F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 13 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RICHARD DEE THOMAS,
Plaintiff-Appellant,
v. No. 98-4196
(D.C. No. 95-CV-128)
FRANCES M. PALACIOS, (D. Utah)
individually and in her official
capacity as Repealed-Court
Commissioner,
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 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This order and judgment is not binding precedent, except under the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. 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.
Plaintiff originally brought this 42 U.S.C. § 1983 action seeking relief on
the basis that a search warrant issued by defendant was invalid because, as a court
commissioner, she did not have authority to issue search warrants. Nearly three
years after our affirmance of the district court’s dismissal under 28 U.S.C.
§ 1915(d) of plaintiff’s complaint, see Thomas v. Palacios, No. 95-4094, 1995
WL 758970 (10th Cir. Dec. 26, 1995), plaintiff filed a motion pursuant to
Fed. R. Civ. P. 60(b) seeking relief from the final judgment against him. Plaintiff
bases his challenge to the judgment on the Utah Supreme Court’s subsequent
decision holding that defendant did not have authority to issue the warrant.
See State v. Thomas, 961 P.2d 299 (Utah 1998). Adopting the report and
recommendation of the magistrate judge, the district court denied plaintiff’s
motion on the bases that defendant was entitled to quasi-judicial immunity
and that there had been no federal constitutional violation. Plaintiff appeals.
We review the district court’s denial of a Rule 60(b) motion for an abuse of
discretion. See FDIC v. United Pac. Ins. Co., 152 F.3d 1266, 1272 (10th Cir.
1998).
We need address only the immunity issue to resolve this appeal. “As
adjuncts of the court to which they are appointed, court commissioners are
authorized to exercise certain functions to assist the court in the exercise of its
core judicial powers.” Salt Lake City v. Ohms, 881 P.2d 844, 851 n.17 (Utah
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1994). Court employees whose acts are intertwined with the judicial process are
entitled to “quasi-judicial” immunity, see Valdez v. City & County of Denver,
878 F.2d 1285, 1287 (10th Cir. 1989), unless acting in the clear absence of all
jurisdiction or authority, see Snell v. Tunnell, 920 F.2d 673, 694 (10th Cir. 1990).
Despite the Utah Supreme Court’s subsequent ruling that defendant did not have
the authority to issue warrants, defendant issued the warrant based on
longstanding, previously accepted practice in Utah. She therefore clearly had a
colorable basis of authority to issue the warrant, and is entitled to quasi-judicial
immunity. See id. The district court correctly denied plaintiff’s motion.
Also before the court is plaintiff’s response to the court’s August 19, 1999
order to show cause why the appeal should not be dismissed for failure to submit
partial appellate filing fee payments after May 26, 1999. Plaintiff has a current
balance due of $34.62. His argument that the Prison Litigation Reform Act does
not apply to this appeal is without merit. See Shabazz v. Parsons, 127 F.3d 1246,
1247-48 (10th Cir. 1997) (PLRA applies to appeal even though the underlying
complaint was filed before the statute’s enactment date of April 26, 1996, so long
as the notice of appeal was filed on or after that date). The notice of appeal in
this matter was filed on November 17, 1998.
The judgment of the district court is AFFIRMED. All outstanding motions
are DENIED. The mandate shall issue forthwith. Plaintiff shall resume periodic
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monthly payments against the balance of the filing fee for this appeal until the
total amount due is paid, with the next payment due on or before 30 days from the
date of this order. Failure to make the required payments may result in the
dismissal of any future appeals.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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