* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### August 3, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MATTHEW BUTCH PENNER, an individual, and all others similarly situated, Plaintiff - Appellant, No. 05-6003

v. (D.C. No. 04-CV-1130-W) TOM CORDELL, an individual; JEROMY E. BROWN; JOHN BLODGETT, an individual; and others similarly situated to Messrs. Cordell and Brown, (W.D. Okla.)

Defendants - Appellees.

ORDER AND JUDGMENT *

Before EBEL , McKAY , and HENRY , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially 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 ora l argument.-2-

Appellant Matthew Penner was involved in an automob ile accident in McClain County, Oklahoma, in 1999. Following the a ccident, Mr. Penner and his brother sued the Board of County Commissioners in s tate court. They alleged McClain County workers failed to warn drivers adequ ately of construction in the roadway. That action was dismissed without prejudi ce in April of 2000. Later that year, the Penners sued the county again. Alth ough the matter was set for trial, the Penners, once again, voluntarily dismiss ed the action. They later tried to reopen the case. That effort was unsuccessful as w ere their efforts to appeal to the Oklahoma Court of Civil Appeals. In the complaint underlying this § 1983 action, Mr. Penner alleged that the county’s lawyers (the individual defendants in this case) and the state trial judge conspired with the county to deprive him of certain constitutional rights during the state court proceedings. Defendants moved the district court to dismiss the action for failure to state a claim alleging, inter alia , that Mr. Penner failed to adequately allege that Defendants acted under colorof state law. The district court granted Defendants’ motion holding that Mr. P enner produced no evidence, or even sufficient allegations, that the individual lawyers and state court trial judge conspired to deprive him of any federal const itutional rights. Upon receipt of the district court’s ruling, Mr. Penner filed a Rule 60(b) motion effectively asking the court to reconsider its prior ruling. T he district court denied the-3-

motion. This appeal followed. The legal sufficiency of a complaint is a question of law; therefore, a Rule 12(b)(6) dismissal is reviewed de novo

. Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). “The court ’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.” Id. (internal quotation omitted). Mr. Penner, because of the underlying nature of his suit, was subject to a heightened pleading requirement: When a plaintiff in a § 1983 action attempts to ass ert the necessary “state action” by implicating state officials or ju dges in a conspiracy with private defendants, mere conclusory allegation s with no supporting factual averments are insufficient; the pleadings must specifically present facts tending to show agreemen t and concerted action. Sooner Products Co. v. McBride , 708 F.2d 510, 512 (10th Cir. 1983) (internal citation omitted). We have reviewed the parties’ briefs, the relevant law, and the record on appeal. In its November 1, 2004, Order, the distri ct court correctly applied the relevant law to the facts of this case. Indeed, we agree with the district court that “[t]here are no allegations advanced by [Mr.] Penne r that demonstrate a plan to accomplish a common goal, preconceived and agreed upon by the alleged conspirators.” Aple. Br., Tab 5, at 4 (Dist. Ct. O rder). For substantially the same1 We deny Mr. Penner’s motion to disqualify all the T enth Circuit judges for

this appeal. -4- reasons as articulated by the district court in its well-reasoned November 1, 2004, Order, dismissal of Mr. Penner’s case was proper. In addition, for substantially the same reasons as articulated by the district cou rt in its December 1, 2004, Order, we cannot say that the district court abused its discretion in denying Mr. Penner’s Rule 60(b) motion. 1 See Adams v. Reliance Standard Life Ins. Co. , 225 F.3d 1179, 1186 n.5 (10th Cir. 2000). Allowing Mr. Penner to amend would have been an exercise in futility. Curley v. Perry , 246 F.3d 1278, 1281-82 (10th Cir. 2001).
AFFIRMED

. Entered for the Court

Monroe G. McKay Circuit Judge