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

### DEC 16 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM P. COLLINS, Plaintiff-Appellant,

v. JOHNSON COUNTY, KANSAS; STATE OF KANSAS; CITY OF OVERLAND PARK, KANSAS; CHARLES HARVEY; JUDGE TAYLOR; MELINDA WHITMAN; KURT HOOVER; PAUL MORRISON; JUDGE MCANANY; BRIAN PORCH; ADRIAN GILBY, individually; JOHNSON COUNTY DISTRICT ATTORNEY’S OFFICE, Defendants-Appellees.

WILLIAM P. COLLINS, Plaintiff-Appellant,

v. JOHNSON COUNTY, KANSAS; STATE OF KANSAS; S.M. SCHOOL DISTRICT; KANSAS SUPREME COURT; CITY OF OLATHE, KANSAS; OLATHE POLICE DEPARTMENT, KANSAS; CRISTA COLLINS; DICK BRYANT; BRIAN PORCH; JANET SUTTON; JUDGE RUSSELL; JOHNSON COUNTY No. 01-3336 (D. Kan.) (D.C. No. 01-CV-2227-JWL)

No. 02-3049 (D. Kan.) (D.C. No. 01-CV-2284-JWL)-2-

DISTRICT ATTORNEY’S OFFICE; JUDGE HARMON; LINDA VOYLES; CITY OF OVERLAND PARK, KANSAS; CAROLYN BARTLETT, Johnson County Court Services, Probation Officer; LORI BLAKE, Johnson County Court Services, Child Services Officer, Defendants-Appellees.

WILLIAM P. COLLINS, Plaintiff-Appellant,

v. LARRY MCCLAIN; CRISTA COLLINS; NEYSA DAY; VANCE PREMAN; DIANE LUND; BRUCE BEYES; JOHN GERSTLE; VINCENT BATES; PAUL MORRISON; GARY RULON; JERRY ELLIOTT; ROBERT GERNON; ROBERT LEWIS; JOSEPH PERRON; HENRY GREEN; CHRISTEL MARQUARDT; DAVID KNUDSON; CAROL BEYER; LEE JOHNSON; RICHARD DAVID; MARSHALL WHITT; STANLEY BIER; CHUCK ELLIOTT; LINDA VOYLES; CITY OF OVERLAND PARK, KANSAS; OVERLAND PARK POLICE DEPARTMENT; JOHNSON COUNTY DISTRICT ATTORNEY’S OFFICE, Defendants-Appellees. No. 02-3212 (D. Kan.) (D.C. No. 02-CV-2123-JWL)* This order and judgment is not binding precedent except under the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 judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

-3- WILLIAM P. COLLINS, Plaintiff-Appellant,

v. PAUL MORRISON; CRISTA COLLINS; NEYSA DAY; VANCE PREMAN; ERICA FROETSCHNER; VINCENT BATES; JAMES VANO; STEVE TATUM; CITY OF OVERLAND PARK, KANSAS; OVERLAND PARK POLICE DEPARTMENT; CHRISTOPHER REDMOND; JOHNSON COUNTY DISTRICT ATTORNEY’S OFFICE, Defendants-Appellees. No. 02-3250 (D. Kan.) (D.C. No. 02-CV-2177-JWL)

ORDER AND JUDGMENT *

Before EBEL, LUCERO , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate records, t his panel has determined unanimously that oral argument would not materiallyassist the determination of-4-

these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cases are therefore ordered submitted without oral argument. Based on his apparent unhappiness with the outcome and circumstances surrounding his state court domestic proceedings, the Appellant, Mr. William P. Collins, has filed four separate appeals, each aris ing from the district court’s dismissal of the seemingly endless array of pro se filings made by Mr. Collins against various governmental entities and individua ls. Mr. Collins now appeals the four district court decisions dismissing his co mplaints under Fed. R. Civ. P. 12(b)(6). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. We review de novo the district court’s grant of a Rule 12(b)(6) moti on to dismiss, applying the same standard as the districtcourt. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). “[A]ll wel lpleaded factual allegations in the . . . complaint are accepted as true and viewed in the light most favorable to the nonmoving party. ” Id . “A complaint should not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Yousef v. Reno , 254 F.3d 1214, 1219 (10th Cir. 2001) (quotation m arks and citation omitted).
Case No. 01-3336 : Appeal number 01-3336 arises from Mr. Collins’s 42 U.S.C. § 1983 claims1 Because the district court’s alternative bases ar e persuasive and

unarguably correct, we see no need to address its ruling that Mr. Collins lacked standing because of his pending bankruptcy. -5- and various state law claims alleging unlawful arre st, false and malicious prosecution, unethical behavior, and malpractice ag ainst numerous entities and individuals, including: Johnson County Kansas; the State of Kansas; the City of Overland Park, Kansas; the Johnson County District Attorney’s Office; two state court judges; and various individuals, both public and private. The district court granted defendants’ motions to dismiss, finding Mr. Collins lacked standing to bring suit because he had filed for bankruptcy and this action had not been abandoned by the bankruptcy trustee. In the altern ative, the district court dismissed this complaint on the basis of judicial, prosecutorial, and Eleventh Amendment immunity, as well as Mr. Collins’s failur e to state a claim against the remaining individual defendants. After reviewing the record and applicable law, we f ind the district court’s alternative reasons for dismissal were correct. 1 First, judicial immunity bars Mr. Collins’s claims against the state court judges who were acting with jurisdiction. “A judge will not be deprived of immunity because t he action he took was in error, was done maliciously, or was in excess of hi s authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction.” Stump v. Sparkman , 435 U.S. 349, 356-57 (1978) (quotation marks and citation-6-

