Velasquez v. State of Utah

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 26, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
CARLOS VELASQUEZ,
Plaintiff - Appellant,
v. No. 20-4087
(D.C. No. 2:20-CV-00205-DB)
STATE OF UTAH; UTAH (D. Utah)
DEPARTMENT OF HUMAN SERVICES;
UTAH DIVISION OF AGING AND
ADULT SERVICES/APS; UTAH OFFICE
OF ADMINISTRATIVE HEARINGS;
GARY R. HERBERT, Utah Governor;
SEAN REYES, Utah Attorney General;
UTAH LEGISLATURE; UTAH OFFICE
OF LEGISLATIVE RESEARCH AND
GENERAL COUNSEL; THOMAS R.
VAUGHN, Utah Attorney of General
Counsel; NELS HOLMGREN, Utah
Division of Aging and Adult Services
Division Director; J. STEPHEN MIKITA,
Utah Assistant Attorney General (Adult
Protective Services); SONIA SWEENEY,
Utah Office of Administrative Hearings
Division Director; LAURA THOMPSON,
Utah Assistant Attorney General (Utah
Department of Human Services);
AMANDA SLATER, Utah Office of
Licensing Division Director; UNITED
STATES ADMINISTRATION OF
COMMUNITY LIVING,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
_________________________________
Before MORITZ, BALDOCK, and EID, Circuit Judges.
_________________________________
Carlos Velasquez, proceeding pro se, appeals the district court’s judgment
dismissing his action for failure to state a claim on which relief may be granted.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court’s
judgment. As to the dismissal of his claims against certain defendants, we affirm on
the alternative ground that Velasquez’s claims are barred by issue preclusion.
I. Background
This is the second of two actions that Velasquez has filed in the district court
related to certain administrative law proceedings in Utah. See Velasquez v. Utah,
775 F. App’x 420, 421 (10th Cir.) (noting the genesis of his first action), cert. denied,
140 S. Ct. 615 (2019). After these administrative law proceedings concluded, he
filed suit in Utah state court asserting his original claims and challenging the fairness
of the administrative law proceedings and the constitutionality of several Utah
statutes and regulations. See id. Velasquez’s state-court litigation proceeded through
the trial court, the Utah Court of Appeals, and the Utah Supreme Court. See id.Unable to find success after exhausting his appeals in Utah state court, he
sued the State of Utah and several state agencies in federal district court. In
federal court he once again raised his constitutional claims from state court
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.
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while adding constitutional claims that the Utah Supreme Court sustained
malice, refused to clarify the constitutional question, and refused to
recognize evidence.
Id. (citation and internal quotation marks omitted).
The district court dismissed Velasquez’s first action (Velasquez I) for lack of
jurisdiction under the Rooker-Feldman doctrine, 1 concluding that Velasquez was
asking the court to review decisions rendered in the Utah administrative law
proceedings and by the Utah state courts. See id. We affirmed the district court’s
dismissal of Velasquez I for lack of jurisdiction, concluding that:
he appears to challenge decisions by the Utah state courts reviewing his
state administrative law appeal. He claims that the Utah state courts
violated his constitutional rights in the course of that litigation and seems to
seek reversal of decisions he lost on the merits. This is precisely the type of
suit that Rooker-Feldman prevents federal district courts from hearing.
Having already raised his various objections in state court and failed, [he]
has now repaired to federal court to undo the state-court judgment against
him.
Id. at 422 (brackets and internal quotation marks omitted). The United States
Supreme Court denied Velasquez’s petition for a writ of certiorari.
Several months later, Velasquez filed this action in the district court against
the State of Utah and several state agencies and officials (collectively the State
Defendants), and the United States Administration for Community Living
(Velasquez II). Upon screening the new complaint pursuant to 28 U.S.C.
§ 1915(e)(2), the district court held it was subject to dismissal under subsection
1
Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Ct. of Appeals v. Feldman,
460 U.S. 462 (1983).
3
(e)(2)(B)(ii) because it failed to state a claim on which relief may be granted. The
court construed the complaint in Velasquez II as originating from the same
administrative law proceedings as the prior complaint in Velaquez I and as seeking to
void those proceedings. It stated that “it appears that Plaintiff’s complaint alleges
that his civil rights were violated in the proceedings in the Administrative Case and
that certain Utah statutes and legislation are unconstitutional.” R. at 596. The court
therefore held that Velasquez’s claims against the State Defendants in Velasquez II
were barred by claim preclusion because (1) there was a final judgment on the merits
in Velasquez I; (2) the parties in Velasquez II were the same as in Velasquez I or were
in privity with the parties in Velasquez I; and (3) the claims or legal theories in
Velasquez II arose from the same transaction, event, or occurrence as the claims or
legal theories in Velasquez I and Velasquez was attempting to relitigate issues that
were or could have been raised in Velasquez I. 2
Velasquez filed two post-judgment motions. In one motion he cited Federal
Rule of Civil Procedure 60(d)(3) and alleged fraud on the court. His second motion
sought reassignment of the case to a different district court judge. The district court
denied both motions.
