Opinion
Civil Action 22-cv-02922-WJM-STV
07-05-2023
BERNARD KENNETH RIVERS, JR., Plaintiff, v. STATE OF COLORADO; RACHAEL ERICKSON; MARCI HOFFMAN; PHILIP WEISER; ELIZABETH PHILLIPS; MATTHEW HEGARTY; DAVID BELSHEIM; and JUDGE GILBERT M. ROMAN, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants Matthew Hegarty and David Belsheim's Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim for Relief [#6], State Defendants' Motion to Dismiss [#7] (collectively, the “Motions to Dismiss”), and Plaintiff's Forthwith Second Motion for Default Judgment [#27] (the “Motion for Default Judgment”) (collectively, the “Motions”). The Motions have been referred to this Court. [##12; 34] This Court has carefully considered the Motions and related briefing, the case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the following reasons, the Court respectfully RECOMMENDS that the Motions to Dismiss be GRANTED and the Motion for Default Judgment be DENIED.
The facts are drawn from the allegations in Plaintiff's Complaint (the “Complaint”) [#1]. In addition, the Court may take judicial notice of certain “documents and docket materials filed in other courts,” as relevant to this case. Brickert v. Deutsche Bank Nat'l Tr. Co., 380 F.Supp.3d 1127, 1133 n.1 (D. Colo. 2019) (quoting Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1298 n.2 (10th Cir. 2014)).
Plaintiff brings nine claims against various Defendants.[#1 at 5-13] The Court provides the background for each claim in turn.
The Court refers to named Defendants State of Colorado, Rachael Erickson, Marci Hoffman, Philip Weiser, Elizabeth Phillips, and Judge Gilbert M. Roman collectively as the “State Defendants.”
A. Claim One
In Claim One, Plaintiff alleges that he filed a civil rights lawsuit in Colorado state court and demanded and paid for a jury trial. [#1 at 5] Plaintiff alleges that he was “prejudiced when he was denied his right to a jury trial, seeing as the case was dismissed on May 15, 2021.” [Id.] Plaintiff asserts that this dismissal failed to follow “the exact course of the law” and results in the judgment being void. [Id. (emphasis in original)]
B. Claim Two
In Claim Two, Plaintiff alleges that Defendant Marci Hoffman, “the Court Executive for Weld County District Court,” “fabricated evidence by claiming ‘the judges of that court have disqualified themselves'” from Plaintiff's state-court action. [Id. at 6] Plaintiff alleges that this representation was illegal and/or fraudulent because “none of the eleven district court judges entered a sua sponte motion” recusing themselves. [Id.] Plaintiff asserts that Defendant Hoffman's representation therefore constituted “fraud upon the court making all orders VOID.” [Id.]
C. Claim Three
In Claim Three, Plaintiff alleges that Defendant Rachael Erickson, the Clerk of Court for Weld County District Court, “fabricated evidence that she provided ‘all original process and pleadings on file in the trial court, including all motions, judgments, orders of the court, and minute orders.'” [Id. at 7] Plaintiff alleges that “[n]one of the official records mentioned above appear anywhere on the record of the registry of [Plaintiff's] action.” [Id.] Plaintiff also alleges that Defendant Erickson “fabricated evidence about Kenneth Barker's attorney number,” perhaps by not recording it. [#1 at 7] Plaintiff asserts that this action violated a federal statute, the Colorado Rules of Civil Procedure, and the Fourteenth Amendment, and argues that “[a] trial court exceeds its jurisdiction when it acts contrary to statute.” [Id.]
