                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            MAR 31 2000
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    GREGORY DEAN BOLIN;
    DAVID GREGORY BOLIN,
    by his parent and “next friend,”

                Plaintiffs-Appellants,

    v.                                                   No. 99-1342
                                                      (D.C. No. 99-Z-636)
    KATHERINE CHAVEZ; PETER                                (D. Colo.)
    GARIN; THE LAW FIRM OF
    STINER & BECK; WILLIAM
    MEYER; JOHN DOE,

                Defendants-Appellees.


                             ORDER AND JUDGMENT           *




Before TACHA , ANDERSON , and LUCERO , 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      This order and judgment is not binding precedent, except under the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.
       Plaintiff-appellant Gregory Dean Bolin appeals from the district court’s

dismissal of his claims for lack of subject matter jurisdiction. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse

in part.
                                           I.

       We take most of the following facts from Bolin’s complaint. In 1993,

Bolin and defendant-appellee Katherine Chavez divorced. As part of the divorce

decree, a Colorado court awarded Bolin and Chavez joint custody of their son,

David. At the time, Bolin was incarcerated. Shortly after he was released from

prison in 1995, Bolin was arrested and charged with kidnapping, rape and murder.

A jury convicted Bolin and sentenced him to death.    See Bolin v. State , 960 P.2d

784 (Nev. 1998). Chavez filed a motion to modify the divorce decree to prevent

Bolin from seeing David, but the court denied her motion.

       In 1997, defendant-appellee William Meyer presided over a grandparent

visitation rights hearing involving Bolin’s son. At the hearing, Chavez informed

Judge Meyer of Bolin’s circumstances. Judge Meyer later denied without

explanation Bolin’s motion to have Chavez held in contempt for violating the

divorce decree and soon thereafter entered an order terminating Bolin’s parental

rights. Bolin appealed from the order terminating his parental rights and the

Colorado Court of Appeals reversed Judge Meyer’s decision.



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         Bolin then filed suit in federal district court pro se and on behalf of David.

Bolin alleged that Judge Meyer, Chavez, Chavez’s attorney, and Chavez’s

boyfriend conspired to violate his right to familial association in violation of

28 U.S.C. § 1983. Bolin also claimed that Chavez intentionally caused him

emotional distress in violation of state law. He sought compensatory and punitive

damages for his § 1983 and intentional infliction of emotional distress claims. In

addition, Bolin requested a declaratory judgment that defendants’ actions violated

18 U.S.C. §§ 241 and 242, the criminal counterpart to civil suits brought pursuant

to § 1983.

         The district court dismissed Bolin’s suit sua sponte under Fed. R. Civ. P.

12(h)(3) before process was served on defendants. The court held that Bolin

lacked standing both to bring a cause of action on behalf of David     1
                                                                           and to assert

criminal claims against defendants. The court also held that it lacked subject

matter jurisdiction over Bolin’s remaining claims pursuant to the      Rooker-Feldman

doctrine. Bolin now appeals.




1
    Bolin does not challenge this ruling on appeal.

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                                             II.

       We review de novo a dismissal for lack of subject matter jurisdiction,

accepting as true the complaint’s factual allegations.        See Sac & Fox Nation of

Okla. v. Cuomo , 193 F.3d 1162, 1165 (10th Cir. 1999) (discussing dismissal for

lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1)). Because Bolin

is proceeding pro se, we construe his pleadings liberally.        See Hall v. Bellmon ,

935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

                                             A.

       On appeal, Bolin first contends that the district court had no authority to

dismiss his case sua sponte under Rule 12(h)(3) because he paid his filing fees

and process had not yet been served on defendants. Rule 12(h)(3) provides that

“[w]henever it appears by suggestion of the parties or otherwise that the court

lacks jurisdiction of the subject matter, the court shall dismiss the action.”

Thus, it is a court’s “first duty” to determine if it has “jurisdiction to entertain and

decide a case on its merits.”    Thompson v. United States , 291 F.2d 67, 68 (10th

Cir. 1961). Indeed, a court must dismiss a suit at any stage of the proceedings if

it becomes apparent that jurisdiction is lacking.        See Bradbury v. Dennis , 310

F.2d 73, 74 (10th Cir. 1962).

       We have never addressed the specific question of whether a district court

may dismiss a suit for lack of subject matter jurisdiction under Rule 12(h)(3) even


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before process has been served. However, we have held that a     sua sponte

dismissal under Fed. R. Civ. P. 12(b)(6) is proper when “it is patently obvious

that the plaintiff could not prevail on the facts alleged, and allowing him an

opportunity to amend his complaint would be futile.”    Hall , 935 F.2d at 1110

(internal quotation marks and citation omitted). We hold that the same principle

applies to a sua sponte dismissal for lack of subject matter jurisdiction under

Rule 12(h)(3).

       In this case, the district court dismissed Bolin’s suit because it concluded

that, under the Rooker-Feldman doctrine, Bolin could not avoid dismissal even

if he had the opportunity to amend his complaint. Thus, based on its legal

conclusions, the district court had the authority to dismiss Bolin’s suit for lack

of subject matter jurisdiction.

                                          B.

       Bolin next claims that the district court improperly dismissed his

declaratory judgment action because he was not seeking to enforce 18 U.S.C.

§§ 241 and 242. The district court interpreted Bolin’s declaratory judgment

request as an attempt to invoke the authority of the United States attorneys under

28 U.S.C. § 547 to prosecute for offenses against the United States. Accordingly,

the court dismissed Bolin’s claim because private citizens cannot prosecute

criminal actions.   See R. Doc. 6, at 3. Bolin argues, and we agree, that he did not


                                          -5-
improperly seek to prosecute defendants. Nevertheless, Bolin lacks standing to

seek any kind of civil redress under §§ 241 and 242 because neither criminal

statute provides for a private civil cause of action. Thus, the district court

properly dismissed Bolin’s declaratory judgment action.

                                               C.

        Finally, Bolin argues that the     Rooker-Feldman doctrine does not apply to

the facts of his case. We agree. Under the           Rooker-Feldman doctrine, a federal

district court does not have jurisdiction to review a final state court judgment.

See District of Columbia Court of Appeals v. Feldman           , 460 U.S. 462, 476 (1983)

(citing, inter alia,    Rooker v. Fidelity Trust Co.   , 263 U.S. 413, 415, 416 (1923))   .

A party that loses “in state court is barred from seeking what in substance would

be appellate review of the 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.”       Johnson v. De Grandy , 512 U.S. 997, 1005-06 (1994). Any

review of a state court judgment must “be addressed directly to the United States

Supreme Court from the state’s highest court pursuant to 28 U.S.C. § 1257.”

Facio v. Jones , 929 F.2d 541, 543 (10th Cir. 1991).

        Thus, the Rooker-Feldman doctrine generally precludes a federal district

court from reviewing “matters actually decided by a state court” and issuing “any

declaratory relief that is inextricably intertwined with the state court judgment.”


                                               -6-
Kiowa Indian Tribe of Okla. v. Hoover     , 150 F.3d 1163, 1169 (10th Cir. 1998)

(internal quotation marks and citations omitted). “[I]f the purpose of a federal

action is separable from and collateral to a state court judgment, then the claim

is not inextricably intertwined merely because the action necessitates some

consideration of the merits of the state court judgment.”   Id. at 1170-71 (internal

quotation marks omitted).

       Here, the district court found that it could not assert subject matter

jurisdiction over Bolin’s § 1983 and emotional distress claims because Bolin

was attacking Judge Meyer’s rulings, and Bolin’s federal suit was inextricably

intertwined with his Colorado state court proceedings. However, a close

examination of Bolin’s complaint reveals that Bolin is neither asking the district

court to review Judge Meyer’s rulings nor requesting relief that is inextricably

intertwined with a state court judgment.

       Bolin’s complaint acknowledges that the Colorado Court of Appeals

reversed Judge Meyer’s decision to terminate his parental rights. Bolin is not

seeking federal review of this decision. Instead, Bolin relies upon the Colorado

appellate order to support his § 1983 claim that Judge Meyer conspired with the

other defendants to violate his constitutional right to familial association and his

emotional distress claim against Chavez for violating the divorce decree.




                                            -7-
      While Bolin’s federal suit may require some consideration of the merits of

his state court proceedings, the purpose of his federal action is separate from and

collateral to Judge Meyer’s rulings and the Colorado Court of Appeals’ decision.

Thus, Bolin’s federal suit is not inextricably intertwined with a state court

judgment. We therefore hold that the   Rooker-Feldman doctrine does not apply to

the facts of Bolin’s case, and the district court has subject matter jurisdiction over

Bolin’s § 1983 and intentional infliction of emotional distress claims.

Accordingly, we reverse the district court’s judgment dismissing these claims and

remand for further proceedings consistent with this order and judgment, including

immediate service of process. In so doing, we intend no comment on the merits

of Bolin’s claims. In all other respects, we affirm the district court’s order.

      Bolin’s motion to supplement the record is    DENIED .

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

                                                     Entered for the Court

                                                     Deanell Reece Tacha
                                                     Circuit Judge




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