                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               December 12, 2008
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                               TENTH CIRCUIT



 SAMMY LEROY McMURRAY,

             Plaintiff - Appellant,                     No. 08-2186
 v.                                                   (D. New Mexico)
 LESLIE C. SMITH; MARTHA                   (D.C. No. 1:08-CV-00408-MCA-LFG)
 VAZQUEZ,

             Defendants - Appellees.


                          ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      Sammy Leroy McMurray, acting pro se and in forma pauperis, brought an

action under 42 U.S.C. § 1983 in the United States District Court for the District

of New Mexico against Martha Vázquez, chief judge of the district, and Leslie C.

Smith, a magistrate judge in the district. Mr. McMurray’s complaint makes little




      *
       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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
sense, but one thing that is clear is that his claim against the judges is based on

their judicial actions in a civil case before them.

      The district court sua sponte dismissed Mr. McMurray’s complaint with

prejudice under 28 U.S.C. § 1915(e)(2)(B), which requires federal courts to

dismiss an in forma pauperis proceeding that “is frivolous or malicious; . . . fails

to state a claim on which relief may be granted; . . . or seeks monetary relief

against a defendant who is immune from such relief.” Mr. McMurray appeals

from that judgment. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      The district court’s decision was undoubtedly correct. Judges are

absolutely immune from civil liability for their judicial acts, unless they act “in

the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356–57

(1978). This immunity includes magistrate judges. See Ryan v. Bilby, 764 F.2d

1325, 1328 n.4 (9th Cir. 1985); Guinn v. Finesilver, Nos. 94-1437 & 94-1441,

1995 WL 94651 (10th Cir. Feb. 28, 1995). Nothing suggests that the defendant

judges acted without jurisdiction. Moreover, § 1983 requires that the defendant

act under color of state law, see 42 U.S.C. § 1983; but both judges were acting

solely under federal law. Thus, the complaint is frivolous, fails to state a claim

on which relief can be granted, and seeks monetary relief against defendants who

are immune.




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      We AFFIRM the judgment of the district court. We DENY

Mr. McMurray’s motion to proceed in forma pauperis on appeal and order him to

immediately remit the full amount of the filing fee.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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