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

                             FOR THE TENTH CIRCUIT                       September 20, 2019
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 JOHN PATRICK FLETCHER,

       Plaintiff - Appellant,

 v.                                                          No. 19-1204
                                                   (D.C. No. 1:19-CV-00709-CMA)
 TIMOTHY M. TYMKOVICH; MARCIA                                 (D. Colo.)
 S. KRIEGER; LEWIS T. BABCOCK;
 GORDON P. GALLAGHER,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before CARSON, BALDOCK, and MURPHY, Circuit Judges.**
                  _________________________________

      Plaintiff-Appellant John Patrick Fletcher, a Colorado state prisoner, appeals pro

se the district court’s order dismissing his complaints with prejudice. On March 8,

2019, Plaintiff filed a pro se complaint pursuant to Bivens v. Six Unknown Named

Agents alleging fourteen claims against four federal judges—Chief Judge Tymkovich

of the Tenth Circuit Court of Appeals, Judges Krieger and Babcock of the federal


      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs 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.
district court in Colorado, and Magistrate Judge Gallagher of the same court. In his

complaint, Plaintiff alleges violations of his First, Fifth, and Eighth Amendment rights.

      On March 29, 2019, Plaintiff sua sponte filed an amended complaint alleging

substantially the same claims against the same Defendants. Before the district court

acted on either complaint, Plaintiff filed a motion to strike the amended complaint

asserting the original complaint more accurately represents his claims. In either case,

Plaintiff alleges the same facts. Specifically, Plaintiff alleges: (1) Judges Babock and

Gallagher improperly addressed his motions for injunctive relief in a separate civil

action; (2) Judge Krieger criminally victimized him by assigning his cases to Judges

Babcock and Gallagher; and (3) Chief Judge Tymkovich failed to expeditiously

address his judicial conduct complaint filed with this Court.

      After reviewing both complaints, the district court concluded that whether it

considered the original or amended complaint, the action must be dismissed in part as

legally frivolous and in part for seeking relief against defendants who are immune. On

April 18, 2019, the district court issued an order dismissing the action with prejudice.

The district court determined any appeal from its order would not be taken in good

faith and denied Plaintiff’s request to appeal in forma pauperis. After the district court

denied Plaintiff’s Motion to Alter or Amend the Judgment under Fed. R. Civ. P. 59(e),

Plaintiff appealed. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

      We review a district court’s dismissal under Rule 41(b) for an abuse of

discretion. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir.

2007). We review a district court’s legal determinations on immunity de novo. Snell v.

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Tunnell, 920 F.2d 673, 675 (10th Cir. 1990). We liberally construe a pro se litigant’s

pleadings, but do not “assume the role of advocate for the pro se litigant.” Hall v.

Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991).

                                          ***

       First, Plaintiff argues the district court erred in finding Judges Krieger, Babcock,

and Gallagher are entitled to absolute judicial immunity. Specifically, Plaintiff alleges

Judges Krieger, Babcock, and Gallagher are not entitled to immunity because: (1) the

judges were acting in clear absence of all jurisdiction; and (2) the judges were

performing administrative rather than judicial tasks.

       A judge acting in his judicial capacity is immune from suit “unless the judge

acts clearly without any colorable claim of jurisdiction.” Snell, 920 F.2d at 686.

Judicial immunity is “not overcome by allegations of bad faith or malice,” rather,

“immunity is overcome only in two sets of circumstances.” Mireles v. Waco, 502 U.S.

9, 11 (1991). First, a judge is not entitled to immunity when he acts in clear absence of

all jurisdiction. Id. at 12. Second, a judge is not entitled to immunity for non-judicial

acts. Id. at 11. Determining whether an act is a “judicial one” requires an inquiry into

the nature of the act itself. Stump v. Sparkman, 435 U.S. 349, 362 (1978). The court

must evaluate whether the act is “normally performed by a judge,” and whether the

parties “dealt with the judge in his judicial capacity.” Id.

       The district court held Judges Krieger, Babcock, and Gallagher were not acting

in clear absence of all jurisdiction because the court’s local rules authorized their

actions. Namely, under the District of Colorado’s local rules, “a judicial officer

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designated by the Chief Judge shall review the pleadings of a prisoner.”

D.C.COLO.LCivR 8.1(b). In this case, Chief Judge Krieger designated Judge Babcock

and Magistrate Judge Gallagher to conduct an initial review of Plaintiff’s cases. Judge

Babcock and Magistrate Judge Gallagher conducted that review and ultimately

dismissed Plaintiff’s case. The judges’ actions were explicitly within the confines of

the court’s local rule, and therefore, it cannot be said the judges acted in clear absence

of all jurisdiction.

       The district court also concluded Judge Krieger’s, Judge Babcock’s, and

Magistrate Judge Gallagher’s actions were “judicial acts” because “issuing orders,

which includes orders of dismissals, construing filings as supplements, and assigning

cases are functions normally performed by a judge.” As the district court explained, all

of Plaintiff’s allegations concern the judges’ management and disposition of motions

he filed in a separate civil action. Case management and disposition of motions are

actions routinely taken by a judge, and Plaintiff dealt with these judges in their judicial

capacity. Accordingly, the judges’ actions were “judicial acts” entitled to immunity.

       Having reviewed the Plaintiff’s brief and appellate record in light of the

applicable law and appropriate standard of review, we find the district court’s judgment

must be affirmed as to these Defendants.

                                          ***

       Next, Plaintiff contends the district court erred in dismissing his claim against

Chief Judge Tymkovich as legally frivolous. Plaintiff alleges the district court

reviewed his claim under 28 U.S.C. § 351 when it should have been analyzed as a

                                            4
Bivens action. Pursuant to 28 U.S.C. § 351, the district court held Plaintiff must pursue

his claim with the Tenth Circuit Court of Appeals.

       Under 28 U.S.C. § 351(a), any person alleging a judge has “engaged in conduct

prejudicial to the effective and expeditious administration of the business of the courts

. . . may file with the clerk of the court of appeals for the circuit a written complaint

containing a brief statement of the facts constituting such conduct.” 28 U.S.C. § 351(a).

Then, the chief judge of the circuit is tasked with reviewing the complaint and

determining an appropriate course of action. 28 U.S.C. § 352. If a complainant is

“aggrieved by a final order of the chief judge,” then he may “petition the judicial

council of the circuit for review thereof.” Id. Under the finality clause, denial of review

“shall be final and conclusive and shall not be judicially reviewable on appeal or

otherwise.” Id.

       To the extent Plaintiff alleges a Bivens action based on Chief Judge

Tymkovich’s failure to act on his complaint, his claim is not judicially reviewable. See

McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of Judicial

Conference of U.S., 264 F.3d 52, 63 (D.C. Cir. 2001) (holding the finality clause bars

any applied constitutional challenges to judicial council action). Because Plaintiff’s

due process challenge to Chief Judge Tymkovich’s decision or lack thereof is not

judicially reviewable, the district court’s judgment as to Chief Judge Tymkovich must

be affirmed as well.

                                          ***



                                            5
      Accordingly, we affirm the district court’s dismissal with prejudice for

substantially the same reasons articulated by the district court. We deny Plaintiff’s

motion to proceed in forma pauperis and remind him of his obligation to pay in full the

filing and docket fees.




                                           Entered for the Court


                                           Bobby R. Baldock
                                           Circuit Judge




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