1

 The Court is mindful that it must construe the filings of a pro se litigant liberally. See

Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991). However, the Court should not be a pro se litigant’s advocate, nor should the Court “supply

additional factual allegations to round out [a pro se litigant’s] complaint or construct a legal theory

on [his] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935

F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other

litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02183-MSK-KLM

RICKEY EUGENE STOCKTON-BEY,

Plaintiff,

v.

L. HUFFINE, Judge,

Defendant.

_____________________________________________________________________

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

_____________________________________________________________________

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Defendant’s Motion to Dismiss Pursuant to

Fed. R. Civ. P. 12(b)(1) and (6) for Lack of Subject Matter Jurisdiction and Failure to

State a Claim [Docket No. 17; Filed September 29, 2011] (the “Motion”). The Motion is

referred to this Court for recommendation [#22]. The Court construes Plaintiff’s “Motion for

Summary Judgement to Stop Dismissal Based on Judges Immunity” as a Response in

opposition to the Motion [## 11, 24]. For the reasons stated below, the Court respectfully

RECOMMENDS that Defendant’s Motion be GRANTED.

I. Summary of the Case

Plaintiff initiated this lawsuit pro se on August 22, 2011 [#1].1

 Although Plaintiff filed

his claims on a pro se Title VII Complaint form, the matter does not concern employment.

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2

 This Court may take judicial notice of court documents and matters of public record. St.

Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1171-72 (10th Cir. 1979). The Court confirmed

Defendant’s position as a municipal judge using martindale.com:

http://www.martindale.com/Loretta-B-Huffine/288474-lawyer.htm (last visited Feb. 22, 2012).

2

See id. Plaintiff brings three claims against the Honorable Loretta B. Huffine, who is a

municipal court judge in Aurora, Colorado.2 The claims arise from a domestic violence

case involving Plaintiff over which Judge Huffine presided on August 5, 2011. See id.

Plaintiff contends that 1) Judge Huffine maliciously prosecuted him; 2) Judge Huffine’s

conduct constituted negligent and intentional infliction of emotional distress; and 3) Judge

Huffine violated his First Amendment rights (related to a “name correction”) by addressing

him as “Rickey Stockton.” Id. at 4-6. Plaintiff included numerous court documents with his

Complaint. Id. at 8-22. Plaintiff also attached documents referring to his presumably

religious-based name change, in which Plaintiff identifies himself as “Moorish American.”

Id. at 23-27. Plaintiff seeks damages of $100,000 for each “offense.” Id. at 4-6.

Judge Huffine responded to the Complaint with the Motion at issue. Judge Huffine

asserts governmental immunity as a bar to this Court’s exercise of subject matter

jurisdiction over the case pursuant to Fed. R. Civ. P. 12(b)(1), and absolute immunity as

a basis for dismissal of Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6). See [#17].

After review of the Complaint, the Motion at issue, and Plaintiff’s Response, the Court finds

both that the Colorado Governmental Immunity Act (“CGIA”) precludes the exercise of

subject matter jurisdiction over Plaintiff’s Claims One and Two, and that Judge Huffine is

entitled to absolute judicial immunity as to all of Plaintiff’s claims.

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 The definitions of the CGIA explain that a public entity includes a municipality, § 24-10-

103(5), and a public employee includes an employee of a public entity, § 24-10-103(4)(a). Here,

because Judge Huffine is an employee of the municipality of Aurora, Colorado, Judge Huffine is a

public employee for purposes of the CGIA. 

3

II. Analysis

A. Colorado Governmental Immunity Act

Based on the allegations in the Complaint, it is clear that Plaintiff brings his claims

against Judge Huffine for conduct arising from the course and scope of her employment

as a municipal court judge. Pursuant to Colorado law, 

A public employee shall be immune from liability in any claim for injury,

whether brought pursuant to this article, section 29-5-111, C.R.S., the

common law, or otherwise, which lies in tort or could lie in tort regardless of

whether that may be the type of action or the form of relief chosen by a

claimant and which arises out of an act or omission of such employee

occurring during the performance of his duties and within the scope of his

employment unless the act or omission causing such injury was willful and

wanton; except that no such immunity may be asserted in an action for

injuries resulting from the circumstances specified in section 24-10-106(1).

Colo. Rev. Stat. § 24-10-118(2)(a).3

 Section 24-10-106(1) articulates eight exceptions to

the governmental immunity provided by the CGIA for claims arising from: 1) operation of

a motor vehicle; 2) operation of a public hospital, correctional facility, or jail; 3) a dangerous

condition of a public building; 4) a dangerous condition related to a public road or highway;

5) a dangerous condition in a public hospital, jail, or other public facility; 6) operation of a

public utility facility; 7) operation of a “state capital asset”; and 8) the failure to perform an

education employment background check. 

None of the stated exceptions to the CGIA are present in this case. Therefore, the

Court finds that Judge Huffine is immune from liability pursuant to the CGIA for Plaintiff’s

Claims One and Two, which assert claims based in tort. Defendant’s Motion should be

granted to the extent that Plaintiff’s Claims One and Two may be dismissed without

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4

prejudice for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). See

Atwood v. City & Cnty. of Denver, 413 F. App’x 88, 90 (10th Cir. 2011) (remanding case

for entry of judgment in favor of defendant pursuant to the CGIA and Rule 12(b)(1)); see

also Garman v. Campbell County Sch. Dist. No. 1, 630 F.3d 977, 985 (10th Cir. 2010)

(“Generally, a dismissal for lack of subject matter jurisdiction is without prejudice and does

not have a preclusive effect.”); Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th

Cir. 2006) (“[W]here the district court dismisses an action for lack of jurisdiction . . . the

dismissal must be without prejudice.”). However, as further explained below, the Court

additionally finds that Judge Huffine is entitled to absolute judicial immunity; thus Plaintiff’s

Complaint should be dismissed with prejudice in its entirety on that basis.

B. Absolute Judicial Immunity

Accepting the facts in Plaintiff’s Complaint as true, the claims concern “the inherently

judicial function of presiding over a criminal [proceeding].” Charlotte v. Hansen, 433 F.

App’x 660, 661 (10th Cir. 2011). Judge Huffine enjoys absolute judicial immunity in

executing inherently judicial functions. Id. (citation omitted). “[A] judge lacks immunity only

when she acts in the clear absence of all jurisdiction over the subject-matter, . . . or

performs an act that is not ‘judicial’ in nature.” Id. (citations omitted). All of the alleged

violations stated in Plaintiff’s Complaint were clearly judicial in nature, and Plaintiff

articulates no legitimate challenge to the subject matter jurisdiction of the underlying

proceeding. See Compl., [#1]; Resp., [#11]. Therefore, Judge Huffine is entitled to

absolute judicial immunity.

Nothing presented in Plaintiff’s “Motion for Summary Judgement to Stop Dismissal

Based on Judges Immunity” sways the Court from this conclusion. See [#11]. Plaintiff

contends that Judge Huffine acted outside of the scope of her employment because she

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refused his request for dismissal of the case based on “her not having jurisdiction to hear

cases from a sovereign citizen.” Id. at 1. However, “an individual's belief that [his] status

as a ‘sovereign citizen’ puts [him] beyond the jurisdiction of the courts ‘has no conceivable

validity in American law.’” Charlotte, 433 F. App’x at 661 (quoting United States v.

Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990)). Further, the list of cases cited by Plaintiff

are neither contrary to the Court’s conclusion nor supportive of Plaintiff’s position, given the

circumstances of this case. [#11] at 3-8. 

Again, the allegations in Plaintiff’s Complaint clearly concern judicial conduct arising

from the course of the criminal proceeding before Judge Huffine, and there is no indication

that Judge Huffine, sitting as a municipal judge in Aurora, Colorado, lacked subject matter

jurisdiction over the domestic violence charges arising from an arrest effected by the

Aurora Police Department. See [#1] at 8 (arrest warrant). The Court concludes that Judge

Huffine is entitled to absolute judicial immunity as to all of Plaintiff’s claims, and Plaintiff’s

Complaint should be dismissed with prejudice. See Rivers v. King, 23 F. App’x 905, 907,

908 (10th Cir. 2001) (affirming dismissal with prejudice of plaintiff’s claims on the basis of

absolute judicial immunity).

III. Conclusion

Accordingly, the Court respectfully RECOMMENDS that Defendant’s Motion to

Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and (6) for Lack of Subject Matter Jurisdiction

and Failure to State a Claim [#17] be GRANTED; and

Plaintiff’s Complaint be DISMISSED WITH PREJUDICE in its entirety pursuant to

Fed. R. Civ. P. 12(b)(6), on the basis of absolute judicial immunity.

IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have

fourteen (14) days after service of this Recommendation to serve and file any written

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6

objections in order to obtain reconsideration by the District Judge to whom this case is

assigned. A party's failure to serve and file specific, written objections waives de novo

review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,

474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal

questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.

Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review

by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73

F.3d 1057, 1060 (10th Cir. 1996).

Dated: February 22, 2012

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