UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT 

MICHAEL E. MCKINZY, SR., 

 Plaintiff–Appellant, 

v. 

CARLOS MURGUIA; JAMES P. 

O’HARA, 

 Defendants–Appellees.

No. 10-3019

(D.C. No. 2:10-CV-02002-FJG)

(D. Kan.)

ORDER AND JUDGMENT*

Before KELLY, EBEL, and LUCERO, Circuit Judges. 

 Michael E. McKinzy, Sr., appeals a district court order dismissing his case as 

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). Exercising jurisdiction under § 1291, 

we affirm. 

 McKinzy filed a pro se complaint alleging that federal District Court Judge Carlos 

Murguia and federal Magistrate Judge James P. O’Hara conspired to violate his due 

 *

 The case is unanimously ordered submitted without oral argument pursuant to 

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 1, 2010

Elisabeth A. Shumaker 

Clerk of Court

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process rights in a number of prior proceedings. He sought compensatory and punitive 

damages. McKinzy also filed a motion to proceed without prepayment of fees. Pursuant 

to its screening function under § 1915, the district court dismissed the suit as frivolous. 

On appeal, McKinzy advances two arguments. First, he contends that the 

dismissal of his case was done in the complete absence of all jurisdiction because his case 

was reassigned from one judge to another. He argues that this reassignment violated D. 

Kan. R. 40.1 because the chief judge did not approve it. McKinzy provides no evidence 

that the chief judge did not approve the reassignment, but his contention lacks merit 

regardless. Under D. Kan. R. 40.1, “a judge may return a case to the clerk for 

reassignment or, with the approval of the chief judge, may transfer the case to another 

judge who consents to such transfer.” Because McKinzy’s case was reassigned, not 

transferred, approval was unnecessary. Moreover, jurisdiction is conferred on courts, not 

judges. See, e.g., 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction 

of all civil actions arising under the Constitution, laws, or treaties of the United States.”). 

Thus the reassignment could not have affected the court’s jurisdiction. 

Second, citing Vasquez Arroyo v. Starks, 589 F.3d 1091 (10th Cir. 2009), 

McKinzy claims the district court should have permitted him an opportunity to pay the 

filing fee before dismissing his action. In Vasquez Arroyo, we held: 

A district court may not sua sponte dismiss a prisoner’s [42 U.S.C.] § 1983 

action on the basis of the statute of limitations unless it is clear from the 

face of the complaint that there are no meritorious tolling issues, or the 

court has provided the plaintiff notice and an opportunity to be heard on the 

issue. 

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Id. at 1097. This holding is a specific application of the general rule that sua sponte 

dismissal of a pro se complaint “is proper only where it is obvious that the plaintiff 

cannot prevail on the facts he has alleged and it would be futile to give him an 

opportunity to amend.” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 

1999). 

This rule is of no consequence in the present appeal because it is obvious that 

McKinzy cannot prevail on the facts alleged. McKinzy seeks damages for allegedly 

improper adjudicative acts. Such claims are squarely barred by the doctrine of judicial 

immunity unless the judges acted “in the complete absence of all jurisdiction.” Mireles v. 

Waco, 502 U.S. 9, 9-10 (1991). On appeal, McKinzy suggests that Murguia and O’Hara 

acted in the complete absence of jurisdiction because of the district court’s purportedly 

erroneous reassignment. But even were the district court to have exceeded its 

jurisdiction, McKinzy’s underlying claim would not be aided: Lack of jurisdiction in this

lawsuit would not strip Murguia and O’Hara of their immunity for their judicial acts in 

separate cases. Under § 1915(e)(2), a district court “shall dismiss” a case filed in forma 

pauperis “at any time” if the court determines that the case is frivolous. The district 

court’s dismissal on this basis was entirely proper.1

The district court’s dismissal of McKinzy’s case is AFFIRMED. Because 

McKinzy has failed to advance “a reasoned, nonfrivolous argument on the law and facts 

 1

 Further, McKinzy’s case was dismissed without prejudice to the filing of a paid 

complaint. Thus, he may re-file his case as long as he pays the filing fee regardless of the 

outcome of this appeal. 

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in support of the issues raised on appeal,” DeBardeleben v. Quinlan, 937 F.2d 502, 505 

(10th Cir. 1991), we DENY his motion to proceed in forma pauperis. 

 

ENTERED FOR THE COURT 

 Carlos F. Lucero 

 Circuit Judge 

 

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