OpenJurist

48 F3d 1233 Red Elk Ironhorse Thomas v. H Jackson

RED ELK IRONHORSE THOMAS, White Eagle Indian Rights Counsel
of Utah, American Indian Lawyer, Plaintiff-Appellant,
v.
Norman H. JACKSON; Gary W. Deland; Leslie A. Lewis; Paul
R. Van Dam, each individually, Defendants-Appellees.

No. 94-4118.
(D.C. No. 93-C-973-B)

United States Court of Appeals,
Tenth Circuit.

March 7, 1995.

48 F.3d 1233
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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 JUDGMENT1

Before SEYMOUR, Chief Judge, McKAY, and HENRY, 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 this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

Red Elk Ironhorse Thomas, currently a prisoner at Utah State Prison, appeals the dismissal pursuant to 28 U.S.C.1915(d) of a civil rights action brought under 42 U.S.C.1983. Prior to the filing of this lawsuit, Mr. Thomas had petitioned the Third District Court of Utah for a writ of habeas corpus. This petition was dismissed on the merits by Judge Leslie Lewis; the dismissal was later affirmed by the Utah Court of Appeals and the Utah Supreme Court. Believing that the Utah courts wrongfully dismissed his petition, Mr. Thomas then brought this action against Judge Lewis, Judge Norman Jackson (of the Utah Court of Appeals), Attorney General Paul R. Van Dam, and Mr. Gary Deland (Director of the Utah Department of Corrections). The magistrate judge recommended that Mr. Thomas's case be dismissed sua sponte as frivolous under 1915(d). The district court accepted the magistrate judge's recommendation.

3

Dismissal under 1915(d) was plainly correct for any number of reasons. We have no jurisdiction to review Mr. Thomas's state law claims, which have, in any event, been addressed by the Utah courts and are now res judicata. The two judges and Attorney General Van Dam are immune from liability under 1983 for their actions in defending and adjudicating Mr. Thomas's habeas petition. With reference to Mr. Deland, Mr. Thomas alleges only that he avoided service of Mr. Thomas's petition and that he refused to respond to the petition; neither action gives rise to liability under 1983. Lastly, and most fundamentally, Mr. Thomas has failed to allege a violation of federal law sufficient to sustain an action under 1983. One simply cannot fashion a federal case out of the proper operation of the state adjudicatory system.

4

The opinion of the district court is AFFIRMED for substantially the reasons given by the magistrate judge. 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