote on the merits, arrived at the same result without

reference to legislative history. See id. at 738-39.

As a result, Mr. Jett’s § 1981 claim against the school district was

restricted by the doctrines limiting § 1983 claims. In particular, the district could

not be liable under respondeat superior. See id. at 736-37. The district could,

however, be liable when “execution of a government’s policy or custom, whether

made by its lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury.” Monell, 436 U.S. at 694. The Court

remanded the case to the circuit court to determine whether Jett still had a claim

against the school district.

Thus, under Jett, Mr. Bolden could bring his § 1981 claim only under

§ 1983. Courts have divided, however, over whether Jett is still good law. Some

contend that Jett was overruled by an amendment to § 1981 in the Civil Rights

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Act of 1991. Under that amendment the former § 1981 became § 1981(a), and

subsections (b) and (c) were added. The new subsections state:

(b) “Make and enforce contracts” defined. For purposes of this
section, the term “make and enforce contracts” includes the making,
performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship.

(c) Protection against impairment. The rights protected by this
section are protected against impairment by nongovernmental
discrimination and impairment under color of State law.

The Ninth Circuit in Federation of African American Contractors v. City of

Oakland, 96 F.3d 1204 (9th Cir. 1996), held that the amendment overruled Jett.

While conceding that the express language of subsection (c) “does not, in so many

words, authorize a private cause of action against municipalities,” it found such a

cause of action “implicit in the new § 1981(c).” Id. at 1210. Looking to the

legislative history of the 1991 Act, it referred to two House Committee reports: A

report by the House Education and Labor Committee said that subsection (c)

“confirms section 1981's coverage of both public and private sector employment.

See Runyon v. McCrary, 427 U.S. 160 (1976).” H.R. Rep. No. 102-40(I) at 92

(1991), reprinted in 1991 U.S.C.C.A.N. 549, 630. And a report by the House

Committee on the Judiciary said: “[Subsection (c)] is intended to codify Runyon

v. McCrary. In Runyon, the court held that Section 1981 prohibited intentional

racial discrimination in private, as well as public, contracting. The Committee

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intends to prohibit racial discrimination in all contracts, both public and private.”

H.R. Rep. No. 102-40(II) at 37 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 731.

The court concluded that implying a private right of action against municipalities

under § 1981 “advances Congress’s general purpose of remedying civil rights

violations and its particular purpose in enacting § 1981(c): ensuring that the

well-established rights contained in the statute are guaranteed against both private

parties and state actors.” Id. at 1214. Also persuasive to the court was that there

is “no alternative enforcement mechanism in the revised 42 U.S.C. § 1981” and

that allowing plaintiffs to bring a cause of action against municipalities to enforce

§ 1981 rights using § 1981 instead of § 1983 “imposes no substantive change on

federal civil rights law.” Id. The court stated: “We infer from § 1981(c)’s

identical treatment of private entities and governmental entities that § 1981(c)

permits both an implied cause of action against private defendants and an implied

cause of action against government defendants.” Id. at 1213. (The court also

ruled, however, that § 1981 did not permit respondeat superior liability for state

actors. Id. at 1214-15.)

The Eleventh Circuit disagreed in Butts v. County of Volusia, 222 F.3d 891

(11th Cir. 2000). The court reviewed the holding of Jett and the legislative

history of the 1991 Act, finding “[n]othing in the 1991 amendment to § 1981

[that] evinces Congress’ desire to alter the Supreme Court’s conclusion in Jett.”

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Id. at 894. Although “[t]he express language of subsection (c) states that § 1981

protects against racial discrimination by private and state actors,” 1981(c) still did

not provide for a private right of action. Id. (emphasis added). The court

emphasized that Congress “did [not] even mention the Supreme Court’s opinion

in Jett,” id., and stated that “Congress added subsection (c) to codify the Supreme

Court’s decision in Runyon.” Id.

The Fifth Circuit has agreed with this reasoning. See Oden v. Oktibbeha

County, 246 F.3d 458, 463-64 (5th Cir. 2001) (no need to imply cause of action

against state actors under § 1981 when the 1991 Act did not provide one and one

already exists under § 1983); see also Dennis v. County of Fairfax, 55 F.3d 151,

156 (4th Cir. 1995) (in suit against state actor, § 1983 is exclusive federal remedy

for violations of § 1981).

We also agree with Butts. Congress does not overrule recent Supreme

Court precedent so subtly. The amendments to § 1981 do not expressly provide a

private cause of action, as one would expect if Congress intended to set aside Jett.

The language of subsection (c) reaffirms the Supreme Court’s holding in Runyon;

it hardly confronts the holding in Jett. And only one who never relies on

committee reports would fail to be impressed by the total absence in the

committee reports of any mention of Jett and the language in both that the

subsection was intended to codify Runyon. We therefore conclude that even after

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the 1991 amendments to § 1981, damages claims against state actors for § 1981

violations must be brought under § 1983.

We now apply Jett to this case. Mr. Bolden contends that he brought his

§ 1981 claims against the City under § 1983. His contention is far from frivolous.

In his Second Amended Complaint his claim under § 1983 (Count 3) incorporates

by reference all his preceding allegations, which include those in his § 1981 claim

(Count 1). A complication arises in that his § 1981 claim concerning the

janitorial contract first appears in the pretrial order, in which no mention is made

that the § 1981 claim is being brought under § 1983. But one could infer that, as

in his complaint, the § 1983 claim incorporates his § 1981 claim; and, indeed,

Mr. Bolden argued to the district court that his § 1981 claim had been

incorporated into his § 1983 claim. The City disputed the argument, and the

district court did not specifically address it.

In any event, even if Mr. Bolden had not been sufficiently clear about

bringing the § 1981 claim under § 1983, the district court should have permitted

him to amend his complaint to do so. See Sims v. Unified Government of

Wyandotte County, 120 F. Supp.2d 938, 953 (D. Kan. 2000) (ruling that Jett

remains good law, but granting leave to amend complaint “to clarify that

[plaintiff] is pursuing her 42 U.S.C. § 1981 claims, to the extent that they allege

municipal liability, solely through the remedies provided by 42 U.S.C. § 1983.”);

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Stewart v. Bd. of Commr’s for Shawnee County, 216 F.R.D. 662, 663-667 (D.

Kan. 2003) (same). “[L]eave [to amend] shall be freely given when justice so

requires,” see Fed. R. Civ. P. 15(a), and we see absolutely no unfair prejudice to

the City, or any other reason not to allow Mr. Bolden to amend his complaint.

Of course, if Mr. Bolden’s § 1981 claim against the City rested solely on an

allegation of respondeat superior, then it would fail even if pleaded properly

under § 1983. See Jett, 491 U.S. at 736. But Mr. Bolden contends on appeal that

his § 1981 claim does not present a respondeat superior allegation and rests on

grounds permitted under Monell. See Monell, 436 U.S. at 694. His contention is

at least colorable and has not been addressed by the district court. We therefore

remand to that court for further proceedings on the § 1981 claim.

B. Rooker-Feldman and Claim Preclusion

The district court dismissed under the Rooker-Feldman doctrine

Mr. Bolden’s claims relating to the destruction of the structures on his properties

and the City’s denial of rehabilitation loans. We disagree with the district court.

Mr. Bolden’s federal suit did not seek to overturn the state-court judgment.

Indeed, the allegations underlying his federal-court claims are identical to what

they would have been had there been no state-court proceeding; none of his

claims rests on allegations that the state-court proceedings or judgment violated

federal law, or that the judgment itself inflicted an injury. We do agree, however,

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with the district court’s observation that “general confusion” surrounds the

Rooker-Feldman doctrine and that many, including the City, fail to distinguish it

properly from res judicata doctrine. Aplt. App. at 874. In perhaps a vain attempt

to clarify the doctrine, we will discuss it at length. But first we summarize the

district court’s ruling and the arguments of the parties.

The district court correctly said that Rooker-Feldman “prevents a party

from seeking what in substance would be appellate review of [a] state judgment in

a United State district court, based on the . . . claim [that it] violates the loser’s

federal rights.” Aplt. App. at 874. It then relied on a precedent of our court to

state that the essential inquiry is whether

“the injury alleged by the federal plaintiff resulted from the state
court judgment itself or is distinct from that judgment. . . . In other
words, we approach the question by asking whether the state-court
judgment caused, actually and proximately, the injury for which the
federal-court plaintiff seeks redress.” . . . If the requested relief
amounts to a challenge to the state court decision, or is inextricably
intertwined with the state court judgment, the Court does not have
jurisdiction.

Id. at 879 (quoting Kenman Eng’g v. City of Union, 314 F.3d 468, 476 (10th Cir.

2002)).

Turning to the case at hand, it found a number of claims to be barred by the

doctrine. As to the claim in Count I that the City had violated the prohibition

against racial discrimination in 42 U.S.C. § 1981 by denying Mr. Bolden

rehabilitation loans, the district court recognized that the state court “did not hear

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or decide this issue [but] found that [Mr. Bolden] had not complied with the

requirements of [HND] for participation in relevant funding.” Id. at 880. It also

observed that Mr. Bolden had made “no effort to distinguish the subject matter of

his Section 1981 claim from the subject matter of his funding claim in state

court.” Id. Because “[Mr. Bolden’s] federal claim c[ould] succeed only to the

extent that the state court wrongly decided that [he] did not qualify for funding,”

id. at 881, the district court decided that the state- and federal-court claims were

either identical or inextricably intertwined, so Rooker-Feldman barred the federal

claim.

For a similar reason the court dismissed the claim in Count II that the City

had violated the provision against racial discrimination in 42 U.S.C. § 1982 by

wrongfully demolishing the structures on his property; the Count III § 1983

claims that the City (1) had increased housing code standards to unreasonable

levels and (2) had discriminatorily enforced those standards against Mr. Bolden;

the Count IV § 1985 claim that the City had deprived him of the use and

enjoyment of his property; and the Count V claims that the City had violated the

FHA by denying him loans and demolishing his property.

Mr. Bolden contends that the district court improperly dismissed under the

Rooker-Feldman doctrine his claims arising out of the destruction of his property

and denial of the rehabilitation loan. He argues that “[t]he claims . . . [he] raised

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in federal court were independent of the denial of injunctive relief he sought in

state court and he neither sought to reverse the state court judgment or raised any

grievance over the [state] Court’s denial of injunctive relief.” Aplt. Br. at 28.

The City responds, using language more appropriate for analysis under res

judicata than under Rooker-Feldman, that each of the federal claims at issue “was

either raised or could have been raised by [Mr. Bolden] in the state court actions,”

Aplee. Br. at 16, and that he “was obligated to set forth any and all grounds to

challenge the legality of [the administrative orders] in the state court actions,” id.

at 18.

We agree with Mr. Bolden. The Rooker-Feldman doctrine prohibits federal

suits that amount to appeals of state-court judgments. When the state-court

judgment is not itself at issue, the doctrine does not prohibit federal suits

regarding the same subject matter, or even the same claims, as those presented in

the state-court action. The doctrine that governs litigation of the same subject

matter or the same issues is res judicata—specifically, claim preclusion and issue

preclusion. Confusion on this matter is unsurprising, because whenever Rooker-

Feldman bars a federal suit, the state suit must have concerned the same subject

matter as the federal suit (after all, the federal suit is challenging the state

judgment), a precondition for invocation of preclusion doctrine. But the

distinction between Rooker-Feldman and res judicata must be preserved. We

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proceed to provide our understanding of the Rooker-Feldman doctrine and how it

applies to this case.

The Rooker-Feldman doctrine has its origin in Rooker v. Fidelity Trust Co.,

253 U.S. 413 (1923). Dora Rooker and others had suffered an adverse judgment

in state court and had lost an appeal to the state supreme court. They then sought

relief in federal district court, claiming that the judgment was void because it

gave effect to a state statute that conflicted with several provisions of the federal

constitution. The Supreme Court affirmed the district court’s dismissal for lack

of jurisdiction. The Court wrote: “Under the legislation of Congress, no court of

the United States other than this court could entertain a proceeding to reverse or

modify the judgment for errors of that character. To do so would be an exercise

of appellate jurisdiction. The jurisdiction possessed by the District Courts is

strictly original.” Id. at 416 (internal citation omitted). In other words, the relief

sought by the plaintiffs in federal district court—voiding a state-court

judgment—was the exclusive province of the United States Supreme Court in the

exercise of its appellate jurisdiction. For a district court to void a state-court

judgment would be a usurpation of the authority of the Supreme Court.

