## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 3 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

SUZANNE SHELL,

Plaintiff, and APRIL FIELDS,

Plaintiff-Appellant,

v. ROCCO F. MECONI, individually and officially; FREMONT COUNTY COLORADO DEPARTMENT OF HUMAN SERVICES, officially; STEVE CLIFTON, individually and officially; DAWN RIVAS, individually and officially; TODD HANENBERG, individually and officially; DAN C. KENDER, individually; ANNA HALL OWEN, individually and officially,

Defendants-Appellees, and
FREMONT COUNTY DISTRICT COURT, Defendant. No. 04-1133 (D.C. No. 03-RB-743 (MJW))

(D. Colo.)-2-

SUZANNE SHELL,

Plaintiff-Appellant, and APRIL FIELDS,

Plaintiff,

v. ROCCO F. MECONI, individually and officially; FREMONT COUNTY COLORADO DEPARTMENT OF HUMAN SERVICES, officially; STEVE CLIFTON, individually and officially; DAWN RIVAS, individually and officially; TODD HANENBERG, individually and officially; DAN C. KENDER, individually; ANNA HALL OWEN, individually and officially,

Defendants-Appellees, and
FREMONT COUNTY DISTRICT COURT, Defendant. No. 04-1155 (D.C. No. 03-RB-743 (MJW))

(D. Colo.)* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T hese cases are therefore ordered submitted without oral argume nt. This order and judgment is not binding precedent, except under the doctrine s of law of the case, res judicata, and collateral estoppel. The court gener ally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

** The Honorable Clarence A. Brimmer, District Judge, United States District Court for the District of Wyoming, sitting by desig nation.

1 The Youngerabstention doctrine, a judicially created bar to f ederal court interference with ongoing state court proceedings, takes its name from Younger v. Harris , 401 U.S. 37 (1971). The Rooker-Feldman doctrine, a jurisdictional prohibition based on 28 U.S.C. § 1257 which holds that federal review of state court judgments (with the exception of habeas corpu s) can be obtained only in the United States Supreme Court, derives from Rooker v. Fidelity Trust Co. , 263 U.S. (continued...) -3- ORDER AND JUDGMENT *

Before HARTZ and BALDOCK , Circuit Judges, and BRIMMER , ** District Judge.

Pro se plaintiffs April Fields and Suzanne Shell fi led separate appeals challenging the district court’s order dismissing their civil rights action against defendants Rocco F. Meconi, the Fremont County Colo rado Department of Human Services (Fremont County DHS), Steve Clifton, Dawn Rivas, and Todd Hanenberg (collectively, the Fremont County defendants), under, alternatively, the Younger and Rooker-Feldman doctrines, 1 or Fed. R. Civ. P. 12(b)(6).1 (...continued)

413 (1923), and D.C. Court of Appeals v. Feldman , 460 U.S. 462 (1983). -4- Plaintiffs’ appeals also challenge the district cou rt’s Rule 12(b)(6) dismissals of their claims against defendants Dan C. Kender and A nna Hall Owen. We liberally construe plaintiffs’ pro se pleadings. Haines v. Keener , 404 U.S. 519, 520-21 (1972) (per curiam). This court reviews de novo a district court’s decis ion to abstain from exercising jurisdiction under the Younger doctrine. Amanatullah v. Colo. Bd. of Med. Exam’rs , 187 F.3d 1160, 1163 (10th Cir. 1999). We likewis e review de novo a district court’s dismissal of a complaintfor lack of subject matter jurisdiction under the Rooker-Feldman doctrine, and a Rule 12(b)(6) dismissal. Smith v. Plati , 258 F.3d 1167, 1174 (10th Cir. 2001); Kiowa Indian Tribe of Okla.
v. Hoover , 150 F.3d 1163, 1165 (10th Cir. 1998). Additional ly, “[w]e are free to affirm a district court decision on any grounds forwhich there is a record sufficient to permit conclusions of law, even groun ds not relied upon by the district court.” United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994). Applying these standards, we agree with the distric t court’s decision to adopt the magistrate judge’s recommendation that pl aintiffs’ claims against the Fremont County defendants be dismissed for lack of subject matter jurisdiction under the Rooker-Feldman doctrine. But the district court’s implicit-5-

