# Cowan v. Kunzweiler

> District Court, N.D. Oklahoma · May 7, 2020

URL: https://www.frixlaw.com/law-library/cases/10386425

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** May 7, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

DONALD RAY COWAN, )
)
Plaintiff, )
)
v. ) Case No. 19-CV-714-TCK-FHM
)
STEVEN KUNZWEILER, )
)
Defendant. )

OPINION AND ORDER
Before the Court is Defendant Steven Kunzweiler, Tulsa County District Attorney's Motion
to Dismiss filed pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure (Doc.
14). Defendant alleges the First Amended Complaint (Doc. 12) fails to state a claim upon which
relief can be granted and this Court lacks jurisdiction. Plaintiff, Donald Ray Cowan, filed a
response opposing the motion (Doc. 17). Plaintiff alleges his constitutional rights were violated
when he was convicted of manslaughter in an Oklahoma court. In his request for relief, Plaintiff
seeks a variety of declaratory and injunctive relief requesting that the Court declare his felony
conviction void and grant relief from certain consequences resulting from the conviction.
I. BACKGROUND
This case arises out of Plaintiff's past conviction for first degree manslaughter. At the time
of the events leading to his conviction, Plaintiff was employed as an armed security guard. On
January 10, 2004, while performing his duties, Plaintiff shot and killed Ronald Henderson
(“Henderson”). On January 3, 2005, Plaintiff was charged with one count of first degree
manslaughter. On November 15, 2007, Plaintiff was convicted by jury trial in Tulsa County
District Court and sentenced to four years in the custody of the Department of Corrections.1 He
was released on May 17, 2011. Plaintiff filed this action on December 26, 2019 (Doc. 1.) He filed
his First Amended Complaint on February 19, 2020 (Doc. 12).
Plaintiff is a pro se litigant; accordingly, the Court construes his allegations liberally. See

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the Court can reasonably read the
pleadings to state a valid claim on which the plaintiff would prevail, it should do so “despite the
plaintiff’s failure to cite proper legal authorities, his confusion of various legal theories, his poor
syntax and sentence structure, or his unfamiliarity with pleading requirements.” Id. However, the
Court may not assume the role of advocate for the pro se litigant. See Id.
The instant case is based on Plaintiff’s ongoing contention that the judgment and sentence
entered in State of Oklahoma v. Donald Ray Cowan, Case No. CF- 2005-1 (Tulsa County) is void.2
Plaintiff is “seeking civil relief from a voidable/void state court ‘judgment roll.’” (Doc. 12, page
1). See also “Relief Requested” in Plaintiff’s First Amended Complaint. (Doc. 12, pages 5-6, ¶¶
1-5). Plaintiff requests a declaration that the judgment and sentence is not entitled to “full faith and

credit.” Id. at ¶1. Specifically, Plaintiff asks the Court to prohibit the “United States Government,
its Agencies, and any other State that Plaintiff Should decide to reside in” from extending full faith

1 These dates are noted in the Tulsa County docket. Because the Tulsa County docket is relevant
to both whether the Court has subject-matter jurisdiction in this case, and Plaintiff’s ability to state
a claim upon which relief can be granted, this Court will take judicial notice of the docket. See
United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (“[W]e may exercise our
discretion to take judicial notice of publicly-filed records in our court and certain other courts
concerning matters that bear directly upon the disposition of the case at hand.”); St. Louis Baptist
Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979) (federal courts may take notice of
proceedings in other courts, both within and without the federal judicial system).

2 Plaintiff has filed two other cases in this Court challenging this same state court conviction. See
Cowan v. State of Oklahoma, 15 CV-117-JHP-PJC, 2016 WL 7665591 (N.D. Okla. Mar. 24, 2016)
affirmed at 658 Fed.Appx. 892, 893 (10th Cir. 2016), and Cowan v. Hunter, et al., 17-CV-324-
TCK-FHM, 2018 WL 121541 (N.D. Okla. Mar. 8, 2108) affirmed at 762 Fed.Appx. 521 (10th Cir.
2019).
and credit to the judgment and sentence on the grounds that it was entered in violation of the 14th
Amendment. Id. The remainder of the relief sought in this case requests that various conditions be
met “notwithstanding” the judgment and sentence. Id. at ¶¶ 2-4. Additionally, Plaintiff seeks
permission to pursue a malicious prosecution claim against Defendant. Id. at ¶ 5.

