919 F2d 145 Sarnowski v. Walleske II

919 F.2d 145

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

David S. SARNOWSKI, Plaintiff-Appellant,
Melissa Hulse WALLESKE, Ken Lofland; Arthur Lloyd, Attorney
Robert Duber, II, Judge; Don Harner, Judge; Fred
Grady, Attorney; Thorp, Dennett, Purdy,
Golden & Jewett, Defendants-Appellees.

No. 90-35200.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 6, 1990.*
Decided Nov. 21, 1990.

Before WRIGHT, CHOY, and DAVID R. THOMPSON, Circuit Judges.

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David Sarnowski, Plaintiff-Appellant, (Sarnowski) brought suit in federal district court alleging violations of his constitutional rights under color of state law in connection with state court proceedings regarding dissolution of his marriage and ongoing disputes about child custody and support. Sarnowski also brought various common law tort and contract claims, apparently basing federal jurisdiction on diversity of citizenship. The district court dismissed Sarnowski's claims for lack of subject matter jurisdiction. The defendants' requests for sanctions were denied without prejudice. We affirm.



Sarnowski's presentation of the facts in this case is less than clear. From the various briefs and pleadings we have been able to assemble a rough sketch of the underlying factual dispute.


In 1979 and early 1980, Sarnowski and Melissa Hulse Walleske (Walleske) were divorced and entered into an agreement delineating each party's rights and duties with respect to the care and custody of their children. This agreement was approved in Indiana state court. Walleske is a defendant-appellee in this action.


In 1985, Walleske moved to Arizona with the children and Sarnowski moved to Oregon. In 1986, a judgment was entered in Indiana state court modifying the earlier agreement. In 1988, Walleske filed the Indiana judgment in Arizona and shortly thereafter initiated legal proceedings in Arizona state court to resolve disputed issues of child support and custody. Later in 1988, Don E. Harner, in his capacity as an Indiana state judge, relinquished jurisdiction over the child custody and support matters related to the dissolution of Sarnowski and Walleske's marriage in favor of the courts of Arizona. Judge Harner is a defendant-appellee in this case. Fred Grady, also a defendant-appellee in this case, was Sarnowski's attorney in this and related Indiana proceedings.


In 1989, Robert Duber, an Arizona state judge and a defendant-appellee in this action, entered judgment declaring Walleske the custodian of the children and imposing certain restrictions on Sarnowski's visiting rights. Arthur Lloyd acted as Walleske's attorney in this matter and is also a defendant-appellee in this case.


Walleske engaged the law firm of Thorp, Dennett, Purdy, Golden & Jewett, an Oregon law firm, to enforce the Arizona judgment. J. Richard Urrita, a member of the firm, undertook various efforts to enforce the judgment. This law firm is also a defendant-appellee in this case.

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State court appeals from some of these state court actions are still pending.


Ken Lofland is the last defendant-appellee in this action. Lofland is a resident of Arizona and appears to have been married to Walleske at some time after Walleske and Sarnowski were divorced.


On April 27, 1989, Sarnowski filed a complaint in the United States District Court for the District of Oregon. He filed an amended complaint on May 12, 1989. In these pleadings, he brought various common law tort and contract claims, including a malpractice claim against his former attorney, Fred Grady. He also alleged a violation of his constitutional rights and requested injunctive relief and damages under 42 U.S.C. Sec. 1983. The essence of Sarnowski's constitutional claims is that several of the defendant-appellees conspired to enter state court judgments which were unconstitutional and caused him injury. The district court dismissed Sarnowski's complaint for, among other things, lack of subject matter jurisdiction. Sarnowski appeals the dismissal of his complaint to this court.



The existence of subject matter jurisdiction is a question of law reviewed de novo. Allah v. Superior Court of State of Calif., 871 F.2d 887 (9th Cir.1989).


A. Diversity Jurisdiction


Sarnowski alleges that he is a citizen of Oregon. In order for the district court to have diversity jurisdiction over Sarnowski's common law claims all the defendants must be citizens of states other than Oregon. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). The defendant law firm, Thorp, Dennett, Purdy, Golden & Jewett, is an Oregon law firm and thus diversity is not complete. The district court did not have subject matter jurisdiction on the basis of diversity of citizenship.

B. Federal Question Jurisdiction


Twenty-eight U.S.C. Sec. 1331 gives federal district courts original jurisdiction over civil actions arising under the Constitution and laws of the United States. Sarnowski's claims based on violation of his constitutional rights arise under the Constitution and laws of the United States. However, the district courts are courts of original jurisdiction, and as such do not have jurisdiction over direct challenges to case-specific decisions of state courts even if those challenges allege that the state courts' actions were unconstitutional. If a district court were to entertain such a challenge it would be functioning in an appellate capacity. D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482-84 n. 16 (1983); Allah v. Superior Court of State of Calif., 871 F.2d at 890-91. These jurisdictional constraints apply where, as in this case, a plaintiff brings a section 1983 action and state court appeals are still pending. Worldwide Church of God v. McNair, 805 F.2d 888, 893 n. 3 & n. 5 (9th Cir.1986). These constraints may not apply where the state courts have finally refused to hear the plaintiff's constitutional claims, but that is not the situation presented here. See Robinson v. Ariyoshi, 753 F.2d 1468, 1472-73 (9th Cir.1985) (district court may hear constitutional claims Hawaii Supreme Court refused to hear), vacated on other grounds, 477 U.S. 902 (1986).


Sarnowski's claims of injury based on violation of his constitutional rights center around the procurement, rendering, and enforcement of allegedly unconstitutional state court judgments. If the district court were to consider Sarnowski's claims, it would have to evaluate the constitutionality of the state courts' actions. The district court properly determined that it was without subject matter jurisdiction to hear Sarnowski's claims. See Allah, 871 F.2d at 891.



The decision of the district court dismissing Sarnowski's complaint against each of the defendants for lack of subject matter jurisdiction is Affirmed. Consideration of other bases for the district court's decision is not necessary to the disposition of this case.


The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3