                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                           July 31, 2018
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
JAMES MICHAEL ALVIS,

     Plaintiff - Appellant,

v.                                                        No. 18-6032
                                                   (D.C. No. 5:17-CV-01310-R)
LELAND W. SCHILLING,                                      (W.D. Okla.)

     Defendant - Appellee.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________

      James Alvis appeals the district court’s dismissal of his complaint against

Leland Schilling. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                          I

      Schilling is a state-court judge for the District Court of McClain County,

Oklahoma. He presided over the divorce proceedings between Alvis and his former

spouse. In April 2016, Alvis’s ex-spouse filed a motion for an emergency order

seeking full custody of the couples’ children. A hearing was held, at which two

      *
        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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Oklahoma Department of Human Services employees testified that they did not

believe there was an emergency in the home. The hearing was continued, and when

it resumed, Schilling heard in camera testimony from one of the children. Alvis’s

counsel was not permitted to be present or cross-examine the child. Following this

testimony, Schilling granted an emergency custody order.

      Schilling received a thank you card from the child who had testified in camera.

He disclosed receipt of the card to counsel for both parties and placed the card in the

record. Alvis requested Schilling recuse, and later filed a motion to disqualify.

While the motion was pending, Schilling entered a sua sponte summary order to seal

the entire record regarding the hearing. Alvis’s disqualification motion was denied,

as was a motion to reconsider.

      Alvis subsequently sought relief from the Oklahoma Supreme Court in a

further effort to disqualify Shilling. That court entered an order directing Schilling to

vacate all orders sealing the transcripts, and all orders entered after Alvis made his

motion to disqualify. It further ordered Schilling to recuse.

      Alvis brought suit in federal district court under 42 U.S.C. § 1983, arguing that

Schilling prevented him from associating with his children in violation of his

constitutional rights. He alleges that he was prohibited from seeing his children

between the filing of the emergency order in April 2016 and Shilling’s removal from

the case in November 2016. Schilling filed a motion to dismiss based on judicial

immunity, which the district court granted. Alvis timely appealed.



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                                            II

      “We review a district court’s dismissal under Rule 12(b)(6) de novo.” Burnett

v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). “We

accept as true all well-pleaded factual allegations in the complaint and view them in

the light most favorable to the plaintiff.” Id.

      We affirm the district court’s conclusion that Schilling is absolutely immune.

“[A] state judge is absolutely immune from § 1983 liability except when the judge

acts in the clear absence of all jurisdiction,” Hunt v. Bennet, 17 F.3d 1263, 1266

(10th Cir. 1994) (quotation omitted), or engages in non-judicial actions, Mireles v.

Waco, 502 U.S. 9, 11 (1991). Alvis does not dispute that Schilling’s actions during

the proceedings were judicial in nature—that is, that they were “function[s] normally

performed by a judge.” Stump v. Sparkman, 435 U.S. 349, 362 (1978).

      Rather, Alvis argues that Schilling acted without jurisdiction. An act done in

the complete absence of jurisdiction is distinct from an act done in excess of

jurisdiction. See Mireles, 502 U.S. at 13. For the purposes of immunity, jurisdiction

must be construed broadly. Stump, 435 U.S. at 356. “A judge will not be deprived

of immunity because the action he took was in error, was done maliciously, or was in

excess of his authority; rather, he will be subject to liability only when he has acted

in the clear absence of all jurisdiction.” Id. at 356-57 (quotation omitted)

      Viewing the complaint in the light most favorable to Alvis, we conclude that

although Schilling may have exceeded his jurisdiction, he did not act in complete

absence of that jurisdiction. Schilling, a trial judge on a state court, unquestionably

                                            3
had jurisdiction over the subject matter before him: the divorce between Alvis and

his ex-spouse and the associated awarding of custody of the couple’s children. Okla.

Const. art. 7, § 1; see also Bradley v. Fisher, 80 U.S. 335, 352 (explaining that where

a court has proper jurisdiction, the “manner and extent” of that jurisdiction are

properly determined by the court). We therefore rule that any error in Schilling’s

analysis of the scope of his jurisdiction does not deprive him of immunity from suit.

Mireles, 502 U.S. at 13.

                                          III

      For the foregoing reasons, we AFFIRM the district court’s dismissal of

Alvis’s complaint.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




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