Mr. Barker was a defendant in Plaintiff's underlying state-court case. [See #76-1] A division of the Colorado Court of Appeals, sitting as a motions division, found that Plaintiff had failed to properly serve Mr. Barker. [#76-2 at 2 n.1]
D. Claim Four
In Claim Four, Plaintiff alleges that “Defendant State of Colorado fabricated evidence by enacting a new law [Colo. Rev. Stat. §] 24-51-1105.” [Id.] Plaintiff lists 33 individuals who “are involved in the conspiracy” and who “fabricat[ed] evidence about C.R.S. § 24-51-1105.” [Id. at 7-8] Plaintiff asserts that these individuals “all acted willfully and wantonly to engage in a scheme to backdate a new law to regain an advantage in a pending case and only read a portion of their statutory law to[] again protect themselves.” [Id. at 8] Plaintiff appears to allege that, because of this conspiracy, the trial court lacked jurisdiction to dismiss Plaintiff's case and its judgment is void. [Id.] Plaintiff alleges that this action was taken based on his race and status as a pro se litigant. [Id. at 8-9]
None of these listed individuals are named as defendants. [See #1 at 4-5] The listed individuals include Chief Justice of the Colorado Supreme Court Brian Boatright, and Colorado Court of Appeals judges Sueanna P. Johnson, Anthony J. Navarro, and Craig R. Welling. [Id. at 7-8]
E. Claim Five
In Claim Five, Plaintiff alleges that Defendants Philip Weiser and Elizabeth Phillips “conspired with the State of Colorado to fabricate evidence to gain an advantage in a pending case.” [Id. at 9] Plaintiff alleges that Defendants Weiser and Phillips “fabricate[d] evidence about C.R.S. § 24-51-1105,” apparently by citing to it in a brief. [Id.] Plaintiff alleges that the state-court judges had a duty to report Defendants Weiser and Phillips, and that Defendants Weiser and Phillips had a duty to report the same state-court judges. [Id.] Plaintiff alleges that, because of this “fraud upon the court,” the state court's judgment was void. [Id.] Plaintiff alleges that this action was taken based on his race and status as a pro se litigant. [Id. at 9-10]
F. Claim Six
In Claim Six, Plaintiff alleges that Defendants Belsheim and Hegarty “conspired to file a false document claiming [that Plaintiff] ‘objected to the appointment of Senior Judge Carol Glowinsky given he sued all sitting Weld County District Court judges.'” [Id. at 10] Plaintiff asserts that this characterization constituted “fraud upon the court,” and by filing the document Defendants Belsheim and Hegarty joined and acted in furtherance of the conspiracy alleged in Claim Four. [Id.] Plaintiff alleges that this action was taken based on his race and status as a pro se litigant. [Id.]
G. Claim Seven
In Claim Seven, Plaintiff alleges that Defendant Gilbert M. Roman, Chief Judge of the Colorado Court of Appeals, acted illegally “by not referring the question of jurisdiction to the Colorado Supreme Court when challenged” on two separate occasions. [Id.] Plaintiff alleges further deficiencies with how the Colorado Court of Appeals handled his case, such as entering orders in violation of state law, fabricating evidence, acting without jurisdiction, and “appl[ying] a different criteria for its laws for its state actors than for private citizens.” [Id. at 11] Plaintiff asserts that the Colorado Court of Appeals judges conspired to cover up certain fraudulent proceedings by committing further “fraud upon the court.” [Id.] Plaintiff also alleges that the Colorado Supreme Court acted fraudulently by refusing to hear Plaintiff's case after Plaintiff paid the filing fee. [Id.] Plaintiff alleges that these actions were taken based on his race and status as a pro se litigant. [Id. at 12]
H. Claim Eight
In Claim Eight, Plaintiff alleges that he had difficulty serving Mr. Barker in his statecourt case because Mr. Barker had not updated his address. [Id. at 12] As the Court understands this claim, Plaintiff challenges the state court's finding that Mr. Barker was improperly served, and asserts that the state court was incorrect to “use[] its procedural rules [governing service of process] to defeat [Plaintiff's] federal claims.” [Id. at 13] Plaintiff appears to allege that Defendant Erickson, the Clerk of Court for Weld County District Court, acted illegally by continuing to use Mr. Barker's old address, or perhaps by failing to ensure that Mr. Barker updated his address. [Id. at 12-13] Plaintiff alleges that Defendant Erickson conspired with the State of Colorado in taking these illegal actions. [Id.] Plaintiff alleges that these actions were taken based on his race and status as a pro se litigant. [Id. at 13]
I. Claim Nine
Claim Nine references 42 U.S.C. § 1986, and states that “Plaintiff alleges every person in this lawsuit has harmed him [and] acted [sic] contrary to federal law and the equal protection of the laws under the United States Constitution.” [Id.]
J. Procedural Background
Plaintiff initiated this action on November 9, 2022. [#1] The State Defendants and Defendants Belsheim and Hegarty filed their respective Motions to Dismiss on November 30, 2022. [##6; 7] Plaintiff included arguments related to Defendant Belsheim's and Defendant Hegarty's Motion to Dismiss in a January 2, 2023 filing, which the Court will consider as Plaintiff's response.[See #38] Defendants Belsheim and Hegarty filed a reply. [#43] On May 10, 2023, the Court requested supplemental briefing from all parties addressing the applicability of the Rooker-Feldman doctrine to Plaintiff's claims. [#70] Plaintiff filed his supplemental brief on May 19, 2023. [#73] Defendants filed supplemental briefs on May 31, 2023. [##75; 76] Plaintiff filed an objection to Defendants' supplemental briefs, which the Court construes as a response and accepts as filed. [#77]
Plaintiff does not appear to address the State Defendants' Motion to Dismiss, except through his Motion for Default Judgment and various other filings that appear to argue that the Colorado Attorney General's Office is barred from representing the State of Colorado and its employees. [See, e.g., ##19; 27] The State Defendants did not file a reply in support of their Motion to Dismiss.
