956 F2d 278 Moody v. D Robb

956 F.2d 278

Robert Cecil MOODY, Plaintiff-Appellant,
v.
Richard D. ROBB, Judge; Scott Epstein; Patrick Delaney,
Defendants-Appellees.

No. 91-1260.

United States Court of Appeals, Tenth Circuit.

Feb. 25, 1992.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral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

Before SEYMOUR, STEPHEN H. ANDERSON and BALDOCK, Circuit Judges.

ORDER AND JUDGEMENT*

STEPHEN H. ANDERSON, Circuit Judge.


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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 cause is therefore ordered submitted without oral argument.

2

The appellant, Robert Cecil Moody, challenged ongoing criminal proceedings against him in Colorado state court by filing a state habeas petition (instead of motions within the criminal proceeding itself). The state district court judge dismissed the habeas petition and Moody did not appeal. Rather, he filed a civil rights action in federal court, pursuant to 42 U.S.C. § 1983, against the state court judge and two attorneys from the prosecutor's office. The magistrate judge recommended dismissal of the action on the grounds of judicial and prosecutorial immunity. The district court adopted the dismissal recommendation but on slightly different grounds as to the judge. The district court concluded that Moody's complaint was in fact an attempt to seek appellate review by the federal courts of state court proceedings, and that the federal courts lack jurisdiction to perform such a function.

3

We agree with the district court and affirm the dismissal substantially for the reasons set forth in the district court's order, a copy of which is attached hereto. To the extent Moody's complaint can be construed as anything other than an attempt to secure impermissible appellate review, then we agree with the magistrate judge that the state court judge is absolutely immune.

4

The judgment of the district court is AFFIRMED.

5

The mandate shall issue forthwith.

*

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3