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UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JOSEPH DICESARE, 

 Plaintiff - Appellant, 

v. 

MARILYN KAY MCANALLY; 

DELRAIN MCANALLY; B. K. 

MCANALLY; CINDY DICESARE; 

CLINTON HASTINGS; TERRILL 

CROSSON; SCOTT WALTON; 

MORGAN POWELL; STAN BROWN; 

UNKNOWN CITY POLICE OFFICER 

(BLUE BOY); UNKNOWN DEPUTY 

(CHAINED DOG); EDDY RICE; 

AMANDA HOWELL; ROBERT 

SEACAT; ROGERS COUNTY, 

OKLAHOMA, 

 Defendants - Appellees. 

No. 15-7064 

(D.C. No. 6:15-CV-00210-FHS) 

(E.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges. 

_________________________________ 

 

* After examining the briefs and appellate record, this panel has determined unanimously 

that oral argument would not materially assist in the determination of this appeal. See

Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 4, 2016

Elisabeth A. Shumaker 

Clerk of Court
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 Plaintiff Joseph DiCesare filed suit in the United States District Court for the 

Eastern District of Oklahoma against numerous defendants, complaining of treatment to 

his deceased mother and himself. Among the many acts of misconduct alleged in the 

complaint are some that occurred in the state-court probate proceeding that settled his 

mother’s estate and in the issuance of a protective order against him to prevent his 

contact with his sister except through counsel. After deciding that the complaint was 

challenging only the protective order and the probate judgment, the district court 

determined that it was barred by the Rooker-Feldman doctrine from exercising 

jurisdiction and dismissed the case. See Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); 

D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). Plaintiff appeals the dismissal. 

 We agree with the district court only in part. Under the Rooker-Feldman doctrine 

the lower federal courts are barred from reviewing final state-court judgments because 

federal appellate jurisdiction over state courts is exclusively the province of the United 

States Supreme Court. See Lance v. Dennis, 546 U.S. 459, 463 (2006) (per curiam). But 

the Supreme Court has signaled that this jurisdictional bar is a narrow one. See id. at 464 

(“Neither Rooker nor Feldman elaborated a rationale for a wide-reaching bar on the 

jurisdiction of lower federal courts, and our cases since Feldman have tended to 

emphasize the narrowness of the Rooker–Feldman rule.”). It “is confined to 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. 
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Corp., 544 U.S. 280, 284 (2005). “The essential point is that barred claims are those 

complaining of injuries caused by state-court judgments.” Campbell v. City of Spencer, 

682 F.3d 1278, 1283 (10th Cir. 2012) (internal quotation marks omitted). “In other 

words, an element of the claim must be that the state court wrongfully entered its 

judgment.” Id. 

Giving Plaintiff’s complaint the liberal construction afforded pro se pleadings, see 

Haines v. Kerner, 404 U.S. 519, 520 (1972) (“[A]llegations of the pro se complaint [must 

be held] to less stringent standards than formal pleadings drafted by lawyers.”), we 

cannot say that all the claims are necessarily barred by Rooker-Feldman. Some of the 

alleged misconduct (such as the theft of his mother’s property) predated the state-court 

proceedings. And the prayer for relief is so vague that we cannot tell whether Plaintiff 

seeks only to set aside the protective order and the probate judgment. We can therefore 

affirm the Rooker-Feldman dismissal only insofar as the complaint seeks to set aside the 

probate judgment and protective order or to obtain equivalent relief (such as requiring 

those who benefited from the judgment to disgorge their gains). 

The defendants, however, argued below, as they do on appeal, that to the extent 

the district court had jurisdiction, the complaint failed to state a cause of action. We 

agree. 

Plaintiff’s complaint raises three federal claims. Two (titled “Count II” and 

“Count III”) appear to be under 42 U.S.C. § 1985(2). In Count II, Plaintiff alleges that all 

the named defendants conspired to obstruct justice (apparently focusing on the 

protective-order hearing) through perjury, intimidation and other tactics; and in Count III 
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he alleges that the defendants conspired to obstruct justice (apparently focusing on the 

probate proceeding) by failing to inform him of the proceeding, denying him the ability 

to testify, and submitting false documents and testimony. But there is a missing element. 

