FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 4, 2016
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
_________________________________ Clerk of Court
JOSEPH DICESARE,
Plaintiff - Appellant,
v. No. 15-7064
(D.C. No. 6:15-CV-00210-FHS)
MARILYN KAY MCANALLY; (E.D. Okla.)
DELRAIN MCANALLY; B. K.
MCANALLY; CINDY DICESARE;
CLINTON HASTINGS; TERRILL
CROSSON; SCOTT WALTON;
MORGAN POWELL; STAN BROWN;
UNKNOWN CITY POLICE OFFICER
(BLUE BOY); UNKNOWN DEPUTY
(CHAINED DOG); EDDY RICE;
AMANDA HOWELL; ROBERT
SEACAT; ROGERS COUNTY,
OKLAHOMA,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
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Plaintiff Joseph DiCesare filed suit in the United States District Court for the
Eastern District of Oklahoma against numerous defendants, complaining of treatment to
his deceased mother and himself. Among the many acts of misconduct alleged in the
complaint are some that occurred in the state-court probate proceeding that settled his
mother’s estate and in the issuance of a protective order against him to prevent his
contact with his sister except through counsel. After deciding that the complaint was
challenging only the protective order and the probate judgment, the district court
determined that it was barred by the Rooker-Feldman doctrine from exercising
jurisdiction and dismissed the case. See Rooker v. Fid. Trust Co., 263 U.S. 413 (1923);
D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). Plaintiff appeals the dismissal.
We agree with the district court only in part. Under the Rooker-Feldman doctrine
the lower federal courts are barred from reviewing final state-court judgments because
federal appellate jurisdiction over state courts is exclusively the province of the United
States Supreme Court. See Lance v. Dennis, 546 U.S. 459, 463 (2006) (per curiam). But
the Supreme Court has signaled that this jurisdictional bar is a narrow one. See id. at 464
(“Neither Rooker nor Feldman elaborated a rationale for a wide-reaching bar on the
jurisdiction of lower federal courts, and our cases since Feldman have tended to
emphasize the narrowness of the Rooker–Feldman rule.”). It “is confined to 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.” Exxon Mobil Corp. v. Saudi Basic Indus.
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Corp., 544 U.S. 280, 284 (2005). “The essential point is that barred claims are those
complaining of injuries caused by state-court judgments.” Campbell v. City of Spencer,
682 F.3d 1278, 1283 (10th Cir. 2012) (internal quotation marks omitted). “In other
words, an element of the claim must be that the state court wrongfully entered its
judgment.” Id.
Giving Plaintiff’s complaint the liberal construction afforded pro se pleadings, see
Haines v. Kerner, 404 U.S. 519, 520 (1972) (“[A]llegations of the pro se complaint [must
be held] to less stringent standards than formal pleadings drafted by lawyers.”), we
cannot say that all the claims are necessarily barred by Rooker-Feldman. Some of the
alleged misconduct (such as the theft of his mother’s property) predated the state-court
proceedings. And the prayer for relief is so vague that we cannot tell whether Plaintiff
seeks only to set aside the protective order and the probate judgment. We can therefore
affirm the Rooker-Feldman dismissal only insofar as the complaint seeks to set aside the
probate judgment and protective order or to obtain equivalent relief (such as requiring
those who benefited from the judgment to disgorge their gains).
The defendants, however, argued below, as they do on appeal, that to the extent
the district court had jurisdiction, the complaint failed to state a cause of action. We
agree.
Plaintiff’s complaint raises three federal claims. Two (titled “Count II” and
“Count III”) appear to be under 42 U.S.C. § 1985(2). In Count II, Plaintiff alleges that all
the named defendants conspired to obstruct justice (apparently focusing on the
protective-order hearing) through perjury, intimidation and other tactics; and in Count III
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he alleges that the defendants conspired to obstruct justice (apparently focusing on the
probate proceeding) by failing to inform him of the proceeding, denying him the ability
to testify, and submitting false documents and testimony. But there is a missing element.