2
The district court also dismissed Velasquez’s claims against the United States
Administration for Community Living for failure to state a claim on which relief may
be granted because “his complaint [was] entirely devoid of any allegations
concerning that defendant.” R. at 601. Velasquez does not challenge that ruling on
appeal. Nor does he argue the court erred in holding that amendment of his
complaint would be futile.
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II. Discussion
We review de novo a dismissal under § 1915(e)(2)(B)(ii). See Kay v. Bemis,
500 F.3d 1214, 1217 (10th Cir. 2007). To the extent that Velasquez raises any claim
of error in the district court’s denial of his post-judgment motions, we review those
rulings for an abuse of discretion. See United States v. Buck, 281 F.3d 1336, 1342-43
(10th Cir. 2002) (reviewing denial of relief on ground of fraud on the court for abuse
of discretion); United States v. Mobley, 971 F.3d 1187, 1195 (10th Cir. 2020)
(reviewing denial of motion to recuse for abuse of discretion). Because Velasquez is
proceeding pro se, we liberally construe his complaint and his appeal brief. See Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (complaint); Cummings v. Evans,
161 F.3d 610, 613 (10th Cir. 1998) (brief). But we do not act as his advocate. See
Hall, 935 F.2d at 1110.
“Res judicata, or claim preclusion, precludes a party or its privies from
relitigating issues that were or could have been raised in an earlier action, provided
that the earlier action proceeded to a final judgment on the merits.” King v. Union
Oil Co. of Cal., 117 F.3d 443, 445 (10th Cir. 1997). “Claim preclusion requires:
(1) a judgment on the merits in the earlier action; (2) identity of the parties or their
privies in both suits; and (3) identity of the cause of action in both suits.” Yapp v.
Excel Corp., 186 F.3d 1222, 1226 (10th Cir. 1999).
Velasquez raises no meritorious claim of error on appeal. It is unclear whether
he challenges the district court’s holdings on any of the claim preclusion elements,
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and if so, what his contentions are. 3 He appears to argue primarily that Velasquez I
should not have been dismissed on Rooker-Feldman grounds. But that issue was
conclusively decided by the district court in Velasquez I and affirmed on appeal by
this court. Moreover, Velasquez’s assertions of fraud on the court and judicial bias
are patently without merit.
We nonetheless conclude that the district court erred in dismissing
Velasquez II based upon claim preclusion. Although Velasquez has forfeited review
of this error by failing to raise it in his appeal brief, see Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007), we exercise our discretion to address it, see
United States v. McGehee, 672 F.3d 860, 873 n.5 (10th Cir. 2012).
In holding that the first element of claim preclusion was satisfied, the district
court concluded that Velasquez I had resulted in “a final judgment on the merits”
because that case was dismissed “with prejudice.” R. at 599. 4 But the judgment in
3
For example, regarding a judgment on the merits in Velasquez I, Velasquez
states that the district court “does not develop the first requirement” and he asserts
that “[s]aid first requirement is conspicuous against a civil IFP deficiency
termination.” Aplt. Br. at 21. Regarding the “finality of Velasquez I,” id. at 22, he
discusses the three strikes provision in 28 U.S.C. § 1915(g), which applies only to
dismissals of actions or appeals by prisoners. Although Velasquez mentions privity,
he does not develop an argument of error regarding the district court’s holding on
identity of parties in both actions. And he asserts “there is no original cause to find
complete precedence for transactional claim preclusion,” id. at 19, but fails to
develop an argument that the district court erred in holding that the claims in both
actions arose from the same transaction, event, or occurrence.
4
The district court purported to dismiss Velasquez I with prejudice after
holding that amendment of the complaint would be futile. See Mem. Decision &
Order of Dismissal at 5-6, Velasquez v. Utah, No. 2:18-cv-00728-DN (D. Utah Feb.
25, 2019), ECF No. 27. But “[a] denial of leave to amend to repair a jurisdictional
6
Velasquez I was not on the merits of Velasquez’s claims. Rather, the district court
dismissed that action for lack of subject matter jurisdiction under the
Rooker-Feldman doctrine. See Velasquez, 775 F. App’x at 421-22. And a dismissal
for lack of jurisdiction does not have a broad res judicata effect. See Matosantos
Com. Corp. v. Applebee’s Int’l, Inc., 245 F.3d 1203, 1209 (10th Cir. 2001) (“[A]
dismissal for lack of jurisdiction does not bar a second action as a matter of claim
preclusion . . . .” (internal quotation marks omitted)). Thus, the district court erred in
applying claim preclusion to dismiss Velasquez II.
