* 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 

FILED

United States Court of Appeals

Tenth Circuit

April 13, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RAYMOND G. CHAPMAN, and on

behalf of, and as next friend of his

minor child, KKC,

Plaintiff-Appellant,

v.

MARK BARCUS; JODI JOHNSON

BAKER; KEVIN GASSAWAY;

ROSEMARIE L. DAMILAO,

Defendants-Appellees.

No. 09-5085

(D.C. No. 4:08-CV-00497-CVE-PJC)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before MURPHY, McKAY, and BALDOCK, Circuit Judges.

Raymond G. Chapman, appearing pro se, appeals the district court’s denial

of his motion to vacate its order dismissing his case and its order awarding

attorneys’ fees to defendants-appellants Jodi Johnson Baker, Kevin Gassaway, and

Rosemary L. Damilao. We reverse and remand.

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I.

Mr. Chapman’s lawsuit originated in an ongoing state-court paternity and

custody matter. His theory of the case was that a state judge, the child’s mother,

and two attorneys representing the mother conspired to deprive him of custody,

thus infringing upon his child’s and his own civil and constitutional rights. He

alleged violations of numerous constitutional provisions and federal statutes, citing

the First, Fourth, Fifth, Sixth, Eighth, Fourteenth, and Nineteenth Amendments to

the United States Constitution, 18 U.S.C. §§ 241, 242, 42 U.S.C. §§ 1981, 1983,

1985, 1986, 1988, 2000b, 2000b-2. He also made various state-law claims,

including negligence, fraud, defamation, intentional infliction of emotional

distress, and violations of the Oklahoma Rules of Professional Conduct. 

All defendants filed motions to dismiss raising several arguments, including

the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971). The district

court declined to reach the Younger issue. Instead, it analyzed the merits of

Chapman’s claims and perceived multiple flaws in all of them. It concluded that

the state-court judge was protected from civil liability under the doctrines of

absolute judicial immunity, sovereign immunity, and qualified immunity. See

Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000) (absolute judicial

immunity); Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 577 (10th Cir. 1996)

(Eleventh Amendment sovereign immunity and qualified immunity). It resolved

that the child’s mother and her attorneys may not be held liable under 42 U.S.C.

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-3-

§ 1983 because they are not state actors. See Anderson v. Suiters, 499 F.3d 1228,

1233 (10th Cir. 2007). Further, the district court concluded Chapman’s remaining

federal counts were not supported by any coherent or plausible factual allegations. 

See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (stating that a

court’s inquiry in evaluating a motion to dismiss is “whether the complaint

contains enough facts to state a claim to relief that is plausible on its face”)

(quotation omitted), cert. denied, 130 S. Ct. 1142 (2010). As a final matter, the

district court declined to exercise supplemental jurisdiction over the state-law

claims. See Nielander v. Bd. of County Comm’rs, 582 F.3d 1155, 1172 (10th Cir.

2009). The court therefore entered a judgment of dismissal in favor of all

defendants. 

Upon entry of judgment, the private defendants sought an award of

attorneys’ fees, asserting that Chapman’s civil-rights claims were baseless,

frivolous, unreasonable, and brought in bad faith. A magistrate judge held a

hearing on the fee applications, at which Chapman failed to appear. Concluding

Chapman’s complaint was lacking in factual support and legal merit, he

recommended awarding fees to the private defendants. After Chapman filed no

objection to the magistrate judge’s report and recommendation, the district court

accepted it as entered and granted defendants’ motions for attorneys’ fees. 

Chapman submitted a motion to vacate. Like the rest of his filings, the

motion was rambling, conclusory, and obscure. It may be liberally construed,

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however, as seeking reconsideration of the court’s order dismissing all defendants

as well as its order awarding attorneys’ fees. See de Silva v. Pitts, 481 F.3d 1279,

1284 n.4 (10th Cir. 2007) (attempting “to discern the kernel” of a pro se plaintiff’s

issues even though her filings were “difficult to understand . . . illogically

presented, and intellectually unfocused”). Keying on the issue of attorneys’ fees,

the district court denied Chapman’s motion. 

II.

In this court, Chapman sought to challenge all the district court’s

unfavorable rulings. Because his notice of appeal was untimely with regard to the

underlying merits judgment, this court determined that its further review would be

limited to the denial of the motion to vacate and the attorneys’ fee award. See

Order of Aug. 11, 2009; 28 U.S.C. § 2107(a) (requiring a notice of appeal to be

filed within 30 days of entry of judgment). 

A. Denial of motion to vacate the ruling on the merits

We review the district court’s denial of Chapman’s motion to vacate for an

abuse of discretion. See Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d

1222, 1228 (10th Cir. 2009). Such relief is appropriate if “the court has

misapprehended . . . the controlling law.” Id. (quotation omitted). Despite the

evident lack of merit in Chapman’s allegations, we must address the application of

the Younger abstention doctrine to his case. See Younger v. Harris, 401 U.S. 37

(1971). Under that doctrine, 

Appellate Case: 09-5085 Document: 01018401302 Date Filed: 04/13/2010 Page: 4
1 At times, this court has termed the Younger doctrine “jurisdictional,”

without extended explanation. See Chapman v. Oklahoma, 472 F.3d 747, 748

(10th Cir. 2006) (“[J]urisdiction is barred by the Younger abstention doctrine.”);

D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004)

(Younger abstention is jurisdictional.”). Younger abstention is “fundamentally”

and “essentially a jurisdictional doctrine” in the sense that “[d]istrict courts

applying Younger must exercise jurisdiction except when specific legal standards

are met, and may not exercise jurisdiction when those standards are met. . . .” 

(continued...)

-5-

 [a] federal court must abstain from exercising jurisdiction when: 

(1) there is an ongoing state . . . civil . . . proceeding, (2) the state

court provides an adequate forum to hear the claims raised in the

federal complaint, and (3) the state proceedings involve important

state interests, matters which traditionally look to state law for their

resolution or implicate separately articulated state policies.

Amanatullah v. Colo. Bd. of Med. Exam’rs, 187 F.3d 1160, 1163 (10th Cir. 1999)

(quotation omitted). 

Tenth Circuit cases consistently state that the application of Younger is

mandatory. See, e.g., Weitzel v. Div. of Occupational and Prof’l Licensing of

Dep’t of Commerce, 240 F.3d 871, 875 (10th Cir. 2001) (“[T]he district court must

abstain once the conditions are met, absent extraordinary circumstances.”)

(quotation omitted); Taylor v. Jaquez, 126 F.3d 1294, 1296 (10th Cir. 1997)

(“[A]pplication of the Younger doctrine is absolute[,] when a case meets the

Younger criteria, there is no discretion for the district court to exercise.”)

(quotation and alteration omitted); Phelps v. Hamilton, 59 F.3d 1058, 1063

(10th Cir. 1995) (“Even though Younger is an equitable doctrine, its application is

mandatory . . . .”).1

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1

(...continued)

Canatella v. California, 404 F.3d 1106, 1113 (9th Cir. 2005) (quotation omitted). 

Younger “neither provides a basis for nor destroys federal jurisdiction, [but] it

does determine when the federal courts must refrain from exercising jurisdiction.” 

Id. (quotation omitted). 

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Because this court may consider “Younger abstention for the first time on

appeal,” Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir. 2006), we review

the appellate record in light of the three Younger considerations. The state custody

matter was ongoing at the time Chapman filed this action, thus satisfying the first

Younger condition. As for the second condition, it is a plaintiff’s burden to

establish that state law prevents him from presenting his federal claims in state

proceedings. See J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1292 (10th Cir.

1999). The record provides no indication that Chapman was prevented from

presenting his claims in state court. Finally, custody issues are traditional

state-law matters that implicate important state interests, fulfilling the third

condition. Morrow v. Winslow, 94 F.3d 1386, 1393 (10th Cir. 1996) (noting that

the comity considerations of the Younger doctrine are particularly vital in “child

custody proceedings[, which] are an especially delicate subject of state policy”).

We thus conclude that all three Younger conditions are present in this case

and have been present since its inception. Moreover, our review of the parties’

briefs and the record on appeal persuades us that there are no extraordinary

circumstances that would render Younger abstention inappropriate. 

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Insofar as Chapman’s motion to vacate challenged the district court’s merits

ruling, we conclude that the district court was compelled to abstain from

exercising its jurisdiction over Chapman’s claims for injunctive or declaratory

relief and those claims should have been dismissed without prejudice. D.L. v.

Unified Sch. Dist. No. 497, 392 F.3d 1223, 1232 (10th Cir. 2004). As for his

damages claims, “[t]he rationale for Younger abstention can be satisfied . . . by

just staying proceedings . . . until the state proceeding is final.” Id. at 1228. We

therefore remand with instructions for the district court to stay proceedings on

Chapman’s damage claims and dismiss without prejudice his remaining claims. 

See id. at 1232.

B. Grant of Attorneys’ Fees and Denial of Motion to Vacate Award

Chapman also appeals the district court’s award of attorneys’ fees, which

was based on the frivolous nature of his complaint. We review the district court’s

decision to award attorneys’ fees for an abuse of discretion, but review de novo its

application of the legal principles underlying that decision. Nat’l Ass’n of Prof’l

Baseball Leagues, Inc. v. Very Minor Leagues, Inc., 223 F.3d 1143, 1146

(10th Cir. 2000). 

“[A] prevailing defendant in a civil rights action may recover attorney fees

only if the suit was vexatious, frivolous, or brought to harass or embarrass the

defendant.” Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1203 (10th Cir.

2000) (quotations and citations omitted). In instances of Younger abstention,

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however, a dismissal “makes no comment on the merits of the case, and does not

materially alter the legal relationship between the parties.” Elwood v. Drescher,

456 F.3d 943, 948 (9th Cir. 2006) (alteration and quotation omitted). See also

Okun v. Comm’r, 26 F.3d 1025, 1027 (10th Cir. 1994) (stating that “in the absence

of . . . jurisdiction we do not decide whether the appellant’s arguments are

frivolous or well taken”) (alteration and quotation omitted). The individual

defendants are not prevailing parties at this point, and are therefore not entitled to

attorneys’ fees. 

We reverse and remand with instructions to the district court to stay

Chapman’s claims for damages, dismiss without prejudice his remaining claims,

and vacate the award of attorneys’ fees. Chapman’s “Objection and Motion to

Strike Response Brief of Defendant Mark Barcus” is denied. 

Entered for the Court

Michael R. Murphy

Circuit Judge

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