                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              DEC 6 1999
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 LARRY DON SHELTON,

                Plaintiff - Appellant,

           v.                                             No. 99-7020
                                                   (D. Ct. No. 98-CV-556-S)
 FRANK H. SEAY, United States                             (E.D. Okla.)
 District Judge for the Eastern District
 of Oklahoma,

                Defendant - Appellee.


                             ORDER AND JUDGMENT           *




Before TACHA , McKAY , and MURPHY , Circuit Judges.


       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)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

       Appellant Shelton, pro se, was the plaintiff in a lawsuit before the

Honorable Frank H. Seay, a United States district court judge. Judge Seay



       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. This 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.
dismissed Shelton’s case and Shelton appealed, alleging various constitutional

and civil rights violations. We affirmed, holding that (1) the district court

properly dismissed Shelton’s claims under Fed. R. Civ. P. 12(b)(6) and (2) the

district court’s dismissal did not violate Shelton’s First Amendment right to

petition the government for redress of grievances or his Seventh Amendment right

to a jury trial.   Shelton v. Pittsburg County Bd. of Comm’rs   , No. 97-7046, 1997

WL 464828 (10th Cir. Aug. 12, 1997),       cert. denied , 118 S. Ct. 861 (1998).

        Shelton then filed the instant suit against Judge Seay, and the district court

granted him in forma pauperis status. Shelton alleges that Judge Seay violated his

civil rights under 42 U.S.C. § 1983 by (1) dismissing Shelton’s underlying claim

without a proper hearing; (2) allegedly stating to Shelton that Shelton was not in a

J.P. court, Shelton did not have any constitutional rights, and the defendant had

not been served; and (3) failing to maintain a public record of the hearing on

Shelton’s underlying claim. Shelton requests injunctive relief and attorney’s fees.

The district court raised sua sponte the affirmative defense of absolute judicial

immunity and dismissed the complaint as frivolous under 28 U.S.C.

§ 1915(e)(2)(B)(i). Shelton now appeals the district court’s dismissal of his

complaint. In addition, Shelton again claims that Judge Seay’s dismissal of his

underlying claim without a hearing or a trial violated his First and Seventh

Amendment rights. We affirm.


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       We review a district court’s dismissal of a complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i) for an abuse of discretion,       Schlicher v. Thomas , 111 F.3d 777,

779 (10th Cir. 1997), and liberally construe Shelton’s pro se complaint,      Haines v.

Kerner , 404 U.S. 519, 520-21 (1972). 28 U.S.C. § 1915(e)(2)(B)(i) provides that

a court shall dismiss a suit filed by a plaintiff proceeding in forma pauperis at any

time if the court finds that the suit is frivolous. An in forma pauperis suit is

frivolous if “it lacks an arguable basis either in law or in fact.”   Neitzke v.

Williams , 490 U.S. 319, 325 (1989). In determining whether a suit is frivolous, a

district court may consider an affirmative defense sua sponte “when the defense is

‘obvious from the face of the complaint’ and ‘[n]o further factual record [is]

required to be developed.’”      Fratus v. Deland , 49 F.3d 673, 674-75 (10th Cir.

1995) (quoting Yellen v. Cooper , 828 F.2d 1471, 1476 (10th Cir. 1987)).

       In this case, Judge Seay’s affirmative defense of absolute immunity is

obvious from the face of Shelton’s complaint. Therefore, the district court

properly raised the defense sua sponte and concluded that Shelton’s suit lacks an

arguable basis in law. Shelton’s complaint for injunctive relief and attorney’s

fees under 42 U.S.C. § 1983 arises entirely from Judge Seay’s performance of his

duties as a federal judge. Injunctive relief is not available against a judicial

officer under 42 U.S.C. § 1983 “for an act or omission taken in such officer’s

judicial capacity . . . unless a declaratory decree was violated or declaratory relief


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was unavailable.” Here, nothing in Shelton’s complaint or the record suggests

that Judge Seay violated a declaratory decree or that declaratory relief was

unavailable. Thus, the district court did not abuse its discretion in finding that

Shelton’s claim for injunctive relief is frivolous and must fail as a matter of law.

         Furthermore, 42 U.S.C. § 1988(b) precludes the award of attorney’s fees

against a judicial officer “for an act or omission taken in such officer’s judicial

capacity . . . unless such action was clearly in excess of such officer’s

jurisdiction.” Nothing in Shelton’s complaint or the record suggests that Judge

Seay acted in excess of his jurisdiction. Thus, the district court did not abuse its

discretion in finding that Shelton’s claim for attorney’s fees also must fail.

         Shelton asserts on appeal that Judge Seay’s dismissal of his underlying

claim without a hearing or a trial violated his First and Seventh Amendment

rights. Shelton raised these claims in his underlying lawsuit, and we held that

they were without merit in   Shelton v. Pittsburg County Bd. of Comm’rs     , No. 97-

7046, 1997 WL 464828 (10th Cir. Aug. 12, 1997),      cert. denied , 118 S. Ct. 861

(1998). Consequently, these claims are precluded by the doctrine of res judicata.

See Satsky v. Paramount Communications, Inc.      , 7 F.3d 1464, 1467 (10th Cir.

1993).




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AFFIRMED.

            ENTERED FOR THE COURT,

            Deanell Reece Tacha
            Circuit Judge




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