United States Court of Appeals, Tenth Circuit
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3d 598
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Robert Ernest SCHWARTZ, Plaintiff-Appellant,
v.
Dana WAKEFIELD, Denver County Juvenile Court Judge,
and
individually; Steve C. Briggs, Colorardo Court of
Appeals Judge, and individually,
Defendants-Appellees.
No. 95-1008.
United States Court of Appeals, Tenth Circuit.
March 1, 1996.
Before SEYMOUR, Chief Judge, McKAY and LUCERO, Circuit Judges.
1ORDER AND JUDGMENT*
2
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. Fed. R.App. P. 34(a); 10th Cir. R. 341.1.9. The case is therefore
ordered submitted without oral argument.
Robert Ernest Schwartz brought the present action under 42 U.S.C. 1983
alleging that he was deprived of his constitutional rights by several rulings of
the Denver Juvenile Court and the Colorado Court of Appeals. The district
court accepted the magistrate's recommendation and dismissed Mr. Schwartz'
complaint. We affirm, albeit on different grounds than the district court..
Mr. Schwartz set out two claims against Defendant Judge Wakefield. The first
relates to Mr. Schwartz' financial liability for the fees of the therapist treating
his daughter, who was the victim of his sexual assaults and incest. Mr.
Schwartz contends that in the course of a January 1989 hearing, the judge
raised the issue of his liability without notice, denied his evidentiary objections
and request for counsel, and permitted the grandmother of some of the children
to be present. Judge Wakefield found Mr. Schwartz liable for $3,400. Second,
Mr. Schwartz challenges the judge's issuance of a protective order barring him
from contact with any of his children, including those he had not molested, until
he demonstrated success in his sex offender treatment. Mr. Schwartz also
claims that Judge Briggs' refusal to grant his petition for rehearing violated his
rights, including his right to due process.
We construe a pro se litigant's1 pleadings liberally. Haines v. Kerner, 404 U.S.
519, 520-21 (1972). If we can reasonably read the pleadings to state a valid
claim, we will do so despite the absence of citation of legal authority or other
technical failings, but we will not "assume the role of advocate." Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
Even assuming that Mr. Schwartz' allegations constitute violations of his
constitutional rights, the district court was without jurisdiction to entertain his
claims. In District of Columbia Court of Appeals v. Feldman, 460 U.S. 462
(1983), the Supreme Court reiterated that lower federal courts lack subject
matter jurisdiction to engage in direct review of state court judgments:
7
United
States district courts ... do not have jurisidiction, however, over challenges to
state-court decisions in particular cases arising out of judicial proceedings even if
those challenges allege that the state court's action was unconstitutional. Review of
those decisions may be had only in this Court.
8
Id. at 486. We have often recognized this principle. See e.g. Van Sickle v.
Holloway, 791 F.2d 1431, 1436 (10th Cir.1986)("A federal district court does
not have the authority to review final judgments of a state court in judicial
proceedings; such review may only be had only in the United States Supreme
Court."). This doctrine bars not only direct review of state court judgments, but
also collateral attacks thereon. Facio v. Jones, 929 F.2d 541, 543 (10th
Cir.1991) ("Feldman not only prohibited direct review of state court judgments
by lower federal courts, but it also prohibited those federal courts from issuing
any declaratory relief that is 'inextricably intertwined' with the state court
judgment.").
Indeed, we have specifically foreclosed the sort of claim Mr. Schwartz seeks to
bring. In Anderson v. State of Colorado, 793 F.2d 262 (10th Cir.1986), we held
that "[w]here a constitutional issue could have been reviewed on direct appeal
by the state appellate courts, a litigant may not seek to reverse or modify the
state court judgment by bringing a constitutional claim under 42 U.S.C.
1983." Id. at 263. Like Mr. Schwartz, Anderson brought a section 1983 claim to
challenge alleged violations of his constitutional rights in the course of judicial
proceedings in Colorado state court. Id. Because his "lawsuit essentially
[sought] to undo the custody decision of the Colorado state court ... it [fit]
squarely within the parameters of the Doe-Feldman doctrine prohibiting federal
district courts from reviewing state-court judgments." Id. at 264. There, as here,
the plaintiff's proper course was "to exhaust his appeals in the Colorado courts
and to petition the Supreme Court of the United States for certiorari review of
the decision of the state supreme court." 2 Id.
10
Mr. Schwartz suggests that we must have jurisdiction under Pulliam v. Allen,
466 U.S. 522 (1984). There, the Supreme Court held that section 1983 permits
a grant of prospective injunctive relief against state judges. Pulliam involved a
challenge to a state court practice which was insulated from any sort of direct
review, however, not the direct review of a state court judgment. Mr. Schwartz'
claims are not akin to those at issue in Pulliam; rather, they are plainly
governed by Feldman. He asks us to overrule the final judgments rendered by
Colorado courts, which we will not do.
11
Mr. Schwartz has also moved for leave to proceed on appeal without
prepayment of costs or fees. In order to succeed on this motion, an appellant
must show both: 1) a financial inability to pay the required filing fees, and 2)
the existence of a nonfrivolous argument on the law and facts in support of the
issues raised on appeal. See 28 U.S.C. 1915(a); Coppedge v. United States,
369 U.S. 438 (1962); Ragan v. Cox, 305 F.2d 58 (10th Cir.1962).
12
We grant Mr. Schwartz' motion to proceed informa pauperis on appeal, and we
affirm the judgment of the district court.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
Although Mr. Schwartz was licensed to practice law in Colorado, upon his
conviction for three counts of sexual assault on a child and three counts of
aggravated incest he was disbarred by the Colorado Supreme Court. People of
the State of Colorado v. Schwartz, 890 P.2d 82 (Colo.1995)
2
Mr. Schwartz appears to believe that he cannot pursue an appeal of the decision
of the Colorado Court of Appeals to the Colorado Supreme Court until the
present case is settled. This belief has no basis in fact or law
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