Phan v. Volz

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 2, 2022
• Docket: 21-1199
• Status: Unpublished

Opinion

Appellate Case: 21-1199 Document: 010110640336 Date Filed: 02/02/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 2, 2022 _________________________________ Christopher M. Wolpert Clerk of Court KENT VU PHAN,

Plaintiff - Appellant,

v. No. 21-1199 (D.C. No. 1:21-CV-00965-LTB-GPG) ELIZABETH B. VOLZ, Judge; DANIEL (D. Colo.) T. JACOBS, Attorney,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before McHUGH, MORITZ, and ROSSMAN, Circuit Judges. _________________________________

Plaintiff Kent Vu Phan appeals pro se from the dismissal of his lawsuit against

Defendants Elizabeth Beebe Volz, a state court judge in Arapahoe County, Colorado,

and Daniel T. Jacobs, whom Judge Volz appointed as guardian ad litem to protect

Mr. Phan’s interests in state-court lawsuits he filed in 2018. The district court

dismissed Mr. Phan’s claims based on judicial immunity, and we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 21-1199 Document: 010110640336 Date Filed: 02/02/2022 Page: 2

We review determinations of absolute immunity de novo.” Perez v. Ellington,

421 F.3d 1128, 1133 (10th Cir. 2005). Although we review a pro se litigant’s

pleadings liberally, we will not “take on the responsibility of serving as the litigant’s

attorney in constructing arguments and searching the record.” Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005).

A judge acting in her judicial capacity is absolutely immune from civil rights

claims “unless the judge acts clearly without any colorable claim of jurisdiction.”

Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir. 1990). The district court held Judge

Volz was entitled to absolute immunity, and Mr. Phan has not meaningfully

challenged that holding on appeal. See Garrett, 425 F.3d at 841 (“Under [Fed. R.

App. P.] 28, which applies equally to pro se litigants, a brief must contain more than

a generalized assertion of error, with citations to supporting authority.”).

The courts have extended absolute immunity to other officials, including

guardians ad litem, “who perform functions closely associated with the judicial

process.” Dahl v. Charles F. Dahl, M.D., P.C. Defined Ben. Pension Tr., 744 F.3d

623, 630 (10th Cir. 2014) (internal quotation marks omitted). This defense is called

“quasi-judicial immunity” when applied to non-judges. Id. The district court held

that quasi-judicial immunity protected Mr. Jacobs from Mr. Phan’s lawsuit, and

Mr. Phan again has not argued otherwise on appeal.

We conclude that the district court correctly dismissed Mr. Phan’s lawsuit on

these grounds. Accordingly, we affirm the dismissal of Mr. Phan’s claims against

Judge Volz and Mr. Jacobs. We deny Mr. Phan’s motion for leave to proceed in

2 Appellate Case: 21-1199 Document: 010110640336 Date Filed: 02/02/2022 Page: 3

forma pauperis. See Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir.

2005) (on a motion to proceed in forma pauperis, the movant must show not only an

inability to pay, but also “the existence of a reasoned, nonfrivolous argument on the

law and facts”). Mr. Phan’s pending motion to dismiss this appeal is deficient and he

has not corrected the deficiency as requested by the Court. The motion is therefore

denied.

Entered for the Court

Nancy L. Moritz Circuit Judge