                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES COURT OF APPEALS                 April 5, 2013
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court



 ROBERT DAVID DUNN,

               Plaintiff-Appellant,                      No. 12-6222
          v.                                           (W.D. of Okla.)
 HARPER COUNTY, GEORGE H.                       (D.C. No. 5:12-CV-00587-HE)
 LEACH, Judge, CRIEG
 RITTENHOUSE, Assistant District
 Attorney for Harper County, HENRY
 A. MEYER, III, Counsel, TWILA
 EASTERWOOD, Court Clerk; LINDA
 CROUCH, Deputy Court Clerk,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL and TYMKOVICH, 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         This order and judgment is not binding precedent except under the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.
      Robert David Dunn, an Oklahoma prisoner proceeding pro se, 1 appeals the

district court’s dismissal of his civil rights suit alleging a conspiracy to imprison

him for longer than the terms outlined in his plea agreement. He has also moved

to proceed with this appeal in forma pauperis.

      Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district

court’s dismissal of this suit, deny Dunn’s renewed motion to proceed in forma

pauperis, and assess Dunn two strikes pursuant to 28 U.S.C. § 1915(g). 2

                                 I. Background

      Twenty-one years ago Dunn pleaded guilty to two counts of rape and two

counts of sodomy. He received concurrent life sentences for the two rape counts

and concurrent twenty-year sentences for the two sodomy counts. The sentences

for rape and sodomy were to be served consecutively to each other. 3




      1
         Because Dunn is proceeding pro se, we construe his pleadings liberally.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner,
404 U.S. 519, 520–21 (1972)).
      2
         Dunn previously filed a habeas petition raising essentially the same
allegations as here, which we dismissed as untimely. See Dunn v. Parker, 389 F.
App’x 787 (10th Cir. 2010), cert. denied, 131 S. Ct. 1051, reh’g denied, 131 S.
Ct. 1722 (2011). He has filed a second habeas petition which we have similarly
dismissed in an order also issued today. See Dunn v. State of Oklahoma, No. 12-
6280 (10th Cir. April 5, 2013).
      3
         Although it is not entirely clear from the record, Dunn also appears to
have pleaded guilty to two charges of child sexual abuse resulting in two one-year
sentences to run concurrently with the two life sentences that Dunn received for
the rape convictions.

                                          -2-
      Relying upon 42 U.S.C. § 1983, in this case Dunn sued nearly everyone

involved in his sentencing—the judge, various clerks of the court, the assistant

district attorney, the municipality where he was charged and sentenced, and his

appointed defense attorney—alleging that all these actors had conspired to extend

his term of imprisonment beyond what was contemplated by the original plea

agreement. Although Dunn’s reasoning is difficult to follow, he suggests that,

under the terms of his plea agreement, he was to serve his life sentences for the

rape charges first and the sentences for sodomy second. Yet because the district

court listed the sodomy sentence first, Dunn argues that he will somehow serve a

longer sentence, in contravention of the plea agreement and in violation of his

right to due process.

      Pursuant to 28 U.S.C. § 1915A(b)(1) and (2), the district court dismissed

Dunn’s complaint, reasoning that it was barred under the doctrine announced by

the Supreme Court in Heck v. Humphrey, 512 U.S. 477 (1994), which precludes

recovery of damages under § 1983 unless the plaintiff can prove that the

conviction or sentence has been reversed or otherwise declared invalid. Further,

the court noted that, even absent the Heck bar, most of the defendants named in

the suit were entitled to absolute immunity because they were acting in their

capacities as prosecutors, clerks, or judges, and Dunn relied on nothing more than

conclusory allegations to suggest that they would not enjoy such immunity.

Finally, as to the claims against the municipality and Dunn’s defense attorney, the

                                         -3-
district court dismissed the claims because of Dunn’s failure to allege facts

sufficient to show that these actors were even liable under § 1983.

      After the district court dismissed Dunn’s suit, he requested certification to

appeal in forma pauperis. The district court denied the request on the ground that

the appeal was frivolous. Dunn appealed anyway, reiterating allegations before

this court that the defendants violated his due process rights by conspiring to

reverse the sequence of his sentences. He also argues for the first time on appeal

that the defendants have violated his right to equal protection by making him

serve the sentences in this particular order while allowing others to serve their

sentences in a different manner. Finally, he renews his request to proceed in

forma pauperis.

                                   II. Analysis

      As an initial matter, we decline to reach Dunn’s claims against Harper

County and his equal protection claim. Dunn has waived his claim against Harper

County by failing to dispute the district court’s conclusion that Dunn had failed to

allege a “municipal policy, practice, or custom” causing him injury. Further,

Dunn raises an equal protection claim for the first time on appeal but fails to

articulate any reason why this court should sway from the “general rule that we

do not address arguments presented for the first time on appeal.” United States v.

Mora, 293 F.3d 1213, 1216 (10th Cir. 2002).



