FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 5, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
CEDRIC GREENE; VALERIE
STEPHEN,
Plaintiffs - Appellants,
No. 19-1447
v. (D.C. No. 1:19-CV-02050-LTB)
(D. Colo.)
ACCESS SERVICES, INC.,
Defendant - Appellee.
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ORDER AND JUDGMENT *
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Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
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This appeal grew out of Mr. Cedric Greene’s unsuccessful state-court
suit. Mr. Greene and his common-law wife, Ms. Valerie Stephen, did not
like the result and moved in federal district court for review of the state
appellate decision. The federal district court “closed” the action because
*
Oral argument would not materially help us to decide this appeal. We
have thus decided the appeal based on the appellate briefs and the record
on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
Mr. Greene was subject to filing restrictions. Mr. Greene and Ms. Stephen
appeal and seek leave to proceed in forma pauperis.
We dismiss Mr. Greene’s appeal and deny his motion for leave to
proceed in forma pauperis. For Ms. Stephen, we remand with instructions
to dismiss the action based on the absence of subject-matter jurisdiction
and grant her application for leave to proceed in forma pauperis.
1. Mr. Greene’s Appeal
Mr. Greene’s present appeal grew out of an earlier appeal involving
an injury to Ms. Stephen. Ms. Stephen sued in state court, but her suit was
dismissed and the dismissal was affirmed in the state appellate court.
Though Mr. Greene was not a party to the state-court suit, he sued in
federal district court to overturn the state-court decisions. The federal
district court dismissed the suit, reasoning that it lacked subject-matter
jurisdiction to overturn state-court decisions.
Undaunted by that ruling, Mr. Greene started over, filing a new suit
in federal district court to overturn the unfavorable decisions in state
court. The federal district court closed his case, and he wants us to
consider that ruling. But we can consider his appellate argument only if
Mr. Greene has satisfied our own filing restrictions. See Greene v. Sprint
Nextel Corp., 750 F. App’x 661, 666-67 (10th Cir. 2018) (imposing filing
restrictions). These restrictions prohibited Mr. Greene from appealing a
case involving issues similar to those arising out of the facts and
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circumstances in a series of earlier appeals, including one (Case No. 17-
4150) that involved the same incident involved here. Id.
Mr. Greene’s new arguments are just like the ones he made in Case
No. 17-4150, so he hasn’t satisfied our filing restrictions. Given his failure
to satisfy our filing restrictions, we dismiss his appeal.
2. Ms. Stephen’s Appeal
But Mr. Greene is not the only appellant. Ms. Stephen has also
appealed the dismissal, and she is not subject to filing restrictions. So she
is free to sue and to appeal. Even so, the federal district court could
consider her argument only if subject-matter jurisdiction existed. It didn’t.
Ms. Stephen sued in federal court to obtain a ruling that the state
courts had erred in its rulings. When an appellant seeks reversal based on
an error in state court, the federal district court lacks jurisdiction under the
Rooker-Feldman doctrine. See Exxon Mobil Corp. v. Saudi Basic Indus.
Corp, 544 U.S. 280, 283-84 (2005) (Rooker-Feldman doctrine is
jurisdictional); Miller v. Deutsche Bank Nat’l Tr. Co. (In re Miller), 666
F.3d 1255, 1261 (10th Cir. 2012) (Rooker-Feldman doctrine applies to
challenges involving the correctness of a state-court judgment).
Because the federal district court lacked jurisdiction, the court
shouldn’t have just “closed” Ms. Stephen’s case. The court should have
dismissed the case without prejudice. Garner v. Gonzales, 167 F. App’x
21, 24 (10th Cir. 2006) (unpublished); Brereton v. Bountiful City Corp.,
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434 F.3d 1213, 1216 (10th Cir. 2006) (noting that dismissal for lack of
jurisdiction must be without prejudice).
3. Motions for Leave to Proceed in Forma Pauperis
Appellants must ordinarily prepay the $505 filing fee. But when they
can’t afford prepayment, they can proceed only by obtaining leave to
proceed in forma pauperis. See 28 U.S.C. § 1915(a). But federal law
prohibits leave to proceed in forma pauperis when the appeal is not taken
in good faith. 28 U.S.C. § 1915(a)(3), see Clark v. Oklahoma, 468 F.3d
711, 714–15 (10th Cir. 2006). Ms. Stephen has appealed in good faith, but
Mr. Greene hasn’t.
Mr. Greene has abused the litigation process, resulting in filing
restrictions in both federal district court and in our court. His prior
litigation experience in these courts should have revealed his inability to
appeal on precisely the same ground brought in a prior federal appeal.
But we don’t question Ms. Stephen’s good faith. She isn’t subject to
filing restrictions, and the district court didn’t address her separate claim
or explain why her case should be closed. The federal district court lacked
subject-matter jurisdiction over her claim, but she is a layperson and could
understandably lack familiarity with the constraints on subject-matter
jurisdiction.
Mr. Greene’s prior federal suit was dismissed for lack of subject-
matter jurisdiction, but Ms. Stephen was not a party to that suit. So we
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have no reason to question Ms. Stephen’s good faith despite the clear
absence of subject-matter jurisdiction in district court. Given Ms.
Stephen’s good faith and inability to prepay the filing fee, we grant her
application for leave to proceed in forma pauperis.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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