To state a claim under § 1985, Plaintiff had to allege racial discrimination or the like. See 

Jones v. Norton, 809 F.3d 564, 578 (10th Cir. 2015) (“Among other elements, [§ 1985(2) 

and (3)] require a showing of some racial, or perhaps otherwise class-based, invidiously 

discriminatory animus behind the conspirators’ action.” (internal quotation marks 

omitted)). No such allegation appears in the complaint. Plaintiff has failed to state a 

claim under § 1985. 

Plaintiff’s remaining claim (titled “Count I”) is brought under 42 U.S.C. § 1983. 

He alleges that his family members neglected, stole from, and intentionally inflicted 

emotional distress on his mother when caring for her during her final years. And he 

alleges that other defendants, including two attorneys, were complicit in this 

mistreatment. Again, however, he omits an essential element of his claim. To state a 

claim under § 1983, the complaint must allege that defendants acted “under color of state 

law.” Polk Cnty. v. Dodson, 454 U.S. 312, 315 (1981) (internal quotation marks 

omitted). Plaintiff contends that the two defendant attorneys were acting under color of 

state law because Oklahoma law makes attorneys “officers of courts.” Complaint at 3–4; 

R. at 13–14. But “a lawyer representing a client is not, by virtue of being an officer of 

the court, a state actor ‘under color of state law’ within the meaning of § 1983.” Polk 

Cnty., 454 U.S. at 318. And while Plaintiff makes passing reference to the inaction of ten 

state agencies as violating his mother’s rights, he does not name the agencies or list them 
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as defendants. In the 11 pages of the complaint addressing Count I, the only mention of a 

defendant who is a state employee is in paragraphs 16 and 17 under the heading “Count 

1: Supporting facts.” Paragraph 16 alleges that defendant Sheriff Scott Walton had been 

fired from the Tulsa Police Department for some unspecified misconduct. And paragraph 

17 cross-references an earlier paragraph in the complaint alleging that Sheriff Walton had 

failed to respond to a letter from Plaintiff’s family complaining about a delay in filing the 

death certificate for his mother. But the complaint does not explain how Plaintiff was 

injured by Walton’s alleged misconduct. Because there are no other allegations in Count 

I of injurious misconduct under color of law, the count fails to state a claim. 

The other issues noted in Plaintiff’s opening brief can be disposed of summarily. 

First, he argues that there were ex parte discussions between the district court and the 

attorneys for the defendants. But he fails to allege any evidence of such communications, 

relying only on conclusory statements such as “it just stands to reason,” Aplt. Br. at 7, 

and on a minute order granting one defendant additional time. Second, he argues that he 

was not given the process due him because the district court issued its order to show 

cause why it should not dismiss the complaint for lack of jurisdiction only 11 days after 

receiving his voluminous briefing and materials. But the district court’s promptness does 

not indicate that it gave short shrift to Plaintiff’s arguments, and its orders show that it 

gave the matter close attention. Third, he argues that the district court acted as “an active 

advocate for the defense” in issuing the show-cause order. Aplt. Br. at 8. But the district 

court had the duty to assure itself of federal jurisdiction before proceeding with the case. 

The show-cause order was entirely proper. Fourth, Plaintiff asserts that several 
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defendants are in default. But he admits that he never sought a default judgment, so the 

matter was not before the district court. Fifth, his contention that the district court erred 

in not admonishing the defendants’ attorneys for alleged misconduct is devoid of 

specifics. Finally, Plaintiff argues that the district court failed to rule on several of his 

motions. But these motions became moot upon dismissal of the case; and because we 

affirm that decision, they remain so. 

We AFFIRM the district court’s dismissal of Plaintiff’s complaint. To the extent 

the dismissal was for lack of jurisdiction, however, it must be a dismissal without 

prejudice. See 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, . . . the dismissal must be without 

prejudice.”). We therefore REMAND for correction of the judgment in that respect. 

Entered for the Court 

Harris L Hartz 

Circuit Judge