                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               JAN 22 2004
                                      TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 ROBERT ROMERO; ROSE BAUER,

          Plaintiffs-Appellants,
 v.                                                          No. 03-1382
 BOULDER COUNTY DA’S OFFICE;                            (D.C. No. 03-Z-1163)
 BRYAN QUIRAM, D. D.A.,                                    (D. Colorado)

          Defendants-Appellees.




                                   ORDER AND JUDGMENT*


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


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

unanimously that oral argument would not materially assist 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.

      Plaintiffs Robert Romero and Rose Bauer, proceeding pro se, appeal the district

court’s grant of summary judgment in favor of defendants Bryan Quiram and the Boulder


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The 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.
County District Attorney’s Office. We exercise jurisdiction pursuant to 28 U.S.C. § 1291

and affirm.

                                              I.

       The relevant facts are undisputed. In September 1994, Romero was convicted of

two counts of sexual assault on a child and one count of sexual assault on a child with a

pattern of abuse. His conviction was affirmed on direct appeal. Romero filed a motion to

vacate and set aside judgment and for new trial pursuant to Colorado Rule of Criminal

Procedure 35(c), claiming ineffective assistance of trial counsel. The state trial court

vacated his conviction and granted a new trial on November 22, 2000. Quiram, the

district attorney in the case, appealed the ruling and the Colorado Court of Appeals

denied the appeal. The new trial was set for November 11, 2002. On November 7, 2002,

Quiram filed a motion to dismiss because the victim could not be located and was no

longer available, and the motion was granted.

       Plaintiffs filed this action in federal court pursuant to Colo. Rev. Stat. § 18-8-804,1

alleging defendants violated Romero’s due process rights when Quiram failed to notify

the courts of new evidence (a notarized recantation by the victim) in Romero’s state

criminal proceeding following sentencing, and that Bauer and other family members



       1
          Colo. Rev. Stat. § 18-8-804 states: “Each public entity which employs any peace
officer shall adopt policies or guidelines concerning the use of force by peace officers
which shall be complied with by peace officers in carrying out the duties of such officers
within the jurisdiction of the public entity.”

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suffered mental anguish, pain, and suffering. Plaintiffs alleged that Romero was

unnecessarily incarcerated for ten months and sought monetary damages. The district

court treated the complaint as a claim pursuant to 42 U.S.C. § 1983. The court

determined that Quiram was immune from suit under § 1983 and that both defendants

were entitled to Eleventh Amendment immunity from suit.

                                              II.

       Plaintiffs contend on appeal that Quiram failed to provide new evidence on a

timely basis. This allegation concerns an act that is “‘intimately associated with the

judicial process’ such as initiating and pursuing a criminal prosecution.” Snell v. Tunnell,

920 F. 2d 673, 686 (10th Cir. 1990) (quoting Imbler v. Pachtman, 424 U.S. 409, 430

(1976)). The Supreme Court has held that such acts, when executed in conjunction with a

state prosecutor’s initiation and pursuit of a criminal prosecution, are entitled to absolute

immunity. Imbler, 424 U.S. at 430. Therefore, Quiram is immune from suit in his

individual capacity.

       Moreover, the action is barred by the Eleventh Amendment as it pertains to

Quiram in his official capacity and the Boulder County District Attorney’s Office. See

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989). The district attorney is a

state officer under Colorado law. See Colo. Rev. Stat. § 20-1-101; Tisdel v. Bd. County

Comm’r, 621 P.2d 1357, 1361 (Colo. 1980). “[A]bsent an unmistakable waiver by the

state of its Eleventh Amendment immunity, or an unmistakable abrogation of such


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immunity by Congress, the amendment provides absolute immunity from suit in federal

courts for states and their agencies.” Ramirez v. Oklahoma Dep’t of Mental Health, 41

F.3d 584, 588 (10th Cir. 1994). See also Will, 491 U.S. at 70-71 (holding a state officer

is considered a state office or agency under the Eleventh Amendment when sued in his

official capacity). Here, the State of Colorado has not waived its Eleventh Amendment

immunity and congressional enactment of § 1983 did not abrogate Eleventh Amendment

immunity. See Quern v. Jordan, 440 U.S. 332, 341 (1979).

       AFFIRMED. Appellant’s motion to proceed in forma pauperis is denied.

                                          Entered for the Court

                                          Mary Beck Briscoe
                                          Circuit Judge




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