determination that it had subject matter jurisdicti on over plaintiffs’ identical claims against Mr. Kender and Ms. Owen was misplaced. The Rooker-Feldman doctrine barred these claims as well. We therefore dispose of the underlying case on jurisdictional grounds and do not reach its merits. See Steel Co. v. Citizens for
a Better Env’t , 523 U.S. 83, 94-95 (1998). Our disposition, whic h differs slightly from the district court’s, is easily accommodated b y modifying the district court’s dismissal to make clear that the underlying case sh ould have been dismissed for lack of subject matter jurisdiction pursuant to the Rooker-Feldman doctrine. As modified, the district court’s judgment is affirmed

. I. Background Ms. Fields’s daughter was the subject of a dependen cy and neglect proceeding initiated by the state of Colorado in January 2003. In connection therewith, the state provided Ms. Fields a court-ap pointed attorney, Mr. Kender, but Ms. Fields also hired Ms. Shell, a journalist w ho researches and documents child protection agencies’ practices, to act as an expert consultant. Shortly thereafter, Ms. Fields executed a power of attorneynaming Ms. Shell as her agent. Ms. Fields also agreed to be included in Ms . Shell’s documentary video project concerning child protection services. On April 16, 2003, Mr. Meconi, the Fremont County D HS’s attorney, filed a motion in state court to make Ms. Shell a special respondent in the pending2 The federal district court, in an order dated May 1 4, observed that

Ms. Shell had signed plaintiffs’ federal complaint on Ms. Fields’s behalf. The court ruled that there was no showing that Ms. Shel l is an attorney, and notwithstanding the power of attorney, Ms. Shell co uld neither represent Ms. Fields nor sign any documents on Ms. Fields’s b ehalf. The court directed Ms. Fields to correct the omission of her signature on the complaint, which she did. -6- dependency and neglect action. The motion sought t o prevent Ms. Shell “from contacting the minor child or [Ms. Fields] . . . an d from otherwise being involved in the proceedings . . . , including, but not limit ed to, acting as counsel for [Ms. Fields] or otherwise engaging in the unauthori zed practice of law.” R. Vol. I, Doc. 1 at 8-9. On April 25, in anticipation of a state court heari ng on the motion to make Ms. Shell a special respondent, Ms. Shell, who is n ot an attorney, and Ms. Fields, through Ms. Shell (pursuant to the power of attorne y), filed a “Complaint and Motion for Declaratory and Injunctive Relief and Damages,” alleging impediments to Ms. Shell’s involvement in Ms. Field s’s dependency and neglect action. 2 Id. Citing 42 U.S.C. §§ 1983 and 1985(3), plaintiffs asserted that defendants–through their “actions and inactions . . . under the color of law and/or conspiring to act with the defendants who are actin g under the color of law”–were depriving plaintiffs of their freedom to associate (in order to advocate and educate about child protection practices); right to contract (by attempting to invalidate the power of attorney and by filing a mo tion to make Ms. Shell a3 Plaintiffs duplicated their request that defendants be restrained from

conducting a hearing on the motion to make Ms. Shel l a special respondent in an “Emergency Motion for Injunctive Relief,” R. Vol. I , Doc. 2, that they filed simultaneously with their federal complaint. The f ederal district court denied the Emergency Motion on April 25, the same day it was f iled. -7- special respondent); freedom of the press (by attempting to block the parties’ contact and thus prevent Ms. Fields from being incl uded in Ms. Shell’s documentary video project); and due process (by notallowing plaintiffs “the right to a fair hearing by an impartial judge, the right to present all the evidence . . . [,] the right to cross examine . . . , [and] the right to effective assistance of counsel.”). R. Vol. I, Doc. 1 at 10-13. Plaintiff s also asserted that defendants–again, through their “actions and inacti ons . . . under the color of law and/or conspiring to act with the defendants who ar e acting under the color of law,” id. at 13,–were discriminating against Ms. Shell (and defaming her) due to her viewpoint; specifically, her opinion that in Fr emont County “routine violations of rights and rampant abuses permeat[e] every aspect of . . . child protection,” id. at 3. As for relief, plaintiffs asked the federal district court to “[a]ssume jurisdiction over th[e] action,” and to e nter declaratory and injunctive relief (1) restraining defendants from conducting ahearing on the state court motion to make Ms. Shell a special respondent; 3 (2) “prohibiting . . . defendants from engaging in any future conduct which would imp air or deny plaintiffs’ rights ”; and (3) “ensur[ing] the fair and appropriate handling” of Ms. Fields’s-8-

