Jerry Ernest Lopez v. Cache County; Judge Terry Moore

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
JERRY ERNEST LOPEZ,
Plaintiff - Appellant,
v.
CACHE COUNTY; JUDGE TERRY
MOORE,
Defendants - Appellees.
No. 21-4027
(D.C. No. 1:19-CV-00117-HCN)
(D. Utah)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, KELLY and HOLMES, Circuit Judges.
_________________________________
Jerry Ernest Lopez, a former prisoner proceeding pro se, filed an amended
complaint under 42 U.S.C. § 1983 against Cache County, Utah and Judge Terry
Moore, alleging the County employed Judge Moore, who presided over a case in
which Lopez was unconstitutionally convicted and sentenced. 1 The district court
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1 Because Lopez is pro se, we afford his materials a solicitous construction, but
we will not advocate on his behalf, and like all litigants, he must comply with the
FILED
United States Court of Appeals
Tenth Circuit
August 27, 2021
Christopher M. Wolpert
Clerk of Court
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dismissed the case on screening for failure to state a claim, see 28 U.S.C. § 1915A,
and denied Lopez’s earlier motions for appointment of counsel and entry of default.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
On appeal, Lopez does not challenge the district court’s grounds for
dismissing his claims, thereby waiving appellate review of that ruling. See Nixon v.
City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (recognizing that
failure to challenge the district court’s reasoning waives appellate review); Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (holding that
pro se litigants must follow the same rules of procedure that govern all litigants and
that the failure to adequately brief an issue constitutes waiver). Even if he had
challenged that ruling, there was no error in dismissing the claims against Cache
County because Lopez improperly relied on a respondeat superior theory of liability
by alleging the County employed Judge Moore. See Waller v. City & Cnty. of
Denver, 932 F.3d 1277, 1283 (10th Cir. 2019) (“[A] municipality cannot be held
liable under § 1983 on a respondeat superior theory.” (internal quotation marks
omitted)). Likewise, the claims against Judge Moore are barred by absolute judicial
immunity because they are predicated on alleged action taken in the judge’s judicial
capacity, with no allegation that the judge acted in the absence of all jurisdiction.
See Stein v. Disciplinary Bd. of Sup. Ct. of N.M., 520 F.3d 1183, 1195 (10th Cir.
2008) (“[J]udges are generally immune from suits for money damages” unless “the
fundamental requirements of our procedural rules. See Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008).
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act is not taken in the judge’s judicial capacity” or “when the act, though judicial in
nature, is taken in the complete absence of all jurisdiction.” (brackets and internal
quotation marks omitted)).
Neither did the district court abuse its discretion in denying Lopez’s motions
for appointment of counsel and entry of default. See Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (reviewing denial of motion for counsel
for abuse of discretion); Bixler v. Foster, 596 F.3d 751, 761 (10th Cir. 2010) (same
regarding motion for default). Lopez says the complexity of this case warranted
appointment of counsel, but nothing in the amended complaint is so complex as to
suggest an abuse of discretion. And because the district court dismissed this case on
screening, without service of either the initial complaint or the amended complaint,
the motion for default was premature. See Fed. R. Civ. P. 12(a)(1)(A)(i) (specifying
time to answer “after being served” the complaint); Fed. R. Civ. P. 15(a)(3)
(specifying time to respond “after service” of an amended complaint).
The district court’s judgment is affirmed.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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