                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                    December 20, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 EM ERSON FALLICE CA LVERT,

               Plaintiff-Appellant,

          v.                                     Nos. 06-1051 and 06-1123
                                                   (District of Colorado)
 RO BERT J. SAFRAN EK; STANLEY               (D.C. No. 05-CV-1713-REB-PAC)
 BRINK LEY; DO NA LD L. BLAKE;
 GA RY BEEDY; THEO DO RE L.
 LY ONS; STEV E BURG ESS;
 R OD A N A L. D EV ER S; LER OY
 YO W ELL,

               Defendants - Appellees.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      The State of Colorado charged Emerson Calvert in 1998 with violating the

zoning ordinances of his home county, Lincoln, by maintaining one of his

properties in the condition of a “junk yard.” To resolve the dispute, M r. Calvert


      *
        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). This case is
therefore 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 This order and judgment is not
binding precedent except under the doctrines of law of the case, res judicata and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 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1,
2007).
agreed on December 7, 1998, to a Consent Judgment and Order of Abatement.

According to the terms of the order, M r. Calvert pledged to bring his property

into compliance with the county zoning ordinance by removing all items

classified as junk, with the exception of designated personal property. M r.

Calvert, however, repeatedly failed to comply with the court’s order, and after

multiple citations and an additional court judgment directing him to remove all

unlawful items from his property, the district court held M r. Calvert in contempt.

He was penalized with a $5,000 fine and detention first in the county jail and then

at home.

      M r. Calvert brought a 42 U.S.C. § 1983 action against various elected

officials and employees of Lincoln County, including the prosecutor who tried the

cases and Stanley Brinkley, the state court judge who twice ruled against him,

levied the fine, and imposed M r. Calvert’s detentions. M r. Calvert alleged that

the prosecutions were malicious, and along w ith the resulting court judgments,

violated his due process and equal protection rights. The federal district court

dismissed all of M r. Calvert’s claims under the Rooker-Feldman doctrine. See

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462 (1983). The court also ruled that M r. Calvert’s

claims against Judge Brinkley were barred by judicial immunity and the claims

against prosecutor Safranek by prosecutorial and legislative immunities. Finally,

the district court denied M r. Calvert’s motion to proceed on appeal in forma

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pauperis pursuant to 28 U.S.C. § 1915. After reviewing the district court’s

opinion de novo, see Guttman v. Khalsa, 446 F.3d 1027, 1031 (10th Cir. 2006),

we A FFIR M .

      M r. Calvert, who is proceeding pro se, urges us to reverse the judgment

below and afford him, at the very least, a hearing in court. He admits that his

pleadings have been inartful, but points out that he is not a lawyer and is

“learning as he goes.” Appellant’s Reply Br. 4. He takes particular umbrage at

the district court’s application of the Rooker-Feldman and immunity doctrines,

which strike him as just the sort of byzantine formulas invented by lawyers that

ought not to defeat an average citizen’s plea for relief.

      Because he is proceeding pro se, we construe M r. Calvert’s pleadings

liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). And we note that his

instinct— that he should be allowed to present his claims in court— is generally

sound: Dismissal at this early stage of the litigation is appropriate only when the

plaintiff “can prove no set of facts in support of his claim to entitle him to relief.”

M organ v. City of Rawlins, 792 F.2d 975, 978 (10th Cir. 1986). This is a high

standard. Y et no federal court can proceed in the absence of jurisdiction, and w e

conclude that this Court has no jurisdiction over M r. Calvert’s constitutional

claims. W e begin by considering his three constitutional arguments, and then turn

to his additional allegations against Robert Safranek and Stanley Brinkley.




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                             I. Constitutional Claim s

      M r. Calvert contends that the state’s prosecutions and resulting court

judgments against him violated his due process and equal protection rights. This

Court cannot grant M r. Calvert the relief he seeks, however, without directly or

indirectly overturning the state court judgments he protests. This Court is

competent to do neither. Federal statute provides that “[f]inal judgments or

decrees rendered by the highest court of a State in which a decision could be had,

may be reviewed by the Supreme Court by writ of certiorari.” 28 U.S.C. §

1257(a). It is the United States Supreme Court, and not the inferior federal

courts, which holds the power of judicial review over state judgments. The

Rooker-Feldman doctrine recognizes that section 1257(a) “implicitly deprives

lower federal courts of subject matter jurisdiction to entertain cases that would

entail review of decisions rendered by state courts.” Crutchfield v. Countrywide

Home Loans, 389 F.3d 1144, 1147 (10th Cir. 2004).

