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

                                     TENTH CIRCUIT                          October 13, 2015

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

    ELBERT KIRBY, JR.; CALEB
    MEADOWS,

          Plaintiffs - Appellants,

    v.                                                        No. 15-5045
                                                  (D.C. No. 4:15-CV-00156-GKF-FHM)
    DAVID M. O’DENS,                                        (N.D. Oklahoma)

          Defendant - Appellee.




                                ORDER AND JUDGMENT*


Before TYMKOVICH, Chief Judge, HARTZ and MORITZ, Circuit Judges.


         Elbert Kirby Jr. and Caleb Meadows (Appellants), proceeding in forma pauperis,

sued David O’Dens for defamation, slander, and libel in the United States District Court

for the Northern District of Oklahoma. The district court dismissed the action sua sponte



*
  After examining the brief and appellate record, this panel has determined unanimously
that oral argument would not 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 This order and judgment is not binding precedent, except under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.
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under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be

granted. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal.

       “We review de novo the district court’s decision to dismiss an IFP complaint

under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v. Bemis, 500 F.3d

1214, 1217 (10th Cir. 2007). Appellants premise their complaint on a statement made by

Mr. O’Dens while litigating an earlier case in the same federal district court. Their

complaint, however, does not describe the circumstances of Mr. O’Dens’s statement,

alleging only that he “published a public document viewable to the public quoting the

Plaintiffs were ‘control[ling] the state court judge,’ by the FDCPA action which was filed

by the Plaintiffs in this federal court.” Verified Compl. at 2, Kirby v. O’Dens, No. 4:15-

cv-00156-GKF-FHM (N.D. Okla. Apr. 1, 2015). In evaluating the sufficiency of the

complaint, we exercise our discretion to take judicial notice of publicly filed records in

that earlier case, Kirby v. O’Dens, No. 14-CV-388-JHP-PJC (N.D. Okla. 2015). See Gee

v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (“matters of which a court may take

judicial notice” may be used in deciding whether to dismiss for failure to state a claim

(internal quotation marks omitted)).

       The prior litigation alleged violations of federal consumer-protection laws arising

out of state-court foreclosure proceedings against property owned by Kirby and tenanted

by Meadows. Appellants had moved to compel discovery responses. In his response to

the motion, Mr. O’Dens wrote: “[T]he gravamen of [Appellants’] complaint is based

upon what they perceive as incorrect rulings by [the state judge] in the state court
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collection action. As expressed by Kirby at the scheduling conference, this action was

brought to ‘control the state court judge.’” Resp. to Mot. to Compel at 6, Kirby, No. 14-

CV-388-JHP-PJC, (N.D. Okla. Feb. 20, 2015). Appellants claim that Mr. O’Dens’s

statement about controlling the state judge was “libelous on its face” and “clearly exposes

the [Appellants] to hatred, contempt, ridicule and obloquy because it accuses the

[Appellants] of saying something behind someone’s . . . back out of spite.” Verified

Compl. at 2‒3, Kirby, No. 4:15-cv-00156-GKF-FHM.

       Appellants’ claim fails because the allegedly libelous statement was privileged.

“Oklahoma has long recognized that attorneys, parties and witnesses are immune from

defamation and certain other suits where those suits are based upon communications

made during or preliminary to judicial proceedings as long as the communication is in

some way relevant to the proceeding.” State ex rel. Okla. Bar Ass’n v. Dobbs, 94 P.3d

31, 45 (Okla. 2004). The statement in Mr. O’Dens’s response to Appellants’ motion to

compel satisfies these conditions. It was made during a judicial proceeding. And it was

relevant because it concerned the factual background of Appellants’ complaint. The

purpose of the statement was apparently to strengthen the argument that the motion to

compel was meritless by pointing out that the claim itself was frivolous. There is ample

authority for Mr. O’Dens’s effort. In Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160,

1169 (10th Cir. 2000), we upheld the denial of a motion to compel because the action was

brought “without any factual basis evincing specific misconduct by the defendants” and

the plaintiff’s discovery requests were a “fishing expedition” based “upon conclusory
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allegations in the hope of finding the necessary evidence of misconduct.” And the

federal rules permit a district court to forbid discovery “to protect a party . . . from

annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P.

26(c)(1). Mr. O’Dens’s statement is therefore absolutely privileged because it was made

during a judicial proceeding and was relevant to that proceeding.

       The judgment of the district court is AFFIRMED.



                                            ENTERED FOR THE COURT


                                            Harris L Hartz
                                            Circuit Judge




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