Wasko v. Moore , 122 F. App'x 403 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 1 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
PETER WASKO,
Plaintiff-Appellant,
v. Nos. 04-2052 & 04-2061
(D.C. Nos. CIV-03-1026 BB/RLP &
RANDALL D. MOORE, CIV-03-1036 BB/RLP)
(D.N.M.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ , and BALDOCK , Circuit Judges, and BRIMMER , ** District
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Clarence A. Brimmer, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument.
Plaintiff Peter Wasko, proceeding pro se, appeals the dismissal of his
lawsuit, the sanction entered against him, and the order denying reconsideration. 1
By his complaint, Mr. Wasko sought review of a judgment entered against him in
a New Mexico state court. We affirm the order dismissing the case, but we vacate
the sanction under Fed. R. Civ. P. 11, and remand for further proceedings on that
issue.
Background
Mr. Wasko alleged that defendant damaged his automobile. He filed suit in
a New Mexico state court. The state court dismissed his case when Mr. Wasko
failed to appear for trial. Mr. Wasko’s appeals to the state appellate courts were
unsuccessful. He then filed the underlying complaint in federal court seeking a
judgment against defendant based on the damage to his automobile. Invoking 42
U.S.C. § 1983, he claims that the actions of defendant’s attorney and the
state-court judge violated his federally protected due process and equal protection
rights.
1
Mr. Wasko filed a notice of appeal from each of two adverse orders. The
two appeals have been consolidated for procedural purposes.
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Mr. Wasko filed a similar case in federal court against his former attorney
who he claimed committed malpractice in representing him in an age
discrimination case. Wasko v. Silverberg , No. 03-2204, 103 Fed. Appx. 332(10th Cir. June 16, 2004), cert. denied , 2005 WL 36239 (U.S. Jan. 10, 2005) (No.
04-7103). There, this court explained that a suit under § 1983 may be brought
only against a state actor, and, further, that where federal jurisdiction was absent,
there could be no pendent jurisdiction over a state-law claim. Id. at 333-34.
In this case, the federal district court dismissed the complaint for lack of
federal subject matter jurisdiction and ordered Mr. Wasko to pay defendant’s
attorney fees of $3,295.50. The court found that Mr. Wasko was aware that there
was no federal jurisdiction over this case due to his previous attempt to bring
similar claims in federal court, apparently referring to Wasko v. Silverberg .
Accordingly, the federal court found that the present litigation was filed for the
improper purpose of harassment. Mr. Wasko filed a motion to reconsider the
judgment, which was denied. He appeals, reasserting his claims that the state-
court proceedings violated his federal civil rights. He also challenges the award
of attorney fees to defendant, and he seeks review of the district court’s refusal to
recuse.
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Dismissal for Lack of Jurisdiction
We review de novo the district court’s decision to dismiss the case under
Fed. R. Civ. P. 12(b)(1) & (6). Colo Envtl. Coalition v. Wenker , 353 F.3d
1221, 1227 (10th Cir. 2004). The district court did not specify which subsection
of Rule 12(b) it applied, but “we choose to treat this appeal as seeking review of a
Rule 12(b)(1) dismissal because the [primary ground] cited by the district
court . . . [is] jurisdictional.” Id. Plaintiff is representing himself on appeal, so
his pleadings will be liberally construed. See Haines v. Kerner, 404 U.S. 519,
520 (1972).
The federal courts lack jurisdiction for two reasons. First, the defendant is
not a state actor and, therefore, a suit under § 1983 cannot be maintained against
him. See Wasko v. Silverberg , 103 Fed. App. at 333-34 (citing cases). Second,
having lost in the New Mexico state courts, Mr. Wasko now wants the federal
courts to enter a different result on his state-court claims, a procedure prohibited
by the Rooker-Feldman doctrine.
The Rooker-Feldman doctrine provides that federal courts, other than the
United States Supreme Court, lack jurisdiction to entertain claims for review of
state-court judgments. See Dist. of Columbia Court of Appeals v. Feldman ,
460 U.S. 462, 486 (1983); Rooker v. Fid. Trust Co. , 263 U.S. 413, 415-16 (1923).
The doctrine “applies to all state-court judgments, including those of intermediate
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state courts.” Kenmen Eng’g v. City of Union , 314 F.3d 468, 473, 478
(10th Cir. 2002). It also applies to claims “inextricably intertwined” with a state-
court judgment. Id. at 475. If a plaintiff could have raised a constitutional issue
in a direct appeal of the state-court order, he may not bring that claim under
§ 1983 seeking to modify the state-court judgment. Facio v. Jones , 929 F.2d 541,
544 (10th Cir. 1991).
To determine if Rooker-Feldman applies, we look to the relief Mr. Wasko
seeks. Kenmen Eng’g , 314 F.3d at 476. Despite his attempt to characterize his
federal complaint as one seeking to vindicate his federal constitutional rights, the
relief Mr. Wasko seeks is a reversal of the New Mexico state courts’ rulings
against him. Any federal claims are inextricably intertwined with those orders.
See id. at 476-77 (holding federal claims were inextricably intertwined with state-
court order because relief sought by federal-court plaintiff was ruling vacating
state-court order). Therefore, we conclude that the federal district court correctly
dismissed the case because it was without jurisdiction to review any rulings by the
New Mexico state court.
This court also does not have pendent jurisdiction over any state-law
claims. As was explained to Mr. Wasko in his prior appeal, “we may exercise
pendent jurisdiction only where the federal claim has substance sufficient to
confer subject matter jurisdiction on the court.” Wasko v. Silverberg , 103 Fed.
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Appx. at 334 (quotation omitted). No federal court could have jurisdiction over
his claims, and we affirm the district court’s dismissal order.
Motion to Reconsider
We next consider Mr. Wasko’s challenge to the district court’s order
denying his motion to reconsider. We review the district court’s order denying a
post-judgment motion for an abuse of discretion. Computerized Thermal
Imaging, Inc. v. Bloomberg, L.P. , 312 F.3d 1292, 1296 n.3 (10th Cir. 2002).
Mr. Wasko asserts that the district court erred by not addressing his
proposed findings of fact in the findings of fact and conclusions of law. R. Doc.
19. Our review of Mr. Wasko’s proposed findings, id. Doc. 14, demonstrates that
they merely repeated his claims and arguments. Mr. Wasko cites no authority,
and we know of none, that requires a district court to address all proffered
findings. The district court did not abuse its discretion in this regard.
Rule 11 Sanction
Mr. Wasko challenges the district court’s award of attorney fees to
defendant as a sanction under Fed. R. Civ. P. 11. Rule 11(b)(1) provides that by
signing pleadings, an unrepresented party certifies to the court that to the best of
his information, knowledge and belief, and upon reasonable inquiry, the pleading
is not presented for an improper purpose, such as to harass. The district court’s
finding that Mr. Wasko filed this case “for the improper purpose of harassment,”
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R. Doc. 19, at 2, explained the reason for its conclusion that Mr. Wasko had
violated Rule 11.
The record does not contain a motion for sanctions filed by defendant, so
we assume it was awarded on the court’s initiative. Although Rule 11(c)(1)(B)
authorizes a court to impose monetary sanctions on its own initiative, it may not
do so without first following the prescribed procedure: “issuance of a show cause
order specifically describing the conduct implicating the rule, followed by a
reasonable opportunity for the party/attorney so advised to demonstrate how [he]
has not violated the rule.” Hutchinson v. Pfeil , 208 F.3d 1180, 1184
(10th Cir. 2000). This procedure is mandatory; noncompliance requires reversal.
Id. In this case, the required procedure was not followed. 2
Therefore, we must
vacate the Rule 11 sanctions and remand for further proceedings.
Mr. Wasko also complains that the amount of attorney fees requested was
not supported by contemporaneous time records. “The plain language of the rule
requires that the court independently analyze the reasonableness of the requested
fees and expenses.” White v. Gen. Motors Corp. , 908 F.2d 675, 684
(10th Cir. 1990) (applying previous version of Rule 11; language of “reasonable
2
The record reflects that the court heard oral arguments on the motion to
dismiss. We do not have a transcript of the hearing, but even if sanctions were
discussed at the hearing, “providing the sanctioned party with an opportunity to
mount a defense ‘on the spot’ does not comport with due process.” Hutchinson ,
208 F.3d at 1185 (quotation omitted).
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attorneys’ fees” also in current version). Accordingly, on remand, the district
court should evaluate the reasonableness of the attorney fees requested by
defendant.
In addition, the court should keep in mind that the ultimate goal of Rule 11
sanctions is “deterrence, rather than compensation.” Hutchinson , 208 F.3d at
1183. Therefore, “the amount of sanctions is appropriate only when it is the
minimum that will serve to adequately deter the undesirable behavior.” Dodd Ins.
Servs, Inc. v. Royal Ins. Co. , 935 F.2d 1152, 1159 (10th Cir. 1991) (quotation
omitted). Mr. Wasko’s ability to pay must also be considered, but “inability to
pay should be treated like an affirmative defense, with the burden upon
[Mr. Wasko] to come forward with evidence of [his] financial status.” Id. at 1160(quotation omitted). A bald assertion that he is unable to pay will not suffice, and
even if Mr. Wasko shows a total inability to pay, “the court may assess a
moderate sanction to deter future abusive litigation.” Id. Furthermore, a hearing
on sanctions is not required so long as Mr. Wasko is given the opportunity to
brief the issue. Id.Motion to Recuse
Finally, we address Mr. Wasko’s claim that the district court should have
granted his motion to recuse. We review for an abuse of discretion a district
court’s decision to deny a recusal motion based on alleged partiality.
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Higganbotham v. Okla., ex rel. Okla. Transp. Comm’n , 328 F.3d 638, 645 (2003).
“[W]e will uphold a district judge’s decision unless it is an arbitrary, capricious,
whimsical, or manifestly unreasonable judgment.” Id. (quotation omitted).
Mr. Wasko alleges that the district judge’s impartiality can reasonably be
questioned because he directed that this case be assigned to him, rather than have
it assigned randomly. R. Doc. 13. Mr. Wasko apparently contends that this
judge entered orders adverse to his acquaintance in another case, so the judge
took Mr. Wasko’s case to ensure an outcome adverse to him, as well. Nothing in
the record, including Mr. Wasko’s pleadings, supports this allegation. Moreover,
this claim is eviscerated by our determination that the district court’s dismissal
was correct.
The other ground for recusal, suggested in Mr. Wasko’s motion for
reconsideration, is that at the hearing on defendant’s motion to dismiss, the trial
court addressed questions only to Mr. Wasko, and not to counsel for defendant.
R. Doc. 22. Given Mr. Wasko’s difficult (and unsuccessful) legal position, it was
reasonable for the trial judge to question Mr. Wasko to ascertain that dismissal
was appropriate. Accordingly, we perceive no abuse of discretion in the judge’s
decision not to recuse.
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Conclusion
The district court’s judgment of dismissal is AFFIRMED. Its order
imposing Rule 11 sanctions is VACATED, and the cause is REMANDED for
further proceedings consistent with this order and judgment. The mandate shall
issue forthwith.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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