*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

April 2, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BOBBY BATTLE, 

Plaintiff–Appellant, No. 09-6140

v. (D.C. No. 5:09-CV-00525-R)

OKLAHOMA SENATOR MIKE

JOHNSON; JANE DOE; JOHN DOE,

(W.D. Okla.)

Defendants–Appellees.

 

ORDER AND JUDGMENT*

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

After examining the parties’ briefs and the appellate record, this panel 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. 

In this case Plaintiff, proceeding pro se, brought suit against Defendant, a

member of the Oklahoma State Senate. In his complaint, Plaintiff alleged that

Defendant had violated his civil rights by preventing a bill from proceeding out of

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its assigned committee. Defendant responded by filing a motion to dismiss under

12(b)(6). Plaintiff filed no response. Accordingly, the district court granted

Defendant’s motion, ruling that the motion was deemed confessed. Additionally,

the court held that Plaintiff had failed to state a claim “because Defendant is

absolutely immune from suit for his actions or inactions ‘within the sphere of

legitimate legislative authority’” under both the United States and the Oklahoma

State Constitutions. (Doc. 6 at 1 (citing Tenney v. Brandhove, 341 U.S. 367, 376

(1951).) Following that dismissal, Plaintiff filed a notice of appeal and, a short

time later, a motion to vacate which the district court denied. 

Construing the requirements of Rule 3 of the Federal Rules of Appellate

Procedure liberally, we will consider Plaintiff’s brief as his notice of appeal from

both the district court’s dismissal and its denial of his motion to vacate. See Smith

v. Barry, 502 U.S. 244, 248-49 (1992). On appeal, as he did in his motion to

vacate, Plaintiff argues the district court mailed notice it had granted his motion to

proceed in forma pauperis to the wrong address and had he received the notice, he

would have responded to Defendant’s motion. We review dismissal under

12(b)(6) de novo, Pace v. Swerdlow, 519 F.3d 1067, 1073 (10th Cir. 2008), and

the denial of a motion to vacate for abuse of discretion, Jennings v. Rivers, 394

F.3d 850, 854 (10th Cir. 2005). 

After careful consideration of the parties’ briefs and the record on appeal,

we conclude the district court correctly dismissed Plaintiff’s complaint. 

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Accordingly, for substantially the same reasons set forth in the district court’s

orders, we AFFIRM. 

Entered for the Court

Monroe G. McKay

Circuit Judge

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