Harrison v. Gilbert

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS December 26, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
FREDERICK P. HARRISON; C.I.H.,
(children) appearing by and through
their father Frederick P. Harrison;
J.Y.H. (children) appearing by and No. 07-1273
through their father Frederick P. (D.C. No. 03-CV-02442-EWN)
Harrison; CHRISTINA A. (D. Colo.)
HARRISON; I.A.H. (a child)
appearing by and through his mother
Christina A. Harrison,
Plaintiffs - Appellants,
v.
DAVID A. GILBERT, Judge, Fourth
Judicial District Court, El Paso
County, Colorado; THE PEOPLE OF
THE STATE OF COLORADO;
JOHNNY BOHNEN, El Paso County
Attorney Office for the Department of
Human Services; DIANE C. BOLDT,
Guardian ad Litem; ANN ROTOLO,
Guardian ad Litem; PHILLIP
BRADLEY SHARP, Esq.; BRYAN
HUNT, Esq.; KEN LARSON,
Detective, El Paso County Sheriff
Office; TINA-MARIE T. HARRISON,
Defendants - Appellees.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the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.
Before KELLY, MURPHY, and O’BRIEN, Circuit Judges. **
Frederick P. Harrison, a pro se litigant, and his daughter, Christina A.
Harrison, (“Plaintiffs”), appeal the district court’s dismissal and refusal to
reinstate their complaint alleging violations under 42 U.S.C. § 1983 and other
claims against various county and city officials and other private parties. 1 We
exercise jurisdiction under 28 U.S.C. § 1291, and we affirm.
The parties are familiar with the facts, and we only repeat the relevant
procedural history. Plaintiffs commenced a federal lawsuit alleging violations of
their constitutional rights arising out of proceedings in an El Paso County,
Colorado District Court case. On September 10, 2004, the district court
dismissed Plaintiffs’ complaint and entered final judgment on September 15,
2004. Plaintiffs appealed that decision, and we affirmed. See Harrison v.
Gilbert, 148 F. App’x. 718 (10th Cir. 2005) (unpublished). Plaintiffs then filed a
motion under Fed. R. Civ. P. 60(b) seeking relief from the district court’s
previous final judgment order. I R. Doc. 83. On April 24, 2006, the district court
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
1
Neither Mr. Harrison nor Christina Harrison, acting pro se, can represent
the interests of their minor children. Meeker v. Kercher, 782 F.2d 153, 154 (10th
Cir. 1986); see also Fed. R. Civ. P. 17(c).
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denied the motion. I R. Doc. 84. On June 6, 2007, Plaintiffs filed a second Rule
60(b) motion seeking to reinstate their complaint which the district court denied
on June 19, 2007. I R. Doc. 85, 87. Plaintiffs appeal this denial of their second
Rule 60(b) motion.
We review the denial of a Rule 60(b) for an abuse of discretion. Davis v.
Kan. Dep’t of Corrs., --- F.3d ---, No. 07-3044, 2007 WL 4099540, at *2 (10th
Cir. Nov. 19, 2007). Plaintiffs’ motion before the district court and brief on
appeal argue that because none of the state court litigation resulted in any
findings that any children were dependent and neglected, that they are entitled to
go forward. They further challenge the district court’s reliance on the Rooker-
Feldman doctrine in dismissing their earlier case. In their reply brief, Plaintiffs
argue that they are entitled to relief under all six subsections of Rule 60(b).
Generally, arguments raised for the first time on appeal in an appellant’s reply
brief are waived. Star Fuel Marts, LLC v. Sam’s East, Inc., 362 F.3d 639, 647
(10th Cir. 2004). Even overlooking this deficiency, Plaintiffs have not
demonstrated, in either their opening or reply briefs, that their Rule 60(b) motion
was timely. Under Rule 60(b), a motion for relief from a judgment based on
reasons (1), (2), or (3) must be brought not more than one year after judgment is
entered. Fed. R. Civ. P. 60(c)(1). Final judgment was entered September 15,
2004, and Plaintiffs filed their second Rule 60(b) motion on June 6, 2007, almost
three years later. Regarding their arguments under reasons (4), (5), or (6),
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Plaintiffs have not provided any relevant reason to justify the extensive delay in
filing the motion so that it was made within a reasonable time. See Fed. R. Civ.
P. 60(c)(1); Sorbo v. United Parcel Serv., 432 F.3d 1169, 1178 (10th Cir. 2005).
Plaintiffs contend that because the state litigation has apparently concluded they
are entitled to go forward. This argument is patently incorrect and ignores the
multiple grounds supporting this court’s affirmance of the district court’s
judgment including absolute judicial immunity for the state trial court judge.
AFFIRMED. All pending motions are denied.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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