To state a claim under § 1985, Plaintiff had to allege racial discrimination or the like. See
Jones v. Norton, 809 F.3d 564, 578 (10th Cir. 2015) (“Among other elements, [§ 1985(2)
and (3)] require a showing of some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ action.” (internal quotation marks
omitted)). No such allegation appears in the complaint. Plaintiff has failed to state a
claim under § 1985.
Plaintiff’s remaining claim (titled “Count I”) is brought under 42 U.S.C. § 1983.
He alleges that his family members neglected, stole from, and intentionally inflicted
emotional distress on his mother when caring for her during her final years. And he
alleges that other defendants, including two attorneys, were complicit in this
mistreatment. Again, however, he omits an essential element of his claim. To state a
claim under § 1983, the complaint must allege that defendants acted “under color of state
law.” Polk Cnty. v. Dodson, 454 U.S. 312, 315 (1981) (internal quotation marks
omitted). Plaintiff contends that the two defendant attorneys were acting under color of
state law because Oklahoma law makes attorneys “officers of courts.” Complaint at 3–4;
R. at 13–14. But “a lawyer representing a client is not, by virtue of being an officer of
the court, a state actor ‘under color of state law’ within the meaning of § 1983.” Polk
Cnty., 454 U.S. at 318. And while Plaintiff makes passing reference to the inaction of ten
state agencies as violating his mother’s rights, he does not name the agencies or list them
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as defendants. In the 11 pages of the complaint addressing Count I, the only mention of a
defendant who is a state employee is in paragraphs 16 and 17 under the heading “Count
1: Supporting facts.” Paragraph 16 alleges that defendant Sheriff Scott Walton had been
fired from the Tulsa Police Department for some unspecified misconduct. And paragraph
17 cross-references an earlier paragraph in the complaint alleging that Sheriff Walton had
failed to respond to a letter from Plaintiff’s family complaining about a delay in filing the
death certificate for his mother. But the complaint does not explain how Plaintiff was
injured by Walton’s alleged misconduct. Because there are no other allegations in Count
I of injurious misconduct under color of law, the count fails to state a claim.
The other issues noted in Plaintiff’s opening brief can be disposed of summarily.
First, he argues that there were ex parte discussions between the district court and the
attorneys for the defendants. But he fails to allege any evidence of such communications,
relying only on conclusory statements such as “it just stands to reason,” Aplt. Br. at 7,
and on a minute order granting one defendant additional time. Second, he argues that he
was not given the process due him because the district court issued its order to show
cause why it should not dismiss the complaint for lack of jurisdiction only 11 days after
receiving his voluminous briefing and materials. But the district court’s promptness does
not indicate that it gave short shrift to Plaintiff’s arguments, and its orders show that it
gave the matter close attention. Third, he argues that the district court acted as “an active
advocate for the defense” in issuing the show-cause order. Aplt. Br. at 8. But the district
court had the duty to assure itself of federal jurisdiction before proceeding with the case.
The show-cause order was entirely proper. Fourth, Plaintiff asserts that several
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defendants are in default. But he admits that he never sought a default judgment, so the
matter was not before the district court. Fifth, his contention that the district court erred
in not admonishing the defendants’ attorneys for alleged misconduct is devoid of
specifics. Finally, Plaintiff argues that the district court failed to rule on several of his
motions. But these motions became moot upon dismissal of the case; and because we
affirm that decision, they remain so.
We AFFIRM the district court’s dismissal of Plaintiff’s complaint. To the extent
the dismissal was for lack of jurisdiction, however, it must be a dismissal without
prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006)
(“A longstanding line of cases from this circuit holds that where the district court
dismisses an action for lack of jurisdiction, . . . the dismissal must be without
prejudice.”). We therefore REMAND for correction of the judgment in that respect.
Entered for the Court
Harris L Hartz
Circuit Judge
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