Darryl L. HINTON, Plaintiff-Appellant, v. James DENNIS; Joe S. Vassar; David N. Martin; Michael Loeffler; Creek County Criminal Justice Center; Kelly Burch, Defendants-Appellees.
No. 09-5130
United States Court of Appeals, Tenth Circuit.
Jan. 25, 2010.
362 Fed. Appx. 904
Finally, we have McKnight‘s motion to proceed in forma pauperis (“IFP“). According to his “Statement of Institutional Accounts,” he has in excess of $700 in his savings account. Under
The request for a COA is DENIED and the matter is DISMISSED. McKnight‘s motion to proceed IFP is DENIED.
Darryl L. Hinton, Granite, OK, pro se.
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.
ORDER AND JUDGMENT*
DEANELL REECE TACHA, Circuit Judge.
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
Plaintiff-appellant, Darryl L. Hinton, brings this pro se appeal to challenge the dismissal of his
Mr. Hinton‘s civil claims arise from his criminal prosecution in Creek County, Oklahoma. Mr. Hinton was charged with: (1) Assault and Battery With a Dangerous Weapon; (2) Resisting an Officer; and (3) Public Intoxication. After a jury found Mr. Hinton guilty of all charges, the trial court imposed consecutive prison sentences of five years, one year, and thirty
The district court dismissed Mr. Hinton‘s complaint pursuant to
II. DISCUSSION
We review a district court‘s determination of absolute immunity de novo. Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir.1994). Similarly, we review a district court‘s dismissal of a complaint pursuant to
A. Judicial Immunity—Judges Vassar and Martin
A judge is absolutely immune from suit for acts taken within his or her judicial capacity. Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir.2000). To overcome this immunity, a plaintiff must demonstrate that a judge‘s actions were either outside the judge‘s judicial capacity or were taken in the complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991).
In his complaint, Mr. Hinton generally contends that Judges Vassar and Martin conspired with other defendants to deny him a fair and unbiased criminal trial. Specifically, Mr. Hinton alleges that Judge Martin forwarded his case to Judge Vassar “even though he had to add things to the charges instead of applying the law,” and that Judge Vassar refused to give him new counsel upon request, denied him access to the prison law library, did not allow him to speak at trial, and required him to undergo a mental evaluation without his consent. These allegations fail to overcome Judge Vassar‘s or Judge Martin‘s absolute judicial immunity because they do not demonstrate that either judge acted outside his judicial capacity. Accordingly, we agree with the district court that both Judge Vassar and Judge Martin are absolutely immune from this § 1983 suit.
“State prosecutors are entitled to absolute immunity against suits brought pursuant to § 1983 for activities intimately associated with the judicial process.” Gagan, 35 F.3d at 1475 (internal quotations omitted). Prosecutors are only entitled to qualified immunity, however, for investigative or administrative actions. Id. To determine whether a prosecutor is entitled to absolute or qualified immunity, “the determinative factor is advocacy because that is the prosecutor‘s main function.” Id. (internal quotations omitted).
Mr. Hinton‘s complaint alleges that Mr. Loeffler continued to prosecute Mr. Hinton‘s case when he should have dismissed it, and that Mr. Loeffler made a disparaging remark about Mr. Hinton during the criminal trial. We conclude that these acts were intimately associated with the judicial process and were undertaken by Mr. Loeffler in his role as an advocate. Accordingly, we agree with the district court that Mr. Loeffler is absolutely immune from suit.
C. Mr. Dennis Did Not Act Under Color of State Law
A defendant may only be liable under § 1983 if he acts under color of state law. Harris v. Champion, 51 F.3d 901, 909 (10th Cir.1995). “[A] public defender does not act under color of state law when performing a lawyer‘s traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981).
Mr. Hinton‘s complaint contends that his attorney, Mr. Dennis, failed to protect his rights and talked to him like he did not know the law. These general factual allegations are plainly insufficient to allege a constitutional violation. Furthermore, these alleged acts were taken by Mr. Dennis while performing his traditional advocacy functions and were, therefore, not taken under color of state law. Accordingly, we agree with the district court that Mr. Dennis may not be sued under § 1983.
D. The Creek County Criminal Justice Center Is Not A Suable Entity
Generally, governmental sub-units are not separate suable entities that may be sued under § 1983. See Martinez v. Winner, 771 F.2d 424, 444 (10th Cir.1985) (“The ‘City of Denver Police Department’ is not a separate suable entity“). Mr. Hinton‘s complaint does not make specific factual claims against the Creek County Criminal Justice Center and does not demonstrate why this governmental sub-unit is a suable entity. Accordingly, we agree with the district court that the Creek County Criminal Justice Center is not a suable entity under § 1983.
E. Mr. Hinton‘s Complaint Contains No Factual Allegations Against Kelly Burch
For a complaint to withstand dismissal it must state specific factual allegations that make a legal claim for relief plausible. Kay, 500 F.3d at 1218. Although Mr. Hinton names a “Kelly Burch” in the caption of his complaint, he fails to make any factual allegations against this person or even identify this person‘s role in his prosecution. Accordingly, we agree with the district court that Mr. Hinton‘s complaint fails to state a claim upon which relief may be granted against Kelly Burch.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.