Plaintiff filed his Motion for Default Judgment on December 21, 2022. [#27] The State Defendants responded. [#53] Plaintiff filed a document on February 7, 2023 which the Court construes as a reply in support of his Motion for Default Judgment. [#61]
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Cassanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath or conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. ANALYSIS
In their Motions to Dismiss, Defendants assert several grounds for dismissal of the Complaint. [##6; 7] Specifically, the State Defendants argue that: (1) the State of Colorado and the individual State Defendants sued in their official capacity are entitled to Eleventh Amendment immunity [#7 at 5-8]; (2) the judicial and court personnel defendants are entitled to absolute judicial immunity [id. at 8-12]; (3) the State Defendants are entitled to qualified immunity on Plaintiff's individual-capacity claims [id. at 12-13]; and (4) Plaintiff has failed to state a claim against the State Defendants [id. at 13-15]. In their supplemental briefing, the State Defendants argue that the Rooker-Feldman doctrine bars Plaintiff's lawsuit. [#76] Defendants Belsheim and Hegarty argue that Plaintiff has failed to state a claim against them. [#6] Because the Court finds that the Rooker-Feldman doctrine applies to Plaintiff's claims, and because the Rooker-Feldman doctrine is jurisdictional, the Court does not address Defendants' alternative arguments.
A. Rooker-Feldman Doctrine
“The Rooker-Feldman doctrine establishes, as a matter of subject-matter jurisdiction, that only the United States Supreme Court has appellate authority to review a state-court decision.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074-75 (10th Cir. 2004) (footnote omitted). “The Rooker-Feldman doctrine precludes a losing party in state court who complains of injury caused by the state-court judgment from bringing a case seeking review and rejection of that judgment in federal court.” Miller v. Deutsche Bank Nat'l Trust Co. (In re Miller), 666 F.3d 1255, 1261 (10th Cir. 2012). The 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.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
“The Rooker-Feldman doctrine is derived from 28 U.S.C. § 1257(a), [which] provides that only the Supreme Court has jurisdiction to hear appeals from final state court judgments,” Suasnavas v. Stover, 196 Fed.Appx. 647, 652 n.3 (10th Cir. 2006) (internal quotation omitted), and gets its name from two Supreme Court decisions: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
The Tenth Circuit has “concluded that ‘the type of judicial action barred 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.'” PJ ex rel. Jensen v. Wagner (Jensen), 603 F.3d 1182, 1193 (10th Cir. 2010) (quoting Bolden v. City of Topeka, 441 F.3d 1129, 1143 (10th Cir. 2006)). “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.” Id. (quoting Bolden, 441 F.3d at 1145). The Tenth Circuit has applied the Rooker-Feldman doctrine where the relief sought required the federal court to review and reject the state court judgment. See id. (citing Mann v. Boatright, 477 F.3d 1140, 1147 (10th Cir. 2007)). On the other hand, the court has refused to apply the doctrine when the federal suit would not reverse or otherwise undo the state court judgment. See Id. (citing Mo's Express, LLC v. Sopkin, 441 F.3d 1229, 1238 (10th Cir. 2006)).
Because the Rooker-Feldman doctrine “implicates [the Court's] subject matter jurisdiction,” the Court addresses it “before turning to the merits of the case.” Jensen, 603 F.3d at 1193. “The Rooker-Feldman doctrine is properly applied on a claim-by-claim basis, even though it is jurisdictional in nature.” Isaacs v. DBI-ASG Coinvestor Fund, III, LLC (In re Isaacs), 895 F.3d 904, 912 (6th Cir. 2018); see also Flanders v. Lawrence (In re Flanders), 657 Fed.Appx. 808, 814 (10th Cir. 2016) (stating that the court “independently consider[s] each claim against the backdrop of the Rooker-Feldman doctrine”).
Applied here, the Court determines that all of Plaintiff's claims are barred by the Rooker-Feldman doctrine. The Court will discuss each claim individually. See In re Isaacs, 895 F.3d at 912; In re Flanders, 657 Fed.Appx. at 814.
To begin, Claim One and Claim Seven are plainly barred by the Rooker-Feldman doctrine. In Claim One, Plaintiff directly challenges the dismissal of his case by a Colorado district court. [#1 at 5] Plaintiff argues that the district court's dismissal was improper because Plaintiff had demanded and paid for a jury trial. [Id.] Plaintiff appears to assert that the district court's judgment was void because it violated his right to a jury trial. [Id.] Similarly, in Claim Seven, Plaintiff directly challenges various orders entered by the Colorado Court of Appeals, alleging that these orders were illegal and fraudulent. [Id. at 10-12] Plaintiff further challenges the Colorado Supreme Court's decision to refuse to hear Plaintiff's case. [Id. at 10-12] Plaintiff alleges that the Chief Judge of the Colorado Court of Appeals and the Chief Justice of the Colorado Supreme Court conspired to deprive Plaintiff of his constitutional rights, and asserts that the state courts lacked jurisdiction to enter the adverse orders. [Id.] Thus, in both claims Plaintiff asks this Court to “review . . . the proceedings already conducted by the [state] tribunal to determine whether it reached its result in accordance with law.” Jensen, 603 F.3d at 1193 (quotation omitted). This type of review is prohibited by the Rooker-Feldman doctrine. Id.; see also Farris v. Burton, 686 Fed.Appx. 590, 592 (10th Cir. 2017) (applying Rooker-Feldman where the plaintiff's claims would require “a federal court . . . to review the [ ] state court proceedings to determine if the decision . . . was reached as a result of fraud or from a proper assessment of the claims”).
Next, Claim Two and Claim Three allege that various court officials “fabricated evidence” by: (1) stating that the judges of the Weld County District Court had recused themselves from Plaintiff's case; and (2) certifying the electronic record from a Colorado district court to the Colorado Court of Appeals. [#1 at 6-7] In Claim Two, Plaintiff asserts that the alleged fabrication constituted “fraud upon the court” which “mak[es] all orders VOID.” [Id. at 6] Accordingly, Plaintiff seeks “relief per [Colo. R. Civ. P.] 60(b)(2) and (3) and [Fed. R. Civ. P.] 60(b)(4),” which permit courts to provide relief from a final judgment under proper circumstances. [Id.] In Claim Three, Plaintiff contends that the alleged fabrication violated Colorado statutes, and that “[a] trial court exceeds its jurisdiction when it acts contrary to statute.” [Id. at 7] Thus, in both claims, Plaintiff challenges the state court proceedings and seeks review of and relief from his adverse state court judgment through this later-filed federal court case on the grounds that the state court lacked jurisdiction and reached its result on the basis of fraud. This type of claim is barred by the Rooker-Feldman doctrine. See Anderson v. Private Cap. Grp., Inc., 549 Fed.Appx. 715, 717-18 (10th Cir. 2013) (Rooker-Feldman barred plaintiff's claim seeking to have a federal court declare as void a state court summary judgment order); Farris, 686 Fed.Appx. at 592 (applying Rooker-Feldman where the plaintiff's claims would require “a federal court . . . to review the [ ] state court proceedings to determine if the decision . . . was reached as a result of fraud or from a proper assessment of the claims”).
