                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       February 2, 2006
                           FOR THE TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court

    RONNIE J. GARNER,

             Plaintiff-Appellant,

     v.                                                No. 05-2096
                                            (D.C. No. CIV-04-1314 RHS/ACT)
    STEPHANIE GONZALES, Director,                       (D. N.M.)
    Child Support Enforcement Division,
    New Mexico; PAMELA S. HYDE,
    Secretary, Human Services
    Department, New Mexico; JAMES
    LOUGHREN, Former Judge and
    current CSEB Hearing Officer, 2nd
    Judicial District, New Mexico; IRA
    ROBINSON; MICHAEL D.
    BUSTAMANTE; MICHAEL E.
    VIGIL, Judge, Appeals Court, New
    Mexico,

             Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before BARRETT, PORFILIO, and BRORBY, Senior Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiff appellant is a divorced father whose divorce was administered

through the New Mexico state court system. According to the complaint,

defendants are the Director of the New Mexico Child Support Enforcement

Division, the Secretary of the New Mexico Human Services Department, the trial

judge who presided over plaintiff’s divorce, and the three judges of the New

Mexico Court of Appeals who ruled against plaintiff in his divorce appeal. App.

at 10-12.

      Plaintiff’s complaint alleges that defendants violated his rights under the

Fifth and Fourteenth Amendments to the Constitution and failed to follow federal

law relative to child support. Plaintiff requests declarative and injunctive relief

pursuant to 42 U.S.C. § 1983 to remedy the alleged violations of federal law. The

district court, without discussion or analysis, dismissed the case with prejudice.

      On appeal, plaintiff argues that it was error to dismiss this case under either

Fed. R. Civ. P. 12(b)(1) or 12(b)(6), and that, in any event, it was error to dismiss

with prejudice. We have conducted a de novo review of the record and the

parties’ briefs, see Kiowa Indian Tribe v. Hoover, 150 F.3d 1163, 1165 (10th Cir.


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1998), and agree with defendants that this case had to be dismissed on any

number of grounds for want of subject matter jurisdiction.

      The clearest ground for dismissal of this matter was on the basis of the

Rooker-Feldman doctrine. 1

      [T]he Rooker-Feldman doctrine prohibits a lower federal court from
      considering claims actually decided by a state court, and claims
      inextricably intertwined with a prior state-court judgment. In other
      words, Rooker-Feldman precludes a party losing in state court . . .
      from seeking what in substance would be appellate review of [a]
      state judgment in a United States district court, based on the losing
      party’s claim that the state judgment itself violates the loser’s federal
      rights.

Kenmen Eng’g v. City of Union, 314 F.3d 468, 473 (10th Cir. 2002) (citations and

quotations omitted). “[I]n the Tenth Circuit, Rooker-Feldman applies to all state

court judgments, including those of intermediate state courts.” Id.

      In determining whether an action presents a case “inextricably intertwined”

with the state court judgment, “we must ask whether the injury alleged by the

federal plaintiff resulted from the state court judgment itself or is distinct from

that judgment.” Id. at 476 (quotation omitted). “In other words, we approach the

question by asking whether the state-court judgment caused, actually and

proximately, the injury for which the federal-court plaintiff seeks redress. If it



1
      The doctrine takes its name from the seminal decisions in D.C. Court of
Appeals v. Feldman, 460 U.S. 462 (1983) and Rooker v. Fid. Trust Co., 263 U.S.
413 (1923).

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did, Rooker-Feldman deprives the federal court of jurisdiction.” Id. (emphasis

omitted). Plaintiff’s complaint runs afoul of Rooker-Feldman both because it

asks the federal court to consider claims actually decided by the New Mexico

courts and because it includes claims inextricably intertwined with the judgments

of the state court. 2

       After plaintiff’s divorce proceeding was final in state district court, he

appealed to the New Mexico Court of Appeals. That court ruled against him on

most of the issues he included in his federal complaint. 3 To wit, it rejected

plaintiff’s arguments that he was denied due process because he was not given a

hearing to determine whether his former wife was underemployed and to present

evidence rebutting the amount of child support set by state guidelines. App. at

46-50. That court also rejected plaintiff’s contention that federal law preempts

New Mexico’s child support guidelines. Id. at 50-52. To the extent plaintiff

raises issues that could be seen as distinct from those actually decided by the New

Mexico Court of Appeals, we hold those issues to be “inextricably intertwined”

with the underlying state court judgments and therefore barred from federal court


2
      The recent clarification by the Supreme Court of the scope of Rooker-
Feldman in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280
(2005), does not affect the outcome of this case.
3
      The United States Supreme Court also denied certiorari. Garner v. Garner,
No. 23,761, slip op. (N.M. Ct. App. June 6, 2003), cert. denied, 72 U.S.L.W.
3328 (U.S. Jan. 12, 2004) (No. 03-663).

                                          -4-
by Rooker-Feldman. Plaintiff’s request for prospective and injunctive relief is

simply a reformulated request for a judgment that the state court violated his

rights in the past. A lower federal court has no jurisdiction over such a matter.

See Kiowa Indian Tribe, 150 F.3d at 1169.

      As for his second point of error, we agree with plaintiff that the district

court erred in dismissing his complaint with prejudice. As explained by the

Seventh Circuit,

      “[t]he Rooker-Feldman doctrine is a rule of federal jurisdiction. A
      suit dismissed for lack of jurisdiction cannot also be dismissed “with
      prejudice”; that’s a disposition on the merits, which only a court with
      jurisdiction may render. “No jurisdiction” and “with prejudice” are
      mutually exclusive. When the Rooker-Feldman doctrine applies,
      there is only one proper disposition: dismissal for lack of federal
      jurisdiction. A jurisdictional disposition is conclusive on the
      jurisdictional question: the plaintiff cannot re-file in federal court.
      But it is without prejudice on the merits, which are open to review in
      state court to the extent the state’s law of preclusion permits.”

Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004); see also

Brereton v. Bountiful City Corp., — F.3d —, No. 05-4067, 2006 WL 182063, at

*2 (10th Cir. Jan. 26. 2006) (noting that dismissals for lack of jurisdiction must

be without prejudice).

      The state agency defendants complain that they were unable to find a copy

of plaintiff’s petition for certiorari to the United States Supreme Court and ask for

sanctions against plaintiff for failure to provide all relevant documents in his

appendix. The request for sanctions is denied. The certiorari petition is available

                                         -5-
online. See 2003 WL 22574929. In addition, all defendants request sanctions for

what they deem a frivolous appeal. These requests are also denied because they

were not made in the form of separate motions as required by Fed. R. App. P. 38.

Judge Harris L Hartz has recused himself from this matter.

      The judgment of the district court is MODIFIED to reflect that the

dismissal of all claims asserted in this action is without prejudice, and, as so

modified, the judgment is AFFIRMED.



                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge




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