UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RONALD GUIDEN,

Plaintiff-Appellant,

v.

MARTHA MORROW, Clerk,

Defendant-Appellee.

No. 03-3282

(D. Kansas)

(D.Ct. No. 03-CV-3152-GTV)

ORDER AND JUDGMENT*

Before SEYMOUR, MURPHY, and O'BRIEN, Circuit Judges.

After examining the briefs and 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.

Ronald Guiden, appearing pro se, appeals the district court's dismissal of his § 1983 complaint against Martha Morrow, a state district court clerk, based on her immunity from suit.1 We exercise jurisdiction under 28 U.S.C. § 1291. The appeal is frivolous and we dismiss it under 28 U.S.C. § 1915(e)(2)(B)(i).

Background

As alleged in his complaint, Guiden, an inmate at the El Dorado Correctional Facility in El Dorado, Kansas, mailed a petition and an inmate account statement to Martha Morrow, the Clerk of the District Court of Butler County, Kansas, for filing. Morrow did not immediately file these papers but instead referred them to a district judge for review. After the judge's review, Morrow sent Guiden a letter informing him that a district judge had determined his papers could not be filed because they failed to specifically name individual defendants. She returned his papers with her letter. Guiden then filed a notice of appeal, which Morrow refused to file, as there was no case from which to appeal.

Thereafter, Guiden filed suit against Morrow in the United States District Court for the District of Kansas, pursuant to 42 U.S.C. § 1983.2 He alleged Morrow's failure to file his papers deprived him of his right of access to the courts and violated his due process and equal protection rights. He sought damages totaling $300,000 and "such other and further relief as is just." (R., Doc. 1, Complaint at 5.)

The district court screened Guiden's complaint as required by 28 U.S.C. § 1915A(a) and (b).3 Concluding that Morrow was entitled to immunity, the district court dismissed the complaint under § 1915(e)(2)(B)(iii).4 This appeal followed.5

Discussion

On appeal, Guiden challenges the dismissal of his complaint, alleging the district court erred in finding Morrow was entitled to immunity. He also asserts it was Morrow's duty under Kansas law to file his pleadings before turning them over to the district judge for review.6

We review de novo a district court's immunity determinations. Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994), cert. denied, 513 U.S. 1183 (1995). "Except where a judge has acted 'in the clear absence of all jurisdiction,' the doctrine of judicial immunity shields that judge from liability for the judge's official adjudicative acts." Lundahl v. Zimmer, 296 F.3d 936, 939 (10th Cir. 2002) (quoting Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)), cert. denied, 123 S. Ct. 1797 (2003). This immunity applies not only to judges but also to any person who performs judicial acts or activity as an official aide of the judge. Henriksen v. Bentley, 644 F.2d 852, 855 (10th Cir. 1981). See also Lundahl, 296 F.3d at 939-40 (finding court clerks entitled to absolute immunity as to their decision to refer plaintiff's applications for entry of default judgment to the judge presiding over the case). Here, in not filing Guiden's papers, Morrow was acting pursuant to the specific instructions of a state court judge. Accordingly, Morrow is entitled to immunity, and the district court did not err in dismissing this lawsuit pursuant to § 1915(e)(2)(B)(iii).

Attempting to avoid dismissal, Guiden argues he was seeking more than monetary relief against Morrow. He states he also sought "such other and further relief as is just, including an injunction or mandamus, etc." Although Morrow would not be entitled to immunity in a suit seeking injunctive relief, Lundahl, 296 F.3d at 938-40, the question is whether Guiden's complaint gave "any indication" that he might be entitled to injunctive relief for Morrow's alleged failure to file his state court papers. Calderon v. Kansas Dep't of Social & Rehabilitation Servs., 181 F.3d 1180, 1183 (10th Cir. 1999). In his appellate papers, Guiden has taken liberties with the facts. His "request for relief" in his complaint specifically sought "[j]udgment against defendant in the sum of [$300,000] and costs, and such other and further relief as is just." His request made no mention of equitable relief. Cf. Frazier v. Simmons, 254 F.3d 1247, 1251, 1255 (10th Cir. 2001) (finding injunctive relief requested where complaint sought money damages and "such other relief as the Court deems just and equitable" and where pretrial order listed "the nature and extent of any equitable relief" as an issue of law) (emphasis added). Faithful to our duty to construe pro se prisoner complaints liberally, we have carefully reviewed Guiden's complaint. Reynoldson v. Shillinger, 907 F.2d 124, 125 (10th Cir. 1990). Nowhere did he suggest that he sought an order requiring Morrow to file his papers in state court. In fact, in the statement of facts attached to the complaint, he merely asserted he "was injured and damaged in an amount of [$300,000]." Despite Guiden's pro se status, the district court was not required to assume the role of advocate and construct arguments or legal theories for him. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Consequently, we find that Guiden's complaint sought only monetary relief.

The statutes Guiden cites in support of his argument that Morrow had a duty to file his pleadings before turning them over for the judge's review, Kan. Stat. Ann. §§ 60-205(e)7 and 60-2001(b),8 are directives to the parties concerning the filing of pleadings. They impose no duty upon court clerks.

Conclusion

The district court was correct in dismissing Guiden's complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii). We adopt the reasoning of the district court and DISMISS this appeal as frivolous. The dismissal of this appeal counts as one strike under 28 U.S.C. § 1915(g).9 Guiden also accumulated a strike as a result of the district court's dismissal.10 Therefore, Guiden has accumulated a total of two strikes in this matter. Guiden is reminded to continue making partial payments of his appellate filing fee until the entire balance is paid.

Entered by the Court:

TERRENCE L. O'BRIEN

United States Circuit Judge