                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               APR 22 1999
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 JOHN V. McALISTER, an individual,

               Plaintiff - Appellant,

          v.                                                   No. 98-6338
                                                        (D. Ct. No. 97-CV-345-T)
 GEORGE MILLER, individually and in his                        (W.D. Okla.)
 capacity as Director Oklahoma Department
 of Human Services; SANDRA CAMPBELL,
 individually and in her official capacity as
 Department of Human Services supervisor;
 PAM CADAMY, individually and in her
 official capacity as Department of Human
 Services case worker; JAMES PERCIVAL,
 individually and in his official capacity as
 court appointed counsel; JIM LOWERY,
 M.D., sued as Psychiatric Associates Inc. ex
 rel defendant Lowery; ROGER STUART;
 STATE OF OKLAHOMA, ex rel Campbell,
 Cadamy and Percival,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.




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        This order and judgment is not binding precedent, except under the doctrines of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

      This appeal is from several orders of the district court dismissing appellant

McAlister’s complaint for failure to state a claim upon which relief could be

granted. Petitioner appeals alleging that the district court erred in dismissing his

complaint, in denying his motion to alter or amend the judgments, and in denying

plaintiff access to various documents relating to this matter. We affirm.

      Plaintiff McAlister is representing himself in this action, brought pursuant

to 42 U.S.C. § 1983, alleging that his civil rights have been violated by state court

proceedings which resulted in the termination of his parental rights. We construe

the pleadings, and all of the filings in this case and on appeal, liberally. Haines v.

Kerner, 404 U.S. 519, 520-21 (1972). We agree with the district court that

plaintiff in this matter represents only himself and not his minor children because

any right that he had to sue on behalf of the children was terminated when

plaintiff’s parental rights were terminated under Oklahoma law. Okla. Stat. Tit.

10, § 7006-1.3. A federal court action on behalf of minors may only be

prosecuted by a legally appointed guardian or guardian ad litem. Fed. R. Civ. P.

17(c). The district court therefore correctly determined that plaintiff in this


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action may sue only on his own behalf.

      The claims against all of the defendants in this matter relate to the

defendants’ roles and responsibilities in the events and proceedings surrounding

the termination of plaintiff’s parental rights to two minor children. The district

court found that some of the defendants were entitled to absolute immunity under

the Eleventh Amendment to the Constitution. Thus, the cases against DHS and

George Miller, Pam Cadamy, and Sandra Campbell in their official capacities

were dismissed on the grounds of absolute immunity. Construing the complaint

liberally, the district court further found that George Miller, Pam Cadamy, and

Sandra Campbell were entitled to absolute immunity in the claims against them

related to their testimony given at plaintiff’s parental rights termination hearing.

See Briscoe v. LaHue, 460 U.S. 325, 335-36 (1983). To the extent that these

officials were sued in their individual capacities for actions other than their

testimony, the district court found that plaintiff had failed to plead sufficient facts

to establish any violation of a constitutional right.

      With respect to defendants Kim Lowery, M.D., and Psychiatric Associates,

Inc., the district court found that plaintiff had failed to state a claim against Dr.

Lowery because the factual allegations failed to establish that he acted under

color of state law in the matters related to plaintiff’s allegations. Because state

action is a necessary element of a § 1983 action, the complaint was dismissed for


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failure to state a claim against both Dr. Lowery and Psychiatric Associates, Inc.

      The Honorable Roger H. Stuart, Special Judge of Oklahoma County,

Oklahoma, presided over the plaintiff’s parental rights termination hearing. The

district court correctly determined that Judge Stuart is entitled to absolute

immunity from § 1983 liability under these circumstances. See, e.g., Hunt v.

Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994). The district court further found

that plaintiff was not entitled to injunctive relief under the circumstances of this

case where there is no legitimate claim that a constitutional violation was

committed.

      Finally, defendant James L. Percival was an attorney appointed to represent

McAlister’s two minor children, John Eric McAlister and Jeffrey Scott McAlister,

in the court action in the juvenile division of the Oklahoma County district court

that resulted in plaintiff’s parental rights being terminated in March of 1995. At

all relevant times, Percival was acting as a private attorney in his representation

of the minors. The district court found that the claims against defendant Percival

were not cognizable because he was not acting under color of state law at the time

that he represented the minor children. Further, the district court found that there

was no contention that defendant Percival acted in concert with the state to

deprive plaintiff of a particular constitutional right. The district court therefore

dismissed the action against Percival sua sponte for failure to state a claim.


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      A review of the pleadings and record in this case makes clear that the

plaintiff has failed to state a claim against any of the defendants. No

constitutional violation has been asserted against a person who acted under color

of state law or acted in concert with the state. We affirm all of the orders of the

district court against all of the defendants in this matter for substantially the

reasons given by the district court. AFFIRMED.

                                         ENTERED FOR THE COURT,



                                         Deanell Reece Tacha
                                         Circuit Judge




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