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

                                TENTH CIRCUIT                 October 23, 2014

                                                            Elisabeth A. Shumaker
                                                                Clerk of Court

DANNY E. BEAUCLAIR,

      Plaintiff - Appellant,

v.                                                   No. 14-3036
                                                     (D. Kansas)
MATTHEW J. DOWD, District Court            (D.C. No. 5:13-CV-03169-RDR)
Judge; GWYNNE E. HARRIS-BIRZER,
Attorney; WILLIAM K. RORK,
Attorney; JOHN A. FAKHOURY,
Attorney; PETER MAHARRY, Attorney;
LAWTON R. NUSS, Supreme Court
Judge; JON/JANE DOES, Supreme Court
Judges; CHRISTEL E. MARQUARDT,
Court of Appeals Judge; JERRY G.
ELLIOTT, Court of Appeals Judge;
HENRY W. GREEN, Court of Appeals
Judge; EVELYN Z. WILSON, District
Court Judge; SHAWN C. JURGENSEN,
Attorney; PATRICK D. McANANY,
Court of Appeals Judge; THOMAS
MALONE, Court of Appeals Judge; SAM
A. CROW, Federal Court Judge,

      Defendants - Appellees.



                                   ORDER


Before HARTZ, McKAY, and MATHESON, Circuit Judges.
       Plaintiff Danny Beauclair, proceeding pro se and in forma pauperis, brought an

action under 42 U.S.C. § 1983 against nine state and federal judges and five private

defense attorneys, alleging that his due-process rights were violated in various criminal

and postconviction proceedings in state and federal court. Although the complaint stated

that it was “not about the legality of Mr. Beauclair’s incarceration,” R., Vol. I. at 28 (full

capitalization omitted), it sought a declaratory judgment of his legal rights and the duties

of the defendants. The district court dismissed the claims. We have jurisdiction under 28

U.S.C. § 1291 and affirm.

       Mr. Beauclair filed his original complaint in the United States District Court for

the District of Kansas on September 30, 2013. On November 5 the district court ordered

Mr. Beauclair to show cause within 30 days why the complaint should not be dismissed

on the grounds (1) that private attorneys and federal judges are not state actors subject to

§ 1983 and (2) that there was no live case or controversy to support prospective relief

under § 1983. Mr. Beauclair filed a motion for clarification of the order and a request for

60 days to file a response. On November 22 the court denied the motions and entered

judgment, stating that the order to show cause “sufficiently outlined the well-established

law that barred plaintiff from seeking relief under § 1983 against the defendants.” Id. at

40.

       Three days later Mr. Beauclair filed a motion to alter and amend, which noted his

intent to file an amended complaint. He submitted a proposed amended complaint on

                                               2
November 27. On December 19 the district court entered an order permitting the

amended complaint to be filed but denying the motion to alter and amend, which it

construed as a motion under Fed. R. Civ. P. 59(e). Although the court recognized that

Mr. Beauclair had not been afforded the full 30 days to respond to the order to show

cause, it determined, after reviewing the proposed amended complaint, that there was “no

manifest error in the dismissal despite the premature termination of this matter.” Id. at

46.

       Mr. Beauclair filed a second proposed amended complaint on January 6, 2014,

asserting a single claim against Matthew J. Dowd, the state judge at his original trial, who

had also been named in the previous complaint. The district court denied the motion. On

January 15 Mr. Beauclair filed a motion to alter or amend, complaining of the dismissal

of the complaint against Judge Dowd. The court denied the motion.

       Mr. Beauclair’s notice of appeal lists all the district court’s rulings. It appears,

however, that his opening brief addresses only his claim against Judge Dowd. “The

failure to raise an issue in an opening brief waives that issue.” Anderson v. U.S. Dep’t of

Labor, 422 F.3d 1155, 1174 (10th Cir. 2005). Accordingly, we do not consider his

claims against the other defendants.

       We affirm. Judges are absolutely immune from civil liability for their judicial

acts, unless they act in the “clear absence of all jurisdiction.” Stump v. Sparkman, 435

U.S. 349, 357 (1978) (internal quotation marks omitted). Nothing in Mr. Beauclair’s

complaints suggests that Judge Dowd acted in the absence of jurisdiction when issuing
                                               3
the challenged rulings in Mr. Beauclair’s criminal trial. And insofar as Mr. Beauclair is

seeking prospective relief by challenging Judge Dowd’s rulings, the only possible

purpose for the challenge is as a means to attack his conviction, and § 1983 is not the

proper vehicle for that purpose. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

       We assess two strikes against Mr. Beauclair under the Prison Litigation Reform

Act, 28 U.S.C. § 1915(g), for his wholly meritless claim in district court and his frivolous

appeal. See Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 780–81

(10th Cir. 1999).

       We AFFIRM the judgment of the district court. Appellant’s motion to proceed on

appeal without prepayment of fees is DENIED and he is reminded of his obligation to

pay the full appellate filing fee.



                                          ENTERED FOR THE COURT



                                          Harris L Hartz
                                          Circuit Judge




                                             4
