* This order and judgment is not binding precedent, e xcept under the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

### MAY 19 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JOSEPH A. VENTO,

Plaintiff-Appellant,

v. COLORADO NATIONAL BANK; C. JEAN STEWART; DAVID W. STARK; JACK M. MERRITTS,

Defendants-Appellees. No. 98-1236 (D.C. No. 97-S-463) (D. Colo.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.1 By order dated September 29, 1998, the appeal from the district court’s

award of sanctions and attorney fees was dismissed. -2- Plaintiff Joseph A. Vento appeals from the districtcourt’s order adopting the magistrate judge’s recommendation to dismiss hi s complaint brought pursuant to 42 U.S.C. §§ 1983 & 1988. 1 We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. Plaintiff brought suit in federal court against def endants, Colorado National Bank (CNB), Stark and Merritts, alleging that they conspired with defendant Stewart, a Denver Probate Court judge, to file a ve xatious interpleader action in the Denver Probate Court. In 1993, plaintiff and h is sister obtained a judgment against CNB in the District Court in Pueblo County, Colorado. The Colorado Court of Appeals affirmed the judgment on appeal. See Vento v. Colorado Nat’l Bank-Pueblo , 907 P.2d 642 (Colo. Ct. App. 1995). On December 11, 1995, the Colorado Supreme Court denied certiorari. On Decem ber 29, 1995, CNB filed the interpleader action seeking to interplead the amount of the Pueblo District Court judgment because of competing claims on the judgment, including claims by trusts owned by other members of plaintiff’s family . Plaintiff claims the interpleader action was filed to prevent him from c ollecting the Pueblo District Court judgment. Defendant Stewart, acting in her c apacity as a Denver Probate Court judge, entered an order on January 3, 1996, g ranting CNB’s request to-3-

interplead the funds and enjoining all claimants, i ncluding Joseph Vento, from taking any action to collect the Pueblo District Co urt judgment. Plaintiff then filed this lawsuit alleging his fede ral civil rights were violated by CNB, defendant Stark (the attorney who represented CNB in the interpleader action), defendant Merritts (the attorney who represented other claimants on the Pueblo District Court judgment), and defendant Stewart (the Denver Probate Court judge assigned to the interple ader action). We review de novo an order dismissing a complaint f or failure to state a claim for relief under Rule 12(b)(6) of the Feder al Rules of Civil Procedure, using the same standard applied by the district court. See Ordinance 59 Ass’n v. United States Dep’t of Interior Secretary , 163 F.3d 1150, 1152 (10th Cir. 1998). “We accept as true all well-pleaded facts, as disti nguished from conclusory allegations, and view those facts in the light mostfavorable to the nonmoving party.” Maher v. Durango Metals, Inc. , 144 F.3d 1302, 1304 (10th Cir. 1998). Dismissal of a complaint pursuant to Rule 12(b)(6) will be upheld only if “it appears beyond doubt that the plaintiff can prove n o set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson , 355 U.S. 41, 45-46 (1957) (footnote omitted). Plaintiff’s claims against Judge Stewart, a state c ourt judge, raise the issue of judicial immunity. “[A] state judge is absolute ly immune from § 1983 liability-4-

except when the judge acts ‘in the clear absence of all jurisdiction.’” Hunt v.
Bennett , 17 F.3d 1263, 1266 (10th Cir. 1994) (quoting Stump v. Sparkman , 435 U.S. 349, 356-57 (1978)). Plaintiff maintains that the Denver Probate Court had no jurisdiction over the interpleader action, r elying on Rule 22 of the Colorado Rules of Civil Procedure and other rules. “[T]he scope of the judge’s jurisdiction must be construed broadly where the is sue is the immunity of the judge.” Stump , 435 U.S. at 356. Neither a judge’s “commission o f grave procedural errors,” id. , at 359, nor her action “in excess of [her] authority,” id. at 356, will deprive the judge of immunity. A judg e acts in the clear absence of all jurisdiction when she “acts clearly without any colorable claim of jurisdiction.” Snell v. Tunnell , 920 F.2d 673, 686 (10th Cir. 1990). We need not decide whether the Denver Probate Court had jur isdiction over the interpleader action because we find that under Colo . Rev. Stat. § 13-9-103(5), granting jurisdiction to the Denver Probate Court o ver “every legal and equitable question arising out of or in connection with expre ss trusts,” Judge Stewart had at least colorable jurisdiction sufficient to invok e judicial immunity. Therefore, Judge Stewart cannot be held liable under § 1983. To state a claim under § 1983 plaintiff must show that defendants acted under color of state law. See Haines v. Fisher , 82 F.3d 1503, 1508 (10th Cir. 1996). Plaintiff recognizes that CNB, Stark and Me rritts are private parties, not-5-

public actors subject to liability under § 1983, but he alleges that they acted under color of state law by engaging in joint activ ity and/or a conspiracy with Judge Stewart who is a state actor, to violate his rights. “[T]he immunity of a state official will not necessarily protect a pri vate individual alleged to have conspired with [her].” Shaffer v. Cook , 634 F.2d 1259, 1260 (10th Cir. 1980). The test is whether “the plaintiff [has] demonstrat ed the existence of a significant nexus or entanglement between the absolutely immune State official and the private part[ies] in relation to the steps taken byeach to fulfill the objects of their conspiracy[.]” Norton v. Liddel , 620 F.2d 1375, 1380 (10th Cir. 1980). Plaintiff alleges that the following circumstances demonstrate that the private party defendants and Judge Stewart conspire d to violate his rights: plaintiff was not granted a continuance of the Janu ary 3, 1996 hearing, he was not given sufficient time to respond to the complai nt, and Judge Stewart made statements and rulings with which he disagreed. We hold that these “[c]onclusory allegations of conspiracy are insufficient to state a valid § 1983 claim,” Hunt , 17 F.3d at 1266 (quotation omitted), and that they do not “allege the kind of conspiratorial nexus” to support a “conspiracy inte nded to deprive [plaintiff] of his constitutional rights.” Shaffer , 634 F.2d at 1261. Because plaintiff has failed to demonstrate a conspiracy between the private party defendants and a state actor, their conduct is not covered by § 1983.-6-

Plaintiff’s final argument is framed as a claim that he was deprived of his property through state action without due process o f law. Even if plaintiff was deprived of his property, see Vento v. Colorado Nat’l Bank , No. 97CA1814, 1999 WL 46924 (Colo. Ct. App. Feb. 4, 1999) (noting that Denver Probate Court held that plaintiff was entitled to receive approxi mately $2.9 million from the interpled funds), his arguments to this court demon strate only a disagreement with the state court’s decisions. Therefore, we invoke the Rooker-Feldman doctrine, which prohibits federal district courts from hearin g federal claims whose only purpose is to obtain review of state court judgment s when review should be achieved through appellate review in the state court system. See Kiowa Indian Tribe v. Hoover , 150 F.3d 1163, 1165 (10th Cir. 1998). The judgment of the district court is AFFIRMED. Th e mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge