* This order and judgment is not binding precedent, e xcept under the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

### OCT 26 2004 

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

ALLEN OIL & GAS, LLC,

Plaintiff-Appellant,

v. MICHAEL KLISH; BRUCE JOHNSON; DANIEL SKRABACZ; ADRAN PHILLIPS,

Defendants-Appellees. No. 03-1082 (D.C. No. 01-N-1811) (D. Colo.)

ORDER AND JUDGMENT *

Before McCONNELL , HOLLOWAY , and PORFILIO , 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.-2-

Plaintiff Allen Oil & Gas, LLC, appeals the judgmen t of the district court dismissing its § 1983 complaint for failure to stat e a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6) and furth er refusing to grant plaintiff leave to amend its complaint. We exercise jurisdic tion pursuant to 28 U.S.C. § 1332 and affirm. Plaintiff was the operator of oil leases located in Routt County, Colorado. In the complaint, defendants are identified as memb ers of the board of the Colorado Oil and Gas Conservation Commission (Commi ssion). Plaintiff brought suit under 42 U.S.C. § 1983 alleging that defendant s affected a taking of its property without due process in derogation of the F ifth Amendment when the Commission ordered some of plaintiff’s wells plugge d. Specifically, plaintiff alleged, inter alia, that defendants denied it the opportunity for a he aring before an impartial tribunal, prevented it from complying with Commission regulations, and continued a hearing without written notice to p laintiff. In ruling on defendants’ renewed motion to dismiss the complaint, the district court held that because plaintiff failed t o allege any personal participation by defendants in the allegedly illegal acts, its co mplaint was subject to dismissal under Rule 12(b)(6). Because the court found it “p atently obvious that the plaintiff cannot prevail under the alleged facts,” Aplt. App. at 164, it further-3-

denied leave to amend the complaint. Alternatively , the court held that defendants were shielded by qualified immunity. Plaintiff takes issue with all three of these concl usions. We need not address the qualified immunity issue, however, because we find no error in the dismissal for failure to state a claim and in the r efusal to allow amendment.

This court reviews de novo the district court’s dismissal under Rule 12(b)(6) for failure to state a claim. We accept as true all well-pleaded facts, a s distinguished from conclusory allegations, and view those facts in the light most favorable to the nonm oving party. The district court’s dismissal pursuant to Rule 12(b)(6) will be upheld only if it appears beyond d oubt that the plaintiff can prove no set of facts in sup port of his claim which would entitle him to relief. Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998) (citations and quotation omitted). In order to state a claim for relief under § 1983, plaintiff must show an affirmative link between defendants’ conduct and th e alleged constitutional violation. Stidham v. Peace Officer Standards & Training , 265 F.3d 1144, 1156- 57 (10th Cir. 2001). Here, the complaint makes no link between these individual defendants and the acts complained of. The complai nt identifies defendants as members of the Commission, Aplt. App. at 8, but doe s not identify them as1 The statement in plaintiff’s opening brief that the complaint alleged

defendants were members of the Commission is inaccurate. See Aplt. Br. at 16. -4- members of the Commission during the relevant time period. 1 The complaint does not allege how any or all of the defendants voted o n matters concerning the wells. The complaint does claim that activities of a parti cular employee of the Commission injured plaintiff, but that individual i s not named as a defendant. Further, there is no allegation that any of the def endants personally considered the allegedly improper intervention of this employee orallowed it to influence them. In its opening brief, plaintiff correctly cites the law requiring personal participation in this type of suit but fails to ult imately show that defendants were directly involved in the acts that resulted in the claimed deprivation of rights. Merely saying that it has shown individual involvem ent on the part of each defendant does not make it so. See Aplt. Br. at 17-18. Plaintiff also correctly points to various theories of recovery which would state a claim for relief had the correct defendants been named or had these defendants been affirmatively linked to the alleged harm that befell plaintiff. Without the personal participation by each defendant, however, plaintiff’s theories are of no avail. Plaintiff cites Barrett v. Tallon , 30 F.3d 1296, 1299 (10th Cir. 1994), for the proposition that even if the factual allegations made in a complaint fail to support the legal theory underlyi ng the plaintiff’s case, dismissal2 We have ascertained this fact by taking judicial no tice of the appellate

record in Stidham which is still on file in this court. -5- is inappropriate. In Barrett , this court reversed a dismissal under Rule 12(b)( 6) because, while the plaintiffs failed to state a RIC O claim, they had adequately pleaded claims of “garden variety” fraud and conver sion. There is no indication in Barrett , however, that the plaintiffs either failed to nam e the correct defendants or failed to allege personal participation by them. Plaintiff’s citation to Stidham , 265 F.3d 1144, is similarly unavailing. In Stidham , one of the defendants, the director of Utah’s Pea ce Officer Standards and Training Division, argued that the claims again st him must be dismissed because the plaintiff had failed to allege an affir mative link between his conduct and any constitutional violation. This court clari fied that such a link is required to be alleged in the complaint as well as proven attrial. Id. at 1157. We refused to affirm the dismissal of the complaint against th e director, however, because the plaintiff had sufficiently alleged wrongdoing on th e part of the defendants as a group and had defined the director as part of that group. Id. Although not part of the published opinion in Stidham , the complaint there clearly alleged that the defendant director was the director at the time of the acts complained of. 2 The complaint in the case at bar does not make a similar-6-

allegation as to the named defendants and therefore does not state a claim upon which relief can be granted. Finally, plaintiff argues that the district court e rred in refusing to grant it leave to amend the complaint. In declining to grant leave to amend, the district court began by noting that defendants had pointed o ut plaintiff’s failure to allege personal participation when they filed their motionto dismiss in the Southern District of Texas. Briefing on that motion was complete before the case was transferred to Colorado. We also note that defendants made the same argument in their renewed motion to dismiss filed in the distri ct court on December 19, 2001. At the time of the district court’s ruling here, January 24, 2003, discovery in the case was complete and the deadline for filing dispo sitive motions had passed without any request from plaintiff to amend the complaint. The district court concluded that “it is patently obvious that the pla intiff cannot prevail under the alleged facts and that an opportunity to amend woul d be futile.” Aplt. App. at 164. We review this conclusion de novo. Watson ex rel. Watson v. Beckel , 242 F.3d 1237, 1239 (10th Cir. 2001). We have reviewed the pleadings on file in this case and the other materials of record and agree that granting leave to amend wo uld be futile. As noted above, plaintiff does not allege any personal participatio n by any of the defendants in its alleged injury. Plaintiff does not dispute that th ree of the four defendants were not-7-

members of the Commission in March 1999 when the wells were or dered plugged. Despite being on notice that defendants would raise the issue of lack of personal participation, plaintiff did not request leave to a mend its complaint until the district court was prepared to rule on defendants’ renewed motion to dismiss. Even then, the district court found the request to be rather opaque: “There is some suggestion in the papers that the plaintiff should be given leave . . . to replead.” Aplt. App. at 163. Further, plaintiff does not ind icate in its filings in this court how it would amend the complaint to cure the noted defect. Under these circumstances, we find no error in the refusal of the district court to grant leave to amend. The judgment of the district court is AFFIRMED.

Entered for the Court

Michael W. McConnell Circuit Judge