Blake v. Hong ( 2023 )

Appellate Case: 22-1110 Document: 010110803255 Date Filed: 01/25/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 25, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
RICHARD ROY BLAKE,
Plaintiff - Appellant,
v. No. 22-1110
(D.C. No. 1:21-CV-00138-RMR-NYW)
LILIANE HONG; D. BURTON; THE (D. Colo.)
CITY OF NORTHGLENN COLORADO,
a municipality,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, TYMKOVICH, and MATHESON, Circuit Judges.
_________________________________
Richard Roy Blake appeals the dismissal of his claims brought under
42 U.S.C. § 1983 and arising from a municipal court misdemeanor conviction in
Northglenn, Colorado. The district court dismissed two of his claims for lack of
*
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). 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 This order and judgment is not binding precedent,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.
Appellate Case: 22-1110 Document: 010110803255 Date Filed: 01/25/2023 Page: 2
subject matter jurisdiction under the Rooker-Feldman doctrine1 and dismissed his
remaining three claims for failure to state a claim. We hold that the Rooker-Feldman
doctrine does not apply, but we affirm the dismissal of all the claims because
Mr. Blake failed to plausibly allege any claim on which relief can be granted.
I. BACKGROUND
Mr. Blake was protesting on a sidewalk outside a mosque in Northglenn,
Colorado. He held a sign that said “Equal Rights for Christians in Islamic Nations”
on one side and “Islam Kills” on the other side. Northglenn Police Officers Liliane
Hong and Darren Burton cited him for violating Northglenn Municipal Code § 9-11-
16.5, which prohibits the obstruction of streets and sidewalks. Mr. Blake moved to
dismiss in Northglenn Municipal Court, arguing that (1) the ordinance is
unconstitutionally vague and overbroad, and (2) the citation violated his First
Amendment rights and was issued in retaliation for the exercise of his free speech
rights. The municipal court denied the motion. On October 30, 2020, a three-person
jury convicted Mr. Blake.
Mr. Blake appealed to the Adams County District Court, which affirmed his
conviction on June 23, 2021. The court rejected Mr. Blake’s vagueness and
overbreadth arguments but declined to address his other arguments. On November 8,
1
See Rooker v. Fid. Tr. Co., 263 U.S. 413, 415-16 (1923); D.C. Ct. of Appeals v.
Feldman, 460 U.S. 462, 476 (1983).
2
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2021, the Colorado Supreme Court denied his petition for certiorari. On March 28,
2022, the United States Supreme Court denied his petition for certiorari.
On January 15, 2021, when his appeal to the Adams County District Court was
pending, Mr. Blake filed the underlying federal lawsuit against Officers Hong and
Burton and the City of Northglenn. He claimed (1) § 9-11-16.5 is void for vagueness
in violation of the Fourteenth Amendment, (2) it is overbroad in violation of the First
Amendment, (3) the police officers violated his First Amendment free speech rights
in issuing the citation, and (4) they issued the citation in retaliation for Mr. Blake’s
speech.
The district court granted the Defendants’ motion to dismiss. It held the
Rooker-Feldman doctrine barred Mr. Blake’s vagueness and overbreadth claims
because the state court had rejected them. But because the state court declined to
address Mr. Blake’s remaining claims, the district court said Rooker-Feldman did not
apply to them. It dismissed those claims for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Mr. Blake then brought this pro se appeal.2
II. DISCUSSION
A. Subject Matter Jurisdiction
We first consider whether the district court had subject matter jurisdiction.
See Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1182 (10th Cir. 2000)
2
We liberally construe Mr. Blake’s pro se filings, but we do not assume the role of
his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
3
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(“In light of the limited subject matter jurisdiction granted to the federal courts by
Congress, we have a duty to satisfy ourselves that jurisdiction is appropriate.”).
Defendants argue the Rooker-Feldman doctrine precludes jurisdiction over all
of Mr. Blake’s claims. That doctrine “prevents a party losing in state court . . . from
seeking what in substance would be appellate review of a 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.” Tal v. Hogan, 453 F.3d 1244, 1256 (10th Cir.
2006) (quotations and brackets omitted).
The Rooker-Feldman doctrine, however, “applies only to suits filed after state
proceedings are final.” Guttman v. Khalsa, 446 F.3d 1027, 1032 (10th Cir. 2006). In
Guttman, the plaintiff filed his federal lawsuit while his petition for certiorari to the
New Mexico Supreme Court was still pending. Id. We deemed the plaintiff’s state
lawsuit not final and held that Rooker-Feldman thus did not bar his federal lawsuit.
Id. Here, Mr. Blake filed his federal lawsuit in January 2021, five months before the
Adams County District Court ruled on his appeal and nearly 11 months before the
Colorado Supreme Court denied his petition for certiorari. Under Guttman, Rooker-
Feldman thus did not bar the district court’s exercise of jurisdiction over Mr. Blake’s
federal lawsuit. See also D.A. Osguthorpe Fam. P’ship v. ASC Utah, Inc., 705 F.3d
1223, 1232 (10th Cir. 2013).
