Oliver Benjamin Gerrish v. David Ockey

951 F.2d 1259, 1991 U.S. App. LEXIS 32486, 1991 WL 275636

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 20, 1991
• Docket: 91-4122
• Status: Published

Opinion

951 F.2d 1259

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.

Oliver Benjamin GERRISH, Plaintiff-Appellant,
v.
David OCKEY, Defendant-Appellee.

No. 91-4122.

United States Court of Appeals, Tenth Circuit.

Dec. 20, 1991.

Before McKAY, Chief Judge, SEYMOUR and EBEL, Circuit Judges.

ORDER AND JUDGMENT*

McKAY, Chief 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); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff brought this 42 U.S.C. § 1983 and § 1985 action against only the probation officer who prepared the presentence report in his state case after he had pled guilty. He essentially alleges that the probation officer's presentence report contained either improper or inaccurate statements, and that he was given an inadequate opportunity to respond to them. The trial court dismissed the action as frivolous under 28 U.S.C. § 1915(d). The basis for the trial court's dismissal was the absolute immunity of the probation officer for the probation officer's activities involving performance of quasi-judicial functions. It appears from the plaintiff's complaint that the allegations of misconduct by the probation officer involved activities intimately associated with the judicial phase of the criminal process. It was therefore appropriate that the trial court dismissed the action as frivolous under 28 U.S.C. § 1915(d). Tripati v. United States Immigration and Naturalization Service, 784 F.2d 345, 347-48 (10th Cir.1986), cert. denied, 484 U.S. 1028 (1988).

AFFIRMED. The mandate shall issue forthwith.

* 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