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 appellate record, this panel has determined 

unanimously that oral argument would not materially 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 Court
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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 the 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 district 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 jurisdiction, Defendants were entitled to qualified 

immunity and Plaintiffs were barred by collateral 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 premature; 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 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. 
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(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’ Fourteenth Amendment claim was not barred by RookerFeldman, Plaintiffs waived any challenge to the 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 claims, we agree with the district court that 

Plaintiffs presented no evidence that Defendants acted through fraud or willful 

misconduct. 

I. BACKGROUND 

Plaintiffs originally sued a number of state entities, officers, and employees, but 

the only remaining defendants are Wendy Garcia, Lori Holmes, Veronica Kasprzak, Amy 

Reed, and Charlene Sansone (Defendants), 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 orders denying the parents’ custody over their children. 

Plaintiffs raised two civil-rights claims under 42 U.S.C. § 1983, alleging that Defendants 

violated their Fourth and Fourteenth Amendment rights by removing the children from 

their parents without consent, by failing to give Plaintiffs adequate notice of accusations 

and court proceedings, and by making “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, 
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(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, the 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 court’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 resolving 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 judgment 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 marks omitted)). Thus, for 
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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 parents, 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 plaintiffs’ claims required the federal district court to review 

two state-court orders, one granting custody of the child to the state and one accepting the 

parents’ “guilty pleas for misdemeanor custodial interference.” Id. at 1193. The 

plaintiffs’ due-process claims under the Fourteenth Amendment were based “on 

misrepresentations allegedly made by the defendants during the juvenile court 

proceedings . . . and on DCFS’s alleged failure to conduct an independent 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 allegations of abuse against the Plaintiffs, and failed to investigate 

credible reports that the children were being abused by their foster family while in 

[DCFS’s] custody.” Aplt. Br. at 24. As Defendants point out, these allegations do not 
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match the complaint. Nevertheless, there is some overlap. Plaintiffs’ complaint alleged 

that they were deprived of “procedural and substantive due process 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 misrepresentations and failed to conduct 

independent investigations, thereby 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 allegations is a merits issue, not one of jurisdiction, and does 

not affect the Rooker-Feldman analysis.) 

Nevertheless, Defendants are still entitled to summary judgment. As an 

alternative ground for its ruling, the district court held that Plaintiffs’ § 1983 claims were 

barred by qualified immunity and collateral estoppel. Yet Plaintiffs’ opening brief says 

nary a word to dispute those rulings. Accordingly, Plaintiffs have waived any challenge 

to them. “Issues not raised in the opening brief are deemed abandoned or waived.” Tran 

v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (internal quotation 

marks omitted). We therefore affirm the dismissal of Plaintiffs’ Fourteenth Amendment 

claim. 

B. State-Law Claims

The district court granted summary judgment against the children’s state-law 

claims on two grounds: (1) the complaint was filed before the notice of claim was filed, 
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and (2) Plaintiffs failed to present evidence 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 challenge both grounds. We need 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 standard 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 plead a proper claim. Defendants submitted 

affidavits and various exhibits that, if believed, would establish that they committed no 

fraud or willful misconduct. Plaintiffs therefore bore the burden to “set out specific facts 

showing a genuine issue for trial . . . [and could] not rely merely on [their] own 

pleadings.” Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) (internal 

quotation marks omitted). Yet they submitted no evidence. Their unverified complaint is 

insufficient. 
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III. CONCLUSION

We AFFIRM the district court’s grant of summary judgment. 

ENTERED FOR THE COURT 

 Harris L Hartz 

Circuit Judge