II. Defendant's Motion to Dismiss for Lack of Subject-Matter Jurisdiction
This Court has an ongoing, independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from a party. See 1mage Software, Inc. v.
Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006); Fed.R.Civ.P. 12(h)(3). Because
federal courts are courts of limited jurisdiction, plaintiff has the burden to allege sufficient
jurisdictional facts to survive such an inquiry. See McNutt v. General Motors Acceptance Corp. of
Indiana, Inc., 298 U.S. 178, 182 (1936); Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002).
A. Rooker-Feldman Doctrine
Defendant contends this Court lacks subject-matter jurisdiction because Plaintiff’s claims
are barred under the Rooker-Feldman doctrine. The Rooker-Feldman doctrine precludes a losing

party in state court who complains of injury caused by the state-court judgment from bringing a
case seeking review and rejection of that judgment in federal court. See Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 291-92 (2005). Only the United States Supreme Court
has appellate authority to review a state-court judgment. See Id., at 283. Accordingly, district
courts do not have subject-matter jurisdiction to review or reject state-court judgments or the
injuries they cause. See Rooker v. Fid. Trust Co., 263 U.S. 413, 415 (1923); D.C. Court of Appeals
v. Feldman, 460 U.S. 462, 476 (1983). Rooker-Feldman applies to both civil and criminal state-
court judgments. See Id.; see also Market v. City of Garden City, No. 16-3293, 2017 U.S. App.
LEXIS 25236, at *7 (10th Cir. Dec. 14, 2017) (unpublished); Erlandson v. Northglenn Mun. Court,
528 F.3d 785, 790 (10th Cir. 2008).
The Rooker-Feldman doctrine applies to both (1) federal claims actually decided by a state
court and (2) federal claims inextricably intertwined with a state-court judgment, such that an

element of the claim is that the state court wrongfully entered its judgment. See Campbell v. City
of Spencer, 682 F.3d 1278, 1282-83 (10th Cir. 2012); Merrill Lynch Bus. Fin. Servs. v. Nudell,
363 F.3d 1072, 1075 (10th Cir. 2004). The Rooker-Feldman doctrine, however, does not extend
to actions in federal court that run parallel to the actions in state court, or to cases that raise
independent claims, even if those claims raise overlapping legal issues. Such cases would be
subject only to preclusion law. See Exxon, 544 U.S. at 292-93.
Plaintiff’s constitutional challenges are barred under Rooker-Feldman, as they seek to
upset a prior state-court judgment. See Feldman, 460 U.S. at 482-83 (district courts have subject-
matter jurisdiction to hear general attacks on the constitutionality of a state law that was applied
against the Plaintiff, but not as-applied challenges); Kenman Eng’g v. City of Union, 314 F.3d 468,

476 (10th Cir. 2002) (a party may bring a general constitutional challenge to state law if the party
does not request that the federal court upset a prior state-court judgment applying that law against
the party) (internal citations omitted).
Plaintiff’s Fourteenth Amendment § 1983 claims challenging his prosecution are also
barred under Rooker-Feldman. A plaintiff may in certain instances challenge in federal court the
government’s decision to charge Plaintiff with a crime in federal court, without also challenging
his underlying conviction. For example, in Mo’s Express, LLC v. Sopkin, the court had subject-
matter jurisdiction over the plaintiff’s claim that the Colorado Public Utility Commission exercised
its jurisdiction in a manner that violated the Equal Protection Clause, because the plaintiff only
requested prospective relief. See 441 F.3d 1229, 1237-38 (10th Cir. 2006). By contrast, when a
plaintiff challenges the decision to prosecute and seeks abrogation of the state-court judgment as
a remedy, a district court is barred from hearing that challenge under Rooker-Feldman. See Market,
2017 U.S. App. LEXIS 25236, at *7-*8.

In this case, the Court construes Plaintiff’s claims as a request to review and vacate the
state-court judgment. Because this relief would require appellate review of the state-court
judgment, Plaintiff's Constitutional claims are barred by Rooker-Feldman.3
B. Article III Standing
Defendant also contends Plaintiff lacks standing to assert the Constitutional violations
alleged in his First Amended Complaint. To establish Article III standing, a plaintiff must
demonstrate “(1) that he or she has suffered an injury in fact; (2) that the injury is fairly traceable
to the challenged action of the defendant; and, (3) that it is likely that the injury will be redressed
by a favorable decision.” Awad v. Ziriax, 670 F.3d 1111, 1120 (10th Cir. 2012) (quoting Ariz.
Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133- 134 (2011)). These three requirements are

often referred to as “injury in fact, causation, and redressability.” Habecker v. Town of Estes Park,
Colo., 518 F.3d 1217, 1224 (10th Cir. 2008). “In its starkest terms, the standing inquiry requires
the Court to ask not only whether an injury has occurred, but whether the injury that has occurred
may serve as the basis for a legal remedy in the federal courts.” Schaffer v. Clinton, 240 F.3d 878,
883 (10th Cir. 2001). “[S]tanding is determined as of the time of the filing of the complaint.” Utah
Ass'n of Ctys. v. Bush, 455 F.3d 1094, 1101 (10th Cir. 2006).

3 This Court has previously found similar claims asserted by Plaintiff precluded by the Rooker-
Feldman doctrine. See Cowan v. State of Oklahoma, 15 CV-117-JHP-PJC, 2016 WL 7665591
(N.D. Okla. Mar. 24, 2016) affirmed at 658 Fed.Appx. 892, 893 (10th Cir. 2016), and Cowan v.
Hunter, et al., 17-CV-324-TCK-FHM, 2018 WL 121541 (N.D. Okla. Mar. 8, 2108) affirmed at
762 Fed.Appx. 521 (10th Cir. 2019).
In this case, Plaintiff seeks an order from the Court (1) prohibiting any governmental entity
from affording full faith and credit to the judgment and sentence entered in State of Oklahoma v.
Donald Ray Cowan, Case No. CF2005-1 (Tulsa County); (2) permitting him to pursue employment
opportunities with the Federal Bureau of Prisons; (3) permitting him to carry a firearm despite his

conviction; (4) permitting him to pursue a malicious prosecution claim against Defendant, and (5)
prohibiting any government entity from denying relief afforded by this Court. (Doc. 12, pages 5-
6). Specifically, Plaintiff seeks declaratory and injunctive relief against multiple third parties,
however, none of the relief requested is directed toward, or intended to control the conduct of
Defendant.
Plaintiff must show there is “a causal connection between the injury and the conduct
complained of - the injury has to be fairly traceable to the challenged action of the defendant, and
not the result of the independent action of some third party not before the court.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quotations omitted). "A federal court has neither
the power to render advisory opinions nor to decide questions that cannot affect the rights of

litigants in the case before them." Preiser v. Newkirk, 422 U.S. 395, 401 (1975). Accordingly,
because Plaintiff's claims are directed at parties other than Defendant, Plaintiff lacks Article III
standing to pursue them.
III. Defendant's Motion to Dismiss for Failure to State a Claim
Defendant additionally argues that all of Plaintiff’s remaining claims are either barred by
the statute of limitations, the Eleventh Amendment, or prosecutorial immunity. The Court will
address these arguments with respect to Plaintiff’s claims not barred under Rooker-Feldman, or
Plaintiff's lack of Article III standing.
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint
must contain 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) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). By contrast, “[i]f the allegations . . . show that relief is barred by the

applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim.”
Jones v. Bock, 549 U.S. 199, 215 (2007). Generally, the sufficiency of a complaint must rest on
the contents of the complaint alone; however, the court may consider “matters of which the court
may take judicial notice.” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). In this case,
this Court may take judicial notice of the state-court docket. See supra n.1.
A. Statute of Limitations
Section 1983 does not provide any statute of limitations. Accordingly, courts must look to
state law for the appropriate period of limitations in § 1983 cases. See Wilson v. Garcia, 471 U.S.
261, 266-67 (1985). The Tenth Circuit has held that the appropriate period of limitations for §1983
actions brought in the state of Oklahoma is two years. See Meade v. Grubbs, 841 F.2d 1512, 1522-

24 (10th Cir. 1988); Okla. Stat. tit. 12 sec. 95(3). While state law governs statutes of limitations,
federal law determines the accrual of § 1983 claims. See Alexander v. Oklahoma, 382 F.3d 1206,
1215 (10th Cir. 2004); Baker v. Board of Regents, 991 F.2d 628, 632 (10th Cir. 1993). A § 1983
claim accrues when “facts that would support a cause of action are or should be apparent.” See
Fratus v. Deland, 49 F.3d 673, 675 (10th Cir. 1995) (internal quotations omitted).
In this case, the latest date that any of Plaintiff’s claims could have accrued is November
15, 2004, the date of his formal sentencing. Therefore, at the time of his sentencing on November
15, 2004, Plaintiff knew or should have known facts that would support his claims. However,
Plaintiff did not file this action until December 26, 2019, well outside the two-year statute of
limitations applicable to § 1983 cases brought in Oklahoma. Accordingly, all of Plaintiff’s
remaining § 1983 claims are time-barred.
B. Malicious Prosecution
Plaintiff’s claim for malicious prosecution against Defendant is also barred. A malicious

prosecution claim is precluded if the underlying conviction has not been invalidated. See
McDonough v. Smith, 139 S. Ct. 2149, 2157 (2019) citing Heck v. Humphrey, 512 U.S. 477 (1994);
see also Carbajal v. Hotsenpiller, 524 F. App'x 425, 428 (10th Cir. 2013) (Heck v. Humphrey
applicable even though the plaintiff has been released from custody on the convictions at issue).
Further, Plaintiff's claim for malicious prosecution against Defendant stems from his role
as Tulsa County District Attorney in the successful prosecution of Plaintiff in State of Oklahoma
v. Donald Ray Cowan, Case No. CF-2005-1 (Tulsa County). The United States Supreme Court has
held that “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or
for trial, and which occur in the course of his role as an advocate for the State, are entitled to the
protections of absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

Specifically, a prosecutor is entitled to absolute prosecutorial immunity for any acts performed as
part of his or her role as a prosecutor and an advocate for the state. Id; see also Imbler v. Pachtman,
424 U.S. 409 (1976). Prosecutorial immunity encompasses all activities that can fairly be
characterized as associated with litigation. Id. Because all of Plaintiff’s claims asserted against
Defendant are based on his role as a prosecutor in Plaintiff's criminal state court case, Defendant
is immune from the malicious prosecution claim asserted in this matter.
C. Eleventh Amendment Immunity
The Eleventh Amendment bars suits by private citizens against a state. Papasan v. Allain,
478 U.S. 265, 276 (1986); Ex Parte Young, 209 U.S. 123 (1908). For a plaintiff to avoid the
Eleventh Amendment’s prohibition on suits against states in federal court by seeking to enjoin
state officials from enforcing unconstitutional statutes, the plaintiff must be (1) suing state officials
rather than the state itself, (2) alleging ongoing violations of federal law, and (3) seeking
prospective relief. Cressman v. Thompson, 719 F.3d 1139, 1146 n.8 (10th Cir. 2013). Requests for

retrospective declaratory relief are also prohibited by the Eleventh Amendment. See Meiners v.
Univ. of Kansas, 359 F.3d 1222, 1232 (10th Cir. 2004).
In this action, the relief requested is contingent upon a finding that the judgment and
sentence entered in State of Oklahoma v. Donald Ray Cowan, Case No. CF-2005-1 (Tulsa County)
is void. See “Statement of the Case”, which describes this action as “seeking civil relief from a
voidable/void state court ‘judgment roll.’” Doc. 12, page 1. See also “Relief Requested” at pages
5-6. However, this relief is clearly retrospective in nature in that it is intended to remedy a past
harm – an alleged wrongful conviction. Accordingly, Plaintiffs’ request for declaratory judgment
is prohibited.
In conclusion, the Court finds Defendant is immune from suit and Plaintiff lacks standing

to assert the claims set forth in his First Amended Complaint. Plaintiff’s claims are otherwise
precluded by the Rooker-Feldman doctrine, and the statute of limitations. For the reasons set forth
above, the Court finds that Defendant's Motion to Dismiss is granted.
IT IS SO ORDERED this 7th day of May, 2020.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10386425. Public record. Not legal advice.