The same analysis applies for Claim Four and Claim Five, which allege that various state actors fabricated evidence in Plaintiff's state court case by enacting a new state law and by citing to that new state law in briefing. [#1 at 7-10] Plaintiff alleges the existence of a vast conspiracy to back-date this new law in order to ensure that certain procedures regarding the assignment of a retired judge to Plaintiff's case could be ignored. [Id. at 78] Plaintiff alleges that the conspiracy included the Chief Justice of the Colorado Supreme Court and the three Colorado Court of Appeals judges who ruled against Plaintiff, implicating the judges who handled Plaintiff's claims in his allegations of corruption and bias. [Id.] Once again, Plaintiff alleges that these actions constituted “fraud upon the court” that “mak[e] all orders VOID” and “entitle[] [Plaintiff] to relief” for the judgment being void. [#1 at 8-9; see also id. at 8 (“[W]hen the trial court entered its order of Dismissal, it lacked jurisdiction.”)] Plaintiff seeks relief from the state court's adverse judgment. [Id. at 8] In order to determine the merits of these claims and grant Plaintiff the relief that he requests, the Court would be required to review the state court proceedings to determine whether the state court's procedure and ultimate adverse judgment towards Plaintiff was the result of fraud and conspiracy or a proper interpretation of Colorado law and assessment of Plaintiff's claims. Cf. Hadzi-Tanovic, 62 F.4th 394, 405 (7th Cir. 2023) (“The problem here is that the only way a federal court could determine the merits of those allegations would be to review the state court's handling of the case from top to bottom, substantively and procedurally. If the state court's decisions appeared to be well-grounded in law and fact and reached through fair procedures, a federal court would presumably conclude they were not rooted in bias or corruption. If the federal court found factual, legal, or procedural errors, the court would have to consider whether the errors were ordinary errors of a fallible human institution or instead the product of corruption.”); id. at 407 (rejecting a Rooker-Feldman exception for claims involving allegations of judicial corruption and bias in the state-court proceedings). Such a review by a federal district court is barred by the Rooker-Feldman doctrine. See id.; see also Farris, 686 Fed.Appx. at 592-93 (rejecting argument that allegations of fraud in the state court action can override the Rooker-Feldman bar); Bradshaw v. Gatterman, 658 Fed.Appx. 359, 362 (10th Cir. 2016) (rejecting the argument that “extrinsic fraud can override Rooker-Feldman,” and explaining that “[t]hough styled as a suit to redress a byzantine conspiracy perpetrated by [the plaintiff's] attorneys and the state court,” a state-court loser's claims were barred by Rooker-Feldman because “[t]he requested relief plainly strikes at the state court's judgment, or, at the very least, are inextricably intertwined with it”).
In Claim Six, Plaintiff alleges that Defendants Belsheim and Hegarty, private attorneys, joined the conspiracy referenced above by making a false argument in a brief. [#1 at 10] According to Plaintiff, this constituted fabricating evidence about the newly enacted statute. [id.] Once again, Plaintiff asserts that this action constituted “fraud upon the court” and served as an act in furtherance of the broad conspiracy. [id.] In his supplemental brief, Plaintiff clarifies that he is seeking relief from the state court judgment on this ground, again asserting that the state court judgment is invalid because of the fraudulent presentation of facts and underlying conspiracy between state actors, private attorneys, and state judges. [#73 at 1-2 (arguing that the state courts have conspired to commit fraud, that Defendants Belsheim and Hegarty had knowledge of the scheme, and that “Plaintiff is entitled to relief per Rule 60(b)(3) for fraud upon the court and Rule 60(b)(4) for acting in a manner inconsistent with due process”)] Thus, this claim once again seeks to use federal court to review the accuracy of arguments made in state-court proceedings to determine whether the state court's grounds for its decision were legitimate or corrupted, and ultimately seeks relief from the resulting adverse state-court judgment on the grounds that it was procured by fraud and conspiracy. Determining the merits of such a claim would require this Court to “review the state court's handling of the case from top to bottom, substantively and procedurally.” Hadzi-Tanovic, 62 F.4th at 408. It is therefore inextricably intertwined with the underlying state-court judgment and barred by the Rooker-Feldman doctrine. See id.; see also Farris, 686 Fed.Appx. at 592-93; Bradshaw, 658 Fed.Appx. at 362.
Defendants Belsheim and Hegarty argue in a supplemental brief that the Rooker-Feldman doctrine does not apply to Plaintiff's claim against them because they were not parties to the underlying case. [#75] The Court notes, however, that this rule generally only prevents the doctrine's application against non-parties to the state-court judgment who bring a subsequent action in federal court. See, e.g., Mo's Express, LLC, 441 F.3d at 1234 (“This Court has repeatedly held that the Rooker-Feldman doctrine should not be applied against non-parties to the state-court judgment.” (citations and quotation omitted)). Indeed, the Tenth Circuit has barred claims, like those brought by Plaintiff here, seeking relief “against a variety of government actors and private individuals for the alleged violations of [the plaintiff's] constitutional rights occasioned by their complicity with the [state] court's orders.” Mann, 477 F.3d at 1147. And the Tenth Circuit has specifically applied the Rooker-Feldman doctrine against a plaintiff in a federal suit who was a party to the state court proceeding even though the defendant in the federal suit was not a party to the underlying state litigation. Farris, 686 Fed.Appx. at 593 (“Finally, Ms. Farris argues that the Rooker-Feldman doctrine should not apply to her claims against Mr. Boone because he was not a party in the state court proceedings. We have held that the Rooker-Feldman doctrine should not be applied against persons or entities that were not parties in the relevant state court action. But the Rooker-Feldman doctrine is not being applied against Mr. Boone, it is being applied against Ms. Farris, who was a party to the state court proceedings. We therefore reject this argument.” (emphasis in original) (internal citation omitted)). The Court thus disagrees with Defendants Belsheim and Hegarty that their lack of involvement in the state court proceedings prohibits the application of the Rooker-Feldman doctrine here.