The next case to address the doctrine was District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462 (1983). The plaintiffs in that case petitioned

the District of Columbia Court of Appeals (the equivalent of a state’s highest

-22-
court, see 28 U.S.C. § 1257(b) (treating District of Columbia Court of Appeals as

a “highest court of a State” for purposes of Supreme Court certiorari review)) to

waive a court rule requiring applicants to the District of Columbia bar to have

graduated from an accredited law school. See id. at 466, 471. After the court

denied their request for a waiver, plaintiffs filed suit in the United States District

Court for the District of Columbia, challenging the D.C. court’s refusal to admit

them to the bar or let them at least take the bar examination. See id. at 468-70,

472-73. The district court dismissed the suits for lack of jurisdiction, the United

States Court of Appeals for the District of Columbia Circuit reversed in part, and

the United States Supreme Court granted certiorari.

The Supreme Court began by noting that Rooker precluded the district court

from reviewing a final judicial determination of the D.C. court. “Review of such

determinations can be obtained only in this Court. See 28 U.S.C. § 1257

[(establishing review by Supreme Court of final judgments of highest court of a

state)].” Id. at 476. Thus, its initial inquiry was whether the proceedings in the

D.C. court had been “judicial in nature.” Id. The Court concluded that the

proceedings had been both judicial and legislative in nature. In deciding against

the petitions for waiver of the rule, the D.C. court had acted judicially, so that

judgment could not be reviewed by the federal district court. See id. at 479-82.

But in promulgating the rule itself, the Court held, the D.C. court had acted

-23-
legislatively and the rule therefore could be challenged in federal district court.

See id. at 482-86. The Court then proceeded to examine to what extent the

plaintiffs’ claims constituted a request for review of the D.C. court judgment. It

held that the allegations challenging the D.C. court’s denials of waiver “are

inextricably intertwined with the [D.C. court’s] decisions, in judicial proceedings,

to deny the [plaintiffs’] petitions [for waiver]. The District Court, therefore, does

not have jurisdiction over these elements of the [plaintiffs’] complaints.” Id. at

486-87. The district court did, however, have jurisdiction to hear the attack on

the constitutionality of the rule requiring graduation from an accredited law

school. Id.

Much of the confusion regarding the Rooker-Feldman doctrine has arisen

from Feldman’s use of the term inextricably intertwined. The term appears twice

in that opinion. The first appearance is in footnote 16, where the Court addresses

the argument that a federal district court could hear a case that amounted to a

challenge to a state-court judgment if the federal ground for the challenge had not

been raised or addressed in the state-court proceedings. The argument rested on

the observation that the Supreme Court could not review the state-court judgment

on that federal ground because it had not been preserved below. The attraction of

the argument is that the state-court loser is not totally deprived of a federal-court

federal-law challenge to the state-court judgment. But a necessary premise of the

-24-
argument is that the federal district court is not engaged in Rooker-barred

appellate review because it is not actually reviewing an issue decided by the state

court (which was never presented with the issue). The Court rejected the premise,

saying, “If the constitutional claims presented to a United States district court are

inextricably intertwined with the state court’s [ruling] in a judicial proceeding . .

. , then the district court is in essence being called upon to review the state-court

decisions. This the district court may not do.” Id. at 482 n.16. In other words, if

favorable resolution of a claim would upset a judgment, the claim is Rooker-

barred if it is “inextricably intertwined” with the judgment, even if the underlying

issue was not raised or addressed in the state court that handed down the

judgment.

Feldman’s other use of the term was in deciding which issues were barred

and which could be pursued in federal district court. As previously noted, the

Court ruled that the plaintiffs were barred from challenging the D.C. court’s

rejection of their waiver request, but they could pursue their challenge to the rule

requiring graduation from an accredited law school. The Court wrote:

[I]t is clear that [plaintiffs’] allegations that the District of Columbia
Court of Appeals acted arbitrarily and capriciously in denying their
petitions for waiver and that the court acted unreasonably and
discriminatorily in denying their petitions in view of its former
policy of granting waivers to graduates of unaccredited law schools
required the District Court to review a final judicial decision of the
highest court of a jurisdiction in a particular case. These allegations
are inextricably intertwined with the District of Columbia Court of

-25-
 Appeals’ decisions, in judicial proceedings, to deny the [plaintiffs’]
petitions. The District Court, therefore, does not have jurisdiction
over these elements of the [plaintiffs’] complaints.

Id. at 486-87 (footnote omitted and emphasis added). Thus, all of the plaintiffs’

claims challenging the denial of waiver (apparently even if not raised in their

petitions for waiver) were “inextricably intertwined” with the D.C. court’s

decision and therefore barred. As for the challenge to the rule, the Court wrote:

The remaining allegations in the complaints, however, involve a
general attack on the constitutionality of Rule 46I(b)(3). The
[plaintiffs’] claims that the rule is unconstitutional because it creates
an irrebuttable presumption that only graduates of accredited law
schools are fit to practice law, discriminates against those who have
obtained equivalent legal training by other means, and impermissibly
delegates the District of Columbia Court of Appeals’ power to
regulate the bar to the American Bar Association, do not require
review of a judicial decision in a particular case. The District Court,
therefore, has subject-matter jurisdiction over these elements of the
[plaintiffs’] complaints.

Id. at 487 (footnote omitted).

As we understand the Court’s application of inextricably intertwined, the

term is not being used to expand the scope of the Rooker bar beyond challenges to

state-court judgments. Rather, the purpose of the term is to highlight that a

challenge to a judgment is barred even if the claim forming the basis of the

challenge was not raised in the state proceedings. Such a claim, despite not being

specifically resolved by the judgment, is, for Rooker purposes, “inextricably

intertwined” with the judgment. As stated by the Second Circuit in Hoblock v.

-26-
Albany County Board of Elections, 422 F.3d 77 (2d Cir. 2005), “[T]he phrase

‘inextricably intertwined’ has no independent content,” id. at 87, but merely

“states a conclusion,” id. at 86. “Rooker-Feldman bars a federal claim, whether

or not raised in state court, that asserts injury based on a state judgment and seeks

review and reversal of that judgment; such a claim is ‘inextricably intertwined’

with the state judgment.” Id. at 86-87. Thus, it was unnecessary for the Feldman

court to discuss whether the challenge to the accredited-law-school rule was

inextricably intertwined with the D.C. court’s judgments denying waiver, because

the challenge to the rule itself was not a challenge to the judgment (even though

overturning the rule would undermine the D.C. court’s waiver ruling by mooting

the denial of the waiver, since a waiver would no longer be necessary).

Although holding that Rooker did not forbid the plaintiffs from maintaining

claims that the rule itself was unconstitutional, the Court left it to the district

court on remand to decide whether the doctrine of res judicata precluded those

claims. See id. This brings us to the third, and very recent, Supreme Court

opinion on the Rooker-Feldman doctrine, which expanded on the relationship

between the doctrine and res judicata.

ExxonMobil Corp. v. Saudi Basic Industries Corp., 125 S. Ct. 1517 (2005),

involved a dispute over royalties between plaintiff Saudi Basic Industries Corp.

(SABIC) and defendants, two subsidiaries of ExxonMobil (ExxonMobil). See id.

-27-
at 1524-25. SABIC sued ExxonMobil in Delaware state court, and ExxonMobil

responded by countersuing in the United States District Court for the District of

New Jersey. SABIC moved to dismiss the federal-court action on the ground of

sovereign immunity. See id. at 1525. The district court denied the motion to

dismiss, and SABIC filed an interlocutory appeal. While the appeal was pending,

the state-court trial resulted in a verdict for ExxonMobil. See id. The Third

Circuit sua sponte questioned whether Rooker-Feldman barred the federal court

from exercising jurisdiction after the state court had entered judgment on the jury

verdict. See id. ExxonMobil argued that the doctrine did not apply because it had

filed its federal complaint before the state-court judgment had been entered. The

Third Circuit rejected this argument, saying that the “only relevant consideration”

was “whether the state court judgment precedes a federal judgment on the same

claims.” Id. (internal quotation marks omitted). “Once ExxonMobil’s claims had

been litigated to a judgment in state court, the Court of Appeals held, Rooker-

Feldman precluded the federal district court from proceeding.” Id. at 1526

(internal quotation marks and brackets omitted). ExxonMobil had, in fact, won in

state court, but if it were to lose in the state appeal, the Third Circuit held, it

would then be using the federal action to “invalidate” the state-court

judgment—the “very situation . . . contemplated by Rooker-Feldman’s

inextricably intertwined bar.” Id. (internal quotation marks omitted).

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 The Supreme Court reversed. It began its analysis by noting that lower

courts had extended the Rooker-Feldman doctrine “far beyond the contours of the

Rooker and Feldman cases,” id. at 1521, and that the doctrine applied only in

“limited circumstances,” id. at 1526. In both Rooker and Feldman “the losing

party in state court filed suit in federal court after the state proceedings ended,

complaining of an injury caused by the state-court judgment and seeking review

and rejection of that judgment. Plaintiffs in both cases . . . called upon the

District Court to overturn an injurious state-court judgment.” Id. In this case,

however, there was “parallel state and federal litigation.” Id. The Court held that

in such a situation “the pendency of an action in the state court is no bar to

proceedings concerning the same matter in the Federal court having jurisdiction.”

Id. at 1526-27 (internal quotation marks omitted). “[N]either Rooker nor

Feldman supports the notion that properly invoked concurrent jurisdiction

vanishes if a state court reaches judgment on the same or related question while

the case remains sub judice in a federal court.” Id. at 1527. If judgment is

entered in the state-court action, “a federal court may be bound to recognize the

claim- and issue-preclusive effects” of the judgment, “but federal jurisdiction . . .

does not terminate automatically.” Id. The case therefore was “surely . . . not the

paradigm situation in which Rooker-Feldman precludes a federal court from

proceeding. ExxonMobil plainly has not repaired to federal court to undo the

-29-
Delaware judgment in its favor.” Id. (internal citation and quotation marks

omitted).

In sum, the Rooker-Feldman doctrine “is confined to cases of the kind from

which the doctrine acquired its name: cases brought by state-court losers

complaining of injuries caused by state-court judgments rendered before the

district court proceedings commenced and inviting district court review and

rejection of those judgments.” Id. at 1521-22. The doctrine “does not otherwise

override or supplant preclusion doctrine.” Id. at 1522. In particular, the statute

granting the Supreme Court appellate jurisdiction over state-court judgments,

28 U.S.C. § 1257, does not “stop a district court from exercising subject-matter

jurisdiction simply because a party attempts to litigate in federal court a matter

previously litigated in state court. If a federal plaintiff presents some independent

claim, albeit one that denies a legal conclusion that a state court has reached in a

case to which he was a party, then there is jurisdiction and state law determines

whether the defendant prevails under principles of preclusion.” Id. at 1527

(emphasis added; internal quotation marks, brackets, and ellipses omitted). This

last statement undermines the district court’s ruling in this case that Rooker-

Feldman barred certain of Mr. Bolden’s claims because they “could succeed only

to the extent that the state court wrongly decided that [he] did not qualify for

funding.” Aplt. App. at 881. Appellate review—the type of judicial action barred

-30-
by Rooker-Feldman—consists of a review of the proceedings already conducted

by the “lower” tribunal to determine whether it reached its result in accordance

with law. When, in contrast, the second court tries a matter anew and reaches a

conclusion contrary to a judgment by the first court, without concerning itself

with the bona fides of the prior judgment (which may or may not have been a

lawful judgment under the evidence and argument presented to the first court), it

is not conducting appellate review, regardless of whether compliance with the

second judgment would make it impossible to comply with the first judgment. In

this latter situation the conflict between the two judgments is to be resolved under

preclusion doctrine, not Rooker-Feldman.

There is, however, a potentially confusing gloss on the Rooker-Feldman

doctrine. The gloss appears in an invocation of Rooker-Feldman in ASARCO, Inc.

v. Kadish, 490 U.S. 605, 622-23 (1989). ExxonMobil addresses ASARCO in the

following footnote:

Respondent Saudi Basic Industries Corp. urges that
ASARCO Inc. v. Kadish, 490 U.S. 605 (1989), expanded
Rooker-Feldman’s jurisdictional bar to include federal
actions that simply raise claims previously litigated in
state court. Brief for Respondent 20-22. This is not so.
In ASARCO, the petitioners (defendants below in the
state-court action) sought review in this Court of the
Arizona Supreme Court’s invalidation of a state statute
governing mineral leases on state lands. 490 U.S., at
610. This Court dismissed the suggestion of the United
States that the petitioners should have pursued their
claim as a new action in federal district court. Such an

-31-
 action, we said, ‘in essence, would be an attempt to
obtain direct review of the Arizona Supreme Court’s
decision in the lower federal courts’ in contravention of
28 U.S.C. § 1257, 490 U.S., at 622-623. The injury of
which the petitioners (the losing parties in state court)
could have complained in the hypothetical federal suit
would have been caused by the state court’s invalidation
of their mineral leases, and the relief they would have
sought would have been to undo the state court’s
invalidation of the statute. The hypothetical suit in
ASARCO, therefore, shares the characteristics of the
suits in Rooker and Feldman, i.e., loser in state court
invites federal district court to overturn state-court
judgments.

ExxonMobil, 125 S. Ct. at 1524 n.2. At first blush, this language may seem hard

to reconcile with the general proposition that Rooker-Feldman does not bar a

federal-court suit raising a claim previously decided by a state court unless the

federal suit actually seeks to overturn, as opposed to simply contradict, the state-

court judgment. One would think that the doctrine barring the federal-court claim

in ASARCO would be res judicata, not Rooker-Feldman.

A close examination of ASARCO, however, reveals what was at stake in

that case. Some taxpayers and a teachers association had sued in state court to

obtain a declaration that a state statute governing mineral leases on state land

violated the New Mexico-Arizona Enabling Act. The Arizona Supreme Court

agreed that the statute was invalid, and some mineral lessees filed a petition for

certiorari in the United States Supreme Court. One issue before the Court was

standing. The United States, as amicus curiae, argued that the case should be

-32-
dismissed because the original state-court plaintiffs would not have had standing

to raise the same claims in federal court. The Court agreed that the plaintiffs

would not have had standing, 490 U.S. at 612-17, but it ruled that the case was

properly before the Court because the “parties first invoking the authority of the

federal courts,” the mineral lessees who petitioned for certiorari, had standing and

presented “an actual case or controversy.” Id. at 624.

Rooker-Feldman arose in the discussion of this issue as the Court addressed

the United States’ suggestion that it should “dismiss the case and leave the

judgment below undisturbed,” id. at 621, and that “the proper course for [the

lessees] is to sue in federal court to readjudicate the very same issues that were

determined in the state-court proceedings below,” id. at 622. The Court rejected

the suggestion. First, it noted its precedents suggesting that the Arizona Supreme

Court decision on the federal-law issue might not have preclusive effect if that

decision “were not subject to federal review.” Id. (“The predominant interest

promoted by this apparent exception to normal preclusion doctrine is to assure

that the binding application of federal law is uniform and ultimately subject to

control by this Court.”). As a result, dismissal by the Supreme Court “would

creat[e] a peculiar anomaly in the normal channels of appellate review.” Id. at

622. A suit in federal district court to litigate the issue already decided by the

Arizona Supreme Court “in essence would be an attempt to obtain direct review

-33-
of the Arizona Supreme Court’s decision in the lower federal courts, and would

represent a partial inroad on Rooker-Feldman’s construction of 28 U.S.C.

§ 1257.” Id. at 622-23. Accordingly, dismissal by the Supreme Court “would be

inappropriate.” Id. at 623.

Thus, ASARCO was not a simple case of a federal-court suit for declaratory

judgment following a state-court declaratory judgment on the same claim. The

issue was which court—the Supreme Court or the federal district court—was the

proper forum for the mineral lessees to pursue their challenge to the Arizona

Supreme Court decision, when neither forum would be fettered by preclusion

doctrine (so the federal district court would be acting in essentially the capacity

of an appellate court). Rooker-Feldman, which held that § 1257 gives the

Supreme Court exclusive jurisdiction to review state-court judgments, argued for

Supreme Court review. The ASARCO gloss on Rooker-Feldman therefore has

very limited, if any, sway. Indeed, now that ASARCO has been handed down, it is

clear that the Supreme Court need not dismiss a petition from someone in the

position of the lessees in ASARCO, so no “apparent exception to normal

preclusion doctrine,” id. at 622, could be invoked. Consequently, if parties like

the lessees were now to bring a declaratory-judgment action in federal court after

losing in the Arizona Supreme Court, they would almost certainly be barred by res

-34-
judicata, and the resulting constraint on the federal district court would render its

authority very different from that of an appellate court.

Guided by ExxonMobil, we hold that Rooker-Feldman does not apply here.

Mr. Bolden filed suit in federal district court claiming numerous civil-rights

violations by the City and the individual defendants arising from the destruction

of his buildings. He did not ask the district court to overturn the state-court

judgment. Indeed, all the state-court judgment did was permit the City to

demolish Mr. Bolden’s buildings—it did not require their demolition. He can be

content to let stand the state court’s denial of his request for injunctive relief.

Rooker-Feldman does not bar federal-court claims that would be identical

even had there been no state-court judgment; that is, claims that do not rest on

any allegation concerning the state-court proceedings or judgment. A suit on such

claims could not be characterized as an “appeal” of the state-court judgment,

which is the core concern of Rooker-Feldman. To illustrate, say a father was

deprived of custody of his child by a state-court judgment. If he files suit in

federal court, seeking to invalidate the state-court judgment on the ground that the

state-court proceedings deprived him of due process or that the judgment was

otherwise contrary to federal law, his suit would be barred by Rooker-Feldman;

the suit usurps the Supreme Court’s exclusive appellate jurisdiction because it

seeks to set aside the judgment based on a review of the prior proceedings. If,

-35-
however, the father simply brought suit in federal court seeking custody of his

child, without raising any complaint about the state-court proceedings, Rooker-

Feldman cannot be invoked; his federal claim would have been the same even in

the absence of the state-court judgment. A myriad of doctrines, including res

judicata, would almost certainly bar the suit. But because he is not seeking to

overturn the state-court judgment, Rooker-Feldman is inapplicable, regardless of

whether a favorable judgment in federal court would be inconsistent with that

judgment and would “den[y] a legal conclusion that [the] state court has reached.”

ExxonMobil, 125 St. Ct. at 1527 (internal quotation marks omitted). Here, the

allegations underlying Mr. Bolden’s federal claim would be identical if there had

been no state-court proceeding. He is not seeking “to undo the [state-court]

judgment.” Id.

To be sure, Mr. Bolden’s federal claims may still be precluded under res

judicata doctrine. But the City, although it argued preclusion below, did not raise

the argument on appeal. We therefore must reverse the district court’s dismissal

of claims under Rooker-Feldman and remand to the district court for further

proceedings.

