UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ STEVEN A. DELOGE, Plaintiff - Appellant,

v. MICHAEL K. DAVIS, Chief Justice of the Wyoming Supreme Court; E. JAMES BURKE, former Chief Justice of the Wyoming Supreme Court, in their official capacities, Defendants - Appellees. No. 21-8025 (D.C. No. 0:21- CV-00076-SWS) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , MURPHY , and CARSON , Circuit Judges.

________________ _________________ Plaintiff Steven DeLoge is serving six consecutive life sentences in the Wyoming Department of Corrections fo r his convictions on multiple counts of second-degree sexual assault. Plaintiff is a prolific file r in Wyoming’s state courts, unsuccessfully challenging various aspects of his c onvictions and sentence.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 30, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 21-8025 Document: 010110625858 Date Filed: 12/30/2021 Page: 12 Following one of Plaintiff’ s appeals, the Wyoming Supr eme Court issued an order barring Plaintiff from filing in any Wyoming state court w ithout first obtaining leave from the Chief Justice of the Wyoming Supreme Court. 1 Plaintiff then sought leave many times to file various post-conviction actions, but each time the Chief Justice denied Plaintiff’s request. Unhappy with these results, Plain tiff sued the current Chief Justice and a former Chief Justice of the Wyomi ng Supreme Court in federal court, alleging that the Wyoming Supreme Court’s order barring him from filing and the Chief Justices’ later orde rs denying him leave violated the First and Fourteenth Amendments to the United St ates Constitution. Plai ntiff seeks a declaratory judgment and injunction requiring the Chie f Justice of the Wyoming Supreme Court to permit him to file his post-convicti on actions in Wyomi ng state court. Concluding that the Rook er-Feldman doctrine bars Plaintiff’s claims, the district court dismissed the claims with prejudice for failu re to state a claim. We agree with the district cour t that the Rooker-Feldman doctr ine applies to Plaintiff’s claims, but we conclude that the doctrine deprives the dist rict court of subject-matter jurisdiction. Thus, exercising jurisdic tion under 28 U.S.C. § 1291, we vacate the judgment of the district court and remand w ith instructions to dismiss Plaintiff’s claims without prejudice for lack of subject-matter jurisdiction. 2

1 Before the order went into effect , the Wyoming Supreme Court permitted Plaintiff to file objections, which the court overruled. 2 The district court denied Plaint iff’s motion to proceed on appeal in forma pauperis because the district court determ ined that Plaintiff presented no nonfrivolous ground to appeal. Plaintif f has renewed his request to proceed in forma pauperis in this court. Although we agree th at Plaintiff presents only frivolous Appellate Case: 21-8025 Document: 010110625858 Date Filed: 12/30/2021 Page: 23 Under 28 U.S.C. § 1915A(b)(1), the district court must review prisoner actions and dismiss any that fail to state a claim upon which relie f may be granted. While reviewing this action, the district court c oncluded that Plainti ff’s claims should be dismissed for failure to st ate a claim because they ar e barred by the Rooker-Feldman doctrine. We review de novo a district court’s dismissal fo r failure to state a claim. Young v. Davis, 554 F.3d 12 54, 1256 (10th Cir. 2009) (cit ation omitted). In doing so, we construe Plaintiff’s pr o se pleadings libe rally, Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013) (citation omitted), but we do not construct arguments for Plaintiff or advocate on his behalf, Hall v. Bellmon, 935 F.2d 11 06, 1110 (10th Cir. 1991). Under the Rooker-Feldman doctrine, lower federal co urts lack subject-matter jurisdiction to consider appeal s of state-court judgments. Kline v. Biles, 861 F.3d 1177, 1180 (10th Cir. 2017) (per curiam) (citation omitted) . The doctrine applies when a federal plaintiff pursues a claim that an adverse state-court judgment violated his federal rights and seeks what in subs tance is appellate review of the state judgment. Id. (citation omitted). When dete rmining whether a plai ntiff’s claims seek appellate review of a state-c ourt judgment, we focus partic ularly on the relief sought. Mo’s Express, LLC v. Sopkin, 441 F.3d 1229, 1237 (10th Ci r. 2006) (citation

arguments that his claims shoul d not have been dismissed, Pl aintiff is correct that the dismissal should have been without prejudi ce. We therefore grant Plaintiff’s motion to proceed in forma pauperis . In doing so, we remind Plai ntiff that he must continue to make partial payments until he has pa id the entire filing fee. See 28 U.S.C. § 1915(b). Appellate Case: 21-8025 Document: 010110625858 Date Filed: 12/30/2021 Page: 34 omitted). Rooker-Feldman generally applies when the requested relief would reverse or undo the state court’s judgment. See id. Plaintiff’s claims fall un der Rooker-Feldman. Plaintiff sued a current and former Chief Justice of the Wyoming Supreme Court, alleging that their orders and the Wyoming Supreme Court’s orders violat ed his federal rights. To redress his alleged injuries, Plaintiff seeks a declaratory judgment and an injunction requiring the Justices to reverse those orders. Pl aintiff argues that R ooker-Feldman does not apply because the Wyoming Supreme Court lack ed jurisdiction to enter the orders he challenges. Plaintiff cites no case or st atute creating an exception to the RookerFeldman doctrine by granting lower federal c ourts appellate jurisdiction to review the jurisdictional basis of a state-court j udgment. Plaintiff can challenge the constitutionality or the jurisdictional basis of state-court orde rs only through the proper appellate channels. B ecause Plaintiff seeks what in substance is appellate review of the Wyoming Supreme Court’s or ders, we and the district court lack jurisdiction to consider his claims further. Although the Rooker-Feldman doctrine bars lower fede ral courts from exercising jurisdiction over challenges to st ate-court judgments, the district court dismissed Plaintiff’s claims with prejudice for failure to state a claim upon which relief can a be granted—a dismissal on the merits. See Federate d Dep’t Stores v. Moitie, 452 U.S. 394, 399 n.3 (1981) (“The dism issal for failure to state a claim . . . is a judgment on the merits.” (quotation omitted)); Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (explaining that a dismissal is with prejudice Appellate Case: 21-8025 Document: 010110625858 Date Filed: 12/30/2021 Page: 45 when the dismissal is on the merits). A dismissal for l ack of jurisdiction must be without prejudice because it is not an adjudication on the merits. 3 Brereton, 434 F.3d at 1216. When the district court determ ined that the Rook er-Feldman doctrine applies to Plaintiff’s claims , the court should have dismi ssed the claims for lack of subject-matter jurisdiction and without pr ejudice. Accordingly, we VACATE the judgment of the district court and REMAND with instructions to dismiss Plaintiff’s claims without prejudice for lack of subject-matter jurisdiction.

VACATED and REMANDED.

Entered for the Court

Joel M. Carson III Circuit Judge

3 Dismissal without prejudice, however , does not necessarily mean that a plaintiff may amend his complaint. See Brereton, 434 F.3d at 121 9. District courts need not permit a plaintiff to amend his comp laint to cure jurisd ictional defects when doing so would be futile even though the di strict court dismisse d the claims without prejudice. See id. Appellate Case: 21-8025 Document: 010110625858 Date Filed: 12/30/2021 Page: 5