OpenJurist

48 F3d 1233 Vasquez v. H Arnold L

Paul Luna VASQUEZ, Plaintiff-Appellant,
v.
Hugh H. ARNOLD, Ex-Judge; William L. West, District Court
Judge, in and for said 19th Judicial District
Defendants-Appellants.

No. 94-1352.

United States Court of Appeals, Tenth Circuit.

Feb. 23, 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NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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 ANDERSON, BALDOCK, and BRORBY, Circuit Judges.2

1

Plaintiff Paul Luna Vasquez appeals the district court's dismissal of his 42 U.S.C.1983 action. We exercise jurisdiction under 28 U.S.C. 1291 and affirm.

2

Plaintiff brought a 42 U.S.C.1983 action against Defendants alleging violations of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Plaintiff claimed Defendants improperly used, in 1977, a sixty-day jail sentence and a juvenile conviction to sentence him as a habitual criminal under Colorado's Habitual Criminal Act.

3

The magistrate judge reviewed Plaintiff's claim and recommended dismissal because, inter alia: (1) Defendants are absolutely immune from suit, see Mireles v. Waco, 502 U.S. 9, 9 (1991) (judge generally immune from suit for money damages); Stump v. Sparkman, 435 U.S. 349, 356-360 (1978) (judge immune from suit under 1983 provided he has not acted in "clear absence of all jurisdiction"); Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir.1994) (same), and (2) the statute of limitations has run on Plaintiff's claim, see Wilson v. Garcia, 471 U.S. 261, 276 (1985) (court applies state personal injury statute of limitations in 1983 case); Colo.Rev.Stat. 13-80-102 (providing a two-year limitations period for personal injury actions). The district court adopted the magistrate's recommendation and dismissed Plaintiff's claim.

4

We have reviewed the Plaintiff's brief and the entire record on appeal. We conclude the district court properly dismissed Plaintiff's claim. We affirm for substantially the same reasons as set forth in the magistrate's recommendation.

5

AFFIRMED.

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This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

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 therefore is ordered submitted without oral argument