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

                             FOR THE TENTH CIRCUIT                        November 6, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
KENT VU PHAN,

      Plaintiff - Appellant,

v.                                                         No. 17-1186
                                                  (D.C. No. 1:17-CV-01067-LTB)
CHRISTOPHER C. CROSS, Judge; JOHN                            (D. Colo.)
L. WHEELER, Judge; STEVEN A.
MICHALEK, Attorney; ELIZABETH J.M.
HOWARD, Attorney; DOUGLAS C.
WOLANSKE, Attorney,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.
                  _________________________________

      Proceeding pro se, 1 Kent Vu Phan appeals the district court’s dismissal of his

claims under 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the Americans with

Disabilities Act (ADA) of 1990, 42 U.S.C. §§ 12101–12213. We affirm.


      *
        After examining the brief and appellate record, this panel has determined
unanimously that oral argument wouldn’t materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment isn’t binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
      1
       We liberally construe pro se pleadings. But we won’t act as Phan’s advocate.
See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
       Phan filed two lawsuits in state court and received unfavorable judgments in

both. He later brought suit in federal district court against the presiding judges and

opposing counsel in those state-court actions. The district court sua sponte dismissed

Phan’s complaint after concluding that his claims were legally frivolous. See 28

U.S.C. § 1915(e)(2)(B) (requiring courts to dismiss actions or appeals brought in

forma pauperis (IFP) if they’re frivolous). It also denied Phan leave to proceed IFP

on appeal, finding the appeal wouldn’t be taken in good faith. See 28 U.S.C.

§ 1915(a)(3). Phan appeals. We review de novo the district’s court’s order dismissing

Phan’s complaint. See Vasquez Arroyo v. Starks, 589 F.3d 1091, 1094 (10th Cir. 2009).

       Phan first argues that the district court erred in dismissing his claims against

the state-court judges under the doctrine of judicial immunity. In most cases, judicial

immunity precludes litigants from suing judges in their official capacity. See Stump v.

Sparkman, 435 U.S. 349, 355–57 (1978). Immunity is only overcome in two

situations: (1) when judges act outside their official capacity, or (2) when they act

within their official capacity but do so “in the complete absence of all jurisdiction.”

Mireles v. Waco, 502 U.S. 9, 11–12 (1991).

       On appeal, Phan fails to argue that either of these situations occurred here.

Instead, he contends that he can sue the state-court judges because they acted “under the

color of state law” in their individual capacities. Aplt. Br. 11. We disagree; judicial

immunity applies to civil actions unless a judge acts without lawful jurisdiction. See

Stump, 435 U.S at 356–57. Thus, the district court properly found these claims to be

legally frivolous.

                                              2
       Next, Phan argues that the district court erred in dismissing his claims against the

attorney defendants because—according to Phan—the attorney defendants aren’t

“entitled [to] qualified immunity.” Aplt. Br. 12. But Phan mischaracterizes the district

court’s ruling. The district court didn’t cite the doctrine of qualified immunity as a basis

for dismissing Phan’s claims against the attorney defendants. Instead, it found these

claims to be legally frivolous because Phan failed to allege facts showing that the

attorney defendants (1) acted in concert with government officials under § 1983, (2)

retained a contractual relationship with him under § 1981, or (3) discriminated against

him because of his disability in one of the three areas of public life under the ADA. Phan

doesn’t challenge these conclusions. And because Phan “fails . . . to explain what was

wrong with the reasoning that the district court” actually relied on in dismissing his

claims against the attorney defendants, we affirm that portion of the district court’s order.

Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015).

       For the foregoing reasons, we affirm the district court’s order. As a final matter,

we deny Phan’s motion to proceed IFP because he fails to present a non-frivolous

argument. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (granting

IFP because “appellant [made] a rational argument on the law or facts in support of the

issues raised on appeal”).



                                               Entered for the Court


                                               Nancy L. Moritz
                                               Circuit Judge

                                              3
