                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          OCT 17 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ROBERT NEWTON,

                Plaintiff-Appellant,

    v.                                                    No. 96-4202
                                                    (D.C. No. 95-CV-406-B)
    GAYLON BUCKLEY, Judge;                                 (D. Utah)
    DARLA SERASSIO, Riverton Justice
    Court Clerk,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRORBY, LOGAN, and HENRY, 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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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.
          Plaintiff Robert Newton appeals the district court’s entry of summary

judgment in favor of defendants Gaylon Buckley, a municipal court judge, and

Darla Serassio, his clerk, in this 42 U.S.C. § 1983 suit alleging defendants

violated his constitutional rights. We affirm based on the district court’s finding

that both defendants are absolutely immune from damages for the acts at issue

here. 1

                                             I

          Plaintiff’s claims arise out of his February 1990 arrest in Riverton City,

Utah, for several traffic violations. The arresting officer issued plaintiff a

citation directing him to appear in Riverton City Justice Court on February 22,

1990. Plaintiff refused to sign the citation and did not appear in court. On April

25, 1990, defendant Serassio, in her capacity as Clerk of the Riverton City Justice

Court, prepared an information charging that plaintiff had “committed the offense

of willfully failing to appear, a Class B misdemeanor in Riverton City.” I R.,

Doc. 23, Ex. B, Ex. 1. Serassio stamped Judge Buckley’s signature on the

information. On August 7, 1990, Serassio prepared a bench warrant for plaintiff’s

arrest and stamped the document with Judge Buckley’s signature.




1
       Because we dispose of this case on absolute immunity grounds, we need not
consider whether summary judgment would also have been proper based on
plaintiff’s alleged failure to comply with Local Rule of Practice 202.

                                            -2-
      In May 1993, when a deputy sheriff attempted to serve the information and

bench warrant on plaintiff, an altercation ensued and service was not completed.

As a result of the altercation, the county attorney filed additional charges against

plaintiff and the Third Circuit Court issued a warrant for his arrest. Plaintiff was

arrested on May 24 on all charges and was held in the county jail. While in jail,

plaintiff filed a motion challenging the Riverton City Justice Court’s jurisdiction

over him.

      On May 27, 1993, plaintiff was arraigned on the original traffic charges and

on the charge of failure to appear (“FTA”). Judge Buckley overruled plaintiff’s

challenge to his jurisdiction and instructed plaintiff to enter a plea. When

plaintiff continued to argue about jurisdiction and refused to enter a plea, Judge

Buckley found plaintiff in contempt, fined him $500 and sentenced him to thirty

days in jail. The next day, plaintiff’s neighbor and his newly retained attorney

both contacted Judge Buckley and asked that plaintiff be released on the contempt

order because of his poor health and family responsibilities. Judge Buckley

agreed and instructed Serassio to issue an order of recall, which she did on June

2, 1993. On June 28, 1993, Judge Buckley dismissed the original traffic charges

against plaintiff, as well as the FTA and contempt charges.

      Plaintiff then brought this action seeking damages against defendants for

violating his civil rights. Plaintiff alleged that Judge Buckley acted without


                                          -3-
jurisdiction in bringing plaintiff before him to answer charges in 1993 because the

statute of limitations on the underlying traffic offenses had run, and the informa-

tion and bench warrant on the FTA charge were improperly issued. Plaintiff also

challenged Judge Buckley’s imposition of a fine and thirty-day jail sentence for

contempt, because plaintiff was improperly before the court in the first instance

and because a justice court does not have authority to impose a sentence for

contempt of thirty days’ duration. Plaintiff also alleged that Serassio acted

without jurisdiction in preparing and issuing the information and bench warrant

for FTA and that she stamped the judge’s signature on these documents without

authority.

                                           II

      In Utah, justice courts, which are not courts of record, see Utah Code Ann.

§ 78-5-101, “have jurisdiction over class B and C misdemeanors, violations of

ordinances, and infractions committed within their territorial jurisdiction, except

those offenses over which the juvenile court has exclusive jurisdiction,” id.

§ 78-5-104. Justice court judges, in turn, “have the same authority regarding

matters within their jurisdiction as judges of courts of record.” Id. § 78-5-106(1).

      Under Utah law, when a police officer arrests someone on a misdemeanor

or infraction charge, the officer can issue the arrestee a citation, directing him to

appear in court at a particular time and location, rather than take the arrestee into


                                          -4-
custody. See id. §§ 77-7-18, 77-7-20. The officer must then file a copy of the

citation with the court identified in the citation, see id. § 77-7-20(1); the citation

may be used, instead of an information, to which the arrestee may plead guilty or

no contest. See id. § 77-7-21(1). If, however, the arrestee fails to appear, pleads

not guilty, or fails to deposit bail on or before the appearance date, then an

information will be filed on the charge(s) listed in the citation. See id.

