Phan v. Jackson

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit April 30, 2019 FOR THE TENTH CIRCUIT _________________________________ Elisabeth A. Shumaker Clerk of Court KENT VU PHAN, Plaintiff - Appellant, v. No. 18-1494 (D.C. No. 1:18-CV-03029-LTB) R. BROOKE JACKSON, Judge, (D. Colo.) Defendant - Appellee. _________________________________ ORDER AND JUDGMENT* _________________________________ Before CARSON, BALDOCK, and MURPHY, Circuit Judges.** _________________________________ On April 21, 2012, Plaintiff Kent Vu Phan sustained injuries in an automobile accident. He has filed multiple suits in state and federal court regarding this accident.

One of these suits—Civil Action 1:16-cv-2728-RBJ-CBS, filed in the United States District Court for the District of Colorado—involved Plaintiff suing State Farm Insurance Company for alleged violations of the Americans with Disabilities Act and insurance bad

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

After examining the appellant’s brief 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. faith. United States District Judge R. Brooke Jackson dismissed that civil action without prejudice for failure to prosecute because Plaintiff did not serve State Farm. Plaintiff did not appeal that order to this Court.

On November 27, 2018, Plaintiff, appearing pro se,1 filed this civil action, alleging that Judge Jackson improperly dismissed Civil Action 1:16-cv-2728-RBJ-CBS. Plaintiff contends that Judge Jackson’s dismissal of his complaint violated his rights under the Americans with Disability Act and his right to a jury trial. He also makes a conclusory allegation that his race was a factor in Judge Jackson’s decision. He also argues— without support—that throughout each of his federal cases, 1:16-cv-2728, 1:16-cv-3111, 1:17-cv-1067, 1:17-cv-196, 1:17-cv-2353, 1:17-cv-3073, 1:17-cv-2830, and 1:18-cv- 1403, the district court judge dismissed his complaint without due process and in violation of equal protection.

In dismissing Plaintiff’s complaint, the district court explained that Plaintiff made no allegations that Judge Jackson somehow acted outside of his jurisdiction or the judicial process.2 We agree.

We have long recognized the defense of absolute immunity from civil suits involving the judicial process. Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir. 1990). “A judge acting in his judicial capacity is absolutely immune from such suits, unless the judge acts clearly without any colorable claim of jurisdiction.” Id. Plaintiff has not made any allegations that Judge Jackson acted outside of the district court’s jurisdiction. Nor does Plaintiff present any evidence to support his claims against Judge Jackson.3 AFFIRMED.

Entered for the Court

Joel M. Carson III Circuit Judge