UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

KENT VU PHAN, 

 Plaintiff - Appellant, 

v. 

LEWIS T. BABCOCK, Judge; GORDON 

P. GALLAGHER, Judge, 

 Defendants - Appellees. 

No. 18-1493 

(D.C. No. 1:18-CV-03163-CMA) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, PHILLIPS, and EID, Circuit Judges. 

_________________________________ 

Unhappy with the outcome of his district court proceedings, pro se PlaintiffAppellant Kent Vu Phan has filed suit against two federal judges.1

 Specifically, Phan 

contends United States District of Colorado Judge Lewis T. Babcock and United 

States District of Colorado Magistrate Judge Gordon P. Gallagher adjudicated his 

 *

 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. 

1

 Because Phan proceeds pro se, we liberally construe his pleadings; we will 

not, however, serve as his advocate or craft legal arguments on his behalf. See Hall v. 

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 19, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

cases improperly thereby violating his rights under Bivens v. Six Unknown Named 

Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); the Americans with 

Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 

(ADAAA), 42 U.S.C. § 12101 et seq.; the Rehabilitation Act, 29 U.S.C. §§ 504 

and 794; and 42 U.S.C. §§ 1983 and 1981. In a well-reasoned and cogent order, the 

district court dismissed Phan’s complaint as both legally frivolous and seeking 

damages from defendants who are immune from liability. Exercising jurisdiction 

under 28 U.S.C. § 1291, we affirm. 

Whenever a plaintiff seeks to proceed in forma pauperis, as Phan has done 

here, 28 U.S.C. § 1915(e)(2)(B) requires the district court judge to screen the 

complaint and dismiss it if “the action or appeal . . . is frivolous or malicious . . . or 

seeks monetary relief against a defendant who is immune from such relief.” A district 

court properly dismisses a complaint as frivolous “only if it lacks an arguable basis in 

either law or in fact. In other words, dismissal is only appropriate for a claim based 

on an indisputably meritless legal theory and the frivolousness determination cannot 

serve as a factfinding process for the resolution of disputed facts.” Fogle v. Pierson, 

435 F.3d 1252, 1259 (10th Cir. 2006) (citations and internal quotation marks 

omitted). Where, as here, “the frivolousness determination turns on an issue of law, 

we review the determination de novo.” Milligan v. Archuleta, 659 F.3d 1294, 1296 

(10th Cir. 2011) (internal quotation marks omitted). 

 Judges are entitled to absolute immunity, with “only two exceptions this rule: 

(1) when the act is not taken in the judge’s judicial capacity, and (2) when the act, 
3 

though judicial in nature, is taken in the complete absence of all jurisdiction.” Stein v. 

Disciplinary Bd. of Supreme Ct. of N.M., 520 F.3d 1183, 1195 (10th Cir. 2008) 

(alterations and internal quotation marks omitted). Neither exception is at issue here. 

Therefore, Judges Babcock and Gallagher are entitled to absolute immunity in their 

handling of Phan’s cases before them and Phan’s claims against them are legally 

frivolous. Accordingly, the district court properly dismissed with prejudice the 

complaint against them. 

For the foregoing reasons, we AFFIRM the district court’s order of dismissal. 

Further, because Phan has failed to show “the existence of a reasoned, nonfrivolous 

argument on the law and facts in support of the issues raised on appeal,” Watkins v. 

Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (internal quotation marks omitted), we 

DENY his application to proceed in forma pauperis on appeal and direct him to make 

full and immediate payment of all outstanding appellate filing fees. 

Phan has also titled his brief, “Appellant’s Combined Opening Brief and 

Application for a Certificate of Appealability.” If he thinks he needs a certificate of 

appealability to appeal the dismissal, he is mistaken. See 28 U.S.C. § 2253(c). We 

therefore DENY AS MOOT Phan’s nominal requests for certificates of 

appealability. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge