*

 This order and judgment is not binding precedent except under the doctrines of law of

the case, res judicata and 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

January 24, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

MAGDALENA GIRON,

Plaintiff-Appellee,

v.

SUSANA CHAPARRO,

Defendant-Appellant.

No. 05-2015

(D. N.M.)

(D.Ct. No. CIV-04-670 BB/WDS)

____________________________

ORDER AND JUDGMENT*

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and

McCONNELL, Circuit Judge.

Appellant Susana Chaparro, a state magistrate judge, appeals the district

court’s denial of her motion to dismiss the 42 U.S.C. § 1983 action against her

based on the doctrine of absolute judicial immunity. Exercising our jurisdiction

under 28 U.S.C. § 1291, we reverse and remand.

The following facts are uncontested. Judge Chaparro is a magistrate judge
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for the Doña Ana County court system in New Mexico. The parties generally

agree that under New Mexico law Judge Chaparro possesses the authority to issue

contempt citations or orders for disorderly behavior or breach of the peace

tending to interrupt or disturb a judicial proceeding in progress before a

magistrate or for disobedience of any lawful order or process of the court. See

N.M. Stat. Ann. § 35-3-9 (1978). The Appellee, Magdalena Giron, is a contract

employee with the Administrative Offices of the Courts of the State of New

Mexico, for the purpose of providing interpreting services to the courts in Doña

Ana County. On June 26, 2001, Judge Chaparro summoned Ms. Giron to her

courtroom, where Judge Chaparro was presiding before two assistant district

attorneys, a public defender, and a Spanish-speaking client. The reason for Ms.

Giron’s presence was to translate during the proceeding, which she failed to

perform due to a misunderstanding on her part. 

The judge became upset with Ms. Giron’s failure to perform her contract

services, after which Ms. Giron said they needed to talk to the chief clerk of the

court and began to walk out of the courtroom. Despite the judge’s order for Ms.

Giron to return, she left the proceeding. The judge followed Ms. Giron to the

clerk’s office and again ordered Ms. Giron to return to the courtroom, but she

refused. Judge Chaparro then ordered Ms. Giron to leave the courthouse, but she
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refused. On the following day, two police officers arrested Mr. Giron at the

courthouse, based on a warrant stemming from a contempt of court order to show

cause issued by Judge Chaparro. 

Ms. Giron brought a civil rights action under 42 U.S.C. § 1983 for violation

of her First, Fourth, and Fourteenth Amendment rights, based in part on the judge

holding her in contempt. Specifically, she claimed the contempt order arose from

the judge’s personal animus against her because (1) she, rather than the judge’s

sister, received the interpreter services contract for the court, and (2) she

previously lodged grievances against the judge for what she described as a

campaign of harassment which began the day she started her contract. She also

contended the judge previously engaged in harassment, intimidation, and

interference against her in an effort to constructively discharge her from her

contract by making accusations in the presence of others that she falsified

vouchers, performed incompetently, and failed to provide sufficient interpreter

services to the court. She alleged that based on Judge Chaparro’s wrongful

actions and her fear of continued harassment and retaliation by her, she did not

bid to renew her contract. In response, Judge Chaparro brought a motion to

dismiss on grounds of (1) absolute judicial immunity for performing a judicial act

of issuing a contempt order, and (2) failure to state a cause of action because Ms.
1

 Ms. Giron incorrectly claims the only question presented to the district court in

Judge Chaparro’s motion to dismiss was absolute immunity. 

2

 We note the district court did not explicitly address the other issue raised by

Judge Chaparro in her motion to dismiss with respect to harassment and other related

charges Ms. Giron made in her complaint against her. Because the district court did not

address it, and Judge Chaparro did not raise or address that issue on appeal, we do not

consider it here. See Drake v. City of Ft. Collins, 927 F.2d 1156, 1159 (10th Cir. 1991);

Cunico v. Pueblo Sch. Dist., 917 F.2d 431, 444 (10th Cir. 1990).

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Giron failed to allege she was terminated from any position or lost other

employment opportunities because of any statements made by Judge Chaparro.1

In considering Judge Chaparro’s motion to dismiss, the district court

determined the only question presented was the issue of absolute judicial

immunity under the facts alleged in Ms. Giron’s complaint.2 The district court

denied the motion to dismiss, determining Judge Chaparro was not entitled to

absolute immunity as a matter of law because it was unclear whether the judge

acted as an employer attempting to impose her will over a court employee or in a

judicial capacity attempting to control the conduct of the proceeding in her

courtroom. Judge Chaparro appeals the order, claiming the district court

erroneously considered the “personal motives” of the judge “rather than looking

at the nature of the act itself” and determining whether it is a function

traditionally performed by a judge. Because the act of issuing a contempt citation

is exclusively judicial in nature, she suggests any alleged motive associated with
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the act is irrelevant, even if motivated by malice, corruption, or other improper

intent.

We review de novo the district court’s denial of a judge’s motion to dismiss

based on absolute judicial immunity. See Malik v. Arapahoe Co. Dept. of Soc.

Servs., 191 F.3d 1306, 1313 (10th Cir. 1999) (relying on Kamplain v. Curry Co.

Bd. of Comm’rs, 159 F.3d 1248, 1250 (10th Cir. 1998)); Gagan v. Norton, 35 F.3d

1473, 1475 (10th Cir. 1994). In reviewing a district court’s decision on a motion

to dismiss for absolute immunity, we accept the allegations of the complaint as

true. See Gagan, 35 F.3d at 1475. It is well-settled judges are generally “immune

from a suit for money damages,” Mireles v. Waco, 502 U.S. 9, 9 (1991) (per

curiam), and such immunity applies to actions brought under 42 U.S.C. § 1983 to

recover for alleged deprivation of civil rights. See Pierson v. Ray, 386 U.S. 547,

554-55 (1967); Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000). 

The doctrine of absolute immunity ensures judges and judicial officers perform

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 334, 341 (10th Cir.

1973) (quotation marks and citation omitted). Judges enjoy absolute judicial

immunity even if “flawed by the commission of grave procedural errors”
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Whitesel, 222 F.3d at 867 (quotation marks and citation omitted), and regardless

of a judge’s “motive or good faith,” Smith, 485 F.2d at 342 (citations omitted), or

whether “the judge is accused of acting maliciously and corruptly,” Pierson, 386

U.S. at 554.

Two exceptions to judicial immunity exist. First, a judge is not immune

from liability for non-judicial acts, which are acts not taken in the judge’s judicial

capacity. See Mireles, 502 U.S. at 11-12. Second, a judge is not immune from

actions, though judicial in nature, taken “in the complete absence of all

jurisdiction.” Id. In determining the scope of a judge’s jurisdiction, it “must be

construed broadly where the issue is the immunity of the judge,” Stump v.

Sparkman, 435 U.S. 349, 356 (1978), and merely acting in excess of authority

does not constitute an action in the “clear absence of all jurisdiction.” Id. at 356-

57 (quotation marks and citation omitted).

In this case, the parties generally rely on New Mexico Statutes Annotated

§ 35-3-9 (1978) for the proposition that Judge Chaparro has authority to issue

contempt citations, which states:

A magistrate has jurisdiction to punish for contempt only for

disorderly behavior or breach of the peace tending to interrupt or

disturb a judicial proceeding in progress before the magistrate or for

disobedience of any lawful order or process of his court. No person
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shall be punished for contempt of the magistrate court until given an

opportunity to be heard in his defense. Any person convicted under

this section may appeal to the district court in the same manner as in

other criminal actions in the magistrate court.

N.M. Stat. Ann. § 35-3-9 (1978). The New Mexico Legislature also enacted the

following general contempt statute: “It shall be within the power of each and

every presiding officer of the several courts of this state, whether of record or not

of record, to preserve order and decorum, and for that purpose to punish

contempts by reprimand, arrest, fine or imprisonment ....” N.M. Stat. Ann. § 34-1-2

(1978). 

In addition, the rules of civil and criminal procedure for magistrate courts

promulgated by the New Mexico Supreme Court, and relied on by Judge Chaparro

in her motion to dismiss, state:

A. Jurisdiction. A magistrate has jurisdiction to punish for contempt

only for:

(1) disorderly behavior in the presence of the court or close enough 

to the court that it obstructs the administration of justice; 

(2) misconduct of court officers in official transactions; [and]

(3) disobedience or resistance to any lawful order, rule or process of the

court.

See N.M. R. Magis. Ct. RCP Rule 2-110(A)(1)-(3) and N.M. R. Magis. Ct. RCRP

Rule 6-111(A)(1)-(3). The same rules further state notice of contempt may be
-8-

made orally by the judge in open court in the presence of the person in contempt,

and that a “direct contempt” may be punished summarily if the judge, by written

order, certifies to having seen or heard the conduct constituting the contempt and

that it was committed in the presence of the court. See N.M. R. Magis. Ct. RCP

Rule 2-110(B) & (C) and N.M. R. Magis. Ct. RCRP Rule 6-111(B) & (C). Under

New Mexico case law, these rules take precedence over the legislature’s

enactment of § 35-3-9. See State v. Jones, 734 P.2d 243, 244-45 (N.M. Ct. App.

1987). Finally, in lieu of either legislation or rules on contempt, the New Mexico

Supreme Court has held “[t]he power to punish for contempt is inherent in the

courts,” Case v. State, 709 P.2d 670, 671 (N.M. 1985); State ex rel. Bliss v.

Greenwood, 315 P.2d 223, 227 (N.M. 1957), and “its exercise is the exercise of

the highest form of judicial power,” Bliss, 315 P.2d at 227.

Having reviewed the applicable law, we turn to Ms. Giron’s contentions in

support of the district court’s decision. She claims Judge Chaparro is not entitled

to absolute immunity because (1) her action was not a judicial act, but “an

offensive weapon to vindicate personal objectives”; (2) part of the event occurred

outside the courtroom in the clerk’s office; (3) no formal proceeding was in

progress in the courtroom, but rather it involved an informal administrative-type

matter over which the judge presided in open court; (4) she was not a litigant
3

 See, e.g., Figueroa v. Blackburn, 208 F.3d 435, 443 (3d Cir. 2000) (determining

“[t]here can be little doubt that holding an individual in contempt is an act normally

performed by a judge”); Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir. 1990)

(concluding a judge’s contempt order, even against a non-litigant, is clearly a judicial

act); Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985) (stating “[t]here is no

question” the judge’s acts, including contempt sentence, are “judicial acts”); Patten v.

Glaser, 771 F.2d 1178, 1179 (8th Cir. 1985) (per curiam) (affirming decision that judge

who issued contempt sentence performed function normally performed by a judge acting

in his judicial capacity and therefore, it constituted a judicial act); Dean v. Shirer, 547

F.2d 227, 230 (4th Cir. 1976) (determining judge who imposed a contempt sanction

performed a judicial act).

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before the judge; and (5) the judge procedurally erred by failing to hold a hearing

to show cause prior to issuing the contempt order and sentence.

First, we begin with the question of whether the act of issuing a contempt

order is a judicial act. While a judge’s vindictive motives in issuing a contempt

order cannot be condoned, a judge’s act with respect to the issuance of a contempt

order nevertheless patently involves a judicial function which must be afforded

the defense of absolute immunity. To hold otherwise would have a chilling effect

on a judge’s judicial acts, leaving the judge readily subject to suit in the course of

performing such acts. See Smith, 485 F.2d at 340-41. While this circuit has not

specifically identified a contempt order as a judicial act, our reasoning follows

other circuit court decisions which have explicitly ruled contempt orders are

judicial acts subject to absolute immunity,3 as well as New Mexico law holding

the judicial exercise of contempt power is an exercise of “the highest form of
-10-

judicial power,” Bliss, 315 P.2d at 227, and the Supreme Court's long-standing

announcement that the power to punish for contempt is inherent in all courts. See

Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1873).

Having held the act of issuing a contempt order constitutes a judicial act,

we also conclude the state magistrate judge in this case possessed jurisdiction for

the purpose of issuing a contempt order. In so doing, we reject Ms. Giron’s

specific contentions the judge lacked jurisdiction to cite her for contempt,

including her contention absolute immunity cannot apply here because it involved

an informal or administrative proceeding rather than a formal hearing before the

judge. We are not persuaded that a contempt order arising from events occurring

at a proceeding over which a judge presides before counsel in open court and

seeks the services of a court interpreter for a Spanish-speaking client is a

proceeding over which the judge allegedly lacks contempt power. Regardless of

the characterization by Ms. Giron, the circumstances suggest the informality of

the proceeding did not change the judicial nature of the act itself, and because the

judge generally possessed jurisdiction to impose contempt sanctions for disorderly

conduct or disobedience of her orders directed to individuals before her in her

judicial capacity, her action was not taken “in complete absence of all

jurisdiction.” 
-11-

Similarly, because Ms. Giron clearly disobeyed the judge’s verbal orders to

return to the courtroom and perform interpretive services, and her disobedience of

