F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                             FEB 13 2004
                         FOR THE TENTH CIRCUIT
                                                         PATRICK FISHER
                                                                  Clerk


ELIZABETH ATKINSON-BIRD,

            Plaintiff-Appellant,

v.                                              No. 03-4085
                                        (D.C. No. 2:02-CV-281-PGC)
STATE OF UTAH, Division of Child                  (D. Utah)
and Family Services; KATIE SLADE;
STEPHANIE MCNEIL; MERILEE
BOWCUTT; MICHELLE MOYES;
LORRAINE RUIZ; KEN
MCCAULEY; LISA JORGANSON;
LORI ANN HODGES; JAMIE
HAYDEN; CHERYL NEVILLE, in
their official individual capacities;
THIRD DISTRICT COURT, Salt
Lake City, State of Utah;
SHARON P. MCCULLY; ROBERT
YEATES, Juvenile Judges, acting in
their official individual capacities;
UTAH ATTORNEY GENERAL’S
OFFICE; JULIE LUND; JEANNIE
CAMPBELL, in their official
individual capacities; GUARDIAN
AD LITEM’S OFFICE; MARTHA
PIERCE; PENNY BRIEMAN;
CHRISTINE DECKER; FRANCES
REMILLARD, in their official
individual capacities,

            Defendants-Appellees.
                            ORDER AND JUDGMENT              *




Before McCONNELL , ANDERSON , and BALDOCK , 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.

       Plaintiff Elizabeth Atkinson-Bird appeals from a district court order

dismissing her pro se civil rights action for lack of jurisdiction pursuant to the

Rooker -Feldman doctrine.   1
                                We review this determination de novo.   Kiowa Indian

Tribe of Okla. v. Hoover , 

, 1165 (10 th Cir. 1998). As explained

below, we agree with the substance of the district court’s analysis, differing only

on a procedural point that is easily accommodated through a minor modification

of the district court’s judgment. As so modified, the judgment is affirmed.




*
      This order and judgment is not binding precedent, except under the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.
1
      The doctrine takes its name from the seminal decisions in  D.C. Court of
Appeals v. Feldman , 

(1983); Rooker v. Fid. Trust Co. , 

(1923).

                                            -2-
       The State of Utah terminated plaintiff’s parental rights with respect to four

of her children and placed her two remaining children in long-term foster care.

Although her factual allegations are rather vague and conclusory, she evidently

opposed the State’s intervention on behalf of her victimized children by accusing

their foster care givers and social workers of various wrongs, including abuse for

which she was being called to answer. Failing in this effort to retain custody of

her children by deflecting blame onto others in the state proceedings, she brought

her allegations to federal court in the guise of this civil rights action. She sought

damages from those involved in the state proceedings, but the focus of this action

is on reversing the outcome of those proceedings. Her request for relief begins

with: “The immediate return of ALL 6 of my children.” R. Vol. I, doc. 3 at 7.

       Outside habeas corpus, “federal review of state court judgments can be

obtained only in the United States Supreme Court” and, thus, the         Rooker-Feldman

doctrine precludes a party who has lost a case in state court “from seeking what in

substance would be appellate review” in federal district court.         Kenmen Eng’g v.

City of Union , 

, 473 (10 th Cir. 2002) (quotations omitted). “This

prohibition extends to all state-court decisions–final or otherwise,”       

and

covers not only claims actually decided by the state court but issues inextricably

intertwined with such claims.     

is not necessary that the federal

court action formally seek to invalidate the state judgment; it is enough if the


                                             -3-
federal action would in substance defeat or negate a state judgment, for example,

if the federal claim succeeds only to the extent that the state court wrongly

decided the issue before it.”    Mandel v. Town of Orleans , 

, 271 (1 st

Cir. 2003) (quotation omitted) (holding     Rooker-Feldman barred federal action

attacking state custody decision on ground that presiding judge violated law);

Ballinger v. Culotta , 

, 549 (8 th Cir. 2003) (holding   Rooker-Feldman

barred federal claim asserting child abuse to undermine state custody order).

       The district court noted that “plaintiff’s complaint directly asks this court

to overturn state court child custody decisions,” that “plaintiff asks for damages

for matters that were found to be proper under state law,” and that “to adjudicate

plaintiff’s claim would, of necessity, involve the court in relitigating the various

child custody issues and, potentially, second-guessing state court decisions on

these matters,” contrary to     Rooker-Feldman . R. Vol. II, doc. 52 at 4. The court’s

characterization of the case is borne out by a review of plaintiff’s complaint and

memorandum in opposition to the motion to dismiss. R. Vol. I, doc. 3; R. Vol. II,

doc. 38. Its application of     Rooker-Feldman adheres to the general principles cited

above and is consistent with this court’s treatment of similar cases involving

child-custody and parental-rights determinations.      See, e.g., Roman-Nose v. N.M.

Dep’t of Human Serv. , 

, 437 (10 th Cir. 1992); Anderson v. Colo. ,

, 263 (10 th Cir. 1986).


                                            -4-
       Plaintiff argues two points of error on appeal, neither of which has merit.

First, she insists that application of    Rooker-Feldman here was improper because

federal civil rights actions against state officials are expressly authorized under

42 U.S.C. §§ 1983 and 1985.       2
                                      It is well-settled, however, that an unsuccessful

state litigant cannot challenge an adverse state judgment and circumvent the rule

of Rooker-Feldman simply “‘by bringing a constitutional claim under [the civil

rights statutes].’”   Facio v. Jones , 

, 544 (10 th Cir. 1991) (quoting

Anderson , 793 F.2d at 263). Indeed, as the cases discussed herein reflect, the

Rooker-Feldman doctrine is most frequently applied in the context of civil rights

actions.

       Her second contention is that she was entitled to a default judgment based

on one defendant’s failure to answer the complaint. Defendants argue that service

was not properly effected. We need not delve into this matter. “No court may

enter judgment on the merits–which a default judgment is–if it lacks jurisdiction.”

Metro. Life Ins. Co. v. Estate of Cammon        , 

, 1222 (7 th Cir. 1991).

Given the district court’s holding that it lacked subject matter jurisdiction under

the Rooker-Feldman doctrine, which we have upheld, any question regarding

plaintiff’s entitlement to a default judgment is moot.       See Lundahl v. Zimmer ,



2
       Plaintiff’s associated citation to 15 U.S.C. § 1125(a), which concerns
certain trademark claims, is clearly inapposite.

                                               -5-


, 938-39 (10 th Cir. 2002) (holding dismissal for lack of subject

matter jurisdiction “necessarily rendered moot [plaintiff’s] request for an order

requiring the entry of . . . a default judgment”),       cert. denied , 

(2003).

       Finally, we note there is one respect in which the district court’s judgment

is inconsistent with its jurisdictional rationale. “[O]nly judgments on the merits

preclude parties from litigating the same cause of action in a subsequent suit;” a

judgment for lack of jurisdiction only “precludes relitigation of the issue actually

decided, namely the jurisdictional issue.”          Perry v. Sheahan , 

, 318

(7th Cir. 2000); see also Matosantos Commercial Corp. v. Applebee’s Int’l, Inc.            ,

, 1209 (10 th Cir. 2001). Where the           Rooker-Feldman doctrine

applies, a federal court lacks jurisdiction to reach the merits and, thus, has no

power but to dismiss the case without prejudice to refiling in state court, where

the only issue decided by the federal court–its own jurisdiction–has no preclusive

effect. T.W. ex rel. Enk v. Brophy     , 

, 898-99 (7 th Cir. 1997). Here,

the district court indicated that its decision was without prejudice to any state law

claims plaintiff might pursue in state court, but it dismissed the complaint “with

prejudice with respect to federal claims.” R. Vol. II, doc. 52 at 5. There is no

basis for discriminating between federal and state claims in this way under the

Rooker-Feldman doctrine. As explained above, the jurisdictional deficiency here


                                              -6-
derives from a structural limitation on the power of lower federal courts to review

state court decisions; it does not turn on the particular legal grounds on which a

party attempts to obtain such review.   3



       The problem, however, is easily corrected with a minor modification of the

district court’s judgment. All of plaintiff’s claims, whether they derive from state

or federal law, shall be dismissed without prejudice to refiling in state court. In

keeping with the jurisdictional principles just discussed, however, we note there

is one respect in which the disposition of this case is still “prejudicial,” in the

sense that it operates as a limitation on subsequent litigation by the plaintiff. And

this may be what the district court meant to express: Any attempt by plaintiff to

refile this case in federal court will be conclusively barred by the jurisdictional

ruling we affirm here.   See Matosantos Commercial Corp        

(“[W]here there has been an adjudication on the merits of a jurisdictional     issue

and a determination that there is no federal jurisdiction, the doctrine of [collateral




3
       Indeed, if application of the Rooker-Feldman doctrine depended on whether
the claims challenging a state court judgment rested on federal or state grounds,
the presence of mixed claims would not result in a dismissal of the federal case
that was partially prejudicial and partially non-prejudicial. Rather, dismissal of
the entire case–with or without prejudice–would be improper, as federal review
would proceed with respect to any challenges resting on the legal source deemed
outside the scope of the doctrine. Again, there is no authority for the notion that
application of the Rooker-Feldman doctrine depends on whether federal review of
a state court judgment is sought on federal or state law grounds.

                                            -7-
estoppel] precludes a subsequent relitigation of the same jurisdictional   issue

between the same parties.” (quotation omitted and emphasis added)).

       The district court’s judgment is MODIFIED to reflect that the dismissal of

any and all claims asserted in this action is without prejudice, and as so modified

the judgment is AFFIRMED. The mandate shall issue forthwith.



                                                        Entered for the Court



                                                        Bobby R. Baldock
                                                        Circuit Judge




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