C. Dismissal of Individual Defendants

-36-
 Mr. Bolden challenges the dismissal of the individual defendants for

untimely service of the complaint. Federal Rule of Civil Procedure 4(m) states in

relevant part:

Time Limit for Service. If service of the summons and complaint is
not made upon a defendant within 120 days after the filing of the
complaint, the court, upon motion or on its own initiative after notice
to the plaintiff, shall dismiss the action without prejudice as to that
defendant or direct that service be effected within a specified time;
provided that if the plaintiff shows good cause for the failure, the
court shall extend the time for service for an appropriate period.

The district court dismissed the claims without prejudice because service was not

effected within 120 days. We review under an abuse-of-discretion standard the

decision to dismiss a defendant for failure of proper service. See Ledbetter v.

City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).

Mr. Bolden had summonses issued for the individual defendants on

November 18, 2003. He then sent summonses via Federal Express to defendants

White and Perry; personally served Rooney and now-former Mayor Felker; and

left summonses for Oyler and McGee at their residences. November 18 was more

than 120 days after each of these defendants had first been named in a complaint.

The original complaint, which named Felker, Oyler, and McGee as defendants,

had been filed on December 20, 2002; and the First Amended Complaint, which

added Perry, Rooney, and White, had been filed on April 29, 2003.

-37-
 The magistrate judge conducted a pretrial conference on November 20,

2003. At the beginning of the conference the judge inquired whether Mr. Bolden

had ever had summonses issued or attempted to serve the individual defendants

until two days before. Bret Landrith, Mr. Bolden’s counsel, admitted that he had

not requested summonses to be issued before November 18 and that he had never

directly contacted any of the six individual defendants, nor had any of the

individual defendants indicated to him that they were going to appear voluntarily

in the case and waive service of process. He also admitted that he had not even

known that he was supposed to serve the individual defendants. His argument

seems to be that he had assumed that when the attorney for the City made an

appearance, the attorney was also representing the individual defendants who

were, after all, City employees.

Mr. Landrith also maintained that the case had been “transferred” from

state court to federal court. Aplt. App. at 1680. The magistrate judge,

questioning whether there had been a “transfer,” asked whether Mr. Landrith had

filed the case in federal court on Mr. Bolden’s behalf. Mr. Landrith answered,

“That is the procedure to transfer an issue here that we took.” Id. at 1682. He

added that he had abandoned the state appeal because he had “encountered

problems” and that he had “made a motion to ask this Court to hold open that case

so we could transfer those other issues here.” Id. at 1683. The magistrate judge

-38-
concluded his questioning of Mr. Landrith on the subject by obtaining his

confirmation that no court had entered a transfer order.

The magistrate judge then asked counsel for the City whether it had ever

been served with process in the case. She answered that it had not but that it had

been “sent a certified copy of the original injunction and just went ahead and

submitted to the personal jurisdiction as far as the City.” Id. at 1684. In response

to another question, she stated that she was not appearing on behalf of the

individual defendants.

The magistrate judge pronounced, “I’m more than a bit concerned, indeed

perhaps to the point of perplexed about this litigation,” id. at 1687, and then

questioned Mr. Landrith pointedly about his experience and education, and

whether his failure to meet his discovery and service obligations was due to his

being overworked, severely ill, or the victim of some sort of natural disaster. The

judge also spoke directly to Mr. Bolden, expressing concern that the

representation he was receiving was inadequate, and suggesting that he consider

representing himself. The judge even hinted that Mr. Bolden might want to

consider filing malpractice charges against Mr. Landrith, stating, “. . .

Mr. Bolden, you ought to be aware of the fact that . . . you would have certain

remedies that you might want to discuss with another lawyer that you could

exercise against Mr. Landrith . . . .” Id. at 1717.

-39-
 The magistrate judge filed a report and recommendation on December 2,

2003, recommending that the individual defendants be dismissed from the case.

The report pointed out that Mr. Bolden had not timely served the individual

defendants, requested an extension of time, or shown good cause for failure to

serve. The judge dismissed Mr. Landrith’s argument that “Kansas statutes impute

knowledge of lawsuits against municipalities to all employees of the

municipality,” because he was “aware of no authority for this proposition.” Id. at

704. He further noted that it had become “apparent” that “Mr. Landrith simply

does not grasp the concept that, although the claims raised in this lawsuit may be

very similar to those raised in state court litigation involving some of the same

parties, this federal action is a wholly separate case. Contrary to Mr. Landrith’s

position, this case was not ‘transferred’ from state court to federal court.” Id. at

707-08 (footnote omitted). The report ended on this note:

In closing, the undersigned wishes to express some words of
caution to both [Mr. Bolden] and Mr. Landrith. This case has been
handled in an extremely haphazard manner. The court is mindful of
and sympathetic to [the fact that] no attorney other than Mr. Landrith
was willing to take [Mr. Bolden’s] case and that [Mr. Bolden] is
therefore thankful for Mr. Landrith’s loyalty. But [Mr. Bolden]
would be prudent to bear in mind that loyalty and competence are
different qualities. Stated more directly, the court is deeply troubled
with Mr. Landrith’s apparent incompetence. The pleadings he has
filed . . . and his non-responsive, rambling, ill-informed legal
arguments during the pretrial conference suggest that he is not
conversant with even the most basic aspects of the Federal Rules of
Civil Procedure. The court doubts that Mr. Landrith has any better
grasp of the substantive law that applies to the case.

-40-
 Based on what transpired at the pretrial conference, [Mr.
Bolden] appears more articulate than Mr. Landrith. [Mr. Bolden]
may be better served by representing himself without any attorney if
indeed Mr. Landrith is the only attorney willing to take the case.

Id. at 710-11.

Mr. Bolden objected to the magistrate judge’s report and recommendation

on December 11, arguing that it was “a written manifestation of the [magistrate

judge’s] continuing bias” and mentioning the judge’s supposed “inexperience or

newness in office.” Id. at 716. Mr. Bolden also argued that he had not served the

individual defendants because the City had intimidated and harassed “housing

related civil rights claims process servers” in the past in connection with other,

unrelated cases. Id. at 731-34. On February 2, 2004, the district court overruled

the objections, adopted the report and recommendation, and dismissed Mr.

Bolden’s claims against the individual defendants, finding that Mr. Bolden had

failed to “timely serve the individual defendants, seek an extension of time for

service, or show good cause for failure to obtain service,” id. at 857, and ruling

that his objections were “without merit,” id. at 858.

