FILED

United States Court of Appeals

Tenth Circuit

March 13, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RENEE BANGERTER,

Plaintiff-Appellant,

v.

CRISTIE ROACH, and DOES 1-50,

Defendants-Appellees.

No. 11-4111

(D.C. No. 2:11-CV-00294-DS)

(D. Utah)

ORDER AND JUDGMENT*

Before KELLY, MURPHY, and MATHESON, Circuit Judges.

Renee Bangerter appeals from a district court order that dismissed her

42 U.S.C. § 1983 case against Cristie Roach. We have jurisdiction under

28 U.S.C. § 1291, and we AFFIRM.

BACKGROUND

In March 2011, Bangerter sued Roach, “an employee of the [Utah] Office

of Guardian Ad Litem,” for violating her due-process rights. Aplt. App. at 4. 

* 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 
Bangerter claimed that “Roach used her position at the Office of Guardian

Ad Litem” to become the “guardian ad litem for Plaintiff’s three minor children”

despite having a conflict of interest. Aplt. App. at 6. Once appointed, Roach

“abandon[ed] her role of representing the best interest of the children in order to

show favor to a private attorney and her client.” Id. at 8. Further, Roach

purportedly “ignored reports of neglect of one of the minor children.” Id. at 6.

The district court dismissed Bangerter’s complaint pursuant to

Fed. R. Civ. P. 12(b)(6), concluding that Roach, as a guardian ad litem, was not a

state actor liable under § 1983. It also found Bangerter’s allegations about

Roach’s pre-appointment conduct to be unsupported and conclusory. Finally, the

court rejected Bangerter’s summary request for leave to amend.

DISCUSSION

We review a Rule 12(b)(6) dismissal de novo, accepting as true all

well-pleaded factual allegations in the complaint and viewing them in the light

most favorable to the plaintiff. Smith v. United States, 561 F.3d 1090, 1098

(10th Cir. 2009). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotation

omitted). In other words, the “[f]actual allegations must be enough to raise a

right to relief above the speculative level,” and a complaint that merely offers

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“labels and conclusions,” or “a formulaic recitation of the elements of a cause of

action,” is insufficient. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

As the district court noted, guardians ad litem are not state actors for

purposes of § 1983 because they give their “undivided loyalty to the minor, not

the state.” Meeker v. Kercher, 782 F.2d 153, 155 (10th Cir. 1986) (per curiam).

To circumvent this principle, Bangerter argues that her “complaint deals with

[Roach’s] actions before her appointment as guardian ad litem.” Aplt. Br. at 18. 

But that characterization of the complaint is not accurate. Most of the complaint

deals with post-appointment conduct. And while there is an allegation targeting

pre-appointment conduct, it is so vague and conclusory that it fails to raise a right

to relief. Specifically, Roach allegedly failed to disclose a conflict of interest,

and “maneuver[ed] and manipulat[ed] her way to be appointed . . . through a

series of unlawful acts and assist a private attorney [sic].” Aplt. App. at 6. We

are left to speculate as to how this conduct—which apparently occurred when she

was an “employee of the Office of Guardian Ad Litem,” id. at 4—necessarily

constitutes state action, and if it does, how it violated Bangerter’s due-process

rights. We conclude that Bangerter’s complaint fails to state a claim for relief. 

See Twombly, 550 U.S. at 555 (stating that a “pleading must contain something

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more than a statement of facts that merely creates a suspicion of a legally

cognizable right of action” (quotation and alterations omitted)).1

Bangerter argues that, in any event, the nature of the district court’s

dismissal—with prejudice—was inappropriate. She contends that her complaint

advanced state and common-law claims, and that pleading deficiencies could have

been cured by amendment.

We review a district court’s decision to dismiss with prejudice for abuse of

discretion. U.S. ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 809

(10th Cir. 2002). “A dismissal with prejudice is appropriate where a complaint

fails to state a claim . . . and granting leave to amend would be futile.” Brereton

v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006).

In seeking leave to amend, Bangerter never filed a formal motion in the

district court. Rather, in her opposition to Roach’s motion to dismiss, she merely

requested that “at a minimum Plaintiff be allowed leave to amend any possible

perceived pleading failures.” Aplt. App. at 25. Such cursory requests for leave to

amend are insufficient. See Garman v. Campbell Cnty. Sch. Dist. No. 1, 630 F.3d

977, 986 (10th Cir. 2010), cert. denied, 132 S. Ct. 95 (2011). Further, leave to

amend would have been futile, given that the lawsuit targeted a defendant whose

conduct as a guardian ad litem is generally beyond the scope of § 1983 liability. 

1 To the extent that Bangerter’s complaint named “John and Jane Does 1-50”

as defendants, there are no allegations that implicate a claim for relief against

them.

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Finally, insofar as Bangerter asserts that she had pleaded facts supporting state

and common-law claims, the complaint itself asserts that “all current claims deal

with constitutional violations [sic] 42 U.S.C. § 1983.” Aplt. App. at 5.

We determine that the district court did not abuse its discretion in making

the dismissal with prejudice.

CONCLUSION

The judgment of the district court is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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