                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            APR 8 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    JEFF DWIRE,

                Plaintiff-Appellant,

    v.                                                   No. 02-1150
                                                     (D.C. No. 01-K-2186)
    RICHARD TOTH, Judge;                                   (D. Colo.)
    KATHERINE CRAGO; SYLVIA
    XANDERSON; COLORADO
    DIVISION OF CHILD SUPPORT
    ENFORCEMENT,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , HENRY , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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      This order and judgment is not binding precedent, except under the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. 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.
      Mr. Dwire, proceeding pro se, brought this civil-rights action in district

court under 42 U.S.C. § 1983 challenging the constitutionality of Colorado state

paternity and child-support statutes and court procedures. The complaint alleged

that defendant Richard Toth, a state-court judge, had violated Mr. Dwire’s

constitutional right to due process of the law by making deliberately erroneous

evidentiary rulings and also by ordering an excessive amount of child support. As

for named defendants Katherine Crago and Sylvia Xanderson (employees of the

defendant Colorado Division of Child Support Enforcement), the body of the

complaint included no allegations against them. Defendant Division of Child

Support Enforcement was never served with a summons and complaint.           1



      After conducting a hearing on dispositive motions filed by defendants

Crago, Xanderson, and Toth, the       district court dismissed the entire action and

awarded costs to Judge Toth.        The court held that the claims against Judge Toth

were barred under the doctrine of      res judicata , in that plaintiff had made similar

claims which were dismissed in an earlier federal action,      Dwire v. Maximus, Inc. ,



1
        From Mr. Dwire’s initial filing on appeal it appeared that claims against the
Colorado Division of Child Support Enforcement had not been adjudicated. In
order to clarify the status of this defendant, this court issued an order requiring
Mr. Dwire to file either a final judgment or a certification under Fed. R. Civ. P.
54(b). Mr. Dwire did not respond to the order. Because the Division was not
served, however, the district court was not required to enter an order disposing of
the claims as provided in Rule 54(b).    See Bristol v. Fibreboard Corp , 789 F.2d
846, 847 (10th Cir. 1986). Accordingly, we have jurisdiction over this appeal.

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No. 99-S-2476 (D. Colo. Apr. 6, 2000).       See Wilkes v. Wyo. Dep’t of Employment

Div. of Labor Standards , 314 F.3d 501, 503-04 (10th Cir. 2002) (stating that,

“[u]nder res judicata, or claim preclusion, a final judgment on the merits of an

action precludes the parties or their privies from relitigating issues that were or

could have been raised in the prior action”) (quotation omitted). In the previous

action, the court had found that Mr. Dwire’s claims amounted to a

jurisdictionally-barred attempt to appeal a final decision of the state court

ordering him to pay child support.     See Dist. of Columbia Ct. of Appeals v.

Feldman , 460 U.S. 462, 476 (1983) (holding that a federal district court has no

authority to review final judgments of a state judicial proceedings).   Accordingly,

in this action the court awarded costs “as a sanction against Plaintiff for filing a

repetitive action asserting claims . . . that have already been dismissed by another

judge of this court.” R., tab 16, at 2.

       Additionally, the court dismissed claims against defendants Crago and

Xanderson under Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which

relief can be granted. Because the complaint set forth no allegations of

misconduct specific to them, Mr. Dwire failed to allege the necessary personal

involvement required for liability under § 1983. See Foote v. Spiegel, 118 F.3d

1416, 1423 (10th Cir. 1997) (holding that “[i]ndividual liability under § 1983

must be based on personal involvement in the alleged constitutional violation”).


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Finally, the court ruled that Mr. Dwire’s constitutional challenge to Colorado’s

laws was subject to dismissal. He had failed to respond to defendants’ motion to

dismiss, thus leaving unrebutted the presumption that a state statute is

constitutional. See Eaton v. Jarvis Prods. Corp., 965 F.2d 922, 929 (10th Cir.

1992).

         Mr. Dwire has appealed the district court ’s ruling. We review the court’s

dismissal de novo, accepting “all well-pleaded factual allegations . . . as true,”

and affirming only if “it appears beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitled him to relief.” Sutton v.

Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)

(quotation omitted). After a careful review of the record, we affirm the dismissal

of this action for substantially the same reasons set forth in the district court’s

order dated February 28, 2002.

         Additionally, we review all aspects of the district court’s sanction

determination under an abuse of discretion standard. See Coffey v. Healthtrust,




                                            -4-
Inc., 955 F.2d 1388, 1393 (10th Cir. 1992). We find no abuse of discretion in the

assessment of costs against Mr. Dwire.

      AFFIRMED.


                                                   Entered for the Court



                                                   Robert H. Henry
                                                   Circuit Judge




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