1 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 reco rd, this panel has determined unanimously that oral argument would not ma terially 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 This order and judg ment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 w ith 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 Court2 Plaintiff Joseph DiCesare filed suit in the United States District Court for the Eastern District of Oklahoma against numerou s defendants, complain ing of treatment to his deceased mother and himself. Among th e many acts of misconduct alleged in the complaint are some that occu rred 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 coun sel. After deciding that the complaint was challenging only the protective order and th e 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). Plain tiff appeals the dismissal. We agree with the district court only in part. Under the Rooker-Feldman doctrine the lower federal courts are barred from revi ewing 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 (20 06) (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 caus ed by state-court judgments rendered before the district court proceedi ngs commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus.3 Corp. , 544 U.S. 280, 284 (2005). “The essentia l 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 quota tion marks omitted). “In other words, an element of the cl aim must be that the state court wrongfully entered its judgment.” Id. Giving Plaintiff’s complain t 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 fo rmal 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 an d the probate judgment. We can therefore affirm the Rooker-Feldman dismissal only insofar as the co mplaint seeks to set aside the probate judgment and protective order or to obtain equivalent relief (such as requiring those who benefited from the judgme nt to disgorge their gains). The defendants, however, argued below, as they do on appeal, th at to the extent the district court had jurisdic tion, the complaint failed to st ate a cause of action. We
agree. Plaintiff’s complaint raises three fede ral claims. Two (titled “Count II” and “Count III”) appear to be under 42 U.S.C. § 1985(2). In Coun t II, Plaintiff alleges that all the named defendants conspired to obstru ct justice (apparently focusing on the protective-order hearing) through perjury, in timidation and other tactics; and in Count III4 he alleges that the defendants conspired to obstruct justice (appa rently focusing on the probate proceeding) by failing to inform hi m of the proceeding, denying him the ability to testify, and submitting false documents and te stimony. 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 conspira tors’ action.” (internal quotation marks omitted)). No such allegation ap pears in the complaint. Pl aintiff 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 neglecte d, stole from, and in tentionally inflicted emotional distress on his mother when caring for her during her fi nal years. And he alleges that other defendants, including two attorneys, were complicit in this mistreatment. Again, however, he omits an e ssential 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 de fendant 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 clie nt is not, by virtue of being an officer of the court, a state actor ‘under color of st ate law’ within the meaning of § 1983.” Polk Cnty. , 454 U.S. at 318. And whil e Plaintiff makes passing refe rence to the inaction of ten state agencies as violating his mother’s rights, he does not name the agencies or list them5 as defendants. In the 11 pages of the comp laint addressing Count I, the only mention of a defendant who is a state employee is in para graphs 16 and 17 unde r the heading “Count 1: Supporting facts.” Paragraph 16 alleges th at defendant Sheriff Scott Walton had been fired from the Tulsa Police Department for so me unspecified misconduct. And paragraph 17 cross-references an earlier paragraph in th e complaint alleging that Sheriff Walton had failed to respond to a letter fro m Plaintiff’s family complaining about a delay in filing the death certificate for his mother. But the co mplaint does not explain how Plaintiff was injured by Walton’s alleged misconduct. Becau se there are no other allegations in Count I of injurious misconduct under color of la w, the count fails to state a claim. The other issues noted in Plaintiff’s openi ng brief can be dispos ed of summarily. First, he argues that there were ex parte di scussions between the district court and the attorneys for the defendants. But he fails to allege any evidence of such communications, relying only on conclusory statem ents 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 fo r 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 Plai ntiff’s arguments, and its orders show that it gave the matter close attention. Third, he ar gues that the district court acted as “an active advocate for the defense” in issui ng the show-cause order. Aplt. Br. at 8. But the district court had the duty to assure its elf of federal jurisdiction befo re proceeding with the case. The show-cause order was entirely proper. Fourth, Plaintiff asserts that several6 defendants are in default. But he admits th at he never sought a default judgment, so the matter was not before the district court. Fift h, his contention that the district court erred in not admonishing the defendants’ atto rneys for alleged misconduct is devoid of specifics. Finally, Plaintiff argues that the di strict court failed to rule on several of his motions. But these motions became moot upo n dismissal of the case; and because we affirm that decision, they remain so. We AFFIRM the district court’s dismissal of Plaintiff’s complain t. 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, 12 16 (10th Cir. 2006) (“A longstanding line of cases from this ci rcuit holds that where the district court dismisses an action for lack of jurisdicti on, . . . the dismissal must be without prejudice.”). We therefore REMAND for corre ction of the judgment in that respect. Entered for the Court

Harris L Hartz Circuit Judge