F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS SEP 1 1999
TENTH CIRCUIT PATRICK FISHER
Clerk
BOLA AJIWOJU,
Plaintiff-Appellant,
No. 99-3101
v.
(D.C. No. 98-2573-GTV)
(Kansas)
CAROL MARINOVICH, Mayor,
Representative to Wyandotte County,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The cause 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This order and judgment is not binding precedent, except under the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, or 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 10th Cir. R. 36.3.
Bola Ajiwoju appeals the district court's orders (1) granting dismissal for
failure to state a claim against defendant Carol Marinovich in her capacity as
Mayor/CEO of the Unified Government of Wyandotte County (hereinafter Unified
Government) and (2) denying his motion to reinstate Wyandotte County District
Judge George A. Groneman as a defendant. We affirm.
Mr. Ajiwoju filed suit against his former employer, the Housing Authority
of Kansas City, Kansas, in the district court of Wyandotte County, Kansas,
claiming breach of contract, retaliatory and discriminatory discharge, and
violation of 42 U.S.C. § 1981. In a memorandum decision, Wyandotte County
District Judge George A. Groneman granted the Housing Authority’s motion for
summary judgment on all the claims. The Kansas Court of Appeals dismissed Mr.
Ajiwoju’s appeal.
Mr. Ajiwoju then filed suit in the United States District Court for the
Western District of Missouri, naming as defendants Judge Groneman and Carol
Marinovich in her capacity as Mayor/CEO of the Unified Government of
Wyandotte County. The court held that Judge Groneman was entitled to judicial
immunity and dismissed him from the suit. The court then held that venue was
improper and transferred the case to the District of Kansas.
The district court in Kansas refused to reinstate Judge Groneman as a
defendant, citing judicial immunity. The court dismissed the remaining claim
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against the Unified Government after finding that Mr. Ajiwoju failed to plead any
basis for assessing liability against that entity.
On appeal, Mr. Ajiwoju contends that judicial immunity cannot protect
Judge Groneman because his grant of summary judgment in favor of the
defendants was entered in bad faith as part of a conspiracy to deprive Mr. Ajiwoju
of relief. Judicial immunity is an absolute immunity from civil damages liability
for acts performed in a judge’s judicial capacity. See Mireles v. Waco, 502 U.S.
9, 11 (1991) (per curiam). “[J]udicial immunity is not overcome by allegations of
bad faith or malice.” Id.; see also Harris v. Champion, 51 F.3d 901, 906 (10th
Cir. 1995) (immunity for allegations of excessive conduct). Because Judge
Groneman’s order constituted a judicial act, the district court properly invoked
absolute immunity in refusing to reinstate a claim against him.
Mr. Ajiwoju also appeals the dismissal of his complaint for failure to state
a claim pursuant to Fed.R.Civ.P 12(b)(6). We review de novo a dismissal for
failure to state a claim. See Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 854 (10th
Cir.1996). Although we must construe a pro se plaintiff's complaint liberally, we
do not accept as true those allegations that are conclusory or fanciful in nature.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
Mr. Ajiwoju first argues that liability can be assessed against the Unified
Government because it is vicariously liable for Judge Groneman. Under Kansas
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law, “[v]icarious liability depends upon the relationship of the parties, such as
employer and employee or principal and agent.” St. Paul Fire & Marine Ins. Co.
v. Tyler, 974 P.2d 611, 615 (Kan.Ct.App. 1999). Whether an agency relationship
exists turns on the degree of power and control the principal exerts over the agent.
See Major v. Castlegate Inc., 935 P.2d 225, 228 (Kan.Ct.App. 1997) (agency
relationship in respondeat superior context); McDonnell v. The Music Stand, Inc.,
886 P.2d 895, 898, 899 (Kan.Ct.App. 1994) (vicarious liability).
As a state district court judge, Judge Groneman was employed and compensated
by the State of Kansas, not by the local government. See Kan. Stat. Ann. 75-
3120g (1997). The fact the Unified Government provided quarters for holding
court, see Kan. Stat. Ann. 20-613a (1995), does not give it control over the
decisions of the court. Because the Unified Government had no meaningful
control, power or responsibility over Judge Groneman, it cannot be held
vicariously liable for his decisions.
Next, Mr. Ajiwoju asserts the Unified Government is liable for conduct of
the Housing Authority. Kansas law, however, clearly states that the Housing
Authority is a separate suable entity. Kan. Stat. Ann. 17-2340 (1995) (“Such
housing authority shall have the power to sue and be sued.”) Mr. Ajiwoju points
to no evidence to the contrary. Because Mr. Ajiwoju fails to state a legal theory
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on which to base a claim against the Unified Government, his complaint was
properly dismissed.
We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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