                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        March 15, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
KIRSTEEN DIDI MORKEL, f/k/a
Kirsteen Didi Blocker,

             Plaintiff-Appellant,
                                                          No. 11-4166
v.                                               (D.C. No. 2:10-CV-01176-CW)
                                                            (D. Utah)
LYNN W. DAVIS, in his official
capacity as Utah Fourth District Court
Judge; SANDRA DREDGE, in her
official capacity as Special Master,
4th District Court; KELLY PETERSON,
in his official capacity as Guardian ad
Litem; KRISTIN GERDY, in her official
capacity as attorney for Michael Blocker;
RON WILKINSON, in his capacity as
attorney for Michael Blocker; MICHAEL
BLOCKER,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before LUCERO, TYMKOVICH, and HOLMES, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Kirsteen Morkel challenges the district court’s dismissal of her claims brought

under 42 U.S.C. § 1983 and § 1985 seeking injunctive, declaratory, and monetary

relief against several parties involved in a state-court child custody case. We have

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

      I.     BACKGROUND

      Morkel brought suit in the district court alleging that the judge, special master,

and guardian ad litem (hereinafter “State Defendants”), along with two attorneys

representing her former husband (hereinafter “Attorney Defendants”), conspired to

deprive her of her constitutional rights in a Utah divorce and child custody case

involving Michael Blocker, her former husband.1 Specifically, Morkel asserts that

the appointed special master, Sandra Dredge, violated her rights by engaging in

ex parte communications with Blocker and the Attorney Defendants, issuing orders

reserved for a judge, and otherwise engaging in actions designed to prevent Morkel

from seeing her child. She alleges that the appointed guardian ad litem, Kelly

Peterson, also engaged in ex parte communications and did not act in Morkel’s

child’s best interests. And she alleges that Dredge and Peterson conspired with the

Attorney Defendants to deny Morkel her constitutionally-protected parental rights,

particularly with respect to an order issued by Dredge suspending Morkel’s visitation

rights for nine weeks.
1
 Morkel has withdrawn her appeal as to her dismissed claims against the judge, who
has since recused himself in the state court action. Aplt. Reply Br. at 1.


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       After Morkel filed her complaint in federal court, the State Defendants and

Attorney Defendants moved separately to dismiss all claims. Morkel then sought to

amend her complaint. Both sets of defendants opposed the motion to amend. The

district court held a hearing on all the motions and dismissed the original complaint

for failure to state a claim. The court further concluded that granting Morkel leave to

amend her complaint would be futile because the amended complaint still failed to

state a claim, the defendants were all protected by various immunities and, in any

event, application of the Rooker-Feldman and Younger doctrines prevented the court

from exercising subject-matter jurisdiction over the claims. The district court

declined to exercise supplemental jurisdiction over the remaining state law claims

and entered judgment in favor of the defendants. Morkel appeals.

       II.    DISCUSSION

   A. Rooker-Feldman

       As a threshold matter, we must determine whether Morkel’s claims survive the

jurisdictional bar of Rooker-Feldman. See Rooker v. Fid. Trust Co., 263 U.S. 413

(1923); D.C. Cir. v. Feldman, 460 U.S. 462 (1983). The Rooker-Feldman doctrine

prohibits a losing party in state court “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.”

Knox v. Bland, 632 F.3d 1290, 1292 (10th Cir. 2011) (internal quotation marks

omitted). This doctrine has a narrow scope, however, and applies only when a state


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court judgment is final. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 284 (2005); Guttman v. Khalsa, 446 F.3d 1027, 1032 (10th Cir. 2006)

(“Rooker-Feldman applies only to suits filed after state proceedings are final.”). We

review the application of Rooker-Feldman de novo. Miller v. Deutsche Bank Nat’l

Trust Co., 666 F.3d 1255, 1260 (10th Cir. 2012).

       The State Defendants and Attorney Defendants contend that Morkel’s

complaint asked the district court to review the basis of the state court’s rulings, an

action prohibited by Rooker-Feldman. The defendants point to two orders in

particular: the state court’s order granting custody to Morkel’s former husband; and

the later instruction by special master Dredge suspending Morkel’s visitation for nine

weeks. But as noted above, Rooker-Feldman applies only when a federal court is asked

to review the final decisions of a state court. Here, the state-court proceedings were

ongoing when Morkel brought suit in federal court. The state-court orders impacted by

her federal lawsuit are thus not final and consequently fall outside the scope of

Rooker-Feldman. We must conclude that the district court erred in dismissing the case

under the Rooker-Feldman doctrine. But this does not end our inquiry—“we are free to

affirm a district court decision on any grounds for which there is a record sufficient

to permit conclusions of law, even grounds not relied upon by the district court.”

Wells v. City & Cnty. of Denver, 257 F.3d 1132, 1149-50 (10th Cir. 2001) (internal

quotation marks omitted).




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    B. Younger Doctrine

       As noted above, the district court also relied on the Younger abstention doctrine as

grounds for dismissal. The Supreme Court’s decision in Younger v. Harris, 401 U.S. 37

(1971), and its progeny established that federal district courts must abstain from

exercising jurisdiction when three conditions are satisfied: (1) there are ongoing state

proceedings; (2) the state court offers an adequate forum to hear the plaintiff’s claims

from the federal lawsuit; and (3) the state proceeding involves important state interests.

See Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432

(1982). When these conditions are met, the application of Younger is mandatory.

Weitzel v. Div. of Occupational and Prof’l Licensing of Dep’t of Commerce, 240 F.3d

871, 875 (10th Cir. 2001) (“[T]he district court must abstain once the conditions are

met, absent extraordinary circumstances.” (internal quotation marks omitted)). We

review de novo a district court’s decision to abstain under the Younger doctrine. Brown

ex rel. Brown v. Day, 555 F.3d 882, 887 (10th Cir. 2009). We conclude that all three

Younger requirements are met in this case.

       First, the record reflects that the state custody proceedings were ongoing when

Morkel filed her federal lawsuit.2 It is acknowledged in numerous places throughout the




2
        The pending state proceedings need not be a single trial that resolves all
issues. In Moore v. Sims, 442 U.S. 415, 424, 435 (1979), the Supreme Court reversed
a district court’s holding that because a juvenile action is “multifaceted” and involves
no single judicial proceeding it cannot be considered pending litigation for the
purposes of Younger. The Supreme Court stated that so long as the plaintiffs had the
                                                                             (continued)
                                           -5-
complaint—including Morkel’s request for injunctive relief—and was demonstrated at

the district court’s hearing on the motions to dismiss. Citing Brown v. Day, Morkel

nevertheless argues that Younger’s first prong is not satisfied because hers is not the type

of case the Younger doctrine embraces. In Brown, 555 F.3d at 888, we recognized that

the “ongoing proceeding” prong asks both “whether there is an ongoing proceeding and

whether it is the type [of case] afforded Younger deference.” We considered the critical

distinction between remedial proceedings, to which Younger does not apply, and coercive

proceedings, to which it does apply. Morkel argues that because the state-court

proceeding does not involve the State as a party, it is not a coercive proceeding under

Brown. But the remedial-coercive distinction outlined in Brown came in the unique

context of applying Younger to administrative proceedings. Morkel’s state case is not an

administrative proceeding and thus, the State need not be a party for Younger to apply.

See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 10 (1987) (applying Younger doctrine

to state-court suit involving two private parties). This court and other circuits have

consistently applied Younger to child custody cases. See Chapman v. Barcus,

372 F. App’x 899 (10th Cir. 2010); Hunt v. Lamb, 220 F. App’x 887 (10th Cir. 2007);

Leonoff v. Oklahoma, 60 F. App’x 233 (10th Cir. 2003); Parent v. New York,

485 F. App’x 500 (2d Cir.), cert. denied, 133 S. Ct. 652 (2012); D.T.B. ex rel.

O’Callaghan, 280 F. App’x 151 (3d Cir. 2008); Mann v. Conlin, 22 F.3d 100, 105-106


opportunity to raise their claims in the state proceedings, the federal district court
must abstain under Younger. Id. at 425.


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(6th Cir. 1994); S.P. ex rel. Parks v. Native Vill. of Minto, 443 F. App’x 264 (9th Cir.

2011); Liedel v. Juvenile Court of Madison Cnty., 891 F.2d 1542 (11th Cir. 1990).

       Second, Morkel has not demonstrated that Utah state courts are an inadequate

forum for raising her constitutional claims, which she may do by appealing the final

orders or filing an interlocutory appeal. State courts are generally equally capable of

enforcing federal constitutional rights as federal courts. See Middlesex Cnty. Ethics

Comm., 457 U.S. at 431. And when constitutional challenges impact state proceedings,

as they do here, “proper respect for the ability of state courts to resolve federal

questions presented in state-court litigation mandates that the federal court stay its

hand.” Pennzoil Co., 481 U.S. at 14. Moreover, Morkel need not even file an appeal in

order to be redressed—her primary contentions about her civil rights being violated

revolve around the conduct of the special master, the special master’s orders, the

guardian ad litem, and her former husband’s attorneys. Those are matters that can be

raised with the state trial court judge. To the extent that Morkel has already raised her

constitutional concerns in the state trial court, that court’s decisions are not “inadequate”

for Younger purposes simply because the court did not rule in her favor. It is Morkel’s

burden to establish that state law prevents her from presenting her federal claims in

the state proceedings. See J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1292 (10th Cir.

1999). She has failed to do so.

       Finally, the resolution of child custody matters has been acknowledged as an

important state interest. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12-13


                                            -7-
(2004) (“ [T]he whole subject of the domestic relations of husband and wife, parent

and child, belongs to the laws of the States and not to the laws of the United States.”

(internal quotation marks omitted)). In Morrow v. Winslow, 94 F.3d 1386, 1393,

(10th Cir. 1996), we noted that comity considerations of the Younger doctrine are

particularly vital in child custody proceedings, which are “an especially delicate subject

of state policy.” The reasons for abstention are only strengthened when we consider that

Utah has a continuing power to modify Morkel’s child custody arrangements, including

both permanent and temporary parent-time arrangements. See Utah Code Ann.

§§ 78B-13-101-318.

       Morkel argues that Younger should not apply because she does not seek to enjoin

any state court proceedings. She asserts that she seeks only to enjoin “the unlawful

conduct” of the defendants. Aplt. Opening Br. at 32. But that is a fiction. In her

complaint, she asked the district court to enjoin the defendants from “continuing to deny

her the free association of her child” and to enjoin the special master from “enforcing any

orders she made.” App. Vol. II at 310-311. Hence, Morkel both implicitly and explicitly

asked the district court to intervene in the state custody proceedings, which the Younger

doctrine expressly proscribes. The district court’s abstention is therefore proper.

However, dismissal of Morkel’s claims for injunctive and declarative relief should be

without prejudice because it is based on lack of subject matter jurisdiction. See Brereton

v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“A longstanding line




                                            -8-
of cases from this circuit holds that where the district court dismisses an action for

lack of jurisdiction, as it did here, the dismissal must be without prejudice.”)

   C. Monetary Damages

          In addition to injunctive and declaratory relief, Morkel seeks monetary

damages against special master Dredge and guardian ad litem Peterson that does not fall

within the purview of Younger abstention. To the extent that it had jurisdiction over

those claims, the district court dismissed the claims against Dredge because it found he

was protected by quasi-judicial immunity and against Peterson because it found he was

not a state actor. We agree.

          With respect to Dredge, non-judicial officers may be afforded the same

absolute immunity enjoyed by judges when a claim is based on duties performed in

furtherance of the judicial process. Whitesel v. Sengenberger, 222 F.3d 861, 867

(10th Cir. 2000). Here, the judge in the state custody proceeding assigned Dredge to act

as the special master, giving her the authority to alter the parent-time schedule up to eight

nights per month. All of the conduct about which Morkel complains involved the duties

assigned to Dredge as a special master. Although Morkel argues that Dredge cannot be

protected by quasi-judicial immunity because she acted without any colorable claim of

jurisdiction, this is only a conclusory allegation wholly unsupported by the facts. Even if

Dredge’s actions were in error or were done maliciously, they were nevertheless acts

performed in furtherance of the judicial process and are protected. See Stump v.

Sparkman, 435 U.S. 349, 356-57, 362 (1978).


                                            -9-
      As to Peterson, guardians ad litem are not state actors for purposes of § 1983

because they give their “undivided loyalty to the minor, not the state.” Meeker v.

Kercher, 782 F.2d 153, 155 (10th Cir. 1986) (per curiam). Consequently, Peterson is

not subject to suit under § 1983, and dismissal was appropriate. Garcia v. LeMaster,

439 F.3d 1215, 1217 (10th Cir. 2006) (“To state a valid cause of action under § 1983,

a plaintiff must allege . . . the defendant was acting under color of state law.”

(internal quotation marks omitted)).

      III.   CONCLUSION

      We affirm the district court’s dismissal of Morkel’s claims for damages. We

affirm the district court’s dismissal of Morkel’s claims for injunctive and declaratory

relief on the basis of Younger, but remand to the district court with instructions to

modify the dismissal of those claims to be “without prejudice.”


                                                   Entered for the Court


                                                   Jerome A. Holmes
                                                   Circuit Judge




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