                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           SEP 1 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk




 BOLA AJIWOJU,

          Plaintiff-Appellant,
                                                       No. 99-3101
 v.
                                                 (D.C. No. 98-2573-GTV)
                                                        (Kansas)
 CAROL MARINOVICH, Mayor,
 Representative to Wyandotte County,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit 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 cause 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       This order and judgment is not binding precedent, except under the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, or 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.
      Bola Ajiwoju appeals the district court's orders (1) granting dismissal for

failure to state a claim against defendant Carol Marinovich in her capacity as

Mayor/CEO of the Unified Government of Wyandotte County (hereinafter Unified

Government) and (2) denying his motion to reinstate Wyandotte County District

Judge George A. Groneman as a defendant. We affirm.

      Mr. Ajiwoju filed suit against his former employer, the Housing Authority

of Kansas City, Kansas, in the district court of Wyandotte County, Kansas,

claiming breach of contract, retaliatory and discriminatory discharge, and

violation of 42 U.S.C. § 1981. In a memorandum decision, Wyandotte County

District Judge George A. Groneman granted the Housing Authority’s motion for

summary judgment on all the claims. The Kansas Court of Appeals dismissed Mr.

Ajiwoju’s appeal.

      Mr. Ajiwoju then filed suit in the United States District Court for the

Western District of Missouri, naming as defendants Judge Groneman and Carol

Marinovich in her capacity as Mayor/CEO of the Unified Government of

Wyandotte County. The court held that Judge Groneman was entitled to judicial

immunity and dismissed him from the suit. The court then held that venue was

improper and transferred the case to the District of Kansas.

      The district court in Kansas refused to reinstate Judge Groneman as a

defendant, citing judicial immunity. The court dismissed the remaining claim


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against the Unified Government after finding that Mr. Ajiwoju failed to plead any

basis for assessing liability against that entity.

      On appeal, Mr. Ajiwoju contends that judicial immunity cannot protect

Judge Groneman because his grant of summary judgment in favor of the

defendants was entered in bad faith as part of a conspiracy to deprive Mr. Ajiwoju

of relief. Judicial immunity is an absolute immunity from civil damages liability

for acts performed in a judge’s judicial capacity. See Mireles v. Waco, 502 U.S.

9, 11 (1991) (per curiam). “[J]udicial immunity is not overcome by allegations of

bad faith or malice.” Id.; see also Harris v. Champion, 51 F.3d 901, 906 (10th

Cir. 1995) (immunity for allegations of excessive conduct). Because Judge

Groneman’s order constituted a judicial act, the district court properly invoked

absolute immunity in refusing to reinstate a claim against him.

      Mr. Ajiwoju also appeals the dismissal of his complaint for failure to state

a claim pursuant to Fed.R.Civ.P 12(b)(6). We review de novo a dismissal for

failure to state a claim. See Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 854 (10th

Cir.1996). Although we must construe a pro se plaintiff's complaint liberally, we

do not accept as true those allegations that are conclusory or fanciful in nature.

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

        Mr. Ajiwoju first argues that liability can be assessed against the Unified

Government because it is vicariously liable for Judge Groneman. Under Kansas


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law, “[v]icarious liability depends upon the relationship of the parties, such as

employer and employee or principal and agent.” St. Paul Fire & Marine Ins. Co.

v. Tyler, 974 P.2d 611, 615 (Kan.Ct.App. 1999). Whether an agency relationship

exists turns on the degree of power and control the principal exerts over the agent.

See Major v. Castlegate Inc., 935 P.2d 225, 228 (Kan.Ct.App. 1997) (agency

relationship in respondeat superior context); McDonnell v. The Music Stand, Inc.,

886 P.2d 895, 898, 899 (Kan.Ct.App. 1994) (vicarious liability).

As a state district court judge, Judge Groneman was employed and compensated

by the State of Kansas, not by the local government. See Kan. Stat. Ann. 75-

3120g (1997). The fact the Unified Government provided quarters for holding

court, see Kan. Stat. Ann. 20-613a (1995), does not give it control over the

decisions of the court. Because the Unified Government had no meaningful

control, power or responsibility over Judge Groneman, it cannot be held

vicariously liable for his decisions.

      Next, Mr. Ajiwoju asserts the Unified Government is liable for conduct of

the Housing Authority. Kansas law, however, clearly states that the Housing

Authority is a separate suable entity. Kan. Stat. Ann. 17-2340 (1995) (“Such

housing authority shall have the power to sue and be sued.”) Mr. Ajiwoju points

to no evidence to the contrary. Because Mr. Ajiwoju fails to state a legal theory




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on which to base a claim against the Unified Government, his complaint was

properly dismissed.

      We AFFIRM the judgment of the district court.



                                     ENTERED FOR THE COURT


                                     Stephanie K. Seymour
                                     Chief Judge




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