Rubeck v. Divis

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 31, 2022
• Docket: 21-8043
• Status: Unpublished

Opinion

Appellate Case: 21-8043 Document: 010110638841 Date Filed: 01/31/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 31, 2022 _________________________________ Christopher M. Wolpert Clerk of Court DENNIS PERRI RUBECK,

Plaintiff - Appellant,

v. No. 21-8043 (D.C. No. 0:21-CV-00090-ABJ) DAVE DIVIS, Sweetwater County (D. Wyo.) Assessor,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, BALDOCK, and PHILLIPS, Circuit Judges. _________________________________

Dennis Perri Rubeck, proceeding pro se, appeals the district court’s dismissal

of his tax-protestor suit for lack of subject-matter jurisdiction. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Mr. Rubeck filed this suit under 42 U.S.C. § 1983 against the tax assessor for

Sweetwater County, Wyoming. He sought injunctive relief—namely, the immediate

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-8043 Document: 010110638841 Date Filed: 01/31/2022 Page: 2

and permanent removal of a home he owns from the Sweetwater County tax rolls. He

alleged Sweetwater County lacked authority to assess taxes related to the property in

question.

The district court dismissed his suit for lack of subject-matter jurisdiction

under Fed. R. Civ. P. 12(b)(1). It said that the Tax Injunction Act, 28 U.S.C. § 1341,

barred it from entertaining Mr. Rubeck’s claims. It further said that “under the

principle of comity, federal courts are barred from granting injunctive or declaratory

relief in state tax cases.” R. at 37 (citing Brooks v. Nance, 801 F.2d 1237, 1241

(10th Cir. 1986)).

II. DISCUSSION

We review de novo the district court’s dismissal for lack of subject-matter

jurisdiction. See Safe Streets All. v. Hickenlooper, 859 F.3d 865, 877 (10th Cir.

2017).

Under the Tax Injunction Act, “[t]he district courts shall not enjoin, suspend or

restrain the assessment, levy or collection of any tax under State law where a plain,

speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C.

§ 1341. The district court found that Wyo. Stat. Ann. § 39-13-109 provides an

adequate remedy for Mr. Rubeck’s claims in Wyoming state courts. And Mr. Rubeck

does not challenge this dispositive finding on appeal. See Sawyers v. Norton,

962 F.3d 1270, 1286 (10th Cir. 2020) (“Issues not raised in the opening brief are

deemed abandoned or waived.” (internal quotations omitted)).

2 Appellate Case: 21-8043 Document: 010110638841 Date Filed: 01/31/2022 Page: 3

To the extent Mr. Rubeck argues the Tax Injunction Act does not apply

because he asserts a civil rights or federal constitutional challenge to the tax in

question, our precedent forecloses this argument. See Brooks, 801 F.2d at 1239

(“Basing a complaint upon alleged violation of civil rights . . . or of the Federal

Constitution will not avoid the prohibition contained in Section 1341.” (internal

quotations omitted)).

III. CONCLUSION

We affirm the district court’s dismissal of Mr. Rubeck’s complaint.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge