F I LED

United States Court of Appeals

Tenth Circuit

June 20, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NANCY BEAR,

Plaintiff-Appellant,

 v.

JAMES A. PATTON, in his official

capacity as Judge of the District Court

of Brown County, Kansas,

Defendant-Appellee.

No. 05-3183

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 04-CV-4081-JAR)

Submitted on the briefs:

Nancy Bear, Pro Se, Appellant.

Phill Kline, Attorney General, Steve Phillips, Assistant Attorney General, Office

of the Attorney General, Topeka, Kansas, for Defendant-Appellee.

Before LUCERO, ANDERSON, and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.
After examining the briefs and appellate record, this panel has determined *

unanimously to grant the parties’ request for a decision 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.

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Plaintiff Nancy Bear appeals from the district court’s order dismissing her

civil action for lack of subject matter jurisdiction pursuant to Rooker v. Fidelity

Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462 (1983) (together, Rooker-Feldman). We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we vacate the district court’s judgment and

remand for further proceedings.*

I. Background

Nancy Bear is an enrolled member of the Kickapoo Tribe and lives on the

Tribe’s reservation in Kansas. She filed this action seeking declaratory and

injunctive relief against defendant James A. Patton in his official capacity as

Judge of the District Court of Brown County, Kansas. Judge Patton presided over

civil action No. 02-C-61, Kathy Ann Bradley, et al. v. Nancy Sue Bear, et al. The

plaintiffs in that state action brought two claims against Bear. Count I requested

a decree dissolving a partnership of which Bear was a member and an accounting

that would divide the partnership assets. Count II sought a partition of property

owned by the partnership. On December 10, 2003, after a trial to court, Judge

Patton filed a journal entry in which he ordered that “[p]ursuant to K.S.A.
Kan. Stat. Ann. § 60-254(b) reads as follows: 1

(b) Judgment upon multiple claims. When more than one claim for

relief is presented in an action, whether as a claim, counterclaim,

cross-claim or third-party claim or, when multiple parties are

involved, the court may direct the entry of a final judgment as to one

or more but fewer than all of the claims or parties only upon an

express determination that there is no just reason for delay and upon

an express direction for the entry of judgment. In the absence of

such determination and direction, any order or other form of

decision, however designated, which adjudicates fewer than all the

claims or the rights and liabilities of fewer than all the parties shall

not terminate the action as to any of the claims or parties, and the

order or other form of decision is subject to revision at any time

before the entry of judgment adjudicating all the claims and the

rights and liabilities of all the parties.

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[§] 60-254(b) final judgment should be entered on Count II of plaintiffs’ Petition

(For Partition).” R., doc. 3, unlabeled ex. at 103. In the journal entry, Judge 1

Patton ordered a partition of certain real estate and personal property owned by

the partnership. On June 15, 2004, a sheriff’s sale was held and the property sold. 

See id. at 182-86. Also on that date, Bear filed a motion to dismiss the case,

arguing that the court lacked subject matter jurisdiction over the real estate and

personal property at issue because it was on Indian land.

On July 9, 2004, Bear filed her complaint in this action, requesting a

variety of declaratory relief, including that Judge “Patton’s assumption of

jurisdiction over Plaintiff Bear’s deeded lands on the Kickapoo Reservation

violated federal law and his order to liquidate said lands issued in said case is . . .

null and void.” Id., doc. 1 at 9. She also seeks injunctive relief prohibiting Judge
As discussed more fully below, the Rooker-Feldman doctrine divests 2

federal district courts of subject matter jurisdiction over claims that seek, in

substance, appellate review of final state-court judgments.

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Patton from issuing or enforcing any further orders, judgments, or decrees

regarding her or any of her deeded lands on the Kickapoo Reservation. 

Judge Patton, who had not yet ruled on Bear’s motion to dismiss, stayed the

case before him sua sponte pending the resolution of this action. He filed a

motion to dismiss that the district court granted based on lack of subject matter

jurisdiction under the Rooker-Feldman doctrine. The court concluded that “the 2

relief Bear requests . . . is not separable from and collateral to [the state-court

case], for Bear in essence seeks an order from this Court vacating Judge Patton’s

decisions. Therefore, Bear’s claim is inextricably intertwined with the state

court’s decision, and this Court cannot exercise jurisdiction.” Id., doc. 10 at 4

(footnote omitted). This appeal followed.

II. Discussion

We review de novo a district court’s dismissal of a complaint for lack of

subject matter jurisdiction. Kiowa Indian Tribe of Okla. v Hoover, 150 F.3d

1163, 1165 (10th Cir. 1998). Because Bear appears pro se, we review her

pleadings and other papers liberally and hold them to a less stringent standard
Judge Patton suggests that we should not grant Bear the deference 3

ordinarily afforded to pro se litigants because, upon information and belief, he

asserts that she received assistance from her attorneys in drafting her appellate

brief. Although her brief appears to be consistent with briefs traditionally

associated with attorneys and she was represented by counsel in the district court,

we are obliged to construe her brief liberally in the absence of evidence that it

was prepared with the assistance of an attorney.

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than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972);

Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).3

Under 28 U.S.C. § 1257(a), “[f]inal judgments or decrees rendered by the

highest court of a State in which a decision could be had, may be reviewed by the

Supreme Court by writ of certiorari.” The Rooker-Feldman doctrine arose out of

this statute, and provides that only the Supreme Court has jurisdiction to hear

appeals from final state court judgments. See Guttman v. Khalsa, 446 F.3d 1027,

1031 (10th Cir. 2006). Federal district courts do not have jurisdiction to review

state court judgments or claims inextricably intertwined with them. Id.

