UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

RAYMOND SCHWAB; AMELIA 

SCHWAB, 

 Plaintiffs - Appellants, 

v. 

KANSAS DEPARTMENT OF 

CHILDREN AND FAMILIES; KIM 

YOXELL; ANGIE SUTHER; PHYLLIS 

GILMORE; GINA MEIER-HUMMEL; 

THERESA FREED; KENDRA BAKER; 

MIRANDA JOHNSON; LORA INGLES; 

BARRY WILKERSON; BETHANY 

FIELDS; RILEY COUNTY POLICE 

DEPARTMENT; CARLA SWARTZ; 

JULIA GOGGINS; KVC; PATHWAYS 

FAMILY SERVICES, LLC; PAWNEE 

MENTAL HEALTH SERVICES; 

SUNFLOWER CASA PROJECT; ST. 

FRANCIS COMMUNITY SERVICES; 

KATHY BOYD; LAURA PRICE; 

KAYLEE POSSEN; ANTHONY 

ALLISON; MICHELLE ALLISON; DOES 

1-10, 

 Defendants - Appellees, 

and 

KRIS KOBACH; SCOTT SCHWAB; 

RANDY DEBENHAM; BLAKE 

ROBINSON; ANDREW VINDUSKA; 

RHONDA EISENBAREGER; DEJA 

JACKSON; AMANDA ALLISONBALLARD, 

 Defendants. 

No. 20-3099 

(D.C. No. 2:18-CV-02488-DDC-GEB) 

(D. Kan.) 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 16, 2021

Christopher M. Wolpert 

Clerk of Court
2 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MORITZ, BALDOCK, and EID, Circuit Judges. 

_________________________________ 

Raymond Schwab and Amelia Schwab (the “Schwabs”) appeal from the 

district court’s judgment dismissing their pro se complaint in which they asserted 

claims against numerous defendants under 42 U.S.C. §§ 1983 and 1985 and Kansas 

state law. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I. Background 

While the Schwabs’ five children were staying with their grandmother in April 

2015, she and the children’s uncle, defendant Anthony Allison, contacted the police 

department in Riley County, Kansas (“RCPD”), to express concerns about how the 

Schwabs were caring for their children. The Schwabs later alleged that their 

relatives’ assertions to the police were false and that the children were instead being 

* After examining the briefs and 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 consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 
3 

hidden from them. The RCPD took custody of the Schwabs’ children. Defendants 

Carla Swartz1

 and Julia Goggins were the investigating officers with RCPD. 

The State of Kansas initiated proceedings in state court to determine if the 

Schwab children were Children in Need of Care (“CINC”) under Kansas law. After a 

hearing, the state court placed the children in the temporary custody of the Kansas 

Department for Children and Families (“DCF”) and appointed defendant Lora Ingles 

as guardian ad litem to represent the children. Following another hearing in 

July 2015, at which the Schwabs were represented by counsel, the state court 

adjudicated the Schwab children as CINC. Raymond appealed that decision. The 

Kansas Court of Appeals affirmed and the Kansas Supreme Court denied review. 

In March 2016, the Schwabs filed a complaint in federal district court (the 

“2016 Action”) against numerous defendants alleging civil rights violations and other 

claims related to the initial seizure of their children, the CINC adjudication, and later 

events. All defendants moved to dismiss. The district court dismissed certain claims 

without prejudice, holding they were either barred by the Rooker-Feldman2

 doctrine 

or the court was required to abstain pursuant to the Younger3

 doctrine. To the extent 

the Schwabs had asserted claims for money damages under §§ 1983 and 1985 that 

1

The complaint named Carla “Schwartz” as a defendant. We refer to Carla 

“Swartz,” reflecting the spelling of her last name used by all parties and the district 

court in later filings. 

2 Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Ct. of Appeals v. Feldman, 

460 U.S. 462 (1983). 

3 Younger v. Harris, 401 U.S. 37 (1971). 
4 

were not barred by Rooker-Feldman, the court dismissed those claims with prejudice 

for failure to state plausible claims for relief. The district court entered judgment 

against the Schwabs in the 2016 Action in July 2017. The Schwabs’ appeal to this 

court was dismissed for lack of prosecution. 

