UNITED STATES COURT 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 assist 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This order and judgment is an unpublished decision, not binding precedent. 10th 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 Citation to unpublished decisions is not prohibited.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 the 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Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).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notation B (unpublished).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
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 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 more than “conclusory allegations” without 

any meaningful factual support. (R. at 18.) We agree and affirm. 

I. BACKGROUND 

While Yancey was incarcerated in a detention center operated by Corrections 

Corporation of America (CCA), he filed a § 1983 complaint against CCA and its 

employees. The complaint in that case claimed Yancey “was unlawfully denied access to 

religious call-out and religious materials” 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 dismissed the complaint because Yancey failed to exhaust his 

administrative remedies, as required by 42 U.S.C. § 1997e(a).4

 Before filing the 

 

1

 The district court granted Yancey’s motions 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) was 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 court records” in related proceedings. Gee v. 

Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010). 

4

 Defendants Scrivner and Mula (the chaplain and warden, respectively, of the 

CCA facility) were named in Yancey’s complaint in the prior case. They are again 

named in the current complaint but Yancey fails to allege how either of them is 

connected to the alleged conspiracy. 
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complaint in the present case, he was released 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 complaint, the second Crow in the conspiracy was the 

Crow who was a named partner of Crow, Clothier, and Associates, the law firm which 

defended CCA against Yancey’s first complaint. Yet the complaint names the law firm 

as a defendant, rather than the partner named Crow. The complaint never identifies the 

third Crow. 

6

 Yancey’s appellate brief does not contain 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), and “have tried to discern the 

kernel of the issues [he] wishes 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 indicate whether it was a dismissal with or 

without prejudice. Nevertheless, since Yancey’s complaint was dismissed without 

inviting him to amend it and without specifying whether the dismissal was without 

prejudice, we conclude the district court’s order is a final appealable order supporting our 

jurisdiction over Yancey’s appeal. See Coffee v. Whirlpool Corp., 591 F.2d 618, 620 

(10th Cir. 1979) (holding a dismissal without prejudice is a final appealable order when it 

“is intended to dispose of the cause of action”). Yancey’s brief to this Court makes no 

mention, let alone argument, with respect to a possible entitlement to amend his 

complaint; we do not address that potential issue. He did not move to amend in the 

district court. 
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A conspiracy requires two or more persons 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, Yancey’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 satisfy either of these requirements. First, it does not 

allege a meeting of the minds. It alleges only “there are three separate Crows involved 

with the [CCA].” (Id.) The complaint does not allege any agreement among the three 

Crows. Nor does it allege any communication among the defendants, so “there is nothing 

to give rise to the inference that [the defendants] conspired.” See Abercrombie, 896 F.2d 

at 1231. 

Likewise, Yancey’s complaint fails to allege an unlawful purpose. The complaint 

only alleges Judge Crow should have recused 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 impropriety “manipulate[s] the outcome of cases” 

or how this alleged manipulation unlawfully violates his rights.7

 (Id.) 

 

7

 A complaint must “make clear exactly who is alleged to have done what to 
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In addition, judges are immune from suits for money damages unless the judge’s 

misconduct is either taken outside 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 suggest Judge Crow’s 

participation went beyond his 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).