In Claim Eight, Plaintiff argues that the State of Colorado improperly “used its procedural rules . . . to defeat federal claims.” [#1 at 12-13] Plaintiff appears to allege that Defendant Erickson violated Plaintiff's federal rights by not ensuring that Mr. Barker properly updated his address. [id.] Plaintiff asserts that Defendant Erickson and the State of Colorado conspired to “violate[] [Plaintiff's] Supremacy Clause rights by using a state procedural law [governing service] to bar [Plaintiff's] federal claims.” [id. at 13] As Plaintiff alleges elsewhere, the Colorado Court of Appeals determined that a certain state-court defendant, Kenneth Barker, was never properly served. [id. at 11] Thus, this claim (as the Court understands it) directly challenges the state court's determination that Mr. Barker was never properly served and its application of Colorado procedural rules under the facts of Plaintiff's state-court case and the Colorado Court of Appeals' affirmation of that judgment. [See id. at 12-13] (asserting that “us[ing] [the state's] procedural rules . . . to defeat [Plaintiff's] federal claims” violated Plaintiff's constitutional rights)] Reviewing the merits of such a claim would clearly “‘consist[] of a review of the proceedings already conducted by the [state] tribunal to determine whether it reached its result in accordance with law,'” which is barred by the Rooker-Feldman doctrine. Jensen, 603 F.3d at 1193 (quoting Bolden, 441 F.3d at 1143).
The Court notes that, in addition to requesting relief from the state-court judgment at issue, Plaintiff also seeks monetary damages from the State of Colorado (for amounts ranging between $100,000,000 and $250,000,000 per claim) and “prospective injunctive relief for the ongoing violation of federal law” for each of his claims. [id. at 14-16] It is unclear from the Complaint how Plaintiff calculated these damages or what violations he alleges are “ongoing.” But the only injuries that Plaintiff discernibly alleges are “based on the [adverse state-court orders] and, for [him] to prevail, would require [this Court] to review and reject those [orders].” Webb v. Okla. Dep't of Hum. Servs., 516 Fed.Appx. 727, 729 (10th Cir. 2013) (quoting Mann, 477 F.3d at 1147) (alterations in original); see also Hadzi-Tanovic, 62 F.4th at 404 (“Rooker-Feldman looks not to rights but to injuries.”). Thus, any separate claim for money damages or “prospective” relief is inextricably intertwined with Plaintiff's challenge to the state-court proceedings. See Bradshaw, 658 Fed.Appx. at 362 (“Though styled as a suit to redress a byzantine conspiracy perpetrated by [Plaintiff's] attorneys and the state court[,] [t]he requested relief [including monetary damages and prospective injunctive relief] plainly strikes at the state court's judgment, or, at the very least are inextricably intertwined with it.”); Mann, 477 F.3d at 1147. “In sum, [Plaintiff's] federal case is exactly what Justice Ginsburg admonished federal courts not to entertain under Rooker-Feldman-he is a state-court loser complaining of injuries caused by a state-court judgment rendered beforehand, and is inviting review and rejection of the judgment.” Bradshaw, 658 Fed.Appx. at 362 (citing Exxon Mobil Corp., 544 U.S. at 284).
In his supplemental briefing, Plaintiff appears to assert that certain state-court proceedings are still ongoing, or were at least ongoing when this federal court action was filed on November 9, 2022. [#73 at 1] It is clear, however, that the order of dismissal from which Plaintiff seeks relief was final and his appeal had been considered before Plaintiff filed the instant action. [See ##76-1 (Colorado district court order dated May 15, 2021 dismissing Plaintiff's claims with prejudice); 76-2 at 2 n.2, 14 (Colorado Court of Appeals opinion dated October 10, 2022 affirming the district court's final judgment and noting that “a division of this court, sitting as a motions division, concluded in a December 28, 2021 order that [Plaintiff] had not properly served [Mr. Barker]); see also #1 at 11 (alleging that the Colorado Supreme Court refused to hear Plaintiff's case)] Indeed, Plaintiff consistently seeks relief from his state-court judgment under Fed.R.Civ.P. 60(b), which affords relief “from a final judgment, order, or proceeding” under appropriate circumstances. [See #73 at 1-2]
Plaintiff asserts in supplemental briefing that none of his claims seek to modify or set aside a state-court judgment. [#77 at 2] Plaintiff immediately contradicts this contention, again arguing that “[s]tate case 21CV07 is VOID” and seeking “relief per FRCP RULE 60(b)(3) and/or (b)(4).” [id. at 2-3] And, again, Plaintiff's only discernible injuries caused by the alleged fraud and conspiracy between the state courts, various state actors, and private attorneys are the adverse orders against him which he seeks to void.
Finally, to the extent that Plaintiff's complaint concerns events giving rise to claims independent of Plaintiff's adverse state-court judgment, such claims are simply unintelligible and fail to satisfy Rule 8 of the Federal Rules of Civil Procedure. For example, the Complaint includes a section titled “Claim Nine.” [#1 at 13] The closest thing to a factual allegation in Claim Nine is the assertion that “every person in this lawsuit has harmed [Plaintiff] [and] acted [sic] contrary to federal law and the equal protection of the laws under the United States Constitution.” [id.] Rule 8(a)(2) requires “a short and plain statement of the claim showing that [Plaintiff] is entitled to relief.” The Tenth Circuit has explained that to state a claim in federal court, a plaintiff's complaint must address: (1) “what each defendant did to him”; (2) “when the defendant did it”; (3) “how the defendant's action harmed” the plaintiff; and, (4) “what specific legal right the plaintiff believes [each] defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). To the extent that Claim Nine (or any other claim embedded in Plaintiff's wide-ranging Complaint) seeks relief for an injury that was not caused by the adverse state-court proceeding, such claims simply are not cognizable because they do not contain these essential elements, and are subject to dismissal. Mann, 477 F.3d at 1147-48 (affirming a district court's dismissal of a state-court loser's complaint on Rooker-Feldman grounds even though the complaint contained “vague allegations that arguably could give rise to [claims not barred by the Rooker-Feldman doctrine],” because “[i]t was not the district court's job to stitch together cognizable claims for relief from the wholly deficient pleading that [the plaintiff] filed”).
For example, it is possible that Claim Eight seeks relief from an interlocutory, as opposed to final, order, as arguably argued by Plaintiff in his supplemental brief. [#78] The Complaint challenges a Colorado court's “use [of] its procedural rules . . . to defeat federal claims,” suggesting an appeal from a final judgment. [#1 at 13] But from a review of the state court docket, it is not clear that final judgment has been entered against Mr. Barker, and thus it is possible that Rooker-Feldman does not bar Claim Eight. But, to the extent that Claim Eight is not barred by Rooker-Feldman, Claim Eight fails to satisfy Rule 8 as it does not clearly explain what any particular Defendant did to Plaintiff, or which right Plaintiff believes any particular Defendant violated. Moreover, if Plaintiff is only challenging an interlocutory order, and he may still serve Mr. Barker in the state court action, then Plaintiff has failed to plausibly allege how he was harmed by any actions of any Defendant.
Accordingly, the Court respectfully RECOMMENDS that the Motions to Dismiss be GRANTED to the extent that they seek to dismiss Plaintiff's claims, and that the Complaint be DISMISSED WITHOUT PREJUDICE. See Lambeth v. Miller, 363 Fed.Appx. 565, 566, 569 (10th Cir. 2010) (finding that dismissal for lack of subject matter jurisdiction on basis of Rooker-Feldman doctrine must be “without prejudice”); 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, as it did here, the dismissal must be without prejudice.”).
B. Motion for Default Judgment
The Court briefly turns to Plaintiff's Motion for Default Judgment, which seeks a judgment awarding Plaintiff $1,050,000,000 pursuant to Rule 55 of the Federal Rules of Civil Procedure. [#27] As the Court has already explained to Plaintiff [see #22], pursuant to Rule 55, “[e]ntry of a default judgment involves a two-step process.” Meyers v. Pfizer, Inc., 581 Fed.Appx. 708, 710 (10th Cir. 2014) (citing Fed.R.Civ.P. 55(a)-(b)). If a defendant fails to timely respond to the complaint, the plaintiff can request entry of a default by the court clerk pursuant to Rule 55(a). id. If the clerk enters a default, the plaintiff can then ask the court to grant a default judgment. id. Here, Plaintiff has not yet completed step one of this process, i.e., Plaintiff has not obtained an entry of default from the Clerk of Court pursuant to Rule 55(a). Accordingly, the Court respectfully RECOMMENDS that Plaintiff's Motion for Default Judgment [#27] be DENIED.
Through this Motion, Plaintiff also seeks to disqualify Attorney Katarikawe of the Colorado Attorney General's Office, counsel for the State Defendants. [#27] “A motion to disqualify counsel is addressed to the sound discretion of the district court.” World Youth Day, Inc. v. Famous Artists Merch. Exch., Inc., 866 F.Supp. 1297, 1301 (D. Colo. 1994) (citing Federal Deposit Ins. Corp. v. Isham, 782 F.Supp. 524, 528 (D. Colo. 1992)). The Court should view motions to disqualify opposing counsel “with suspicion,” and it must be aware that such motions may be used to “secure a tactical advantage in the proceedings.” Pappas v. Frank Azar & Assoc., P.C., No. 06-cv-01024-MSK-BNB, 2007 WL 4224196, at *6 (D. Colo. Nov. 27, 2007) (quoting Religious Tech. Ctr. v. F.A.C.T. Net, Inc., 945 F.Supp. 1470, 1478 (D. Colo. 1996)). Thus, the moving party bears the burden of establishing grounds for the disqualification. World Youth Day, 866 F.Supp. at 1299.
Plaintiff seeks to disqualify Attorney Katarikawe under Colorado Rule of Professional Conduct 1.9. [#27 at 1 (citing Colo. R. Prof. Conduct 1.9 and Cole v. Ruidoso Mun. Sch., 43 F.3d 1373 (10th Cir. 1994) (discussing ABA Model Rule 1.9, which substantially overlaps with Colo. R. Prof. Conduct 1.9))] “[A] party seeking to disqualify opposing counsel under Rule 1.9 must establish that “(1) an actual attorney-client relationship existed between the moving party and the opposing counsel; (2) the present litigation involves a matter that is substantially related to the subject of the movant's prior representation; and (3) the interests of the opposing counsel's present client are materially adverse to the movant.” Schrock v. State Farm Auto. Ins. Co., No. 21-CV-01392-PAB-MEH, 2022 WL 4547569, at *2 (D. Colo. Sept. 29, 2022) (quotation and citation omitted). Plaintiff does not assert that any attorney-client relationship has ever existed between himself and Attorney Katarikawe or any other attorney of the Colorado Attorney General's Office, and the Court finds none based on the record before it.This finding alone suffices to deny Plaintiff's request to disqualify Attorney Katarikawe under Rule 1.9. id.
“When ruling on a motion to disqualify counsel, [the Court] must make specific findings and conclusions. However, the use of these findings is restricted to the decision of this motion only, and the parties are not bound by these factual findings for any other purpose in the course of this case.” Pappas, 2007 WL 4224196, at *6 (quotations and citations omitted).
The Court is cognizant that “[i]f the moving party makes a non-frivolous allegation that he has had an attorney-client relationship in a substantially related matter, a district court must investigate the allegation further through an evidentiary hearing before denying a motion to disqualify.” United States v. LaVallee, 439 F.3d 670, 681-82 (10th Cir. 2006). Because Plaintiff has made no such allegation, no evidentiary hearing is required.
Plaintiff's theory appears to be that the Colorado Attorney General's Office is categorically barred from representing the State of Colorado and its employees according to Rule 1.9. [#27 at 1] This, of course, is not so. See Colo. Rev. Stat. § 24-31-101(1)(b) (providing that the attorney general “[s]hall appear for the state and . . . defend all actions and proceedings . . . in which the state is a party”); id. at § 24-31-101(1)(m) (“Upon request of any employee in the state personnel system, [the attorney general] shall represent such employee in any civil action . . . instituted against such employee . . . if the action or proceeding arises out of performance of the employee's official duties.”); see also Colo. R. Prof. Conduct 1.9 (addressing the duties owed by a lawyer to a former client); Cole, 43 F.3d at 1382-85 (same). The Court concludes that Plaintiff has failed to meet his burden to establish grounds for Attorney Katarikawe's disqualification.
Accordingly, the Court respectfully RECOMMENDS that the Motion for Default Judgment be DENIED.
IV. CONCLUSION
For the reasons stated above, the Court respectfully RECOMMENDS: (1) that the Motions to Dismiss [##6; 7] be GRANTED to the extent that they seek to dismiss Plaintiff's claims, and that the Complaint be DISMISSED WITHOUT PREJUDICE; and (2) that the Motion for Default Judgment [#27] be DENIED.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).