The Schwabs’ children were returned to their custody in December 2017. 

They filed this action in August 2018 (the “2018 Action”), once again asserting 

claims related to the initial seizure of their children, the CINC adjudication, and later 

events. The Schwabs named as defendants in the 2018 Action some of the 

defendants they had named in the 2016 Action. They asserted federal civil rights 

claims under §§ 1983 and 1985, as well as claims under Kansas state law. In an 

order dated September 25, 2019 (the “First Dismissal Order”), the district court ruled 

on eleven motions to dismiss filed by twenty-four of the defendants, granting some 

motions in their entirety and some only in part. At that point, a few federal claims 

and some state-law claims remained pending. 

Anthony Allison and his spouse, defendant Michelle Allison (the “Allisons”), 

were served with the Schwabs’ complaint in the 2018 Action shortly after the First 

Dismissal Order was entered and more than a year after the case was filed. They 

moved to dismiss on October 8, 2019. In response to that motion, the Schwabs 

moved for leave to amend their complaint, seeking to amend not only their claims 

against the Allisons but also to cure deficiencies in their claims against other 

defendants in response to the First Dismissal Order. 
5 

In an order dated April 28, 2020 (the “Second Dismissal Order”), the district 

court denied the Schwabs’ leave to amend their complaint. It held they could no 

longer amend as a matter of course under Federal Rule of Civil Procedure 15(a)(1), 

and denied them leave to amend under Rule 15(a)(2) based upon their unexplained 

delay. The district court then dismissed the Schwabs’ remaining federal claims, 

holding they failed to state plausible claims under §§ 1983 or 1985, and declined to 

exercise supplemental jurisdiction over the remaining state-law claims. It therefore 

dismissed the 2018 Action and entered a final judgment against the Schwabs. 

II. Discussion 

 On appeal, the Schwabs contend that the district court erred in (1) denying 

them leave to amend; (2) dismissing some of their claims against some of the 

defendants based on the their failure “to state a claim to relief that is plausible on its 

face,” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (internal 

quotation marks omitted); (3) dismissing claims against defendants who were never 

served with the complaint; and (4) declining to exercise supplemental jurisdiction 

over the remaining state-law claims after dismissing all of the federal claims. 

Because the Schwabs are proceeding pro se, we liberally construe their 

complaint and their appeal brief. See Garrett v. Selby Connor Maddux & Janer, 

425 F.3d 836, 840 (10th Cir. 2005); Cummings v. Evans, 161 F.3d 610, 613 

(10th Cir. 1998). The Schwabs nonetheless must “follow the same rules of procedure 

that govern other litigants.” Garrett, 425 F.3d at 840 (internal quotation marks 

omitted). 
6 

A. Denial of Leave to Amend 

 1. Amendment as a Matter of Course 

In the district court, the Schwabs asserted that they could amend their 

complaint once as a matter of course because they did so within 21 days after service 

of the Allisons’ motion to dismiss. Rule 15(a)(1)(B) provides that “[a] party may 

amend its pleading once as a matter of course . . . if the pleading is one to which a 

responsive pleading is required, 21 days after service of a responsive pleading or 

21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” 

The district court rejected the Schwabs’ contention, holding they were required to 

seek leave to amend because a single 21-day period to amend as a matter of course 

had been triggered after the first motion to dismiss was filed in the case on December 

27, 2018. The court noted, however, that there is a split of authority on 

Rule 15(a)(1)’s application in multi-defendant cases. 

We review de novo the district court’s construction of a procedural rule. See 

Esposito v. United States, 368 F.3d 1271, 1275 (10th Cir. 2004). The Schwabs 

continue to assert on appeal that they filed their motion to amend within 21 days of 

the Allisons’ motion to dismiss. But they fail to develop an argument that the district 

court erred in construing Rule 15(a)(1) to preclude an amendment as a matter of 

course at that time. See Kelley v. City of Albuquerque, 542 F.3d 802, 819 (10th Cir. 

2008) (stating that “perfunctory” contentions of error “fail[] to frame and develop an 

issue” and are therefore “[in]sufficient to invoke appellate review” (internal 
7 

quotation marks omitted)). We will not craft such an argument for them. See Perry 

v. Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999). 

 2. Unexplained Delay in Seeking Leave to Amend 

The Schwabs argue that the district court erred in denying leave to amend 

under Rule 15(a)(2), which directs that “[t]he court should freely give leave when 

justice so requires.” The court denied their motion because they failed to explain 

their delay in seeking to amend for more than a year after they filed their original 

complaint. See Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006) 

(“[D]enial of leave to amend is appropriate when the party filing the motion has no 

adequate explanation for the delay.” (internal quotation marks omitted)). It held the 

Schwabs did not adequately explain their delay by stating that they had only recently 

discussed certain details of the case with their children. And it noted that they took 

no steps to amend their complaint in response to the eleven previous motions to 

dismiss, or even directly after entry of the First Dismissal Order. 

We review the denial of a motion for leave to amend for an abuse of 

discretion. Hertz v. Luzenac Grp., 576 F.3d 1103, 1117 (10th Cir. 2009). The 

Schwabs’ contentions on appeal focus on the timing of service on the Allisons, which 

did not occur until more than a year after the case was filed. While other defendants’ 

motions to dismiss were pending, the Schwabs and Allisons were litigating whether 

the Schwabs’ initial attempts at service on the Allisons were effective. The district 

court held they were not, but it declined to dismiss the Schwabs’ claims against the 

Allisons and instead allowed the Schwabs additional time to effect service. After 
8 

they did so, the Allisons moved to dismiss and the Schwabs requested leave to amend 

in response to that motion. They assert that “there needed to be more clarification on 

the Allison[s’] involvement.” Aplt. Br. at 22. As to the other defendants, they state 

that they “did not feel the need to modify their complaint” in response to any of the 

previous eleven motions to dismiss, but they “decided to cure some other 

deficiencies” after the Allisons moved to dismiss. Id. at 21. 

Regarding all defendants other than the Allisons, the Schwabs offer no 

reasoned basis to conclude that the district court abused its discretion in denying 

leave to amend due to their unexplained delay. The basis for the court’s finding of 

undue delay is less clear, however, with respect to the Schwabs’ request for leave to 

amend their claims against the Allisons. It did not explicitly consider the 

proceedings regarding service on the Allisons or the relevant—and short—timeframe 

between service of the complaint, the Allisons’ motion to dismiss, and the Schwabs’ 

motion for leave to amend. But we need not decide whether the court abused its 

discretion in denying the Schwabs leave to amend their claims against the Allisons 

based upon unexplained delay because we can affirm the district court’s ruling on the 

alternative ground that amendment would be futile. See Hertz, 576 F.3d at 1117.4

4

Although the Schwabs argued in the district court that amendment would not 

be futile, see R., Vol. II at 376-77, 525, 528-30, the district court did not reach that 

issue, see id. at 574 n.7. But we can affirm on an alternative basis supported by the 

record. See Fields v. City of Tulsa, 753 F.3d 1000, 1013-15 (10th Cir. 2014) (noting 

court could affirm on any basis supported by the record and holding that amendment 

of plaintiff’s complaint would be futile). Nor will we intrude upon the district 

court’s discretion by doing so because futility of amendment is a legal rather than a 

discretionary determination. See Hertz, 576 F.3d at 1117. 
9 

 3. Futility of Amendment 

The Schwabs did not oppose the Allisons’ motion to dismiss and instead 

sought leave to file their proposed amended complaint. We conclude that leave to 

amend would be futile because the proposed amended complaint did not state a 

plausible claim for relief against the Allisons. 

The Schwabs’ proposed amended complaint removed all federal claims against 

the Allisons and asserted only one state-law claim against them: a “false light” claim 

under Kansas law.5

 A false light claim is one of four types of invasion of privacy 

claims in Kansas. See Dominguez v. Davidson, 974 P.2d 112, 121 (Kan. 1999). 

“One who gives to another publicity which places him before the public in a false 

light of a kind highly offensive to a reasonable man, is subject to liability to the other 

for invasion of his privacy.” Id. (alteration and internal quotation marks omitted). 

