* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist 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 Eld er 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 ri ghts to due process and to have appointed pro bono counsel. He also alleged that c ourt 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 st ate court’s protective orders and its order regarding custody and visitation. He sou ght damages and full custody of the children. The district court held that it had no subject matt er jurisdiction over the case because the State of Utah had not agreed to wa ive its Eleventh Amendment immunity in actions of this type and was not a pers on 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 Sup reme 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 feder al court’s conclusion that it lacked jurisdiction over this action. Inst ead, he argues that the State of Utah violated his constitutional right to defend hi mself 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 f or 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 b efore us, we AFFIRM the district court’s order for substantially the re asons 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