                                         -4-
      As to the claims against the remaining parties to the plea agreement, we

review the district court’s sua sponte dismissal de novo because it turned on a

matter of law. See Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006).

Further, because absolute immunity is properly viewed as “immunity from suit

rather than a mere defense to liability,” Mitchell v. Forsyth, 472 U.S. 511, 526

(1985), when feasible, we have held that it is appropriate to resolve a question of

whether absolute immunity applies before addressing whether Heck dictates

dismissal without prejudice. See, e.g., Jiron v. City of Lakewood, 392 F.3d 410,

413–14 (10th Cir. 2004) (citing Mitchell). Thus, we address the question of

whether the defendants are immune from suit before addressing Heck’s potential

application.

      We agree with the district court that the judge, court clerks, and prosecutor

are all entitled to absolute immunity under well-established precedent from the

Supreme Court and this court. See Harlow v. Fitzgerald, 457 U.S. 800, 807

(1982) (absolute immunity for judges acting in their judicial capacity); Imbler v.

Pachtman, 424 U.S. 409, 430 (1976) (same for prosecutors during the “judicial

phase of the criminal process”); Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1247

(10th Cir. 2007) (same for court clerks in the “discharge of judicial functions”).

Dunn offers only conclusory allegations of extra-official behavior, asserting that a

conspiracy can be inferred from the defendants’ assent to his guilty plea. These

bald assertions are insufficient to strip these defendants of absolute immunity.

                                         -5-
      Further, it is well established that neither private attorneys nor public

defenders act under color of state law for purposes of § 1983 when performing

their traditional functions as counsel to a criminal defendant. See Polk County v.

Dodson, 454 U.S. 312, 325 (1981); Barnard v. Young, 720 F.2d 1188, 1189 (10th

Cir. 1983); see also Ellibee v. Hazlett, 122 F. App’x 932, 934 (10th Cir. 2004).

While a private actor who conspires with a judge to deprive someone of a

constitutional right can be acting under color of state law, see Dennis v. Sparks,

449 U.S. 24, 28–29 (1980), a plaintiff pursuing such a theory of liability must

rely on something more than conclusory allegations to state such a cause of

action. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

      Finally, while dismissal without prejudice is normally appropriate for

failure to plead a cause of action with sufficient specificity, dismissal with

prejudice is proper “when it is patently obvious that the plaintiff could not prevail

on the facts alleged, and allowing him an opportunity to amend his complaint

would be futile.” Curley v. Perry, 246 F.3d 1278, 1281–82 (10th Cir. 2001)

(internal quotation marks and citation omitted).

      Here, Dunn relies on nothing more than baseless assertions that his defense

attorney conspired with court personnel and prosecutors to deprive him of his

constitutional rights. Such assertions do not pass muster under Iqbal, and

allowing Dunn the opportunity to amend his claim would prove futile. We




                                          -6-
therefore agree with the district court that the claim should be dismissed with

prejudice.

      It is also clear, as the district court reasoned, all of Dunn’s claims are

barred by Heck, 512 U.S. at 486–87. Under Heck, criminal defendants seeking

economic damages for alleged unconstitutional imprisonment who cannot show

their sentences have been invalidated are not entitled to relief under § 1983. Yet

Dunn is a criminal defendant seeking economic damages under this statute and

cannot point to any rule allowing him to escape this obstacle to relief. The claim

therefore fails.

      Even if a prisoner is not proceeding in forma pauperis, “dismissal under

§ 1915A counts as a strike [under § 1915(g)] when the action was dismissed as

frivolous, malicious, or for failure to state a claim, the same grounds listed in

§ 1915(g).” Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1177 (10th Cir.

2011). A claim barred by Heck is frivolous and counts as a strike under

§ 1915(g). Davis v. Kan. Dep’t of Corr., 507 F.3d 1246, 1249 (10th Cir. 2007).

A district court’s reliance on additional grounds for dismissal beyond Heck does

not prevent a dismissal under Heck from counting as a strike. Smith v. Veterans

Admin., 636 F.3d 1306, 1312 (10th Cir. 2011). If we affirm the district court’s

dismissal on strike-worthy grounds and find the appeal frivolous, we should

assess two strikes total. Davis, 507 F.3d at 1249.




                                          -7-
       We also agree that Dunn’s claims would be dismissed under Heck and

additional grounds, so we determine that Dunn should be assessed one strike for

the district court’s dismissal. Because Dunn’s claims were based on an

indisputably meritless legal theory and his appeal is based on his conclusory

rejection of the district court’s dismissal, we determine Dunn’s appeal to be

frivolous and accordingly assess him a second strike.

                                III. Conclusion

       Based on the foregoing analysis, we AFFIRM the district court’s dismissal

of this suit, DENY Dunn’s motion to proceed in forma pauperis, ASSESS Dunn

two strikes pursuant to § 1915(g), and REMIND Dunn that his filing fee must be

paid in full.

                                               ENTERED FOR THE COURT

                                               Timothy M. Tymkovich
                                               Circuit Judge




                                         -8-
