FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 12, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court KRIS K. AGRAWAL,
Plaintiff - Appellant,
v. No. 18-6144 (D.C. No. 5:18-CV-00396-D) COURTS OF OKLAHOMA; RICHARD (W.D. Okla.) V. OGDEN,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, BALDOCK, and KELLY, Circuit Judges. _________________________________
Kris K. Agrawal appeals pro se from the district court’s dismissal of his
complaint asserting due process claims against Richard V. Ogden, a state District
Court judge.1 The court held that Agrawal’s claims against Judge Ogden were barred
* After examining the briefs and appellate record, this panel has determined unanimously to honor 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 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 We construe Agrawal’s claims as brought pursuant to 42 U.S.C. § 1983. by the doctrine of absolute judicial immunity.2 Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
Judge Ogden presided in a wage claim and collection action involving
Agrawal in Oklahoma County District Court. In his federal court complaint, Agrawal
alleged that Judge Ogden violated his right to due process by refusing to recuse and
by presiding over the state-court action in violation of the automatic bankruptcy stay
pursuant to 11 U.S.C. § 362(a). Judge Odgen moved to dismiss the claims against
him under Fed. R. Civ. P. 12(b)(1) and (6). The district court granted the motion,
holding that Judge Odgen was entitled to absolute judicial immunity. Agrawal
appeals the dismissal order entered July 9, 2018.3
We review de novo whether a defendant is immune from suit. Collins v.
Daniels, __ F.3d __, 2019 WL 908645, at *8 (10th Cir. Feb. 25, 2019).
The appropriate inquiry in determining whether a particular judge is immune is whether the challenged action was “judicial,” and whether at the time the challenged action was taken, the judge had subject matter jurisdiction. Stated differently, judges are liable only when they act in “clear absence of all jurisdiction”; they are absolutely immune even when their action is erroneous, malicious, or in excess of their judicial authority. Van Sickle v. Holloway, 791 F.2d 1431, 1435 (10th Cir. 1986) (citation omitted) (quoting
Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)). The district court held that Agrawal
2 Agrawal does not challenge on appeal the district court’s dismissal of his claims against the other named defendant, the “Courts of Oklahoma.” 3 Agrawal has not appealed the district court’s order denying his post-judgment motion to reconsider the dismissal order. See R., Vol. 2 at 7 (notice of appeal designating “Order dated 7/9/18”); Fed. R. App. P. 3(c)(1)(B) (notice of appeal must “designate the judgment, order, or part thereof being appealed”). 2 alleged no facts suggesting that Judge Ogden did not act in his judicial capacity or that he
took action in a clear absence of all jurisdiction.
Agrawal’s appeal briefs are prolix and primarily address the merits of the wage
claim and related collection action in state court—issues that are not before this court.
But because he appears pro se, we have liberally construed his filings “and have tried to
discern the kernel of the issues []he wishes to present on appeal.” de Silva v. Pitts,
481 F.3d 1279, 1283 n.4 (10th Cir. 2007). To the extent that Agrawal does address the
basis for the district court’s dismissal of his claims against Judge Ogden, he does not
contend that Judge Ogden’s actions were non-judicial. He appears to argue that Judge
Odgen acted in the clear absence of all jurisdiction because (1) he refused to recuse,
violating Agrawal’s right to due process, and (2) he took action in the state-court case in
violation of the automatic bankruptcy stay. Neither contention has merit.
“[T]he scope of the judge’s jurisdiction must be construed broadly where the
issue is the immunity of the judge.” Stump, 435 U.S. at 356. Moreover, there is “[a]
distinction . . . between excess of jurisdiction and the clear absence of all jurisdiction
over the subject-matter.” Id. at 356 n.6 (internal quotation marks omitted). Nothing
in Agrawal’s complaint suggested that Judge Odgen lacked subject-matter
jurisdiction over the state-court proceedings before him. See Van Sickle, 791 F.2d at
1435. Indeed, Oklahoma state District Courts are courts of general jurisdiction. See
Okla. Const. art. VII, § 7(a) (“The District Court shall have unlimited original
jurisdiction of all justiciable matters . . . and such powers of review of administrative
action as may be provided by statute.”).
3 Agrawal first contends that Judge Ogden is not immune because the Judge
deprived him of due process by continuing to participate in the state-court case while
Agrawal’s motion to disqualify was pending. But where the court is one of general
jurisdiction, a judge’s alleged procedural error does not render him liable in damages
for the consequences of his judicial action. See Stump, 435 U.S. at 359-60. This is
so even where, as here, the error is alleged to have resulted in a denial of due process.
See id. at 359 (rejecting contention that judicial immunity does not apply where a
judge “fail[s] to comply with elementary principles of procedural due process”
(internal quotation marks omitted)).
Alternatively, Agrawal argues that Judge Ogden is not immune because the
Judge took action in the state-court case while an involuntary bankruptcy was
pending against Agrawal.4 This court has held that a court “lack[s] power” to enter
an order affecting a debtor when proceedings are stayed pursuant to 11 U.S.C.
§ 362(a), and that “any action taken in violation of the stay is void and without
effect.” Ellis v. Consol. Diesel Elec. Corp., 894 F.2d 371, 372-73 (10th Cir. 1990).
But an automatic bankruptcy stay did not deprive Judge Ogden of subject-matter
jurisdiction, broadly construed, over the state-court case. Thus, even were Judge
Ogden to take action in violation of the stay, his act would not be in a clear absence
4 Judge Ogden asserts that no bankruptcy stay was in place, but he appears to overlook In re Agrawal, No. 16-11253 (Bankr.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 12, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court KRIS K. AGRAWAL,
Plaintiff - Appellant,
v. No. 18-6144 (D.C. No. 5:18-CV-00396-D) COURTS OF OKLAHOMA; RICHARD (W.D. Okla.) V. OGDEN,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, BALDOCK, and KELLY, Circuit Judges. _________________________________
Kris K. Agrawal appeals pro se from the district court’s dismissal of his
complaint asserting due process claims against Richard V. Ogden, a state District
Court judge.1 The court held that Agrawal’s claims against Judge Ogden were barred
* After examining the briefs and appellate record, this panel has determined unanimously to honor 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 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. 1 We construe Agrawal’s claims as brought pursuant to 42 U.S.C. § 1983. by the doctrine of absolute judicial immunity.2 Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
Judge Ogden presided in a wage claim and collection action involving
Agrawal in Oklahoma County District Court. In his federal court complaint, Agrawal
alleged that Judge Ogden violated his right to due process by refusing to recuse and
by presiding over the state-court action in violation of the automatic bankruptcy stay
pursuant to 11 U.S.C. § 362(a). Judge Odgen moved to dismiss the claims against
him under Fed. R. Civ. P. 12(b)(1) and (6). The district court granted the motion,
holding that Judge Odgen was entitled to absolute judicial immunity. Agrawal
appeals the dismissal order entered July 9, 2018.3
We review de novo whether a defendant is immune from suit. Collins v.
Daniels, __ F.3d __, 2019 WL 908645, at *8 (10th Cir. Feb. 25, 2019).
The appropriate inquiry in determining whether a particular judge is immune is whether the challenged action was “judicial,” and whether at the time the challenged action was taken, the judge had subject matter jurisdiction. Stated differently, judges are liable only when they act in “clear absence of all jurisdiction”; they are absolutely immune even when their action is erroneous, malicious, or in excess of their judicial authority. Van Sickle v. Holloway, 791 F.2d 1431, 1435 (10th Cir. 1986) (citation omitted) (quoting
Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)). The district court held that Agrawal
2 Agrawal does not challenge on appeal the district court’s dismissal of his claims against the other named defendant, the “Courts of Oklahoma.” 3 Agrawal has not appealed the district court’s order denying his post-judgment motion to reconsider the dismissal order. See R., Vol. 2 at 7 (notice of appeal designating “Order dated 7/9/18”); Fed. R. App. P. 3(c)(1)(B) (notice of appeal must “designate the judgment, order, or part thereof being appealed”). 2 alleged no facts suggesting that Judge Ogden did not act in his judicial capacity or that he
took action in a clear absence of all jurisdiction.
Agrawal’s appeal briefs are prolix and primarily address the merits of the wage
claim and related collection action in state court—issues that are not before this court.
But because he appears pro se, we have liberally construed his filings “and have tried to
discern the kernel of the issues []he wishes to present on appeal.” de Silva v. Pitts,
481 F.3d 1279, 1283 n.4 (10th Cir. 2007). To the extent that Agrawal does address the
basis for the district court’s dismissal of his claims against Judge Ogden, he does not
contend that Judge Ogden’s actions were non-judicial. He appears to argue that Judge
Odgen acted in the clear absence of all jurisdiction because (1) he refused to recuse,
violating Agrawal’s right to due process, and (2) he took action in the state-court case in
violation of the automatic bankruptcy stay. Neither contention has merit.
“[T]he scope of the judge’s jurisdiction must be construed broadly where the
issue is the immunity of the judge.” Stump, 435 U.S. at 356. Moreover, there is “[a]
distinction . . . between excess of jurisdiction and the clear absence of all jurisdiction
over the subject-matter.” Id. at 356 n.6 (internal quotation marks omitted). Nothing
in Agrawal’s complaint suggested that Judge Odgen lacked subject-matter
jurisdiction over the state-court proceedings before him. See Van Sickle, 791 F.2d at
1435. Indeed, Oklahoma state District Courts are courts of general jurisdiction. See
Okla. Const. art. VII, § 7(a) (“The District Court shall have unlimited original
jurisdiction of all justiciable matters . . . and such powers of review of administrative
action as may be provided by statute.”).
3 Agrawal first contends that Judge Ogden is not immune because the Judge
deprived him of due process by continuing to participate in the state-court case while
Agrawal’s motion to disqualify was pending. But where the court is one of general
jurisdiction, a judge’s alleged procedural error does not render him liable in damages
for the consequences of his judicial action. See Stump, 435 U.S. at 359-60. This is
so even where, as here, the error is alleged to have resulted in a denial of due process.
See id. at 359 (rejecting contention that judicial immunity does not apply where a
judge “fail[s] to comply with elementary principles of procedural due process”
(internal quotation marks omitted)).
Alternatively, Agrawal argues that Judge Ogden is not immune because the
Judge took action in the state-court case while an involuntary bankruptcy was
pending against Agrawal.4 This court has held that a court “lack[s] power” to enter
an order affecting a debtor when proceedings are stayed pursuant to 11 U.S.C.
§ 362(a), and that “any action taken in violation of the stay is void and without
effect.” Ellis v. Consol. Diesel Elec. Corp., 894 F.2d 371, 372-73 (10th Cir. 1990).
But an automatic bankruptcy stay did not deprive Judge Ogden of subject-matter
jurisdiction, broadly construed, over the state-court case. Thus, even were Judge
Ogden to take action in violation of the stay, his act would not be in a clear absence
4 Judge Ogden asserts that no bankruptcy stay was in place, but he appears to overlook In re Agrawal, No. 16-11253 (Bankr. W.D. Okla.), an involuntary bankruptcy petition filed against Agrawal by a number of his creditors. That case was pending from April 4, 2016, through January 22, 2019. Agrawal referenced this bankruptcy case in an exhibit to his complaint. See R., Vol. 1 at 72-81. 4 of all jurisdiction, and he would therefore still be immune from suit. See Womack v.
Mays (In re Womack), 253 B.R. 241, 242-43 (Bankr. E.D. Ark. 2000) (holding
judicial immunity “holds true even where the action seeks damages for violation of
the automatic stay”); Coates v. Peachtree Apartments (In re Coates), 108 B.R. 823,
825 (Bankr. M.D. Ga. 1989) (same).
Finally, Agrawal argues in his reply brief that he did not seek monetary
damages from Judge Ogden in his complaint. To the extent he claims that his
complaint sought only injunctive relief and that Judge Ogden is therefore not
immune, see Pulliam v. Allen, 466 U.S. 522, 541-42 (1984), we decline to consider
that contention. First, “[t]his court does not ordinarily review issues raised for the
first time in a reply brief.” Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000).
Additionally, the contention is perfunctory, at best. See Murrell v. Shalala, 43 F.3d
1388, 1389 n.2 (10th Cir. 1994) (“[P]erfunctory complaints fail to frame and develop
an issue sufficient to invoke appellate review.”). Although we liberally construe
Agrawal’s pro se briefs, we “will not craft a party’s arguments for him.” Perry v.
Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999).5
5 In any event, Agrawal cannot obtain injunctive relief against Judge Ogden under § 1983. See Knox v. Bland, 632 F.3d. 1290, 1292 (10th Cir. 2011) (holding that the Federal Courts Improvement Act of 1996 precludes injunctive relief against a judicial officer under § 1983); 42 U.S.C. § 1983 (providing that “in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable”). 5 The judgment of the district court is affirmed. Judge Ogden’s motion to
dismiss the appeal is denied as moot.
Entered for the Court
Paul J. Kelly, Jr. Circuit Judge