Scott v. Ramirez ( 2023 )

Appellate Case: 22-7020 Document: 010110817513 Date Filed: 02/24/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 24, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
BRIAN TYRONE SCOTT,
Plaintiff - Appellant,
v. No. 22-7020
(D.C. No. 6:21-CV-00239-RAW-JAR)
PANDEE RAMIREZ, (E.D. Okla.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges.
_________________________________
Brian Tyrone Scott appeals pro se1 from the dismissal of his 42 U.S.C. § 1983action challenging his confinement and seeking damages against Oklahoma District
Court Judge Pandee Ramirez. Scott also challenges the district court’s imposition of
a strike pursuant to 28 U.S.C. § 1915(g). Exercising jurisdiction under 28 U.S.C.
§ 1291, we dismiss this appeal as frivolous and assess a strike as well.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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
We afford Scott’s pro se materials a liberal construction, but we do not act as
his advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
Appellate Case: 22-7020 Document: 010110817513 Date Filed: 02/24/2023 Page: 2
I
Scott filed this action under § 1983, claiming he is confined in prison with no
charges. He alleged Judge Ramirez granted him post-conviction relief based on lack
of jurisdiction, but she then repeatedly stayed her ruling pending his transfer to
federal or tribal authorities. Scott therefore sought damages against Judge Ramirez
for every day he remained illegally in state custody.
On screening, the district court dismissed the action, ruling that Scott’s
challenge to his confinement failed to state a claim because it had to be brought in an
application for habeas relief, not a § 1983 action, and his damages claim against
Judge Ramirez was barred by absolute judicial immunity. See 28 U.S.C.
§ 1915A(b)(1), (2). The district court also imposed a strike, and after it denied
Scott’s motions for reconsideration, he appealed.2
II
We generally review de novo dismissals for failure to state a claim, see Young
v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009), and questions of immunity, see
Collins v. Daniels, 916 F.3d 1302, 1315 (10th Cir. 2019). We accept as true
well-pleaded factual allegations in the complaint, but a plaintiff must offer more than
2
Scott filed two motions for reconsideration, which the district court construed
as seeking relief under Fed. R. Civ. P. 59(e) and 60(b), respectively. The district
court entered a single order denying both motions on April 28, 2022. Scott’s opening
brief references the April 28, 2022, denial of reconsideration, but it advances no
meaningful argument challenging that order. Our review is therefore limited to the
district court’s order of dismissal. See Murrell v. Shalala, 43 F.3d 1388, 1389 n.2
(10th Cir. 1994) (noting that “scattered statements” and “issues adverted to in a
perfunctory manner” are waived (internal quotation marks omitted)).
2
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“labels and conclusions or a formulaic recitation of the elements of a cause of
action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
omitted). “[A] complaint must contain sufficient factual matter . . . to state a claim to
relief that is plausible on its face.” Id. (internal quotation marks omitted).
A. Failure to State a Claim
Scott first appears to dispute the district court’s dismissal for failure to state a
claim. He maintains he is “a confined person in prison with no charges,” Aplt.
Opening Br. at 6, and asserts that once Judge Ramirez granted post-conviction relief,
she had no authority to stay or correct her ruling—she was obliged to immediately
release him. But he says Judge Ramirez stayed her decision, and she has since
vacated the grant of post-conviction relief and reimposed his convictions without any
authority to do so.3
Scott’s attempt to use § 1983 to challenge his confinement is squarely
foreclosed by our caselaw. “In this circuit, a prisoner who challenges the fact or
duration of his confinement and seeks immediate release or a shortened period of
confinement, must do so through an application for habeas corpus.” Palma-Salazar
3
For the first time on appeal, Scott contends that in vacating the grant of
post-conviction relief and reimposing his convictions, Judge Ramirez “issued a new
verdict on count 4” by stating he was convicted of larceny of an automobile, rather
than “unauthorized use of vehicle.” Aplt. Opening Br. at 3-4. He says he was never
indicted, arraigned, or convicted of larceny of an automobile. See id. at 5. This is a
new argument based on new factual allegations that do not appear in the complaint,
and thus, we will not consider it. See Requena v. Roberts, 893 F.3d 1195, 1205
(10th Cir. 2018) (refusing to consider arguments “not tied to the allegations in the
complaint”).
3
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v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012). Indeed, § 1983 is not an appropriate
vehicle to challenge the fact or duration of a prisoner’s confinement. See Boutwell v.
