* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

NOV 28 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MICHAEL ANTHONY WHITESELL,

Plaintiff-Appellant,

v.

STATE OF UTAH; BOX ELDER

COUNTY, UTAH,

Defendants-Appellees.

No. 03-4075

(D.C. No. 1:03-CV-2-DB)

(D. Utah)

ORDER AND JUDGMENT *

Before MURPHY , HARTZ , and McCONNELL , Circuit Judges.

After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
1 Rooker v. Fid. Trust Co. , 263 U.S. 413, 415-16 (1923); Dist. of Columbia

Court of Appeals v. Feldman , 460 U.S. 462, 482 (1983).

-2-

Plaintiff Michael Anthony Whitesell, proceeding pro se, appeals from an

order of the district court dismissing this action, filed pursuant to 42 U.S.C.

§ 1983 , for lack of jurisdiction. We affirm.

Mr. Whitesell commenced this action against Box Elder County, Utah,

and the State of Utah, in which he alleged that the First Judicial District Court of

Box Elder County had violated his constitutional rights to due process and to have

appointed pro bono counsel. He also alleged that court had denied him his

parental rights by denying him custody of his four minor children. Mr. Whitesell

asked the federal district court to overturn the state court’s protective orders and

its order regarding custody and visitation. He sought damages and full custody

of the children.

The district court held that it had no subject matter jurisdiction over the

case because the State of Utah had not agreed to waive its Eleventh Amendment

immunity in actions of this type and was not a person within the meaning of

§ 1983 . The court also held that Mr. Whitesell’s claims were barred by the

Rooker-Feldman 1 doctrine because, other than the United States Supreme Court,

federal courts do not have jurisdiction to act as appellate courts reviewing

decisions of state courts.
-3-

On appeal, Mr. Whitesell does not address the federal court’s conclusion

that it lacked jurisdiction over this action. Instead, he argues that the State of

Utah violated his constitutional right to defend himself in the custody hearing and

violated his due process rights by changing the hearing date to a time when he

was in Tennessee.

“We review de novo the district court’s dismissal for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1), and review findings of jurisdictional facts

for clear error.” Stuart v. Colo. Interstate Gas Co. , 271 F.3d 1221, 1225

(10th Cir. 2001) (citation omitted).

Upon review of the parties’ briefs and the record before us, we AFFIRM

the district court’s order for substantially the reasons stated in its March 24, 2003

order, adopting the magistrate judge’s February 14, 2003 report and

recommendation. The mandate shall issue forthwith.

Entered for the Court

Harris L Hartz

Circuit Judge