dependency and neglect case by “chang[ing] the venu e,” by appointing a “DHS agency other than [the] Fremont County DHS,” and by“replac[ing] the GAL [guardian ad litem].” Id. at 14. Plaintiffs also sought monetary damages. On May 9, after a hearing on the motion to make Ms. Shell a special respondent, the state court issued an order grantin g the motion, vesting legal custody of Ms. Fields’s daughter with the Fremont C ounty DHS, and scheduling a jury trial. In making Ms. Shell a special responde nt the court observed that Ms. Shell, “in the guise of acting as the agent” fo r Ms. Fields, has “essentially been providing legal advice to [Ms. Fields].” App. to Shell’s Aplt. Br. at 56. The state court further ordered Ms. Shell specifically prohibited from: a. Preparing, providing or otherwise generating any l egal documents; b. Providing any legal advice to [Ms. Fields], regard less of whether she (Suzanne Shell) characterizes it as leg al advice or counseling; c. . . . having any relationship or contact with [Ms. Fields] at all; [and] d. . . . exercising, in any way, the rights or author ity expressed in the power of attorney given to her by [Ms. Fields]

. . . . Id. On July 10, plaintiffs filed separate supplements t o their federal complaint. Neither plaintiff raised any new claims. But Ms. S hell’s supplement observed-9-

that “the action the plaintiffs wanted restrained [ had] occurred, and further irreparable deprivations were accomplished by the a ctions of the defendants.” Aplee. App. at 56. Ms. Shell also claimed that “[s ]ince the filing of the [federal complaint], the defendants have continued committin g actions which constitute ongoing and irreparable deprivations of the plaintiffs’ rights.” Id. On February 11, 2004, a magistrate judge recommende d that plaintiffs’ claims against the Fremont County defendants be dis missed pursuant to both the

“ Younger [doctrine] and the Rooker-Feldman doctrine.” R. Vol. I, Doc. 92 at 17. In the alternative, the magistrate judge considered the merits of plaintiffs’ claims against the Fremont County defendants and recommend ed that each claim against each Fremont County defendant be dismissed under Ru le 12(b)(6). The magistrate judge then turned to the 12(b)(6) motion s filed by Mr. Kender and Ms. Owen and recommended that each claim against ea ch defendant be dismissed under Rule 12(b)(6). The federal district court adopted the magistrate j udge’s recommendation and dismissed plaintiffs’ case in its entirety. Inso doing, the district court did not indicate whether its dismissal was based on the “ Younger [doctrine] and the Rooker-Feldman doctrine,” R. Vol. I, Doc. 92 at 17, the merits, or both.-10- II. Analysis At the time plaintiffs filed their federal action, in April 2003, questions loomed about whether the federal district court sho uld abstain pursuant to the Younger doctrine. See Amanatullah , 187 F.3d at 1163. But after the state court granted the motion to make Ms. Shell a special resp ondent, in May 2003, the Rooker-Feldman doctrine came to the forefront. “[T]he Rooker-Feldman doctrine prohibits a lower federal court from considering claims actually decided by a state court, and claims inextricably intertwined with a prior state-court judgment.” Kenmen Eng’g v. City of Union , 314 F.3d 468, 473 (10th Cir. 2002) (citations and quotations omitted). “In other words, Rooker-Feldman precludes a party losing in state court . . . from seeking what in substance would be appellate review of [a] state judgment in a United States district court . . . .” Id. (alteration in original) (quotation omitted). “Thi s prohibition extends to all state-court decisions–final or otherwise.” Id . at 475. In this case, plaintiffs’ federal causes of action were not decided by the state court; indeed, plaintiffs did not raise them in the state court. We therefore consider whether they are inextricably intertwined with a prior state court judgment, such that the federal district court here was divested of subject matter jurisdiction.-11-

“Although it is difficult to formulate a foolproof test” to determine when a federal plaintiff’s claims are inextricably intertw ined with a prior state court judgment, “we approach the question by asking wheth er the state-court judgment caused , actually and proximately, the injury for which the federal-court plaintiff seeks redress . If it did, Rooker-Feldman deprives the federal court of [subject matter] jurisdiction.” Kenmen Eng’g , 314 F.3d at 476 (footnote omitted). In conducting this inquiry, our focus is on “the reliefsought by the federal-court plaintiff.” Id. ; see also Crutchfield v. Countrywide Home Loans , 389 F.3d 1144, 1148 (10th Cir. 2004). The relief sought by Ms. Fields and Ms. Shell stems from the state court motion to make Ms. Shell a special respondent. And , when Ms. Shell was made a special respondent by state court order, the injury“plaintiffs wanted restrained [had] occurred.” Aplee. App. at 56. That is, the state court order making Ms. Shell a special respondent caused the injury fo r which plaintiffs sought relief in federal court. Moreover, plaintiffs’ supplement s to their federal complaint essentially asked the federal district court to per form appellate review of the state court’s order–review that is barred by Rooker-Feldman . Notwithstanding, plaintiffs make two attempts to avoid this result. Both are unavailing. First, plaintiffs assert that Ms. Shell (in Ms. Fie lds’s words) “has never been” a party to the underlying dependency and negl ect action and that-12-

Rooker-Feldman is therefore inapplicable. Fields’s Aplt. Br. at 8 (citing Johnson v. De Grandy , 512 U.S. 997, 1006 (1994)); but see Kenmen Eng’g , 314 F.3d at 480 (rejecting the “contention that the absence of a full and fair opportunity to litigate a claim in the prior state-court proceedin g bars application of the Rooker-Feldman doctrine”). Plaintiffs’ assertion that Ms. Shell “has never been” a party to the underlying case, Fields’s Aplt. Br. at 8, is false. The state court made Ms. Shell a party to the dependency and neglec t action by order dated May 9, 2003, at which point Ms. Shell could have ap pealed the state court order that made her a special respondent and raised her f ederal claims. Second, plaintiffs contend that the Rooker-Feldman doctrine “does not bar federal court actions raising federal claims that w ere not litigated in the state court proceedings,” Fields’s Aplt. Br. at 9, and th at plaintiffs’ federal causes of action “were never raised in the [state] court and were not the subject of the state court hearing,” Shell’s Aplt. Br. at 13-14. On the facts of this case, this claim is without merit. Although plaintiffs did not raise their federal claims in state court, these claims are inextricably intertwined with the state court order; moreover, plaintiffs’ prior omission of their federal claims cannot now be used to circumvent application of the Rooker-Feldman doctrine. See Taylor v. Fed. Nat. Mortgage Ass’n , 374 F.3d 529, 532-33 (7th Cir. 2004) (“[F]ederal claims presented to the district court that were not raise d in state court . . . may still be-13-

subject to Rooker-Feldman if those claims are ‘inextricably intertwined’ with a state court judgment.”); Strasen v. Strasen , 897 F. Supp. 1179, 1183 (E.D. Wis. 1995) (“A district court may not entertain an argum ent that, even if not argued in state court, is ‘inextricably intertwined’ with a s tate court judgment.”).
III. Conclusion The district court properly concluded that it was w ithout subject matter jurisdiction under the Rooker-Feldman doctrine to entertain plaintiffs’ claims against the Fremont County defendants. For the sam e reason, the district court did not have subject matter jurisdiction to hear pl aintiffs’ identical claims against Mr. Kender and Ms. Owen. The district court shouldhave sua sponte dismissed the claims against Mr. Kender and Ms. Owen for lackof subject matter jurisdiction rather than address the merits of plai ntiffs’ claims against these two defendants. See Tafoya v. United States Dep’t of Justice, 748 F.2d 1389, 1390 (10th Cir. 1984) (“Insofar as subject matter jurisd iction is concerned, it has long been recognized that a federal court must, sua sponte , satisfy itself of its power to adjudicate in every case and at every stage of the proceedings . . . .”). Because the district court did not have subject matter juri sdiction over any of the claims raised by plaintiffs, we MODIFY the district court’ s dismissal of all claims against all defendants to be for lack of subject matter jurisdiction under the-14-

Rooker-Feldman doctrine. As modified, the district court’s judgment is
AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge