*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The 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 

### FEB 24 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TERRY COLEMAN, Plaintiff-Appellant,

v. DARLA FARNSWORTH, Clerk of the Court of Leavenworth County; TERENCE LOBER, City Prosecutor, City of Lansing; ROBERT J. BEDNAR, Leavenworth County District Court Judge; DAVID VAN PRAYS, Legal Counsel, Leavenworth County; LEAVENWORTH COUNTY, KANSAS; LEAVENWORTH COUNTY DISTRICT COURT; LEAVENWORTH COUNTY CLERK’S OFFICE; CITY OF LANSING, KANSAS, Defendants-Appellees. No. 03-3296 (D. Kan.) (D.Ct. No. 03-CV-3119-GTV)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, and PORFILIO and BRORBY , Senior Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

Terry Coleman, a pro se litigant and inmate at a state correctional facili ty in Kansas City, appeals the district court’s dismis sal of his amended complaint relating to his 42 U.S.C. § 1983 claims against certain county and city officials and entities. We exercise jurisdiction under 28 U. S.C. § 1291 and affirm.

In his § 1983 action, Mr. Coleman alleged certain K ansas judicial, city and county officials violated his constitutional rights . In general, he claimed the district court clerk acted as the “ring leader” of the named defendants, and repeatedly failed to issue state summons in a state civil action filed by Mr. Coleman against the City of Lansing, Kansas. Simil arly, he claimed other county and city officials and entities, including the dist rict court judge, city and county attorneys, the district court, office of the clerk of courts, and the county, conspired together with the district court clerk to deny him access to state court by failing to issue any summons. Mr. Coleman claim s the state district court1 As to the more specific allegations asserted, we will not repeat them as the

parties are familiar with them and the district court briefly outlined them in its decision before us on appeal. Admittedly, Mr. Coleman’s account of his attempts to initiate service on the defendants, if taken as true, demonstrate a layman’s frustration in understanding how, and attempting, to obtain service, but are insufficient to state a § 1983 claim for the reasons discussed herein.

2This is not the first time Mr. Coleman has alleged mailing discrepancies, causing his untimely filing of pleadings. See Coleman v. Sheriff, Wyandotte County, 232 F.3d 900, 2000 WL 1475778 at **1-2 (10th Cir. Oct. 5, 2000) (unpublished opinion) (dismissing appeal based on alleged conspiracy of prison officials to interfere with timely delivery of Mr. Coleman’s mail, which allegedly caused Mr. Coleman to fail to timely respond to an order to correct errors in his complaint and the dismissal of another of his -3- judge ordered him to file a praecipe for service, h e filed a “mandamus for service,” and the judge ultimately instructed the c ourt clerk to issue the summons after she repeatedly refused to do so. Mr. Coleman also claims he himself personally served a file-stamped summons on the city attorney, and served the other defendants by sending them file-stamped summo ns initialed by the clerk, “via U.S. mail.” According to Mr. Coleman, the sam e judge later dismissed Mr. Coleman’s action against the City of Lansing for fa ilure to appear, prosecute his case, and serve the defendants. 1 Mr. Coleman believes his case was dismissed because the clerk intentionally failed to make a do cket entry showing personal service on the defendants. Mr. Coleman also claims he attempted to appeal the dismissal of his case to the Kansas Court of Appeal s, but because of mailing discrepancies caused by the state district court, t he court dismissed his appeal as untimely. 2 Mr. Coleman then initiated this § 1983 action in the federal districtcivil actions.).

3 As the district court advised, 29 U.S.C. § 1915(g) contains a three-strike provision, which prevents a prisoner from proceeding in forma pauperis in bringing a civil action or appeal if, on three or more prior occasions, a prisoner brings an action dismissed as frivolous, malicious or for failing to state a claim on which relief may be granted. It does not apply if the prisoner is in imminent danger of serious physical injury. 29 U.S.C. § 1915(g).

-4- court.

