OpenJurist

48 F3d 1232 Guinn v. G Finesilver O US

Bill Ray GUINN, Plaintiff-Appellant,
v.
Sherman G. FINESILVER, Chief Judge; O. Edward Schlatter,
Magistrate Judge; Judge Tacha; Judge Brorby; Judge Ebel;
U.S. 10Th Circuit Court; Toni Jo Grey; Rumaldo Amijo;
Gale Norton; Colorado Attorney General, Named As Colorado
Attorney General's Office, Defendants-Appellees.
Bill Ray Guinn, Plaintiff-Appellant,
v.
Donald E. Abram, Magistrate; Zita L. Weinshienk, District
Judge; Magistrate Schlatter; Judge Tacha; Judge
Brorby; Judge Ebel; U.S. 10Th Circuit
Court; Simon Lipstein,
Defendants-Appellees.

Nos. 94-1437, 94-1441.
(D.C. No. 94-Z-1295)
(D.C. No. 94-C-1644)

United States Court of Appeals, Tenth Circuit.

Feb. 28, 1995.

48 F.3d 1232
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

ORDER AND JUDGMENTS1

Before McWILLIAMS, LOGAN and KELLY, Circuit Judges.

1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The cases are therefore ordered sub-mitted without oral argument.

2

In these two appeals, which we dispose of in a single opinion because the issues are essentially identical, plaintiff Bill Ray Guinn, an inmate at the Colorado State Penitentiary, appeals the dismissal of his civil rights actions. The actions follow the dismissal and unsuccessful appeal of two other 42 U.S.C.1983 suits brought by plaintiff. See Guinn v. Hesse, No. 93-1195 (10th Cir. March 8, 1994); Guinn v. Cooper, Nos. 93-1247 & 93-1303 (10th Cir. March 8, 1994). The suits allege that the dismissal of the earlier actions deprived plaintiff of due process, equal protection, a fair trial and access to the courts.

3

In No. 94-1437, plaintiff names as defendant the federal magistrate judge and district court judge who decided his case at the district court level, the three United States circuit judges who decided the appeal, and two Colorado assistant attorneys gen-eral who apparently represented the prevailing defendants in that 1983 action. It also names as defendants this court and the Colorado Attorney General's office, naming them as "municipalities" responsible for the action of their judges and assistant attorneys general respectively. In No. 94-1441, defendants are the two federal magistrate judges and district court judge who decided plaintiff's other 1983 case, the three circuit judges who decided the appeal, this court (as the municipality responsible for the actions of its judges), and the Colorado assistant attorney general who represented the winning defendants. Of course, quite apart from sovereign immunity, when the only court to which an appeal is proper is named as a defendant to the litigation it must--under the rule of necessity--adjudicate the claim. Naming the court, or its judges, as parties does not succeed in disqualifying them as decisionmakers.

4

The magistrate judge assigned to the instant cases issued orders requiring plaintiff to show why his complaints should not be dismissed as frivolous pursuant to 28 U.S.C.1915(d). Plaintiff's response to the show cause orders merely restated his conclusory allegations without including specific factual support. The district court ultimately dismissed the actions. In No. 94-1442, the court also imposed sanctions under Fed.R.Civ.P. 11 in the amount of $120 and precluded plaintiff from commencing further suits in forma pauperis until the sanctions are satisfied.

5

We have reviewed the briefs and record in both of these appeals and are satisfied that the magistrate judge and the district court judges accurately summarized the facts and correctly applied the law. It is quite apparent that this plaintiff, being dissatisfied with the results of his prior actions, simply turned around and sued all those persons who acted as counsel for the prevailing defendants, and all of the judges who decided his cases against him, either to harass or in a vain attempt to overturn the appeals he had lost on the merits. Plaintiff makes vague allegations of conspiracy and tries to argue that the assistant attorneys general who acted as counsel opposing his position in the cases he lost were entitled only to qualified immunity because their actions were "investigatory." He argues that the judges are not entitled to the absolute immunity extended to them by Stump v. Sparkman, 435 U.S. 349 (1978), because they acted in the "absence of jurisdiction." Clearly all defendants were acting within the scope of their particular responsibilities and were entitled to immunity. Judges assigned to a case filed in their court must decide those cases. The remedy, if the losing party believes the court was wrong in the 1983 cases, is to appeal as plaintiff did. There is no constitutional cause of action against the defense lawyers and judges who were acting in accord with their duties.

6

Plaintiff shows an incomplete,2 but sufficient knowledge of the law that it seems clear that he should have realized that these cases and the appeals were frivolous. We therefore AFFIRM not only the dismissals entered by the district court but the sanction imposed in No. 94-1441 as well. We choose not to prolong this matter by adding sanctions for frivolous appeals, but we do inform the plaintiff that any similar action in the future will result in the imposition of substantial sanctions.

7

AFFIRMED.

8

The mandate shall issue forthwith.

1

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 the court's General Order filed November 29, 1993. 151 F.R.D. 470

2

For example, plaintiff has filed a motion in this court to amend his complaint to add "additional jurisdiction" under 28 U.S.C. 1331 (federal question). The motion is improper, of course, because complaints can only be amended in the district court. The motion is also unnecessary as a complaint against federal officers, alleging violations of federal constitutional rights, states a federal claim under Bivens v. Six Unknown Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971), if it is sufficient to escape dismissal as frivolous under 28 U.S.C.1915(d)