§ 77-7-21(2). An arrestee who fails to appear on a citation is subject to arrest,

unless he has previously posted bail and has voluntarily agreed to forfeit the bail

without appearance. See id. §§ 77-7-19(3), 77-7-21(1)(c). Here, although

plaintiff failed to appear before the justice court as required by the citation, no

information was ever filed on the original traffic charges.

      Utah law further provides that “[a]ny person who willfully fails to appear

before a court pursuant to a citation issued under the provisions of Section

77-7-18 is guilty of a class B misdemeanor, regardless of the disposition of the

charge upon which he was originally cited.” Id. § 77-7-22. For justice court

cases like plaintiff’s, Utah Code Jud. Admin. Rule 4-701(2) provides:

             If the defendant fails to appear or pay the bail amount within
      forty days of the date the citation was issued:
             (A) On an infraction or misdemeanor charge, the clerk may
      prepare an information or refer the case to the prosecutor’s office,
      which may elect to prepare and file an information for Failure to
      Appear, a Class B misdemeanor. The court may then issue a warrant
      on the Failure to Appear only, but not on the underlying offense[.]


                                           -5-
      In this instance, the clerk, defendant Serassio, prepared the information

herself. She later prepared the bench warrant, which erroneously listed the traffic

offenses, as well as the FTA offense. Serassio stamped Judge Buckley’s signature

on both the FTA information and the bench warrant.

      Pursuant to Utah Code Jud. Admin. Rule 4-403(1)(B), “[a] clerk may, with

the prior approval of the judge or commissioner, use a ‘signature stamp’ in lieu of

obtaining the judge’s or commissioner’s signature on . . .bench warrants[.]” If the

clerk uses a signature stamp on a bench warrant, the clerk should sign her name

on the document directly beneath the judge’s stamped signature. See

Rule 4-403(2). Serassio’s signature does not appear on the copy of the bench

warrant in the record on appeal. See I R., Doc. 23, Ex. B, Ex. 2. Rule 4-403

further provides:

             (3) All other documents requiring the judge’s or commis-
      sioner’s signature shall be personally signed by the judge or commis-
      sioner, unless the judge or commissioner, on a document by docu-
      ment basis, authorizes the clerk to use the judge’s or commissioner’s
      signature stamp in lieu of the judge’s or commissioner’s signature.
      On such documents, the clerk shall indicate in writing that the stamp
      was used at the direction of the judge or commissioner and shall sign
      his or her name directly beneath the stamped imprint of the judge’s
      or commissioner’s signature.

The copy of the FTA information in the record on appeal does not contain any

notation by Serassio that she used the judge’s signature stamp at his direction, nor

does it contain her signature beneath the judge’s stamped signature.


                                         -6-
                                          III

        We first turn to plaintiff’s claims against Judge Buckley. “[G]enerally, a

judge is immune from a suit for money damages.” Mireles v. Waco, 502 U.S. 9, 9

(1991) (per curiam). The Supreme Court has recognized two exceptions to this

immunity from suit: (1) “a judge is not immune from liability for nonjudicial

actions, i.e., actions not taken in the judge’s judicial capacity”; and (2) “a judge is

not immune for actions, though judicial in nature, taken in complete absence of

all jurisdiction.” Id. at 11-12. Plaintiff does not dispute that the challenged

actions of Judge Buckley were all judicial in nature. Therefore, we are concerned

solely with whether Judge Buckley acted in the complete absence of all jurisdic-

tion.

        “[T]he scope of the judge’s jurisdiction must be construed broadly where

the issue is the immunity of the judge.” Stump v. Sparkman, 435 U.S. 349, 356

(1978). Neither a judge’s “commission of grave procedural errors,” id. at 359,

nor his action “in excess of his authority,” id. at 356, will deprive the judge of

immunity. A judge acts in the clear absence of all jurisdiction when he “acts

clearly without any colorable claim of jurisdiction.” Snell v. Tunnell, 920 F.2d

673, 686 (10th Cir. 1990); see also Lerwill v. Joslin, 712 F.2d 435, 438 (10th Cir.

1983) (“A judge is absolutely immune from a section 1983 suit for damages only




                                          -7-
for (a) judicial acts (b) for which the judge has at least a semblance of subject

matter jurisdiction.”).

       “[A] judge acts in excess of jurisdiction if the act complained of is within

his general power of jurisdiction but is not authorized because of certain circum-

stances,” whereas there “is a clear absence of jurisdiction when a court of limited

jurisdiction attempts to adjudicate a case outside of its jurisdiction, such as when

a probate court conducts a criminal trial.” Duty v. City of Springdale, 42 F.3d

460, 462 (8th Cir. 1994) (quotations omitted); see also Stump, 435 U.S. at 357

n.7.

       Plaintiff does not dispute that the underlying misdemeanor traffic charges

are of the type that are within the subject matter jurisdiction of the Riverton City

Justice Court. Nor does plaintiff contend that Judge Buckley has no subject

matter jurisdiction over a class B misdemeanor arising from an arrestee’s failure

to appear on a traffic citation. Even accepting as true plaintiff’s contentions that

(1) Judge Buckley no longer had jurisdiction over the underlying traffic offense

when plaintiff was arrested and arraigned in 1993, because the statute of limita-

tions had passed, (2) Judge Buckley and/or his clerk did not follow the correct

procedures in issuing the information and bench warrant for failure to appear, and

(3) Judge Buckley gave plaintiff a longer sentence on the contempt charge than

justice court judges have authority to impose, the most these contentions show is


                                          -8-
that Judge Buckley exceeded his jurisdiction. Plaintiff has not established that

Judge Buckley acted in the absence of all jurisdiction in performing any of the

challenged acts. 2 Therefore, the district court correctly entered summary judg-

ment in favor of Judge Buckley on the basis of absolute immunity.

                                          IV

      We turn, then, to plaintiff’s claims against Judge Buckley’s clerk, Ms.

Serassio. Plaintiff contends that Serassio had no authority to issue either the

information or the bench warrant on the FTA charge and that she did not follow

proper procedure in preparing and issuing these documents.

      In addition to judges, “others performing judicial or ‘quasi-judicial’

functions enjoy absolute immunity from monetary damages for a limited scope of

actions.” Russ v. Uppah, 972 F.2d 300, 303 (10th Cir. 1992); see also Henriksen

v. Bentley, 644 F.2d 852, 855 (10th Cir. 1981) (“Immunity which derives from

judicial immunity may extend to persons other than a judge where performance of

judicial acts or activity as an official aide of the judge is involved.”). The circuits

are in general agreement that a clerk’s issuance of a warrant involves a quasi--

judicial act and, therefore, carries with it the protections of absolute immunity.



2
      Plaintiff concedes in his reply brief that Judge Buckley is immune from
damages for his actions with regard to the contempt charge, since the 30-day
sentence was merely in excess of the court’s jurisdiction. See Reply Br. of
Appellant at 8.

                                          -9-
See, e.g., Kincaid v. Vail, 969 F.2d 594, 601 (7th Cir. 1992); Foster v. Walsh, 864

F.2d 416, 417-18 (6th Cir. 1988); Scott v. Dixon, 720 F.2d 1542, 1546 (11th Cir.

1983).

         Unless she acted in the absence of all jurisdiction, Serassio is immune from

damage liability for issuing the bench warrant. See Williams v. Wood, 612 F.2d

982, 985 (5th Cir. 1980) (“No immunity extends to clerks of court acting outside

the scope of their jurisdiction, as is true for judges.”). Serassio is authorized by

state law to issue a bench warrant when a defendant fails to appear on a misde-

meanor citation. See Utah Code Jud. Admin. Rule 4-701(2)(A). Therefore, she is

immune from damages even if she did not follow proper procedures concerning

the contents of the bench warrant and the use of the judge’s signature stamp.

         Serassio also is entitled to immunity for her actions in filing the FTA

information. Initiating a prosecution is “intimately associated with the judicial

phase of the criminal process,” and, therefore, is a “function[] to which the

reasons for absolute immunity apply with full force.” Imbler v. Pachtman,

424 U.S. 409, 430 (1976). Utah law specifically authorizes a justice court clerk,

rather than a prosecutor, to file an FTA information, and thus institute judicial

proceedings against an arrestee who fails to appear on a misdemeanor citation.

See Utah Code Jud. Admin. Rule 4-701(2)(A). Therefore, even though Serassio




                                           -10-
may not have followed the proper procedures in stamping the information with the

judge’s signature, she is immune from damages liability for her actions.

      AFFIRMED.

                                                   Entered for the Court

                                                   James K. Logan
                                                   Circuit Judge




                                        -11-
