                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            July 25, 2014
                                   TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


 KELVIN L. DAVIS; SHARON D.
 DAVIS; KTD, a minor; JTD, second
 minor; JDD, third minor,

        Plaintiffs - Appellants,

 v.                                                        No. 13-4102
                                                   (D.C. No. 1:07-CV-00148-CW)
 WENDY GARCIA; VERONICA                                      (D. Utah)
 KASPRZAK; AMY REED; CHARLENE
 SANSONE; LORI HOLMES,

        Defendants – Appellees,

 and

 DIANE WILKINS, Judge; ROBERT
 PARRISH; LAURA THOMPSON;
 SONIA SWEENEY; GUARDIAN AD
 LITEM’S OFFICE; UTAH ATTORNEY
 GENERAL’S OFFICE; STATE OF
 UTAH; RICK SMITH; DWAYNE
 BETOURNAY; UTAH DIVISION OF
 CHILD AND FAMILY SERVICES,

        Defendants.



                              ORDER AND JUDGMENT*


       After examining the briefs and the 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) and 10th Cir. R. 34.1(G). The case is therefore
Before KELLY, HARTZ, and TYMKOVICH, Circuit Judges.


       Acting under court orders, Utah’s Division of Child and Family Services (DCFS)

removed Plaintiffs KTD, JTD, and JDD from the custody of their parents, Plaintiffs

Kelvin and Sharon Davis, in 2006. The parents eventually regained custody in 2008. But

in the interim Plaintiffs sued five DCFS employees in the United States District Court for

the District of Utah. They brought federal civil-rights claims under 42 U.S.C. § 1983 and

state-law tort claims. The district court granted summary judgment for Defendants on the

federal claims, holding (1) that it lacked jurisdiction under the Rooker-Feldman doctrine,

see Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Ct.App. v. Feldman, 460 U.S.

462 (1983), which limits federal review of state-court judgments to the United States

Supreme Court, and (2) that if it had jurisdiction, Defendants were entitled to qualified

immunity and Plaintiffs were barred by collateral estoppel. On the state-law claims the

court granted summary judgment on the grounds that the parents’ claims were untimely;

the children’s claims were premature; and Plaintiffs failed to produce any evidence of

fraud or willful misconduct, as required by the Utah Governmental Immunity Act




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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(UGIA), Utah Code Ann. § 63-30d-202(3)(c) (West 2004) (current version at

§ 63G-7-202 (West 2014)).

       Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Even though we hold

that at least part of Plaintiffs’ Fourteenth Amendment claim was not barred by Rooker-

Feldman, Plaintiffs waived any challenge to the district court’s rulings on qualified

immunity and collateral estoppel because they failed to dispute the rulings in their

opening brief on appeal. As for the state-law claims, we agree with the district court that

Plaintiffs presented no evidence that Defendants acted through fraud or willful

misconduct.

I.     BACKGROUND

       Plaintiffs originally sued a number of state entities, officers, and employees, but

the only remaining defendants are Wendy Garcia, Lori Holmes, Veronica Kasprzak, Amy

Reed, and Charlene Sansone (Defendants), all of whom are DCFS employees. Plaintiffs’

suit arose from Defendants’ conduct leading up to and during state-court proceedings that

ultimately resulted in court orders denying the parents’ custody over their children.

Plaintiffs raised two civil-rights claims under 42 U.S.C. § 1983, alleging that Defendants

violated their Fourth and Fourteenth Amendment rights by removing the children from

their parents without consent, by failing to give Plaintiffs adequate notice of accusations

and court proceedings, and by making “false and unverified accusations . . . in [their]

reports to the Court.” Aplt. App. at 36–37. They also raised six state-law claims: (1)

intentional infliction of emotional distress, (2) negligent infliction of emotional distress,
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(3) negligence, (4) defamation, (5) negligent hiring, and (6) negligent supervision. As

stated above, the district court granted summary judgment for Defendants on all the

claims.

II.    ANALYSIS

       On appeal Plaintiffs argue that their Fourteenth Amendment claim was not barred

by Rooker-Feldman. They do not contest, however, the district court’s holdings that the

claim was barred by qualified immunity and collateral estoppel. As for the state-law

claims, Plaintiffs concede that summary judgment was properly granted against the

parents but challenge both the district court’s grounds for granting summary judgment

against the children.

       A.     Federal Claims

       Assuming that the Rooker-Feldman doctrine implicates our jurisdiction, we

address it first. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)

(jurisdiction must be determined before resolving merits). The doctrine “bars the lower

federal courts from engaging in appellate review of state-court judgments.” Campbell v.

City of Spencer, 682 F.3d 1278, 1279–80 (10th Cir. 2012). That authority is reserved for

the Supreme Court. See id. at 1281. This limitation on jurisdiction is narrow and does

not apply “[w]hen the state-court judgment is not itself at issue.” Id. (internal quotation

mark omitted); see PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1193 (10th Cir. 2010)

(“Rooker-Feldman does not bar federal-court claims that would be identical even had

there been no state-court judgment . . . .” (internal quotation marks omitted)). Thus, for
                                              4
Rooker-Feldman to prohibit review, “an element of the claim must be that the state court

wrongfully entered its judgment.” Campbell, 682 F.3d at 1283.

       Our decision in Wagner controls the Rooker-Feldman issue in this case. In

Wagner the plaintiffs, a minor child and his parents, alleged that DCFS employees and

other state actors had violated their Fourth and Fourteenth Amendment rights during a

dispute over the custody of the child in Utah’s juvenile court. See 603 F.3d at 1187.

Two of the defendants moved for summary judgment under Rooker-Feldman. See id. at

1192. They alleged that the plaintiffs’ claims required the federal district court to review

two state-court orders, one granting custody of the child to the state and one accepting the

parents’ “guilty pleas for misdemeanor custodial interference.” Id. at 1193. The

plaintiffs’ due-process claims under the Fourteenth Amendment were based “on

misrepresentations allegedly made by the defendants during the juvenile court

proceedings . . . and on DCFS’s alleged failure to conduct an independent investigation

of [the child’s] case before filing the verified petition.” Id. at 1194. We held that these

claims were independent of the state-court judgments and that Rooker-Feldman therefore

was not applicable. See id.

       Plaintiffs allege in their opening brief “that the Defendants made

misrepresentations during the state court proceedings, failed to conduct independent

investigations into the allegations of abuse against the Plaintiffs, and failed to investigate

credible reports that the children were being abused by their foster family while in

[DCFS’s] custody.” Aplt. Br. at 24. As Defendants point out, these allegations do not
                                              5
match the complaint. Nevertheless, there is some overlap. Plaintiffs’ complaint alleged

that they were deprived of “procedural and substantive due process because of,” among

other things, “the false and unverified accusations made by . . . Defendants in [their]

reports to the Court.” Aplt. App. at 36–37 (emphasis added). This allegation would

encompass claims that Defendants made misrepresentations and failed to conduct

independent investigations, thereby bringing this case under Wagner. Accordingly, the

district court had jurisdiction over at least some of Plaintiffs’ Fourteenth Amendment

claims. (Contrary to the view of the district court, the failure of Plaintiffs to provide

evidentiary support for their allegations is a merits issue, not one of jurisdiction, and does

not affect the Rooker-Feldman analysis.)

         Nevertheless, Defendants are still entitled to summary judgment. As an

alternative ground for its ruling, the district court held that Plaintiffs’ § 1983 claims were

barred by qualified immunity and collateral estoppel. Yet Plaintiffs’ opening brief says

nary a word to dispute those rulings. Accordingly, Plaintiffs have waived any challenge

to them. “Issues not raised in the opening brief are deemed abandoned or waived.” Tran

v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (internal quotation

marks omitted). We therefore affirm the dismissal of Plaintiffs’ Fourteenth Amendment

claim.

         B.    State-Law Claims

         The district court granted summary judgment against the children’s state-law

claims on two grounds: (1) the complaint was filed before the notice of claim was filed,
                                              6
and (2) Plaintiffs failed to present evidence that Defendants “acted or failed to act

through fraud or willful misconduct,” Utah Code Ann. § 63-30d-202(3)(c)(i) (West

2004). On appeal, Plaintiffs challenge both grounds. We need address only the second

ground, which requires us to affirm the judgment.

       To prevail under the UGIA on a claim against a state employee, the plaintiff must

show that the “employee acted or failed to act through fraud or willful misconduct.” Id.

Plaintiffs do not contest this standard or contest that the terms fraud and willful

misconduct are absent from their complaint. They argue, however, that their

“[c]omplaint describes numerous indications that Defendants were acting with improper

motives, such as racial and age bias, and actions of the Defendants which easily fall

within the ‘willful misconduct’ spectrum.” Aplt. Br. at 29. We question whether their

pleading was adequate. But even if it was, the court’s ruling was a grant of summary

judgment, not a dismissal for failure to plead a proper claim. Defendants submitted

affidavits and various exhibits that, if believed, would establish that they committed no

fraud or willful misconduct. Plaintiffs therefore bore the burden to “set out specific facts

showing a genuine issue for trial . . . [and could] not rely merely on [their] own

pleadings.” Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) (internal

quotation marks omitted). Yet they submitted no evidence. Their unverified complaint is

insufficient.




                                              7
III.   CONCLUSION

       We AFFIRM the district court’s grant of summary judgment.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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