Wideman v. State of Colorado

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 28, 2010
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
EUGENE WIDEMAN,
Plaintiff-Appellant,
No. 10-1096
v. (D.C. No. 1:09-CV-00095-CMA-KMT)
(D. Colo.)
STATE OF COLORADO; ROSLIN
VIGNA; DOUGLAS GLOVER,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HARTZ, Circuit Judge, and PORFILIO and BRORBY, Senior Circuit
Judges.
Eugene Wideman, proceeding pro se, appeals the district court’s grant of
summary judgment to the State of Colorado, Roslin Vigna, and Douglas Glover.
He also asserts that he is appealing the district court’s denial of his
Fed. R. Civ. P. 52(b) motion for amendment and request for a rehearing, but he
*
After examining the briefs and 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); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
does not support this assertion with argument. Hence, he has waived appellate
review of the district court’s denial of the motion. See Christian Heritage Acad.
v. Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025, 1031 (10th Cir. 2007).
The procedural history surrounding this case is well known to the parties
and amply set forth in the magistrate judge’s recommendation, R. at 169-73, so
we will not repeat it here. Suffice it to say that Mr. Wideman’s appeal stems
from a 1998 judgment entered by the Pueblo County Colorado District Court;
specifically, by defendant Judge Roslin Vigna, establishing parenting time and
providing for the support of Mr. Wideman’s minor child. Since 2006,
Mr. Wideman has filed—in federal court—five cases pertaining to issues
surrounding the state court judgment. To date, we have adjudicated four of his
appeals arising from those federal cases. 1 This appeal is the fifth.
Mr. Wideman filed this action for damages against the State of Colorado,
Judge Vigna, and Douglas Glover (the court-appointed guardian ad litem in the
state-court proceedings), alleging they “used the State Statutes on child custody
1
See Wideman v. Garcia, No. 09-1433, 2010 WL 2382454, at *2 (10th Cir.
June 14, 2010) (unpublished) (deeming appeal “frivolous”); Wideman v.
Colorado, No. 09-1398, 2010 WL 2382459, at *2 (10th Cir. June 14, 2010)
(unpublished) (characterizing Mr. Wideman’s appellate arguments as “without
merit”); Wideman v. Colorado, 242 F. App’x *611, *614 (10th Cir. 2007)
(unpublished) (resolving appeal numbers 07-1152 and 07-1154, and observing
“that the majority of [Mr.] Wideman’s claims are little more than thinly disguised
efforts to overturn, or at least call into question the validity of, the rulings entered
against him by the Colorado state courts”).
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and parental responsibility to racially oppress the Plaintiff . . . in violation of his
Constitutional Rights, as well as Federal statute.” R. at 6. As described by the
magistrate judge, it appears Mr. Wideman asserts
only one claim in his Complaint—[1] that he has been the victim of
racial discrimination. However, couched within that one claim are
allegations [2] that Defendant Vigna did not have jurisdiction over
paternity matters; [3] that the defendants have retaliated against him
for requesting that his case be placed in a different court; [4] that he
has been “maliciously prosecuted”; [5] that the defendants never held
a hearing to make a determination that he is the biological father of
the minor child; and [6] that the child’s mother has been given
preferential treatment.
Id. at 180.
The magistrate judge found claims one, two, five, and six barred by
res judicata and determined that the defendants were entitled to summary
judgment on these claims. Claims three and four, however, she found to be
barred by the Rooker-Feldman doctrine. See Rooker v. Fid. Trust Co., 263 U.S.
413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). The
magistrate judge next found Mr. Wideman’s claims against the State of Colorado
and Judge Vigna barred by the Eleventh Amendment; Judge Vigna entitled to
absolute immunity on Mr. Wideman’s civil rights claims; Mr. Wideman’s
complaint barred by the applicable statute of limitations; Mr. Glover entitled to
absolute quasi-judicial immunity; and Mr. Glover entitled to summary judgment
on Mr. Wideman’s civil rights claims because Mr. Glover’s actions were not
undertaken under color of state law.
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The district court agreed with the magistrate judge’s analysis, adopted her
recommendation, and dismissed the case with prejudice. This appeal followed.
Affording Mr. Wideman a generous construction of his pro se filings,
see Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010), petition for
cert. filed (U.S. July 28, 2010) (No. 10-5811), he contends the district court
(1) “engaged in deceptive behavior,” Aplt. Opening Br. at 5; (2) erroneously
allowed a state court “judge who lacked jurisdiction to preside over [his state
court] cases,” id.; (3) failed to require the defendants to demonstrate their
entitlement to immunity and neglected to hold a hearing on immunity prior to
considering other matters; (4) exhibited “race, sex, and class bias . . . and
disregard[ed] . . . settled law,” id. at 11; (5) failed to rule on “the states [sic]
compliance with [42] U.S.C. [§] 2000d-7,” R. at 12; and (6) improperly
determined that his complaint was barred by the applicable statute of limitations.
Our jurisdiction arises under 28 U.S.C. § 1291. “We review de novo the
district court’s decision to grant each defendant summary judgment, viewing the
facts in the light most favorable to the nonmoving party.” PJ ex rel. Jensen v.
Wagner, 603 F.3d 1182, 1192 (10th Cir. 2010). “Summary judgment is
appropriate when the record demonstrates ‘that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.’”
Id. (quoting Fed. R. Civ. P. 56(c)(2)).
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Having reviewed the record, the parties’ appellate materials, and the
relevant legal authority, we hold that Mr. Wideman has failed to identify any
reversible error in this case. We therefore AFFIRM the judgment of the district
court for substantially the same reasons set forth in the magistrate judge’s
recommendation, although we REMAND the case to the district court with
directions to modify the judgment to be without prejudice as to: (1) claims three
and four against all defendants as barred by the Rooker-Feldman doctrine, see
Albert v. Smith’s Food & Drug Ctrs., Inc., 356 F.3d 1242, 1249 (10th Cir. 2004)
(“In cases where the district court has determined that it lacks jurisdiction,
dismissal of a claim must be without prejudice.”); and (2) the claims against the
State of Colorado and Judge Vigna as barred by the Eleventh Amendment, see
Korgich v. Regents of N.M. Sch. of Mines, 582 F.2d 549, 550 (10th Cir. 1978)
(affirming district court order dismissing complaint “without prejudice” upon a
determination “that the Eleventh Amendment to the Constitution of the United
States barred federal jurisdiction”) (quotation omitted)).
Because we deem this appeal frivolous, we GRANT Mr. Glover’s motion
for appellate attorney’s fees and double appellate costs, the same
Fed. R. App. P. 38 sanction imposed in the related case, Wideman v. Garcia,
No. 09-1433, 2010 WL 2382454, at *2 (10th Cir. June 14, 2010) (unpublished).
See Fed. R. App. P. 38. Mr. Glover shall file, within fourteen days from the date
of this order and judgment, an itemized and verified statement of his costs and
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proof of service with the Clerk of this court. See Fed. R. App. P. 39. We
REMAND to the district court for a determination of reasonable appellate
attorney’s fees. The district court shall modify its judgment accordingly. See
Olson v. Coleman, 997 F.2d 726, 728 (10th Cir. 1993).
Subject to Mr. Wideman’s opportunity to object, described below, we also
restrict him from filing any further pro se materials with this court related to
either the subject matter of the four federal lawsuits we have already adjudicated,
see supra n.1, or to the subject matter of this appeal. See Ford v. Pryor, 552 F.3d
1174, 1181 (10th Cir. 2008); Andrews v. Heaton, 483 F.3d 1070, 1078 (10th Cir.
2007). The Clerk of this court shall return any such filings, unfiled, to
Mr. Wideman. See Ford, 552 F.3d at 1181; Andrews, 483 F.3d at 1078.
Mr. Wideman shall have twenty days from the date of this order and judgment to
file written objections to these proposed filing restrictions. His objections shall
be limited to ten pages. If he does not file timely objections, the filing
restrictions shall take effect thirty days from the entry of this order and judgment.
If he does file timely objections, these restrictions shall only take effect if this
court rules against Mr. Wideman’s objections. The filing restrictions shall apply
to any matter filed after that time.
Finally, we DENY Mr. Wideman’s motion to stay Wideman v. Colorado,
No. 09-1398, 2010 WL 2382459 (10th Cir. June 14, 2010) (unpublished), and
Wideman v. Garcia, No. 09-1433, 2010 WL 2382454 (10th Cir. June 14, 2010)
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(unpublished), as procedurally inappropriate, and we DENY his motion to stay
this appeal as unsubstantiated.
Entered for the Court
John C. Porfilio
Circuit Judge
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