McDonald v. State of Colorado, The, et al.,

Filing 7

ORDER of Dismissal. ORDERED that the complaint, the amended complaint, and the action are dismissed. FURTHER ORDERED that the Emergency TRO Motion Pursuant to D.C.COLO.Civil Rule 65(b) 6 is DENIED. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit, by Judge Lewis T. Babcock on 10/18/12. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02681-BNB
KIRK MCDONALD,
Plaintiff,
v.
THE STATE OF COLORADO,
HONORABLE R. THOMAS MOORHEAD, and
HONORABLE SHEILA A. RAPPAPORT,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Kirk McDonald, initiated this action by filing pro se a complaint (ECF No.
1). On October 11, 2012, Magistrate Judge Boyd N. Boland entered an order directing
Mr. McDonald to filed an amended complaint that complies with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure if he wishes to pursue
his claims in this action. On October 16, 2012, Mr. McDonald filed an Amended
Complaint (ECF No. 5) and an unsigned “Emergency TRO Motion Pursuant to
D.C.COLO.Civil Rule 65(b)” (ECF No. 6).
The Court must construe the Amended Complaint liberally because Mr.
McDonald is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the Amended
Complaint reasonably can be read “to state a valid claim on which the plaintiff could
prevail, [the Court] should do so despite the plaintiff’s failure to cite proper legal

authority, his confusion of various legal theories, his poor syntax and sentence
construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110.
However, the Court should not act as an advocate for a pro se litigant. See id.
Although the specific claims Mr. McDonald asserts in the Amended Complaint
are not entirely clear, he apparently contends that he has been denied due process in
connection with ongoing state proceedings. Mr. McDonald’s claims primarily relate to
two civil lawsuits he filed in 2009, one in the Eagle County District Court and one in the
District Court for the City & County of Denver, against banks that allegedly defrauded
him of his retirement account in 2007. Mr. McDonald also alleges in the Amended
Complaint that the Colorado Department of Revenue has denied him due process by
issuing a writ of garnishment upon him for failure to pay his 2007 taxes even though,
according to Mr. McDonald, the tax liability in question was satisfied in April 2007.
With respect to his due process claims arising out of the pending state court
lawsuits, Mr. McDonald asserts those claims against the state court judge who has
ruled against him in the Eagle County case and a second state court judge who delayed
consideration of his claims in the Denver County case. Mr. McDonald also names the
State of Colorado as a Defendant, apparently because he contends the State of
Colorado bears responsibility for the actions of state employees. Furthermore,
according to Mr. McDonald, the failure to provide a prompt ruling in the Denver County
case has led to an unintended consequence, the loss of his home to foreclosure. As
relief Mr. McDonald seeks a temporary restraining order to prevent the foreclosure sale
of his home that is scheduled for October 17, 2012, and damages.

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It does not appear that Mr. McDonald’s claims are barred by the Rooker-Feldman
doctrine because Mr. McDonald alleges that the state court cases remain pending.
However, Mr. McDonald is advised that he may not seek review in this Court of any
adverse judgments that may be entered in the future in the state court cases because
the Rooker-Feldman doctrine provides that federal courts, other than the United States
Supreme Court, lack jurisdiction to adjudicate claims seeking review of state court
judgments. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486
(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). In essence, the
Rooker-Feldman doctrine precludes “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.” Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); see also Johnson v.
De Grandy, 512 U.S. 997, 1005-06 (1994) (stating that the losing party in a state court
proceeding is generally “barred from seeking what in substance would be appellate
review of the state court judgment in a United States district court, based on the losing
party’s claim that the state judgment itself violates the loser’s federal rights.”). Review
of the state court judgment must proceed to the state’s highest court and then to the
United States Supreme Court pursuant to 28 U.S.C. § 1257. See Facio v. Jones, 929
F.2d 541, 543 (10th Cir. 1991).
The Court will abstain from exercising jurisdiction over Mr. McDonald’s claims in
this action in accordance with Younger v. Harris, 401 U.S. 37, 44 (1971). Pursuant to
Younger, federal courts must refrain from interfering in ongoing state court proceedings
in the absence of extraordinary circumstances. See Morrow v. Winslow, 94 F.3d 1386,
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1393 (10th Cir. 1996). Abstention under Younger is appropriate when three conditions
are met.
First, there must be ongoing state criminal, civil, or
administrative proceedings. Second, the state court must
offer an adequate forum to hear the federal plaintiff’s claims
from the federal lawsuit. Third, the state proceeding must
involve important state interests, matters which traditionally
look to state law for their resolution or implicate separately
articulated state policies.
Taylor v. Jacquez, 126 F.3d 1294, 1297 (10th Cir. 1997).
In the instant action, all three of these conditions are met. First, Mr. McDonald
concedes that the state court proceedings are ongoing. Second, Mr. McDonald may
raise his due process claims in the course of the state court proceedings. Finally, the
state court actions involve important state interests. See Colo. R. Civ. P. 120(f)
(providing that “[a]ny proceeding under this Rule involving a consumer obligation shall
be brought in and heard in the county in which such consumer signed the obligation or
in which the property or a substantial part thereof is located”). Therefore, the Court will
abstain from exercising jurisdiction and the complaint and the action will be dismissed.
The Court also notes that Mr. McDonald may not sue the named Defendants for
damages in this Court in this action. For one thing, judges are absolutely immune from
liability in civil rights suits for money damages for actions taken in their judicial capacity
unless the judge was acting in the clear absence of all jurisdiction. See Mireles v.
Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978);
Hunt v. Bennett, 17 F.3d 1263, 1266-67 (10th Cir. 1994). It is clear that Mr. McDonald is
suing the state court judges for actions taken in their judicial capacities and he fails to
demonstrate or allege that either of them was acting in the clear absence of all
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jurisdiction. Even if Mr. McDonald alleged that the state court judges acted maliciously
or corruptly, the doctrine of absolute judicial immunity still applies to the claims he is
raising in this action. See Pierson v. Ray, 386 U.S. 547, 554 (1967).
With respect to the State of Colorado, “[i]t is well established that absent an
unmistakable waiver by the state of its Eleventh Amendment immunity, or an
unmistakable abrogation of such immunity by Congress, the amendment provides
absolute immunity from suit in federal courts for states and their agencies.” Ramirez v.
Oklahoma Dep’t of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994). The State of
Colorado has not waived its Eleventh Amendment immunity, see Griess v. Colorado,
841 F.2d 1042, 1044-45 (10th Cir. 1988), and congressional enactment of 42 U.S.C. §
1983 did not abrogate Eleventh Amendment immunity. See Quern v. Jordan, 440 U.S.
332, 340-345 (1979).
For all of these reasons, the instant action must be dismissed. Furthermore, the
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith and therefore in forma pauperis status will be denied for the
purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Plaintiff
files a notice of appeal he also must pay the full $455 appellate filing fee or file a motion
to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit
within thirty days in accordance with Fed. R. App. P. 24. Accordingly, it is

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ORDERED that the complaint, the amended complaint, and the action are
dismissed. It is
FURTHER ORDERED that the “Emergency TRO Motion Pursuant to
D.C.COLO.Civil Rule 65(b)” (ECF No. 6) is DENIED. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

18th

day of

October

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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