F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 27, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
O LO Y EA D . WA L LIN ,
Plaintiff-Appellant,
v. No. 06-1373 (D.C. No. 06-cv-706-ZLW ) A RA PA H O E C OU N TY D ETENTION (D . Colo.) FA CILITY ; M R . R OB IN SO N ; M R. LAUDERDALE; M R. W ALLER; M R . C OOK ; M A N O S; S. C LA RK; FENDER; ARAM ARK CO RPORA TION ; PAM ; M S. RO SIE; M ARY; SEAN; M OE; W HEELER; AR APA HO E COUN TY C OM M ISSIO N ER S; C OLO RA DO DEPA RTM EN T O F CO RR ECTIONS; JEANNE M ILLER; M AX W INKLER; CO LOR AD O B OA RD OF PARO LE; A LLEN STA N LEY ,
Defendants-Appellees.
Plaintiff-Appellant, No. 06-1376 v. (D.C. No. 06-cv-1322-ZLW ) (D . Colo.) JAN ENE M cCA BE; SEAN M cDERM OTT,
Defendants-Appellees. O LO Y EA D . WA L LIN ,
v. No. 06-1416 (D.C. No. 06-cv-1516-ZLW ) D EN V ER DEPA RTM EN T O F (D . Colo.) H U MA N SER VIC ES; D IR EC TOR OF D EN V ER DEPA RTM EN T O F H U MA N SER VIC ES; C OLO RADO DIVISION O F CHILD SUPPORT EN FO RC EM EN T; D IR EC TO R OF CO LOR AD O D IVISION OF CH ILD SUPPOR T ENFOR CEM ENT; R HO N D A MA Y S; LA RA D ELKA; D A N A W A K EFIELD ,
OR D ER AND JUDGM ENT *
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.
Oloyea Wallin, appearing pro se as he did in the district court, appeals from
the dismissals of three separate cases he filed under 28 U.S.C. § 1983 while
incarcerated at the Arkansas Valley Correctional Center in the custody of the
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
-2- Colorado Department of Corrections (CDOC). W e have combined the matters for
disposition. Exercising jurisdiction under 28 U.S.C. § 1291 and liberally reading
M r. W allin’s pro se pleadings and other papers, see Hall v. Bellmon, 935 F.2d
1106, 1110 & n.3 (10th Cir. 1991), we affirm the district court’s judgment in
No. 06-1373, and we dismiss Nos. 06-1376 and 06-1416 as frivolous.
Accordingly, we grant M r. W allin in form a pauperis status (IFP) in No. 06-1373,
deny IFP status in the other two appeals, and declare two strikes for purposes of
28 U.S.C. § 1915(g).
Appeal No. 06-1373
In No. 06-1373, M r. W allin appeals from the district court’s dismissal
without prejudice of his § 1983 complaint and action for failure to comply with
the court’s order to cure certain deficiencies in his filings. On April 4, 2006,
M r. W allin filed a motion and affidavit for leave to proceed under 28 U.S.C.
§ 1915 (IFP motion). He also tendered a motion seeking a 120-day extension of
time to file his complaint because he did not have access to documents relevant to
his case, some of which were missing and some of which he was forced to send to
his family upon his incarceration with the CDOC. He stated that his deadline to
file a complaint was April 11, 2006, apparently due to potential
statute-of-limitations problems, and that the motion for an extension of time
would preserve his claims.
-3- On April 14, 2006, a magistrate judge directed the district court clerk to
comm ence a civil action and ordered M r. W allin to correct two deficiencies by
submitting, within thirty days, a certified copy of his inmate trust fund statement
and a complaint. The clerk commenced the action on that same date and also
filed the motion for an extension of time that M r. W allin had tendered. Finding
no justification for a 120-day extension to file a complaint, the magistrate judge
denied the motion in a M ay 23 minute order, but he gave M r. W allin thirty days
from the date of that order to comply with his April 14 order, specifically warning
M r. W allin that failure to comply would lead to the dismissal of his complaint and
action without further notice.
The next documents M r. W allin submitted w ere filed on July 3, 2006: (1) a
complaint; (2) an IFP motion that contains a copy of M r. W allin’s inmate trust
fund statement, which appears to be certified; (3) a motion to file the complaint
and IFP motion late; and (4) a motion to stay the proceedings for 180 days. The
complaint concerned defendants’ treatment of M r. W allin when he was detained
at the Arapahoe County Detention Facility in Centennial, Colorado, which
apparently began in August 2003, prior to his CDOC detention, and extended
until sometime in 2004. In his motion to excuse his late filings, he argued that he
had an appointment to use the prison law library on June 23 to complete the
complaint and IFP motion and make the required number of copies but was
prohibited from using the library because he had no excuse for his failure to
-4- arrive at the beginning of the allotted time period. He claimed he finally was able
to access the prison law library on June 28 and mailed the documents on that date.
The basis for the requested 180-day stay was to permit his family to sort through
his legal materials and send him the documents relevant to his claims.
The district court dismissed the complaint and action without prejudice and
denied the motions. The court reasoned that M r. W allin had known of the
deficiencies the magistrate judge ordered him to cure since the middle of
April 2006 but had not been diligent in completing the documents and making
copies, which the court found he could have accomplished by hand rather than
awaiting the chance to use a photocopier. The court also found that because
M r. W allin had been able to prepare and submit filings on June 21, 2006, in
another case in district court, he should have been able to prepare and submit the
required filings in this case by the June 23 deadline set by the magistrate judge.
In denying his stay motion, the court found that M r. W allin had been incarcerated
with the CDOC for over two years, giving him plenty of time to have his family
go through his papers and send those relevant to claims concerning his prior
detention at the Arapahoe County Detention Facility. M r. W allin appealed.
“W e review for abuse of discretion a district court’s dismissal for failure to
comply with a court order.” Cosby v. Meadors, 351 F.3d 1324, 1326 (10th Cir.
2003). “A district court abuses its discretion where it commits a legal error or
relies on clearly erroneous factual findings, or where there is no rational basis in
-5- the evidence for its ruling.” Nova Health Sys. v. Edmondson, 460 F.3d 1295,
1299 (10th Cir. 2006) (quotation omitted).
On appeal, M r. W allin repeats that he was not permitted to use the law
library as scheduled in order to prepare and make copies of the documents he was
required to file. He also argues that it was unreasonable for the district court to
find that he could have completed the fourteen-page complaint by hand because
he was required to submit twenty-one service copies. These arguments miss the
larger point driving the district court’s reasoning, that M r. W allin had known
since mid-April that he needed to cure his deficiencies but he w aited until the last
minute to complete the documents despite his ability to prepare and file
documents in another case. Thus, there was a rational basis in the evidence for
the district court’s ruling that M r. W allin’s inability to access the law library on
June 23, the day his documents were due, did not constitute good cause or
excusable neglect. 1 Accordingly, we AFFIRM the district court’s judgment in
No. 06-1373 and grant M r. W allin’s IFP motion.
1 On appeal, M r. W allin argues that the date he w as to access the law library was June 22, not June 23, and the response to his prison grievance, which he has attached to his brief, indicates that this may well be the case. This one-day difference might be relevant insofar as the thirty-day deadline the magistrate judge gave in his M ay 23 order appears to be June 22, not June 23 as M r. W allin maintained in the district court and as the district court stated in its dismissal order. But it does not change the fact that M r. W allin waited until the last day to finish preparing his documents and make copies for filing. Nor does it affect our conclusion that the district court did not abuse its discretion in dismissing his complaint and action without prejudice.
-6- Appeal No. 06-1376
In No. 06-1376, M r. W allin appeals from the district court’s sua sponte
dismissal without prejudice of his § 1983 complaint and action. M r. W allin
asserted three claims for violations of the United States Constitution based on
allegations that two public defenders rendered ineffective assistance of counsel
when they represented him in a criminal proceeding in state court. He also moved
the court to stay the action until his state-court appeal from his criminal
conviction was final.
The district court dismissed the complaint and action without prejudice
pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). Because a judgment for
damages in his favor on his ineffective assistance claims necessarily would imply
the invalidity of M r. W allin’s criminal conviction or sentence, the district court
explained that under Heck, his § 1983 cause of action would not arise until his
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by an authorized state tribunal, or called into question by
the issuance of a federal habeas writ. See id. at 486-87. The court also pointed
out that to the extent M r. W allin sought declaratory relief, his sole federal remedy
is a writ of habeas corpus under 28 U.S.C. § 2254 after exhausting state remedies.
See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); 28 U.S.C. § 2254(b)(1). The
district court denied M r. W allin’s stay motion and his post-judgment motion for
reconsideration, which the court treated as filed under Fed. R. Civ. P. 60(b).
-7- On appeal, M r. W allin agrees with the district court’s application of Heck
but argues that the court should have stayed the case pending the outcome of his
direct criminal appeal because the statute of limitations on his state-law legal
malpractice claim was about to expire. Having reviewed the district court’s
denial of the stay motion for abuse of discretion, see Reed v. Bennett, 312 F.3d
1190, 1193 n.1 (10th Cir. 2002), we find no merit in M r. W allin’s argument.
As the district court explained in its order denying M r. W allin’s Rule 60(b)
motion, a legal malpractice claim is a state-law tort claim, not a § 1983 claim.
See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (holding that “a public
defender does not act under color of state law when performing a law yer’s
traditional functions as counsel to a defendant in a criminal proceeding”).
Contrary to his assertion, M r. W allin did not plead a legal malpractice claim
under Colorado law; even construing his complaint liberally and bearing in mind
the liberal pleading standards of Fed. R. Civ. P. 8(a)(2), he asserted only
constitutional claims. Rather, if his intent was to file a legal malpractice claim
against the defendants rather than the constitutional claims he did assert, he
should have, in the absence of diversity jurisdiction, filed that claim in an action
in state court and, if necessary, sought a stay of that action. See Lemmons v. Law
Firm of M orris & M orris, 39 F.3d 264, 266 (10th Cir. 1994) (explaining that a
plaintiff “may be able to state a malpractice claim under [state] law, but that
claim does not constitute a federal case”); M orrison v. Goff, 91 P.3d 1050, 1058
-8- (Colo. 2004) (holding that a criminal defendant must file a malpractice action
within two years of discovering an attorney’s negligence and may obtain a stay of
that action pending resolution of the criminal case if necessary to avoid dismissal
or jeopardizing defendant’s rights). 2
Because M r. W allin has not advanced “a reasoned, nonfrivolous argument
on the law and facts in support of the issues raised on appeal,” M cIntosh v. U.S.
Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quotation omitted), we
DISM ISS No. 06-1376 as frivolous and deny his IFP motion. See 28 U.S.C.
§ 1915(e)(2)(B)(i); see also Thom pson v. Gibson, 289 F.3d 1218, 1222 (10th Cir.
2002) (explaining that an appeal is frivolous if “it lacks an arguable basis in
either law or fact”). Consequently, immediate payment of the unpaid balance of
the appellate filing fee is due in this appeal, and we declare a strike for purposes
of 28 U.S.C. § 1915(g).
Appeal No. 06-1416
In No. 06-1416, M r. W allin appeals from the district court’s order
dismissing his complaint and action sua sponte for lack of subject matter
2 M r. W allin did not assert diversity as an alternate jurisdictional basis over any state-law legal malpractice claim that might be read into his complaint, and in any event it appears from the record that all parties are citizens of Colorado. Even if he had asserted a state-law malpractice claim, or one could be read into his complaint, it would not have been an abuse of discretion for the district court to decline to exercise supplemental jurisdiction over that claim in view of the court’s dismissal of M r. W allin’s § 1983 claims under Heck. See 28 U.S.C. § 1367 (establishing supplemental jurisdiction).
-9- jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3) and as barred by the applicable
statute of limitations. The allegations in his complaint, filed August 3, 2006, are
somewhat unclear, but it appears that one of the defendants, the Colorado
Division of Child Support Enforcement (CSE), obtained a default judgment in the
Denver Juvenile Court on June 19, 2000, as to child-support orders it had entered
against him. M r. W allin alleged that he was never notified of the CSE
proceedings or served with process in the judicial action leading to the default
judgment. He further alleged that, upon becoming aware of the judgment, he
sought to have the CSE review the amount of his child-support liability. After
review , the CSE amended the total owed to include interest and the unpaid
monthly amounts, resulting in a new total in excess of $9,000 as of September
2002.
Based on these allegations, M r. W allin asserted five claims under federal
and state law, seeking compensatory and punitive damages, and declaratory relief
as to all claims. The claims clearly took issue with the lack of service relating to
the June 2000 default judgment as well as the administrative procedures used in
calculating the amount of his child support payments, which he contended
violated his rights under Colorado law and Title IV-D of the Social Security Act. 3
3 Title IV-D of the Social Security Act, 42 U.S.C. §§ 651 to 669b, establishes requirements with which participating state-run, child-support-enforcement programs must comply in order to receive federal funding. See Blessing v. Freestone, 520 U.S. 329, 333-35 (1997).
-10- Somewhat less clear is w hether M r. W allin challenged the June 2000 default
judgment itself. Although he contends on appeal that he did not, the district court
interpreted the complaint as seeking vacatur of that default judgment and ruled
that under the Rooker-Feldman doctrine, it lacked subject matter jurisdiction to
review and reverse that judgment or to address M r. W allin’s other claims, which
the court found were inextricably intertwined with the judgment. See Dist. of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486-87 (1983); Rooker v.
Fid. Trust Co., 263 U.S. 413, 416 (1923). The court also noted that the relevant
statute of limitations had expired on any challenge to the administrative
procedures used in calculating his child support payments. M r. W allin appealed.
Our review is de novo. See G uttman v. Khalsa, 446 F.3d 1027, 1031 (10th Cir.
2006) (subject matter jurisdiction); Sterlin v. Biom une Sys., 154 F.3d 1191, 1194
(10th Cir. 1998) (statute of limitations). As we explain, M r. W allin’s contentions
of error have no merit.
“The Rooker-Feldman doctrine prevents the lower federal courts from
exercising jurisdiction over cases brought by ‘state-court losers’ challenging
‘state-court judgments rendered before the district court proceedings
comm enced.’” Lance v. Dennis, 546 U.S. 459, 460 (2006) (per curiam) (quoting
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). The
doctrine precludes jurisdiction over claims that not only directly challenge a
state-court judgment but also those that are inextricably intertwined with it. See
-11- Guttman, 446 F.3d at 1031. But the timing of the filing of the federal case is
critical— Exxon M obil reversed our prior rule that Rooker-Feldman applied to all
state-court judgments, final or otherwise, and confined the doctrine “to suits filed
after state proceedings are final.” Id. at 1032.
One situation in which state proceedings are considered “final” for
Rooker-Feldman purposes occurs when a party allows the time for appeal from a
lower state-court judgment to lapse. Bear v. Patton, 451 F.3d 639, 642 (2006).
This is the case here. Any opportunity M r. W allin may have had to take an
appeal from the June 2000 default judgment of the Denver Juvenile Court passed
well before he filed his complaint in this action in August 2006. See Colo. Rev.
Stat. § 13-4-102(1) (providing that the Colorado Court of Appeals has jurisdiction
over appeals from final judgments of the Denver Juvenile Court); Colo. R. App.
P. 4(a) (providing that generally, an appeal as of right to the appellate court must
be filed within forty-five days of the date of the entry of the judgment). Thus, the
default judgment is final for Rooker-Feldman purposes, and to the extent
M r. W allin was challenging it, the district court lacked jurisdiction. 4
4 W e find it difficult to credit M r. W allin’s assertion that he in fact was not challenging the Denver Juvenile Court’s default judgment but only the procedures used by the CSE and the other state-agency defendants. In his complaint, he requested “an injunctive order for the vacation of the default orders and for an adequate proceeding according and in relation to Title IV-D,” R., Doc. 3 at 11, and one of the defendants, Hon. Dana Wakefield, is a judge in the Denver Juvenile Court. If by “vacation of the default orders” M r. W allin was referring to the support orders of the CSE that were reduced to the June 2000 default (continued...)
-12- To the extent M r. W allin sought review of the CSE’s amendment of his
support obligation in September 2002, the last action of which he complained in
his complaint, Rooker-Feldman is inapplicable because the relief sought does not
implicate the June 2000 default judgment. But as the district court correctly
noted, M r. W allin’s claims are barred for a separate reason— the two-year statute
of limitations applicable to § 1983 suits brought in Colorado. See Fogle v.
Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (setting forth rule concerning
relevant statute of limitations and approving sua sponte dismissals based on
affirmative defenses that are obvious from the face of the complaint). He filed
his complaint in this action on August 3, 2006, almost four years after the date of
the last incident on which he based his claims and well beyond the limitations
period.
In an effort to avoid this adverse result, M r. W allin now contends that the
statute of limitations has not run because “[t]he last hearing and erroneous
issuance of child support monthly payments was conducted on June 21, 2006.”
Aplt. Br. at 5. In support, he attaches a copy of a notice of hearing that was
scheduled for that day in the Denver Juvenile Court. Because he did not raise this
4 (...continued) judgment rather than the court’s default judgment itself, Rooker-Feldman would still bar his claims because the relief sought— vacatur of the CSE orders— would reverse or undo the relief granted by the D enver Juvenile Court— reducing those orders to a judgment. See M o’s Express, LLC v. Sopkin, 441 F.3d 1229, 1237 (10th Cir. 2006) (explaining scope of Rooker-Feldman in terms of relief requested).
-13- argument or present this evidence to the district court, however, we will not
consider it. See Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545,
1549 n.1 (10th Cir. 1992); Walker v. M ather (In re Walker), 959 F.2d 894, 896
(10th Cir. 1992).
Because M r. W allin has not advanced “a reasoned, nonfrivolous argument
on the law and facts in support of the issues raised on appeal,” M cIntosh,
115 F.3d at 812, we DISM ISS No. 06-1416 as frivolous and deny his IFP motion.
See 28 U.S.C. § 1915(e)(2)(B)(i); see also Thom pson, 289 F.3d at 1222.
Consequently, immediate payment of the unpaid balance of the appellate filing
fee is due in this appeal, and we declare a strike for purposes of 28 U.S.C.
§ 1915(g).
Conclusion
To summarize, in No. 06-1373, we AFFIRM the district court’s judgment
and grant M r. W allin’s IFP motion. W e also remind M r. W allin of his obligation
to continue making partial payments until his appellate filing fee for this appeal is
paid in full. In Nos. 06-1376 and 06-1416, we DISM ISS the appeals as frivolous
under 28 U.S.C. § 1915(e)(2)(B)(i), deny M r. W allin’s IFP motions, and declare
two strikes under 28 U.S.C. § 1915(g). As a result, immediate payment of the
unpaid balance of the appellate filing fees is due in each of these two appeals.
Additionally, we caution M r. W allin that a third strike will preclude him from
bringing a civil action or an appeal from a judgment in a civil action without
-14- prepayment of the applicable filing fee unless he establishes that he is under
imminent danger of serious physical harm. See id.
Entered for the Court
David M . Ebel Circuit Judge
-15-