UNITED STATES COURT OF APPEALS

Filed 9/30/96

FOR THE TENTH CIRCUIT

ELDON HAYS, GRACE M. HAYS,

Plaintiffs-Appellants,

v.

GEORGE MCLACHLAN, SCOTT R.

FONCANNON, JOHN

GEHLHAUSEN, JOHN S.

LEFFERDINK, RICHARD A.

FRANCIS, GALE A. NORTON,

CRISTINA VALENCIA, CARON

BETHEL, NORMAN L. ARENDS,

GARTH L. NIESCHBURG, ROSE

ANN ESTES YATES, JAMES

CHILDRESS, JESSE

MANZANARES, ATTORNEY

GENERAL FOR THE STATE OF

COLORADO, STATE OF

COLORADO, OTERO COUNTY,

HAROLD KLIEN, ROBERT

GERLER, ROBERT BAUSERMAN,

JOHN EBERLY, DENNIS SMITH,

JIM MASON, CHRIS JOHNSON,

PROWERS COUNTY COLORADO,

RICHARD CLED WIDENER,

ROBERT TEMPEL, JOHN STULP,

JAMES HAMILTON, JEFFERY

FAYCOSH, RONALD FOSTER,

DARLA SPECTH SCRANTON,

JOHN GEHLHAUSEN, P.C., JOHN L.

LEFFERDINK, ARTHUR ESGAR,

FREDERICK ESGAR, DAVID

ESGAR, LINDA M. MOSHAR,

LARRY MOSHER, LEFFERDINK 

No. 95-1365

(D.C. No. 95-Z-1404)

(D. Colo.)
2--
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AND BULLOCK, FEDERAL

DEPOSIT INSURANCE

CORPORATION, Receiver, Heritage

Savings and Loan Association and

State Bank of Wiley, JOHNSON &

MCLACHLAN, and John and Jane

Does 1-100, STATE BANK OF

WILEY,

Defendants-Appellees.

_______________________________

ELDON HAYS, GRACE M. HAYS,

Plaintiffs-Appellants,

v.

STATE BANK OF WILEY, GEORGE

MCLACHLAN, JOHN

GEHLHAUSEN, JOHN S.

LEFFERDINK, CARON BETHEL,

NORMAN L. ARENDS, GARTH L.

NIESCHBURG, ROSE ANN ESTES

YATES, JAMES CHILDRESS, JESSE

MANZANARES, OTERO COUNTY,

JOHN EBERLY, DENNIS SMITH,

JIM MASON, CHRIS JOHNSON,

PROWERS COUNTY COLORADO,

HAROLD SMITH, JAMES

HAMILTON, LEFFERDINK, DAVIS

AND BULLOCK, JEFFERY

FAYCOSH, LARRY E. MOSHER,

RONALD FOSTER, LINDA J.

MOSHER, WINTER LIVESTOCK,

INC., LICH, HEROLD AND

MACKIEWICZ, JOHN

GEHLHAUSEN, P.C., JOHN M.

No. 95-1366

(D.C. No. 94-Z-950)

(D. Colo.)
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LEFFERDINK, ARTHUR ESGAR,

FREDERICK ESGAR, DAVID

ESGAR, LEFFERDINK &

BULLOCK, John and Jane Does, 1-

100, FEDERAL DEPOSIT

INSURANCE CORPORATION,

Receiver, Heritage Savings and Loan

Association and State Bank of Wiley,

JOHNSON & MCLACHLAN,

Defendants-Appellees.

_______________________________

ELDON HAYS, GRACE M. HAYS,

Plaintiffs-Appellants,

v.

GEORGE MCLACHLAN, SCOTT R.

FONCANNON, JOHN

GEHLHAUSEN, JOHN S.

LEFFERDINK, RICHARD A.

FRANCIS, GALE A. NORTON,

CRISTINA VALENCIA, CARON

BETHEL, NORMAN L. ARENDS,

GARTH L. NIESCHBURG, ROSE

ANN ESTES YATES, JAMES

CHILDRESS, JESSE

MANZANARES, ATTORNEY

GENERAL FOR THE STATE OF

COLORADO, STATE OF

COLORADO, OTERO COUNTY,

HAROLD KLIEN, ROBERT

GERLER, ROBERT BAUSERMAN,

JOHN EBERLY, DENNIS SMITH,

JIM MASON, CHRIS JOHNSON,

PROWERS COUNTY COLORADO,

No. 95-1432

(D.C. No. 95-Z-1404)

(D. Colo.)
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JAMES HAMILTON, JEFFERY

FAYCOSH, RONALD FOSTER,

DARLA SPECTH SCRANTON,

JOHN GEHLHAUSEN, P.C., JOHN L.

LEFFERDINK, ARTHUR ESGAR,

FREDERICK ESGAR, DAVID

ESGAR, LINDA M. MOSHAR,

LARRY MOSHER, LEFFERDINK 

& BULLOCK, FEDERAL DEPOSIT

INSURANCE CORPORATION,

Receiver, Heritage Savings and Loan

Association and State Bank of Wiley,

JOHNSON & MCLACHLAN, and

John and Jane Does 1-100, STATE

BANK OF WILEY,

Defendants-Appellees.

_______________________________

ELDON HAYS, GRACE M. HAYS,

Plaintiffs-Appellants,

v.

JAMES B. BOISCLAIR, CITYBANK

(SOUTH DAKOTA) N.A., LEROY

MAUCH, NORMAN L. ARENDS,

GEORGE MCLACHLAN, JOHN R.

STULP, ROSE ANN YATES,

RICHARD CLED WIDENER,

PROWERS COUNTY COLORADO,

John and Jane Does 1 through 29,

Defendants-Appellees.

No. 95-1441

(D.C. No. 95-Z-1678)

(D. Colo.)
* 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. 

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ORDER AND JUDGMENT*

Before PORFILIO, BARRETT, and BRORBY, Circuit Judges.

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

unanimously that oral argument would not assist the determination of these

appeals. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The cases are

therefore ordered submitted without oral argument.

In these companioned appeals, plaintiffs Eldon and Grace Hays challenge

the district court’s adverse disposition of three civil rights actions. The numerous

defendants named in these cases filed motions for dismissal and/or summary

judgment, raising such legal defenses as absolute (judicial, quasi-judicial, and

prosecutorial) immunity, qualified immunity, failure to state a claim, res judicata,

and statute of limitations. We review the district court’s determinations of these

matters de novo. State Bank v. Gledhill (In re Gledhill), 76 F.3d 1070, 1082

(10th Cir. 1996)(res judicata); Edwards v. International Union, 46 F.3d 1047,
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1050 (10th Cir.)(limitations), cert. denied, 116 S. Ct. 60 (1995); Eastwood v.

Department of Corrections, 846 F.2d 627, 629 (10th Cir. 1988)(absolute and

qualified immunity); see Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851, 854

(10th Cir. 1996)(dismissal and summary judgment generally). For the reasons

expressed below, we affirm the judgments entered in all of these cases.

Before we discuss each particular case, though, one general matter common

to all should be addressed. Plaintiffs have been sanctioned, by both monetary

penalties (attorney fees) and prospective filing restrictions, for submitting

pleadings judged to be plainly deficient in law and fact. As pro se litigants,

plaintiffs are entitled to invoke the familiar principle of liberal pleading

construction. See Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996). 

There are, however, reasonable limits to this principle:

[T]he broad reading of the plaintiff[s’] complaint does not relieve the

plaintiff[s] of the burden of alleging sufficient facts on which a

recognized legal claim could be based. Not every fact must be

described in specific detail . . . . Nevertheless, conclusory

allegations without supporting factual averments are insufficient to

state a claim on which relief can be based . . . .

Id. (quotation omitted). Furthermore, we note that “a pro se party must follow the

same rules of procedure that govern other litigants.” United States v. Edwards,

69 F.3d 419, 427 n.5 (10th Cir. 1995)(quotation omitted), cert. denied, 116 S. Ct.

2497 (1996).
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The district court concluded each of its dismissal orders roughly as follows: 

The Court notes that plaintiffs have in the past as in this action

joined parties to their actions simply because they perceive that those

individuals had opposed earlier actions. Such action is clearly an

abuse of the judicial process. Groundless and vexatious litigation

will justify an order enjoining a litigant from filing any pro se claims

without first seeking prior leave of Court. See Ketchum v. Cruz, 961

F.2d 916, 921 (10th Cir. 1992); Winslow v. Romer, 759 F. Supp.

670, 677-78 (D. Colo. 1991); Colorado ex rel. Colo. Judicial Dep’t v.

Fleming, 726 F. Supp. 1216, 1221 (D. Colo. 1989). The Court

concludes that this case and others filed by plaintiff[s] have been

groundless and vexatious. Therefore, cause does exist to bar

plaintiffs from filing pro se actions before this Court without leave to

do so. Thus, the Court will so order. The Court further concludes

that defendants should be awarded reasonable attorneys’ fees

expended to defend this frivolous law suit.

Appeal No. 95-1366, R. II doc. 181 at 3; see Appeal Nos. 95-1365, 95-1432, R. I

doc. 79 at 3; Appeal No. 95-1441, R. I doc. 28 at 3-4. As our case-by-case

discussion below reflects, we agree with the district court’s overall assessment of

plaintiffs’ legal filings. Under the circumstances, the court did not abuse its

discretion in awarding attorney fees to defendants, see generally Mann v.

Reynolds, 46 F.3d 1055, 1062 (10th Cir. 1995), nor did the court err in imposing

a reasonable restriction on plaintiffs’ pro se filings, particularly as several

motions and/or magistrate judge recommendations had provided plaintiffs with

ample notice that such restrictions were under consideration in each case, see

Werner v. Utah, 32 F.3d 1446, 1447-48 (10th Cir. 1994).
1 These consolidated appeals challenge essentially the same determination. 

Plaintiffs filed Appeal No. 95-1432 following the denial of their motion to

reconsider the judgment challenged in Appeal No. 95-1365. Technically, the

second appeal adds the denial of reconsideration to the underlying judgment

already under review pursuant to the first appeal. 

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Appeals Nos. 95-1365, 95-14321

The complaint in this case alleges two instances of improper conduct by

opposing counsel at a deposition in another federal action brought by plaintiffs. 

First, it alleges that defendant George McLachlan, an attorney (and state judge)

representing himself in that case, impersonated a federal judge at the deposition. 

The only factual allegations included to support this accusation are that

McLachlan, whose chambers were in the same building, attended the deposition in

judge’s robes and, while there, told plaintiffs’ lay “advisor” that he could not

remain at the deposition. Second, the complaint alleges that other opposing

counsel insisted on reviewing a stack of documents regarding which Grace Hays

intended to testify and, in the process, lost certain unidentified papers. 

In dismissing the action, the district court discussed several deficiencies in

the pleadings which liberal construction could not remedy. The court initially

noted that the lengthy complaint was “vague and difficult to understand,” and

therefore dismissable for lack of the “short and plain statement” required by

Fed. R. Civ. P. 8(a)(2). R. I doc. 79 at 2. The court continued:
2 Plaintiffs cite no authority either demonstrating a right to lay assistance at a

deposition, see 28 U.S.C. §1654 (“parties may plead and conduct their own cases

personally or by counsel”); cf. Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.

1986)(civil party cannot be represented by nonattorney); United States v. Nichols,

841 F.2d 1484, 1503 (10th Cir. 1988)(no right to unlicensed representation in

criminal proceeding), or precluding opposing counsel from reviewing documents

relied on by a party-witness, see Fed. R. Civ. P. 30(c); Fed. R. Evid. 612. 

Moreover, defendant McLahlan’s appearance in his state judicial garb does not, in

itself, constitute the impersonation of a federal judge. 

3 State action is required not only for § 1983 claims, but also for § 1985(3)

claims premised on constitutional strictures directed at state conduct, United

Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 830-33 (1983). We

further note that plaintiffs’ § 1985(3) claims are not supported by the requisite

“class-based, invidiously discriminatory animus.” Id. at 834 (quotation omitted).

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Even if plaintiffs had set forth recognizable claims, it appears that

they would be insufficient . . . . It further appears that no state action

occurred and thus an action under 42 U.S.C. § 1985 or § 1983 is

inappropriate. In short, it appears that plaintiffs are contending that

something improper happened during their depositions in Civil

Action No. 95-Z-950. These are issues which should have been

raised in that case and not as a separate action.

Id. 

We agree. The only particularized, intelligible claims that can be gleaned

from the complaint’s forty-seven pages are the discovery objections summarized

above. Not only are those objections doubtful in themselves,2 they are directed to

conduct that does not, in any event, involve the state action necessary to support

plaintiffs’ federal claims.3 See Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir.

1983)(summarizing “vast weight of authority” recognizing that private civil

discovery does not constitute state action, including Skolnick v. Martin, 317 F.2d
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855 (7th Cir.), cert. denied, 375 U.S. 908 (1963), which specifically involved

conduct by opposing counsel at a deposition). The complaint invokes a broad

state-infused conspiracy, but contains no facts to bear out its conclusory

allegations in this regard. See, e.g., Hunt v. Bennett, 17 F.3d 1263, 1266 (10th

Cir.), cert. denied, 115 S. Ct. 107 (1994); Northington v. Jackson, 973 F.2d 1518,

1521 (10th Cir. 1992). This action was, in substance, an inappropriate attempt to

raise previously known objections to the discovery process involved in another

case. Neither discovery nor plausible amendment could conceivably have

rectified the fatal deficiencies of the claims asserted.

