Kemper v. LPR Construction Co.

FILED
United States Court of Appeals
Tenth Circuit
March 27, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
GARY ALLEN KEMPER,
Plaintiff-Appellant, No. 07-1411
v. District of Colorado
LPR CONSTRUCTION COMPANY (D.C. No. 07-CV-1538-ZLW)
and COLORADO COMPENSATION
INSURANCE AUTHORITY, dba
PINNACOL ASSURANCE,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.
I.
Gary Allen Kemper brought this nearly indecipherable action alleging, as
each of its three claims for relief:
*
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). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
(See. 198[0] Amendment 28 U.S.C. 2412)
Unfair Compation – Deceptive Practices Bad Faith
Froid v. Knowles Law 1919
R., Doc. 12, at 3–5 (sic). 2 For this, he requested relief in the form of “one
hundred million dollers exempt from garnishment or levy, to be payed to Plaintiff
Gary Allen Kemper (1 Billion Dollers).” Id. at 6. A juxtaposed comment
elaborates, “In penalties for the negligence that LPR. court caused in there treting
Doctor Brian J. Beatty caused in the minipulation of injury.” Id.
In a page of meandering factual allegations, Mr. Kemper explained that
Defendant LPR Construction Company was ordered in 1998 by the State of
Colorado “to pay for Plaintiffs medical treatment and for time lost from work due
to the injury that incurred ‘January 10, 1994’!” Id. at 1 verso. He further stated
“that defendant violated legal rights of unfair comatition – deceptive practices
bad faith Froid v. Knowles Law 1919. in constructing the jurisdiction for the State
of Colorado and Federal District for the State of Colorado, Denver.” Id.
Affording this pro se complaint surely the most liberal of liberal
constructions, the district court interpreted it as the third in a series of federal
challenges to Mr. Kemper’s state-court worker’s compensation case. The court
therefore dismissed the action on the basis of the Rooker-Feldman doctrine, which
2
28 U.S.C. § 2412 concerns awards of costs and fees in actions to which
the United States is a party. Froid v. Knowles, 36 P.2d 156 (Colo. 1934), held
that the fact that plaintiff had received a worker’s compensation award for an on-
the-job injury did not bar his malpractice suit against the physician who had
treated him.
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forbids the inferior federal courts to review the judgments of state courts. See
D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983); Rooker v. Fidelity
Trust Co., 263 U.S. 413, 415–16 (1923).
II.
In this nearly indecipherable appeal, Mr. Kemper asserts two grounds for
relief. First, “unlaw fulldisscretion of judgment. By District Court,” in that
dissqulaafucution of any court employee for unlawfull disscretion of
judgment. In any State or Federal court. and or any person or
persons that would otherwise be immune from procedural proccess.
Supreme Court State of Colorado action no: 02SC671
certiorari to the Supreme Court SHALL BE.
Aplt’s Br. 3. Second, “unlawfull disscretion of judgment by Supreme Court State
of Colorado action no: 02SC671,” in that “oral statement by Supreme Court of
Colorado, that thay do was – thay want to. action no.: 02SC671.” Id. Below,
Mr. Kemper did not even request disqualification of the district judge or
magistrate judge. Nor are the inferior federal courts a proper forum for reviewing
the decisions of the Supreme Court of Colorado. 3
3
Mr. Kemper had appealed an adverse determination of the Industrial
Claim Appeals Office, a unit of the Colorado Department of Labor and
Employment, to the Colorado Court of Appeals, which affirmed. Kemper v.
Indus. Claim Appeals Office, 2002 WL 31124579 (Colo. Ct. App. Sep. 26, 2002).
The Colorado Supreme Court denied certiorari. Kemper v. Indus. Claim Appeals
Office, No. 02SC671 (Colo. Jan. 13, 2003). Review would properly have been
sought in the United States Supreme Court by petition for a writ of certiorari to
the Colorado Court of Appeals.
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Because no plausible basis is asserted for appeal, we must affirm. But we
cannot fully endorse the district court’s selection of the Rooker-Feldman doctrine
as the proper basis for dismissing this action. Rooker-Feldman “is a narrow
doctrine, confined to ‘cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.’”
Lance v. Dennis, 546 U.S. 459, 464 (2006) (per curiam) (quoting Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)) (emphasis added).
Attempts merely to seek relief denied in state court—to relitigate a state
case—are properly dismissed on grounds of res judicata or collateral estoppel.
Preclusion in federal court on the basis of a state-court judgment is determined by
state law, and “incorporation of preclusion principles into Rooker-Feldman risks
turning that limited doctrine into a uniform federal rule governing the preclusive
effect of state-court judgments, contrary to the Full Faith and Credit Act.” Id. at
466 (citing 28 U.S.C. § 1738).
Having handled two of Mr. Kemper’s complaints on this subject matter, the
district court likely knew better than we exactly what he was trying to say.
However, to the extent the complaint appears to allege negligence and
malpractice, it should have been dismissed on preclusion grounds or for its failure
to comply with the pleading requirements of Rule 8(a) of the Federal Rules of
Civil Procedure.
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III.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED. As Mr. Kemper has not shown the existence of a
reasoned, nonfrivolous argument on the law and facts in support of the issues
raised, his motion for leave to proceed on appeal in forma pauperis is DENIED.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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