UNITED STATES COURT OF APPEALS TENTH CIRCUIT

KELVIN L. DAVIS; SHARON D. DAVIS; KTD, a minor; JTD, second minor; JDD, third minor, Plaintiffs - Appellants,

v. WENDY GARCIA; VERONICA KASPRZAK; AMY REED; CHARLENE SANSONE; LORI HOLMES, Defendants – Appellees,
and DIANE WILKINS, Judge; ROBERT PARRISH; LAURA THOMPSON; SONIA SWEENEY; GUARDIAN AD LITEM’S OFFICE; UTAH ATTORNEY GENERAL’S OFFICE; STATE OF UTAH; RICK SMITH; DWAYNE BETOURNAY; UTAH DIVISION OF CHILD AND FAMILY SERVICES,
Defendants. No. 13-4102 (D.C. No. 1:07-CV-00148-CW) (D. Utah)

ORDER AND JUDGMENT *
After examining the briefs and the appella te record, this panel has determined unanimously that oral argument would not mate rially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1( G). The case is therefore FILED United States Court of Appeals Tenth Circuit 

### July 25, 2014
Elisabeth A. Shumaker Clerk of Court2 Before KELLY , HARTZ , and TYMKOVICH , Circuit Judges.
Acting under court orders, Utah’s Division of Child and Family Services (DCFS) removed Plaintiffs KTD, JTD, and JDD from the custody of their parents, Plaintiffs Kelvin and Sharon Davis, in 2006. The parents eventually regained custody in 2008. But in the interim Plaintiffs sued five DCFS employees in th e United States District Court for the District of Utah. They brought federal civil-rights claims under 42 U.S.C. § 1983 and state-law tort claims. The di strict court granted summary judgment for Defendants on the federal claims, holding (1) that it lacked jurisdiction under the Rooker

- Feldman doctrine, see Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Ct.App. v. Feldman , 460 U.S. 462 (1983), which limits federal review of state-court judgments to the United States Supreme Court, and (2) that if it had jurisd iction, Defendants were entitled to qualified immunity and Plaintiffs were barred by collate ral estoppel. On the state-law claims the court granted summary judgment on the grounds that the parents’ claims were untimely; the children’s claims were pr emature; and Plaintiffs failed to produce any evidence of fraud or willful misconduct, as required by the Utah Governmental Immunity Act

ordered submitted without oral argument. This order a nd judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its pe rsuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.3 (UGIA), Utah Code Ann. § 63-30d-202(3 )(c) (West 2004) (current version at § 63G-7-202 (West 2014)). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Even though we hold that at least part of Plaintiffs’ Four teenth Amendment claim was not barred by Rooker

Feldman , Plaintiffs waived any challenge to th e district court’s rulings on qualified immunity and collateral estoppel because they failed to dispute the rulings in their opening brief on appeal. As for the state-law cl aims, we agree with th e district court that Plaintiffs presented no evidence that Defendants acted through fraud or willful misconduct. I. BACKGROUND Plaintiffs originally sued a number of st ate entities, officers, and employees, but the only remaining defendants are Wendy Garc ia, Lori Holmes, Veronica Kasprzak, Amy Reed, and Charlene Sansone (D efendants), all of whom are DCFS employees. Plaintiffs’ suit arose from Defendants’ conduct leading up to and during state-court proceedings that ultimately resulted in court or ders denying the parents’ custody over their children. Plaintiffs raised two civil-rights claims unde r 42 U.S.C. § 1983, alleging that Defendants violated their Fourth and Fourteenth Am endment rights by removing the children from their parents without consent, by failing to give Plaintiffs adequate notice of accusations and court proceedings, and by ma king “false and unverified accusations . . . in [their] reports to the Court.” Aplt. App. at 36–37. They also raised six state-law claims: (1) intentional infliction of emotional distress, (2 ) negligent infliction of emotional distress,4 (3) negligence, (4) defamation, (5) negligent hiring, and (6) negligent supervision. As stated above, the district court granted summary judgment for Defendants on all the claims. II. ANALYSIS On appeal Plaintiffs argue that their Fourteenth Amendment claim was not barred by Rooker

- Feldman . They do not contest, however, th e district court’s holdings that the claim was barred by qualified immunity and collateral estoppel. As for the state-law claims, Plaintiffs concede that summary judgment was properly granted against the parents but challenge both the district c ourt’s grounds for granting summary judgment against the children. A. Federal Claims Assuming that the Rooker

- Feldman doctrine implicates our jurisdiction, we address it first. See Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 94 (1998) (jurisdiction must be determined before re solving merits). The doctrine “bars the lower federal courts from engaging in appellate review of state-court judgments.” Campbell v. City of Spencer , 682 F.3d 1278, 1279– 80 (10th Cir. 2012). That authority is reserved for the Supreme Court. See id. at 1281. This limitation on jurisdiction is narrow and does not apply “[w]hen the state-court ju dgment is not itself at issue.” Id. (internal quotation mark omitted); see PJ ex rel. Jensen v. Wagner , 603 F.3d 1182, 1193 (10th Cir. 2010) (“ Rooker

- Feldman does not bar federal-court claims that would be identical even had there been no state-court judgment . . . .” (internal quotation mark s omitted)). Thus, for5 Rooker

- Feldman to prohibit review, “an element of the claim must be that the state court wrongfully entered its judgment.” Campbell , 682 F.3d at 1283. Our decision in Wagner controls the Rooker

- Feldman issue in this case. In Wagner the plaintiffs, a minor child and his pa rents, alleged that DCFS employees and other state actors had violated their Fourth and Fourteenth Amendment rights during a dispute over the custody of the child in Utah’s juvenile court. See 603 F.3d at 1187. Two of the defendants moved for summary judgment under Rooker

- Feldman

. See id. at 1192. They alleged that the pl aintiffs’ claims required the fede ral district court to review two state-court orders, one gran ting custody of the child to th e state and one accepting the parents’ “guilty pleas for misdem eanor custodial interference.” Id. at 1193. The plaintiffs’ due-process claims under the Fourteenth Amendment were based “on misrepresentations allegedly made by th e defendants during the juvenile court proceedings . . . and on DCFS’s alleged failu re to conduct an inde pendent investigation of [the child’s] case before filing the verified petition.” Id. at 1194. We held that these claims were independent of the state-court judgments and that Rooker

- Feldman therefore was not applicable. See id. Plaintiffs allege in their opening brief “that the Defendants made misrepresentations during the state court proceedings, failed to conduct independent investigations into the allegati ons of abuse against the Plain tiffs, and failed to investigate credible reports that the children were bein g abused by their fost er family while in [DCFS’s] custody.” Aplt. Br. at 24. As Defendants point out, these allegations do not6 match the complaint. Nevertheless, there is some overlap. Plaintiffs’ complaint alleged that they were deprived of “procedural an d substantive due proc ess because of,” among other things, “the false and unverified accusations made by . . . Defendants in [their] reports to the Court.” Aplt. App. at 36–37 (emphasis added). This allegation would encompass claims that Defendants made mi srepresentations and failed to conduct independent investigations, th ereby bringing this case under Wagner . Accordingly, the district court had jurisdiction over at least some of Plaintiffs’ Fourteenth Amendment claims. (Contrary to the view of the district court, the failure of Plaintiffs to provide evidentiary support for their alle gations is a merits issue, not one of jurisdiction, and does not affect the Rooker

- Feldman analysis.) Nevertheless, Defendants are still en titled to summary judgment. As an alternative ground for its ruling, the district c ourt held that Plaintiffs’ § 1983 claims were barred by qualified immunity and collateral es toppel. Yet Plaintiffs’ opening brief says nary a word to dispute those rulings. Accord ingly, Plaintiffs have waived any challenge to them. “Issues not raised in the opening brief are deem ed abandoned or waived.” Tran v. Trs. of State Colls. in Colo. , 355 F.3d 1263, 1266 (10th Ci r. 2004) (internal quotation marks omitted). We therefore affirm the di smissal of Plaintiffs’ Fourteenth Amendment claim.
B. State-Law Claims The district court granted summary ju dgment against the children’s state-law claims on two grounds: (1) the complaint was filed before the notice of claim was filed,7 and (2) Plaintiffs failed to present eviden ce that Defendants “acted or failed to act through fraud or willful misconduct,” Utah Code Ann. § 63- 30d-202(3)(c)(i) (West 2004). On appeal, Plaintiffs chal lenge both grounds. We ne ed address only the second ground, which requires us to affirm the judgment. To prevail under the UGIA on a claim against a state employee, the plaintiff must show that the “employee acted or failed to act through fraud or willful misconduct.” Id. Plaintiffs do not contest this stan dard or contest that the terms fraud and willful misconduct are absent from their complaint. They argue, however, that their “[c]omplaint describes numerous indications that Defendants were acting with improper motives, such as racial and age bias, and actions of the Defendants which easily fall within the ‘willful misconduct ’ spectrum.” Aplt. Br. at 29. We question whether their pleading was adequate. But even if it was, the court’s ruling was a grant of summary judgment, not a dismissal for failure to pl ead a proper claim. Defendants submitted affidavits and various exhibits that, if believed, would es tablish that they committed no fraud or willful misconduct. Plaintiffs therefor e bore the burden to “set out specific facts showing a genuine issue for trial . . . [a nd could] not rely merely on [their] own pleadings.” Nahno-Lopez v. Houser , 625 F.3d 1279, 1283 (10t h Cir. 2010) (internal quotation marks omitted). Yet they submitted no evidence. Their unverified complaint is insufficient.8 III. CONCLUSION We AFFIRM the district court’s grant of summary judgment.
ENTERED FOR THE COURT

Harris L Hartz Circuit Judge