                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         FEB 17 2004
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 RONALD GUIDEN,

          Plaintiff-Appellant,
                                                       No. 03-3282
 v.                                                    (D. Kansas)
                                               (D.Ct. No. 03-CV-3152-GTV)
 MARTHA MORROW, Clerk,

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.



      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.

      Ronald Guiden, appearing pro se, appeals the district court’s dismissal of

his § 1983 complaint against Martha Morrow, a state district court clerk, based on


      *
        This order and judgment is not binding precedent except under the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.
her immunity from suit. 1 We exercise jurisdiction under 28 U.S.C. § 1291. The

appeal is frivolous and we dismiss it under 28 U.S.C. § 1915(e)(2)(B)(i).

                                    Background

      As alleged in his complaint, Guiden, an inmate at the El Dorado Correctional

Facility in El Dorado, Kansas, mailed a petition and an inmate account statement to

Martha Morrow, the Clerk of the District Court of Butler County, Kansas, for filing.

Morrow did not immediately file these papers but instead referred them to a district

judge for review. After the judge’s review, Morrow sent Guiden a letter informing

him that a district judge had determined his papers could not be filed because they

failed to specifically name individual defendants. She returned his papers with her

letter. Guiden then filed a notice of appeal, which Morrow refused to file, as there

was no case from which to appeal.

      Thereafter, Guiden filed suit against Morrow in the United States District Court

for the District of Kansas, pursuant to 42 U.S.C. § 1983. 2 He alleged Morrow’s

failure to file his papers deprived him of his right of access to the courts and violated

his due process and equal protection rights. He sought damages totaling $300,000

and “such other and further relief as is just.” (R., Doc. 1, Complaint at 5.)

      The district court screened Guiden’s complaint as required by 28 U.S.C. §

      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
      2
          He also filed a motion to proceed in forma pauperis, which was granted.

                                           -2-
1915A(a) and (b). 3 Concluding that Morrow was entitled to immunity, the district

court dismissed the complaint under § 1915(e)(2)(B)(iii). 4 This appeal followed. 5

                                       Discussion

      On appeal, Guiden challenges the dismissal of his complaint, alleging the

district court erred in finding Morrow was entitled to immunity. He also asserts it

was Morrow’s duty under Kansas law to file his pleadings before turning them over to

the district judge for review. 6


      3
          28 U.S. C. § 1915A(a) and (b) states:

      (a) Screening.--The court shall review, before docketing, if feasible
      or, in any event, as soon as practicable after docketing, a complaint
      in a civil action in which a prisoner seeks redress from a
      governmental entity or officer or employee of a governmental entity.
      (b) Grounds for dismissal.--On review, the court shall identify
      cognizable claims or dismiss the complaint, or any portion of the
      complaint, if the complaint--(1) is frivolous, malicious, or fails to
      state a claim upon which relief may be granted; or (2) seeks monetary
      relief from a defendant who is immune from such relief.
      4
          28 U.S.C. § 1915(e)(2)(B) provides:

      Notwithstanding any filing fee, or any portion thereof, that may have
      been paid, the court shall dismiss the case at any time if the court
      determines that-- . . . the action or appeal--(i) is frivolous or
      malicious;(ii) fails to state a claim on which relief may be granted; or
      (iii) seeks monetary relief against a defendant who is immune from
      such relief.
      5
       The district court granted Guiden’s motion to proceed on appeal without
prepayment of the filing fee.

      In dismissing Guiden’s complaint, the district court stated “[b]ecause
      6

[Morrow] is the only defendant named in the complaint, and because [Guiden’s]

                                            -3-
      We review de novo a district court’s immunity determinations. Gagan v.

Norton, 35 F.3d 1473, 1475 (10th Cir. 1994), cert. denied, 513 U.S. 1183 (1995).

“Except where a judge has acted ‘in the clear absence of all jurisdiction,’ the doctrine

of judicial immunity shields that judge from liability for the judge’s official

adjudicative acts.” Lundahl v. Zimmer, 296 F.3d 936, 939 (10th Cir. 2002) (quoting

Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)), cert. denied, 123 S. Ct. 1797

(2003). This immunity applies not only to judges but also to any person who

performs judicial acts or activity as an official aide of the judge. Henriksen v.

Bentley, 644 F.2d 852, 855 (10th Cir. 1981). See also Lundahl, 296 F.3d at 939-40

(finding court clerks entitled to absolute immunity as to their decision to refer

plaintiff’s applications for entry of default judgment to the judge presiding over the

case). Here, in not filing Guiden’s papers, Morrow was acting pursuant to the

specific instructions of a state court judge. Accordingly, Morrow is entitled to

immunity, and the district court did not err in dismissing this lawsuit pursuant to



claim for damages against [Morrow] is barred by [her] immunity, the court
concludes the complaint should be dismissed.” (R., Doc. 6, District Court Order
at 2.) Based on this language, Guiden argues the district court erred in dismissing
his case because Morrow is the only defendant named in the complaint. He
alleges Morrow was the only named defendant because the name of the state
district court judge who directed Morrow to return his pleadings unfiled is
unknown. Guiden’s argument is made on the mistaken belief that the court
dismissed this case because Morrow was the only named defendant. Dismissal
was based on immunity, not on Guiden’s failure to name other defendants.
Nevertheless, dismissal would have been proper even if Guiden had named the
state court judge, because such judge would also have been entitled to immunity.

                                            -4-
§ 1915(e)(2)(B)(iii).

      Attempting to avoid dismissal, Guiden argues he was seeking more than

monetary relief against Morrow. He states he also sought “such other and further

relief as is just, including an injunction or mandamus, etc.” Although Morrow would

not be entitled to immunity in a suit seeking injunctive relief, Lundahl, 296 F.3d at

938-40, the question is whether Guiden’s complaint gave “any indication” that he

might be entitled to injunctive relief for Morrow’s alleged failure to file his state

court papers. Calderon v. Kansas Dep’t of Social & Rehabilitation Servs., 181 F.3d

1180, 1183 (10th Cir. 1999). In his appellate papers, Guiden has taken liberties with

the facts. His “request for relief” in his complaint specifically sought “[j]udgment

against defendant in the sum of [$300,000] and costs, and such other and further

relief as is just.” His request made no mention of equitable relief. Cf. Frazier v.

Simmons, 254 F.3d 1247, 1251, 1255 (10th Cir. 2001) (finding injunctive relief

requested where complaint sought money damages and “such other relief as the Court

deems just and equitable” and where pretrial order listed "the nature and extent of any

equitable relief" as an issue of law) (emphasis added). Faithful to our duty to

construe pro se prisoner complaints liberally, we have carefully reviewed Guiden’s

complaint. Reynoldson v. Shillinger, 907 F.2d 124, 125 (10th Cir. 1990). Nowhere

did he suggest that he sought an order requiring Morrow to file his papers in state

court. In fact, in the statement of facts attached to the complaint, he merely asserted


                                            -5-
he “was injured and damaged in an amount of [$300,000].” Despite Guiden’s pro se

status, the district court was not required to assume the role of advocate and construct

arguments or legal theories for him. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991). Consequently, we find that Guiden’s complaint sought only monetary relief.

      The statutes Guiden cites in support of his argument that Morrow had a duty to

file his pleadings before turning them over for the judge’s review, Kan. Stat. Ann.

§§ 60-205(e) 7 and 60-2001(b), 8 are directives to the parties concerning the filing of

pleadings. They impose no duty upon court clerks.

      7
        Guiden asserts Kan. Stat. Ann. § 60-205(e) creates a liberty interest
protected by the Fourteenth Amendment. This statute provides in relevant part:

      (e) Filing with the court defined. The filing of pleadings and other
      papers with the court . . . shall be made by filing them with the clerk
      of the court. In accordance with K.S.A. 60-271 and amendments
      thereto and supreme court rules, pleadings and other papers may be
      filed by telefacsimile communication. The judge may permit the
      papers to be filed with the judge, in which event the judge shall note
      thereon the filing date and forthwith transmit them to the office of
      the clerk.

Kan. Stat. Ann. § 60-205(e). Although “state statutes may create liberty interests
that are entitled to the procedural protections of the Due Process Clause of the
Fourteenth Amendment,” Kan. Stat. Ann. § 60-205(e) is not one of them. Vitek v.
Jones, 445 U.S. 480, 488 (1980). This statute is Kansas’s equivalent to Federal
Rule of Civil Procedure 5. Plainly, it was not meant to create any rights
enforceable by an inmate against a court clerk. See Sandin v. Conner, 515 U.S.
472 (1995).
      8
        Kan. Stat. Ann. § 60-2001(b) provides in pertinent part: “(b) Poverty
affidavit in lieu of docket fee. . . . In any case where a plaintiff by reason of
poverty is unable to pay a docket fee, and an affidavit so stating is filed, no fee
will be required.”

                                            -6-
                                        Conclusion

      The district court was correct in dismissing Guiden’s complaint pursuant to 28

U.S.C. § 1915(e)(2)(B)(iii). We adopt the reasoning of the district court and

DISMISS this appeal as frivolous. The dismissal of this appeal counts as one strike

under 28 U.S.C. § 1915(g). 9 Guiden also accumulated a strike as a result of the

district court’s dismissal. 10 Therefore, Guiden has accumulated a total of two strikes

in this matter. Guiden is reminded to continue making partial payments of his

appellate filing fee until the entire balance is paid.

                                        Entered by the Court:

                                        TERRENCE L. O’BRIEN
                                        United States Circuit Judge

      9
          28 U.S. C. Section 1915(g) provides:

      In no event shall a prisoner bring a civil action or appeal a judgment
      in a civil action or proceeding under this section if the prisoner has,
      on 3 or more prior occasions, while incarcerated or detained in any
      facility, brought an action or appeal in a court of the United States
      that was dismissed on the grounds that it is frivolous, malicious, or
      fails to state a claim upon which relief may be granted, unless the
      prisoner is under imminent danger of serious physical injury.
      10
          Were this case not pretermitted on immunity grounds, as required by 28
U.S.C. § 1915(e)(2)(B)(iii), it could not have survived a Rule 12(b)(6) motion
based upon those same immunity grounds and would have been dismissed for
failure to state a claim. See Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999)
(absolute immunity defense may be raised in Rule 12(b)(6) motion if the
allegations of the complaint disclose activities protected by absolute immunity);
Workman v. Jordan, 958 F.2d 332, 334 n.2 (10th Cir. 1992) (defendant may raise
qualified immunity defense in Rule 12(b)(6) motion but in deciding such motion,
the court is limited to the pleadings).

                                            -7-