On appeal Mr. Bolden does not dispute that he did not request that

summonses be issued or attempt to serve them until November 18, 2003—some

11 months after filing the original complaint (which included defendants Felker,

McGee, and Oyler) and nearly seven months after filing the First Amended

-41-
Complaint (which added Perry, Rooney, and White as defendants). Instead, he

argues that the individual defendants “entered their appearance when the two City

attorneys appeared” and thus waived any service requirement. Aplt. Br. at 40. He

asserts that they appeared voluntarily “in the form of a response motion dated

2/20/2003 that did not object to personal jurisdiction.” Id. at 41. But no citation

to the record is given for such a document; and the only document in the record

dated February 20, 2003, is the “Defendant City of Topeka’s Response to

Plaintiff’s Motion for Extension of Time to Amend Complaint to Include

Damages,” which makes no reference whatsoever to the individual defendants,

mentioning only “Defendant City of Topeka.” Aplt. App. at 34. Mr. Bolden also

repeats his allegation that “similar civil rights plaintiffs had their process servers

harassed, intimidated, even stalked by city officials.” Aplt. Br. at 43. But he

fails to base any argument on that allegation or even cite to any record support for

it. In any event, we have located in the record some affidavits he submitted in

district court to support the allegation, and the support is so weak that it could

hardly justify the failure to attempt service in this case. Accordingly, we reject

these arguments.

Finally, we observe that Mr. Bolden cannot benefit from the fact that the

dismissal of the individual defendants occurred less than 120 days after filing of

the Second Amended Complaint, apparently the pleading he was attempting to

-42-
serve. Although Rule 4(m) might be read to permit service within 120 days of the

most recently filed version of the complaint, we agree with the other authorities

that have addressed the issue and refuse to so read Rule 4(m).

To be sure, the word complaint in the Rule 4(m) requirement that service be

“made upon a defendant within 120 days after the filing of the complaint,” cannot

be restricted to only the original complaint. If it were, then a new party could not

be added in an amended complaint filed more than 120 days after the original

complaint, because the new party could not be served by the 120-day deadline.

See McGuckin v. United States, 918 F.2d 811, 813 (9th Cir. 1990) (such an

interpretation “would restrict the time available for adding defendants to within

120 days after commencement”); City of Merced v. R.A. Fields, 997 F. Supp.

1326, 1337-39 (E.D. Cal. 1998) (similar).

But the 120-day period provided by Rule 4(m) is not restarted by the filing

of an amended complaint except as to those defendants newly added in the

amended complaint. See Carmona v. Ross, 376 F.3d 829 (8th Cir. 2004); 4B

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1137,

at 377 (3d ed. 2002); 1 James Wm. Moore et al., Moore’s Federal Practice § 4.80

(3d ed. 1997). This construction of the rule prevents the plaintiff from repeatedly

filing amended complaints “to extend the time for service indefinitely,” Del

Raine v. Carlson, 826 F.2d 698, 705 (7th Cir. 1987). In particular, if we read

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Rule 4(m) to refer to the most recently filed version of the complaint, regardless

of whether the defendant to be served was newly added, dilatory plaintiffs could

evade the rule’s time deadline by taking advantage of the opportunity under Fed.

R. Civ. P. 15(a) to amend the complaint once as of right before a responsive

pleading is served; a plaintiff who had never bothered to serve any defendant

could avoid altogether the original 120-day deadline simply by filing an amended

complaint when it felt like effecting service. Accordingly, we read “service . . .

upon a defendant within 120 days after the filing of the complaint,” Rule 4(m), to

refer to filing of the first version of the complaint naming the particular defendant

to be served.

D. Discovery Extension

Mr. Bolden contends that the district court erred in failing to grant him an

extension of time for discovery. We review such a decision under an abuse-of-

discretion standard. See Soc’y of Loyds v. Reinhart, 402 F.3d 982, 1001 (10th

Cir. 2005). The magistrate judge entered a scheduling order on June 30, 2003,

providing that “all discovery shall be commenced or served in time to be

completed by October 31, 2003.” Aplt. App. at 320 (emphasis added). The City

sent Mr. Bolden its first set of interrogatories and requests for production of

documents on August 4, 2003. When Mr. Bolden failed to respond on time, the

City sent his counsel a letter on October 13, stating that if it did not receive a

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response by October 15, it would file a motion to compel. On October 16 his

counsel sent an e-mail asking the City to resend the requests because his client

had “lost” them. Id. at 634. The City again sent the requests and on October 17

filed a motion to compel. On November 4, 2003, the magistrate judge granted the

motion.

Mr. Bolden served the City with discovery requests on October 30,

2003—one day before the discovery deadline. A week later he sought a 30-day

extension of time to prepare a pretrial order because he had not “prepare[d]

discovery requests until after complying with Defendants’ requests” and had not

received the “documents and interrogatory answers requested of Defendants in

order to adequately prepare a pretrial order.” Id. at 637. On November 13 the

magistrate judge entered an order denying the request. The order noted that the

scheduling order had required all discovery requests “be served in time to be

completed by October 31, 2003,” id. at 654; Mr. Bolden had served his requests

only one day before that deadline; and he had not responded to the City’s

discovery requests until well after his responses were due. The judge found

unimpressive Mr. Bolden’s argument that he needed the City’s discovery

responses to prepare the pretrial order because “due to their untimeliness,

[Mr. Bolden’s] discovery requests are null,” id. at 655. The magistrate judge

determined that Mr. Bolden had failed to “exercise[] even a modicum of

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diligence” regarding discovery and had shown no good cause to extend the

pretrial-order deadline. Id. at 655. The judge further advised that he was

troubled by the rambling, disjointed, and convoluted nature of many
of the pleadings filed on behalf of [Mr. Bolden] in this case . . . .
The court therefore strongly encourages [Mr. Bolden] and his
attorney to get organized immediately and to devote the attention and
efforts necessary to properly prepare for the upcoming pretrial
conference . . . .

Id. at 656.

That same day, Mr. Bolden filed two pleadings relating to discovery. First,

he filed an objection to the magistrate judge’s order, stating that the defendants

were obstructing his ability to conduct discovery “through deliberate acts in

violation of the Fourteenth Amendment,” id. at 658, that defendants were

intimidating potential witnesses, that the magistrate judge had consistently

“deviat[ed] from the Federal Rules of Civil Procedure to negatively influence the

plaintiff’s good faith settlement efforts,” id. at 659, and that the magistrate judge

had been “dismissive” of Mr. Bolden’s claims that defendants were depriving him

of resources, id. The district court overruled the objection one week later, finding

“no competent record evidence to support [Mr. Bolden’s] conclusory

accusations.” Id. at 696.

