Marck v. Miller ( 2023 )

Appellate Case: 22-1241 Document: 010110830799 Date Filed: 03/22/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 22, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
RYAN MARCK,
Plaintiff - Appellant,
v. No. 22-1241
(D.C. No. 1:22-CV-00238-LTB-GPG)
DAVID MILLER; DEPARTMENT OF (D. Colo.)
HUMAN SERVICES, EL PASO
COUNTY, COLORADO; LISA CRAIG;
MERIDETH STEFFAN,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, KELLY, and BACHARACH, Circuit Judges.
_________________________________
Plaintiff Ryan Marck appeals from the district court’s judgment dismissing his
pro se civil rights action brought under 42 U.S.C. § 1983. We affirm.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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: 22-1241 Document: 010110830799 Date Filed: 03/22/2023 Page: 2
BACKGROUND
This action arises from state-court juvenile proceedings in El Paso County,
Colorado, that resulted in Mr. Marck’s children being removed from his custody and
placed in foster care. Mr. Marck filed a complaint in the United States District Court
for the District of Colorado, in which he asserted that the defendants had conspired to
violate his constitutional rights and that his children had been illegally kidnapped.
He obtained leave to proceed without prepayment of fees and costs. See 28 U.S.C.
§ 1915(a). A magistrate judge screened his complaint, found it deficient in several
respects, and ordered him to file an amended complaint.
Mr. Marck then filed his operative amended complaint, naming as defendants
David Miller, a state court judge; the El Paso County Department of Human Services
(DHS); and two DHS employees. The complaint alleged that defendant Merideth
Steffan, acting as an employee of DHS, kidnapped Mr. Marck’s children and that the
other defendants “witnessed this conspiracy to deprive me of my constitutional rights
and did nothing.” R. at 38. Mr. Marck explained that he sought “intervention in
[the] juvenile court matter” and return of his daughter. Id. at 39. The complaint
further alleged that defendant Lisa Craig withheld Mr. Marck’s daughter from him
and his family, thus violating his constitutional rights. He requested that his children
be “returned from foster care” and that he be granted “attorney fees, and whatever the
court sees as just.” Id.Two weeks later, Mr. Marck filed a 33-page document purporting to further
amend his complaint. The magistrate judge advised Mr. Marck he would not “sort
2
Appellate Case: 22-1241 Document: 010110830799 Date Filed: 03/22/2023 Page: 3
through multiple pleadings to ascertain his claims,” and ordered him to submit a
single, completed complaint within 20 days if he wished to have any additional
exhibits or documents considered in connection with his amended complaint. Id. at
75. Mr. Marck did not respond to the magistrate judge’s order.
The magistrate judge thereafter issued a recommendation that the amended
complaint be summarily dismissed. He treated the amended complaint, without any
further amendments, as the operative pleading. He reasoned that Mr. Marck’s claims
for equitable relief should be dismissed for lack of subject matter jurisdiction,
because (a) the domestic relations exception stripped the court of jurisdiction; (b) the
court was required to abstain from hearing the case under Younger v. Harris, 401
U.S. 37 (1971); and (c) to the extent Mr. Merck sought to overturn final orders in
state-court proceedings, his claims were barred by the Rooker-Feldman doctrine.1 To
the extent the complaint sought monetary relief, the magistrate judge found that its
official-capacity claims were brought against officers of the State of Colorado who
were immune from liability pursuant to the Eleventh Amendment. Further,
Defendant Miller was entitled to absolute judicial immunity. Finally, the damages
claims against defendants Steffan and Craig were subject to Younger abstention and,
in any event, his conclusory allegations against them did not adequately satisfy the
requirements of Fed. R. Civ. P. 8(a). The magistrate judge recommended that all the
claims be dismissed.
1
See D.C. Ct. of Appeals v. Feldman, 460 U.S. 482, 486 (1983); Rooker v.
Fidelity Trust Co., 263 U.S. 413, 415-16 (1923).
3
Appellate Case: 22-1241 Document: 010110830799 Date Filed: 03/22/2023 Page: 4
The recommendation warned Mr. Marck that he had 14 days to serve and file
any written objections to obtain review by a district court judge. It also warned him
that if he failed to file timely objections, he would waive de novo review of the
magistrate judge’s findings and recommendations and that he might also be barred
from appealing any findings and conclusions that were accepted or adopted by the
district court. See R. at 76 n.2. Despite this warning, Mr. Marck did not file any
objection to the recommendation. The district court therefore adopted the
recommendation and dismissed all claims without prejudice except the individual
damages claims against defendant Miller, which it dismissed with prejudice.
DISCUSSION
This court recognizes a firm-waiver rule, which provides that “[t]he failure to
make timely objection to the magistrate [judge]’s findings or recommendations
waives appellate review of both factual and legal questions.” Johnson v. Reyna, 57
F.4th 769, 778 (10th Cir. 2023) (internal quotation marks omitted). This rule applies
to pro se litigants, “provided they were informed of the time period for objecting and
the consequences of failing to object.” Id. (internal quotation marks omitted). Here,
the magistrate judge warned Mr. Marck about the time to object and the
consequences of failing to file timely objections.
This court issued Mr. Marck an order to show cause why he had not waived
his right to appellate review of the district court’s dismissal order by failing to file
timely objections to the magistrate judge’s recommendation. He filed a response in
which he essentially asserted that the interests of justice weighed against applying the
4
Appellate Case: 22-1241 Document: 010110830799 Date Filed: 03/22/2023 Page: 5
rule. To determine whether to make an exception to the firm-waiver rule in the
interests of justice, we consider three factors: (1) the “pro se litigant’s effort to
comply,” (2) the “force and plausibility of the explanation for his failure to comply,”
and (3) “the importance of the issues raised.” Id. We have characterized this
exception as “similar to reviewing for plain error.” Id. (internal quotation marks
omitted).2
The first two of these factors do not weigh in Mr. Marck’s favor. He asserts
he made efforts to comply with his obligation to object once he became aware of it,
but the record does not support that assertion. On the day the recommendation was
filed, and again two days later, Mr. Marck filed an exhibit list with accompanying
documents that were apparently connected with his state-court juvenile proceedings.
See R. at 91-140. A few weeks later, he filed in district court a purported Tenth
Circuit “opening brief,” on this court’s pro se form, that did not address the
magistrate judge’s analysis. As the district court correctly determined, none of these
documents qualified as objections to the recommendation. These were the only
documents Mr. Marck filed between the recommendation and the order adopting it.
In addition, his conclusory assertion that by researching the issues and filing
documents throughout the proceedings he clearly showed he objected to dismissal
does not establish that he satisfied his obligation to file the required response.
2
Plain error may also operate as another, freestanding exception to the
firm-waiver rule. Johnson, 57 F.4th at 778 n.7. But Mr. Marck has not argued that
plain error applies or discussed the plain-error factors, so we need not consider that
exception. See id.
5
Appellate Case: 22-1241 Document: 010110830799 Date Filed: 03/22/2023 Page: 6
Mr. Marck also asserts that he did not receive the recommendation by mail,
unlike other court documents sent to him. Although he claims he only discovered the
recommendation at some later unspecified date by searching PACER, a mailing
receipt on the district court’s docket sheet shows it served the recommendation on
him by mail at his address. Mr. Marck has given us no reason to doubt the accuracy
of this entry or that could overcome the presumption that he received the
recommendation. See Crude Oil Corp. of Am. v. Comm'r, 161 F.2d 809, 810 (10th
Cir. 1947) (“When mail matter is properly addressed and deposited in the United
States mails, with postage duly prepaid thereon, there is a rebuttable presumption of
fact that it was received by the addressee in the ordinary course of mail.”).
Finally, turning to the importance of the issues raised, this factor also weighs
against Mr. Marck. His amended complaint states, “I am seeking intervention in [the
state] juvenile court matter” to get “my daughter back” and “my children . . . returned
from foster care.” R. at 39. The district court correctly determined that it lacked
jurisdiction to entertain Mr. Marck’s attempts to obtain child custody through this
federal-court action. See generally, e.g., Leathers v. Leathers, 856 F.3d 729, 756
(10th Cir. 2017) (“The domestic relations exception divests federal courts of the
power to issue divorce, alimony, and child custody decrees.” (emphasis added)); see
also Ankenbrandt v. Richards, 504 U.S. 689, 702-04 (1992) (stating the Supreme
Court has “expanded the domestic relations exception to include decrees in child
custody cases” and has also barred the use of a federal writ of habeas corpus “to
restore a child to the custody of the father,” in part because state courts are better
6
Appellate Case: 22-1241 Document: 010110830799 Date Filed: 03/22/2023 Page: 7
positioned to “deploy[] . . . social workers to monitor compliance”). And to the
extent the complaint’s cursory request for “whatever the court sees as just,” see R. at
39, could be construed as a request for money damages, see Brown v. Buhman, 822
F.3d 1151, 1169 n.19 (10th Cir. 2016) (casting doubt on whether request for “such
other relief as the district court may deem just and proper” constitutes a claim for
money damages (brackets omitted)), Mr. Marck also fails to show he has any viable
damages claims. He has failed to mount an effective challenge to the district court’s
conclusions that (1) his claims against defendant Miller are barred by judicial
immunity; (2) the individual defendants are immune from damages in their official
capacities; and (3) his complaint’s conclusory allegations relating to the individual
defendants in their individual capacities fail to adequately allege a constitutional
claim against these defendants.
In sum, all three factors weigh against applying the interests-of-justice
exception. We therefore conclude that Mr. Marck has waived his appellate
challenges to the district court’s dismissal under the firm-waiver rule.
CONCLUSION
We affirm the district court’s judgment. Mr. Marck’s motion for judicial
notice is denied.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
7