This order and judgment is not binding precedent, except under the *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

United States Court of Appeals

Tenth Circuit

July 25, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTHONY LEWIS,

Plaintiff-Appellant,

v.

DAVID MIKESIC; STATE OF

KANSAS,

Defendants-Appellees.

No. 06-3089

(District of Kansas)

(D.C. No. 05-CV-4081-JAR)

ORDER AND JUDGMENT

*

Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges. 

After examining appellant’s brief and the appellate record, this court 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). 

The case is therefore ordered submitted without oral argument.

Proceeding pro se, Anthony Lewis appeals the district court’s sua sponte

dismissal of the civil rights complaint he brought pursuant to 42 U.S.C. § 1983.
-2-

Lewis filed the action against David Mikesic, a Kansas probate judge, and the

State of Kansas. In his complaint, Lewis alleged Judge Mikesic “deprived [him]

of his personal mutual fund account . . . without due process of law” and

“continually sends Wyandotte County Sheriff Deputies to [his] house for no

apparent reason.” Although his specific claims against the State of Kansas are

not explicitly articulated in the complaint, Lewis asserts defendants’ actions

violated his Fifth and Fourteenth Amendment rights. Lewis sought unspecified

monetary damages and an order prohibiting Judge Mikesic from having any

further contact with him “whether written, oral or third party.” The district court

dismissed the suit with prejudice, citing the Eleventh Amendment, the RookerFeldman doctrine, and Lewis’ failure to state a claim for relief. Lewis then

brought this appeal. Because the district court’s order relied on §

1915(e)(2)(B)(ii), we apply a de novo standard of review in this case. See Perkins

v. Kansas Dept. of Corr., 165 F.3d 803, 806 (10th Cir. 1999). 

The district court properly dismissed the claims for monetary damages

asserted against the State of Kansas and against Judge Mikesic while acting in his

official capacity because “neither a State nor its officials acting in their official

capacities are ‘persons’” against whom a claim for damages can be brought

pursuant to § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). 

Further, judicial immunity bars Lewis’ claims for monetary damages asserted

against Judge Mikesic. A state judge is absolutely immune from § 1983 liability
Lewis did not seek prospective injunctive relief against the State of 1

Kansas.

-3-

except when he acts “in the clear absence of all jurisdiction.” Stump v.

Sparkman, 435 U.S. 349, 357 (1978) (quotation omitted). To determine whether a

judge acted “in the clear absence of jurisdiction,” we look “to the nature of the

act itself, i.e., whether it is a function normally performed by a judge, and to the

expectations of the parties, i.e., whether they dealt with the judge in his judicial

capacity.” Id. at 362. Lewis alleges Judge Mikesic “has used his position as a

judge” to harass and intimidate him. Because Lewis’ claims are based on actions

taken by Judge Mikesic as a judicial officer and because Lewis has failed to

demonstrate that Judge Mikesic acted in the clear absence of jurisdiction, Judge

Mikesic is entitled to absolute judicial immunity. 

This leaves only Lewis’ claim for prospective injunctive relief against

Judge Mikesic. See Pulliam v. Allen, 466 U.S. 522, 541-42 (1984) (holding 1

“judicial immunity is not a bar to prospective injunctive relief against a judicial

officer acting in her judicial capacity”). Lewis seeks an order barring Judge

Mikesic “from having any further contact” with him. Lewis lacks standing to

pursue his claim for prospective injunctive relief because he has failed to allege

he will likely be subject to Judge Mikesic’s alleged unconstitutional conduct in

the future. Harris v. Champion, 51 F.3d 901, 907 (1995) (“‘Past exposure to

illegal conduct does not in itself show a present case or controversy regarding
-4-

injunctive relief, . . . if unaccompanied by any continuing, present adverse

effects.’”). The claims set out in Lewis’ complaint appear to be based on actions

taken by Judge Mikesic while presiding over a state matter involving Lewis. 

Lewis has failed to assert that this matter is currently pending before Judge

Mikesic or explain how he is likely to be involved in any future actions over

which Judge Mikesic will preside.

The judgment of the district court dismissing Lewis’ complaint is affirmed.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge