                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          APR 7 2000
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 KENNETH HILL,

          Petitioner - Appellant,
 v.
                                                        No. 99-6454
                                                 (D.C. No. 99-CV-1426-C)
 STATE OF OKLAHOMA; SUSAN
                                               (Western District of Oklahoma)
 CASSWELL, Oklahoma County
 District Judge; LISA HAMMOND,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.



      Kenneth D. Hill, a state prisoner appearing pro se, brought suit under 42

U.S.C. § 1983 against the State of Oklahoma, Lisa Hammonds, assistant district

attorney, and Judge Susan Casswell of the Oklahoma County District Court,

alleging that his constitutional rights were violated when he was not accepted into

the Oklahoma County Drug Court Program in contravention of his plea agreement


      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
with the State. The district court dismissed the claim as frivolous, holding that all

of the defendants are immune from suit, and counted the dismissal as a strike

under 28 U.S.C. § 1915(g). Exercising jurisdiction pursuant to 28 U.S.C. § 1291,

we dismiss Hill’s appeal as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

      Each of the three defendants named in this suit are immune from liability

under 42 U.S.C. § 1983. In general, the Eleventh Amendment bars suits in

federal courts against non-consenting States. See Seminole Tribe of Florida v.

Florida, 517 U.S. 44, 54 (1996). Because Oklahoma has not waived its Eleventh

Amendment immunity, see Okla. Stat. Ann. tit. 51 § 152.1, Hill’s claims against

the State are barred. Judge Casswell is entitled to absolute immunity for all acts

performed in her judicial capacity, see Hunt v. Bennett, 17 F.3d 1263, 1266 (10th

Cir. 1994), and is therefore immune from claims arising from her denial of Hill’s

motion to enforce his plea agreement. Finally, Hammonds’s decision to place Hill

on the regular criminal docket rather than in the drug court program was an action

“intimately associated with the judicial phase of the criminal process,” and

therefore she is entitled to absolute immunity from suits arising out of that

decision. Imbler v. Pachtman, 424 U.S. 409, 430 (1976); cf. Miller v. Barilla, 549

F.2d 648, 649 (9th Cir. 1977) (holding that a district attorney is immune from a §

1983 suit arising from the alleged breach of a plea agreement), overruled on other




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grounds by Glover v. Tower, 700 F.2d 556, 559 (9th Cir. 1983) (additional history

omitted).

      Our resolution of Hill’s claims should not be read as unsympathetic to the

serious due process concerns raised when a plea agreement is breached. See

Santobello v. New York, 404 U.S. 257, 262 (1971) (“[W]hen a plea rests in any

significant degree on a promise or agreement of the prosecutor, so that it can be

said to be part of the inducement or consideration, such promise must be

fulfilled.”). Rather, we simply hold that Hill cannot obtain the relief he seeks by

bringing a suit under § 1983 against the named defendants.

      Hill’s appeal not only lacks merit, it is also frivolous. The legal theory

upon which he chose to proceed is entirely without support, as should have been

apparent to him from the district court’s order. Both the district court’s dismissal

of his complaint as frivolous and our dismissal of his appeal on the same ground

count as “prior occasions” under 28 U.S.C. § 1915(g). See Jennings v. Natrona

County Detention Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999). In

addition, our review of Hill’s case history reveals he has already incurred at least

one strike. See Hill v. Oklahoma, CIV-99-665-C (W.D. Okla. Aug. 4, 1999). Hill

is advised that he is no longer entitled to proceed in forma pauperis in any civil

action or appeal from a judgment in a civil action, unless it involves “imminent

danger of serious physical injury.” 28 U.S.C. § 1915(g).


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      We remind Hill of his continuing obligation to pay all installments of the

deferred district court and appellate filing fees until they are paid in full. No

exception is made for dismissed appeals. See 28 U.S.C. § 1915(b)(2); Jennings,

175 F.3d at 781.

      This appeal is DISMISSED.

      The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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