The district court dismissed all but one of Mr. Col eman’s § 1983 claims, under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(ii ), for failure to state a claim on which relief may be granted. As to his remainin g claim against the City of Lansing, Oklahoma, the district court dismissed it as frivolous. Finally, he counted the dismissal of Mr. Coleman’s action as a “strike” pursuant to 28 U.S.C. § 1915(g). 3

In dismissing Mr. Coleman’s § 1983 action, the dist rict court analyzed the facts asserted and applicable law. In short, it explained the state afforded Mr. Coleman a right to access the courts when he filed his complaint in state court. It also recognized the availability of the state appel late court to remedy any error by the judge or clerk in handling his action, but poin ted out Mr. Coleman did not take advantage of this remedy when he failed to tim ely file a state appeal. It also-5-

explained the federal courts lack authority to dire ct state courts or their judicial officers in their performance of their duties, or o ffer appellate review of a state court action.

As to any federal constitutional claim, the distric t court judge generally pointed out judges and other court officials enjoy absolute immunity from claims arising from performance of their judicial or quasi -judicial functions, and that the offices of the court itself and the clerk of court are similarly not entities amenable to suit. The district court also dismissed the cla im against the county as Mr. Coleman failed to allege any constitutional deprivation based on an official county policy or custom. In addition, he found Mr. Coleman’s broad allegation of conspiracy by the county attorney and city attorney too conclusory to state a claim for relief under 42 U.S.C. § 1983. Finally, it det ermined Mr. Coleman’s claim for damages against the City of Lansing, merely because it benefitted from the dismissal of Mr. Coleman’s state civil complaint ag ainst it, was frivolous.

Mr. Coleman appeals the district court’s dismissal, claiming: 1) the court clerk unconstitutionally denied him access to the c ourt; 2) the court clerk should not enjoy absolute immunity because she refused to follow a court order; 3) the city can be held liable under § 1983 for actions de priving him of a constitutional4Mr. Coleman is referring to his motion to amend his complaint, in which he

asked the federal district court to “delete” the county district court judge as a defendant. The district court granted the motion and dismissed the complaint as amended.

-6- right; and 4) the defendants conspired to deny him access to the court. In addition, Mr. Coleman points out he moved for the s tate judge’s dismissal as a defendant in the district court action based on that judge’s order to issue a

summons. 4

We review de novo an order dismissing a prisoner’s § 1983 complaint for failure to state a claim under 28 U.S.C. §§ 1915A(b )(1) and 1915(e)(2)(B)(ii). See McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001). On appeal, this court
construes pro se pleadings liberally, applying a less stringent sta ndard than formal pleadings drafted by lawyers. See Haines v. Kerner , 404 U.S. 519, 520 (1972). “Dismissal of a pro se complaint for failure to state a claim is properonly where it is obvious that the plaintiff cannot prevail on the facts he alleged and it would be futile to give him an opportunity to amend.” Perkins v. Kansas Dept. of Corr. , 165 F.3d 803, 806 (10th Cir. 1999). “In determinin g whether dismissal is proper, we must accept the allegations of the complaint as true and ... construe those allegations, and any reasonable inferences that mig ht be drawn from them, in the light most favorable to the plaintiff.” Id. While we must construe the complaint-7-

in the light most favorable to the plaintiff, we wi ll not accept conclusory allegations on the legal effect of the events set o ut if they do not reasonably follow from the description of those events or if t he allegations are contradicted by the plaintiff’s other allegations or description s. See E.F.W. v. St. Stephen’s Indian High Sch. , 264 F.3d 1297, 1306 (10th Cir. 2001); Landmark Land Co. of Okla., v. Buchanan , 874 F.2d 717, 722 (10th Cir. 1989), abrogated on other grounds . Lastly, we may affirm a district court’s dismiss al on any grounds supported by the record. See Ruiz v. McDonnell , 299 F.3d 1173, 1182 (10th Cir. 2002), cert. denied, 123 S. Ct. 1908 (2003).

With these standards in mind, we have reviewed the pleadings, Mr. Coleman’s brief and amended brief, the record on ap peal, and the district court’s decision, considering them in light of the applicab le law. The district court issued a comprehensive and well-reasoned decision. For the purposes of judicial economy, we will not repeat its discussion of the applicable law or reasoning in dismissing Mr. Coleman’s Amended Complaint for fail ure to state a cause of action, other then to articulate additional reasoni ng concerning the dismissal against the court clerk.

We note the district court relied on other circuit law in generally-8-

concluding the clerk of court enjoys absolute immun ity even if she erred in not implementing the court’s directive. See Foster v. Walsh , 864 F.2d 416, 417-18 (6th Cir. 1988) (holding issuance of warrant by cle rk was a judicial act entitled to absolute immunity); Smith v. Erickson , 884 F.2d 1108, 1111 (8th Cir. 1989) (holding clerk who allegedly impeded access to the court by intentionally delaying filing of complaint for several months and lying ab out its whereabouts, is protected by judicial immunity for actions committe d in connection with such tasks.)

In order to understand the immunity afforded a cler k of court, it is first necessary to examine the immunity afforded judges. It is well established in this circuit that a judge is absolutely immune from civi l liability for judicial acts, unless committed in clear absence of all jurisdicti on, and the same immunity continues even if “flawed by the commission of grav e procedural errors.” Whitesel v. Sengenberger , 222 F.3d 861, 867 (10th Cir. 2000) (quotation mar ks and citation omitted). Moreover, judges are “absol utely immune regardless of their motive or good faith,” Smith v. Losee , 485 F.2d 334, 342 (10th Cir. 1973) (citing Doe v. McMillan , 412 U.S. 306, 319 (1973), “even when the judge is accused of acting maliciously and corruptly.” Pierson v. Ray , 386 U.S. 547, 553 (1967). We have extended the same immunity to judic ial officers where-9-

performance of a judicial act is involved or their duties have an integral relationship with the judicial process. See Whitesel , 222 F.3d at 867; Lundahl v. Zimmer , 296 F.3d 936, 939 (10th Cir. 2002), cert. denied, 123 S. Ct. 1797 (2003). Applying this standard, we have held a court clerk enjoys absolute quasi-judicial immunity when he or she performs a “judicial act,” such as entry of a default judgment. See Lundahl , 296 F.3d at 939. While we have held court clerks are generally entitled to such immunity, we also have h eld it is necessary “to weigh the nature of the activity involved and the need fo r unfettered exercise of discretion against the individual interest in prote ction under § 1983.” Henriksen v. Bentley , 644 F.2d 852, 855-56 (10th Cir. 1981). The doctr ine of absolute immunity ensures judges and judicial officers perfo rm their duties vigorously and without fear of time-consuming, costly, “vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities.” See Smith v. Losee , 485 F.2d at 341 (quotation marks and citation omitted).

In this case, Mr. Coleman claims the court clerk di d not perform a “judicial act,” because she disobeyed a judge’s instructions to issue summons and also failed to enter in the case docket Mr. Coleman’s se rvice of the summons on the defendants. While a clerk’s disregard of a court’s order or instructions cannot be-10-

condoned, a clerk’s duties with respect to the issu ance of a summons nevertheless involve a judicial act, or one having an integral r elationship with the judicial process, which must be afforded the defense of immu nity. This is because, practically speaking, a clerk must have unfettered discretion to review a complaint or other pleadings supporting the issuanc e of a summons to determine whether the requisite filing requirements have been met and a summons should issue. In such a case, the defense of judicial imm unity should generally apply, regardless of procedural error, motive or good fait h. See Whitesel , 222 F.3d at 867; Smith v. Losee , 485 F.2d at 342; Lundahl , 296 F.3d at 939.

To hold otherwise would have a chilling effect on t he judicial duties and actions of the clerk, who would be readily subject to suit in the course of performing his or her duties in determining whethera summons should issue. See Smith v. Losee , 485 F.2d at 340-41. Our reasoning follows other circuit court decisions. See Smith v. Erickson , 884 F.2d at 1111 (concluding clerk’s duties in filing documents was an integral part of the judici al process, so the clerk’s delayed filing of the complaint and lies about its whereabouts, was protected by judicial immunity); Mullis v. United States Bankr. Ct. , 828 F.2d 1385, 1390 (9th Cir. 1987) (determining bankruptcy clerks enjoyed a bsolute quasi-judicial immunity for refusing to accept an amended complain t, as their actions related to5Admittedly, at least one circuit has taken a different approach, determining a

court clerk who disobeys a court order, or exceeds his or her statutory authority by failing to file papers, loses the defense of absolute immunity based on the failure to discharge a mandatory, nondiscretionary duty. See McCray v. Maryland , 456 F.2d 1, 5 (4th Cir. 1972) (holding clerk who impeded filing of prisoner’s post-conviction papers was not entitled to absolute immunity for mandatory, ministerial act). We are not, however, bound by this decision, nor the limited analysis therein.