Mr. Bolden’s second pleading filed on November 13 was a motion to

extend the time for discovery. He claimed that until he received the magistrate

judge’s report he had not known that serving discovery requests on October 30

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violated the discovery deadline. He asserted that he “ha[d] diligently pursued

discovery despite being injured by his opponents and prior rulings of this court,”

id. at 668, and that the magistrate judge had erred in stating that he had not

responded to the City’s discovery requests before being ordered to (he stated that

he had responded on October 24, a week before the order was entered). He also

argued that forbidding further discovery could enable the City to obtain a

summary judgment when he had not had the opportunity to discover information

necessary to oppose it. He contended that good cause for extending the deadline

“ha[d] been shown in the actions of defendants and defense counsel to deprive

[Mr. Bolden] of resources necessary to prosecute his case and to violate state and

federal laws to intimidate [him] as a victim and witness and to intimidate the

witness.” Id.

The following day the magistrate judge denied the request to extend

discovery, noting that Mr. Bolden had filed his request after the deadline had

passed, in violation of D. Kan. Local Rule 6.1, and saying that he was “baffled”

by Mr. Bolden’s statement that he “had no reason to know . . . that an extension

was required.” Id. at 673 (internal quotation marks omitted). The judge decided

that Mr. Bolden had shown neither good cause nor excusable neglect. Mr. Bolden

filed an objection to the magistrate judge’s order on November 26, stating that the

defendants had continued to “deprive [him] of the resources to conduct

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discovery” and tampered with witnesses, and arguing that the scheduling order

and proposed pretrial order “contemplate[d] the continuance of discovery until

just prior to trial.” Id. at 698-99. The district court upheld the order on

December 8:

The Court has reviewed plaintiff’s incomprehensible objections,
along with [the magistrate judge’s] order. . . . Plaintiff cites no
persuasive facts or law in support of his argument that he
demonstrated good cause for an extension of the discovery deadline,
or that some unspecified rule of civil procedure was improperly
construed. The record suggests no reason why this Court should
conclude that [the magistrate judge] abused his discretion, or that his
ruling was clearly erroneous.

Id. at 714.

On appeal Mr. Bolden argues that he “did not have enough time to

complete discovery and even though the magistrate [judge] proposed a lengthy

extension of the summary judgment brief due date which was ordered by the

presiding judge date [sic] and voluntary discovery still continued no extension of

discovery was permitted Mr. Bolden.” Aplt. Br. at 45-46. In support of his

argument that discovery should have been extended because the deadlines for

summary-judgment briefing were extended, he cites Federal Rule of Civil

Procedure 56(f), which provides:

When Affidavits are Unavailable. Should it appear from the
affidavits of a party opposing the motion [for summary judgment]
that the party cannot for reasons stated present by affidavit facts
essential to justify the party's opposition, the court may refuse the
application for judgment or may order a continuance to permit

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 affidavits to be obtained or depositions to be taken or discovery to be
had or may make such other order as is just.

We affirm the district court’s ruling. Rule 56(f) grants discretion to the

court to delay ruling on a motion for summary judgment. It does not compel the

court to grant a continuance to a party that has been dilatory in conducting

discovery. Mr. Bolden has offered no colorable reason why the discovery

deadline should have been extended. The district court did not abuse its

discretion in denying the extension.

E. Evidentiary Rulings

Mr. Bolden claims that during trial the district court “excluded evidence

related to Bolden’s experienced discrimination in housing and his application for

federal funds that exhibited racial animus in city policies. From that information,

a jury could have properly evaluated whether he was retaliated against for his

speech in [state court].” Aplt. Br. at 46. He identifies no particular evidence and

provides no citation to the record regarding any exclusion by the district court.

“A party referring to evidence whose admissibility is in controversy must

cite the pages of the appendix or of the transcript at which the evidence was

identified, offered, and received or rejected.” Fed. R. App. P. 28(e). Mr. Bolden

failed to include in his 1798-page appendix a transcript of the trial. Therefore we

have no basis for evaluating this claim. “Where the record is insufficient to

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permit review we must affirm.” Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000).

F. Bias of Magistrate Judge

Finally, Mr. Bolden claims that he was harmed by bias directed at his

counsel by the magistrate judge, accusing the magistrate judge of ignoring

affidavits he had submitted, apparently as attachments to his brief in opposition to

summary judgment, and of “us[ing] his office to secure the disbarment” of his

counsel, Mr. Landrith, Aplt. Br. at 49. The allegation regarding disbarment

apparently refers to testimony the magistrate judge gave in Mr. Landrith’s January

20, 2005, disbarment proceeding, which occurred after the trial of this case.

Mr. Bolden also mentions a “confidential decision” issued by “the chief judge of

this circuit” on March 23, 2005, that found the magistrate judge to be biased. Id.

at 48. Again, no citation to the record or any other evidence is provided to

support this assertion. In any event, the magistrate judge’s actions in this case do

not indicate disqualifying bias.

“[J]udicial rulings, routine trial administration efforts, and ordinary

admonishments (whether or not legally supportable) to counsel” do not establish

bias unless they “display[] deep-seated and unequivocal antagonism that would

render fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555-56

(1994). “Ordinarily, when a judge's words or actions are motivated by events

originating within the context of judicial proceedings, they are insulated from

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charges of bias. Thus, adverse rulings cannot in themselves form the appropriate

grounds for disqualification.” United States v. Nickl, 427 F.3d 1286, 1298 (10th

Cir. 2005) (internal citation and quotation marks omitted).

Here, the magistrate judge made some very disparaging remarks about

Mr. Bolden’s counsel during the hearing on the pretrial order, which we have

quoted at length earlier in the opinion. What is apparent, however, is not bias but

frustration. The magistrate judge was clearly concerned about Mr. Bolden’s

welfare, because his counsel was ill-serving him. As the district court noted, the

magistrate judge was “express[ing] well-taken concern about the quality of

plaintiff’s representation.” Aplt. App. at 857. Judges must be very cautious

about disparaging counsel; but we have no reason to believe that the magistrate

judge was influenced in his rulings by personal animosity toward Mr. Bolden’s

attorney.

V. Conclusion

We REVERSE the dismissal under Rooker-Feldman of claims against the

City and the dismissal of the § 1981 claim against the City and REMAND for

further proceedings. We AFFIRM the judgment of the district court in all other

respects.

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