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

### APR 2 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIAN DALE DUBUC,

Plaintiff-Appellant,

v. TULSA COUNTY DISTRICT COURT, Tulsa County District Court, Oklahoma, separately, and CLIFFORD E. HOPPER, Judge; TIM CLARK; TULSA COUNTY DISTRICT ATTORNEY’S OFFICE; NED TURNBULL, Assistant District Attorney, sued as: NED TURNBALL; TULSA COUNTY PUBLIC DEFENDER’S OFFICE, separately and sued as: PAULA ALFORD and RON WALLACE, Assistants; TULSA POLICE DEPARTMENT, sued as: JEFF CASH; DERICK CARLOCK; OFFICER B. FINNLY; OFFICER MCLANAHAN; OFFICER D. ELLIOTT; RON FIELDS, sued as an officer of the Tulsa Police Department; BILL WARD, sued as an officer of the Tulsa County Sheriff’s Department, Defendants-Appellees. No. 96-5158 (D.C. No. CIV-94-207-H) (N.D. Okla.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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.

** Honorable Robin J. Cauthron, District Judge, UnitedStates District Court for the Western District of Oklahoma, sitting by de signation. -2- ORDER AND JUDGMENT *
Before BRORBY and KELLY, Circuit Judges, and CAUTHRON, ** District Judge.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff-appellant Brian Dale Dubuc was tried and convicted of four criminal counts in Tulsa County, Oklahoma. On dire ct appeal, the Oklahoma Court of Criminal Appeals overturned his conviction s in an unpublished summary opinion, Dubuc v. Oklahoma , No. F-92-850 (Okla. Crim. App. filed June 29, 1995). Plaintiff, proceeding pro se, brought this civil rights action pursuant to 42 U.S.C. § 1982, alleging violation of various consti tutional rights in connection with his trial and conviction in Tulsa County, Oklahoma. His complaint asserted that defendants had conspired and acted in concert to fraudulently and illegally-3-

convict him of the charges he faced. All defendant s, save state district court Judge Hopper, moved for summary judgment or to dism iss the complaint against them for failure to state a claim. The magistrate judge issued a report recommending that defendants’ motions be granted ba sed on immunity and a lack of specific factual allegations in plaintiff’s comp laint. He also noted that plaintiff’s claims against Judge Hopper were res ju dicata and precluded by immunity for prior acts. Plaintiff filed objection s. The district court adopted the magistrate judge’s recommendation, granted the defe ndants’ motions to dismiss or for summary judgment, and added sua sponte that Jud ge Hopper was entitled to absolute immunity on plaintiff’s claims. A separat e judgment was filed in accord with Fed. R. Civ. P. 58. Plaintiff filed a motion to set aside the district court’s order and judgment, which was denied. This appeal followed. Our jurisdiction arises from 28 U.S.C. § 1291. We review the district court’s dismissal of plaintiff’s complaint for fail ure to state a claim de novo, Kidd v. Taos Ski Valley, Inc. , 88 F.3d 848, 854 (10th Cir. 1996), affirming the dismissal “only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle him to rel ief, accepting the well-pleaded allegations of the complaint as true and construing them in the light most favorable to the plaintiff.” Fuller v. Norton , 86 F.3d 1016, 1020 (10th Cir. 1996). Our review of the grant of summary judgment is also de novo, applying the same-4-

standards as the district court under Fed. R. Civ. P. 56(c). Wolf v. Prudential Ins.
Co. , 50 F.3d 793, 796 (10th Cir. 1995). Further, we c onstrue plaintiff’s pro se pleadings liberally. See Haines v. Kerner , 404 U.S. 519, 520 (1972). On appeal, plaintiff contends that the district cou rt’s decision was error because the court failed to consider his motion forleave to amend his complaint, did not recognize his claims against defendants in their individual capacity, and acted as an advocate for defendant Judge Hopper. H e argues that his allegations of conspiracy were sufficient to survive summary ju dgment or motions to dismiss, and that the district court did not follow the appl icable standards. After careful review of the record on appeal and du e consideration of the parties’ briefs, we conclude that the district court correctly decided this case. Therefore, for substantially the same reasons set f orth in the district court’s order dated March 4, 1996, adopting the magistrate judge’ s report and recommendation dated August 5, 1994, the judgment of the United St ates District Court for the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge