Dwire v. Toth , 64 F. App'x 668 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 8 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JEFF DWIRE,
Plaintiff-Appellant,
v. No. 02-1150
(D.C. No. 01-K-2186)
RICHARD TOTH, Judge; (D. Colo.)
KATHERINE CRAGO; SYLVIA
XANDERSON; COLORADO
DIVISION OF CHILD SUPPORT
ENFORCEMENT,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and MURPHY , 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.
*
This order and judgment is not binding precedent, except under the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.
Mr. Dwire, proceeding pro se, brought this civil-rights action in district
court under 42 U.S.C. § 1983 challenging the constitutionality of Colorado state
paternity and child-support statutes and court procedures. The complaint alleged
that defendant Richard Toth, a state-court judge, had violated Mr. Dwire’s
constitutional right to due process of the law by making deliberately erroneous
evidentiary rulings and also by ordering an excessive amount of child support. As
for named defendants Katherine Crago and Sylvia Xanderson (employees of the
defendant Colorado Division of Child Support Enforcement), the body of the
complaint included no allegations against them. Defendant Division of Child
Support Enforcement was never served with a summons and complaint. 1
After conducting a hearing on dispositive motions filed by defendants
Crago, Xanderson, and Toth, the district court dismissed the entire action and
awarded costs to Judge Toth. The court held that the claims against Judge Toth
were barred under the doctrine of res judicata , in that plaintiff had made similar
claims which were dismissed in an earlier federal action, Dwire v. Maximus, Inc. ,
1
From Mr. Dwire’s initial filing on appeal it appeared that claims against the
Colorado Division of Child Support Enforcement had not been adjudicated. In
order to clarify the status of this defendant, this court issued an order requiring
Mr. Dwire to file either a final judgment or a certification under Fed. R. Civ. P.
54(b). Mr. Dwire did not respond to the order. Because the Division was not
served, however, the district court was not required to enter an order disposing of
the claims as provided in Rule 54(b). See Bristol v. Fibreboard Corp , 789 F.2d
846, 847 (10th Cir. 1986). Accordingly, we have jurisdiction over this appeal.
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No. 99-S-2476 (D. Colo. Apr. 6, 2000). See Wilkes v. Wyo. Dep’t of Employment
Div. of Labor Standards , 314 F.3d 501, 503-04 (10th Cir. 2002) (stating that,
“[u]nder res judicata, or claim preclusion, a final judgment on the merits of an
action precludes the parties or their privies from relitigating issues that were or
could have been raised in the prior action”) (quotation omitted). In the previous
action, the court had found that Mr. Dwire’s claims amounted to a
jurisdictionally-barred attempt to appeal a final decision of the state court
ordering him to pay child support. See Dist. of Columbia Ct. of Appeals v.
Feldman , 460 U.S. 462, 476 (1983) (holding that a federal district court has no
authority to review final judgments of a state judicial proceedings). Accordingly,
in this action the court awarded costs “as a sanction against Plaintiff for filing a
repetitive action asserting claims . . . that have already been dismissed by another
judge of this court.” R., tab 16, at 2.
Additionally, the court dismissed claims against defendants Crago and
Xanderson under Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which
relief can be granted. Because the complaint set forth no allegations of
misconduct specific to them, Mr. Dwire failed to allege the necessary personal
involvement required for liability under § 1983. See Foote v. Spiegel, 118 F.3d
1416, 1423 (10th Cir. 1997) (holding that “[i]ndividual liability under § 1983
must be based on personal involvement in the alleged constitutional violation”).
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Finally, the court ruled that Mr. Dwire’s constitutional challenge to Colorado’s
laws was subject to dismissal. He had failed to respond to defendants’ motion to
dismiss, thus leaving unrebutted the presumption that a state statute is
constitutional. See Eaton v. Jarvis Prods. Corp., 965 F.2d 922, 929 (10th Cir.
1992).
Mr. Dwire has appealed the district court ’s ruling. We review the court’s
dismissal de novo, accepting “all well-pleaded factual allegations . . . as true,”
and affirming only if “it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitled him to relief.” Sutton v.
Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(quotation omitted). After a careful review of the record, we affirm the dismissal
of this action for substantially the same reasons set forth in the district court’s
order dated February 28, 2002.
Additionally, we review all aspects of the district court’s sanction
determination under an abuse of discretion standard. See Coffey v. Healthtrust,
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Inc., 955 F.2d 1388, 1393 (10th Cir. 1992). We find no abuse of discretion in the
assessment of costs against Mr. Dwire.
AFFIRMED.
Entered for the Court
Robert H. Henry
Circuit Judge
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