                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  April 29, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                              FOR THE TENTH CIRCUIT


    DEE HENSHAW,

                Plaintiff-Appellant,

    v.                                                 No. 10-4115
                                               (D.C. No. 2:09-CV-00152-TC)
    DOUG BLISS; MATT WEBSTER,                            (D. Utah)

                Defendants-Appellees,

          and

    WAYNE COUNTY; KURT TAYLOR,

                Defendants.


                              ORDER AND JUDGMENT *


Before O’BRIEN, ANDERSON, and HOLMES, Circuit Judges.



         Dee Henshaw appeals the district court decision granting summary

judgment to the defendants in his 42 U.S.C. § 1983 civil-rights action against



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
two Wayne County, Utah, deputy sheriffs who arrested him in the course of

enforcing a facially valid order requiring Henshaw to stay away from his

estranged wife’s residence. We affirm.

                                           I.

      Henshaw and his wife are involved in divorce proceedings. On October 19,

2007, he and a friend, Stan Wiley, drove to his former residence to retrieve a

water key. His wife, who has exclusive use of the property, called 911 to

complain about Henshaw’s violating a protective order. While responding to the

call, Deputy Bliss saw Henshaw driving away from the residence, stopped him,

and told him he was under arrest for violation of a protective order. Henshaw,

however, claimed the protective order had been vacated. Rather than taking

Henshaw into custody at that time, Deputy Bliss told him to take Wiley home and

wait there while he investigated the matter further by talking to Mrs. Henshaw.

      At the residence, Mrs. Henshaw showed Deputy Bliss a copy of an order

issued in the divorce matter on August 27, 2007. Although the order vacated an

earlier protective order entered in a related case, it also “set forth” the “applicable

terms” of the earlier order. Aplt. App. at 79. In pertinent part, the order

restrained Henshaw and his agents from committing, attempting, or threatening

any form of violence against Mrs. Henshaw. Id. at 82. They were to “stay away

from [Mrs. Henshaw’s] current residence.” Id. “Law enforcement officers from

the Wayne County Sheriff’s Office or any other appropriate law enforcement

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agency [were] ordered to enforce the restraining order provisions of [the] Order.”

Id. at 83.

       After reading the order, Deputy Bliss decided he should enforce it by

arresting Henshaw. Deputy Webster arrived as a back-up officer. He read the

order and came to the same conclusion as Deputy Bliss. The deputies then went

to Wiley’s house where Henshaw was waiting, showed Henshaw a copy of the

order, placed him in handcuffs, and transported him to jail.

       Henshaw was charged with violation of a protective order. Later, however,

the prosecution moved to dismiss the charge when it determined “the actual order

was a [civil] restraining order instead of a protective order, which makes it not

enforceable as a crime.” Id. at 241. The prosecution’s motion was granted and

the matter dismissed.

       In his civil-rights case, Henshaw claimed the deputies’ actions violated his

constitutional right to be free from unreasonable search and seizure. 1 The

deputies moved for summary judgment based on quasi-judicial immunity, which

can afford non-judicial officers the same absolute immunity enjoyed by judges



1
       Henshaw’s complaint also named Wayne County and Sheriff Kurt Taylor as
defendants, alleged a violation of 42 U.S.C. § 1985(2), and set forth six state-law
claims. The district court dismissed all claims against the county and the sheriff
and the § 1985(2) claim against the deputies for failure to state a claim. And after
Henshaw appealed the disposition of the § 1983 claim against the deputies, the
district court granted his motion to dismiss the state-law claims without prejudice.
Henshaw does not appeal the dismissal orders.

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when a claim is based on duties performed in furtherance of the judicial process.

Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000). The district court

granted the motion and entered judgment in favor of the deputies. Henshaw

appeals.

                                         II.

      “[W]e review the district court’s grant of summary judgment on the basis

of . . . quasi-judicial immunity de novo.” Guttman v. Khalsa, 446 F.3d 1027,

1033 (10th Cir. 2006). We are required “to affirm the district court if, upon

viewing the factual record in the light most favorable to the party opposing

summary judgment,” id., we conclude “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law,”

Fed. R. Civ. P. 56(a).

      “[I]mmunity which derives from judicial immunity may extend to persons

other than a judge where performance of judicial acts or activity as an official aid

of the judge is involved.” Whitesel, 222 F.3d at 867 (quotation marks and

alteration omitted). “[A]n official charged with the duty of executing a facially

valid court order enjoys absolute immunity from liability for damages in a suit

challenging conduct prescribed by that order.” Valdez v. City & County of

Denver, 878 F.2d 1285, 1286 (10th Cir. 1989). The executing officials are not to

be “called upon to answer for the legality of decisions which they are powerless




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to control,” lest they become “a lightning rod for harassing litigation aimed at

judicial orders.” Id. at 1289 (quotation marks omitted).

      Even an erroneous order, “infirm as a matter of state law,” can be “facially

valid” for purposes of quasi-judicial immunity. Turney v. O’Toole, 898 F.2d

1470, 1473 (10th Cir. 1990). Enforcing officers are not required to “evaluat[e]

the legality of a decision issued by a judge trained in the law and authorized to

issue such orders.” Mays v. Sudderth, 97 F.3d 107, 114 (5th Cir. 1996).

      Although the parties’ arguments emphasize different facts, there is no

dispute over the facts relevant to the quasi-judicial immunity issue. In arresting

Henshaw, the deputies were acting within the scope of a facially valid court order.

They are therefore entitled to absolute quasi-judicial immunity.

      The judgment of the district court is AFFIRMED. Defendants’ motion to

dismiss is DENIED as moot.


                                                    Entered for the Court



                                                    Terrence L. O’Brien
                                                    Circuit Judge




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