FILED

United States Court of Appeals

Tenth Circuit

August 20, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LON PERRY EDGE,

Plaintiff-Appellant, No. 08-7122

v. Eastern District of Oklahoma

JUDGE DONALD ED PAYNE,

deceased; ESTATE OF DONALD ED

PAYNE; JUDGE GARY BROCK;

JIMMY WALKER, Clerk, Choctaw

County; RONALD LOWRIMORE,

Court Reporter, Choctaw County;

JANE LAMPTON, Court Secretary,

Choctaw County; VIRGINIA

SANDERS, District Attorney for

McCurtain County; JOHN BOUND,

First Assistant District Attorney for

McCurtain County; JOE WATKINS,

Assistant District Attorney for

Choctaw County; JAMES WOLFE,

Assistant District Attorney for

Pushmataha County; LEWIS

COLLINS, Sheriff for Choctaw

County; TERRY PARK, Undersheriff

for Choctaw County; BILL BOOKER,

Deputy for Choctaw County; LARRY

HENDRIX, Deputy for Choctaw

County; DUSTY SPALDING, Deputy

for Choctaw County; DARRELL

WOFFORD, Deputy for Choctaw

County; WYATT WILLIAMS, Deputy

for Choctaw County; BEN MILNER,

Deputy for Choctaw County; JOHN

ALLEN MITCHELL, Sheriff Office,

Drug Task Force; RITA KAY

DUNCAN, Commissioned Sheriff

Deputy, Choctaw County; CURTIS

COLLINS, A.T.F. Agent; CARLOS

SANDOVAL, A.T.F. Agent;

(D.C. No. CIV-07-188-RAW)
*

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore 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.

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VICKI EDGE-DIXON; CHARLIE

LUCAS; JEFF LYLES; ONE DOE,

Highway Patrol, Oklahoma; and DOES

1 thru 25 in their official and

individual capacities, 

Defendants-Appellees.

ORDER AND JUDGMENT*

Before LUCERO, MURPHY and McCONNELL, Circuit Judges.

Lon Edge, a prisoner proceeding pro se, seeks to overturn the district

court’s dismissal of his 42 U.S.C. § 1983 action alleging violations of various

constitutional rights by judicial and law enforcement officials and private

citizens. The district court dismissed the claims against judicial officers and law

enforcement agents on immunity grounds. The court then dismissed all remaining

charges against the other defendants for failing to state a claim. We affirm the

district court’s dismissal of Mr. Edge’s remaining conspiracy claims, but remand

for consideration of his Fourth Amendment claim. 
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BACKGROUND

The complaint presents a meandering and confusing account of alleged

conspiracies and misdeeds, which we will try to unpack. After what seems to

have been a particularly contentious divorce proceeding, Mr. Edge was left bitter

about the allocation of marital assets. He now claims that the judge in the divorce

case acted improperly and violated various constitutional rights, and that the court

reporter doctored the transcripts, also violating his constitutional rights.

At some point, Mr. Edge and his ex-wife both took out temporary

protective orders against each other. Mr. Edge contends that Special Agent Curtis

Collins and Mr. Edge’s ex-wife, Ms. Edge-Dixon, had a relationship and that they

drove around together in search of him, in violation of the protective order. He

claims that the duo launched a conspiracy to take away Mr. Edge’s liberty and

property drawing in prosecutors, police, and judges. He further alleges that his

ex-wife and her son shot at him after he had filed a protective order and that the

police did not investigate or prosecute. Because he was arrested for and

convicted of possession of a firearm while under a protective order while she was

not, Mr. Edge contends that the police and prosecutors involved in the matter

violated his right to equal protection under the law. 

In addition to his conspiracy claim, Mr. Edge’s complaint set forth a

separate Fourth Amendment claim, which appears in Paragraph 81 of the amended

complaint. This paragraph alleges that among other things “Plaintiff’s
2 The record does not reveal whether Mr. Edge raised a Fourth Amendment

claim in connection with this prosecution, or if he did, what was the disposition

of that claim.

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residence[,] curtilege[,] and outbuildings were searched without a warrant for

approximately 6 hours.” R. Vol. 1 at 101. He elaborates that the officers sought

and were denied a search warrant (two times) and agreed to conspire to search his

residence through “illegal tactics such as threats all in violation of the Forth [sic]

Amendment to the United States Constitution.” R. Vol. 1 at 99. In an earlier

iteration of the complaint, Mr. Edge acknowledged that his girlfriend, Ms.

Morehead, had signed a form granting consent to search his residence, but alleged

that “Ms. Moorehead [sic] only cooperated as a result of coercive pressures,” and

that the agents “would not leave the property until Ms. Moorehead [sic] signed a

Consent to Search ‘AFTER’ they conducted a search of the house.” R. Vol. 1 at

27. The search produced a firearm; which led to Mr. Edge’s prosecution and

conviction in federal court in an unrelated case.2

The district court’s order admirably tries to untangle Mr. Edge’s complaint,

which is, as the lower court put it, “all over the place.” Dist. Ct. Or. 4 n.3. The

district court dismissed all of the claims against judicial and law enforcement

officers on immunity grounds and the remaining counts against the other

defendants for failure to state a claim under Fed. R. Civ. Proc. 12(b)(6). It does

not, however, provide any explanation for dismissal of the Fourth Amendment

claim.
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STANDARD OF REVIEW

We apply de novo review to a lower court’s dismissal under Fed. R. Civ. P.