such orders obviously occurred “in the presence of the court” (vis-a-vis the judge)

or, alternatively, “close enough to the court that it obstruct[ed] the administration

of justice,” Judge Chaparro had jurisdiction to punish Ms. Giron’s disobedience

of her orders. See N.M. Stat. Ann. § 35-3-9 (1978); N.M. R. Magis. Ct. RCP

Rule 2-110(A)(1) & (3). Thus, when the judge ordered Ms. Giron in court to

come back and act as an interpreter, and then in the clerk's office again ordered

her to return to the courtroom to perform her services, she possessed jurisdiction

in both situations to punish Ms. Giron’s refusal with contempt. See, e.g., Crooks,

913 F.2d at 701 (rejecting contention that power to sanction for contempt is valid

only when the contempt is committed in the immediate view and presence of the

court or the judge at chambers and, instead, determining the term “court” refers

“to the person of the judge, acting in his official capacity, wherever he may be”).

See, e.g., Dean, 547 F.2d at 231 (holding judge who issued contempt citation over

attorney who made statements outside courtroom immediately after trial and while

court was out of session retained subject-matter jurisdiction over criminal action).

We also reject Ms. Giron’s contention absolute immunity cannot apply
-12-

because she was an employee of the court and not a litigant before the judge. The

fact Judge Chaparro held one of the court’s own contract employees in contempt

does not alter either the judicial nature of the act or her jurisdiction to generally

issue such contempt orders, and thus, the contempt order was not taken “in the

complete absence of all jurisdiction.” See Crooks, 913 F.2d at 699, and Crooks v.

Maynard, 820 F.2d 329 (9th Cir. 1987) (same case) (concluding a judge’s

decision to hold two court employees, who were not litigants, in contempt of

court is clearly a judicial act and one which a district court judge has sufficient

jurisdiction to render). Moreover, in this case, the New Mexico rules for

magistrates explicitly give judges jurisdiction to punish misconduct of court

officers in official transactions for contempt, and, arguably, Ms. Giron could be

considered a court officer involved in an official transaction at the time the judge

asked her to lend her interpretive services in court and when she repeatedly failed

to obey the judge’s order to return to the courtroom to provide those services. See

N.M. R. Magis. Ct. RCP Rule 2-110(A)(2).

Finally, while Ms. Giron argues the judge erred by failing to hold a

contempt hearing, we have previously held judges enjoy absolute judicial

immunity even if “flawed by the commission of grave procedural errors.”

Whitesel, 222 F.3d at 867 (quotation marks and citation omitted). In this case, the
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procedural error does not alter the nature of the act from being a judicial one over

which the judge had jurisdiction, and therefore, it was not taken “in complete

absence of all jurisdiction.” See, e.g., Figueroa, 208 F.3d at 443 (holding order

of contempt sentence, without statutory opportunity for appeal, was in error but

nevertheless involved a judicial act subject to judicial immunity); O’Neil v. City

of Lake Oswego, 642 F.2d 367, 368-70 (9th Cir. 1981) (order of contempt without

requisite supporting affidavit was granted in “excess of jurisdiction,” but

nonetheless the judge did not act in “clear absence of all jurisdiction” and

therefore enjoyed judicial immunity). Moreover, in New Mexico, the applicable

rules for magistrate judges provide for a “direct contempt” which may be

punished summarily if the judge certifies to having seen or heard the conduct

constituting contempt committed in the presence of the court. N.M. R. Magis. Ct.

RCP Rule 2-110(C). Thus, no hearing on an order to show cause would be

necessary in such a circumstance. See In re Oliver, 333 U.S. 257, 275 (1948)

(limiting use of summary contempt to “charges of misconduct, in open court, in

the presence of the judge, which disturbs the court's business, where all of the

essential elements of the misconduct are under the eye of the court, are actually

observed by the court, and where immediate punishment is essential to prevent

demoralization of the court's authority before the public”).
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For these reasons, we conclude Judge Chaparro performed a judicial act

with the requisite jurisdictional authority to cite Ms. Giron with contempt,

regardless of any alleged personal motives or procedural errors. Accordingly, we

conclude Judge Chaparro is entitled to absolute judicial immunity and REVERSE

and REMAND this case to the district court for entry of judgment in favor of the

Appellee, Judge Susana Chaparro, on her motion to dismiss, in accordance with

this decision.

Entered by the Court:

WADE BRORBY

United States Circuit Judge