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 Corrections, in his individual 

and official capacity; CHUCK SIMMONS, 

Deputy Secretary Facility Management Policy 

Review Committee Chairperson, in his 

individual and official capacity; WILLIAM 

CUMMINGS, Secretary of Corrections 

Designee for Grievance Procedure, in his 

individual and official capacity; LOUIS E 

BRUCE, Warden, Hutchinson Correctional 

Facility, in his individual and official capacity; 

RAYMOND ROBERTS, Warden, 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 interest, in their individual 

and official capacities; DALE R. CALL, 

Warden Raymond Roberts' designee, in his 

individual and official capacity; GLORIA 

GEITHER, Kansas Department of Corrections 

Religious Programs Coordinator, in her 

individual and official 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 Court
2 

 Defendants - Appellees. 

______________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges. 

_________________________________ 

Joshua Robertson, a Kansas inmate proceeding pro se, appeals the district 

court’s denial of his Fed. R. Civ. P. 60(b) motions for relief from judgment. He also 

seeks leave to proceed on appeal in forma pauperis (IFP). We grant Robertson’s IFP 

motion and affirm the district court’s orders denying 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 Land Use and Institutionalized Person Act 

(RLUIPA), 42 U.S.C. § 2000cc-1 to 2000cc-5. Specifically, Robertson alleged that 

the defendants substantially burdened the free exercise of his religious beliefs by 

refusing to permit him to cohabitate and procreate with Jennifer Self, a female state 

prisoner he identifies as his common-law wife. 

The district court granted Robertson IFP status but dismissed Robertson’s civil 

action for failure to state a claim. See 28 U.S.C. § 1915A; 28 U.S.C. 

 *

 After examining Robertson’s brief and the appellate record, this panel has 

determined unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, 

and collateral estoppel. It may be cited, 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 appealed, 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 challenges to the dismissal of his RLUIPA claim. He sought 

relief under Rule 60(a), contending the district court committed a clerical mistake by 

dismissing his claim before serving process on the defendants. Robertson also sought 

relief under Rule 60(b)(4), alleging the district court’s dismissal of his claim before 

process had been served deprived the court 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, alternatively, as without merit. 

After Robertson filed his notice of appeal, the district court denied Robertson’s 

motion for leave to proceed on appeal IFP. The district court 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) (providing “[a]n appeal may not 

be taken in forma pauperis if the trial court certifies in writing 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 consideration of motion for IFP status “is not a review 

of the district court’s denial, but an original consideration). 

Robertson argues the district court erred in denying his Rule 60(b)(4) motions 

(1) as untimely, and (2) on the merits. We agree 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 judgment as void is not subject to any time 

limitation). Nevertheless, the district court correctly concluded that Rule 60(b)(4) 

affords Robertson no relief. 

A judgment is void only if the court that rendered it lacked jurisdiction over 

the parties or subject matter, or acted in a manner inconsistent 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 asserts this general definition of a void 

judgment. But even liberally 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, 840 (10th Cir. 2005). 

2

 Robertson also attempts to revive his direct attack on the underlying 

judgment, arguing that the district court erred in dismissing his RLUIPA claim for 

failure to state a claim because he presented prima facie 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., Inc. v. Airco, Inc., 597 F.2d 220, 224-26 (10th Cir. 

1979) (distinguishing erroneous judgments subject to attack through direct appeals 
5 

Robertson argues the district court’s dismissal of his RLUIPA claim before service of 

process on the defendants and without requiring a responsive pleading constituted 

insufficient service of process and rendered 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 review a prisoner’s complaint against a 

governmental entity or officer or employee of that entity either “before docketing” or 

“as soon as practicable after docketing.” And under § 1915A(b)(1), the court shall 

dismiss such a complaint if that review reveals 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 process be served or that 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 court to dismiss a prisoner’s civil action 

for failure to state a claim as soon as practicable, a judgment dismissing such an 

action before service of process isn’t void for lack of personal jurisdiction. And, as 

the district court noted, § 1915A applies to RLUIPA claims. See 42 U.S.C. § 2000cc-

 

from void judgments subject to attack through Rule 60(b)(4)). Consequently, we 

address only his argument that the judgment is void for lack of jurisdiction. 
6 

2(e) (explicitly stating that “[n]othing in [RLUIPA] shall be construed to amend or 

repeal the Prison Litigation Reform Act of 1995 (including provisions of law 

amended by that Act)”); Plunk, 234 F.3d at 1129. 

Because the district court’s dismissal of Robertson’s RLUIPA claim under 

§ 1915A did not deprive the district court of personal jurisdiction, Robertson is not 

entitled to relief from judgment under Rule 60(b)(4). Accordingly, we affirm the 

district court’s orders denying relief. However, we grant Robertson’s motion to 

proceed on appeal IFP, and we remind him that he remains obligated to continue 

making payments until the filing fee is paid in full. See 28 U.S.C. § 1915(b). 

 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge