                                                               F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                  UNITED STATES CO URT O F APPEALS
                                                               April 4, 2007
                              TENTH CIRCUIT               Elisabeth A. Shumaker
                                                              Clerk of Court


M AR K JOEL H UN T,

            Plaintiff - Appellant,
                                                 No. 06-3344
      v.                                          D. Kansas
JOHN LAM B, in his individual and         (D.C. No. 06-CV-4083-JAR)
official capacity as Regional Director
of the Department of Corrections for
the State of Kansas, Northern and
Eastern D ivisions; FR AN CH ESKA
LAM B, in her individual and official
capacity as a Juvenile Division
Detective for the Topeka Police
Department; LIND A R . M ITCHELL,
in her individual and official capacity
as a practicing lawyer in the State of
Kansas and an officer of the court;
JEAN SCHM IDT, in her individual
and official capacity as a Shawnee
County District Court Judge, Division
3; LORI L. YOCKERS, in her
individual and official capacity as an
Administrative Hearing Officer for the
Shaw nee C ounty D istrict C ourt; PAUL
M . GONZALES, in his individual and
official capacity as a M ajor G uard
Kansas A rmy National Guard 169th
Combat Support Battalion,

            Defendants - Appellees.
                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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.

      M ark Hunt filed a claim pursuant to 42 U.S.C. § 1983 against five

defendants: John Lamb, Regional Director of the Department of Corrections for

the State of Kansas; Francheska Lamb, Juvenile Division Detective for the

Topeka Police Department; Linda R. M itchell, a practicing Kansas attorney; Jean

Schmidt, Shawnee County District Court Judge; Lori Yockers, Administrative

Hearing Officer for Shawnee County District Court; and M ajor Paul M . Gonzales

of the Kansas A rmy National Guard. His complaint alleged the defendants, in

their official and individual capacities, violated H unt’s civil rights through “gross,

malicious abuse of power” during his Shawnee County divorce proceeding from


      *
        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.


                                          -2-
Francheska Lamb, formerly Francheska Hunt. He alleged Francheska Lamb and

her current husband, John Lamb, made false accusations and retaliated against

him, abused their official positions to interfere with his employment, his

enlistment in the Kansas National Guard and the custody of his minor children.

Hunt requested and was permitted by the district court to proceed in forma

pauperis.

      The district court dismissed the complaint. It recognized a pro se litigant’s

pleadings are to be construed liberally and held to a lesser standard than pleadings

drafted by a lawyer. Trackwell v. United States Gov’t, 472 F.3d 1242, 1243 (10th

Cir. 2007). If a complaint can reasonably be read to state a valid claim on which

the pro se plaintiff could prevail, the court will do so despite the plaintiff’s lack

of proper presentation. Garrett v. Selby Connor M addux & Janer, 425 F.3d 836,

840 (10th Cir. 2005). On the other hand, it refused to assume the role of advocate

for the pro se plaintiff by constructing absent facts, argument or theories on his

behalf. Id. Addressing Hunt’s complaint under these standards, the district court,

in a thorough memorandum order, dismissed the complaint under 28 U.S.C. §

1915(e)(2)(B) which provides for dismissal if “the action or appeal . . . fails to

state a claim on which relief may be granted.”

      The district court concluded Hunt’s various claims failed as to each

defendant. First, the claims against the Lambs arising from the state divorce and




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custody proceedings were barred by the Younger 1 abstention doctrine because

there are pending matters relating to child custody and support. Hunt v. Lamb,

427 F.3d 725, 727 (10 th Cir. 2005) (“It is well-established that federal courts lack

jurisdiction over the whole subject of the domestic relations of husband and wife,

and parent and child.”) (internal quotations omitted). The claims against the

judicial defendants describe only official acts, and therefore these defendants are

entitled to immunity from suit. Van Sickle v. Holloway, 791 F.2d 1431, 1435

(10th Cir. 1986) (dismissing pro se action against state judges based upon judicial

immunity).