-11- an integral part of the judicial process); Eades v. Sterlinske , 810 F.2d 723, 726 (7th Cir. 1987) (holding judge’s clerk, who prepare d a false certificate and altered the docket, was exercising discretion and performin g duties integrally related to the judicial process, which afforded her the defens e of absolute immunity.). 5

As to the clerk’s alleged failure to enter Mr. Cole man’s service on the defendants in the docket, it is unclear if Mr. Cole man followed the requirements for service, including those for service by mail. Again, the clerk of court has discretion to determine if service was properly mad e, which is an exercise of a duty with an integral relationship with the judicia l process, and therefore, must be afforded the defense of immunity.

Alternatively, even if the clerk’s actions in this case relieved her of the defense of quasi-judicial immunity, Mr. Coleman’s a mended complaint is insufficient to state a cause of action. This is b ecause Mr. Coleman’s allegation-12-

the court clerk disobeyed the judge’s order is dire ctly contradicted by, or does not follow from, his other allegations or description o f events. See E.F.W. , 264 F.3d at 1306; Landmark, 874 F.2d at 722. Specifically, Mr. Coleman alleg es the court clerk disobeyed a judge’s alleged order to issue su mmons for service on the defendants, but he also alleges that because of the clerk’s failure to issue the summons, the same judge dismissed the action for fa ilure to serve the defendants. If in fact the judge ordered the clerk to issue a s ummons for service on the defendants and the order was disobeyed, it does notfollow he would later dismiss the case based on Mr. Coleman’s failure to obtain asummons for service on the defendants. Moreover, Mr. Coleman claims he obtain ed filed-stamped summons initialed by a court clerk, and the judge also appe ars to have dismissed the case because of Mr. Coleman’s failure to appear and pros ecute his case. Based on these circumstances, it appears other reasons beyon d the clerk of court’s conduct in failing to issue a summons or make a docket entry, resulted in dismissal of Mr. Coleman’s action and the injury he now claims. Acc ordingly, Mr. Coleman’s allegations against the court clerk are insufficien t to state a cause of action.

As to dismissal of the claim against the city as fr ivolous, “[t]he test of legal frivolity is whether a plaintiff can make a rationa l argument on the law and facts in support of his claims.” Wiggins v. New Mexico State Supreme Court Clerk,-13-

665 F.2d 812, 815 (10th Cir. 1981). In this case, it is not clear whether the district court dismissed the claim under 28 U.S.C. § 1915(e) or § 1915A, or both. We review for an abuse of discretion a district cou rt’s § 1915(e) dismissal for frivolousness, see McWilliams v. Colorado , 121 F.3d 573, 575 (10th Cir. 1997), but have not determined whether a dismissal under 2 8 U.S.C. § 1915A for frivolousness is reviewed de novo or for an abuse of discretion. See Plunk v. Givens , 234 F.3d 1128, 1130 (10th Cir. 2000). Neverthele ss, in applying either standard in this case, we come to the same conclusi on. We agree with the district court on the same grounds articulated in its decisi on that the claim is legally frivolous.

Accordingly, we AFFIRM the district court’s decision for substantially th e same reasons articulated in the district court’s Se ptember 12, 2003 Order, and other reasons discussed herein. In so doing, we gr ant Mr. Coleman’s request for an “Amended Brief to Be Incorporated With Appellant ’s Opening Brief,” which we considered in rendering this decision. We note the district court granted Mr. Coleman’s request to proceed on appeal in forma pauperis . We nevertheless remind Mr. Coleman of his obligation to continue ma king partial payments of the6Mr. Coleman should be fully aware of his continuing obligation to make

payments, given his previous unsuccessful appeal to this court and our instruction for him to continue his payment obligation in that case until entire payment of the appellate filing fee. See Coleman, 2000 WL 1475778 at *2.

-14- appellate filing fee pursuant to 28 U.S.C. § 1915(b ) until the entire fee is paid. 6 The district court’s dismissal of Mr. Coleman’s ame nded complaint counts as a strike for the purposes of 28 U.S.C. § 1915(g). See Jennings v. Natrona County Det. Ctr. Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999). The mandate shall issue forthwith.

Entered by the Court: WADE BRORBY United States Circuit Judge