Phan v. Babcock ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 19, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KENT VU PHAN,
Plaintiff - Appellant,
v. No. 18-1493
(D.C. No. 1:18-CV-03163-CMA)
LEWIS T. BABCOCK, Judge; GORDON (D. Colo.)
P. GALLAGHER, Judge,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, PHILLIPS, and EID, Circuit Judges.
_________________________________
Unhappy with the outcome of his district court proceedings, pro se Plaintiff-
Appellant Kent Vu Phan has filed suit against two federal judges.1 Specifically, Phan
contends United States District of Colorado Judge Lewis T. Babcock and United
States District of Colorado Magistrate Judge Gordon P. Gallagher adjudicated his
*
After examining the briefs 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
Because Phan proceeds pro se, we liberally construe his pleadings; we will
not, however, serve as his advocate or craft legal arguments on his behalf. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
cases improperly thereby violating his rights under Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); the Americans with
Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008
(ADAAA), 42 U.S.C. § 12101 et seq.; the Rehabilitation Act, 29 U.S.C. §§ 504and 794; and 42 U.S.C. §§ 1983 and 1981. In a well-reasoned and cogent order, the
district court dismissed Phan’s complaint as both legally frivolous and seeking
damages from defendants who are immune from liability. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
Whenever a plaintiff seeks to proceed in forma pauperis, as Phan has done
here, 28 U.S.C. § 1915(e)(2)(B) requires the district court judge to screen the
complaint and dismiss it if “the action or appeal . . . is frivolous or malicious . . . or
seeks monetary relief against a defendant who is immune from such relief.” A district
court properly dismisses a complaint as frivolous “only if it lacks an arguable basis in
either law or in fact. In other words, dismissal is only appropriate for a claim based
on an indisputably meritless legal theory and the frivolousness determination cannot
serve as a factfinding process for the resolution of disputed facts.” Fogle v. Pierson,
435 F.3d 1252, 1259 (10th Cir. 2006) (citations and internal quotation marks
omitted). Where, as here, “the frivolousness determination turns on an issue of law,
we review the determination de novo.” Milligan v. Archuleta, 659 F.3d 1294, 1296
(10th Cir. 2011) (internal quotation marks omitted).
Judges are entitled to absolute immunity, with “only two exceptions this rule:
(1) when the act is not taken in the judge’s judicial capacity, and (2) when the act,
2
though judicial in nature, is taken in the complete absence of all jurisdiction.” Stein v.
Disciplinary Bd. of Supreme Ct. of N.M., 520 F.3d 1183, 1195 (10th Cir. 2008)
(alterations and internal quotation marks omitted). Neither exception is at issue here.
Therefore, Judges Babcock and Gallagher are entitled to absolute immunity in their
handling of Phan’s cases before them and Phan’s claims against them are legally
frivolous. Accordingly, the district court properly dismissed with prejudice the
complaint against them.
For the foregoing reasons, we AFFIRM the district court’s order of dismissal.
Further, because Phan has failed to show “the existence of a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal,” Watkins v.
Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (internal quotation marks omitted), we
DENY his application to proceed in forma pauperis on appeal and direct him to make
full and immediate payment of all outstanding appellate filing fees.
Phan has also titled his brief, “Appellant’s Combined Opening Brief and
Application for a Certificate of Appealability.” If he thinks he needs a certificate of
appealability to appeal the dismissal, he is mistaken. See 28 U.S.C. § 2253(c). We
therefore DENY AS MOOT Phan’s nominal requests for certificates of
appealability.
Entered for the Court
Gregory A. Phillips
Circuit Judge
3