*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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 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. 
-2-

Appellant Matthew Penner was involved in an automobile accident in

McClain County, Oklahoma, in 1999. Following the accident, Mr. Penner and his

brother sued the Board of County Commissioners in state court. They alleged

McClain County workers failed to warn drivers adequately of construction in the

roadway. That action was dismissed without prejudice in April of 2000. Later

that year, the Penners sued the county again. Although the matter was set for

trial, the Penners, once again, voluntarily dismissed the action. They later tried to

reopen the case. That effort was unsuccessful as were 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 color of state law. The district

court granted Defendants’ motion holding that Mr. Penner produced no evidence,

or even sufficient allegations, that the individual lawyers and state court trial

judge conspired to deprive him of any federal constitutional 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. The 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 assert the necessary

“state action” by implicating state officials or judges in a conspiracy

with private defendants, mere conclusory allegations with no

supporting factual averments are insufficient; the pleadings must

specifically present facts tending to show agreement 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 district 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.] Penner 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. Order). For substantially the same
1We deny Mr. Penner’s motion to disqualify all the Tenth 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 court 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