                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             JUL 20 2004
                                 TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                   Clerk

 ROBERT MUCHNICK,

               Plaintiff - Appellant,                     No. 04-1071
          v.                                      (D.C. No. 03-M-408 (BNB))
 STATE OF COLORADO, Bill Owens,                          (D. Colorado)
 Governor,

               Defendant - Appellee.


                            ORDER AND JUDGMENT            *




Before TACHA, Chief Judge, BRISCOE and HARTZ , Circuit Judges.


      Plaintiff Robert Muchnick brought suit against the State of Colorado in the

United States District Court for the District of Colorado, challenging the

constitutionality of several Colorado statutes relating to parental rights after

dissolution of marriage. Citing the Rooker-Feldman doctrine, which bars a party



      *
        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not binding precedent, except under the doctrines of law of the case, res judicata,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.
from appealing a state-court judgment in federal district court, the district court

dismissed the complaint for lack of jurisdiction. See District of Columbia Court

of Appeals v. Feldman, 460 U.S. 462, 486 (1983); Rooker v. Fidelity Trust Co.,

263 U.S. 413, 414-16 (1923). We affirm the district court, albeit on different

grounds. The Eleventh Amendment to the United States Constitution bars the suit

against the State. We therefore lack jurisdiction and dismiss the appeal.

      When Plaintiff was divorced in 1994, a California court awarded each

parent joint legal and physical custody over their two children. In 1995

Plaintiff’s ex-wife moved with the children to Colorado and sought modification

of custody. By 1999 the courts had modified the custody arrangement, awarding

Plaintiff’s ex-wife primary legal and physical custody. Plaintiff subsequently

filed a claim under 42 U.S.C. § 1983 in federal district court, alleging due process

and equal protection violations and asking the court to declare unconstitutional

Colorado Revised Statutes §§ 14-10-123.4 and 14-10-124 (relating to child

custody) and to enjoin the State from enforcing the state-court judgment.

      The Eleventh Amendment bars suits by private citizens against a State.

Papasan v. Allain, 478 U.S. 265, 276 (1986). “[A]bsent an unmistakable waiver

by the state of its Eleventh Amendment immunity, or an unmistakable abrogation

of such immunity by Congress, the amendment provides absolute immunity from

suit in federal courts for states and their agencies.” Ramirez v. Oklahoma Dep’t


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of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994), overruled on other grounds

by Ellis v. University of Kansas Medical Center, 163 F.3d 1186, 1194-97 (10th

Cir. 1998); see also ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1187 (10th Cir.

1998) (Eleventh Amendment bars even a suit for prospective injunctive relief).

      Here, Plaintiff is unequivocally bringing suit against the State; he explicitly

asserts that “it is the State of Colorado which is the sole named defendant.” R.

Doc. 8 at 1. The State has not waived its immunity. Although Plaintiff correctly

notes that in some cases Congress may abrogate the Eleventh Amendment to

allow a party to sue a State for constitutional violations, see, e.g., Fitzpatrick v.

Bitzer, 427 U.S. 445, 456 (1976), the Supreme Court has held that § 1983 does

not abrogate a State’s Eleventh Amendment immunity. See Quern v. Jordan, 440

U.S. 332, 341 (1979). Thus, the federal courts are without jurisdiction to hear

Plaintiff’s claims.

      The district court is AFFIRMED and the appeal DISMISSED.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




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