                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                         August 31, 2006
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court

    M ICHA EL D . V A N D EELEN ,

              Plaintiff-Appellant,

     v.                                                    No. 05-3468
                                                   (D.C. No. 05-CV-2017-KHV)
    RO BERT FAIRCH ILD; ALLEN                                (D . Kan.)
    ADRIAN; STEVEN SIX, District
    Judges, Douglas County, Kansas;
    SHERRY BERN HA RD T,

              Defendants-Appellees.



                              OR D ER AND JUDGM ENT *


Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.




          Plaintiff M ichael Van Deelen filed this pro se action against defendants

Robert Fairchild, Adrian Allen, and Steven Six, district judges in Douglas

County, Kansas, and Sherry Bernhardt, an administrative assistant to 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Fairchild and Allen. M r. Van Deelen brought a claim under 42 U.S.C. § 1983 as

well as state-law claims for negligent supervision and defamation. The district

court granted the defendants’ motion to dismiss the federal-law claims and

declined supplemental jurisdiction over the state-law claims. M r. Van Deelen

appealed. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.

                                  BACKGROUND

      In 1997 M r. Van Deelen filed a federal lawsuit claiming that Paula M artin,

a Douglas County district judge who is not a party to this action, violated his civil

rights while presiding over a case in which he was a plaintiff. After the parties

settled the federal law suit, M r. Van Deelen became a party to other lawsuits in

Douglas County. His primary contention here is that in retaliation for his lawsuit

against Judge M artin and this lawsuit, the defendants have engaged in conduct in

connection with those other Douglas County cases designed to deprive him of his

constitutional rights.

      M r. Van Deelen makes the following allegations in his Amended and

Supplem ental Petition (the Amended Complaint), filed on June 15, 2005. First,

Judge Fairchild cancelled a case-management conference in Case No. 02C680

without cause or explanation.

      Second, M r. Van Deelen was denied his constitutional rights through a

series of actions taken in Case No. 04C566. Judge Jack M urphy, who is not a

party, recused himself three months after the case w as filed and one w eek before

                                          -2-
a scheduled hearing on M r. Van Deelen’s motion for default judgment. M r. Van

Deelen was notified of the recusal only by telephone and was provided with no

reason for it. After Judge M urphy recused himself, Judge Fairchild, who is the

administrative judge for Douglas County, reassigned the case to Judge Six, who

was newly appointed and not yet sworn in. After being informed that Judge

Fairchild had said that there was no timetable for swearing in Judge Six, M r. Van

Deelen spoke with Judge Fairchild’s assistant, M s. Bernhardt, in person on

January 10, 2005. She refused to give him any information about Judge Six and

denied him access to the court administrator. During that conversation Judge Six

happened to arrive for a meeting with Judge Fairchild. M r. Van Deelen

announced his intention to wait for Judge Six to leave and ask about his

availability. M s. Bernhardt informed him that unless he left she would call court

security to arrest him or escort him from the property, and she refused to take a

message for Judge Fairchild.

      W hen M r. Van Deelen called M s. Bernhardt the next day, he was informed

that Judges Fairchild and Six had determined not to give him any information

regarding Judge Six’s availability. M r. Van Deelen then indicated that he was

considering a civil-rights action against her and Judge Fairchild, and he asked

M s. Bernhardt to tell Judge Fairchild about it. The next day Judge Fairchild sent

a letter to M r. Van Deelen, saying: “Due to the conversation that took place

today between you and my administrative assistant, all communication between

                                         -3-
you and the court personnel in the Douglas County District Court should be in

writing.” R., Doc. 19, Ex. B.

          Third, M r. Van Deelen was denied his constitutional rights in Douglas

County Case No. 05LM 475. Shortly after Judge Six was sworn in on February 4,

2005, M r. Van Deelen was named as a defendant in that case, which was assigned

to Judge Six. M r. Van Deelen filed an answer and counterclaim, but the clerk, at

the direction of Judges Fairchild and Six, refused to serve the counterclaim.

Judge Six then recused himself, and the case was reassigned to Judge Allen, who

issued an order that the clerk “shall not issue summons [sic] at the request of

M ichael D. Van Deelen pending the further [order] of this court,” id., Doc. 19,

Ex. D .

          The A mended Complaint alleges that by delaying M r. Van Deelen’s

lawsuits and impeding his access to the court, the defendants’ conduct violated

his constitutional rights of freedom of assembly, freedom of association, freedom

of speech, due process, equal protection of the law, and equal access to the courts.

M r. Van Deelen also claims that M s. Bernhardt defamed him by falsely telling

Judge Fairchild that he had threatened the two of them w ith a civil-rights action

and that Judge Fairchild was negligent in his supervision of M s. Bernhardt. In his

prayer for relief M r. Van D eelen asks for $200,000 in compensatory damages,

$500,000 in punitive damages, and declarations that the defendants’ conduct




                                           -4-
violated his constitutional rights and unlawfully retaliated against him for the

exercise of those rights. He does not seek injunctive relief.

      The defendants filed a motion to dismiss for lack of subject-matter

jurisdiction and for failure to state a claim on which relief can be granted. They

also filed a motion to stay the case pending resolution of the motion to dismiss.

After the court granted the motion to stay, M r. Van Deelen moved to file a

supplemental complaint. A magistrate judge denied the motion to supplement

because of the stay order. M r. Van Deelen did not file any objections to the

magistrate judge’s order. This motion is not part of the record on appeal. The

district court then granted the defendants’ motion to dismiss the § 1983 claim on

Eleventh Amendment and judicial-immunity grounds, refused to consider M r. Van

Deelen’s requests for declaratory relief, and declined supplemental jurisdiction

over the state-law claims. This appeal followed.

                                    DISCUSSION

      W e need not address the district court’s ruling that the defendants are state

actors entitled to Eleventh Amendment immunity to the extent that M r. Van

Deelen seeks damages against them in their official capacities. Even construing

his pro se pleadings and other papers liberally, as we must, see Haines v. Kerner,

404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3

(10th Cir. 1991), w e are unable to find a challenge to this ruling on appeal.

Accordingly, M r. V an Deelen has waived this issue. See State Farm Fire & Cas.

                                          -5-
Co. v. M hoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (failure to raise an issue in

an opening appellate brief results in w aiver of that issue).

      Judicial immunity requires more discussion. The district court ruled that

the defendants are entitled to judicial immunity to the extent that M r. Van Deelen

seeks damages against them in their individual capacities. W e review de novo the

district court’s dismissal on the ground of judicial immunity. See Gagan v.

Norton, 35 F.3d 1473, 1475 (10th Cir. 1994). “[G]enerally, a judge is immune

from a suit for money damages.” M ireles v. Waco, 502 U.S. 9, 9 (1991) (per

curiam). The immunity applies to judicial acts, but not to “acts that simply

happen to have been done by judges.” Forrester v. White, 484 U.S. 219, 227

(1988). “[T]he factors determining whether an act by a judge is a ‘judicial’ one

relate to the nature of the act itself, i.e., whether it is a function normally

performed by a judge, and to the expectations of the parties, i.e., whether they

dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349,

362 (1978). “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 . . . .”

Id. at 356.

      The alleged conduct by the defendant judges satisfies both factors. In each

instance, M r. V an Deelen was dealing with the judges in their judicial capacities.

As for the specific actions, “scheduling a case for hearing is part of the routine

procedure in any litigated matter.” Thom pson v. Duke, 882 F.2d 1180, 1184

                                           -6-
(7th Cir. 1989). Thus, judicial immunity forecloses M r. Van Deelen’s claim

based on Judge Fairchild’s alleged failure to hold a hearing on the scheduled date.

See id. at 1184-85. Similarly, the recusal by Judge Six was a customary judicial

act and entitled to immunity, see Barrett v. Harrington, 130 F.3d 246, 258

(6th Cir. 1997) (“recusal is undoubtedly an act that concerns judicial

decision-making”), as was Judge Fairchild’s reassignment of one of M r. Van

Deelen’s cases to Judge Six, see M artinez v. Winner, 771 F.2d 424, 434 (10th Cir.

1985) (“the assignment of cases is . . . a judicial function in the sense that it

directly concerns the case-deciding process”), judgment vacated as moot,

800 F.2d 230 (10th Cir. 1986). Immunity also extends to Judge Fairchild’s letter

admonishing M r. Van Deelen to contact court personnel only in writing because it

arose as part of a chain of events set in motion by the case reassignment and

culminating in what Judge Fairchild apparently considered to be M r. Van

Deelen’s threatening or inappropriate contact with M s. Bernhardt. Efforts “to

protect the integrity of the judicial decision-making process” are judicial acts.

Barrett, 130 F.3d at 259 (letters written by judge to prosecuting authorities in

response to litigant’s threatening reaction to judicial actions are judicial acts).

Finally, Judge Allen’s order to the clerk of the Douglas County District Court not

to issue summonses on behalf of M r. Van Deelen until further order of the court

undoubtedly is a judicial act. See Forrester, 484 U.S. at 227 (there is little




                                           -7-
controversy in applying judicial immunity to the “paradigmatic judicial acts

involved in resolving disputes between parties”).

      As for M s. Bernhardt, “[i]mmunity which derives from judicial immunity

may extend to persons other than a judge where performance of judicial acts or

activity as an official aide of the judge is involved,” Henriksen v. Bentley,

644 F.2d 852, 855 (10th Cir. 1981). This immunity includes actions by a judge’s

clerks, servants, and agents when assisting in the discharge of judicial duties. See

Wiggins v. N.M . State Sup. Ct. Clerk, 664 F.2d 812, 815 (10th Cir. 1981).

M s. Bernhardt’s interactions with M r. Van Deelen were as an official aide or

agent of Judge Fairchild and in connection with the discharge of his judicial duty

to assign cases. Accordingly, she is entitled to derivative judicial immunity from

claims for damages against her in her individual capacity.

      M r. Van Deelen argues that “[a] judge is not entitled to immunity when he

retaliates against a litigant for engaging in protected conduct.” A plt. Opening Br.

at 21. He relies for support on Barrett. But the relevant aspect of that case

concerned a judge’s defamatory statements to the media, which were considered

nonjudicial actions and thus not protected by judicial immunity. See 130 F.3d at

260-61. In contrast, a judicial act is protected even if it “was in error, was done

maliciously, or was in excess of [the judge’s] authority.” Stump, 435 U.S. at 356.




                                          -8-
      M r. Van Deelen also attempts to distinguish the case authority relied on by

the district court. W e need not respond, however, because we have relied on

other cases.

      Next, we address M r. Van Deelen’s claim for declaratory relief. Judicial

immunity generally does not bar declaratory relief. See Schepp v. Fremont

County, Wyo., 900 F.2d 1448, 1452 (10th Cir. 1990). Nevertheless, there may be

other proper grounds for denying such relief. The district court exercised its

discretion to refuse to consider M r. Van Deelen’s request for a declaratory

judgment. See M hoon, 31 F.3d at 982-83 (discussing discretionary power). Our

review is for abuse of discretion. See id. at 983.

      A district court should consider a number of factors when deciding whether

to entertain a request for declaratory relief:

      [1] whether a declaratory action would settle the controversy; [2]
      whether it would serve a useful purpose in clarifying the legal
      relations at issue; [3] whether the declaratory remedy is being used
      merely for the purpose of procedural fencing or to provide an arena
      for a race to res judicata; [4] whether use of a declaratory action
      would increase friction between our federal and state courts and
      improperly encroach upon state jurisdiction; and [5] whether there is
      an alternative remedy which is better or more effective.

Id. (internal quotation marks omitted). The district court concluded that because

M r. Van Deelen seeks only retrospective declaratory relief, such relief would not

affect the present or future legal relations of the parties. The court also explained

its decision as based on a reluctance “to intrude into the basic operations of the



                                           -9-
Douglas County Court,” observing that a declaratory judgment would

“undoubtedly risk creating friction between [the two courts] by scrutinizing basal

day-to-day court operations,” R., Doc. 41 at 13-14.

      Although the declaratory relief sought by M r. Van Deelen may not be

purely retrospective, as there remains a possibility that Judge Fairchild’s letter

and Judge Allen’s order may have some effect on M r. Van Deelen’s future ability

to litigate in Douglas County District Court, we find no abuse of discretion in the

district court’s decision. Declaratory relief in this action would profoundly

encroach on the power of the Douglas County District Court to control the

litigation conduct of M r. Van Deelen. M oreover, it appears that M r. Van Deelen

has effective, probably superior, remedies available, such as moving in state court

for relief from any limitation he perceives in Judge Fairchild’s letter or Judge

Allen’s order, appealing to the Kansas court of appeals, or seeking a writ of

mandamus from the Kansas Supreme Court, see Alpha M ed. Clinic v. Anderson,

128 P.3d 364, 375 (Kan. 2006) (recognizing mandamus as possible procedural

mechanism to challenge an order of a district judge if it “threatens to deny a

litigant a right or privilege that exists as a matter of law and there would be no

remedy by appeal”).

      The district court also stated that its disposition would be unchanged even

if it considered M r. Van Deelen’s tendered supplemental complaint, which is not

part of the record but which, according to his appellate briefs, alleged that Judge

                                         -10-
Allen had pronounced that hearings in cases in which M r. Van Deelen is or might

be a plaintiff would not be on the record. W e agree. Accordingly, we need not

address M r. Van Deelen’s argument that the district court erred in denying his

motion to file a supplemental complaint.

      Finally, M r. Van Deelen has not challenged the district court’s decision to

decline supplemental jurisdiction over his state-law claims. Therefore, we do not

address that decision.

      The judgment of the district court is AFFIRM ED.


                                                    Entered for the Court



                                                    Harris L Hartz
                                                    Circuit Judge




                                        -11-
