F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 16, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
GREGORY LY NN GALES,
Plaintiff - Appellant,
No. 07-3022
v. (D.C. No. 06-CV-3330-SAC)
(D . Kan.)
BRUCE GATTERM AN, District
Judge, 24th District; M AR K FRA M E,
C ounty Prosecutor; STA TE O F
K A N SA S; SH A WN M IN IH A N ,
Appellate Defender; SAND RA CARR,
Appellate D efender,
Defendants - Appellees.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges. **
Plaintiff-Appellant Gregory Lynn Gales, a state prisoner proceeding pro se,
appeals from the district court’s judgment dismissing (without prejudice) his 42
U.S.C. § 1983 civil rights complaint pursuant to 28 U.S.C. § 1915A(b). M r.
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Gales alleges that his constitutional rights were violated by the state district
court’s release of evidence in his criminal case w hile his petition for certiorari
was pending before the United States Supreme Court. He sued the state district
judge, the state prosecutor, and his state appellate counsel, alleging they had all
conspired to violate his constitutional rights by releasing the evidence.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
Under the Prison Litigation Reform Act, the district court is required to
review complaints from prisoners seeking redress from officers or employees of a
governmental entity and to dismiss a complaint, or any portion thereof, that, inter
alia, fails to state a claim or seeks monetary relief from a defendant who is
immune from suit. See id. § 1915A(b)(1)-(2). The screening procedure is
applicable even where, as here, the plaintiff pays the entire filing fee. Plunk v.
Givens, 234 F.3d 1128, 1129 (10th Cir. 2000). Because dismissals for failure to
state a claim and for seeking monetary relief from a defendant who is immune are
legal questions, we review them de novo. See M cBride v. Deer, 240 F.3d 1287,
1289 (10th Cir. 2001). In conducting our review, we construe pro se pleadings
liberally, applying a less stringent standard than formal pleadings drafted by
lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
The district court held that the state district judge and the state prosecutor
were protected from suit by absolute immunity. See Gales v. Gatterman, No. 06-
3330-SAC, 2007 W L 121394, at *1 (D. Kan. Jan 12, 2007). This holding is
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undoubtedly correct. A judge is typically immune from a suit for money
damages. M ireles v. W aco, 502 U.S. 9, 9 (1991) (per curiam). This immunity
extends to all judicial acts, i.e., those acts normally performed by a judge. Stump
v. Sparkman, 435 U.S. 349, 362 (1978). A judge is not deprived of immunity
because he simply commits an error, acts maliciously, or even acts without
judicial authority. Id. at 356. A judge only loses immunity when he acts in a
complete absence of jurisdiction. Id. In this case, M r. Gales alleges the state
district judge violated his constitutional rights by issuing a court order releasing
evidence to the victim’s mother in a criminal case over which that judge was
presiding. This act is well w ithin the scope of absolute judicial immunity.
The state prosecutor is also protected by absolute immunity. “A bsolute
prosecutorial immunity is a complete bar to a suit for damages under 42 U.S.C. §
1983.” M ink v. Suthers, – F.3d –, 2007 W L 1113951, at *11 (10th Cir. 2007).
Prosecutors are “absolutely immune from those activities intimately associated
with the judicial phase of the criminal process.” Id. (internal quotation marks
omitted). In this case, it appears that the state prosecutor approved the state
district court’s order releasing the evidence, verifying that it would no longer be
needed for prosecutorial purposes. This act was clearly within the judicial phase
of the criminal process and protected by absolute immunity.
The district court dismissed the claims against M r. Gales’s appellate
attorneys because M r. Gales failed to allege how either attorney acted under color
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of state law, a requisite element of his § 1983 claim. See 42 U.S.C. § 1983; Am.
M frs. M ut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). W hile M r. Gales
charges that all the defendants were acting in conspiracy, we have reviewed the
record and find no facts alleged that support this conclusion. M r. Gales simply
fails to explain how his appellate attorneys acted under color of state law.
Accordingly, the district court correctly determined that M r. Gales failed to state
a claim against these two defendants.
Finally, M r. Gales’s appellate brief devotes several paragraphs to
denouncing the district court below for its supposed prejudice and bias. 1 These
same accusations w ere levied by M r. Gales against the district court in his
response to its order to show cause why his suit should not be dismissed. The
district court construed this remonstrance as a request for recusal or
disqualification, and correctly denied it. Adverse rulings by a district judge are
not sufficient grounds for recusal or disqualification. See Green v. Branson, 108
F.3d 1296, 1305 (10th Cir. 1997) (internal citations omitted). Aside from M r.
Gales’s disagreement with the district court’s correct legal rulings, there is no
evidence to suggest prejudice or bias on the part of the district court.
W e agree with the district court that any pending actions in state court
present no obstacle to the dismissal of this suit. M r. Gales may seek habeas relief
after he has exhausted the appropriate state remedies. See Gales v. Bruce, 136 F.
1
M r. G ales similarly castigated this court.
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App’x 179 (10th Cir. 2005) (denying a COA to M r. Gales on the basis that he
failed to exhaust state court remedies).
AFFIRM ED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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