Keating, 399 F.3d 1203, 1208-09 (10th Cir. 2005) (recognizing a writ of habeas
corpus, not § 1983, is the “sole federal remedy” for challenging the fact or duration
of physical imprisonment (internal quotation marks omitted)). Although Scott
contends the district court should have allowed him to explain why dismissal was
improper, § 1915A “does not require that . . . the plaintiff be provided an opportunity
to respond before dismissal,” Plunk v. Givens, 234 F.3d 1128, 1129 (10th Cir. 2000)
(internal quotation marks omitted). Accordingly, the district court correctly
dismissed the action to the extent Scott challenged his confinement via § 1983.
B. Judicial Immunity
Scott also contends the district court erred in concluding that Judge Ramirez
enjoyed absolute judicial immunity. “A judge is absolutely immune from liability for
his judicial acts even if his exercise of authority is flawed by the commission of
grave procedural errors.” Stump v. Sparkman, 435 U.S. 349, 359 (1978).
The appropriate inquiry in determining whether a particular judge
is immune is whether the challenged action was judicial, and whether at
the time the challenged action was taken the judge had subject matter
jurisdiction. Stated differently, judges are liable only when they act in
clear absence of all jurisdiction; they are absolutely immune even when
their action is erroneous, malicious, or in excess of their judicial
authority.
Van Sickle v. Holloway, 791 F.2d 1431, 1435 (10th Cir. 1986) (citation and internal
quotation marks omitted).
4
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It cannot be said that Judge Ramirez acted in the clear absence of all
jurisdiction. After all, Scott invoked the state courts’ jurisdiction in seeking
post-conviction relief. And the Oklahoma district courts are courts of general
jurisdiction. See Okla. Const. art. VII, § 7(a) (“The District Court shall have
unlimited original jurisdiction of all justiciable matters . . . and such powers of
review of administrative action as may be provided by statute.”). “[J]udges of courts
of superior or general jurisdiction are not liable to civil actions for their judicial
acts, even when such acts are in excess of their jurisdiction.” Stump, 435 U.S.
at 355-56. Scott disputes Judge Ramirez’s orders staying and vacating the grant of
post-conviction relief, but these were judicial acts. “[I]ndeed, little could be thought
a more quintessential judicial act than entry of a legal judgment.” Lundahl v.
Zimmer, 296 F.3d 936, 939 (10th Cir. 2002). Thus, the district court correctly
determined that Judge Ramirez was entitled to absolute judicial immunity.
C. Imposition of Strike
Scott next contends the district court erred in imposing a strike pursuant to
§ 1915(g). Under the three-strikes provision of § 1915(g), “a prisoner is barred from
bringing new civil cases or appeals in civil cases without the prepayment of filing
fees if three prior civil cases or appeals in civil cases have been dismissed as
frivolous, malicious, or for failure to state a claim.” Smith v. Veterans Admin.,
636 F.3d 1306, 1309 (10th Cir. 2011). “[A] dismissal under § 1915A counts as a
strike when the action was dismissed as frivolous, malicious, or for failure to state a
claim, the same grounds listed in § 1915(g).” Hafed v. Fed. Bureau of Prisons,
5
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635 F.3d 1172, 1177 (10th Cir. 2011), abrogated on other grounds by Coleman v.
Tollefson, 575 U.S. 532 (2015)). Likewise, a dismissal under § 1915A(b)(2) based
on a defendant’s immunity can count as a strike if such a dismissal was subsumed in
frivolousness or an appellant’s failure to state a claim. See id. at 1178. The district
court here dismissed under both § 1915A(b)(1) and (2) based on failure to state a
claim and immunity, and we construe the latter to be subsumed in frivolousness or
the failure to state a claim, which are permissible grounds for imposing a strike under
§ 1915(g). See id. at 1178. There was, therefore, no error in assessing a strike.
Finally, we dismiss this appeal as frivolous and impose a strike as well. “An
appeal may be frivolous if it consists of irrelevant and illogical arguments based on
factual misrepresentations and false premises, or when the result is obvious, or the
appellant’s arguments of error are wholly without merit.” Wheeler v. Comm’r,
528 F.3d 773, 782 (10th Cir. 2008) (internal quotation marks omitted). Given the
relevant caselaw, the result here was obvious and Scott’s arguments are meritless.
III
Accordingly, this appeal is dismissed as frivolous. The district court’s
dismissal counts as one strike, see Hafed, 635 F.3d at 1177-78, and our dismissal
counts as a second strike, see id. at 1176.4
Entered for the Court
Gregory A. Phillips
Circuit Judge
4
Judge Rossman concurs in the imposition of an appellate strike to the extent
frivolousness is based on the application of absolute judicial immunity.
6