Zivkovic v. Hood et al

Filing 17

MEMORANDUM DECISION AND ORDER ADOPTING 12 REPORT AND RECOMMENDATIONS to dismiss the matter with prejudice. Signed by Judge David Nuffer on 4/19/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DAVID ZIVKOVIC,
Plaintiff,

MEMORANDUM DECISION AND
ORDER ADOPTING [12] REPORT AND
RECOMMENDATION

v.
Case No. 2:17-cv-00067
KIMBERLY HOOD and ROBERT
JOHNSON,

District Judge David Nuffer

Defendant.

The Report and Recommendation 1 issued by United States Chief Magistrate Judge
Warner on April 4, 2017, recommends that “Plaintiff’s complaint be dismissed with prejudice for
lack of subject matter jurisdiction.” 2
The parties were notified of their right to file objections to the Report and
Recommendation within 14 days of service pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72.
On April 17, 2017, plaintiff David Zivkovic objected to the Report and Recommendation. 3
De novo review of all materials, including the record that was before the magistrate judge
and the reasoning set forth in the Report and Recommendation, has been completed. The analysis
and conclusion of the magistrate judge are correct and the Report and Recommendation will be
ADOPTED for the reasons stated below.

1

Docket no. 12, entered April 4, 2017.

2

Id. at 5.

3

Objection to Magistrate Judge Report and Recommendation (Objection), docket no. 16, filed April 17, 2017.

BACKGROUND
Zivkovic filed his Complaint 4 on January 26, 2017. In the Complaint, Zivkovic states that
“[t]his issue stems from restitution ordered in Plaintiff’s criminal sentence.” 5 Zivkovic then
provides the state court criminal case number and the terms and amount of the restitution. 6
Zivkovic alleges that the victim in that case was compensated for the adjudged loss “by their
insurance company/underwriter.” 7 Zivkovic alleges that he made “regular monthly restitution
payments of $100.00 to the Utah Dept. of Corrections” from 1998 to 2003. 8 Zivkovic alleges that
his “state[] income tax returns for [1998–2003] were confiscated by the [Department of
Corrections] . . . for an approximate amount totaling: $9,000.” 9 After 2003, Zivkovic alleges, he
moved to Idaho where he continued making “monthly restitution payments to the Utah DOC.” 10
Zivkovic brings numerous causes of action against defendant Kimberly Hood, in her
capacity as Executive Director of the Utah Department of Administrative Services, and
defendant Robert Johnson, in his capacity as the Manager of the Utah Office of State Debt
Collection (collectively (“defendants”). 11 Zivkovic alleges that defendants improperly garnished
his tax returns to satisfy the state-court judgment. 12

4

Docket no. 3, filed January 26, 2017.

5

Id. at 2.

6

Id.

7

Id.

8

Id.

9

Id.

10

Id.

11

Id. at 2–3.

12

Id.

2

After filing the Complaint, Zivkovic filed a Motion for Service of Process 13 and a Motion
for Preliminary Injunction. 14 Both were denied. 15 In the Memorandum Decision denying the
Motion for Service of Process, Chief Magistrate Judge Warner stated that the in forma pauperis
“statute requires the court to screen the complaint in such a case to determine whether it should
be served upon the named defendants or dismissed . . . . [T]he court will screen Plaintiff’s
complaint and determine whether it should be served on the named defendants.” 16 Chief
Magistrate Judge Warner makes this determination in the Report and Recommendation.
DISCUSSION
When the plaintiff is proceeding in forma pauperis, 28 U.S.C. § 1915(e)(2) authorizes a
district court to “dismiss the case at any time if the court determines that . . . the action or appeal
. . . fails to state a claim on which relief may be granted.”
Zivkovic’s action “fails to state a claim on which relief may be granted” 17 because it
seeks appellate review of his state-court judgment.
According to the Rooker–Feldman 18 doctrine, a “United States District Court has no
authority to review final judgments of a state court in judicial proceedings.” 19 “[B]arred claims
are those complaining of injuries caused by state-court judgments . . . . In other words, an
element of the claim must be that the state court wrongfully entered its judgment.” 20 If “the

13

Motion for Official Service of Process, docket no. 5, January 27, 2017.

14

Motion for Preliminary Injunction or Restraining Order, docket no. 9, filed March 8, 2017.

Memorandum Decision denying [5] Motion for Service of Process, docket no. 6, entered February 1, 2017;
Memorandum Decision and Order denying [9], docket no. 10, entered March 13, 2017.
15

16

Memorandum Decision denying [5] Motion for Service of Process at 1–2.

17

18 U.S.C. § 1915(e)(2)(B)(ii).

Its name derived from two Supreme Court Cases: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

18

19

Feldman, 460 U.S. at 482.

20

Campbell v. City of Spencer, 682 F.3d 1278, 1283 (10th Cir. 2012).

3

merits of [the] claim cannot be stated except in terms of the state-court judgment,” then the
action is barred. 21 That is, “[t]he alleged constitutional wrong was the content of the judgment. It
was not, for example, some act by a defendant that led to the judgment.” 22
For Zivkovic’s causes of action, the state-court judgment is central to his claims: The
“merits of [the] claim cannot be stated except in terms of the state-court judgment.” 23 Contrary to
the argument in his Objection, 24 Zivkovic’s causes of action would not exist independent of the
state-court judgment. Zivkovic counters that the Rooker–Feldman doctrine does not apply
because there is no indication in his complaint that the defendants were acting under any
authority, let alone a restitution order. 25 The complaint, however, states in the first cause of
action that “[d]efendants Hood, and Johnson are listed on [the notice from the Office of State
Debt Collection Services] along with account information as: Corrections – District 1 account#
951000011 see ¶ D (1) supra, same criminal case #.” 26 And in his description of the nature of the
case, Zivkovic acknowledges that “[t]his issue stems from restitution ordered in Plaintiff’s
criminal sentence; case# 951000011, entered by Judge Gordon Lowe in the 1st District Court,
Logan, UT on August 17, 1995, for a conviction of 2nd degree, felony theft.” 27
Zivkovic also argues that the Report and Recommendation improperly referred to
Campbell v. City of Spencer. 28 He argues that Bolden v. City of Topeka 29 is more appropriate. In

21

Id. at 1285.

22

Id.

23

Id.

24

Objections at 1–3.

25

Id.at 1–2.

26

Complaint at 3 (punctuation altered).

27

Id. at 2.

28

Objection at 2.

29

441 F.3d 1129 (10th Cir. 2006).

4

Bolden, plaintiff Bolden “attempt[ed] in state court to enjoin demolition of his buildings.” 30 He
lost in state court. 31 He then “sought an injunction in federal court and [brought] claims against
the City and several individuals arising out of the demolitions.” 32 The court determined that
Rooker–Feldman did not apply because
Bolden’s federal suit did not seek to overturn the state-court judgment. Indeed, the
allegations underlying his federal-court claims are identical to what they would
have been had there been no state-court proceeding; none of his claims rests on
allegations that the state-court proceedings are judgment violated federal law, or
that the judgment itself inflicted an injury.
In other words, the court held that Rooker–Feldman did not apply because the federal
court could consider the merits of Bolden’s claims
without concerning itself with the bona fides of the prior judgment (which may or
may not have been a lawful judgment under the evidence and argument presented
to the first court), it is not conducting appellate review, regardless of whether
compliance with the second judgment would make it impossible to comply with
the first judgment. 33
Unlike Bolden, this court would be conducting appellate review of Zivkovic’s state-court
judgment because it would necessarily have to “concern[] itself with the bona fides of the prior
judgment.” 34
Though, as Zivkovic argues, the facts of his case and Campbell are “quite
distinguishable,” 35 the procedural circumstances are not. The plaintiff in Campbell was the loser
in a state-court action: “two municipalities successfully petitioned a state court to order forfeiture
of the [plaintiff’s] horses unless [the plaintiff] posted a security bond to pay for their

30

Id. at 1131.

31

Id.

32

Id.

33

Id. at 1143.

34

Id.

35

Objection at 2.

5

maintenance from the date of seizure.” 36 The plaintiff then “filed an action under 42 U.S.C. §
1983 in federal court” against the municipalities “alleging that they . . . violated the Fifth
Amendment by depriving her of her horses without due process or just compensation, and
violated the Eighth Amendment by obtaining an excessive fine through an unreasonable
forfeiture bond.” 37 The court found that the “merits of [these] claim[s] cannot be stated except in
terms of the state-court judgment.” 38
Zivkovic case is similar to Campbell. The merits of the state-court judgment are at the
heart of his litigation. Therefore, the Rooker–Feldman doctrine precludes jurisdiction.
ORDER
IT IS HEREBY ORDERED that the Report and Recommendation 39 is ADOPTED and
the above-captioned matter is DISMISSED with prejudice.
The Clerk shall CLOSE this case.

Signed April 19, 2017.
BY THE COURT

________________________________________
District Judge David Nuffer

36

Campbell, 682 F.3d at 1279.

37

Id. at 1279.

38

Id. at 1285.

39

Docket no. 12, entered April 4, 2017.

6