* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 22 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN V. McALISTER, an individual,

Plaintiff - Appellant,

v. GEORGE MILLER, individually and in his capacity as Director Oklahoma Department of Human Services; SANDRA CAMPBELL, individually and in her official capacity as Department of Human Services supervisor; PAM CADAMY, individually and in her official capacity as Department of Human Services case worker; JAMES PERCIVAL, individually and in his official capacity as court appointed counsel; JIM LOWERY, M.D., sued as Psychiatric Associates Inc. ex rel defendant Lowery; ROGER STUART; STATE OF OKLAHOMA, ex rel Campbell, Cadamy and Percival,

Defendants - Appellees. No. 98-6338 (D. Ct. No. 97-CV-345-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.- 2 -

After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. This appeal is from several orders of the district court dismissing appellant McAlister’s complaint for failure to state a claim upon which relief could be granted. Petitioner appeals alleging that the dist rict court erred in dismissing his complaint, in denying his motion to alter or amend the judgments, and in denying plaintiff access to various documents relating to t his matter. We affirm. Plaintiff McAlister is representing himself in this action, brought pursuant to 42 U.S.C. § 1983, alleging that his civil rights have been violated by state court proceedings which resulted in the termination of hi s parental rights. We construe the pleadings, and all of the filings in this case and on appeal, liberally. Haines v.
Kerner , 404 U.S. 519, 520-21 (1972). We agree with the d istrict court that plaintiff in this matter represents only himself an d not his minor children because any right that he had to sue on behalf of the child ren was terminated when plaintiff’s parental rights were terminated under O klahoma law. Okla. Stat. Tit. 10, § 7006-1.3. A federal court action on behalf o f minors may only be prosecuted by a legally appointed guardian or guard ian ad litem. Fed. R. Civ. P. 17(c). The district court therefore correctly dete rmined that plaintiff in this- 3 -

action may sue only on his own behalf. The claims against all of the defendants in this matter relate to the defendants’ roles and responsibilities in the event s and proceedings surrounding the termination of plaintiff’s parental rights to two minor children. The district court found that some of the defendants were entitl ed to absolute immunity under the Eleventh Amendment to the Constitution. Thus, the cases against DHS and George Miller, Pam Cadamy, and Sandra Campbell in their official capacities were dismissed on the grounds of absolute immunity. Construing the complaint liberally, the district court further found that Ge orge Miller, Pam Cadamy, and Sandra Campbell were entitled to absolute immunity in the claims against them related to their testimony given at plaintiff’s par ental rights termination hearing.
See Briscoe v. LaHue , 460 U.S. 325, 335-36 (1983). To the extent that these officials were sued in their individual capacities for actions other than their testimony, the district court found that plaintiff had failed to plead sufficient facts to establish any violation of a constitutional righ t. With respect to defendants Kim Lowery, M.D., and Ps ychiatric Associates, Inc., the district court found that plaintiff had f ailed to state a claim against Dr. Lowery because the factual allegations failed to es tablish that he acted under color of state law in the matters related to plaint iff’s allegations. Because state action is a necessary element of a § 1983 action, t he complaint was dismissed for- 4 -

failure to state a claim against both Dr. Lowery an d Psychiatric Associates, Inc. The Honorable Roger H. Stuart, Special Judge of Okl ahoma County, Oklahoma, presided over the plaintiff’s parental ri ghts termination hearing. The district court correctly determined that Judge Stuart is entitled to absolute immunity from § 1983 liability under these circumst ances. See, e.g. , Hunt v.
Bennett , 17 F.3d 1263, 1266 (10th Cir. 1994). The distric t court further found that plaintiff was not entitled to injunctive relie f under the circumstances of this case where there is no legitimate claim that a cons titutional violation was committed. Finally, defendant James L. Percival was an attorne y appointed to represent McAlister’s two minor children, John Eric McAlisterand Jeffrey Scott McAlister, in the court action in the juvenile division of the Oklahoma County district court that resulted in plaintiff’s parental rights being terminated in March of 1995. At all relevant times, Percival was acting as a privat e attorney in his representation of the minors. The district court found that the c laims against defendant Percival were not cognizable because he was not acting undercolor of state law at the time that he represented the minor children. Further, t he district court found that there was no contention that defendant Percival acted in concert with the state to deprive plaintiff of a particular constitutional ri ght. The district court therefore dismissed the action against Percival sua sponte fo r failure to state a claim.- 5 -

A review of the pleadings and record in this case m akes clear that the plaintiff has failed to state a claim against any o f the defendants. No constitutional violation has been asserted against a person who acted under color of state law or acted in concert with the state. W e affirm all of the orders of the district court against all of the defendants in thi s matter for substantially the reasons given by the district court. AFFIRMED. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge