Richeson v. Weiser

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 15, 2023
• Docket: 22-1383
• Status: Unpublished

Opinion

Appellate Case: 22-1383 Document: 010110813216 Date Filed: 02/15/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 15, 2023 _________________________________ Christopher M. Wolpert Clerk of Court DAVID ALLEN RICHESON,

Plaintiff - Appellant,

v. No. 22-1383 (D.C. No. 1:22-CV-01370-NYW-MEH) PHILIP J. WEISER, in his official capacity (D. Colo.) as the Attorney General for Colorado,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, McHUGH, and CARSON, Circuit Judges. _________________________________

David Allen Richeson, pro se, sued Attorney General Philip J. Weiser under

42 U.S.C. § 1983, alleging Fourteenth Amendment Due Process violations. His

complaint apparently arises out of proceedings in state courts in 2010 that led to his

adjudication as a “protected person” under Colorado law. He claims that status

adjustment led to a series of personal and property losses, totaling $4.5 million in

damages.

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-1383 Document: 010110813216 Date Filed: 02/15/2023 Page: 2

The district court, relying on the Constitution’s Eleventh Amendment,

dismissed Richeson’s claim without prejudice for lack of subject-matter jurisdiction.

We agree that the Eleventh Amendment bars Richeson’s suit and affirm. Under that

provision, a state official cannot be sued in his official capacity unless Colorado

waives its sovereign immunity, and it has not done so here.

I. Background and Analysis

Richeson sued under § 1983. He alleges he was denied Fourteenth

Amendment Due Process when he was declared in 2010 a “Colorado State Adult

Protected Person.” Aplt. Br. at 3 (internal quotation marks omitted). Richeson

purports that this designation, which apparently means he was deemed mentally

incapacitated, caused him to lose “all his hard earned personal and professional

possessions.” Id. He demanded $4.5 million in damages.

Because an Eleventh Amendment defense concerns subject-matter jurisdiction,

we must first address Richeson’s assertion that the district court erred in finding

General Weiser immune from liability. See Ambus v. Granite Bd. of Educ., 975 F.2d

1555, 1559 (10th Cir. 1992); Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.

2002). We review a district court’s dismissal for lack of subject-matter jurisdiction

de novo. Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253, 1259 (10th Cir. 2002).

The Eleventh Amendment provides: “The Judicial power of the United States

shall not be construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.” In general, a state may not be sued in 2 Appellate Case: 22-1383 Document: 010110813216 Date Filed: 02/15/2023 Page: 3

federal court for damages unless it waives sovereign immunity. Ambus, 975 F.2d

at 1560. A state officer sued in his official capacity also enjoys this protection.

Colby v. Herrick, 849 F.3d 1273, 1276 (10th Cir. 2017). An effectively raised

Eleventh Amendment defense deprives a court of subject-matter jurisdiction. Harris

v. Owens, 264 F.3d 1282, 1288 (10th Cir. 2001).

For § 1983 purposes, a state official is the state itself when sued in his official

capacity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). And in

enacting § 1983, “Congress did not abrogate the states’ Eleventh Amendment

immunity.” Ambus, 975 F.2d at 1560.

Because Richeson sued General Weiser in his official capacity, Richeson

effectively sued the state of Colorado, which triggers the state’s sovereign-immunity

defense. There is no indication in the record—nor does Richeson claim—that

Colorado waived its immunity in this case. Accordingly, Richeson’s suit is barred

for lack of subject-matter jurisdiction. See id. at 1559 (acknowledging that “an

Eleventh Amendment defense is jurisdictional”).

Because we agree with the district court that it lacked subject-matter

jurisdiction in this case, we cannot proceed to the merits of Richeson’s claim and we

need not consider any other issues. See Harris, 264 F.3d at 1288 (internal quotation

marks omitted) (explaining that once an Eleventh Amendment defense is effectively

raised it becomes a limitation on a federal court’s subject-matter jurisdiction such

that the court cannot assume “hypothetical jurisdiction” to consider the merits of a

plaintiff’s claim).

3 Appellate Case: 22-1383 Document: 010110813216 Date Filed: 02/15/2023 Page: 4

II. Conclusion

We affirm the district court. We also deny Richeson’s Motion to Supplement

the Record on Appeal as Described. See 10th Cir. R. 10.4(E) (prohibiting briefs,

memoranda, and procedural motions from being included in the record on appeal

“unless they are relevant to the issues on appeal”).

Entered for the Court

Timothy M. Tymkovich Circuit Judge