12(b)(6). Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007). “In reviewing

a motion to dismiss, this court must look for plausibility in the complaint.” Id.

(internal quotations omitted). “Under this standard, a complaint must include

‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In this circuit, this means

that “[t]he allegations must be enough that, if assumed to be true, the plaintiff

plausibly (not just speculatively) has a claim for relief.” Robbins v. Oklahoma,

519 F.3d 1242, 1247 (10th Cir. 2008). We likewise review a complaint dismissed

on immunity grounds de novo. Guttman v. Khalsa, 446 F.3d 1027, 1033 (10th

Cir. 2006) (judicial immunity); Maestas v. Lujan, 351 F.3d 1001, 1007 (10th Cir.

2003) (qualified immunity).

This court, like the district court, liberally construes the pleadings of all pro

se litigants. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). While we

accept factual allegations as true and view them in the light most favorable to the

plaintiff, “conclusory allegations without supporting factual averments are

insufficient to state a claim on which relief can be based.” Id.

ANALYSIS

A. Dismissal on immunity grounds was appropriate
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As the district court rightly observed, judges have absolute immunity for

their “official adjudicative acts.” Lundahl v. Zimmer, 296 F.3d 936, 939 (10th Cir.

2002). Further, absolute immunity extends to judicial officers including court

clerks. Id. There are only two exceptions to this absolute immunity: actions taken

outside the judicial capacity; and actions taken in the “complete absence of all

jurisdiction.” Stein v. Disciplinary Bd. of Supreme Court of N.M., 520 F.3d 1183,

1195 (10th Cir. 2008).

The claims lodged by Mr. Edge against judges and other judicial officials

stem from actions undertaken as a part of their judicial duties, and are as such

covered by absolute immunity. Mr. Edge alleges that Judge Don Ed Payne

“altered Protective Order of plaintiff in November, 2003 [and] gave perjured

testimony to its alteration federal trial CR-05-86 . . . .” Pet. Br. 10. We do not

need to address the question of whether judicial immunity extends to a judge’s

testimony as a witness, because the allegations regarding the perjury do not

support a claim. A complaint so vague fails to meet the threshold for plausibility

under Rule 12(b)(6).

As to the claims against state prosecutors Sanders, Bound, Watkins, and

Wolfe, we agree with the lower court that their actions were undertaken as part of

their prosecutorial duties. Thus, they are entitled to immunity. 
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B. Conspiracy claims were rightly dismissed.

The lower court noted that much of what remains of the complaint can be

described as allegations of one large conspiracy. When alleging conspiracy, “the

pleadings must specifically present facts showing agreement and concerted action. 

Conclusory allegations without supporting facts are insufficient.” Hammond v.

Bales, 843 F.2d 1320, 1323 (10th Cir. 1988). With respect to his conspiracy

claims, Mr. Edge has not alleged enough facts to show agreement and concerted

action. That his ex-wife and a police officer were seen driving together is not a

sufficient basis for inferring a far-ranging conspiracy. His assertions that together

the defendants have injured him or agreed to violate his constitutional rights are

simply “conclusory allegations without supporting facts” and are thus insufficient

to support his claims. The district court appropriately dismissed the conspiracy

complaints.

C. Fourth Amendment claims were not individually addressed.

In addition to the conspiracy claims, however, Mr. Edge separately alleged

that certain of the defendants violated his Fourth Amendment rights when they

searched his home without a warrant. R. Vol. 1 at 101. On appeal, Mr. Edge

argues that defendants engaged in an “un-authorized search of private property . . .

that continued for six (6) hours without a search warrant. No search warrant ever

was obtained for residence; in fact was denied.” Pet. Br. 4–5. In their appellate
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brief, the defendants offer no response to this argument; in fact, they make no

mention of the Fourth Amendment claim apart from the larger conspiracy claims. 

After dismissing the conspiracy claims, the district court dismissed Mr.

Edge’s “1st, 2nd, 4th, 5th, 6th, 8th, 13th, and 14th” Amendment claims along with

any remaining claims under “42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, 1988,

1994, and 2000; and 18 U.S.C. §§ 1001 and 1028” for failure to state a claim. R.

Vol. 2 at 161. The court provided no separate analysis on the Fourth Amendment

claim; it is simply included in the list. That particular claim, though, deserves

more attention than a cursory dismissal. 

Unlike the rest of Mr. Edge’s complaint, this portion appears to contain the

necessary allegations of a constitutional violation: the date and place of a

warrantless search by certain named defendants. There may well be reasons why

this claim is vulnerable to a motion to dismiss, and we certainly intimate no view

regarding whether it can be proved, but neither the district court’s order nor the

defendants’ brief puts forward any such argument. We therefore remand to the

district court for consideration of this apparently neglected claim.

CONCLUSION

The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED in part and REVERSED in part. We affirm the

dismissal without leave to amend of all claims save the Fourth Amendment

allegation. On remand, the district court should examine that individual claim in
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light of the defendants’ motions to dismiss. 

Entered for the Court,

Michael W. McConnell

Circuit Judge