                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAR 13 2000
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 BILL E. TUCKER, JR.,

          Plaintiff-Appellant,
 v.

 R.K. HOLLINGSWORTH, District
                                                        No. 99-3271
 Attorney of Sedgwick County;
                                                (D.C. No. CV-99-3098-GTV)
 SEDGWICK COUNTY, Political
                                                          (D. Kan.)
 subdivision of the State of Kansas;
 SEDGWICK COUNTY DISTRICT
 ATTORNEY, Prosecuting Attorney for
 Sedgwick County, Kansas,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      Plaintiff-Appellant Bill E. Tucker filed a pro se complaint seeking damages
for alleged violations of his civil rights pursuant to 42 U.S.C. § 1983. (See Doc.
1.) Tucker alleged that Defendants-Appellees R.K. Hollingsworth, District
Attorney of Sedgwick County, Kansas; the County of Sedgwick County, Kansas;


      *
       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
argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
and the Office of the District Attorney of Sedgwick County, Kansas maliciously
prosecuted, falsely imprisoned, and otherwise unlawfully and unconstitutionally
restrained his liberty in violation of his due process and equal protection rights.
(See id. at 2.) Tucker’s complaint arises from the fact that Tucker spent twenty-
six years in prison serving a sentence for a 1971 armed robbery conviction that
was eventually overturned on state collateral review. (See id.) The state
apparently set aside the conviction on the ground that the complaint and
information failed to include an essential element of the crime charged. (See id.
at 5.)
         The district court dismissed the complaint sua sponte pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) and (iii) after finding that the prosecutors were entitled to
absolute immunity and that Tucker had failed to state a cognizable claim against
Sedgwick County. (See Doc. 3.) Tucker sought reconsideration of the district
court’s order dismissing the complaint pursuant to Federal Rule of Civil
Procedure 59(e) (Motion to Alter or Amend the Judgment) and, in the alternative,
leave to file an appeal in forma pauperis. (See Doc. 5.) The district court denied
the motion for reconsideration but granted the motion for leave to proceed on
appeal in forma pauperis. 1 (See Doc. 9.) We review dismissals pursuant to §
1915(e)(2)(B)(ii) and (iii) de novo. See Perkins v. Kansas Dep’t of Corrections,
165 F.3d 803, 806 (10th Cir. 1999) (§ 1915(e)(2)(B)(ii)); Scott v. Harris, No.
98-3828, 1999 WL 506985 (6th Cir. June 10, 1999) (unpublished) (§


1
 Tucker filed a motion with this court on November 8, 1999 seeking leave to
proceed in forma pauperis on appeal. We need not rule on the motion because it
has been rendered moot by the judgment of the district court granting Tucker in
forma pauperis status. We wish to remind the appellant, however, that he has an
ongoing obligation to make partial payments toward the $105.00 filing fee in this
case.

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1915(e)(2)(B)(iii)). In determining immunity, we accept the allegations contained
in Tucker’s complaint as true. See Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct.
502, 505, 139 L. Ed. 2d 471 (1997).
      On appeal, Tucker argues that the district court erred in dismissing his
complaint against Hollingsworth because prosecutors are not absolutely immune
from suit. Tucker emphasizes that his conviction was overturned because the
court lacked jurisdiction to convict him due to the flawed complaint and
information. Citing Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed.
2d 331 (1978), Tucker asserts that judges are not immune from suit where they
lack jurisdiction and that, by analogy, prosecutors should also be denied immunity
under these circumstances.
      We decline to adopt Tucker’s reasoning. Although the Stump decision does
recognize that a judge is not entitled to immunity where he acts in the “clear
absence of jurisdiction,” the Court was careful to emphasize that a judge is
immune from suit where he has merely acted in excess of his jurisdiction. See id.
at 356-57 & n.7. The Court offered two examples to illustrate the difference
between acts taken in the clear absence of jurisdiction and acts taken in excess of
jurisdiction. See id. at 357 n.7. The Court explained that a probate judge who
only has jurisdiction over wills and estates would act in the clear absence of
jurisdiction were he to try a criminal case. See id. By contrast, the Court noted
that if a judge of a criminal court convicted a defendant of a nonexistent crime,
the judge would only be acting in excess of his jurisdiction and would be immune
from suit. See id. We find that the trial court that convicted Tucker in 1971
based on the defective information and complaint acted in excess of it jurisdiction
but did not act in the clear absence of jurisdiction. Thus, even assuming Tucker’s


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contention that a prosecutor should also be denied immunity where the trial judge
acts in the clear absence of jurisdiction is correct, we find that Hollingsworth
should not be denied immunity because the trial court was without subject matter
jurisdiction.
      We further find that Hollingsworth is entitled to absolute immunity under
traditional standards. The Supreme Court held in Imbler v. Pachtman, 424 U.S.
409, 410, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976), that a state prosecuting attorney
who acted within the scope of his duties in initiating and pursuing a criminal
prosecution is not amenable to suit under § 1983. The Supreme Court recently
reaffirmed the holding of Pachtman in Kalina v. Fletcher. Kalina, 118 S. Ct. at
506. Tucker correctly points out that the Supreme Court emphasized in Kalina
that a prosecutor is not always entitled to absolute immunity. In Kalina, the court
found that a prosecutor who executed, under penalty of perjury, a certification for
determination of probable cause was performing the function of a complaining
witness rather than an advocate and was therefore acting outside the scope of her
duties. See id. at 510. The present case is distinguishable from Kalina, however.
Although Hollingsworth may have failed to specify the crime with which Tucker
had been charged in the complaint and information, he was nonetheless acting
within the scope of his duties in initiating and pursuing a criminal prosecution
when he filed the complaint and information. We therefore agree with the district
court that Hollingsworth is entitled to immunity.
      Tucker also contends that the district court erred in dismissing his
complaints against Sedgwick County and the Sedgwick County District Attorney’s
Office. We disagree. In Monell v. Department of Social Services, 436 U.S. 658,
690 & n.54, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the Supreme Court held that


                                         -4-
§ 1983 applies to “local government units which are not considered part of the
State for Eleventh Amendment purposes.” See also Pembaur v. City of
Cincinnati, et al., 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986) (finding
that county may be held liable under § 1983). Thus, the county and district
attorney’s office are not immune from Tucker’s suit. Monell, however, requires
that the allegedly unconstitutional act must reflect “a government's policy or
custom” for the county or district attorney’s office to be liable. Monell, 436 U.S.
at 694. Tucker has not alleged that the prosecutor acted in accordance with a
policy or custom of the county or the district attorney’s office when the defective
complaint and information were filed.
      AFFIRMED.
      The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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