Lary Gene Shelton v. John Suthers, 4th District, District Attorney, and Robyn Hamilton, Deputy District Attorney

952 F.2d 409, 1992 U.S. App. LEXIS 4630, 1992 WL 7448

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 16, 1992
• Docket: 91-1281
• Status: Published

Opinion

952 F.2d 409

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Lary Gene SHELTON, Plaintiff-Appellant,
v.
John SUTHERS, 4th District, District Attorney, and Robyn
Hamilton, Deputy District Attorney, Defendants-Appellees.

No. 91-1281.

United States Court of Appeals, Tenth Circuit.

Jan. 16, 1992.

Before JOHN P. MOORE, TACHA and BRORBY, Circuit Judges.

ORDER AND JUDGMENT*

JOHN P. MOORE, 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 panel. See Fed.R.App.P. 34(e); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Lary Shelton appeals the dismissal of his § 1983 action against two Colorado Deputy District Attorneys. The district court, upon the recommendation of a magistrate judge, found the complaint asserted claims against the defendants for actions taken in their official capacity and dismissed the action on grounds of prosecutorial immunity. On appeal, Mr. Shelton asserts (to the extent we are able to understand his brief) that the district court misconstrued his complaint and that "this case does not have connection with the prosecutorial function of the district attorney." He seems to argue that the object of his suit is some agency of the State of Colorado.

We have examined the complaint filed in the district court, and we see no way to construe it other than as a suit against the defendants for actions they took in their official capacity. As a consequence, the district court correctly concluded they were immune and dismissed the case. Arnold v. McClain, 926 F.2d 963, 967 (10th Cir.1991). Mr. Shelton's effort to avoid this result by asserting his grievance was against an agency of the state is in vain because of the Eleventh Amendment prohibition of such actions. The mandate shall issue forthwith.

AFFIRMED.

* This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3