The elements of a false light claim are: “(1) publication of some kind must be made 

to a third party; (2) the publication must falsely represent the person; and (3) that 

representation must be highly offensive to a reasonable person.” Id. (internal 

quotation marks omitted). In the context of a false light/invasion of privacy claim, 

“[p]ublicity . . . means that the matter is made public, by communicating it to the 

5

 The only count explicitly asserted against the Allisons in the Schwabs’ 

proposed amended complaint was Count 4 alleging publicity placing the Schwabs in 

a false light. Unlike all the other counts, Count 2—alleging claims under §§ 1983 

and 1985—did not explicitly state which defendants it was asserted against. But in 

their reply in support of their motion to amend the Schwabs made clear that their 

proposed amended complaint “removed Federal Claims against the Allisons.” R., 

Vol. II at 529. We therefore do not construe Count 2 as brought against the Allisons. 
10 

public at large, or to so many persons that the matter must be regarded as 

substantially certain to become one of public knowledge.” Id. (internal quotation 

marks omitted). A false light claim fails if “the alleged offensive statements had not 

become common knowledge in the . . . public arena.” Id. (affirming summary 

judgment in the absence of “evidence to show such widespread disclosure of private 

matters as to constitute publicizing”). 

In their proposed amended complaint, the Schwabs made collective false light 

allegations against all nine of the named defendants (plus Does 1-10) against whom 

they brought that claim. See R., Vol. II at 461 (making allegations against “all the 

individual defendant listed above”). Such collective allegations are insufficient to 

put the Allisons on notice of the wrongful acts they allegedly committed. See 

Robbins, 519 F.3d at 1250 (holding that collective allegations do not satisfy a 

plaintiff’s “burden . . . to provide fair notice of the grounds for the claims made 

against each of the defendants”). 

The Schwabs did also include the following allegations specifically against the 

Allisons: 

[I]n January of 2016 when journalist David Olinger of the Denver post 

contacted the Schwab’s [sic] after running a story about the Removal of the 

Schwab children. He informed the Schwab’s [sic] that Anthony and 

Michelle contacted him after publishing the story and told him that the 

Schwab’s [sic] were meth addicts, that they abused and neglected their 

kids, that the Plaintiff’s [sic] were liars and should not be believed. This 

pattern continued to the Schools, therapist of the children, and email 

exchanges between the other defendants and the Allisons. 
11 

R., Vol. II at 461. These allegations fail to state a plausible false light claim because 

they do not allege that the Allisons’ statements to the reporter, after a newspaper 

story had already been published, were ever communicated to the public at large. 

And communication of (presumably) the same statements to the Schwabs’ children’s 

schools, therapist, and other unspecified defendants, all of whom were involved in 

the CINC proceedings, would not show that “the matter must be regarded as 

substantially certain to become one of public knowledge.” Dominguez, 974 P.2d at 

121 (internal quotation marks omitted); see also Werner v. Kliewer, 710 P.2d 1250, 

1256 (Kan. 1985) (holding that communication to persons involved in a divorce 

proceeding did not constitute “publicity”). 

Because the Schwabs’ proposed amended complaint failed to state a plausible 

claim against the Allisons, we affirm the district court’s denial of leave to amend 

under Rule 15(a)(2) based on the alternative ground of futility. 

 B. Dismissal of Claims 

The Schwabs challenge the district court’s dismissal of some of their claims 

against some of the defendants.6

 We review de novo a court’s dismissal for failure to 

state a claim under Federal Rule of Civil Procedure 12(b)(6). SEC v. Shields, 

744 F.3d 633, 640 (10th Cir. 2014). 

6

 We note that the Schwabs do not challenge the court’s dismissal of any of 

their § 1985 claims based on a failure to allege racial or class-based discriminatory 

animus. 
12 

 1. Dismissal of § 1983 Claims Against the Allisons 

 The district court held that the Schwabs failed to state a claim under § 1983 

against the Allisons because they did not allege sufficient facts plausibly 

demonstrating that the Allisons’ conduct was “fairly attributable to the State,” 

Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) 

(internal quotation marks omitted). “Under Section 1983, liability attaches only to 

conduct occurring ‘under color of law.’” Id. (quoting § 1983). Thus, under the state 

action doctrine, a proper defendant in a § 1983 action is one who represents the state 

in some capacity. Id. We “apply[] a variety of tests to the facts of each case” to 

determine “whether particular conduct constitutes state action.” Id. Under the joint 

action test, “courts examine whether state officials and private parties have acted in 

concert in effecting a particular deprivation of constitutional rights.” Id. at 1453. 

 Here, the district court held that complaining to a police officer about a 

person’s conduct does not, without more, constitute state action. See Carey v. Cont’l 

Airlines, Inc., 823 F.2d 1402, 1404 (10th Cir. 1987). The Schwabs argue this holding 

mischaracterized their claims, which they say were based on a conspiracy between 

the Allisons, other relatives, and the RCPD to deprive them of lawful control of their 

children. But the court held their conspiracy allegations were conclusory and 

insufficient to demonstrate state action where they “pleaded no facts capable of 

supporting a rational finding that there was a meeting of the minds, the defendants 

formed an agreement, or that they engaged in a general conspiracy.” R., Vol. II at 

580; see Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (“[W]hen a plaintiff 
13 

attempts to assert the state action required for a § 1983 claim against private actors 

based on a conspiracy with government actors, mere conclusory allegations with no 

supporting factual averments are insufficient.” (internal quotation marks omitted)). 

The Schwabs do not cite to any nonconclusory allegations in their complaint that are 

sufficient to show agreement and concerted action between the Allisons and any state 

actor. They therefore fail to demonstrate error in the district court’s dismissal of 

their § 1983 claims against the Allisons based on their failure to sufficiently allege 

conduct constituting state action.7

2. Dismissal of § 1983 Claims Against KVC, St. Francis 

Community Services, Kathy Boyd, Laura Price, and Kaylee 

Possen 

 The district court also dismissed the Schwabs’ § 1983 claims against private 

parties KVC, St. Francis Community Services, Kathy Boyd, Laura Price, and Kaylee 

Possen because the complaint failed to assert nonconclusory allegations of conduct 

amounting to state action. The Schwabs alleged that St. Francis and KVC are 

private, nonprofit corporations that were each “awarded a social services contract by 

DCF to provide similar services that DCF would otherwise provide.” R., Vol. I at 39, 

7

 The Schwabs also contend that, in its First Dismissal Order, the district court 

omitted certain allegations and mischaracterized others regarding their relatives’ 

report to the RCPD and later events. See Aplt. Br. at 29. In ruling on a Rule 12(b)(6) 

motion, a court must “accept as true all well-pleaded factual allegations in the 

complaint and view them in the light most favorable to the [plaintiff].” Shields, 

744 F.3d at 640 (internal quotation marks omitted). But the Schwabs do not point to 

any error in the district court’s rulings in the First Dismissal Order as a result of such 

mischaracterization or omission. 
14 

40; see also id. at 92 (stating that DCF “contracted out core public functions” to these 

private entities). Boyd, Price, and Possen are employees of St. Francis. 

 On appeal, the Schwabs argue that these defendants’ conduct qualifies as state 

action under two of the recognized tests. They first invoke the symbiotic relationship 

test, see Gallagher, 49 F.3d at 1451, asserting that St. Francis and KVC “are solely 

tasked and contracted for providing foster care placement, investigation, and 

adoption service in place of and in symbiotic relationship with Kansas DCF,” Aplt. 

Br. at 27. Setting aside that no such allegation is found in their complaint, this 

contention is insufficient to demonstrate state action under the narrowly-applied 

symbiotic relationship test. See Gallagher, 49 F.3d at 1451. Rather, “[t]he 

[Supreme] Court has held that extensive state regulation, the receipt of substantial 

state funds, and the performance of important public functions do not necessarily 

establish the kind of symbiotic relationship between the government and a private 

entity that is required for state action.” Id.

 Next, contending that these defendants “work[] in place of DCF to provide 

core foster care services,” Aplt. Br. at 28, the Schwabs argue that their alleged 

conduct qualifies as state action under the public function test, see Gallagher, 

49 F.3d at 1456. “If the state delegates to a private party a function traditionally 

exclusively reserved to the State, then the private party is necessarily a state actor.” 

