                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          OCT 28 2004
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                               Clerk

 DWAYNE GARRETT,

               Plaintiff - Appellant,                   No. 04-6164
          v.                                      (D.C. No. 04-CV-320-C)
 GREGORY W. ALBERT, an                                  (W. D. Okla.)
 individual; Various unknown
 JOHN and/or JANE DOE(S),

               Defendants - Appellees.


                            ORDER AND JUDGMENT          *




Before BRISCOE , McKAY, and HARTZ , Circuit Judges.


      Plaintiff Dwayne M. Garrett appeals from the district court’s grant of

Defendant Gregory Albert’s motion to dismiss for failure to state a claim.

Plaintiff’s complaint alleges a claim under 42 U.S.C. § 1983 arising out of

Defendant’s conduct as a referee appointed by the Oklahoma Supreme Court.


      *
        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 case 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not binding precedent, except under the doctrines of law of the case, res judicata,
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.
Defendant asserts that he is entitled to judicial immunity. As did the district

court, we agree. We therefore affirm.

      A motion to dismiss is properly granted when it appears beyond doubt that

the plaintiff can prove no set of facts that would entitle him to relief. See Conley

v. Gibson, 355 U.S. 41, 45-46 (1957). We review the grant of a motion to dismiss

de novo. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236

(10th Cir. 1999).

      This case arises out of Plaintiff’s petition in the Oklahoma Supreme Court

seeking a writ of mandamus. The Supreme Court referred the petition to

Defendant as a referee. Plaintiff alleges that Defendant refused to allow a non-

lawyer to represent him, thereby denying him his right of access to the courts.

      The district court ruled that Defendant was acting in a judicial capacity

when, as referee, he denied Plaintiff’s request to be represented by a non-lawyer.

Citing our opinion in Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir.

2000), the court held that Defendant was therefore entitled to absolute judicial

immunity. We agree.

      For essentially the reasons stated by the district court, we AFFIRM. We

also DENY plaintiff’s motion to disqualify all judges of this court.

                                        ENTERED FOR THE COURT

                                        Harris L Hartz
                                        Circuit Judge

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