                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 27, 2008
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 JUDY LAWRENCE and GALE
 GREENSTREET, as Co-Trustees of
 the Red River Trust,

               Plaintiffs-Appellants,
                                                        No. 06-1397
          v.                                              D. Colo.
                                             (D.C. No. 06-CV-00711-REB-MEH)
 O. JOHN KUENHOLD, District Court
 Judge acting without jurisdiction of
 the proper parties,

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and HOLMES, 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        This order and judgment is not binding precedent except under the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.
      Judy Lawrence and Gale Greenstreet filed a complaint in federal district

court against O. John Kuenhold, a judge in the District Court of Alamosa County,

Colorado, alleging he violated their due process rights by entering default

judgment in a quiet title action to which Lawrence and Greenstreet were not

parties. The court dismissed the complaint with prejudice, concluding it was

barred by the Rooker-Feldman doctrine and judicial immunity. We affirm.

                                I. BACKGROUND

      As it appears from the limited record, Eddie Stafford, Administrator of the

Estate of Alex Stafford, filed a quiet title action against Martin Stafford, trustee

of the A. M. & J. Trust, in Colorado state court. 1 Judge Kuenhold presided over

the case and entered default judgment against Martin Stafford. Lawrence and

Greenstreet claim the judgment was entered in contravention of Rule 105(b) of

the Colorado Rules of Civil Procedure, which provides: “No person claiming any

interest under or through a person named as a defendant need be made a party

unless his interest is shown of record in the office of the recorder of the county

where the real property is situated, and the decree shall be as conclusive against

him as if he had been made a party . . . . ” (emphasis added). They claim the A.

M. & J. Trust transferred the property at issue to the Red River Trust, of which

they are co-trustees, by a warranty deed that was recorded.

      1
         The record does not contain any pleadings or other documents from the
state court action. Thus, we rely on the parties’ description of the relevant
events.

                                          -2-
      Instead of seeking relief in state court, Lawrence and Greenstreet filed a

pro se “Complaint for Vacation of a Void Judgment” in federal court alleging a

due process claim, among others. 2 (R. Vol. I, Doc. 1 at 1.) The complaint seeks

the following relief: (1) title to the property at issue be returned to the Red River

Trust and the Red River Trust be compensated for the costs of suit; (2) the

judgment entered by Judge Kuenhold be vacated and voided, along with any and

all judgments in related cases; and (3) “[s]uch other relief as the Court may feel is

needed to alter the behavior of the State Court and Judges thereof.” (Id. at 8.)

      The magistrate judge sua sponte ordered Lawrence and Greenstreet to show

cause why their complaint should not be dismissed under the Rooker-Feldman

doctrine. 3 Lawrence and Greenstreet responded to the order to show cause and

the magistrate judge recommended their complaint be dismissed without

prejudice. Judge Kuenhold then filed a motion to dismiss the complaint under

Rule 12(b)(1) of the Federal Rules of Civil Procedure on the basis of Rooker-



      2
         Because Lawrence and Greenstreet filed their complaint while proceeding
pro se, we review their pleadings liberally. See Beedle v. Wilson, 422 F.3d 1059,
1063 (10th Cir. 2005). We note that Lawrence and Greenstreet’s position has
been substantially refined by their appellate counsel, though they still have not
explained what effect the default judgment had on their rights or on the rights of
the Red River Trust.
      3
        The Rooker-Feldman doctrine is based on Dist. of Columbia Ct. of
Appeals v. Feldman, 460 U.S. 462 (1983) and Rooker v. Fidelity Trust Co., 263
U.S. 413 (1923). It “prohibits federal suits that amount to appeals of state-court
judgments.” Bolden v. City of Topeka, Kan., 441 F.3d 1129, 1139 (10th Cir.
2006).

                                         -3-
Feldman. The magistrate judge again recommended the case be dismissed

without prejudice under Rooker-Feldman. On August 9, 2006, the district court

issued an order adopting the magistrate’s recommendation, explaining: “[t]he

recommendations are detailed and well-reasoned. Plaintiffs’ objections are

imponder[able] and without merit.” (R. Vol. I, Doc. 21 at 2.) Though the issue

was neither argued nor briefed by the parties, the district court concluded: “Judge

Kuenhold is entitled to absolute judicial immunity . . . as the acts of which

plaintiffs complain were all taken within his capacity as a judicial officer.” (Id.)

The court dismissed the complaint with prejudice.

      On appeal, Lawrence and Greenstreet, now represented by counsel, contend

the court erred by dismissing their complaint under Rooker-Feldman because they

were not parties to the state court action. In his supplemental answer brief, Judge

Kuenhold concedes Lawrence and Greenstreet were not parties to the state court

action and thus, under Lance v. Dennis, 546 U.S. 459, 464 (2006), their complaint

should not have been dismissed under Rooker-Feldman. 4 Judge Kuenhold argues,


      4
        In Lance, the Supreme Court reiterated Rooker-Feldman “is a narrow
doctrine” that has been applied by the lower courts “far beyond the contours of
the Rooker and Feldman cases.” 546 U.S. at 464 (quotations omitted). The Court
explained it had previously “held Rooker-Feldman inapplicable where the party
against whom the doctrine is invoked was not a party to the underlying state-court
proceeding.” Id. (citing Johnson v. De Grandy, 512 U.S. 997, 1006 (1994)). The
Court clarified: “The Rooker-Feldman doctrine does not bar actions by nonparties
to the earlier state-court judgment simply because, for purposes of preclusion law,
they could be considered in privity with a party to the judgment.” Id. at 466.


                                          -4-
however, the dismissal should be affirmed on the alternate basis of judicial

immunity or on the basis that a party is not entitled to equitable relief when there

is an adequate remedy at law. In their supplemental reply brief, Lawrence and

Greenstreet contend the court should not have ruled on judicial immunity as it

was not raised by the parties. In addition, and without citing legal authority, they

claim Judge Kuenhold is not absolutely immune from their (unspecified) claim for

declaratory relief.

                                 II. DISCUSSION

      “We review a dismissal under Fed. R. Civ. P. 12(b)(6) de novo.” Ridge at

Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). We

consider “whether the complaint contains ‘enough facts to state a claim to relief

that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 127 S.

Ct. 1955, 1969 (2007)). “[T]he mere metaphysical possibility that some plaintiff

could prove some set of facts in support of the pleaded claims is insufficient; the

complaint must give the court reason to believe that this plaintiff has a reasonable

likelihood of mustering factual support for these claims.” Id. In conducting this

inquiry, “[w]e accept as true all well-pleaded facts . . . and view those facts in the

light most favorable to the nonmoving party.” Maher v. Durango Metals, Inc.,

144 F.3d 1302, 1304 (10th Cir. 1998). Because Judge Kuenhold concedes

Lawrence and Greenstreet’s complaint should not have been dismissed under

Rooker-Feldman, we will consider whether the court correctly concluded Judge

                                          -5-
Kuenhold was immune from suit.

      In an action for monetary damages, “[judicial] immunity is overcome in

only two circumstances. First, a judge is not immune from liability for

nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity.

Second, a judge is not immune from actions, though judicial in nature, taken in

the complete absence of jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991)

(citations omitted); see also Beedle, 422 F.3d at 1072 (“‘A judge will not be

deprived of immunity because the action he took was in error, was done

maliciously, or was in excess of his authority; rather, he will be subject to

liability only when he has acted in the clear absence of all jurisdiction.’”)

(quoting Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)). Lawrence and

Greenstreet do not contend Judge Kuenhold acted outside of his judicial capacity;

nor do they contend he lacked subject matter jurisdiction over the quiet title

action. 5 Instead, they argue they should be allowed to seek an unspecified form

of declaratory relief against Judge Kuenhold.

      The only type of relief available to a plaintiff who sues a judge is

declaratory relief, see Schepp v. Fremont County, 900 F.2d 1448, 1452 (10th Cir.




      5
         Such an argument would be unavailing as Colorado state district courts
are courts of general jurisdiction. See Colo. Const. art. VI, § 9 (“The district
courts shall be trial courts of record with general jurisdiction, and shall have
original jurisdiction in all civil, probate, and criminal cases . . . .”).

                                          -6-
1990), but not every plaintiff is entitled to this remedy. 6 Lawrence and

Greenstreet do not specify what form declaratory relief would take and their

complaint cannot be read to request declaratory relief in the true legal sense. A

declaratory judgment is meant to define the legal rights and obligations of the

parties in anticipation of some future conduct, not simply to proclaim liability for

a past act. See Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d

1248, 1266 (10th Cir. 2004) (McConnell, J., concurring) (“[A] declaratory

judgment action involving past conduct that will not recur is not justiciable.”);

Francis E. Heydt Co. v. United States, 948 F.2d 672, 676-77 (10th Cir. 1991).

      Lawrence and Greenstreet’s complaint is captioned as a “Complaint for

Vacation of a Void Judgment.” (R. Vol. I, Doc. 1 at 1.) What they are seeking is

a declaration of past liability, not future rights between them and Judge

Kuenhold. A declaratory judgment would serve no purpose here and thus, is not

      6
          In Schepp, we cited Pulliam v. Allen, 466 U.S. 522, 541-42 (1984), for
the proposition that a judge “is not shielded by absolute [judicial] immunity from
declaratory or injunctive relief.” 900 F.2d at 1452. In 1996, Congress effectively
reversed Pulliam with the enactment of the Federal Courts Improvement Act of
1996 (“FCIA”), Pub. L. No. 104-317, 110 Stat. 3847 (1996) (amending 42 U.S.C.
§ 1983). Section 309(c) of the FCIA bars injunctive relief in any § 1983 action
“against a judicial officer for an act or omission taken in such officer’s judicial
capacity . . . unless a declaratory decree was violated or declaratory relief was
unavailable.” Thus, the doctrine of judicial immunity now extends to suits
against judges where a plaintiff seeks not only monetary relief, but injunctive
relief as well. See Roth v. King, 449 F.3d 1272, 1286 (D.C. Cir. 2006), cert.
denied sub nom., Sitomer v. King, 127 S. Ct. 1357 (2007) (“1942 U.S.C. § 1983,
as amended in 1996 by the [FCIA], explicitly immunizes judicial officers against
suits for injunctive relief.”); Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000)
(discussing the effect of the FCIA on Pulliam).

                                         -7-
available. 7 See S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 730 (10th

Cir. 1997) (concluding a declaratory judgment was not available because it

“would serve no purpose in this case”). Moreover, Lawrence and Greenstreet are

not eligible for declaratory relief because there is a more suitable remedy –

namely, a motion for relief from judgment under Rule 60(b) of the Colorado

Rules of Civil Procedure. 8 See State Farm Fire & Casualty Co. v. Mhoon, 31

F.3d 979, 983 (10th Cir. 1994) (one of the factors for a court to consider in

deciding whether to hear a declaratory action is “whether there is an alternative

remedy which is better or more effective”) (quotation omitted)). We decline

Lawrence and Greenstreet’s invitation to remand the case to allow them to fully




      7
         Furthermore, it could not be granted as “[t]he Eleventh Amendment does
not permit judgments against state officers declaring that they violated federal
law in the past.” Johns v. Stewart, 57 F.3d 1544, 1553 (10th Cir.1995) (quotation
omitted).
      8
          Providing in pertinent part:

      On motion and upon such terms as are just, the court may relieve a
      party . . . from a final judgment . . . for the following reasons: (1)
      Mistake, inadvertence, surprise, or excusable neglect; (2) fraud
      (whether heretofore denominated intrinsic or extrinsic),
      misrepresentation, or other misconduct of an adverse party; (3) the
      judgment is void; (4) the judgment has been satisfied, released, or
      discharged, or a prior judgment upon which it is based has been
      reversed or otherwise vacated, or it is no longer equitable that the
      judgment should have prospective application; or (5) any other
      reason justifying relief from the operation of the judgment.
Colo. R. Civ. P. 60(b).

                                         -8-
brief the question of judicial immunity. 9 Their claim for declaratory relief (to the

extent it exists at all) was properly dismissed, as was the rest of their complaint.

      AFFIRMED.

                                               ENTERED FOR THE COURT


                                               Terrence L. O’Brien
                                               Circuit Judge




      9
        Lawrence and Greenstreet did, of course, have the opportunity to argue
the merits of the court’s conclusion on judicial immunity in their appellate filings.

                                         -9-
