                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           August 4, 2016
                             FOR THE TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                         _________________________________                  Clerk of Court
JOSEPH DICESARE,

      Plaintiff - Appellant,

v.                                                          No. 15-7064
                                                   (D.C. No. 6:15-CV-00210-FHS)
MARILYN KAY MCANALLY;                                       (E.D. Okla.)
DELRAIN MCANALLY; B. K.
MCANALLY; CINDY DICESARE;
CLINTON HASTINGS; TERRILL
CROSSON; SCOTT WALTON;
MORGAN POWELL; STAN BROWN;
UNKNOWN CITY POLICE OFFICER
(BLUE BOY); UNKNOWN DEPUTY
(CHAINED DOG); EDDY RICE;
AMANDA HOWELL; ROBERT
SEACAT; ROGERS COUNTY,
OKLAHOMA,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
                  _________________________________



*
 After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.

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       Plaintiff Joseph DiCesare filed suit in the United States District Court for the

Eastern District of Oklahoma against numerous defendants, complaining of treatment to

his deceased mother and himself. Among the many acts of misconduct alleged in the

complaint are some that occurred in the state-court probate proceeding that settled his

mother’s estate and in the issuance of a protective order against him to prevent his

contact with his sister except through counsel. After deciding that the complaint was

challenging only the protective order and the probate judgment, the district court

determined that it was barred by the Rooker-Feldman doctrine from exercising

jurisdiction and dismissed the case. See Rooker v. Fid. Trust Co., 263 U.S. 413 (1923);

D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). Plaintiff appeals the dismissal.

       We agree with the district court only in part. Under the Rooker-Feldman doctrine

the lower federal courts are barred from reviewing final state-court judgments because

federal appellate jurisdiction over state courts is exclusively the province of the United

States Supreme Court. See Lance v. Dennis, 546 U.S. 459, 463 (2006) (per curiam). But

the Supreme Court has signaled that this jurisdictional bar is a narrow one. See id. at 464

(“Neither Rooker nor Feldman elaborated a rationale for a wide-reaching bar on the

jurisdiction of lower federal courts, and our cases since Feldman have tended to

emphasize the narrowness of the Rooker–Feldman rule.”). It “is confined to 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.


                                              2
Corp., 544 U.S. 280, 284 (2005). “The essential point is that barred claims are those

complaining of injuries caused by state-court judgments.” Campbell v. City of Spencer,

682 F.3d 1278, 1283 (10th Cir. 2012) (internal quotation marks omitted). “In other

words, an element of the claim must be that the state court wrongfully entered its

judgment.” Id.

         Giving Plaintiff’s complaint the liberal construction afforded pro se pleadings, see

Haines v. Kerner, 404 U.S. 519, 520 (1972) (“[A]llegations of the pro se complaint [must

be held] to less stringent standards than formal pleadings drafted by lawyers.”), we

cannot say that all the claims are necessarily barred by Rooker-Feldman. Some of the

alleged misconduct (such as the theft of his mother’s property) predated the state-court

proceedings. And the prayer for relief is so vague that we cannot tell whether Plaintiff

seeks only to set aside the protective order and the probate judgment. We can therefore

affirm the Rooker-Feldman dismissal only insofar as the complaint seeks to set aside the

probate judgment and protective order or to obtain equivalent relief (such as requiring

those who benefited from the judgment to disgorge their gains).

         The defendants, however, argued below, as they do on appeal, that to the extent

the district court had jurisdiction, the complaint failed to state a cause of action. We

agree.

         Plaintiff’s complaint raises three federal claims. Two (titled “Count II” and

“Count III”) appear to be under 42 U.S.C. § 1985(2). In Count II, Plaintiff alleges that all

the named defendants conspired to obstruct justice (apparently focusing on the

protective-order hearing) through perjury, intimidation and other tactics; and in Count III


                                               3
he alleges that the defendants conspired to obstruct justice (apparently focusing on the

probate proceeding) by failing to inform him of the proceeding, denying him the ability

to testify, and submitting false documents and testimony. But there is a missing element.

To state a claim under § 1985, Plaintiff had to allege racial discrimination or the like. See

Jones v. Norton, 809 F.3d 564, 578 (10th Cir. 2015) (“Among other elements, [§ 1985(2)

and (3)] require a showing of some racial, or perhaps otherwise class-based, invidiously

discriminatory animus behind the conspirators’ action.” (internal quotation marks

omitted)). No such allegation appears in the complaint. Plaintiff has failed to state a

claim under § 1985.

       Plaintiff’s remaining claim (titled “Count I”) is brought under 42 U.S.C. § 1983.

He alleges that his family members neglected, stole from, and intentionally inflicted

emotional distress on his mother when caring for her during her final years. And he

alleges that other defendants, including two attorneys, were complicit in this

mistreatment. Again, however, he omits an essential element of his claim. To state a

claim under § 1983, the complaint must allege that defendants acted “under color of state

law.” Polk Cnty. v. Dodson, 454 U.S. 312, 315 (1981) (internal quotation marks

omitted). Plaintiff contends that the two defendant attorneys were acting under color of

state law because Oklahoma law makes attorneys “officers of courts.” Complaint at 3–4;

R. at 13–14. But “a lawyer representing a client is not, by virtue of being an officer of

the court, a state actor ‘under color of state law’ within the meaning of § 1983.” Polk

Cnty., 454 U.S. at 318. And while Plaintiff makes passing reference to the inaction of ten

state agencies as violating his mother’s rights, he does not name the agencies or list them


                                             4
as defendants. In the 11 pages of the complaint addressing Count I, the only mention of a

defendant who is a state employee is in paragraphs 16 and 17 under the heading “Count

1: Supporting facts.” Paragraph 16 alleges that defendant Sheriff Scott Walton had been

fired from the Tulsa Police Department for some unspecified misconduct. And paragraph

17 cross-references an earlier paragraph in the complaint alleging that Sheriff Walton had

failed to respond to a letter from Plaintiff’s family complaining about a delay in filing the

death certificate for his mother. But the complaint does not explain how Plaintiff was

injured by Walton’s alleged misconduct. Because there are no other allegations in Count

I of injurious misconduct under color of law, the count fails to state a claim.

       The other issues noted in Plaintiff’s opening brief can be disposed of summarily.

First, he argues that there were ex parte discussions between the district court and the

attorneys for the defendants. But he fails to allege any evidence of such communications,

relying only on conclusory statements such as “it just stands to reason,” Aplt. Br. at 7,

and on a minute order granting one defendant additional time. Second, he argues that he

was not given the process due him because the district court issued its order to show

cause why it should not dismiss the complaint for lack of jurisdiction only 11 days after

receiving his voluminous briefing and materials. But the district court’s promptness does

not indicate that it gave short shrift to Plaintiff’s arguments, and its orders show that it

gave the matter close attention. Third, he argues that the district court acted as “an active

advocate for the defense” in issuing the show-cause order. Aplt. Br. at 8. But the district

court had the duty to assure itself of federal jurisdiction before proceeding with the case.

The show-cause order was entirely proper. Fourth, Plaintiff asserts that several


                                               5
defendants are in default. But he admits that he never sought a default judgment, so the

matter was not before the district court. Fifth, his contention that the district court erred

in not admonishing the defendants’ attorneys for alleged misconduct is devoid of

specifics. Finally, Plaintiff argues that the district court failed to rule on several of his

motions. But these motions became moot upon dismissal of the case; and because we

affirm that decision, they remain so.

       We AFFIRM the district court’s dismissal of Plaintiff’s complaint. To the extent

the dismissal was for lack of jurisdiction, however, it must be a dismissal without

prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006)

(“A longstanding line of cases from this circuit holds that where the district court

dismisses an action for lack of jurisdiction, . . . the dismissal must be without

prejudice.”). We therefore REMAND for correction of the judgment in that respect.

                                                Entered for the Court


                                                Harris L Hartz
                                                Circuit Judge




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