Phan v. Jackson ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
April 30, 2019
FOR THE TENTH CIRCUIT
_________________________________ Elisabeth A. Shumaker
Clerk of Court
KENT VU PHAN,
Plaintiff - Appellant,
v. No. 18-1494
(D.C. No. 1:18-CV-03029-LTB)
R. BROOKE JACKSON, Judge, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before CARSON, BALDOCK, and MURPHY, Circuit Judges.**
_________________________________
On April 21, 2012, Plaintiff Kent Vu Phan sustained injuries in an automobile
accident. He has filed multiple suits in state and federal court regarding this accident.
One of these suits—Civil Action 1:16-cv-2728-RBJ-CBS, filed in the United States
District Court for the District of Colorado—involved Plaintiff suing State Farm Insurance
Company for alleged violations of the Americans with Disabilities Act and insurance bad
*
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
After examining the appellant’s brief and appellate record, this panel has determined
**
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
faith. United States District Judge R. Brooke Jackson dismissed that civil action without
prejudice for failure to prosecute because Plaintiff did not serve State Farm. Plaintiff did
not appeal that order to this Court.
On November 27, 2018, Plaintiff, appearing pro se,1 filed this civil action, alleging
that Judge Jackson improperly dismissed Civil Action 1:16-cv-2728-RBJ-CBS. Plaintiff
contends that Judge Jackson’s dismissal of his complaint violated his rights under the
Americans with Disability Act and his right to a jury trial. He also makes a conclusory
allegation that his race was a factor in Judge Jackson’s decision. He also argues—
without support—that throughout each of his federal cases, 1:16-cv-2728, 1:16-cv-3111,
1:17-cv-1067, 1:17-cv-196, 1:17-cv-2353, 1:17-cv-3073, 1:17-cv-2830, and 1:18-cv-
1403, the district court judge dismissed his complaint without due process and in
violation of equal protection.
In dismissing Plaintiff’s complaint, the district court explained that Plaintiff made
no allegations that Judge Jackson somehow acted outside of his jurisdiction or the
judicial process.2 We agree.
We have long recognized the defense of absolute immunity from civil suits
involving the judicial process. Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir. 1990). “A
judge acting in his judicial capacity is absolutely immune from such suits, unless the
1
Because Plaintiff is proceeding pro se, we review his pleadings and filings liberally.
See Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
2
Plaintiff applied for a Certificate of Appealability. We note Plaintiff does not need a
Certificate of Appealability to maintain this appeal and thus deny his request.
2
judge acts clearly without any colorable claim of jurisdiction.” Id. Plaintiff has not made
any allegations that Judge Jackson acted outside of the district court’s jurisdiction. Nor
does Plaintiff present any evidence to support his claims against Judge Jackson.3
AFFIRMED.
Entered for the Court
Joel M. Carson III
Circuit Judge
3
For substantially the reasons stated by the district court, we conclude this appeal is not
taken in good faith and that Plaintiff has failed to show the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on appeal.
Therefore, we deny Plaintiff’s motion seeking leave to proceed in forma pauperis on
appeal. Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir. 2007)
(citing 28 U.S.C. § 1915(a)(3), (e)(2)).
3