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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's order granting the defendants' motion to dismiss the plaintiffs' §1983 action. The district court properly determined that the state trial judge defendant was entitled to absolute immunity and Eleventh Amendment immunity. The court also concluded that the statute of limitations had run on the plaintiffs' claims regarding ownership of the property. Additionally, the plaintiffs failed to sufficiently allege their fraud and conspiracy claims against the attorney defendant. The Court of Appeals found no merit in the plaintiffs' arguments on appeal.

    Original Description:

    Filed: 2004-03-03 Precedential Status: Non-Precedential Docket: 03-5039

    Original Title

    Moore v. Busby, 10th Cir. (2004)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's order granting the defendants' motion to dismiss the plaintiffs' §1983 action. The district court properly determined that the state trial judge defendant was entitled to absolute immunity and Eleventh Amendment immunity. The court also concluded that the statute of limitations had run on the plaintiffs' claims regarding ownership of the property. Additionally, the plaintiffs failed to sufficiently allege their fraud and conspiracy claims against the attorney defendant. The Court of Appeals found no merit in the plaintiffs' arguments on appeal.

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    26 views7 pages

    Filed: Patrick Fisher

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's order granting the defendants' motion to dismiss the plaintiffs' §1983 action. The district court properly determined that the state trial judge defendant was entitled to absolute immunity and Eleventh Amendment immunity. The court also concluded that the statute of limitations had run on the plaintiffs' claims regarding ownership of the property. Additionally, the plaintiffs failed to sufficiently allege their fraud and conspiracy claims against the attorney defendant. The Court of Appeals found no merit in the plaintiffs' arguments on appeal.

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    of 7

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    MAR 3 2004

    PATRICK FISHER
    Clerk

    K.F. MOORE; COLLEEN MOORE, a


    married couple,
    Plaintiffs-Appellants,
    v.
    WILLIAM W. BUSBY, an individual;
    JOHN G. LANNING, an individual,

    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.

    BRORBY , Senior Circuit

    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.

    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.
    -2-

    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.

    See generally R. doc. 51.

    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.

    Based on a copy of this petition for

    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.

    -3-

    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.

    Amro v. Boeing Co. , 232 F.3d 790, 796 (10th


    -4-

    Cir. 2000). Summary judgment is appropriate if no genuine issue as to any


    material fact is in dispute and the moving party is entitled to judgment as a matter
    of law. Fed. R. Civ. P. 56(c).
    Plaintiffs claim that the district court was somehow precluded from
    granting defendant Judge Lannings motion to dismiss/or for summary judgment
    because the court initially denied a similar motion is without legal merit. The
    district courts first order merely denied defendants motions at this time
    because at that point the court determined there was no admissible evidence
    establishing that the previous state lawsuits regarding the Washington County
    property . . . form[ed] the basis of the allegations in this present action. R. doc.
    11. That order was clearly interlocutory, however, and subject to reconsideration
    upon presentment of proper supporting documentation. Moreover, the court
    clearly contemplated the filing of further motions for summary judgment. The
    district court retained its jurisdiction to modify or rescind a prior interlocutory
    order, including the authority to entertain a second motion for summary judgment
    after denying the first one.

    See Lindsey v. Dayton-Hudson Corp.

    , 592 F.2d 1118,

    1121 (10th Cir. 1979). This argument is without merit.


    Next plaintiffs complain that the district court abused its discretion by
    granting Judge Lannings motion for a protective order. They appear particularly
    disturbed because they had responded to Judge Lannings request for admissions,
    -5-

    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.

    Kidd v. Taos Ski

    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.

    See Weston v. Mann (In re Weston),

    18 F.3d 860, 864

    (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.
    -6-

    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.

    See R. doc. 83 at 4. While we do not condone 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.

    Entered for the Court

    Terrence L. OBrien
    Circuit Judge

    -7-

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