Kelly v. O'Hara, (10th Cir. 2003)

Docket Number: 02-3423

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UNITEDSTATES COURT OF APPEALS

TENTH CIRCUIT

LAWRENCE L. KELLY,

Plaintiff - Appellant,

v.

JUDGE JAMES P. O'HARA; JUDGERICHARD D. ROGERS; UNITEDSTATES OF AMERICA,

Defendants - Appellees.No. 02-3423D.C. No. 02-CV-4078-JAR(D. Kansas)ORDER AND JUDGMENT(*)

Before SEYMOUR, MURPHY, and O'BRIEN,Circuit Judges.

After examining the briefs and appellate record, this panel has determinedunanimously that oral argument would not materially assist the determination ofthis appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case istherefore ordered submitted without oral argument.

Lawrence L. Kelly, proceeding pro se, appeals the district court's dismissalof his civil rights complaint brought pursuant to 42 U.S.C. §§ 1981 and 1982.This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 andaffirms.

Kelly filed the instant action against United States Magistrate Judge JamesP. O'Hara, United States District Judge Richard D. Rogers, and the United Statesof America. The essence of Kelly's allegations is that Judge O'Hara and JudgeRogers ruled in favor of certain defendants in a prior lawsuit brought by Kelly,even though, according to Kelly, his previous complaint was clearly meritorious. In its order dismissing the instant action pursuant to Federal Rule of CivilProcedure 12(b)(6), the district court patiently explained to Kelly that JudgeO'Hara and Judge Rogers were absolutely immune from suit for money damages. See, e.g., Mireles v. Waco, 502 U.S. 9 , 9-10 (1991) (per curiam). Thedistrictcourt further explained that neither of the very narrow exceptions to absolutejudicial immunity--the exception for nonjudicial actions and the exception foractions taken in complete absence of jurisdiction--were implicated by Kelly'sallegations. See generally id. at 11-12. In particular, the district court noted thatissuing pre-trial orders and granting summary judgment were clearly judicialfunctions and that the district court clearly had jurisdiction to hear and resolvethe previous civil rights suit filed by Kelly which formed the basis of theallegations in the instant complaint. Finally, the district court explained thatKelly's allegation of bad faith on the part of the defendant judges was notsufficient to overcome judicial immunity. See id. at 11 ("Judicial immunity is notovercome by allegations of bad faith or malice . . . ."); Pierson v. Ray, 386 U.S.547, 554 (1967) ("[I]mmunity applies even when the judge is accused of actingmaliciously and corruptly."). As to Kelly's claims against the United States, thedistrict court observed that the United States was immune from suit as asovereign. See United States v. Mitchell, 445 U.S. 535, 538 (1980). Furthermore, the United States had not waived its sovereign immunity forconstitutional torts, see Bivens v. Six Unknown Named Agents, 403 U.S. 388, 410 (1971), and Kelly had not identified any explicit waiver of immunity. BecauseKelly could not amend his pro se complaint to overcome these infirmities, thedistrict court dismissed the complaint with prejudice.

In his brief on appeal, Kelly simply asserts, without any citation toauthority, that "[t]he Federal District Court can't stop me from sueing [sic]anyone. The Laws I used are adequate and appropriate." For those reasons ablyset out in the district court's order of dismissal dated November 15th, 2002, thisassertion is wrong. Upon close consideration of Kelly's brief on appeal and denovo review of both the district court's order of dismissal and the entire appellate

record, this court AFFIRMS for substantially those reasons set out in thedistrictcourt's order of dismissal.

ENTERED FOR THE COURT

PER CURIAM

FOOTNOTES

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*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata and collateral estoppel. The courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.