Id. (citation and internal quotation marks omitted). But “[t]his test is difficult to 

satisfy” because “[w]hile many functions have been traditionally performed by 
15 

governments, very few have been exclusively reserved to the State.” Id. (internal 

quotation marks omitted). 

 In a similar context, we held that neither an adoption service nor adoptive 

parents were state actors under the public function test. See Johnson v. Rodrigues, 

293 F.3d 1196, 1203 (10th Cir. 2002). And other courts have held that the care of 

foster children is also not a power traditionally exclusively reserved to the state. See, 

e.g., Leshko v. Servis, 423 F.3d 337, 343 (3d Cir. 2005) (“No aspect of providing care 

to foster children in Pennsylvania has ever been the exclusive province of the 

government.”); Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 

2001) (holding that foster care is not traditionally an exclusive state prerogative). 

The Schwabs do not cite any authority for the proposition that the care of foster 

children in Kansas is a power traditionally exclusively reserved to the state. 

 The Schwabs have not demonstrated error in the district court’s dismissal of 

their § 1983 claims against KVC, St. Francis, Boyd, Price, and Possen based on a 

failure to sufficiently allege conduct constituting state action. 

 3. Dismissal of § 1983 Claims Against Swartz and Goggins 

 Swartz and Goggins were the investigating officers with RCPD. The district 

court dismissed the Schwabs’ § 1983 claims against both of these defendants in the 

2018 Action. It applied claim preclusion to dismiss the claims against Swartz based 
16 

upon the judgment entered in the 2016 Action, and it held both defendants were 

entitled to qualified immunity.8

 a. Swartz 

 Swartz was a defendant in the 2016 Action. On several different grounds, the 

district court dismissed the claims against her under §§ 1983 and 1985 in that 

previous action for failure to state plausible claims for relief. It first held that Swartz 

was entitled to witness immunity against claims based upon her testimony during the 

CINC proceedings.9

 The court also held that Swartz was entitled to qualified 

immunity because the Schwabs’ conclusory allegations failed to sufficiently 

demonstrate a constitutional violation. It further held that their § 1985 claims failed 

because the Schwabs did not allege racial or class-based discriminatory animus. 

After dismissing all of the federal claims in the 2016 Action, the court declined to 

exercise supplemental jurisdiction over any state-law claims and entered judgment in 

the defendants’ favor. 

 The district court also granted Swartz’s motion to dismiss in the 2018 Action, 

holding that the claims against her under § 1983 were barred by claim preclusion. 

Claim preclusion applies when there was “(1) a judgment on the merits in the earlier 

action; (2) identity of the parties or their privies in both suits; and (3) identity of the 

8

 The Schwabs do not challenge the district court’s bases for dismissing their 

state-law claims against these defendants. 

9

 The Schwabs incorrectly assert that witness immunity was the sole basis for 

dismissal of their federal claims against Swartz in the 2016 Action. 
17 

cause of action in both suits.” Yapp v. Excel Corp., 186 F.3d 1222, 1226 (10th Cir. 

1999). As to the third element, the district court concluded that the claims against 

Swartz in the 2018 Action arose from the same transaction or series of transactions as 

the claims against her in the 2016 Action. See id. at 1227 (noting “[t]his court has 

adopted the transactional approach,” which “provides that a claim arising out of the 

same transaction, or series of connected transactions as a previous suit, which 

concluded in a valid and final judgment, will be precluded” (internal quotation marks 

omitted)). 

 The Schwabs argue the district court erred in applying claim preclusion to 

dismiss their § 1983 claims against Swartz in the 2018 Action because, under 

Younger abstention, they could not bring claims against Swartz until the state 

proceedings concluded. But in the 2016 Action the district court only abstained from 

deciding their equitable claims. It dismissed with prejudice their federal claims for 

money damages. The Schwabs fail to demonstrate error in the district court’s 

holding that the prior judgment in the 2016 Action barred their § 1983 claims against 

Swartz in the 2018 Action. 

 b. Goggins 

 The district court dismissed the Schwabs’ § 1983 claims against Goggins 

based on qualified immunity because they did not allege facts sufficient to show that 
18 

she plausibly violated their constitutional rights. See Robbins, 519 F.3d at 1248-49.10

 The defense of qualified immunity protects government officials 

from individual liability under 42 U.S.C. § 1983 for actions taken while 

performing discretionary functions, unless their conduct violates clearly 

established statutory or constitutional rights of which a reasonable person 

would have known. When a defendant pleads qualified immunity, the 

plaintiff has the heavy burden of establishing: (1) that the defendant’s 

actions violated a federal constitutional or statutory right; and (2) that the 

right violated was clearly established at the time of the defendant’s actions. 

Malik v. Arapahoe Cnty. Dep’t of Soc. Servs., 191 F.3d 1306, 1314 (10th Cir. 1999) 

(citation and internal quotation marks omitted). The district court concluded that 

“[t]he relatively few allegations plaintiffs make against . . . Goggins are either 

conclusory or too vague to provide [her] with notice of plaintiffs’ theory of 

recovery.” R., Vol. II at 238-39. 

 The Schwabs argue error in this ruling but they do not cite to any allegations 

in their complaint specifically against Goggins, as required by the Federal Rules of 

Appellate Procedure. See Fed. R. App. P. 28(a)(8) (requiring “citations to the . . . 

parts of the record on which the appellant relies”). And the majority of their 

argument on qualified immunity addresses the alleged conduct of Swartz rather than 

Goggins. 

 We have nonetheless identified the few allegations against Goggins in the 

Schwabs’ complaint. They alleged only that she scheduled an appointment for 

Anthony Allison to bring the children into the police station without notifying the 

10 The Schwabs also assert that the district court dismissed their claims against 

Goggins based upon claim preclusion. It did not, as Goggins was not a defendant in 

the 2016 action. 
19 

Schwabs and without further investigating the report by the Schwabs’ maternal 

relatives that they had abandoned their children while on a drug binge. See R., Vol. I 

at 45-46. The complaint further alleged that the children were seized by the RCPD 

but without indicating Goggins’ role, if any, in that action. See id. at 46. The 

Schwabs fail to demonstrate error in the district court’s holding that these allegations 

were too vague to provide Goggins with notice of their theory of recovery against 

her. See Robbins, 519 F.3d at 1250 (noting “it is particularly important in” § 1983 

cases against government actors “that the complaint make clear exactly who is 

alleged to have done what to whom, to provide each individual with fair notice as to 

the basis of the claims against him or her”). 

 4. Dismissal of § 1983 Claims Against Ingles 

The district court dismissed the Schwabs’ § 1983 claims against Ingles, who 

was the court appointed guardian ad litem for their children. The court held that 

Ingles was entitled to immunity for her acts within the core duties of her work in that 

role. See Dahl v. Charles F. Dahl, M.D., P.C. Defined Benefit Pension Tr., 744 F.3d 

623, 630 (10th Cir. 2014) (holding that immunity extends to “acts . . . within the core 

duties of a [guardian ad litem] in assisting the court—that is, performing a function 

closely associated with the judicial process” (brackets and internal quotation marks 

omitted)). 

The Schwabs argue error in this ruling. They maintain that Ingles worked 

outside the scope of her position by engaging in various types of allegedly wrongful 

conduct as asserted in their complaint, including failing to investigate and provide a 
20 

report to the court; acting as a fact finder for the court; promoting a narrative she 

knew or should have known was false; aggressively contacting reporting service 

providers, demanding confidential information from them, and attempting to bias 

them against the Schwabs; and presenting the Schwabs in a false light to their 

counselors. 

A guardian ad litem is not immune “for acts taken in the clear absence of all 

jurisdiction.” Id. (internal quotation marks omitted). But a guardian ad litem’s act 

does not fall outside her jurisdiction just because it was in error, wrongful, unlawful, 

done maliciously, or in excess of her authority. Id. at 630-31. This is so because 

“[i]mmunity is conferred so that judicial officers can exercise their judgment (which 

on occasion may not be very good) without fear of being sued in tort.” Id. at 631. 

The Schwabs’ allegations of wrongful conduct by Ingles do not demonstrate that she 

“acted in the clear absence of all jurisdiction.” Id. (internal quotation marks 

omitted). They therefore fail to show the district court erred by holding she was 

entitled to quasi-judicial immunity. 

5. Dismissal of Individual-Capacity Claims Against Phyllis 

Gilmore, Angie Suther, Kim Yoxell, Theresa Freed and 

Kendra Baker 

 Phyllis Gilmore, Angie Suther, Kim Yoxell, Theresa Freed, and Kendra Baker 

are employees of DCF (hereafter, the “DCF individuals”). The Schwabs alleged 

claims against them in both their official and individual capacities. DCF moved to 

dismiss only the official-capacity claims, noting that the DCF individuals had not 

been served with the complaint in their individual capacities. In response, the 
21 

Schwabs purported to “withdraw claims against these defendants[] in their official 

capacity.” R., Vol. I at 522. As to service of their individual-capacity claims, they 

asked the district court to order DCF’s counsel to provide them with the DCF 

individuals’ addresses. Alternatively, they asked the court to dismiss the 

individual-capacity claims without prejudice. 

 In the First Dismissal Order, the district court denied the Schwabs’ request for 

an order directing DCF’s counsel to provide the DCF individuals’ addresses. But the 

court exercised its discretion to extend the time for service and warned that the 

individual-capacity claims against the DCF individuals would likely be dismissed if 

the Schwabs did not complete service within 30 days. Six months later, when the 

Schwabs still had not served the DCF individuals, the court dismissed the 

individual-capacity claims against them without prejudice based on the Schwabs’ 

failure to prosecute. 

 On appeal, the Schwabs assert that the district court “knew, or should have 

known,” Aplt. Br. at 35, that they had substantially complied with the statutory 

service requirements by serving the DCF individuals in their official capacities, and 

in any event, that service was effective because it resulted in the DCF individuals 

having actual notice of the case. They therefore contend that the district court erred 

in dismissing their individual-capacity claims against these defendants. 

 But the Schwabs did not argue in response to DCF’s motion to dismiss that 

service upon the DCF individuals had already been satisfied; they instead asked for 

the defendants’ addresses and more time to serve them. Nor do the Schwabs indicate 
22 

where this issue was otherwise raised and ruled on in the district court, as required by 

Tenth Circuit Rule 28.1(A) (“For each issue raised on appeal, all briefs must cite the 

precise references in the record where the issue was raised and ruled on.”). Because 

the Schwabs fail to argue for plain error review, we do not address their argument for 

reversal raised for the first time on appeal. See Richison v. Ernest Grp., Inc., 

634 F.3d 1123, 1130-31 (10th Cir. 2011). 

6. District Court’s Decision Not to Exercise Supplemental 

Jurisdiction Over Remaining State-Law Claims 

 In the First Dismissal Order, the district court rejected the Schwabs’ 

contention that it had subject matter jurisdiction over their state-law claims under 

28 U.S.C. § 1332 based upon diversity of citizenship. It held that their complaint did 

not satisfy the “matter in controversy” requirement because they failed to allege facts 

establishing that all defendants were jointly liable for the aggregate damages they 

alleged in excess of $75,000. See Alberty v. W. Sur. Co., 249 F.2d 537, 538 

(10th Cir. 1957). Then, after dismissing all of the federal claims in the Second 

Dismissal Order, the court declined to exercise supplemental jurisdiction over the 

remaining state-law claims and dismissed those claims without prejudice.11

 On appeal, the Schwabs do not reassert their contention that their complaint 

was sufficient to invoke jurisdiction under § 1332. They claim instead that their 

proposed amended complaint would cure the defect identified by the district court. 

11 At that time, there were state-law claims remaining against Boyd, Price, 

Possen, Ingles, KVC, St. Francis, Pawnee Mental Health Services, the Allisons, and 

Does 1-10. See R., Vol. II at 584. 
23 

Because we affirm the district court’s denial of leave to file the proposed amended 

complaint, as well as its dismissal of all of the federal claims in the Schwabs’ 

complaint, we likewise affirm the court’s decision not to exercise supplemental 

jurisdiction over their remaining state-law claims. 

III. Conclusion 

 The district court’s judgment is affirmed. 

Entered for the Court 

Bobby R. Baldock 

Circuit Judge