                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 10 2003
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 DANIEL JAMES BARNETT,

          Plaintiff-Appellant,

 v.                                                    No. 03-1225
                                                      (D. Colorado)
 STATE OF COLORADO,                                (D.C. No. 01-D-2533)

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, 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.

      Daniel James Barnett, appearing pro se, appeals the district court’s

dismissal of his complaint against the State of Colorado for lack of subject matter


      *
        This order and judgment is not binding precedent except under the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.
jurisdiction and failure to state a claim upon which relief can be granted. We

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

                                  I. Background

      In 1995, Mr. Barnett pled guilty to harassment, a Class 3 misdemeanor,

which the plea court described as “almost stalking.” In 1998, Mr. Barnett ran for

the Republican Party nomination for state representative in District 37, Arapahoe

County, Colorado. On May 2, 1998, the Arapahoe County Republican Party

convened an assembly to nominate candidates for various offices. The following

day, the Rocky Mountain News published an article concerning the assembly,

which stated in relevant part: “The District 37 race is to replace Rep. Martha

Kreutz . . . . Five candidates initially sought the District 37 nomination. But Dan

Barnett, convicted in a stalking incident involving one of Kreutz’s daughters,

failed to show up.”

      On January 29, 1999, Mr. Barnett filed a defamation complaint against the

Rocky Mountain News in Colorado state court. The trial court dismissed Mr.

Barnett’s complaint but denied the Rocky Mountain News’ request for attorneys’

fees. Mr. Barnett appealed.

      On April 26, 2001, the Colorado Court of Appeals affirmed the dismissal of

Mr. Barnett’s complaint but remanded the case to the trial court for an award of

reasonable attorneys’ fees to the Rocky Mountain News. Specifically, the court


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concluded that although Mr. Barnett was convicted of harassment, not stalking,

the article’s use of the term “stalking” to describe his conviction was

“substantially true,” an absolute defense to Mr. Barnett’s defamation claim.

Thereafter, Mr. Barnett filed a petition for rehearing to the Colorado Court of

Appeals as well as a petition for certiorari to the Colorado Supreme Court. Both

petitions were denied.

      On December 31, 2001, Mr. Barnett filed a pro se complaint against the

State of Colorado in the United States District Court for the District of Colorado.

In his complaint, Mr. Barnett alleged the State of Colorado, “in collusion with the

media,” was punishing him for a crime for which he was never charged. He also

contended the Colorado state courts had improperly ordered him to pay court

costs and failed to issue an injunction. In his claim for relief, Mr. Barnett sought

the removal of a county court judge, removal of the Colorado Court of Appeals’

decision from the Internet and seven million dollars in damages.

      The case was referred to Magistrate Judge Craig B. Shaffer for all pretrial

proceedings. 1 On March 1, 2002, the State of Colorado filed a motion to dismiss


      1
        This case was originally assigned to the Honorable Zita L. Weinshienk.
Judge Weinshienk, a senior judge, declined the case and the case was re-assigned
to the Honorable Wiley Y. Daniel. On February 12, 2002, pursuant to the general
plan for reassignment of cases, Judge Daniel reassigned the case to the Honorable
Marcia S. Krieger. On March 26, 2003, Judge Krieger recused herself from the
case. The case was re-assigned to Judge Daniel on April 2, 2003. Contrary to
Mr. Barnett’s argument on appeal, Judge Daniel never recused himself in this

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for lack of subject matter jurisdiction and failure to state a claim upon which

relief can be granted pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), respectively.

On June 27, 2002, the magistrate judge recommended granting the State’s motion

to dismiss. Specifically, the magistrate judge concluded the district court lacked

jurisdiction under the Rooker-Feldman doctrine. See District of Columbia Court

of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co.,

263 U.S. 413, 414-16 (1923). Alternatively, the magistrate judge found Mr.

Barnett’s complaint failed to comply with Fed.R.Civ.P. 8(a) and the State was

immune from suit under the Eleventh Amendment.

        Mr. Barnett then filed objections to the magistrate judge’s recommendation.

On February 13, 2003, the district court overruled Mr. Barnett’s objections,

adopted the magistrate judge’s recommendation, and dismissed the complaint with

prejudice. 2

        Thereafter, Mr. Barnett filed a motion for reconsideration, which the

district court construed as a Rule 59(e) motion. The district court denied Mr.

Barnett’s motion on April 30, 2003. This appeal followed.

                               II. Standard of Review

        “We review de novo the district court's dismissal for lack of subject matter


case.

        On March 25, 2003, Mr. Barnett filed a motion for writ of mandamus to
        2

this Court, which was denied on April 3, 2003.

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jurisdiction pursuant to Rule 12(b)(1), and review findings of jurisdictional facts

for clear error.” Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225

(10th Cir. 2001) (citation omitted).

                                   III. Discussion

      The district court properly dismissed Mr. Barnett’s complaint for lack of

subject matter jurisdiction based upon the Rooker-Feldman doctrine and the

Eleventh Amendment. 3

      It is well established that only the United States Supreme Court has the

authority to review final state court judgments. Feldman, 460 U.S. at 482. See

also 28 U.S.C. § 1257. Accordingly, the Rooker-Feldman doctrine bars “a party

losing 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.”

Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994) (citation omitted). This

doctrine “prohibits a lower federal court from considering claims actually decided

by a state court and claims ‘inextricably intertwined’ with a prior state-court

judgment.” Kenman Eng’g v. City of Union, 314 F.3d 468, 473 (10th Cir. 2002)

(citing Rooker, 263 U.S. at 415 and Feldman, 460 U.S. at 483 n. 16). A claim is


      3
        Because the district court lacked subject matter jurisdiction over this case,
this Court need not address whether the district court correctly found that Mr.
Barnett’s complaint failed to comply with Fed.R.Civ.P. 8.

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“inextricably intertwined” with a prior state court judgment if “the state-court

judgment caused, actually and proximately, the injury for which the federal-court

plaintiff seeks redress.” Id. at 476 (emphasis in original).

      Here, the district court, liberally construing Mr. Barnett’s complaint,

determined that his true purpose in filing his federal complaint was to redress his

dissatisfaction with the outcome of his state court defamation proceedings. We

agree. In his complaint, Mr. Barnett attacks the Colorado Court of Appeals’ April

26, 2001 decision and seeks an injunction preventing its publication on the

Internet due to its falsity. 4 He also challenges the award of attorneys’ fees against

him. These claims are “inextricably intertwined” with the prior state court

judgments and, in essence, seek impermissible appellate review of the state court

judgments by the district court. Accordingly, the Rooker-Feldman doctrine

applies and the district court properly determined it lacked subject matter

jurisdiction over Mr. Barnett’s complaint.

      Even if Mr. Barnett’s complaint could be construed as a constitutional

challenge under 42 U.S.C. § 1983, his complaint is nonetheless barred by the

Eleventh Amendment. We have repeatedly held that unless a state waives its



      4
        It appears that the crux of Mr. Barnett’s argument is that the Colorado
Court of Appeals’ April 26, 2001 decision falsely states he was convicted of
“stalking.” This argument is factually incorrect. The Colorado Court of Appeals’
decision correctly states he was convicted of harassment.

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immunity by consenting to suit or Congress has abrogated the state’s sovereign

immunity, “the Eleventh Amendment prohibits a citizen from filing suit against a

state in federal court.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002)

(citation omitted), cert. denied, ___ U.S. ___, 123 S. Ct. 1908 (2003). The State

of Colorado has not consented to be sued in this case and the United States

Supreme Court has previously determined that Congress’ passage of

§ 1983 did not abrogate the state’s sovereign immunity. See Quern v. Jordan, 440

U.S. 332, 345 (1979); Ruiz, 299 F.3d at 1181.

      Relying on Lapides v. Bd. of Regents of the Univ. Sys. of Georgia, 535 U.S.

613 (2002), Mr. Barnett argues the State of Colorado can be sued in this case and

that his constitutional claims outweigh the application of the Rooker-Feldman

doctrine. Lapides is inapplicable here. In Lapides, the United States Supreme

Court held that a state’s act in removing a lawsuit from state court to federal court

constitutes a waiver of its Eleventh Amendment immunity. 535 U.S. at 616.

Because Mr. Barnett initiated his lawsuit in federal court, no removal occurred.

Moreover, Lapides did not address or otherwise limit the Rooker-Feldman

doctrine.

                                   IV. Conclusion

      The district court properly dismissed Mr. Barnett’s complaint due to lack of




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subject matter jurisdiction. Accordingly, we AFFIRM. All pending motions are

denied.



                                   Entered by the Court:

                                   TERRENCE L. O’BRIEN
                                   United States Circuit Judge




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