      Rehearsing the language of the Fourteenth Amendment’s Due Process

Clause, M r. Calvert asks this Court to enjoin any future actions to enforce the

state court’s October 2003 order against him, and to award him damages for the

losses he has suffered by complying with that order. As is clear from the relief

sought, see Crutchfield, 389 F.3d at 1147-48, the injury of w hich M r. Calvert

complains arises from the state court judgment itself. W ere we to grant M r.

Calvert’s petition, we would disrupt enforcement of that court order, as if we had

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declared it void. Since we have no power to review the order itself, we have no

power to frustrate its enforcement. See Kiowa Indian Tribe v. Hoover, 150 F.3d

1163, 1169 (10th Cir. 1998) (holding that a party losing in state court may not

seek what would amount to appellate review of that decision in federal court

based on the claim that the decision violates the loser’s federal rights).

      The same is true for M r. Calvert’s equal protection and malicious

prosecution claims. For these claims too he seeks as a remedy abrogation of the

state court judgment. W e reiterate that the lower federal courts lack jurisdiction

to review, reverse, or grant relief from a final state court judgment, even if that

judgment was the result of selective or malicious prosecution or some other

constitutional violation. See Crutchfield, 389 F.3d at 1147. The United States

Supreme Court is the appropriate forum in which to raise these challenges.

                 II. Additional Claims against Robert Safranek

      M r. Calvert brings additional claims of malicious prosecution against

Robert Safranek for fifty-four misdemeanor cases M r. Safranek initiated against

M r. Calvert between 1969 and 1976, while M r. Safranek was serving as the

Lincoln County Attorney. W e dismiss these claims in full and with prejudice. A

criminal prosecutor enjoys absolute immunity from damages under section 1983

when he “initiates a prosecution” and “present[s] the State’s case.” Imbler v.

Pachtman, 424 U.S. 409, 431 (1976); see also Scott v. Hern, 216 F.3d 897, 908-

09 (10th Cir. 2000).

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      M r. Calvert also alleges that M r. Safranek drafted the 1973 Lincoln County

zoning ordinance in order to punish M r. Calvert and put him out of business. The

U.S. Supreme Court has made clear, however, that absolute immunity extends to

local legislators pursuing essentially legislative tasks. Bogan v. Scott-Harris, 523

U.S. 44, 54 (1998). In Colorado, adopting zoning ordinances is a legislative

function entrusted to the boards of county commissioners. Bd. of County

Comm’rs of Boulder County v. Thom pson, 493 P.2d 1358, 1361 (Colo. 1972). M r.

Safranek helped draft the ordinance in question as a member of one of these

boards. Accordingly, he is entitled to absolute legislative immunity.

                      III. Claims against Stanley Brinkley

      M r. Calvert contends that Judge Stanley Brinkley slandered him from the

bench when the latter allegedly declared at sentencing that he intended to “make

an example” out of M r. Calvert. R. vol. 1, doc. 1 at 5-6. This is not a claim upon

which relief can be granted. Judges have absolute immunity from suits for

monetary damages for their judicial acts, including sentencing. See Stump v.

Sparkman, 435 U.S. 349, 356-57 (1978). M r. Calvert’s claim against Judge

Brinkley must be dismissed with prejudice.

                                IV. Attorneys’ Fees

      M r. Calvert asks us to reverse the district court’s award of attorneys’ fees

to the defendants in these suits. The connection between the tale of w oe he offers

as an argument on this score and the legal point at issue is far from clear. W hat is

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clear is that M r. Calvert failed to appear at the district court hearing on the

defendants’ motion for attorneys’ fees and otherwise failed to make any

arguments to the court below as to why the clear language of Colorado Statute §

38-35-204(2), awarding attorneys’ fees to the aggrieved parties in a spurious lis

pendens action, should not apply to him. W e will not consider arguments waived

or abandoned in the district court. See O’Connor v. City & County of Denver,

894 F.2d 1210, 1214 (10th Cir. 1990).

                     V. M otion to Proceed In Form a Pauperis

      Pursuant to 28 U.S.C. § 1915 and Fed. R. App. P. 24, M r. Calvert has

petitioned this Court to waive his filing fees. Because we agree with the district

court that the appeal is not taken in good faith, we deny the motion.

                                    VI. Conclusion

      The judgment of the United States District Court for the District of

Colorado is AFFIRM ED. Appellant’s motion to proceed in form a pauperis is

DENIED.

                                                 Entered for the Court,

                                                 M ichael W . M cConnell
                                                 Circuit Judge




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