Rubeck v. Divis ( 2022 )

Appellate Case: 21-8043 Document: 010110638841 Date Filed: 01/31/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 31, 2022
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Christopher M. Wolpert
Clerk of Court
DENNIS PERRI RUBECK,
Plaintiff - Appellant,
v. No. 21-8043
(D.C. No. 0:21-CV-00090-ABJ)
DAVE DIVIS, Sweetwater County (D. Wyo.)
Assessor,
Defendant - Appellee.
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ORDER AND JUDGMENT*
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Before MATHESON, BALDOCK, and PHILLIPS, Circuit Judges.
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Dennis Perri Rubeck, proceeding pro se, appeals the district court’s dismissal
of his tax-protestor suit for lack of subject-matter jurisdiction. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Mr. Rubeck filed this suit under 42 U.S.C. § 1983 against the tax assessor for
Sweetwater County, Wyoming. He sought injunctive relief—namely, the immediate
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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: 21-8043 Document: 010110638841 Date Filed: 01/31/2022 Page: 2
and permanent removal of a home he owns from the Sweetwater County tax rolls. He
alleged Sweetwater County lacked authority to assess taxes related to the property in
question.
The district court dismissed his suit for lack of subject-matter jurisdiction
under Fed. R. Civ. P. 12(b)(1). It said that the Tax Injunction Act, 28 U.S.C. § 1341,
barred it from entertaining Mr. Rubeck’s claims. It further said that “under the
principle of comity, federal courts are barred from granting injunctive or declaratory
relief in state tax cases.” R. at 37 (citing Brooks v. Nance, 801 F.2d 1237, 1241
(10th Cir. 1986)).
II. DISCUSSION
We review de novo the district court’s dismissal for lack of subject-matter
jurisdiction. See Safe Streets All. v. Hickenlooper, 859 F.3d 865, 877 (10th Cir.
2017).
Under the Tax Injunction Act, “[t]he district courts shall not enjoin, suspend or
restrain the assessment, levy or collection of any tax under State law where a plain,
speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C.
§ 1341. The district court found that Wyo. Stat. Ann. § 39-13-109 provides an
adequate remedy for Mr. Rubeck’s claims in Wyoming state courts. And Mr. Rubeck
does not challenge this dispositive finding on appeal. See Sawyers v. Norton,
962 F.3d 1270, 1286 (10th Cir. 2020) (“Issues not raised in the opening brief are
deemed abandoned or waived.” (internal quotations omitted)).
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Appellate Case: 21-8043 Document: 010110638841 Date Filed: 01/31/2022 Page: 3
To the extent Mr. Rubeck argues the Tax Injunction Act does not apply
because he asserts a civil rights or federal constitutional challenge to the tax in
question, our precedent forecloses this argument. See Brooks, 801 F.2d at 1239(“Basing a complaint upon alleged violation of civil rights . . . or of the Federal
Constitution will not avoid the prohibition contained in Section 1341.” (internal
quotations omitted)).
III. CONCLUSION
We affirm the district court’s dismissal of Mr. Rubeck’s complaint.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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