Blake v. Hong

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 25, 2023
• Docket: 22-1110
• Status: Unpublished

Opinion

Appellate Case: 22-1110 Document: 010110803255 Date Filed: 01/25/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 25, 2023 _________________________________ Christopher M. Wolpert Clerk of Court RICHARD ROY BLAKE,

Plaintiff - Appellant,

v. No. 22-1110 (D.C. No. 1:21-CV-00138-RMR-NYW) LILIANE HONG; D. BURTON; THE (D. Colo.) CITY OF NORTHGLENN COLORADO, a municipality,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, TYMKOVICH, and MATHESON, Circuit Judges. _________________________________

Richard Roy Blake appeals the dismissal of his claims brought under

42 U.S.C. § 1983 and arising from a municipal court misdemeanor conviction in

Northglenn, Colorado. The district court dismissed two of his claims for lack of

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-1110 Document: 010110803255 Date Filed: 01/25/2023 Page: 2

subject matter jurisdiction under the Rooker-Feldman doctrine1 and dismissed his

remaining three claims for failure to state a claim. We hold that the Rooker-Feldman

doctrine does not apply, but we affirm the dismissal of all the claims because

Mr. Blake failed to plausibly allege any claim on which relief can be granted.

I. BACKGROUND

Mr. Blake was protesting on a sidewalk outside a mosque in Northglenn,

Colorado. He held a sign that said “Equal Rights for Christians in Islamic Nations”

on one side and “Islam Kills” on the other side. Northglenn Police Officers Liliane

Hong and Darren Burton cited him for violating Northglenn Municipal Code § 9-11-

16.5, which prohibits the obstruction of streets and sidewalks. Mr. Blake moved to

dismiss in Northglenn Municipal Court, arguing that (1) the ordinance is

unconstitutionally vague and overbroad, and (2) the citation violated his First

Amendment rights and was issued in retaliation for the exercise of his free speech

rights. The municipal court denied the motion. On October 30, 2020, a three-person

jury convicted Mr. Blake.

Mr. Blake appealed to the Adams County District Court, which affirmed his

conviction on June 23, 2021. The court rejected Mr. Blake’s vagueness and

overbreadth arguments but declined to address his other arguments. On November 8,

1 See Rooker v. Fid. Tr. Co., 263 U.S. 413, 415-16 (1923); D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 476 (1983).

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2021, the Colorado Supreme Court denied his petition for certiorari. On March 28,

2022, the United States Supreme Court denied his petition for certiorari.

On January 15, 2021, when his appeal to the Adams County District Court was

pending, Mr. Blake filed the underlying federal lawsuit against Officers Hong and

Burton and the City of Northglenn. He claimed (1) § 9-11-16.5 is void for vagueness

in violation of the Fourteenth Amendment, (2) it is overbroad in violation of the First

Amendment, (3) the police officers violated his First Amendment free speech rights

in issuing the citation, and (4) they issued the citation in retaliation for Mr. Blake’s

speech.

The district court granted the Defendants’ motion to dismiss. It held the

Rooker-Feldman doctrine barred Mr. Blake’s vagueness and overbreadth claims

because the state court had rejected them. But because the state court declined to

address Mr. Blake’s remaining claims, the district court said Rooker-Feldman did not

apply to them. It dismissed those claims for failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6). Mr. Blake then brought this pro se appeal.2

II. DISCUSSION

A. Subject Matter Jurisdiction

We first consider whether the district court had subject matter jurisdiction.

See Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1182 (10th Cir. 2000)

2 We liberally construe Mr. Blake’s pro se filings, but we do not assume the role of his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

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(“In light of the limited subject matter jurisdiction granted to the federal courts by

Congress, we have a duty to satisfy ourselves that jurisdiction is appropriate.”).

Defendants argue the Rooker-Feldman doctrine precludes jurisdiction over all

of Mr. Blake’s claims. That doctrine “prevents 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, based on the losing party’s claim that the state judgment itself

violates the loser’s federal rights.” Tal v. Hogan, 453 F.3d 1244, 1256 (10th Cir.

2006) (quotations and brackets omitted).

The Rooker-Feldman doctrine, however, “applies only to suits filed after state

proceedings are final.” Guttman v. Khalsa, 446 F.3d 1027, 1032 (10th Cir. 2006). In

Guttman, the plaintiff filed his federal lawsuit while his petition for certiorari to the

New Mexico Supreme Court was still pending. Id. We deemed the plaintiff’s state

lawsuit not final and held that Rooker-Feldman thus did not bar his federal lawsuit.

Id. Here, Mr. Blake filed his federal lawsuit in January 2021, five months before the

Adams County District Court ruled on his appeal and nearly 11 months before the

Colorado Supreme Court denied his petition for certiorari. Under Guttman, Rooker-

Feldman thus did not bar the district court’s exercise of jurisdiction over Mr. Blake’s

federal lawsuit. See also D.A. Osguthorpe Fam. P’ship v. ASC Utah, Inc., 705 F.3d

1223, 1232 (10th Cir. 2013).

B. Failure to State a Claim

Although the district court should not have declined to address the merits of

Mr. Blake’s overbreadth and vagueness claims based on the Rooker-Feldman

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doctrine, “we may affirm on any basis supported by the record, even if it requires

ruling on arguments not reached by the district court or even presented to us on

appeal.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011). We

typically will do so when “the parties have fully briefed and argued the alternate

ground.” See United States v. Chavez, 976 F.3d 1178, 1203 n.17 (10th Cir. 2020)

(quotations omitted). In their motion to dismiss, Defendants fully briefed their

arguments that the overbreadth and vagueness claims should be dismissed on their

merits. Mr. Blake had a fair opportunity to respond. We therefore will address those

arguments and will review the district court’s merits dismissal of the other claims.3

We review a dismissal under Rule 12(b)(6) de novo. Smith v. United States,

561 F.3d 1090, 1098 (10th Cir. 2009). We accept as true all well-pleaded factual

allegations and view them in the light most favorable to the plaintiff. Id. In making

that assessment, we must determine whether Mr. Blake’s complaint “contain[s]

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).

Void for Vagueness

Mr. Blake failed to allege a void-for-vagueness claim. An ordinance is void

for vagueness if it (1) “fails to provide people of ordinary intelligence a reasonable

3 Although we affirm based on failure to state any claim, Mr. Blake’s action also may run afoul of Heck v. Humphrey, 512 U.S. 477 (1994), because his § 1983 case implicates the validity of his criminal conviction. Because the Defendants moved to dismiss based on failure to state a claim and did not present a Heck argument, we affirm on the former ground. 5 Appellate Case: 22-1110 Document: 010110803255 Date Filed: 01/25/2023 Page: 6

opportunity to understand what conduct it prohibits,” or (2) “authorizes or even

encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S.

703, 732 (2000).

The ordinance here provides:

It is unlawful for any person to willfully, maliciously or recklessly place in any doorway or driveway not owned by him or under his lawful control or on any sidewalk, public highway, street or alley in the City any object which causes or tends to cause the obstruction thereof or of any part thereof.

Northglenn Mun. Code § 9-11-16.5.

Mr. Blake has not alleged or argued that the ordinance authorizes or

encourages arbitrary enforcement, and we find that people of ordinary intelligence

would understand what it means.

Overbreadth

To survive a motion to dismiss on his overbreadth claim, Mr. Blake must

plausibly allege substantial overbreadth. Faustin v. City & Cnty. of Denver, 423 F.3d

1192, 1199 (10th Cir. 2005). This requires him to allege that Northglenn’s ordinance

“actually sweeps within its prohibitions such a substantial amount of protected free

speech in relation to its plainly legitimate sweep that the [ordinance] itself must be

invalid on its face.” Id. at 1200 (quotations omitted). Overbreadth is “strong

medicine,” and courts “employ[] it with hesitation, and then, only as a last resort.”

Id. at 1199 (quotations omitted).

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The ordinance does not regulate speech. Rather, it prohibits physical

obstruction of public rights-of-way, including sidewalks, a “plainly legitimate

sweep.” Id. Mr. Blake has not alleged the ordinance prohibits a substantial amount

of protected free speech. “[T]he mere fact that one can conceive of some

impermissible applications of a statute is not sufficient to render it susceptible to an

overbreadth challenge.” Members of the City Council of L.A. v. Taxpayers for

Vincent, 466 U.S. 789, 800 (1984). He has failed to allege an overbreadth claim.

First Amendment

Mr. Blake failed to allege a plausible claim that the citation violated his First

Amendments rights. He contends that he was convicted for obstructing the sidewalk

with his body, not for carrying a sign. The ordinance prohibits the obstruction of the

sidewalk regardless of the type of object used. See McCullen v. Coakley, 573 U.S

464, 481 (2014) (“Obstructed access and congested sidewalks are problems no matter

what caused them.”). Mr. Blake’s operative complaint appended a police report

observing that he caused other pedestrians to step into the road to get around him.4

As the district court held, under the ordinance individuals “retain[] the ability to

exercise their First Amendment rights, they simply must exercise those rights without

4 See Commonwealth Prop. Advocs., LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194, 1201 (10th Cir. 2011) (“In evaluating a motion to dismiss, we may consider not only the complaint, but also the attached exhibits and documents incorporated into the complaint by reference.”).

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blocking sidewalks, doorways, or driveways.” R. at 220. We affirm the district

court’s dismissal of this claim.

First Amendment Retaliation

To state a claim of retaliation for the exercise of First Amendment rights,

Mr. Blake must plausibly allege the citation was issued without probable cause. See

Fenn v. City of Truth or Consequences, 983 F.3d 1143, 1149 (10th Cir. 2020);

Williams v. City of Carl Junction, 480 F.3d 871, 876-77 (8th Cir. 2007) (in First

Amendment retaliation case, applying probable cause requirement to the issuance of

citations). As the district court found, Mr. Blake failed to do so. Because a jury

convicted Mr. Blake, he cannot plausibly allege there was no probable cause to issue

the citation. See Cameron v. Fogarty, 806 F.2d 380, 388-89 (2d Cir. 1986)

(“[W]here law enforcement officers have made an arrest, the resulting conviction is a

defense to a § 1983 action asserting that the arrest was made without probable

cause.”).

Municipal Liability

There can be no municipal liability in the absence of an underlying

constitutional violation. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.

2006). Because Mr. Blake did not adequately plead an underlying constitutional

violation, the municipal liability claim necessarily fails.

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III. CONCLUSION

We affirm the district court’s dismissal of Mr. Blake’s claims.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge