                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     June 20, 2008
                    UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 MYOUN L. SAWYER,

               Plaintiff-Appellant,                      No. 08-3066
          v.                                             (D. of Kan.)
 JEROME A GORMAN, District                       (D.C. No. 08-CV-3015-SAC)
 Attorney, Wyandotte County District
 Attorney’s Office; JOHN J.
 McNALLY, District Court Judge,
 Wyandotte County District Court;
 KATHLEEN COLLINS, Clerk of the
 District Court, Wyandotte County
 District Court; and JAN A. WAY,
 Magistrate Judge, Wyandotte County
 District Court,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **




      *
         This order and judgment is not binding precedent except under the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.
      Myoun L. Sawyer appeals the district court’s sua sponte dismissal of his

pro se complaint. 1 In the complaint, Sawyer alleged Defendants—a prosecutor, a

court clerk, and two state court judges—violated several of his constitutional

rights in the course of prosecuting him on misdemeanor charges. In his 42 U.S.C.

§ 1983 complaint, Sawyer requested monetary damages and release from

incarceration. Because Sawyer proceeded in forma pauperis (IFP) and was

subject to 28 U.S.C. § 1915(e)(2)(B)(iii) requirements, the district court sua

sponte dismissed his complaint for monetary damages based on Defendants’

absolute immunity. The court also dismissed without prejudice Sawyer’s request

for release from confinement, concluding such relief was unavailable in a § 1983

action.

      We agree with the district court’s reasoning and therefore DISMISS this

appeal.

                                  I. Background

      In November 2006, Sawyer was charged with eight misdemeanor counts of

lewd and lascivious behavior. Kan. Stat. Ann. § 21-3508(a)(2). State court

Magistrate Judge Jan A. Way set bail for $25,000. In April 2007, District




      1
        Because Sawyer is proceeding pro se, we review his filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).

                                         -2-
Attorney Jerome A. Gorman amended the charges by removing the word

“publicly.” 2

       During pretrial proceedings, state District Court Judge John J. McNally

imposed several restrictions in response to Sawyer’s courtroom disturbance. The

docket reflects the following entry: “Due to outburst in courtroom[,] clerks office

is directed to accept no further pro se pleadings in the case[.] Sheriffs office is

directed to transport defendant to court with a gag in place until the trial of this

matter to a jury.” R., Doc. 1, Ex. 5. Pursuant to this order, Clerk Kathleen

Collins rejected Sawyer’s November 2007 pro se filing.

       The record does not tell us the outcome of Sawyer’s prosecution on the

eight counts of lewd and lascivious behavior. But in January 2008, Sawyer filed a

§ 1983 complaint, alleging Defendants violated his constitutional rights by

amending the charges against him, imposing an unreasonable bail, ordering that

he be gagged during pretrial proceedings, implementing filing restrictions, and

rejecting his pro se filings pursuant to the restrictions. Sawyer seeks monetary

damages against all Defendants as well as release from incarceration.


       2
         Kansas defines “[l]ewd and lascivious behavior” as, among other things,
“publicly exposing a sex organ or exposing a sex organ in the presence of a
person who is not the spouse of the offender and who had not consented thereto.”
Kan. Stat. Ann. § 21-3508(a)(2) (emphasis added). The disjunctive “or” appears
to separate two type of lewd and lascivious behavior: (1) publicly exposing a sex
organ and (2) exposing a sex organ in the presence of a person who is not the
spouse of the offender. The amendment thus clarified Sawyer was being charged
under the second type.

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                                  II. Discussion

      A. Dismissal Under § 1915(e)(2)(B)(iii)

      Sawyer proceeded IFP below and is thus subject to the requirements of 28

U.S.C. § 1915. Under § 1915(e)(2)(B)(iii), district courts must dismiss an IFP

complaint if it “seeks monetary relief against a defendant who is immune from

such relief.” Applying this requirement, the district court dismissed Sawyer’s

complaint because all Defendants were shielded from liability by absolute

immunity.

      “We review determinations of absolute immunity de novo.” Perez v.

Ellington, 421 F.3d 1128, 1133 (10th Cir. 2005). “Absolute immunity bars suits

for money damages for acts made in the exercise of prosecutorial or judicial

discretion.” Guttman v. Khalsa, 446 F.3d 1027, 1033 (10th Cir. 2006).

      Defendants are clearly protected by absolute immunity. First, state court

judges are absolutely immune from monetary damages claims for actions taken in

their judicial capacity, unless the actions are “taken in the complete absence of all

jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12 (1991). Sawyer’s allegations

against Judges McNally and Way—challenging the imposition of a $25,000 bail,

pro se filing restrictions, and an order that Sawyer be transported to court with a

gag in place—clearly implicate actions taken in the judges’ judicial capacity, and

also not in the absence of all jurisdiction. Judges McNally and Way are therefore

absolutely immune from Sawyer’s damages claim against them.

                                         -4-
      Second, “a prosecutor is entitled to absolute immunity for those actions that

cast him in the role of an advocate initiating and presenting the government’s

case.” Mink v. Suthers, 482 F.3d 1244, 1261–62 (10th Cir. 2007), cert. denied,

128 S. Ct. 1122 (2008). District Attorney Gorman’s amendment of criminal

charges against Sawyer by removing references to public conduct constituted

Gorman’s advocacy on behalf of the government. By challenging that action,

Sawyer asserts a claim for which Gorman is absolutely immune.

      Finally, “immunity which derives from judicial immunity may extend to

persons other than a judge where performance of judicial acts or activity as an

official aid of the judge is involved.” Whitesel v. Sengenberger, 222 F.3d 861,

867 (10th Cir. 2000) (quotation and brackets omitted). Absolute judicial

immunity has thus been extended to non-judicial officers, like clerks of court,

“where their duties had an integral relationship with the judicial process.” Id.

(quotation omitted). In rejecting, pursuant to a court order, Sawyer’s pro se

filing, Clerk Collins was acting “as an official aide of the judge,” Henriksen v.

Bentley, 644 F.2d 852, 855 (10th Cir. 1981), and is accordingly absolutely

immune from Sawyer’s damages claim.

      In sum, all Defendants are absolutely immune from monetary damages

alleged in Sawyer’s complaint.




                                         -5-
      B. Dismissal of § 1983 Complaint Seeking Release from Confinement

      The district court dismissed without prejudice Sawyer’s complaint to the

extent he sought release from confinement. Because “a prisoner in state custody

cannot use a § 1983 action to challenge the fact or duration of his confinement

[and] must seek federal habeas corpus relief (or appropriate state relief) instead,”

Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (quotation marks and citations

omitted), we agree with the district court’s decision. And while ordinarily a pro

se inmate’s § 1983 complaint, construed liberally, can be recharacterized as a

habeas petition under 28 U.S.C. § 2254, the inmate “may prefer to have his claim

dismissed . . . because of the potential consequences with respect to any § 2254

claim he may file in the future.” Davis v. Roberts, 425 F.3d 830, 834–35 (10th

Cir. 2005) (noting limitations on filing successive § 2254 petitions).

      Accordingly, the district court did not abuse its discretion in dismissing

without prejudice Sawyer’s request for release from confinement, which he might

be able to refile as a § 2254 petition.

                                  III. Conclusion

      For the foregoing reasons, we DISMISS Sawyer’s appeal.

                                                Entered for the Court

                                                Timothy M. Tymkovich
                                                Circuit Judge




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