      Hunt’s bare allegations of bad faith or harassment are insufficient to

overcome immunity or abstention. Guttman v. Khalsa, 446 F.3d 1027, 1033-34

(10th Cir. 2006) (“‘[J]udicial immunity is not overcome by allegations of bad

faith or malice. . . .’ ”); Phelps v. Hamilton, 122 F.3d 885, 890 (10th Cir. 1997)

(Plaintiffs carry the burden “to come forth with additional, supplemental evidence

regarding defendant's alleged bad faith to withstand Younger abstention.”).

      To the extent Hunt’s claims allege M ajor G onzalez wrongfully caused his

discharge from the Army National Guard it fails; such a claim cannot be brought



      1
          Younger v. Harris, 401 U.S. 37 (1971). “The Younger doctrine requires a
federal court to abstain from hearing a case where . . . (1) state judicial
proceedings are ongoing; (2) state proceedings implicate an important state
interest; and (3) the state proceedings offer an adequate opportunity to litigate
federal constitutional issues.” Winnebago Tribe of Neb. v. Stovall, 341 F.3d
1202, 1204 (10th Cir. 2003).

                                         -4-
under § 1983. Feres v. United States, 340 U.S. 135 (1950). M artelon v. Temple,

747 F.2d 1348, 1350-51 (10th Cir. 1984) (“Before the passage of § 1983, there

was no liability on the part of military superiors for transgressions against the

rights of other military personnel. By the passage of § 1983, Congress never

intended to create such rights.”).

      Finally, defendant M itchell, the lawyer who represented Francheska Lamb

in the divorce and child custody proceedings, was not acting as a representative of

the state or under color of state law. Consequently, she is not subject to suit

under § 1983. Garcia v. LeM aster, 439 F.3d 1215, 1217 (10th Cir. 2006) (“To

state a valid cause of action under § 1983, a plaintiff must allege the deprivation

by defendant of a right, privilege, or immunity secured by the Constitution and

law s of the United States w hile the defendant was acting under color of state

law.”) (quoting Doe v. Bagan, 41 F.3d 571, 573-74 (10th Cir. 1994)).

      A dismissal under 28 U.S.C. § 1915 for failure to state a claim is reviewed

de novo. Trujillo v. William s, 465 F.3d 1210, 1215 (10th Cir. 2006). W e agree

Hunt failed to state a claim against any defendant. On appeal, Hunt does not

address the district court’s findings. Rather, he describes the nature of his appeal

as arising from “the appearance of assistance provided to the named defendants

by the U S D istrict C ourt for the District of Kansas.” (Appellant’s Br. at 1.) He

relies on the docket sheet to support his allegation that someone in the district

court must have “a). released the information of the filing [of the federal law suit]

                                          -5-
to Defendant Francheska Lamb; 2). back-dated D efendant Francheska Lamb’s

M otion for Extension of Time; or c). both.” (Id. at 3.) These arguments are

unrelated to the district court’s order of dismissal.

        In general, his brief cites to no legal authority supporting his appeal nor do

his ramblings provide cogent argument addressing the dismissal of his complaint.

“Although this court may require a higher level of responsibility from members of

the bar, pro se litigants are subject to the same minimum litigation requirements

that bind all litigants and counsel before all federal courts. Kyler v. Everson, 442

F.3d 1251, 1253 (10th Cir. 2006).

        Some of the appellees request the payment of attorney fees and costs

pursuant to Rule 38 of the Federal Rules of Appellate Procedure. “[T]he issue of

sanctions under Fed.R.App.P. 38 is a matter of discretion.” Roth v. Green, 466

F.3d 1179, 1188 (10th Cir. 2006). W hile we agree this appeal is frivolous, the

Rule 38 request was not filed in a separate motion and we decline to exercise our

discretion to impose the fees. Nonetheless, Hunt is warned the continued pursuit

of frivolous claims against the appellees may result in monetary sanctions. The

appeal is DISM ISSED. See 28 U.S.C. § 1915(e)(2)(B)(I). 2

                                                   ENTERED FOR THE COURT

                                                   Terrence L. O’Brien
                                                   Circuit Judge

        2
            In light of the dismissal of this appeal, all pending motions are denied as
moot.

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