Appeal No. 95-1366

In this case, plaintiffs complain primarily about certain adverse commercial

transactions from the mid-1980s, and the unfavorable state court litigation

relating thereto. They assert three broad categories of claims: first, the defendant

State Bank of Wiley and its officers, agents, and employees allegedly conspired to

take plaintiffs’ property through means of forgery and fraud; second, the

defendant counties, judges, clerks, and officers conspired with and assisted the

bank in this effort, by seizing plaintiffs’ property without a warrant and in

violation of due process; and third, the defendant district attorney, sheriff’s

officers, court clerks, and others conspired to bring a criminal charge (offering a
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false instrument for recording in violation of Colo. Rev. Stat. § 18-5-114) against

plaintiff Eldon Hays without a grand jury indictment. 

On the basis of several thorough recommendations of the magistrate judge,

each accounting for a subset of the numerous defendants, the district court

disposed of the case on many overlapping legal grounds. Specifically, the court

concluded that: (1) the claims involving commercial transactions were barred by

res judicata; (2) the commercial claims and related allegations regarding

collection proceedings were barred by the two-year statute of limitations in

Colo. Rev. Stat. § 13-80-102; (3) the defendant judicial officers and their clerks

were immune from suit under the doctrines of judicial and quasi-judicial

immunity; (4) prosecutorial immunity applied to the criminal charges brought

against Eldon Hays; and (5) plaintiffs’ conclusory allegations failed to identify

any official policy or custom pertinent to their constitutional claims. See R. II

docs. 153-157, 181. 

We are in substantial agreement with the legal analysis underlying these

conclusions, but consider it important to include two additional points. First, it is

a fundamental principle of this country’s dual judicial system that, aside from the

certiorari jurisdiction of the Supreme Court under 28 U.S.C. § 1257, the federal

courts do not provide a forum in which to review unfavorable state court civil

judgments. See Facio v. Jones, 929 F.2d 541, 543 (10th Cir. 1991); Williams
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Natural Gas Co. v. City of Okla. City, 890 F.2d 255, 264-65 (10th Cir. 1989),

cert. denied, 497 U.S. 1003 (1990); Van Sickle v. Holloway, 791 F.2d 1431, 1436

(10th Cir. 1986). Second, we emphasize again that state tort claims, such as the

alleged fraud and forgery by the bank here, cannot be federalized for purposes of

the civil rights statutes simply by including conclusory allegations of conspiracy

with government officials. This is especially true when the officials involved,

like many of the defendants herein, are absolutely immune from suit. Crabtree ex

rel. Crabtree v. Muchmore, 904 F.2d 1475, 1480-81 (10th Cir. 1990). 

Appeal No. 95-1441

In this case, plaintiffs object to certain adverse rulings made in a state court

breach of contract action in which they were both defendants and

counterclaimants. The complaint alleges in conclusory terms a conspiracy

consisting of the judges, clerks, opposing party, and opposing counsel involved in

that action, as well as the county in which it took place. The district court

dismissed on grounds of immunity and failure to state a claim. We affirm. The

many legal and factual deficiencies of these claims should be evident from our

discussion of Appeal No. 95-1366. 

There is, however, one particular matter that appears to have escaped the

notice of the district court, which incorrectly held that plaintiffs “failed to provide
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any specific allegation of behavior on the part of defendant[] . . . George

McLachlan.” R. I doc. 28 at 2. Actually, the complaint alleges that “GEORGE

McLACHLAN has made threats against Plaintiffs[’] Process Server . . . ‘if he left

the Summons and Complaints with GEORGE McLACHLAN,’ thus depriving

Plaintiffs of a process server for this action.” Id. doc. 1 at 11. Nevertheless, as

there are no allegations that this threat involved anything other than a private

attempt to avoid personal service (and, thus, liability) in plaintiffs’ lawsuit, the

claim fails because the alleged conduct has neither the necessary relation to

McLachlan’s state judicial office, see Jojola v. Chavez, 55 F.3d 488, 491-94 (10th

Cir. 1995), nor the necessary discriminatory animas (for purposes of § 1985(3)),

see United Brotherhood of Carpenters, 463 U.S. at 834. 

The judgments of the United States District Court for the District of

Colorado are AFFIRMED. We have reached our disposition independently of the

numerous procedural motions filed in these appeals; the motions are, accordingly,

denied as moot. Appellate sanctions have been requested, in perfunctory fashion,

by a few of the defendants. We deny these requests as well. The mandate shall

issue forthwith.

Entered for the Court
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Wade Brorby

Circuit Judge