                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                      UNITED STATES COURT OF APPEALS                 July 15, 2015
                                   TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                     Clerk of Court


 PHILIP ANDRA GRIGSBY,

          Plaintiff - Appellant,

 v.                                                     No. 15-3057
                                            (D.C. No. 5:14-CV-03091-SAC-DJW)
 JESSE JOE LEMUZ, JR.,                                    (D. Kan.)

          Defendant - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, LUCERO, and McHUGH, Circuit Judges. **



      Plaintiff-Appellant Philip Andra Grigsby, a federal inmate appearing pro

se, appeals from the dismissal of his civil rights action based on the doctrine of

absolute immunity for a testifying witness. 1 R. 58–63. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we affirm.



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        This order and judgment is not binding precedent, except under the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

      Mr. Grigsby is serving a 260-year sentence for producing and possessing

child pornography and being a felon in possession of a firearm. United States v.

Grigsby, 749 F.3d 908, 909 (10th Cir. 2014). He filed this civil rights suit against

Jesse J. Lemuz, Jr., who testified at a sentencing hearing and a restitution hearing

related to Mr. Grigsby’s criminal case. He seeks over $11 million in damages

from Mr. Lemuz. Mr. Lemuz, a “licensed master of social work and certified

therapist at St. Francis Community Services, . . . testified on his counseling

sessions with [Mr. Grigsby’s] minor victim and his assessment of the victim’s

mental state.” United States v. Grisby, 579 F. App’x 680, 681 (10th Cir. 2014)

(unpublished). Mr. Grigsby contends that Mr. Lemuz’s testimony violated his

constitutional rights to due process and equal protection. 1 R. 13.

      Underlying the alleged constitutional violations are Mr. Grigsby’s claims

against Mr. Lemuz for fraudulent misrepresentation and medical malpractice. Id.

at 6. Mr. Grigsby contends Mr. Lemuz “maliciously misrepresented himself as to

have authority in the field of psychology while giving his testimony” and “gave

clinical opinions that were outside the scope of his professional license.” Id. at 5.

According to Mr. Grigsby, Mr. Lemuz “prescribed a [40-year] treatment program

for the victim” that would cost $140,000, an amount upon which the district court

relied in fashioning its restitution order. Id. at 7. Yet Mr. Grigsby alleges Mr.

Lemuz lacked the authority and qualifications to assess the victim’s psychological

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needs and prescribe her a treatment plan. Id. He also places particular emphasis

on the fact that, in 2011, Mr. Lemuz was censured by Kansas authorities for

practicing social work and/or psychotherapy without supervision, which he was

not licensed to do.

      The district court dismissed the action pursuant to 28 U.S.C.

§§ 1915A(a)–(b) and 1915(e)(2)(B)(iii), citing the doctrine of absolute immunity

for a testifying witness. 1 R. 62. Mr. Grigsby asks us to reinstate the complaint

and to appoint counsel to represent him in “all litigation that he now has before

the court.” Aplt. Br. 9.



                                     Discussion

      We review determinations of absolute immunity, including those under

§ 1915(e)(2)(b)(iii), 1 de novo. Biehl v. Stoss, No. 07-3232, 2007 WL 2993557, at

*1 (10th Cir. Oct. 15, 2007) (unpublished) (citing Perez v. Ellington, 421 F.3d

1128, 1133 (10th Cir. 2005)).

      “[A]ll witnesses—police officers as well as other lay witnesses—are

absolutely immune from civil liability under [42 U.S.C.] § 1983 based on their

testimony in a prior trial.” Miller v. Glanz, 948 F.2d 1562, 1570 (10th Cir. 1991)


      1
         28 U.S.C. § 1915, which applies to inmates like Mr. Grigsby who are
proceeding in forma pauperis, directs a court to dismiss the inmate’s case if “the
action or appeal . . . seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(b)(iii).

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(citing Briscoe v. LaHue, 460 U.S. 325, 333–34, 344–45 (1983)). This immunity

extends to social workers who are testifying under oath. English v. LeBaron, 3 F.

App’x 872, 873 (10th Cir. 2001) (unpublished) (granting absolute immunity to a

social worker in a similar context) (citing Holloway v. Brush, 220 F.3d 767, 775

(6th Cir. 2000) (en banc)). Here, Mr. Grigsby’s claims are based entirely upon

testimony given by Mr. Lemuz during a criminal case. Thus, Mr. Lemuz is

absolutely immune from suit based on that testimony. And to the extent Mr.

Grigsby challenges the prosecution’s conduct with respect to Mr. Lemuz’s

qualifications and testimony or the district court’s decision to admit that

testimony, a civil suit against Mr. Grigsby is not the proper vehicle to assert those

claims.

      AFFIRMED. We DENY IFP status and order payment of the unpaid

balance of the appellate filing fee. The district court’s dismissal counts as a

strike under 28 U.S.C. § 1915(g), as will this disposition because the appeal is

frivolous.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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