                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            MAR 3 2004
                              FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    K.F. MOORE; COLLEEN MOORE, a
    married couple,

                  Plaintiffs-Appellants,
                                                          No. 03-5039
    v.                                              (D.C. No. 02-CV-300-EA)
                                                          (N.D. Okla.)
    WILLIAM W. BUSBY, an individual;
    JOHN G. LANNING, an individual,

                  Defendants-Appellees.


                              ORDER AND JUDGMENT          *




Before O’BRIEN and BALDOCK , Circuit Judges, and              BRORBY , Senior Circuit
Judge.



         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      This order and judgment is not binding precedent, except under the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. 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.
      Plaintiffs, proceeding pro se, seek review of the district court’s order

granting defendants’ motion to dismiss their action brought pursuant to 42 U.S.C.

§ 1983, or alternatively, for summary judgment. The defendants are a state trial

judge and an attorney who participated in a 2001 state court proceeding in

Washington County, Oklahoma. In that proceeding, plaintiffs attempted to quiet

title to a property that had been seized and sold at public auction in 1993 for

nonpayment of federal taxes. Plaintiffs were subsequently evicted from the

property in 1994 pursuant to a quiet title action filed by the purchasers

(Schraders). That action was also presided over by Judge Lanning. In the recent

state proceeding, at which defendant Busby represented the Schraders, Judge

Lanning dismissed plaintiffs’ action for failure to state a claim on which relief

could be granted. There is no indication plaintiffs appealed that decision.

      Shortly after their state court action was dismissed, plaintiffs filed this

action contending that defendants had conspired to deprive them of their

constitutional rights in the state court proceeding. The district court granted

defendants’ motion to dismiss/summary judgment, holding that Judge Lanning

was absolutely immune for his actions in the prior court proceedings, that Judge

Lanning was entitled to Eleventh Amendment immunity for any claims brought

against him in his official capacity, and that the statute of limitations had long

since run on plaintiffs’ claims regarding ownership of the property.


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       With regard to defendant Busby, the court determined that plaintiffs had

failed to set forth with particularity the factual basis for their fraud or conspiracy

allegations allegedly perpetrated by defendant Busby in defending plaintiffs’

action against the Schraders in 2001. The court also dismissed the complaint

against both defendants as to the fraud allegations for failure to comply with

Fed. R. Civ. P. 9.   See generally R. doc. 51.

       Plaintiffs then filed a motion to vacate the district court’s judgment, citing

Fed. R. Civ. P. 60(b)(4) and alleging the district court lacked jurisdiction to enter

its judgment because the judge was “‘under a writ’ at the time of issuing the void

Order and void Judgment.” R. doc. 53 at 1.         1
                                                       Based on a copy of this petition for

writ of mandamus filed with the district court, it appears plaintiffs sought to have

this court compel the district court to vacate a protective order entered by a

magistrate judge staying further discovery of Judge Lanning pending the court’s

ruling on the dispositive motions to dismiss/summary judgment. Plaintiffs’ Rule

60 motion further alleged they were denied due process because they were

deprived of their right to discovery, multiple frauds were perpetrated on the court,

their pro se pleadings were not accorded the appropriate liberality, and the district

court arrived at a conclusion “[n]o competent jurist would come to.”            Id. at 1-4.


1
      A search of this court’s records has failed to uncover the existence of this
alleged petition for writ of mandamus.


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The district court carefully considered plaintiffs’ arguments and denied the

motion.

         As best we can discern, on appeal to this court, plaintiffs raise the

following issues:

               1. Because the district court denied Judge Lanning’s first motion to
         dismiss based on judicial immunity, the court could not subsequently
         dismiss the action on that ground. Aplt’s Opening Br. at 10.

                2. The district court abused its “discretionary authority to
         dismiss” the action because the plaintiffs “were deprived of
         discovery” (which we take to mean by the entry of the protective
         order staying discovery of Judge Lanning).    Id. at 10-11.

                 3. The district court “usurped” this court’s authority by
         continuing to rule on the case while a writ of mandamus was pending
         in this court. Id. at 11.

                4. The district court “ lied ” about the contents of the record by
         stating that “[Judge] Lanning had adjudicated the Moores’ state court
         case where [the district court] was placed on notice of [Judge]
         Lanning’s misprision.” Id.

         No legal authority is cited for any of these propositions, nor have plaintiffs

included any citations to the record. As noted earlier, although it appears that a

document purporting to be a petition for writ of mandamus was created and a

copy filed with the district court, there is no evidence such a writ was filed in this

court.

         We review the district court’s decision de novo, employing the same

standard as did the district court.   Amro v. Boeing Co. , 232 F.3d 790, 796 (10th


                                            -4-
Cir. 2000). Summary judgment is appropriate if no genuine issue as to any

material fact is in dispute and the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c).

       Plaintiffs’ claim that the district court was somehow precluded from

granting defendant Judge Lanning’s motion to dismiss/or for summary judgment

because the court initially denied a similar motion is without legal merit. The

district court’s first order merely denied defendants’ motions “at this time”

because at that point the court determined there was “no admissible evidence

establishing that the previous state lawsuits regarding the Washington County

property . . . form[ed] the basis of the allegations in this present action.” R. doc.

11. That order was clearly interlocutory, however, and subject to reconsideration

upon presentment of proper supporting documentation. Moreover, the court

clearly contemplated the filing of further motions for summary judgment. The

district court retained its jurisdiction to modify or rescind a prior interlocutory

order, including the authority to entertain a second motion for summary judgment

after denying the first one.   See Lindsey v. Dayton-Hudson Corp.   , 592 F.2d 1118,

1121 (10th Cir. 1979). This argument is without merit.

       Next plaintiffs complain that the district court abused its discretion by

granting Judge Lanning’s motion for a protective order. They appear particularly

disturbed because they had responded to Judge Lanning’s request for admissions,


                                           -5-
but were denied reciprocal discovery because of the protective order. This

argument is also without merit. The district court considered Judge Lanning’s

request to stay discovery pending the disposition of his second motion to

dismiss/summary judgment. “The decision of a district court to enter a protective

order under Rule 26(c) is reviewed for an abuse of discretion.”     Kidd v. Taos Ski

Valley, Inc. , 88 F.3d 848, 853 (10th Cir. 1996). And, the district court properly

decided the threshold question of immunity prior to permitting discovery.      See

Crawford-El v. Britton , 523 U.S. 574, 598 (1998). Hence, the district court did

not abuse its discretion in staying discovery.

       For their third argument, plaintiffs contend the district court “usurped” the

authority of this court by continuing proceedings notwithstanding the alleged

filing of a petition for writ of mandamus in this court. As noted, we have no

record of this proceeding. Plaintiffs do not furnish a case number for such a

petition, but merely contend it “still languishes before this court without

rebuttal,” Aplt’s Reply Br. at 6, nor do they offer any authority for their theory

that the filing of an original proceeding divests the district court of jurisdiction to

proceed with an action properly before that court. In any event, “mandamus is not

a substitute for an appeal.”   See Weston v. Mann (In re Weston),    18 F.3d 860, 864

(10th Cir. 1994). Absent the grant of a stay of the district court proceedings or a

properly filed appeal, the district court did not lack jurisdiction to enter judgment.


                                           -6-
       Last, defendants claim the district court “lied” about the contents of the

record. Beyond this somewhat cryptic complaint, again unsupported by any

authority, we are unable to decipher a legal basis for any error on the part of the

district court. The district court had jurisdiction over plaintiffs’ action and the

authority to enter summary judgment for defendants.

       Finally, defendant Busby has moved for damages and filing restrictions

against plaintiffs. A similar motion was denied by the district court. The district

court further determined that the “balance between providing open access to the

courts and discouraging meritless suits, weigh[ed] against imposing attorneys fees

against plaintiffs.”   See R. doc. 83 at 4. While we do not condone plaintiffs’

unnecessary invectives and personal attacks on the defendants and their attorneys,

we decline to award damages. Defendant’s motion is therefore denied. Plaintiffs’

motion to strike defendant’s motion is denied as moot.

       The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.



                                                      Entered for the Court



                                                      Terrence L. O’Brien
                                                      Circuit Judge



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