FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 8, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ALBERTA R. J. JONES,
Plaintiff - Appellant,
v. No. 18-6035
(D.C. No. 5:17-CV-01287-HE)
DONALD DAVID JONES; GEORGE (W.D. Okla.)
BUTNER; DOUGLAS COMBS; CINDY
FARRELL ASHWOOD; SHANDA L.
ADAMS; RICK DANE MOORE &
ASSOCIATES, PLLC; JAMES
HODGENS; JOHN D. L. CLIFTON;
SCOTT PHILLIP SPRATT; DOES 1
THRU 10,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, KELLY, and PHILLIPS, Circuit Judges.
_________________________________
Alberta Rose Josephine Jones, proceeding pro se, appeals from the district
court’s dismissal for lack of subject-matter jurisdiction and denial of leave to amend
her complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Ms. Jones brought a divorce suit against her husband in Oklahoma state court.
Her frustration with that suit led her to file a federal lawsuit against her husband and
Oklahoma judges and lawyers involved in the state suit (including her own lawyer).
Averring federal subject-matter jurisdiction under 28 U.S.C. §§ 1331 (federal
question jurisdiction) and 1332 (diversity jurisdiction), she challenged certain events
in the divorce proceeding as unconstitutional and stated that the defendants were
involved in a conspiracy to violate her rights. The district court concluded that
Ms. Jones had failed to establish federal subject-matter jurisdiction, denied leave to
amend the complaint, and dismissed the action. It then denied Ms. Jones’s motion
for reconsideration.
We review a dismissal for lack of jurisdiction de novo. Lindstrom v. United
States, 510 F.3d 1191, 1193 (10th Cir. 2007). We review the denial of leave to
amend a complaint for abuse of discretion, except that we employ de novo review
when the ground for denial of amendment is futility. Moya v. Garcia, 895 F.3d 1229,
1239 (10th Cir. 2018). Because Ms. Jones appears pro se, we construe her filings
liberally, but “this court has repeatedly insisted that pro se parties follow the same
rules of procedure that govern other litigants.” Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005) (brackets and internal quotation marks
omitted). “[T]he court cannot take on the responsibility of serving as the litigant’s
attorney in constructing arguments and searching the record.” Id. (internal quotation
marks omitted).
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Federal Question Jurisdiction
Ms. Jones asserts she brought a federal due process claim by challenging the
constitutionality of certain developments in the Oklahoma divorce action. But she
alleges violations of or inadequacy of state law, and such allegations generally fail to
state a federal due-process claim. See Guttman v. Khalsa, 669 F.3d 1101, 1115
(10th Cir. 2012) (“[A]lleged state law deficiencies, even if we accept them as true, do
not signify an unconstitutional denial of process.”); Rector v. City & Cty. of Denver,
348 F.3d 935, 947 (10th Cir. 2003) (stating an allegation that a municipal ordinance
violates state law, “[e]ven if true,” does not automatically “amount to a violation of
federal due process protections”).
Ms. Jones also asserts that she brought a claim under 18 U.S.C. § 242 that the
district court ignored. Section 242 is a criminal statute, however, and as such it does
not create a private civil cause of action. See Robinson v. Overseas Military Sales
Corp., 21 F.3d 502, 511 (2d Cir. 1994); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir.
1989) (per curiam); see also Newcomb v. Ingle, 827 F.2d 675, 677 n.1 (10th Cir.
1987) (per curiam) (holding that there is no private right of action to enforce
18 U.S.C. § 241).
Diversity Jurisdiction
Ms. Jones argues that she established diversity jurisdiction because her
husband is a citizen of California and she is a citizen of Oklahoma. But besides
suing her husband, she also sued Oklahoma citizens. Diversity jurisdiction requires
“complete diversity” – that is, each and every defendant must be a resident of a
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different state than the plaintiff. Grynberg v. Kinder Morgan Energy Ptrs., L.P.,
805 F.3d 901, 905 (10th Cir. 2015). Because Ms. Jones is an Oklahoma citizen and
some defendants are Oklahoma citizens, there is no diversity jurisdiction.
Remaining Issues
Ms. Jones objects that the district court improperly converted defendants’
Fed. R. Civ. P. 11 motion into a motion to dismiss. The Rule 11 motion asserted a
lack of subject-matter jurisdiction, however, which defendants were entitled to do at
any stage of the litigation, see Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006).
The district court did not err in promptly taking up the issue. Under Fed. R. Civ. P.
12(h)(3), “[i]f the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Ms. Jones also states that the district judge is biased, based on his “inaccurate
and prejudicial repeated statements against [her]” in this action and a previous action.
Aplt. Br. at 5. Her assertions, which refer to statements in the district court’s rulings,
are insufficient to establish bias. See Liteky v. United States, 510 U.S. 540, 555
(1994); United States v. Cooley, 1 F.3d 985, 993-94 (10th Cir. 1993).
Finally, Ms. Jones asserts that her “request to file an amended complaint is not
futile as [she] has alleged sufficient facts to state a claim for relief that is facially
plausible.” Aplt. Br. at 13. But nothing in Ms. Jones’s filings indicates that she can
muster sufficient facts to state a plausible claim for relief that would invoke federal
subject-matter jurisdiction. Accordingly, the district court did not err in denying
leave to amend. See Moya, 895 F.3d at 1239.
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The district court’s judgment is affirmed.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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