McDonald V. Colorado's 5th Judicial District et al

Filing 5

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/23/15. 3 Application to Proceed in District Court Without Prepaying Fees or Costs is granted. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02310-GPG
R. KIRK MCDONALD,
Plaintiff,
v.
COLORADO’S 5TH JUDICIAL DISTRICT,
THE HONORABLE FREDERICK WALKER GANNETT, District Court Judge, 5th Judicial
District, Colorado,
COLORADOO’S 18TH JUDICIAL DISTRICT,
THE HONORABLE MARK HANNEN, District Court Judge, 18th Judicial District,
Colorado,
COLORADO ATTORNEY GENERAL CYNTHIA COFFMAN, and
ARAPAHOE COUNTY DIST. ATTORNEY,
Defendants.

ORDER OF DISMISSAL

Plaintiff, R. Kirk McDonald, has filed pro se a Complaint (ECF No. 1) and an
Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form)
(ECF No. 3). The Application to Proceed in District Court Without Prepaying Fees or
Costs (Long Form) will be granted.
The Court must construe the 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 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.
Mr. McDonald asserts three claims for relief contending his federal constitutional
rights have been violated as a result of adverse rulings in Colorado state court cases.
Mr. McDonald provides the following description of the nature of this action, which is
quoted verbatim without correcting or identifying errors in spelling, grammar, or
punctuation.
7. This case is an original proceeding and arises from
Colorado’s 5th & 18th Judicial District’s violation of the
plaintiff’s due process rights, civil rights and for violating
plaintiff’s protections under equal protection clause of the
United States Constitution. Plaintiff a victim of a mortgage
fraud scheme “bait & switch” by two national banks sought
restitution in Colorado’s 5th Judicial District (“5th District”).
Plaintiff at the same time became victim of an out-of-time
action by his home owners association (“HOA”) in state court;
where HOA was without standing.
8. The first case proceeded in the 5th District during
late 2009, in that case the sitting judge ruled in contravention
of standing Colorado statutory law and preemptive federal
statutory law. Therefore breaching the supremacy laws
under United States Constitution for mortgage brokers,
mortgage lending and federal disclosures pursuant to federal
Real Estate Settlement Procedures Act (“RESPA”); Truth In
Lending Act (“TILA”), Section 5 of the Federal Trade
Commission Act, and other numerous standing federal and
Colorado statutes for mortgage lending to many to name in
this short statement.
9. During the case, sitting judge refused to provide
plaintiff with order to precede pro se; at which time defendant
and 5th District acted in nexus, defendants requesting
summary judgment; the state court refusing to allow plaintiff to
present his case. The 5th District willfully and with malicious
intent refused to supply judgment thereby preventing appeal
to a higher court. Without a judgment in the case, 5th District
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requested, invited and granted defendants ex-parte motions
for garnishment of the plaintiff’s assets under color of law.
Plaintiff filed motion before the Colorado Court of Appeals for
violation of his due process, civil rights, equal protection rights
and violation of plaintiff’s 5th, 6th, 8th and 14th amendments
rights under Constitution. Plaintiff now appellant prevailed in
case 2011-ca-1537, the appellate court ordering its lower
court 5th District; (1) finish the case as prior order was
interlocutory; (2) serve plaintiff courts interlocutory order; (3)
craft in writing a final judgment; (4) after creating a final
judgment serve judgment to the plaintiff; (5) enter final
judgment in the ROA/Record.
10. Simply, the 5th District refused to obey any and all
orders and judgment of its superior court, acting in nexus with
defendants and counsel willfully and with malicious intent
violating plaintiff’s due process rights, civil rights, equal
protections plaintiff’s 5th, 6th, 8th, and 14th amendment rights
as outlined under United States Constitution.
11. The second case proceeded in Colorado’s 5th
District with the same sitting judge. HOA brought a civil
action against Eagle County & plaintiff in state court 18
months after parties notified; the Eagle Board of County
Commissioners (“BOCC”) approved alteration of plaintiff’s
zoned land use upon his agricultural property. HOA’s
protective convents limiting actions to within 12 months, if
premised. HOA’s action also barred by Colorado Revised
Statutes (“C.R.S.”), Section § 38-41-119 and §
38-33.3-123(2), also barred under Colorado Planned Unit
Development Act (“PUD Act”) § 24-67-101. HOA’s action
also barred by Colorado Constitution; HOAs’ hold no authority
to approve or deny zoned land use in Colorado, Eagle
County. The sitting judge without providing a final judgment
and serving that judgment to the plaintiff; willfully and with
malicious intent sought to thwart plaintiff’s appeal by again
refusing to provide a final judgment and serve judgment to
plaintiff.
12. As this was the second occurrence Colorado’s 5th
District refused to following Colorado’s and United States
Constitutions and provisions therein for due process, equal
protection and civil rights; plaintiff filed a contempt motion
before the Colorado Court of Appeals, the appellate court
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stating it was without jurisdiction to hold lower courts in
contempt.
13. Therefore, plaintiff’s filed a criminal motion
pursuant to C.R.S. § 16-5-209, commonly known as
Colorado’s “special prosecutor statute.” The sitting judge in
Colorado’s 18th District refused to hold a hearing asking the
Colorado’s Attorney General Office (“AG”) and Arapahoe
Counties District Attorneys Office (“DA”) why they refused to
prosecute clear violations of Colorado statutory law and
violations of the plaintiff’s Constitutional Rights.
14. Several months later, Colorado’s Supreme Court
removed sitting 5th District judge; judge resigning from the
Colorado Justice System, to preserve his state retirement.
Because the 18th District refused to hold a substantive
hearing regarding Colorado’s 5th District violations and breach
of plaintiff’s constitutional rights under color of law, plaintiff
sought appeal. Colorado’s 18th District willfully and with
malicious intent refused to provide either CD transcript or a
written transcript of proceedings in the 18th District after
plaintiff paid via credit card for such record. The case was
dismissed for failure to provide transcript.
(ECF No. 1 at 2-5.) As relief Mr. McDonald seeks declarations that his rights have been
violated. He also seeks injunctive relief directing the state judicial districts named as
Defendants to take certain actions.
It is not clear whether the state court proceedings described above that are
relevant to Mr. McDonald’s claims in this action have concluded. There is no apparent
indication in the voluminous documents attached to the Complaint that the state court
proceedings are ongoing. However, Mr. McDonald alleges that the underlying state
court cases “have not concluded because the state court has intentionally refused to obey
appellate court orders, craft and serve final judgments to parties.” (ECF No. 1 at 22,
¶57.)

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If the relevant state court proceedings have concluded, the Court lacks jurisdiction
to consider Mr. McDonald’s federal constitutional claims in this action pursuant to the
Rooker-Feldman doctrine. 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).
If, as Mr. McDonald contends, the state court proceedings relevant to his federal
constitutional claims are not final, the Court will abstain from exercising jurisdiction 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,
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
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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
contends that the state court proceedings are ongoing. Second, Mr. McDonald may
raise his constitutional claims in the course of the state court proceedings. Finally, it is
apparent that the state court actions regarding Mr. McDonald’s real property in Eagle
County involve important state interests. Therefore, the Court will abstain from
exercising jurisdiction and the complaint and the action will be dismissed.
The Court also 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
ORDERED that the Application to Proceed in District Court Without Prepaying
Fees or Costs (Long Form) is granted. It is
FURTHER ORDERED that the Complaint and the action are dismissed. It is

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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

23rd

day of

October

, 2015.

BY THE COURT:

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

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