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Filed: Patrick Fisher
Filed: Patrick Fisher
MAR 3 2004
PATRICK FISHER
Clerk
No. 03-5039
(D.C. No. 02-CV-300-EA)
(N.D. Okla.)
Defendants-Appellees.
ORDER AND JUDGMENT
Before OBRIEN and BALDOCK , Circuit Judges, and
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal.
This order and judgment is not binding precedent, except under the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.
Plaintiffs, proceeding pro se, seek review of the district courts order
granting defendants motion to dismiss their action brought pursuant to 42 U.S.C.
1983, or alternatively, for summary judgment. The defendants are a state trial
judge and an attorney who participated in a 2001 state court proceeding in
Washington County, Oklahoma. In that proceeding, plaintiffs attempted to quiet
title to a property that had been seized and sold at public auction in 1993 for
nonpayment of federal taxes. Plaintiffs were subsequently evicted from the
property in 1994 pursuant to a quiet title action filed by the purchasers
(Schraders). That action was also presided over by Judge Lanning. In the recent
state proceeding, at which defendant Busby represented the Schraders, Judge
Lanning dismissed plaintiffs action for failure to state a claim on which relief
could be granted. There is no indication plaintiffs appealed that decision.
Shortly after their state court action was dismissed, plaintiffs filed this
action contending that defendants had conspired to deprive them of their
constitutional rights in the state court proceeding. The district court granted
defendants motion to dismiss/summary judgment, holding that Judge Lanning
was absolutely immune for his actions in the prior court proceedings, that Judge
Lanning was entitled to Eleventh Amendment immunity for any claims brought
against him in his official capacity, and that the statute of limitations had long
since run on plaintiffs claims regarding ownership of the property.
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With regard to defendant Busby, the court determined that plaintiffs had
failed to set forth with particularity the factual basis for their fraud or conspiracy
allegations allegedly perpetrated by defendant Busby in defending plaintiffs
action against the Schraders in 2001. The court also dismissed the complaint
against both defendants as to the fraud allegations for failure to comply with
Fed. R. Civ. P. 9.
Plaintiffs then filed a motion to vacate the district courts judgment, citing
Fed. R. Civ. P. 60(b)(4) and alleging the district court lacked jurisdiction to enter
its judgment because the judge was under a writ at the time of issuing the void
Order and void Judgment. R. doc. 53 at 1.
writ of mandamus filed with the district court, it appears plaintiffs sought to have
this court compel the district court to vacate a protective order entered by a
magistrate judge staying further discovery of Judge Lanning pending the courts
ruling on the dispositive motions to dismiss/summary judgment. Plaintiffs Rule
60 motion further alleged they were denied due process because they were
deprived of their right to discovery, multiple frauds were perpetrated on the court,
their pro se pleadings were not accorded the appropriate liberality, and the district
court arrived at a conclusion [n]o competent jurist would come to.
Id. at 1-4.
A search of this courts records has failed to uncover the existence of this
alleged petition for writ of mandamus.
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The district court carefully considered plaintiffs arguments and denied the
motion.
As best we can discern, on appeal to this court, plaintiffs raise the
following issues:
1. Because the district court denied Judge Lannings first motion to
dismiss based on judicial immunity, the court could not subsequently
dismiss the action on that ground. Aplts Opening Br. at 10.
2. The district court abused its discretionary authority to
dismiss the action because the plaintiffs were deprived of
discovery (which we take to mean by the entry of the protective
order staying discovery of Judge Lanning).
Id. at 10-11.
3. The district court usurped this courts authority by
continuing to rule on the case while a writ of mandamus was pending
in this court. Id. at 11.
4. The district court lied about the contents of the record by
stating that [Judge] Lanning had adjudicated the Moores state court
case where [the district court] was placed on notice of [Judge]
Lannings misprision. Id.
No legal authority is cited for any of these propositions, nor have plaintiffs
included any citations to the record. As noted earlier, although it appears that a
document purporting to be a petition for writ of mandamus was created and a
copy filed with the district court, there is no evidence such a writ was filed in this
court.
We review the district courts decision de novo, employing the same
standard as did the district court.
but were denied reciprocal discovery because of the protective order. This
argument is also without merit. The district court considered Judge Lannings
request to stay discovery pending the disposition of his second motion to
dismiss/summary judgment. The decision of a district court to enter a protective
order under Rule 26(c) is reviewed for an abuse of discretion.
Valley, Inc. , 88 F.3d 848, 853 (10th Cir. 1996). And, the district court properly
decided the threshold question of immunity prior to permitting discovery.
See
Crawford-El v. Britton , 523 U.S. 574, 598 (1998). Hence, the district court did
not abuse its discretion in staying discovery.
For their third argument, plaintiffs contend the district court usurped the
authority of this court by continuing proceedings notwithstanding the alleged
filing of a petition for writ of mandamus in this court. As noted, we have no
record of this proceeding. Plaintiffs do not furnish a case number for such a
petition, but merely contend it still languishes before this court without
rebuttal, Aplts Reply Br. at 6, nor do they offer any authority for their theory
that the filing of an original proceeding divests the district court of jurisdiction to
proceed with an action properly before that court. In any event, mandamus is not
a substitute for an appeal.
(10th Cir. 1994). Absent the grant of a stay of the district court proceedings or a
properly filed appeal, the district court did not lack jurisdiction to enter judgment.
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Last, defendants claim the district court lied about the contents of the
record. Beyond this somewhat cryptic complaint, again unsupported by any
authority, we are unable to decipher a legal basis for any error on the part of the
district court. The district court had jurisdiction over plaintiffs action and the
authority to enter summary judgment for defendants.
Finally, defendant Busby has moved for damages and filing restrictions
against plaintiffs. A similar motion was denied by the district court. The district
court further determined that the balance between providing open access to the
courts and discouraging meritless suits, weigh[ed] against imposing attorneys fees
against plaintiffs.
unnecessary invectives and personal attacks on the defendants and their attorneys,
we decline to award damages. Defendants motion is therefore denied. Plaintiffs
motion to strike defendants motion is denied as moot.
The judgment of the district court is AFFIRMED. The mandate shall issue
forthwith.
Terrence L. OBrien
Circuit Judge
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