Gasper v. Fasing

Filing 10

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/1/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01688-BNB
FANNIE MAE GASPER,
Plaintiff,
v.
TIMOTHY FASING, Arapahoe County District Judge,
Defendant.

ORDER OF DISMISSAL

Plaintiff Fannie Mae Gasper currently resides in Castle Rock, Colorado. Ms.
Gasper, acting pro se, initiated this action by submitting to the Court a Civil Rights
Complaint and an Application to Proceed Without Prepayment of Fees and Affidavit.
On June 27, 2013, Magistrate Judge Boyd N. Boland directed Ms. Gasper to cure
certain deficiencies if she wished to pursue her claims. Specifically, Magistrate Judge
Boland ordered Ms. Gasper to submit her claims and request to proceed pursuant to 28
U.S.C. § 1915 on proper Court-approved forms. Ms. Gasper was warned that the
action would be dismissed without further notice if she failed to cure the deficiencies
within thirty days.
On July 1, 2013, Ms. Gasper filed her claims on a proper Court-approved form
and submitted a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
§ 1915. The Motion and Affidavit, however are not properly notarized. Because Ms.

Gasper has failed to cure all deficiencies the action is subject to dismissal.

Nonetheless, even if the Court were to allow Ms. Gasper to proceed with her
claims, the Court would dismiss the action for lack of merit. Ms. Gasper challenges
Defendant Judge Timothy L. Fasing’s rulings in a state court guardian/conservator
proceeding that stripped her of all civil rights. Compl. at 2.
Plaintiff may not challenge the Arapahoe County guardian/conservator
proceeding in this action. 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). 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 Rooker-Feldman doctrine bars not only cases seeking direct review of state
court judgments; it also bars cases that are “inextricably intertwined” with a prior state
court judgment. See Feldman, 460 U.S. at 482 n.16. “To determine whether a federal
2

plaintiff’s claim is inextricably intertwined with a state court judgment, [the Court] must
pay close attention to the relief the plaintiff seeks.” Crutchfield v. Countrywide Home
Loans, 389 F.3d 1144, 1147-48 (10th Cir. 2004). “Where a plaintiff seeks a remedy that
would disrupt or undo a state court judgment, the federal claim is inextricably
intertwined with the state court judgment.” Id. at 1148. Furthermore, the RookerFeldman doctrine “precludes not only review of adjudications of the state’s highest
court, but also the decisions of its lower courts.” See Jordahl v. Democratic Party of
Va., 122 F.3d 192, 199 (4th Cir. 1997).
Ms. Gasper requests that this Court find Judge Fasing violated Ms. Gasper’s civil
rights when he required that a legal guardian or conservator be appointed for her. This
remedy would disrupt or undo the state court judgment. Therefore any federal claim
that Ms. Gasper’s civil rights were violated is inextricably intertwined with the state court
judgment and this Court lacks subject matter jurisdiction.
Furthermore, Defendant Judge Fasing is absolutely immune from liability in civil
rights suits when he acts in his judicial capacity, unless he acts 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).
Judge Fasing was acting in his judicial capacity when he entered a decision regarding
the guardianship/conservatorship of Ms. Gasper. Therefore, to the extent Ms. Gasper is
raising a civil rights violation claim against Judge Fasing the claims are barred by
absolute judicial immunity.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not taken in good faith, and, therefore, in forma pauperis status will be
3

denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Ms. Gasper files a notice of appeal she 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
ORDERED that the action is dismissed without prejudice for lack of subject
matter jurisdiction. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 1st day of

August , 2013.

BY THE COURT:
s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

4