Davis v. Garcia, 10th Cir. (2014)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
July 25, 2014

Elisabeth A. Shumaker
Clerk of Court
KELVIN L. DAVIS; SHARON D.

DAVIS; KTD, a minor; JTD, second
minor; JDD, third minor,
Plaintiffs - Appellants,
v.
WENDY GARCIA; VERONICA
KASPRZAK; AMY REED; CHARLENE
SANSONE; LORI HOLMES,
No. 13-4102
(D.C. No. 1:07-CV-00148-CW)
(D. Utah)
Defendants Appellees,
and
DIANE WILKINS, Judge; ROBERT
PARRISH; LAURA THOMPSON;
SONIA SWEENEY; GUARDIAN AD
LITEMS OFFICE; UTAH ATTORNEY
GENERALS OFFICE; STATE OF
UTAH; RICK SMITH; DWAYNE
BETOURNAY; UTAH DIVISION OF
CHILD AND FAMILY SERVICES,
Defendants.
ORDER AND JUDGMENT*

After examining the briefs and the 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) and 10th Cir. R. 34.1(G). The case is therefore
Before KELLY, HARTZ, and TYMKOVICH, Circuit Judges.
Acting under court orders, Utahs Division of Child and Family Services (DCFS)
removed Plaintiffs KTD, JTD, and JDD from the custody of their parents, Plaintiffs
Kelvin and Sharon Davis, in 2006. The parents eventually regained custody in 2008. But
in the interim Plaintiffs sued five DCFS employees in the United States District Court for
the District of Utah. They brought federal civil-rights claims under 42 U.S.C. 1983 and
state-law tort claims. The district court granted summary judgment for Defendants on the
federal claims, holding (1) that it lacked jurisdiction under the Rooker-Feldman doctrine,
see Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Ct.App. v. Feldman, 460 U.S.
462 (1983), which limits federal review of state-court judgments to the United States
Supreme Court, and (2) that if it had jurisdiction, Defendants were entitled to qualified
immunity and Plaintiffs were barred by collateral estoppel. On the state-law claims the
court granted summary judgment on the grounds that the parents claims were untimely;
the childrens claims were premature; and Plaintiffs failed to produce any evidence of
fraud or willful misconduct, as required by the Utah Governmental Immunity Act
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
2
(UGIA), Utah Code Ann. 63-30d-202(3)(c) (West 2004) (current version at

63G-7-202 (West 2014)).
Exercising jurisdiction under 28 U.S.C. 1291, we affirm. Even though we hold
that at least part of Plaintiffs Fourteenth Amendment claim was not barred by RookerFeldman, Plaintiffs waived any challenge to the district courts rulings on qualified
immunity and collateral estoppel because they failed to dispute the rulings in their
opening brief on appeal. As for the state-law claims, we agree with the district court that
Plaintiffs presented no evidence that Defendants acted through fraud or willful
misconduct.
I.
BACKGROUND
Plaintiffs originally sued a number of state entities, officers, and employees, but
the only remaining defendants are Wendy Garcia, Lori Holmes, Veronica Kasprzak, Amy
Reed, and Charlene Sansone (Defendants), all of whom are DCFS employees. Plaintiffs
suit arose from Defendants conduct leading up to and during state-court proceedings that
ultimately resulted in court orders denying the parents custody over their children.
Plaintiffs raised two civil-rights claims under 42 U.S.C. 1983, alleging that Defendants
violated their Fourth and Fourteenth Amendment rights by removing the children from
their parents without consent, by failing to give Plaintiffs adequate notice of accusations
and court proceedings, and by making false and unverified accusations . . . in [their]
reports to the Court. Aplt. App. at 3637. They also raised six state-law claims: (1)
intentional infliction of emotional distress, (2) negligent infliction of emotional distress,
3
(3) negligence, (4) defamation, (5) negligent hiring, and (6) negligent supervision. As
stated above, the district court granted summary judgment for Defendants on all the
claims.
II.
ANALYSIS
On appeal Plaintiffs argue that their Fourteenth Amendment claim was not barred
by Rooker-Feldman. They do not contest, however, the district courts holdings that the
claim was barred by qualified immunity and collateral estoppel. As for the state-law
claims, Plaintiffs concede that summary judgment was properly granted against the
parents but challenge both the district courts grounds for granting summary judgment
against the children.
A.
Federal Claims
Assuming that the Rooker-Feldman doctrine implicates our jurisdiction, we

address it first. See Steel Co. v. Citizens for a Better Envt, 523 U.S. 83, 94 (1998)
(jurisdiction must be determined before resolving merits). The doctrine bars the lower
federal courts from engaging in appellate review of state-court judgments. Campbell v.
City of Spencer, 682 F.3d 1278, 127980 (10th Cir. 2012). That authority is reserved for
the Supreme Court. See id. at 1281. This limitation on jurisdiction is narrow and does
not apply [w]hen the state-court judgment is not itself at issue. Id. (internal quotation
mark omitted); see PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1193 (10th Cir. 2010)
(Rooker-Feldman does not bar federal-court claims that would be identical even had
there been no state-court judgment . . . . (internal quotation marks omitted)). Thus, for
4
Rooker-Feldman to prohibit review, an element of the claim must be that the state court
wrongfully entered its judgment. Campbell, 682 F.3d at 1283.
Our decision in Wagner controls the Rooker-Feldman issue in this case. In
Wagner the plaintiffs, a minor child and his parents, alleged that DCFS employees and
other state actors had violated their Fourth and Fourteenth Amendment rights during a
dispute over the custody of the child in Utahs juvenile court. See 603 F.3d at 1187.
Two of the defendants moved for summary judgment under Rooker-Feldman. See id. at
1192. They alleged that the plaintiffs claims required the federal district court to review
two state-court orders, one granting custody of the child to the state and one accepting the
parents guilty pleas for misdemeanor custodial interference. Id. at 1193. The
plaintiffs due-process claims under the Fourteenth Amendment were based on
misrepresentations allegedly made by the defendants during the juvenile court
proceedings . . . and on DCFSs alleged failure to conduct an independent investigation
of [the childs] case before filing the verified petition. Id. at 1194. We held that these
claims were independent of the state-court judgments and that Rooker-Feldman therefore
was not applicable. See id.
Plaintiffs allege in their opening brief that the Defendants made
misrepresentations during the state court proceedings, failed to conduct independent
investigations into the allegations of abuse against the Plaintiffs, and failed to investigate
credible reports that the children were being abused by their foster family while in
[DCFSs] custody. Aplt. Br. at 24. As Defendants point out, these allegations do not
5
match the complaint. Nevertheless, there is some overlap. Plaintiffs complaint alleged
that they were deprived of procedural and substantive due process because of, among
other things, the false and unverified accusations made by . . . Defendants in [their]
reports to the Court. Aplt. App. at 3637 (emphasis added). This allegation would
encompass claims that Defendants made misrepresentations and failed to conduct
independent investigations, thereby bringing this case under Wagner. Accordingly, the
district court had jurisdiction over at least some of Plaintiffs Fourteenth Amendment
claims. (Contrary to the view of the district court, the failure of Plaintiffs to provide
evidentiary support for their allegations is a merits issue, not one of jurisdiction, and does
not affect the Rooker-Feldman analysis.)
Nevertheless, Defendants are still entitled to summary judgment. As an
alternative ground for its ruling, the district court held that Plaintiffs 1983 claims were
barred by qualified immunity and collateral estoppel. Yet Plaintiffs opening brief says
nary a word to dispute those rulings. Accordingly, Plaintiffs have waived any challenge
to them. Issues not raised in the opening brief are deemed abandoned or waived. Tran
v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (internal quotation
marks omitted). We therefore affirm the dismissal of Plaintiffs Fourteenth Amendment
claim.
B.
State-Law Claims
The district court granted summary judgment against the childrens state-law
claims on two grounds: (1) the complaint was filed before the notice of claim was filed,
6
and (2) Plaintiffs failed to present evidence that Defendants acted or failed to act
through fraud or willful misconduct, Utah Code Ann. 63-30d-202(3)(c)(i) (West
2004). On appeal, Plaintiffs challenge both grounds. We need address only the second
ground, which requires us to affirm the judgment.
To prevail under the UGIA on a claim against a state employee, the plaintiff must
show that the employee acted or failed to act through fraud or willful misconduct. Id.
Plaintiffs do not contest this standard or contest that the terms fraud and willful
misconduct are absent from their complaint. They argue, however, that their
[c]omplaint describes numerous indications that Defendants were acting with improper
motives, such as racial and age bias, and actions of the Defendants which easily fall
within the willful misconduct spectrum. Aplt. Br. at 29. We question whether their
pleading was adequate. But even if it was, the courts ruling was a grant of summary
judgment, not a dismissal for failure to plead a proper claim. Defendants submitted
affidavits and various exhibits that, if believed, would establish that they committed no
fraud or willful misconduct. Plaintiffs therefore bore the burden to set out specific facts
showing a genuine issue for trial . . . [and could] not rely merely on [their] own
pleadings. Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) (internal
quotation marks omitted). Yet they submitted no evidence. Their unverified complaint is
insufficient.
III.
CONCLUSION
We AFFIRM the district courts grant of summary judgment.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge

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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

July 25, 2014

KELVIN L. DAVIS; SHARON D.

ORDER AND JUDGMENT*

Before KELLY, HARTZ, and TYMKOVICH, Circuit Judges.

(UGIA), Utah Code Ann. 63-30d-202(3)(c) (West 2004) (current version at

Assuming that the Rooker-Feldman doctrine implicates our jurisdiction, we

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