Joe Johnson, Jr., Plaintiff-appellant, v. W.a. Drew Edmondson; Frank Keating,*defendants-appellees, 99 F.3d 1149 (10th Cir. 1996)

Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER,^***  District Judge.

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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Pro se plaintiff Joe Johnson, Jr., an Oklahoma state prisoner serving a life sentence for first-degree murder during an armed robbery, appeals the dismissal of his civil rights complaint against the Governor and Attorney General of Oklahoma. Citing 42 U.S.C. §§ 1981, 1982, 1983(3), 1985, 1991 et seq., and 18 U.S.C. § 242, as well as U.S. Const. amends. V, VIII, XIII, and XIV, Johnson principally complains that Oklahoma's selection process for district court judges is unconstitutional because it does not require minorities be appointed as judges, and, therefore, that he was not afforded a fair trial in 1977 and should be released from prison. He also complains that his preliminary hearing judge was biased against him because the judge was married to a niece of the man Johnson was convicted of murdering.

Defendants moved to dismiss the complaint. The district court converted the motion into one for summary judgment and entered judgment in favor of defendants, finding Johnson's claims to be without merit. It adopted the recommendations of the magistrate judge, who concluded that (1) any civil rights claims concerning his 1977 trial were barred by the two-year statute of limitations for bringing such claims, Abbitt v. Franklin, 731 F.2d 661, 663 (10th Cir. 1984) (en banc); (2) Johnson had not presented evidence of invidious discriminatory intent necessary to establish an equal protection violation; (3) Johnson's complaints against the preliminary hearing judge had previously been rejected in the appeal of his first federal habeas petition;¹  (4) the remainder of Johnson's claims were too conclusory to support a claim; and (5) regardless of the merits of Johnson's claims, he could not be released from prison pursuant to a civil rights complaint, see Preiser v. Rodriguez, 411 U.S. 475, 489, 500 (1973), and he could not obtain money damages against the defendants because of their immunity under the Eleventh Amendment, Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). The district court found the case to be "frivolous and without meritorious issues of fact or law." District Court Order, December 6, 1994. R. Doc. at 1-2.

Upon review of Johnson's complaint and the entire record on appeal, we agree with the district court that Johnson's claims lack plausible legal or factual merit. The findings of the magistrate judge, as adopted by the district court, are dictated by well-settled law. Further, we find this appeal to be frivolous within the meaning of 28 U.S.C. § 1915(e) (2) (B) (I), and, accordingly, DISMISS the appeal. All of Johnson's pending motions in this appeal are DENIED. The mandate shall issue forthwith.