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

                         FOR THE TENTH CIRCUIT                        June 2, 2020
                       _________________________________
                                                                 Christopher M. Wolpert
                                                                     Clerk of Court
    JOHN GROVE,

          Plaintiff - Appellant,
                                                      No. 19-1228
    v.                                      (D.C. No. 1:18-CV-01571-MEH)
                                                       (D. Colo.)
    STEPHEN A. GROOME; BUENA
    VISTA SANITATION DISTRICT;
    CHAFFEE COUNTY DISTRICT
    COURT,

          Defendants - Appellees.
                      _________________________________

                          ORDER AND JUDGMENT *
                       _________________________________

Before BACHARACH, BALDOCK, and PHILLIPS, Circuit Judges.
               _________________________________

         This case began when a municipal sanitation district required the

plaintiff, Mr. John Grove, to buy an additional sewer tap. He objected and

sued the sanitation district in small claims court. He lost, appealed to the

county district court, and sought various forms of relief in the state court


*
      Oral argument would not materially help us to decide this appeal. We
have thus decided the appeal based on the appellate briefs and the record
on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
of appeals and the state supreme court. When these efforts failed, Mr.

Grove turned to federal district court, suing the county district judge, his

court, and the sanitation district.

      The federal district court dismissed the suit, and Mr. Grove

unsuccessfully sought post-judgment relief. He appeals both the dismissal

and denial of post-judgment relief. We conclude that the federal district

court should have made the dismissal without prejudice on the claim for

damages against the county district judge. In all other respects, however,

we affirm.

1.    The Claims Against the County District Judge

      In suing the county district judge, Mr. Grove invoked 42 U.S.C.

§ 1983 and sought both damages and an injunction. The federal district

court concluded that (1) the county district judge enjoyed immunity from

damages and (2) an injunction was unavailable because Mr. Grove had

disavowed an official-capacity claim and declaratory relief could have

provided a remedy on a proper showing.

      Damages. On the claim for damages, we must ensure that the federal

district court had subject-matter jurisdiction. Gillmor v. Thomas, 490 F.3d

791, 797 (10th Cir. 2007). Jurisdiction is absent under the Rooker-Feldman

doctrine when an appellant seeks reversal based on the invalidity of a

state-court judgment. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp,

544 U.S. 280, 283-84 (2005) (Rooker-Feldman doctrine is jurisdictional);

                                      2
Miller v. Deutsche Bank Nat’l Tr. Co. (In re Miller), 666 F.3d 1255, 1261

(10th Cir. 2012) (Rooker-Feldman doctrine applies to challenges involving

the correctness of a state-court judgment).

      The Rooker-Feldman doctrine precludes federal jurisdiction over the

claim for damages against the county district judge. This claim stems from

the county district judge’s alleged error in dismissing Mr. Grove’s appeal

of the award of attorneys’ fees to the sanitation district. To prevail on this

claim, Mr. Grove needed to show that the county district judge had erred in

dismissing his appeal. Mr. Grove could challenge the ruling by appealing

in state court, not by asking the federal district court to award damages

based on the county district judge’s error. 28 U.S.C. § 1257.

      Mr. Grove argues that the Rooker-Feldman doctrine doesn’t apply

because the county district judge never reviewed his submissions or

expressly dismissed his appeal of the fee award. But the county district

judge dismissed the appeal and denied Mr. Grove’s motions seeking

reconsideration of the dismissal, and the state appellate courts declined

further review. Given these rulings, Mr. Grove cannot avoid the Rooker-

Feldman doctrine even if the county district judge had initially failed to

consider the submissions or to expressly dismiss the appeal of the fee

award.

      But the applicability of the Rooker-Feldman doctrine affects this

disposition. Because the doctrine is jurisdictional, the dismissal of this

                                       3
claim should have been without prejudice. Garner v. Gonzales, 167 F.

App’x 21, 24 (10th Cir. 2006) (unpublished); see Brereton v. Bountiful

City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (noting that dismissal for

lack of jurisdiction must be without prejudice).

      Injunction. Mr. Grove sought not only damages but also an

injunction. The requested injunction would be prospective and wouldn’t

disrupt the state courts’ rulings, so the injunction would not implicate the

Rooker-Feldman doctrine. Mo’s Express, LLC v. Sopkin, 441 F.3d 1229,

1237-38 (10th Cir. 2006).

      Given our jurisdiction over the injunction claim, we conduct de novo

review. Settles v. Golden Rule Ins. Co., 927 F.2d 505, 507 (10th Cir.

1991). In applying de novo review, we conclude that the federal district

court correctly dismissed the injunction claim because (1) Mr. Grove had

sued the county district judge only in his personal capacity and (2)

declaratory relief was available.

      Injunctions are available under § 1983 only against public entities

and public officers sued in their official capacities. Brown v. Montoya, 662

F.3d 1152, 1161 n.5 (10th Cir. 2011). So Mr. Grove “agrees with the

[federal] District Court that an injunction claim is against a judge in his

official capacity.” Appellant’s Opening Br. at 22. But Mr. Grove did not

sue the county district judge in his official capacity. To the contrary, Mr.

Grove insisted that he had “meticulously avoided any claims against [the

                                      4
county district judge] in his official capacit[y].” Appellant’s App’x, vol. 1

at 112. Given Mr. Grove’s insistence that he hadn’t asserted an official-

capacity claim, he could not obtain an injunction against the county district

judge.

      Even if Mr. Grove had sued the county district judge in his official

capacity, an injunction would remain unavailable. To obtain an injunction,

Mr. Grove needed to show that declaratory relief was unavailable. 42

U.S.C. § 1983.

      Mr. Grove argues that he had alleged the unavailability of

declaratory relief by unsuccessfully urging the state court to address his

appeal on the merits. For the sake of argument, we may assume that those

efforts could be construed as requests for declaratory relief. But even so,

Mr. Grove has not shown declaratory relief was unavailable; he has shown

only that he did not prevail. More is required to show the unavailability of

declaratory relief. See Prost v. Anderson, 636 F.3d 578, 589 (10th Cir.

2011) (recognizing, in the context of 28 U.S.C. § 2255 motions, that the

availability of a remedy turns on whether it provides “an adequate and

effective remedial mechanism for testing” the claimant’s argument, rather

than whether the claimant can prevail on the merits); see also Arndt v.

Koby, 309 F.3d 1247, 1255 (10th Cir. 2002) (explaining that the failure to




                                      5
prevail on a “claim does not make it any less ‘available’ as a legal

remedy”). 1

2.    The Claims Against the Sanitation District

      Mr. Grove sued not only the county district judge but also the

sanitation district. Mr. Grove claimed that the sanitation district had (1)

deprived him of due process by improperly opposing many of his filings

and (2) conspired with the county district judge to disallow an appeal of

the attorneys’ fee award.

      Due Process. Like any defendant, the sanitation district was allowed

to oppose relief; its opposition did not constitute a deprivation of due

process.

      Mr. Grove argues that the sanitation district’s attorney violated

Colorado Rule of Civil Procedure 11. But this rule simply authorizes

sanctions, not civil liability.

      Mr. Grove relies not only on the Colorado rule but also on Bottone v.

Lindsley, 170 F.2d 705 (10th Cir. 1948). There we noted that it’s

“conceivable” that misuse of the state judicial process could result in a

denial of due process. 170 F.2d at 707. We added, however, that this

possibility could exist only if “the state court proceedings . . . have been a


1
      Mr. Grove says that the federal district court should have discussed
the underlying facts, but he does not explain how that discussion would
affect the availability of declaratory relief.

                                       6
complete nullity, with a purpose to deprive a person of his property

without due process of law.” Id.

      Mr. Grove contends that the state-court proceedings were a nullity

because he was unable to obtain consideration of his appeal of the fee

award. We disagree. Proceedings could constitute a nullity only if they

were “legally void.” Nullity, Black’s Law Dictionary (11th ed. 2019).

Proceedings do not become legally void simply because the court erred.

See United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010)

(“‘A judgment is not void . . . simply because it is or may have been

erroneous.’”) (quoting Hoult v. Hoult, 57 F.3d 1, 6 (1st Cir. 1995)). We’ve

never held that a party’s objection resulted in a denial of due process or

rendered a state-court proceeding a nullity. To do so would violate the

fundamental “principle that ‘no action lies against a party for resort to

civil courts.’” Lucsik v. Bd. of Educ., 621 F.2d 841, 842 (6th Cir. 1980)

(per curiam) (quoting United States Steel Corp. v. United Mine Workers of

Am., 456 F.2d 483, 492 (3d Cir. 1972)).

      Mr. Grove’s allegations in the complaint show that he could press his

arguments in both the county district court and in the state appellate

courts. Even if the county district court had erred in treating the appeal as

untimely or in failing to expressly rule on timeliness of the fee appeal,

we’d lack any basis to regard the state-court proceedings as a complete

nullity.

                                      7
      Conspiracy. Mr. Grove also alleged conspiracy, invoking 42 U.S.C.

§ 1985(2). To recover, Mr. Grove needed to show that at least two persons

acted in concert. Brooks v. Gaenzle, 614 F.3d 1213, 1227-28 (10th Cir.

2010). But Mr. Grove acknowledged in the complaint that the county

district judge and sanitation district had not acted in concert. Appellant’s

App’x, vol. 1 at 21.

      Mr. Grove argues that (1) he didn’t need to show concerted action

and (2) the court could not decide the issue through a motion to dismiss.

We reject both arguments.

      In denying the need to show concerted action, Mr. Grove points to

Snell v. Tunnell, 920 F.2d 673 (10th Cir. 1990). Snell said that an express

agreement was unnecessary. 920 F.2d at 702. But both before and after

Snell, we had expressly required concerted action for claims under § 1985.

Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir. 1990);

Brooks, 614 F.3d at 1227-28.

      Mr. Grove also argues that in ruling on a motion to dismiss, the court

could not preclude the possibility of concerted action. But in the

complaint, Mr. Grove conceded that concerted action was absent. This

concession was fatal.

      Even if Mr. Grove had shown concerted action, he would have had to

show that the conspiracy was targeting him based on class-wide or racial

discrimination. Smith v. Yellow Freight Sys., Inc., 536 F.2d 1320, 1323

                                      8
(10th Cir. 1976). Though the district court did not rely on the absence of

class-wide or racial discrimination, the court could have relied on these

grounds to dismiss the conspiracy claim against the sanitation district.

A.M. ex rel. F.M. v. Holmes, 830 F.3d 1123, 1146 n.11 (10th Cir. 2016). 2

Given the absence of any allegations involving class-wide or racial

discrimination, amendment of the complaint would have been futile.

3.   The Claim Against the County District Court

     Mr. Grove also sued the county district court, claiming that the

award of attorneys’ fees constituted a violation of the Fifth Amendment’s

Takings Clause. But an award to pay money does not create an

unconstitutional taking because the award does not infringe a property

interest within the meaning of the Takings Clause. See W. Va. CWP Fund

v. Stacy, 671 F.3d 378, 386 (4th Cir. 2011); Commonwealth Edison Co. v.

United States, 271 F.3d 1327, 1339-40 (Fed. Cir. 2001) (en banc). 3

     Mr. Grove argues that a takings claim can lie against a court, relying

on Stop the Beach Renourishment, Inc. v. Florida Department of



2
      Mr. Grove acknowledges that the sanitation district raised this issue
in the motion to dismiss. Appellant’s Reply Br. at 21. But he contends that
we can’t affirm on this ground because the district court didn’t rely on it.
Id. Mr. Grove is mistaken. We can affirm on any ground supported by the
record. See text accompanying note.
3
      Stacy and Commonwealth involved legislative awards rather than
judicial awards. But the reasoning would apply equally to judicial awards.

                                      9
Environmental Protection, 560 U.S. 702, 713-15 (2010). But even if a

takings claim could otherwise lie against a court, a money award would

trigger the Fifth Amendment’s Takings Clause only if he had a protected

property interest. He doesn’t, so this claim was properly dismissed.

4.    Mr. Grove’s Motion Under Rule 60(b)(6)

      After the federal district court entered judgment, Mr. Grove moved

under Rule 60(b)(6) to obtain leave to amend the complaint. He hoped to

add an official-capacity claim against the county district judge for acting

in concert with the sanitation district. The federal district court denied

relief.

      Timing of the Federal Judgment. On appeal, Mr. Grove argues that

the federal district court should have either waited to enter judgment or

allowed relief from the judgment to permit amendment of the complaint. In

reviewing this argument, we apply the abuse-of-discretion standard.

Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006).

The district court did not abuse its discretion. The federal rules of civil

procedure do not contain any requirement for the district court to wait

before entering a judgment.

      Amendment of the Complaint. Mr. Grove contends that the county

district court should have applied the liberal standard for amendment of the

complaint. But if Mr. Grove wanted to amend, he needed to submit the

proposed amendment. D.C.COLO.LCivR 15.1(b).

                                      10
      Mr. Grove failed to submit a proposed amended complaint with his

post-judgment motion. So the federal district court did not abuse its

discretion in denying the post-judgment motion.

      Even if Mr. Grove had amended the complaint, it would have

remained subject to dismissal for two reasons: (1) The availability of

declaratory relief would have prevented entry of an injunction even if the

county district judge had been sued in his official capacity, and (2) Mr.

Grove had conceded the absence of concerted action.

      Mr. Grove now says that he would have amended to allege a

conscious commitment to a common scheme. But in federal district court,

Mr. Grove didn’t explain how he could satisfy the element of concerted

action in light of his earlier concession. Absent such an explanation, the

district court did not abuse its discretion in denying leave to amend the

complaint.

5.    Mr. Grove’s Motion for a New Trial

      Mr. Grove also unsuccessfully moved for a new trial in federal

district court. But the federal district court hadn’t conducted a trial. So the

court construed the motion as one to amend the judgment under Federal

Rule of Civil Procedure 59(e) and denied relief.

      We review this ruling under the abuse-of-discretion standard. Phelps

v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997). The court did not abuse

its discretion. Rule 59(e) is unavailable for matters that were or could have

                                      11
been presented earlier. Servants of Paraclete v. Does, 204 F.3d 1005, 1012

(10th Cir. 2000). Mr. Grove failed to identify any issues that couldn’t have

been raised earlier. So the court didn’t abuse its discretion in denying the

Rule 59(e) motion.

6.    Disposition

      We remand with instructions to dismiss without prejudice the claim

for damages against the county district judge. In all other respects, we

affirm the dismissal and denial of the post-judgment motions.

                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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