omitted). Second, prosecutorial immunity prohibits Mr. Collins’s claim against the individual district attorneys for alleged false and malicious prosecution and other similar acts. It is well established that prosecutors are absolut ely immune from suit under section 1983 concerning activities “inti mately associated with the judicial . . . process,” such as initiatin g and pursuing criminal prosecutions. It is also well established that this absolute prosecutorial immunity extends to state attorneys and agency officials who perform functions analogous to those of a prosecutor in initiating and pursuing civil and administrative en forcement proceedings. Pfeiffer v. Hartford Fire Ins. Co. , 929 F.2d 1484, 1489 (10th Cir. 1991) (quoting Imbler v. Pachtman , 424 U.S. 409, 430-31 (1976)). Third, Mr. Collins’s claims against the State of Kansas and its instrumentalities or alter egos are clearly within the Eleventh Amendment’s bar of actions for damages “against a state in federal cou rt, even by its own citizens, unless the state waives that immunity.” Sturdevant v. Paulsen , 218 F.3d 1160, 1164 (10th Cir. 2000). This Eleventh Amendment imm unity also applies to entities created by state governments which operate as alter egos or instrumentalities of the states. Id

. Finally, Mr. Collins’s remaining claims were proper ly dismissed for failure to state a claim upon which relief could be granted . He has failed to show that2 “Section 1983 provides a federal cause of action against any person who,

acting under color of state law, deprives another o f his federal rights.” Conn v. Gabbert , 526 U.S. 286, 290 (1999) (citing 42 U.S.C. § 1983 ).

3 In August 2002, Ms. Cynthia K. Wallace, Esq., mad e an appearance for Mr. Collins and requested leave to supplement his o riginal brief. Mr. Collins filed his Notice of Appeal in October 2001, and the matter was fully briefed in March 2002. We find that this motion is untimely. We note that Mr. Collins could have retained counsel much earlier in the pro cess, and the motion to supplement states no excuse for his delay in obtain ing counsel. Further, we find the district court’s decision was correct, and addi tional briefing would be of little assistance. -7- the private defendants acted under the color of state law 2 or sufficiently allege the actions of the remaining defendants amounted to a c ognizable claim under state or federal law. 3
Case No. 02-3049 : In appeal number 02-3049, Mr. Collins continues to demonstrate his frustration and displeasure with his state domestic proceedings. He has filed claims for slander, kidnaping, defamation, unethica l behavior, and fraud against a wide range of defendants, including: Johnson County; the State of Kansas; the school district; the Kansas Supreme Court; two stat e court judges; the police department; various other entities; and private and public individuals. The district court granted defendants’ motions to dismi ss based on Mr. Collins’s failure to timely respond to defendants’ motions to dismiss, his failure to show cause for failing to timely respond to defendant Cr ista Collins’s motion to dismiss, and the lack of personal and subject matte r jurisdiction over defendant-8-

Janet Sutton. In this appeal, Mr. Collins merely r eiterates his litany of conclusory allegations against these defendants. After careful review of the record and applicable l aw, we conclude the district court properly dismissed this case. The d istrict court is not required to continue to manage a case on its docket in which Mr . Collins has made no attempt to comply with the local rules and court order inte nded to insure orderly progress. The court correctly found further delay would preju dice the defendants. Finally, the district court properly found it lacked jurisdi ction over defendant Sutton.
Case No. 02-3212: Appeal number 02-3212 involves Mr. Collins’s § 1983 claims against various governmental entities and public and privat e individuals, including numerous state court judges and prosecutors. The d istrict court granted defendants’ motions to dismiss for the same reasons stated in its order dismissing the complaint forming the basis of appeal number 01 -3336, namely, that judicial and prosecutorial immunity barred suit, and Mr. Col lins failed to state a claim upon which relief could be granted (he failed to al lege the private defendants acted under color of state law and failed to allege a violation of a constitutional or federal right). Therefore, we find appeal 02-3212 without merit for substantially the same reasons as stated for appeal number 01-333 6.-9-

Case No. 02-3250 : Appeal number 02-3250 also comes to us from a dismi ssal of Mr. Collins’s § 1983 claims against various public and private in dividuals and governmental entities, again resulting from his state court dome stic proceedings. Acting sua sponte , the district court found it patently obvious thatMr. Collins could not prevail on the facts alleged and dismissed this complaint for failure to state a claim. We recognize that a pro se litigant’s plead ings are to be construed liberally. Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). However, i t is not the district court’s function “to assume the ro le of advocate for the pro se litigant”; in fact, the district court may dismiss the complaint “sua sponte when it is patently obvious that the plaintiff could not pr evail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” Id

. (quotation marks and citation omitted). Here, it is patently obvious Mr. Collins could not prevail on the facts alleged, as his conclusory allegations merely refle ct his frustration and reiterate his grievances; they fail to even arguably state a violation of federal rights. Guided by history, we conclude that allowing Mr. Co llins to amend his complaint would have been futile and a complete waste of time . In each of the four cases, the district court clearly and patiently explained why Mr. Collins could not bring these types of claims against these types of defend ants. The courts should not be-10-

expected to bear “the spurns [t]hat patient merit o f th’ unworthy takes . . . .”
WILLIAM SHAKESPEARE , H AMLET act 3, sc. 1. When reason fails, chaos reigns. As explained, each of Mr. Collins’s four appeals ar e unfounded, unsupported, and without merit. The district courtproperly applied the law in dismissing each of these cases. Therefore, we AFFIRM . Accordingly, all pending motions are denied as moot.
Entered by the Court: TERRENCE L. O’BRIEN United States Circuit Judge