                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                      September 27, 2012
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                       TENTH CIRCUIT


 BARRY C. PRETLOW,
                Plaintiff–Appellant,                           No. 12-6122
           v.                                         (D.C. No. 5:12-CV-00368-D)
 RICHARD McPHERSON,                                          (W.D. Oklahoma)
                Defendant–Appellee.


                              ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


       After examining the briefs and the 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). This case is therefore ordered

submitted without oral argument.

       Plaintiff was denied unemployment compensation benefits by the Oklahoma

Employment Security Commission. He filed a petition in the state court for judicial

review of the agency decision, but the state court dismissed the petition for lack of

jurisdiction based on Plaintiff’s failure to name all necessary parties. The state appellate

court affirmed. Plaintiff then filed the instant action under 42 U.S.C. § 1983 against the


       *
         This order and judgment is not binding precedent, except under the doctrines of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.
agency’s executive director, alleging the agency and state court decisions violated his

constitutional rights and seeking monetary damages for his alleged injury. The district

court dismissed the action without prejudice pursuant to the Rooker/Feldman doctrine.

The district court concluded that dismissal was appropriate on an alternate ground as

well—Plaintiff did not allege any facts that would establish Defendant’s personal liability

for the agency’s decision, and, to the extent the complaint was brought against Defendant

in his official capacity, it was barred by the state agency’s Eleventh Amendment

immunity.

       Insofar as Plaintiff’s complaint directly challenged the state court proceedings, it

was appropriately dismissed under Rooker/Feldman. However, because the state court

did not review the merits of the state agency decision, the Rooker/Feldman doctrine does

not apply to the agency decision. “While the Rooker–Feldman doctrine recognizes that

the federal district courts may not review decisions by a state’s courts, it does not

preclude federal district court review of executive action, including determinations made

by a state administrative agency.” Mitchell v. Fishbein, 377 F.3d 157, 165 (2d Cir. 2004)

(internal quotation marks omitted). “If the decision of a state agency has been upheld by

a state court, then the Rooker–Feldman doctrine applies, because a challenge to the

agency’s decision necessarily involves a challenge to the judgment of the state court.”

Narey v. Dean, 32 F.3d 1521, 1525 (11th Cir. 1994). However, the doctrine is

inapplicable to state agency decisions that have not been reviewed by the state courts. Id.

at 1525-26; see also Van Harken v. City of Chicago, 103 F.3d 1346, 1349 (7th Cir. 1997)

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(“If the Rooker–Feldman doctrine is to be extended to administrative judgments, it will

have to be done by the Court that created it.”).

       Nevertheless, we affirm the district court’s ruling on the basis of the alternate

grounds the court gave for dismissal. As the district court correctly noted, Plaintiff’s

complaint does not allege any facts that would establish Defendant’s liability in his

individual capacity. As for Plaintiff’s claims against Defendant in his official capacity,

“when a suit seeks money damages against an official of a state agency, suing that official

in his or her official capacity, then the ‘real party in interest’ is the state, and the suit is

barred by the Eleventh Amendment.” ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1187

(10th Cir. 1998), abrogated on other grounds by Verizon Md. v. Pub. Serv. Comm’n of

Md., 535 U.S. 635 (2002). Contrary to Plaintiff’s assertions, § 1983 does not affect this

principle. See Edelman v. Jordan, 415 U.S. 651, 675-77 (1974).

       After carefully reviewing Plaintiff’s brief and the appellate record, we see no error

in the district court’s conclusion that Plaintiff’s claims against Defendant in his official

capacity were barred by the Eleventh Amendment, while his claims against Defendant in

his individual capacity failed to state a claim upon which relief could be granted. We

therefore AFFIRM the district court’s dismissal of the case.

                                                      Entered for the Court



                                                      Monroe G. McKay
                                                      Circuit Judge


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