But a dismissal for lack of jurisdiction still precludes a plaintiff from
relitigating that ground for dismissal. See id. at 1209-10 (stating “a dismissal for
lack of jurisdiction . . . preclude[s] relitigation of the issues determined in ruling on
the jurisdiction question,” id. at 1209 (internal quotation marks omitted)); Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (holding the preclusive
effect of a dismissal for lack of standing “is one of issue preclusion (collateral
estoppel) rather than claim preclusion (res judicata)”); 18A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 4436 (3d ed., Oct. 2020 update)
(“Although a dismissal for lack of jurisdiction does not bar a second action as a
matter of claim preclusion, it does preclude relitigation of the issues determined in
ruling on the jurisdiction question unless preclusion is denied for some other
defect, even on futility grounds, does not call for a dismissal with prejudice. The two
concepts do not overlap in those cases where, although amendment would be futile, a
jurisdictional defect calls for a dismissal without prejudice.” Brereton v. Bountiful
City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006).
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reason.”). Because issue preclusion bars Velasquez’s claims against the State
Defendants in Velasquez II, we exercise our discretion to affirm the district court’s
dismissal of those claims on an alternative basis. 5
The elements of issue preclusion are:
(1) the issue previously decided is identical with the one presented in the
action in question, (2) the prior action has been finally adjudicated on the
merits, (3) the party against whom the doctrine is invoked was a party, or in
privity with a party, to the prior adjudication, and (4) the party against
whom the doctrine is raised had a full and fair opportunity to litigate the
issue in the prior action.
Matosantos Com. Corp., 245 F.3d at 1207 (internal quotation marks omitted). All
four elements for the application of issue preclusion are satisfied in this case.
The first element is met because Velasquez II raised the same Rooker-Feldman
issue as Velasquez I. The district court held that both actions originated from the
same administrative law case and subsequent state-court litigation in Utah. Both
complaints also alleged that Velasquez’s civil rights had been violated in those prior
proceedings and that certain state statutes were unconstitutional. Further, the court
5
“[W]e treat arguments for affirming the district court differently than
arguments for reversing it. We have long said that we may affirm on any basis
supported by the record, even if it requires ruling on arguments not reached by the
district court or even presented to us on appeal.” Richison v. Ernest Grp., Inc.,
634 F.3d 1123, 1130 (10th Cir. 2011). Thus, we must affirm the district court’s
judgment “if the result is correct although the lower court relied upon a wrong
ground or gave a wrong reason.” Id. (internal quotation marks omitted). Moreover,
Velasquez had the opportunity to address claim preclusion in the district court, and
the doctrines of claim preclusion and issue preclusion are “closely related,” SIL-FLO,
Inc. v. SFHC, Inc., 917 F.2d 1507, 1520 (10th Cir. 1990). Finally, issue preclusion
presents a legal question. See Bell v. Dillard Dep’t Stores, Inc., 85 F.3d 1451, 1453
(10th Cir. 1996). Thus, the efficient use of judicial resources weighs against a
remand for initial consideration by the district court.
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construed the complaint in Velasquez II as seeking to void the Utah administrative
proceedings. See R. at 596. Moreover, consistent with the district court’s
construction, Velasquez states in his appeal brief that, “if compared, the Opening
Complaints from Velasquez I to this Velasquez II are largely the same question.”
Aplt. Br. at 17 (internal quotation marks omitted) (italics added).
A dismissal for lack of jurisdiction satisfies the second element—a judgment
“on the merits”—if the jurisdictional issue was actually adjudicated in the previous
action. See Matosantos Com. Corp., 245 F.3d at 1209-10. As we have noted, the
Rooker-Feldman issue was actually and finally adjudicated in Velasquez I.
The third element is met because Velasquez was the plaintiff in both actions.
And finally, Velasquez had a full and fair opportunity to litigate the
Rooker-Feldman issue in Velasquez I. In particular, he challenged the district court’s
application of that doctrine in a post-judgment motion and he appealed the judgment
to this court. See Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (rejecting a
due process challenge to dismissals on screening under § 1915(e)(2) based upon the
“adequate procedural safeguards to avoid erroneous dismissals,” including “a
reasonable post-judgment opportunity to present . . . arguments to the district court
and the appellate court”). Nor does Velasquez’s disagreement with the
Rooker-Feldman ruling in Velasquez I mean that he was denied a full and fair
opportunity to litigate the issue in that case. See SIL-FLO, Inc. v. SFHC, Inc.,
917 F.2d 1507, 1521 (10th Cir. 1990).
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III. Conclusion
The district court’s judgment is affirmed. The court’s dismissal of
Velasquez’s claims against the State Defendants is affirmed on the alternative basis
of issue preclusion. Velasquez’s application to proceed on appeal without
prepayment of fees and costs is granted.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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