At the time the district court dismissed Bear’s action, the law of this circuit

was that the Rooker-Feldman doctrine applied to “all state-court decisions—final

or otherwise.” Kenmen Eng’g v. City of Union, 314 F.3d 468, 475 (10th Cir.

2002). However, just one week prior to the district court’s dismissal of this case,

the Supreme Court held that “[t]he Rooker-Feldman doctrine . . . is confined to

. . . cases brought by state-court losers complaining of injuries caused by

state-court judgments rendered before the district court proceedings commenced
We note that Rooker-Feldman does not apply in the habeas context because 4

Congress has authorized federal district courts to review state prisoners’ petitions. 

See Exxon Mobil Corp., 544 U.S. at 292 n.8 (citing 28 U.S.C. § 2254(a)).

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and inviting district court review and rejection of those judgments.” Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The Court further

explained that, in both Rooker and Feldman, “the losing party in state court filed

suit in federal court after the state proceedings ended.” Id. at 291 (emphasis

added). Accordingly, Exxon Mobil reverses our holding in Kenmen that

Rooker-Feldman applies to “all state-court decisions—final or otherwise.” See

Guttman, 446 F.3d at 1031.4

We recently agreed with several of our sister circuits that “after the state

proceedings ended” means that “Rooker-Feldman applies only to suits filed after

state proceedings are final.” Id. at 1032 (citing Federacion de Maestros de

Puerto Rico v. Junta de Relaciones del Trabajo de Puerto Rico, 410 F.3d 17,

24-25 (1st Cir. 2005); Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 89

(2d Cir. 2005); Dornheim v. Sholes, 430 F.3d 919, 924 (8th Cir. 2005);

Mothershed v. Justices of the Supreme Court, 410 F.3d 602, 604 n.1 (9th Cir.

2005)). In Guttman, we also cited with approval the First Circuit’s explanation of

several situations in which a state-court judgment could be considered final for

Rooker-Feldman purposes, one of which is relevant here: “‘if the state action has
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reached a point where neither party seeks further action.’” Guttman, 446 F.3d at

1032 n.2 (quoting Federacion, 410 F.3d at 24). 

The present case requires us to go one step further than was necessary in

Guttman and hold that “if a lower state court issues a judgment and the losing

party allows the time for appeal to expire, then the state proceedings have ended.” 

Federacion, 410 F.3d at 24. Accordingly, Rooker-Feldman applies as to that

judgment and any claims inextricably intertwined with it. Under this view of

Rooker-Feldman, the relevant inquiry in this case is whether, at the time the

federal action was filed, the judgment on Count II that Judge Patton issued

pursuant to Kan. Stat. Ann. § 60-254(b) was final and appealable under Kansas

law and, if so, whether Bear’s time for taking an appeal had run. 

Although the state proceedings have not “ended” in a general sense because

the accounting and distribution of the proceeds of the sheriff’s sale remain, a final

judgment on Count II that was no longer appealable would have invoked

Rooker-Feldman’s jurisdictional bar for two reasons. First, the purpose of the bar

is to prevent a state court litigant from circumventing the appellate structure

established by 28 U.S.C. § 1257(a). See Rooker, 263 U.S. at 416 (explaining that,

after the period for appeal to the Supreme Court lapses, “an aggrieved litigant

cannot be permitted to do indirectly what he no longer can do directly” by filing

an action in a federal district court). Merely allowing to elapse the time for an

appeal from a final, appealable judgment on one of multiple claims, then filing an
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action in a federal district court attacking the state court’s jurisdiction to enter

that judgment, would do just that. 

The second reason a final judgment on Count II would have invoked the

Rooker-Feldman bar is that Bear’s request for prospective declaratory and

injunctive relief is inextricably intertwined with it. A federal claim is

inextricably intertwined with a state-court judgment if that judgment “caused,

actually and proximately, the injury for which the federal-court plaintiff seeks

redress.” Kenmen Eng’g, 314 F.3d at 476 (footnote omitted), abrogated on other

grounds by Exxon Mobil, 544 U.S. 280. As noted above, in the Count II

judgment, Judge Patton concluded that the partnership assets should be

partitioned and ordered the sheriff’s sale. Thus, the judgment is the cause of the

prospective injury Bear seeks to enjoin—an accounting and division of

partnership assets under Count I—and the prospective relief she seeks in her

federal claim is, therefore, inextricably intertwined with it. Absent the adverse

judgment on Count II, Bear would have no basis, and perhaps no reason, to

challenge prospectively Judge Patton’s jurisdiction to enter orders on Count I.

We decline to address in the first instance whether the Count II judgment

was final under Kansas law when Bear filed this action. The district court is in a

better position to accept argument from the parties, make factual findings or take

evidence if necessary, and resolve the issue. Furthermore, if the district court

determines that the judgment was not final and, therefore, that Rooker-Feldman
Although we do not reach the issue of Younger abstention, we note that it 5

appears one of its essential predicates, the presence of an ongoing proceeding,

may be absent here. See Southwest Air Ambulance, Inc. v. City of Las Cruces,

268 F.3d 1162, 1178 (10th Cir. 2001) (holding Younger abstention inappropriate

where a municipal court stayed a criminal proceeding sua sponte in favor of

federal resolution of the issues).

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does not apply, it can consider the alternate bases for dismissal urged by Judge

Patton, namely, abstention under Younger v. Harris, 401 U.S. 37 (1971), and the

discretion a district court has to decline to exercise jurisdiction under the

Declaratory Judgment Act, 28 U.S.C. § 2201(a).5

III. Conclusion

In view of the foregoing, the judgment of the district court is VACATED

and the case is remanded for further proceedings consistent with this opinion.