UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

JOHN B. YANCEY, Plaintiff - Appellant,

v. SAM A. CROW, Senior Judge, District Court of Kansas; CROW, CLOTHIER & ASSOCIATES; FNU SCRIVNER, Chaplin; FNU MULA, Warden/Director; CORRECTIONAL CORPORATION OF AMERICA, INC., Executive Board Members, Defendants - Appellees. No. 11-3232 (D. Kan.) (D.C. No. 5:10- CV-03248-RDR)

ORDER AND JUDGMENT *

Before O'BRIEN , McKAY , and TYMKOVICH , Circuit Judges.

* Oral argument would not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G ). We have decided this case on the briefs. This order and judgment is an unpublishe d decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### December 13, 2011
Elisabeth A. Shumaker Clerk of Court- 2 - John B. Yancey, proceeding pro se and in forma pauperis ( ifp ), 1 appeals from the district court’s sua sponte dismissal of his complaint for failure “to state a claim upon which relief may be granted” under 28 U.S.C. § 1915(e)(2)(B). 2 The district court reasoned the complaint contained nothing mo re than “conclusory allegations” without any meaningful factual support. (R . at 18.) We agree and affirm.
I. BACKGROUND While Yancey was incarcerated in a de tention center operated by Corrections Corporation of America (CCA), he filed a § 1983 complaint against CCA and its employees. The complaint in th at case claimed Yancey “was unlawfully denied access to religious call-out and religious mate rials” during his incarceration. Yancey v. Scrivner , No. 07-3175-SAC, slip op. at 1 (D. Kan. Jan. 13, 2009). 3 Senior United States District Judge Sam A. Crow dismisse d the complaint because Yancey failed to exhaust his administrative remedies, as re quired by 42 U.S.C. § 1997e(a). 4 Before filing the

1 The district court granted Yancey’s mo tions to proceed without prepayment of fees in the district court and, inexplicably, on appeal. See 28 U.S.C. § 1015(a) and (c).

2 Although 28 U.S.C. § 1915(e)(2)(B) wa s amended by the Prisoner Litigation Reform Act, it applies to all ifp proceedings. See Ruston v. Church of Jesus Christ of Latter-Day Saints , 304 F. App’x 666, 668 (10th Cir. 2008) (unpublished). An unpublished Order and Judgment is not binding precedent. 10th Cir. R. App. P. 32.1(A). We mention Ruston only because of its reasoned analysis.

3 We may “take judicial notice of cour t records” in related proceedings. Gee v. Pacheco , 627 F.3d 1178, 1 191 (10th Cir. 2010).

4 Defendants Scrivner and Mula (the chap lain and warden, respectively, of the CCA facility) were named in Yancey’s comp laint in the prior cas e. They are again named in the current complaint but Yancey fails to allege how either of them is connected to the alleged conspiracy.- 3 - complaint in the present case, he was rele ased from confinement. This civil rights complaint alleges a “conspiracy” among the defendants to “manipulate cases against [CCA].” (R. at 3) It names Judge Crow and a variety of other defendants. It contends Judge Crow “should have recused himself because there are three separate Crows involved with [CCA].” 5 ( Id. ) He seeks compensatory and punitive damages.
II. DISCUSSION We review de novo the district court’s decision to dismiss a prisoner’s complaint under § 1915(e)(2)(B) for failure to state a claim. 6 See Kay v. Bemis , 500 F.3d 1214, 1217 (10th Cir. 2007).

5 As we read Yancey’s co mplaint, the second Crow in the conspiracy was the Crow who was a named partner of Crow, Clothier, and Asso ciates, the law firm which defended CCA against Yancey’s first complain t. Yet the complaint names the law firm as a defendant, rather than the partner na med Crow. The complain t never identifies the third Crow.

6 Yancey’s appellate brief does not contai n any argument directly challenging the district court’s conclusion. Because he is proceeding pro se, we construe his brief liberally, see Haines v. Kerner , 404 U.S. 519, 520 (1972), a nd “have tried to discern the kernel of the issues [he] wish es to present on appeal.” de Silva v. Pitts , 481 F.3d 1279, 1283 n.4 (10th Cir. 2007). Thus, we consider whether the district court erred in in dismissing Yancey’s complaint. The district court’s order does not indi cate whether it was a dismissal with or without prejudice. Nevertheless, since Ya ncey’s complaint was dismissed without inviting him to amend it and without spec ifying whether the dismissal was without prejudice, we conclude the district court’s or der is a final appealab le order supporting our jurisdiction over Ya ncey’s appeal. See Coffee v. Whirlpool Corp., 591 F.2d 618, 620 (10th Cir. 1979) (holding a dismissal without pr ejudice is a final appealable order when it “is intended to dispose of the cause of acti on”). Yancey’s brief to this Court makes no mention, let alone argument, with respec t to a possible entitlement to amend his complaint; we do not address that potential issue. He di d not move to amend in the district court.- 4 - A conspiracy requires two or more pers ons to act in concert for an unlawful
purpose. Abercrombie v. City of Catoosa, Okla. , 896 F.2d 1228, 1230 (10th Cir. 1990);

see Brever v. Rockwell Int’l Corp. , 40 F.3d 1119, 1126 (10th Cir. 1994). Accordingly, to state a claim for relief for conspiracy, Yanc ey’s complaint must allege both (1) “a meeting of the minds or agreement among the defendants,” and (2) an unlawful purpose.
See Brever , 40 F.3d at 1126 (quoting Abercrombie , 896 F.2d at 1231). Yancey’s complaint fails to sa tisfy either of these requirements. First, it does not allege a meeting of the minds. It alleges onl y “there are three separate Crows involved with the [CCA].” ( Id .) The complaint does not alle ge any agreement among the three Crows. Nor does it allege any communication am ong the defendants, so “there is nothing to give rise to the inference th at [the defendants] conspired.” See Abercrombie , 896 F.2d
at 1231. Likewise, Yancey’s complaint fails to alle ge an unlawful purpose. The complaint only alleges Judge Crow should have re cused himself because of the “sign of impropriety” of sitting on a case where other people with the surname of “Crow” were somehow involved with the defendant. ( Id .) Judges should, of course, avoid the appearance of impropriety. See, e.g., 28 U.S.C. § 455(a); In re Charge of Judicial Misconduct , 91 F.3d 1416, 1417-18 (10th Cir. Jud. C. 1996). But Yancey’s complaint does not explain how an appearance of impropr iety “manipulate[s] the outcome of cases” or how this alleged manipulati on unlawfully violates his rights. 7 ( Id .)

7 A complaint must “make clear exactly who is alleged to have done what to- 5 - In addition, judges are immune from su its for money damages unless the judge’s misconduct is either taken outsi de his judicial capacity or his actions, even “though judicial in nature” are “taken in the complete absence of all jurisdiction.” Mireles v.
Waco , 502 U.S. 9, 11-12 (1991); see Stein v. Disc. Bd. of Sup. Ct. of N.M ., 520 F.3d 1183, 1195 (10th Cir. 2008). Since Yancey’s complaint does not su ggest Judge Crow’s participation went beyond hi s involvement in Yancey’s prior case, Judge Crow is immune from suit.
AFFIRMED. Entered by the Court:

Terrence L. O’Brien United States Circuit Judge

whom , to provide each individual with fair notice as to the basis of the claims against him or her.” Robbins v. Oklahoma , 519 F.3d 1242, 1250 (10th Cir. 2008).