F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 25, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ANTH ONY LEW IS,
Plaintiff-Appellant,
No. 06-3089
v.
(District of K ansas)
(D.C. No. 05-CV-4081-JAR)
D A V ID M IK ESIC ; STA TE O F
KANSAS,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
After examining appellant’s brief and the appellate record, this court 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.
Proceeding pro se, Anthony Lewis appeals the district court’s sua sponte
dismissal of the civil rights complaint he brought pursuant to 42 U.S.C. § 1983.
*
This order and judgment is not binding precedent, except under the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.
Lewis filed the action against David M ikesic, a Kansas probate judge, and the
State of Kansas. In his complaint, Lewis alleged Judge M ikesic “deprived [him]
of his personal mutual fund account . . . without due process of law” and
“continually sends W yandotte County Sheriff Deputies to [his] house for no
apparent reason.” A lthough his specific claims against the State of K ansas are
not explicitly articulated in the complaint, Lewis asserts defendants’ actions
violated his Fifth and Fourteenth Amendment rights. Lewis sought unspecified
monetary damages and an order prohibiting Judge M ikesic from having any
further contact with him “w hether written, oral or third party.” The district court
dismissed the suit with prejudice, citing the Eleventh Amendment, the Rooker-
Feldman doctrine, and Lewis’ failure to state a claim for relief. Lewis then
brought this appeal. Because the district court’s order relied on §
1915(e)(2)(B)(ii), we apply a de novo standard of review in this case. See Perkins
v. Kansas Dept. of Corr., 165 F.3d 803, 806 (10th Cir. 1999).
The district court properly dismissed the claims for monetary damages
asserted against the State of Kansas and against Judge M ikesic while acting in his
official capacity because “neither a State nor its officials acting in their official
capacities are ‘persons’” against whom a claim for damages can be brought
pursuant to § 1983. Will v. M ich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
Further, judicial immunity bars Lewis’ claims for monetary damages asserted
against Judge M ikesic. A state judge is absolutely immune from § 1983 liability
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except when he acts “in the clear absence of all jurisdiction.” Stump v.
Sparkman, 435 U.S. 349, 357 (1978) (quotation omitted). To determine w hether a
judge acted “in the clear absence of jurisdiction,” we look “to the nature of the
act itself, i.e., whether it is a function normally performed by a judge, and to the
expectations of the parties, i.e., whether they dealt with the judge in his judicial
capacity.” Id. at 362. Lewis alleges Judge M ikesic “has used his position as a
judge” to harass and intimidate him. Because Lewis’ claims are based on actions
taken by Judge M ikesic as a judicial officer and because Lewis has failed to
demonstrate that Judge M ikesic acted in the clear absence of jurisdiction, Judge
M ikesic is entitled to absolute judicial immunity.
This leaves only Lewis’ claim for prospective injunctive relief against
Judge M ikesic. 1 See Pulliam v. Allen, 466 U.S. 522, 541-42 (1984) (holding
“judicial immunity is not a bar to prospective injunctive relief against a judicial
officer acting in her judicial capacity”). Lewis seeks an order barring Judge
M ikesic “from having any further contact” w ith him. Lewis lacks standing to
pursue his claim for prospective injunctive relief because he has failed to allege
he will likely be subject to Judge M ikesic’s alleged unconstitutional conduct in
the future. Harris v. Champion, 51 F.3d 901, 907 (1995) (“‘Past exposure to
illegal conduct does not in itself show a present case or controversy regarding
1
Lewis did not seek prospective injunctive relief against the State of
Kansas.
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injunctive relief, . . . if unaccompanied by any continuing, present adverse
effects.’”). The claims set out in Lewis’ complaint appear to be based on actions
taken by Judge M ikesic while presiding over a state matter involving Lewis.
Lewis has failed to assert that this matter is currently pending before Judge
M ikesic or explain how he is likely to be involved in any future actions over
which Judge M ikesic will preside.
The judgment of the district court dismissing Lewis’ complaint is affirmed.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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