                      UNITED STATES COURT OF APPEALS
Filed 1/9/97
                             FOR THE TENTH CIRCUIT



    CECIL E. HICKS,

                Plaintiff-Appellant,

    v.                                                    No. 96-7034
                                                    (D.C. No. CV-95-223-S)
    HONORABLE DOYLE E. BLYTHE,                            (E.D. Okla.)
    Associate District Judge, Pushmataha
    County, State of Oklahoma,

                Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before EBEL and HENRY, Circuit Judges, and DOWNES, ** District Judge.


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

unanimously to grant the parties’ request for a decision on the briefs without oral




*
      This order and judgment is not binding precedent, except under the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.
**
       Honorable William F. Downes, District Judge, United States District Court
for the District of Wyoming, sitting by designation.
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiff appeals the district court’s entry of summary judgment in favor of

defendant on the ground that defendant is absolutely immune from plaintiff’s

damages claims for the alleged deprivation of his liberty without due process.

Plaintiff alleged the following facts in his complaint: After a felony criminal

information was filed against him in Oklahoma and he posted an appearance bond

in the amount of $7,500, he appeared before defendant, an associate district court

judge, for a preliminary examination. Pursuant to Oklahoma statute, defendant

conducted the hearing in his capacity as a magistrate. See Okla. Stat. tit. 22,

§§ 162, 258. At the conclusion of the hearing, defendant entered a bindover

order, having concluded there was probable cause to believe plaintiff had

committed certain felonies. Defendant then sua sponte increased plaintiff’s bail

to $20,000, based on his conclusion that plaintiff might attempt to intimidate

witnesses and to flee the jurisdiction. Because plaintiff could not post the

increased bail, he was remanded to the custody of the sheriff, where he remained

for ten days. Plaintiff ultimately secured a writ of habeas corpus from another

judge, who determined that defendant had no jurisdiction to increase the bond

after entry of the bindover order.




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      “[G]enerally, a judge is immune from a suit for money damages.” Mireles

v. Waco, 502 U.S. 9, 9 (1991)(per curiam). The Supreme Court has recognized

only two exceptions to this immunity from suit: (1) “a judge is not immune from

liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial

capacity;” and (2) “a judge is not immune for actions, though judicial in nature,

taken in complete absence of all jurisdiction.” Id. at 11-12. At issue here is the

applicability of the second exception to the judicial immunity doctrine.

      Under Oklahoma law, “[t]he district courts . . . are the successors to the

jurisdiction of all other courts . . . in civil matters and proceedings for the

violation of state statutes.” Okla. Stat. tit.20, § 91.1. “Therefore, when a

[criminal] case is filed, the District Court has jurisdiction and pursuant to 22 O.S.

§ 162, at that point in time a Judge of the District Court, an Associate Judge

thereof, or the Special Judge may act as magistrate.” Day v. Freeman, 792 P.2d

1193, 1194 (Okla. Crim. App. 1990). A magistrate has various powers and duties,

including the power to issue an arrest warrant, Okla. Stat. tit. 22, § 171, and,

subsequent to arrest, the duty to advise a defendant of his rights, id. § 251, to set

bail, id. § 178, and to conduct a preliminary examination in a felony case, id.

§§ 253, 258.

      “The purpose of the preliminary hearing is to establish probable cause that

a crime was committed and probable cause that the defendant committed the


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crime.” Id. § 258. At the conclusion of the preliminary hearing, if the magistrate

determines there is “sufficient cause” to believe that the defendant committed any

crime, then the magistrate must enter an order binding the defendant over on

those offense which the magistrate finds to be supported by probable cause. Id.

§ 264. If the offense on which the defendant is being bound over is bailable, but

the magistrate does not take the defendant’s bail, he must add a statement to the

bindover order setting forth the amount of bail to which the defendant has been

admitted and committing the defendant to the custody of the sheriff until that bail

is paid. Id. § 267. A magistrate has authority to increase the bail originally set,

id. § 1109, and a district court judge, sitting as the trial judge, has a similar

authority after the preliminary hearing, see id.; In re Humphrey, 601 P.2d 103,

108 (Okla. Crim. App. 1979). Once a magistrate enters a bindover order, the

district court, as trial court, obtains jurisdiction over the case, Claghorn v. Brown,

505 P.2d 998, 1002 (Okla. Crim. App. 1973), and the magistrate loses

jurisdiction. The district judge who conducts the preliminary hearing cannot

thereafter try the case unless all parties give their consent. Okla. Stat. tit. 22,

§ 576.

         With these principles of Oklahoma law in mind, we turn to the question of

defendant’s immunity for alleged wrongdoing in sua sponte increasing plaintiff’s

bail after binding plaintiff over on felony charges. “[T]he scope of the judge’s


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jurisdiction must be construed broadly where the issue is the immunity of the

judge.” Stump v. Sparkman, 435 U.S. 349, 356 (1978). Neither a judge’s

“commission of grave procedural errors,” id. at 359, nor his action “in excess of

his authority,” id. at 356, will deprive the judge of immunity. We have held that a

judge acts in the clear absence of all jurisdiction when he “acts clearly without

any colorable claim of jurisdiction.” Snell v. Tunnell, 920 F.2d 673, 686 (10th

Cir. 1990); see also Lerwill v. Joslin, 712 F.2d 435, 438 (10th Cir. 1983)(“A

judge is absolutely immune from a section 1983 suit for damages only for (a)

judicial acts (b) for which the judge has at least a semblance of subject matter

jurisdiction.”).

      The Eighth Circuit has succinctly illustrated the distinction between

judicial actions taken in excess of jurisdiction and those taken in the complete

absence of all jurisdiction as follows: “a judge acts in excess of jurisdiction if the

act complained of is within his general power of jurisdiction but is not authorized

because of certain circumstances,” whereas “there is a clear absence of

jurisdiction when a court of limited jurisdiction attempts to adjudicate a case

outside of its jurisdiction, such as when a probate court conducts a criminal trial.”

Duty v. City of Springdale, 42 F.3d 460, 462 (8th Cir. 1994)(quotations omitted);

see also Stump, 435 U.S. at 357 n.7; Chu ex rel. Chu v. Griffith, 771 F.2d 79, 81

(4th Cir. 1985)(“There is no [absolute] immunity, of course, if the judge


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undertakes to act in an area where he has no subject matter jurisdiction, but it is

immaterial that his challenged judicial act may have been unauthorized by the

laws which govern his conduct.”).

      Even if we assume that defendant lacked authority to increase plaintiff’s

bail under the particular circumstances presented here, Oklahoma law would

authorize him to increase plaintiff’s bail under other circumstances, as discussed

above. Therefore, defendant’s actions were, at most, taken in excess of his

authority, not in the complete absence of all jurisdiction, see Duty, 42 F.3d at

463; Billingsley v. Kyser, 691 F.2d 388, 389-90 (8th Cir. 1982). Defendant is,

therefore, absolutely immune from plaintiff’s claim for damages.

      The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     William F. Downes
                                                     District Judge




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