* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### February 2, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

RONNIE J. GARNER, Plaintiff-Appellant,

v. STEPHANIE GONZALES, Director, Child Support Enforcement Division, New Mexico; PAMELA S. HYDE, Secretary, Human Services Department, New Mexico; JAMES LOUGHREN, Former Judge and current CSEB Hearing Officer, 2nd Judicial District, New Mexico; IRA ROBINSON; MICHAEL D. BUSTAMANTE; MICHAEL E. VIGIL, Judge, Appeals Court, New Mexico, Defendants-Appellees. No. 05-2096 (D.C. No. CIV-04-1314 RHS/ACT)

(D. N.M.)

ORDER AND JUDGMENT *

Before BARRETT, PORFILIO , and BRORBY , Senior Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Plaintiff appellant is a divorced father whose divo rce was administered through the New Mexico state court system. Accordi ng to the complaint, defendants are the Director of the New Mexico Child Support Enforcement Division, the Secretary of the New Mexico Human Services Department, the trial judge who presided over plaintiff’s divorce, and th e three judges of the New Mexico Court of Appeals who ruled against plaintiff in his divorce appeal. App.
at 10-12. Plaintiff’s complaint alleges that defendants violated his rights under the Fifth and Fourteenth Amendments to the Constitutionand failed to follow federal law relative to child support. Plaintiff requests declarative and injunctive relief pursuant to 42 U.S.C. § 1983 to remedy the alleged violations of federal law. The district court, without discussion or analysis, dis missed the case with prejudice. On appeal, plaintiff argues that it was error to di smiss this case under either Fed. R. Civ. P. 12(b)(1) or 12(b)(6), and that, in any event, it was error to dismiss with prejudice. We have conducted a de novo review of the record and the parties’ briefs, see Kiowa Indian Tribe v. Hoover , 150 F.3d 1163, 1165 (10th Cir.1 The doctrine takes its name from the seminal decisi ons in D.C. Court of

Appeals v. Feldman , 460 U.S. 462 (1983) and Rooker v. Fid. Trust Co. , 263 U.S. 413 (1923). -3- 1998), and agree with defendants that this case had to be dismissed on any number of grounds for want of subject matter jurisd iction. The clearest ground for dismissal of this matter wa s on the basis of the Rooker-Feldman doctrine. 1 [T]he Rooker-Feldman doctrine prohibits a lower federal court from considering claims actually decided by a state court, and claims inextricably intertwined with a prior state-court j udgment. In other words, Rooker-Feldman precludes a party losing in state court . . . from seeking what in substance would be appellate r eview of [a] state judgment in a United States district court, b ased on the losing party’s claim that the state judgment itself violat es the loser’s federal rights. Kenmen Eng’g v. City of Union , 314 F.3d 468, 473 (10th Cir. 2002) (citations and quotations omitted). “[I]n the Tenth Circuit, Rooker-Feldman applies to allstate court judgments, including those of intermediate st ate courts.” Id. In determining whether an action presents a case “i nextricably intertwined” with the state court judgment, “we must ask whetherthe injury alleged by the federal plaintiff resulted from the state court jud gment itself or is distinct from that judgment.” Id. at 476 (quotation omitted). “In other words, we approach the question by asking whether the state-court judgmentcaused, actually and proximately, the injury for which the federal-courtplaintiff seeks redress. If it2 The recent clarification by the Supreme Court of th e scope of RookerFeldman in Exxon Mobil Corp. v. Saudi Basic Industries Corp. , 544 U.S. 280 (2005), does not affect the outcome of this case.

3 The United States Supreme Court also denied certior ari. Garner v. Garner , No. 23,761, slip op. (N.M. Ct. App. June 6, 2003), cert. denied, 72 U.S.L.W. 3328 (U.S. Jan. 12, 2004) (No. 03-663). -4- did, Rooker-Feldman deprives the federal court of jurisdiction.” Id. (emphasis omitted). Plaintiff’s complaint runs afoul of Rooker-Feldman both because it asks the federal court to consider claims actually decided by the New Mexico courts and because it includes claims inextricably intertwined with the judgments of the state court. 2 After plaintiff’s divorce proceeding was final in s tate district court, he appealed to the New Mexico Court of Appeals. That court ruled against him on most of the issues he included in his federal compl aint. 3 To wit, it rejected plaintiff’s arguments that he was denied due proces s because he was not given a hearing to determine whether his former wife was un deremployed and to present evidence rebutting the amount of child support set by state guidelines. App. at 46-50. That court also rejected plaintiff’s conten tion that federal law preempts New Mexico’s child support guidelines. Id. at 50-52. To the extent plaintiff raises issues that could be seen as distinct from those actually decided by the New Mexico Court of Appeals, we hold those issues to be “inextricably intertwined” with the underlying state court judgments and there fore barred from federal court-5-

by Rooker-Feldman . Plaintiff’s request for prospective and injuncti ve relief is simply a reformulated request for a judgment that t he state court violated his rights in the past. A lower federal court has no j urisdiction over such a matter. See Kiowa Indian Tribe , 150 F.3d at 1169. As for his second point of error, we agree with pla intiff that the district court erred in dismissing his complaint with prejud ice. As explained by the Seventh Circuit,

“ [t]he Rooker-Feldman doctrine is a rule of federal jurisdiction. A suit dismissed for lack of jurisdiction cannot also be dismissed “with prejudice”; that’s a disposition on the merits, whi ch only a court with jurisdiction may render. “No jurisdiction” and “wi th prejudice” are mutually exclusive. When the Rooker-Feldman doctrine applies, there is only one proper disposition: dismissal fo r lack of federal jurisdiction. A jurisdictional disposition is conc lusive on the jurisdictional question: the plaintiff cannot re-f ile in federal court. But it is without prejudice on the merits, which ar e open to review in state court to the extent the state’s law of preclu sion permits. ” Frederiksen v. City of Lockport , 384 F.3d 437, 438 (7th Cir. 2004); see also Brereton v. Bountiful City Corp. , — F.3d —, No. 05-4067, 2006 WL 182063, at *2 (10th Cir. Jan. 26. 2006) (noting that dismissal s for lack of jurisdiction must be without prejudice). The state agency defendants complain that they were unable to find a copy of plaintiff’s petition for certiorari to the Unite d States Supreme Court and ask for sanctions against plaintiff for failure to provide all relevant documents in his appendix. The request for sanctions is denied. Th e certiorari petition is available-6-

online. See 2003 WL 22574929. In addition, all defendants requ est sanctions for what they deem a frivolous appeal. These requests are also denied because they were not made in the form of separate motions as re quired by Fed. R. App. P. 38. Judge Harris L Hartz has recused himself from this matter. The judgment of the district court is MODIFIED to r eflect that the dismissal of all claims asserted in this action is without prejudice, and, as so modified, the judgment is AFFIRMED.

Entered for the Court

John C. Porfilio Circuit Judge