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---3-

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.)-4-

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.)-5-

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, 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. -6- ORDER AND JUDGMENT *

Before PORFILIO, BARRETT, and BRORBY, Circuit Judge s.

After examining the briefs and appellate record, th is 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. Th e 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 c ivil rights actions. The numerous defendants named in these cases filed motions for d ismissal and/or summary judgment, raising such legal defenses as absolute ( judicial, quasi-judicial, and prosecutorial) immunity, qualified immunity, failur e to state a claim, res judicata, and statute of limitations. We review the districtcourt’s determinations of these matters de novo. State Bank v. Gledhill (In re Gle dhill) , 76 F.3d 1070, 1082 (10th Cir. 1996)(res judicata); Edwards v. Internat ional Union , 46 F.3d 1047,-7-

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 gen erally). For the reasons expressed below, we affirm the judgments entered inall of these cases. Before we discuss each particular case, though, one general matter common to all should be addressed. Plaintiffs have been s anctioned, by both monetary penalties (attorney fees) and prospective filing re strictions, for submitting pleadings judged to be plainly deficient in law and fact. As pro se litigants, plaintiffs are entitled to invoke the familiar prin ciple of liberal pleading construction. See Riddle v. Mondragon , 83 F.3d 1197, 1202 (10th Cir. 1996). There are, however, reasonable limits to this princ iple: [T]he broad reading of the plaintiff[s’] complaint does not relieve the plaintiff[s] of the burden of alleging sufficient f acts on which a recognized legal claim could be based. Not every f act must be described in specific detail . . . . Nevertheless, conclusory allegations without supporting factual averments ar e insufficient to state a claim on which relief can be based . . . . Id. (quotation omitted). Furthermore, we note that “apro 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 omi tted), cert. denied , 116 S. Ct. 2497 (1996).-8-

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 theyperceive that those individuals had opposed earlier actions. Such acti on is clearly an abuse of the judicial process. Groundless and vexatious litigation will justify an order enjoining a litigant from fil ing 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 Cou rt concludes that this case and others filed by plaint iff[s] have been groundless and vexatious. Therefore, cause does ex ist to bar plaintiffs from filing pro se actions before this C ourt without leave to do so. Thus, the Court will so order. The Court f urther concludes that defendants should be awarded reasonable attorn eys’ 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 distri ct 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 generallyMann v. Reynolds , 46 F.3d 1055, 1062 (10th Cir. 1995), nor did the court err in imposing a reasonable restriction on plaintiffs’ pro se fili ngs, particularly as several motions and/or magistrate judge recommendations hadprovided plaintiffs with ample notice that such restrictions were under cons ideration in each case, see Werner v. Utah , 32 F.3d 1446, 1447-48 (10th Cir. 1994).1 These consolidated appeals challenge essentially th e same determination.

Plaintiffs filed Appeal No. 95-1432 following the d enial 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. -9- Appeals Nos. 95-1365, 95-1432 1 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 f ederal judge at the deposition. The only factual allegations included to support th is 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 al leges that other opposing counsel insisted on reviewing a stack of documents regarding which Grace Hays intended to testify and, in the process, lost certa in unidentified papers. In dismissing the action, the district court discus sed several deficiencies in the pleadings which liberal construction could not remedy. The court initially noted that the lengthy complaint was “vague and dif ficult to understand,” and therefore dismissable for lack of the “short and pl ain statement” required by Fed. R. Civ. P. 8(a)(2). R. I doc. 79 at 2. The c ourt continued:2 Plaintiffs cite no authority either demonstrating aright to lay assistance at a

deposition, see 28 U.S.C. §1654 (“parties may plead and conduct th eir 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 un licensed representation in criminal proceeding), or precluding opposing counse l 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 st ate judicial garb does not, in itself, constitute the impersonation of a federal j udge.

3 State action is required not only for § 1983 claims , but also for § 1985(3) claims premised on constitutional strictures direct ed 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). -10- Even if plaintiffs had set forth recognizable claim s, it appears that they would be insufficient . . . . It further appe ars that no state action occurred and thus an action under 42 U.S.C. § 1985 or § 1983 is inappropriate. In short, it appears that plaintiff s are contending that something improper happened during their deposition s in Civil Action No. 95-Z-950. These are issues which shouldhave been raised in that case and not as a separate action. Id. We agree. The only particularized, intelligible cl aims that can be gleaned from the complaint’s forty-seven pages are the disc overy objections summarized above. Not only are those objections doubtful in themselves, 2they are directed to conduct that does not, in any event, involve the st ate 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” recogn izing that private civil discovery does not constitute state action, includi ng Skolnick v. Martin , 317 F.2d-11-

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 substan ce, an inappropriate attempt to raise previously known objections to the discovery process involved in another case. Neither discovery nor plausible amendment co uld conceivably have rectified the fatal deficiencies of the claims asse rted.

Appeal No. 95-1366 In this case, plaintiffs complain primarily about c ertain adverse commercial transactions from the mid-1980s, and the unfavorabl e state court litigation relating thereto. They assert three broad categori es of claims: first, the defendant State Bank of Wiley and its officers, agents, and e mployees allegedly conspired to take plaintiffs’ property through means of forgery and fraud; second, the defendant counties, judges, clerks, and officers co nspired 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 bri ng a criminal charge (offering a-12-

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 defend ants, the district court disposed of the case on many overlapping legal grou nds. 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 jud icial officers and their clerks were immune from suit under the doctrines of judici al 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 co nstitutional claims. See R. II docs. 153-157, 181. We are in substantial agreement with the legal anal ysis underlying these conclusions, but consider it important to include two additional points. First, it is a fundamental principle of this country’s dual judi cial 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 un favorable state court civil judgments. See Facio v. Jones , 929 F.2d 541, 543 (10th Cir. 1991); Williams-13-

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 concl usory 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 d efendants and counterclaimants. The complaint alleges in conclus ory 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 tookplace. 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 appea rs to have escaped the notice of the district court, which incorrectly hel d that plaintiffs “failed to provide-14-

any specific allegation of behavior on the part of defendant[] . . . George McLachlan.” R. I doc. 28 at 2. Actually, the comp laint alleges that “GEORGE McLACHLAN has made threats against Plaintiffs[’] Pr ocess Server . . . ‘if he left the Summons and Complaints with GEORGE McLACHLAN,’ thus depriving Plaintiffs of a process server for this action.” I d. 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, liabi lity) in plaintiffs’ lawsuit, the claim fails because the alleged conduct has neitherthe 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 f or the District of Colorado are AFFIRMED. We have reached our disposi tion independently of the numerous procedural motions filed in these appeals; the motions are, accordingly, denied as moot. Appellate sanctions have been requ ested, in perfunctory fashion, by a few of the defendants. We deny these requests as well. The mandate shall issue forthwith.

Entered for the Court-15- Wade Brorby Circuit Judge