UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

______________ ____________ ____________ JOSHUA J. ROBERTSON, Plaintiff - Appellant,

v. STATE OF KANSAS; KANSAS DEPARTMENT OF CORRECTIONS; ROGER WERHOLTZ, Secretary of the Kansas Department of Correcti ons, in his individual and official capac ity; CHUCK SIMMONS, Deputy Secretary Facil ity Management Policy Review Committee Chairperson, in his individual and offici al capacity; WILLIAM CUMMINGS, Secretary of Corrections Designee for Grievance Procedure, in his individual and offici al capacity; LOUIS E BRUCE, Warden, Hutchinson Correctional Facility, in his individual and official capacity; RAYMOND ROBERTS, Wa rden, El Dorado Correctional Facility, in his individual and official capacity; RICHARD KOERNER, Warden, Topeka Correctional Facility, in his individual and official capacity; (FNU) (LNU), the agents, subordinates and employees of Roger Werholtz, Secretary of Corrections, and their successors in intere st, in their individual and official capacitie s; DALE R. CALL, Warden Raymond Roberts' designee, in his individual and offici al capacity; GLORIA GEITHER, Kansas Department of Corrections Religious Programs Coordinator, in her individual and offici al capacity; ROBERT GATES, Secretary of Defense of the United States of America, and his agents, subordinates, employees and successors in interest, in their individual and official capacities, No. 15-3098 (D.C. No. 5:07- CV-03162-SAC) (D. Kan.) FILED United States Court of Appeals Tenth Circuit 

### August 13, 2015
Elisabeth A. Shumaker Clerk of Court2 Defendants - Appellees.

___________________ ___________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , TYMKOVICH , and MORITZ , Circuit Judges.

________________ _________________ Joshua Robertson, a Kans as inmate proceeding pro se, appeals the district court’s denial of his Fed. R. Civ. P. 60(b) motions for re lief from judgment. He also seeks leave to proceed on ap peal in forma pauperis (IFP). We grant Robertson’s IFP motion and affirm the district c ourt’s orders de nying relief. In 2007, Robertson filed a 42 U.S.C. § 1983 civil rights action alleging in part that the defendants violated his rights under the First Amendment to the United States Constitution and the Religious La nd Use and Institutionalized Person Act (RLUIPA), 42 U.S.C. § 2000cc-1 to 2000cc-5. Specifically, Robertson alleged that the defendants substantially burdened the fr ee exercise of his religious beliefs by refusing to permit him to coha bitate and procreate with Je nnifer Self, a female state prisoner he identifies as his common-law wife. The district court granted Robertson IFP status but di smissed Robertson’s civil action for failure to state a claim. See 28 U.S.C. § 1915A; 28 U.S.C.

* After examining Roberts on’s brief and the appellate record, this panel has determined unanimously that oral argumen t would not material ly 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 doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.3 § 1915(e)(2)(B)(ii). Robertson timely appeal ed, and this court summarily affirmed the district court’s judgment for substantially the same reasons stated by the district

court. Robertson v. Kansas, 301 F. App’x 786 (10th Cir. 2008) (unpublished). In January 2015, Robertson filed a series of post-judgment motions in district court, reasserting his challe nges to the dismissal of his RLUIPA claim. He sought relief under Rule 60(a), contending the dist rict court committed a clerical mistake by dismissing his claim before serving proce ss on the defendants. R obertson also sought relief under Rule 60(b)(4), alleging the distri ct court’s dismissal of his claim before process had been served deprived the cour t of personal jurisdiction and rendered the judgment void. Robertson later moved to vacate the judgment under Rule 60(b)(4) for the same reason. The district court denied Robertson’s Rule 60 motions as untimely and, alternativel y, as without merit. After Robertson filed his notice of appeal , the district court denied Robertson’s motion for leave to proceed on a ppeal IFP. The district cour t certified that the appeal was not taken in “good faith” given this court’s prior decision affirming the 2007 district court judgment. See 28 U.S.C. § 1915(a)(3) (provi ding “[a]n appeal may not be taken in forma pauperis if the trial court certifies in wr iting that it is not taken in good faith”). Robertson timely appeals the denial of his Rule 60(b)(4) motions and moves this court for leave to proceed on appeal IFP. We review de novo a district court’s ruling on a Rule 60(b)(4) motion. Gschwind v. Cessna Aircraft Co. , 232 F.3d 1342, 1345 (10th Cir. 2000). We also review de novo Robertson’s motion for IFP status.4 See Boling-Bey v. U.S. Parole Comm’n , 559 F.3d 1149, 1154 (10th Cir. 2009) (explaining appellate court’s c onsideration of motion for I FP status “is not a review of the district court’ s denial, but an origin al consideration). Robertson argues the district court erre d in denying his Rule 60(b)(4) motions (1) as untimely, and (2) on the merits. We ag ree that the district court erred in finding Robertson’s Rule 60(b)(4) motions untimely. See Gschwind , 232 F.3d at 1345-46 (noting a Rule 60(b)(4) motion attacking j udgment as void is not subject to any time limitation). Nevertheless, the district cour t correctly concluded that Rule 60(b)(4) affords Robertson no relief. A judgment is void only if the court th at rendered it lacked jurisdiction over the parties or subject matter , or acted in a manner incons istent with due process. United States v. Buck , 281 F.3d 1336, 1344 (10th Cir. 2002). In his Rule 60(b)(4) motions and appellate brief, Robertson a sserts this general definition of a void judgment. But even libera lly construing his filings, 1 we interpret his argument as asserting only that the judgment is void for lack of jurisdiction. 2 Specifically,

1 Because Robertson is proceeding pro se , we liberally construe his filings. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 84 0 (10th Cir. 2005). 2 Robertson also attempts to revive his direct attack on the underlying judgment, arguing that the di strict court erred in dism issing his RLUIPA claim for failure to state a claim be cause he presented prima f acie evidence of a RLUIPA violation and the defendants should have been required to defend the claim. But Robertson’s opportunity to directly attack the underlying judgment expired with his unsuccessful direct appeal. See Robertson , 301 F. App’x 786 (10th Cir. 2008) (unpublished). See also V.T.A., In c. v. Airco, Inc. , 597 F.2d 220, 224-26 (10th Cir. 1979) (distinguishing e rroneous judgments subject to attack through direct appeals5 Robertson argues the district court’s dismissal of his RLUI PA claim before service of process on the defendants and without requi ring a responsive pleading constituted insufficient service of process and rendere d the district court’s 2007 judgment void for lack of personal jurisdiction. The district court properly rejected this argument. Under 28 U.S.C. § 1915A(a), a district court shall re view a prisoner’s complaint against a governmental entity or office r or employee of that entity either “before docketing” or “as soon as practicable afte r docketing.” And under § 1915A(b)(1), the court shall dismiss such a complaint if that review reveal s a failure to state a claim upon which relief may be granted. See also 28 U.S.C. § 1915(e)(2)(B)(ii) (directing courts to dismiss civil action filed by prisoner proceeding IFP “at any time” if court determines action fails to state claim on which relief may be granted). We have explained that § 1915A does not require that pr ocess be served or th at the plaintiff be provided an opportunity to respond before dismissal. Plunk v. Givens , 234 F.3d 1128, 1129 (10th Cir. 2000). Because § 1915A requires a district c ourt to dismiss a pr isoner’s civil action for failure to state a clai m as soon as practicable, a judgment dismissing such an action before service of pro cess isn’t void for lack of pe rsonal jurisdiction. And, as the district court noted, § 1915A applies to RLUIPA claims. See 42 U.S.C. § 2000cc-

from void judgments subject to attack th rough Rule 60(b)(4)). Consequently, we address only his argument th at the judgment is void for lack of jurisdiction.6 2(e) (explicitly stating that “[n]othing in [RLUIPA] shall be c onstrued to amend or repeal the Prison Litigati on Reform Act of 1995 (inc luding provisions of law amended by that Act)”); Plunk , 234 F.3d at 1129. Because the district court’s dismissa l of Robertson’s RLUIPA claim under § 1915A did not deprive the di strict court of personal juri sdiction, Robertson is not entitled to relief from judgm ent under Rule 60(b)(4). Accordingly, we affirm the district court’s orders de nying relief. However, we grant Robertson’s motion to proceed on appeal IFP, and we remind him that he remains oblig ated to continue making payments until the fili ng fee is paid in full. See 28 U.S.C. § 1915(b).

Entered for the Court
Nancy L. Moritz Circuit Judge