* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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 29 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SAMUEL J. WILDER, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, sued as: U.S. Government; HONORABLE TERRY C. KERN, sued as: Terry C. Kerns, U.S. District Judge; HONORABLE MICHAEL BURRAGE, U.S. District Judge; TULSA COUNTY BOARD OF COUNTY COMMISSIONERS, sued as: Tulsa County Commissioners of Tulsa; HONORABLE P. THOMAS THORNBRUGH, sued as: Thomas Thornbrugh, Judge; and HONORABLE RONALD SHAFFER, Judge, Defendants-Appellees. No. 98-5242 (D.C. No. 98-C-822-C) (N.D. Okla.)

ORDER AND JUDGMENT *1 While the district court recognized that “the raisi ng of an affirmative

defense sua sponte, and the subsequent dismissal of the action on that basis, is generally disfavored in most cases,” it cited our d ecision in Fratus v. Deland , 49 F.3d 673, 674-75 (10th Cir. 1995), for the proposit ion that “such a course of action is nevertheless proper if the affirmative de fense is obvious from the face of the complaint.” (Dist. Ct. Op. at 2.) Cognizant o f its duty to construe Wilder’s pro se complaint liberally, the district court foun d it “obvious from the face of the complaint” that the affirmative defense of absolute immunity would bar Wilder’s suit against federal and state judges who Wilder wa s suing “based solely and entirely [because of] defendants’ performance of th eir respective duties in the (continued...) - 2 - Before BRORBY , EBEL and LUCERO , Circuit Judges.

On October 21, 1998, Plaintiff-Appellant Samuel J. Wilder (“Wilder”) filed a pro se civil rights complaint pursuant to 42 U.S. C. § 1983 against the defendants — federal and state judges in Oklahoma. Wilder alleged, inter alia, that “said-named Judges, conspired to evict [him] w ithout due process of the law, to prevent [him] from completing pending litigation s, and receiving mail, concerning pending Actions.” As relief, Wilder sou ght $20 million in damages. In order to prosecute his suit, Wilder filed a moti on to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). The district court granted Wilder IFP status, and p ermitted his complaint to be docketed without payment of fees. However, rais ing sua sponte the affirmative defense of absolute immunity on behalf of the judge s who had yet to be served with Wilder’s complaint, 1 the district court dismissed the complaint as friv olous1 (...continued)

course of judicial proceedings.” (Id. at 3 & n.2 ( citing United States v. McKinley , 53 F.3d 1170, 1172 (10th Cir. 1995).) - 3 - under 28 U.S.C. § 1915(e)(2)(B)(i). Wilder now appeals the dismissal of his complaint, moves this court for leave to proceed on appeal without prepayment of co sts or fees, and prays for a writ of mandamus commanding Tulsa County Sheriff (n ot formerly named in Wilder’s suit) “to produce a list of Petitioner’s p ersonal items, and records . . . seized by County Sheriff’s D[e]puties, and Tulsa Ho using Authority agents, on October 21, 1998.” “We review frivolousness determinations under secti on 1915[(e) (formerly subsection (d))] for an abuse of discretion.” See Fratus , 49 F.3d at 674. On appeal, Wilder has failed to assert any perceptible basis on which we could question the district court order. Based on our re view of appellant’s brief and the record, we conclude that the district court did notabuse its discretion in dismissing Wilder’s complaint as frivolous. Accord ingly, we affirm the dismissal and deny Wilder’s motion for leave to proceed on ap peal without prepayment of costs or fees. Further, we deny Wilder’s petition for mandamus. M andamus is an extraordinary remedy, which will issue only in exceptional circumstances. See United States v. Roberts , 88 F.3d 872, 882 (10th Cir.1996). A petitioner f or a- 4 -

writ of mandamus bears the burden of showing that h is or her right to the writ is “clear and indisputable.” Id. Wilder has failed to make any such showing. The mandate shall issue forthwith.

ENTERED FOR THE COURT David M. Ebel Circuit Judge