B. Failure to State a Claim
Although the district court should not have declined to address the merits of
Mr. Blake’s overbreadth and vagueness claims based on the Rooker-Feldman
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doctrine, “we may affirm on any basis supported by the record, even if it requires
ruling on arguments not reached by the district court or even presented to us on
appeal.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011). We
typically will do so when “the parties have fully briefed and argued the alternate
ground.” See United States v. Chavez, 976 F.3d 1178, 1203 n.17 (10th Cir. 2020)
(quotations omitted). In their motion to dismiss, Defendants fully briefed their
arguments that the overbreadth and vagueness claims should be dismissed on their
merits. Mr. Blake had a fair opportunity to respond. We therefore will address those
arguments and will review the district court’s merits dismissal of the other claims.3
We review a dismissal under Rule 12(b)(6) de novo. Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009). We accept as true all well-pleaded factual
allegations and view them in the light most favorable to the plaintiff. Id. In making
that assessment, we must determine whether Mr. Blake’s complaint “contain[s]
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).
Void for Vagueness
Mr. Blake failed to allege a void-for-vagueness claim. An ordinance is void
for vagueness if it (1) “fails to provide people of ordinary intelligence a reasonable
3
Although we affirm based on failure to state any claim, Mr. Blake’s action also
may run afoul of Heck v. Humphrey, 512 U.S. 477 (1994), because his § 1983 case
implicates the validity of his criminal conviction. Because the Defendants moved to
dismiss based on failure to state a claim and did not present a Heck argument, we affirm
on the former ground.
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opportunity to understand what conduct it prohibits,” or (2) “authorizes or even
encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S.
703, 732 (2000).
The ordinance here provides:
It is unlawful for any person to willfully, maliciously or
recklessly place in any doorway or driveway not owned by
him or under his lawful control or on any sidewalk, public
highway, street or alley in the City any object which
causes or tends to cause the obstruction thereof or of any
part thereof.
Northglenn Mun. Code § 9-11-16.5.
Mr. Blake has not alleged or argued that the ordinance authorizes or
encourages arbitrary enforcement, and we find that people of ordinary intelligence
would understand what it means.
Overbreadth
To survive a motion to dismiss on his overbreadth claim, Mr. Blake must
plausibly allege substantial overbreadth. Faustin v. City & Cnty. of Denver, 423 F.3d
1192, 1199 (10th Cir. 2005). This requires him to allege that Northglenn’s ordinance
“actually sweeps within its prohibitions such a substantial amount of protected free
speech in relation to its plainly legitimate sweep that the [ordinance] itself must be
invalid on its face.” Id. at 1200 (quotations omitted). Overbreadth is “strong
medicine,” and courts “employ[] it with hesitation, and then, only as a last resort.”
Id. at 1199 (quotations omitted).
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The ordinance does not regulate speech. Rather, it prohibits physical
obstruction of public rights-of-way, including sidewalks, a “plainly legitimate
sweep.” Id. Mr. Blake has not alleged the ordinance prohibits a substantial amount
of protected free speech. “[T]he mere fact that one can conceive of some
impermissible applications of a statute is not sufficient to render it susceptible to an
overbreadth challenge.” Members of the City Council of L.A. v. Taxpayers for
Vincent, 466 U.S. 789, 800 (1984). He has failed to allege an overbreadth claim.
First Amendment
Mr. Blake failed to allege a plausible claim that the citation violated his First
Amendments rights. He contends that he was convicted for obstructing the sidewalk
with his body, not for carrying a sign. The ordinance prohibits the obstruction of the
sidewalk regardless of the type of object used. See McCullen v. Coakley, 573 U.S
464, 481 (2014) (“Obstructed access and congested sidewalks are problems no matter
what caused them.”). Mr. Blake’s operative complaint appended a police report
observing that he caused other pedestrians to step into the road to get around him.4
As the district court held, under the ordinance individuals “retain[] the ability to
exercise their First Amendment rights, they simply must exercise those rights without
4
See Commonwealth Prop. Advocs., LLC v. Mortg. Elec. Registration Sys., Inc.,
680 F.3d 1194, 1201 (10th Cir. 2011) (“In evaluating a motion to dismiss, we may
consider not only the complaint, but also the attached exhibits and documents
incorporated into the complaint by reference.”).
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blocking sidewalks, doorways, or driveways.” R. at 220. We affirm the district
court’s dismissal of this claim.
First Amendment Retaliation
To state a claim of retaliation for the exercise of First Amendment rights,
Mr. Blake must plausibly allege the citation was issued without probable cause. See
Fenn v. City of Truth or Consequences, 983 F.3d 1143, 1149 (10th Cir. 2020);
Williams v. City of Carl Junction, 480 F.3d 871, 876-77 (8th Cir. 2007) (in First
Amendment retaliation case, applying probable cause requirement to the issuance of
citations). As the district court found, Mr. Blake failed to do so. Because a jury
convicted Mr. Blake, he cannot plausibly allege there was no probable cause to issue
the citation. See Cameron v. Fogarty, 806 F.2d 380, 388-89 (2d Cir. 1986)
(“[W]here law enforcement officers have made an arrest, the resulting conviction is a
defense to a § 1983 action asserting that the arrest was made without probable
cause.”).
Municipal Liability
There can be no municipal liability in the absence of an underlying
constitutional violation. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.
2006). Because Mr. Blake did not adequately plead an underlying constitutional
violation, the municipal liability claim necessarily fails.
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III. CONCLUSION
We affirm the district court’s dismissal of Mr. Blake’s claims.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
9