PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

WILLIAM N. PETERSON; GARY 

ROGERS; MELVIN R. HETT,

 Plaintiffs-Appellants,

v.

JOHN GRISHAM; DOUBLEDAY DELL 

PUBLISHING GROUP; RANDOM 

HOUSE, INC.; ROBERT MAYER; 

BROADWAY BOOKS; DENNIS FRITZ; 

SEVEN LOCKS PRESS, INC.; BARRY 

SCHECK,

Defendants-Appellees.

No. 08-7100

 

Appeal from the United States District Court 

 for the Eastern District of Oklahoma 

(D.C. No. 6:07-CV-00317-RAW)

 

Gary L. Richardson (Denise P. James with him on the briefs), The Richardson Law Firm, 

P.C., Tulsa, Oklahoma, for the Plaintiffs-Appellants. 

Robert D. Nelon, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, 

Oklahoma, and Cheryl A. Pilate, Morgan Pilate, LLC, Olathe, Kansas (Jon Epstein, Hall, 

Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, Oklahoma, with them 

on the briefs), for the Defendants-Appellees. 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 1, 2010

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 1 
- 2 - 

Before KELLY, McKAY, and LUCERO, Circuit Judges. 

LUCERO, Circuit Judge. 

 

 In 1988, Ronald Williamson and Dennis Fritz were wrongly convicted of the rape 

and murder of Debra Sue Carter. Both men were later exonerated after spending over a 

decade in jail. Their painful story caught the attention of renowned legal-fiction author 

John Grisham, who wrote a book about Williamson appropriately titled The Innocent 

Man. Fritz also wrote a book, Journey Toward Justice, detailing the horror of his years of 

unjust confinement. 

Each of the plaintiffs in this case—Oklahoma District Attorney William Peterson; 

former Shawnee police officer Gary Rogers; and former Oklahoma state criminologist 

Melvin Hett—played a role in the investigation or prosecution and conviction of 

Williamson and Fritz. Neither The Innocent Man nor Journey Toward Justice paints the 

plaintiffs in a positive light. Following the release of these books, plaintiffs filed suit in 

Oklahoma district court seeking relief for defamation, false light invasion of privacy, 

intentional infliction of emotional distress, and civil conspiracy. They named Grisham, 

Fritz, anti-death penalty advocate Barry Scheck, and author Robert Mayer—along with 

their respective publishers—as defendants.1

 The district court dismissed the suit for 

 1

 Plaintiffs also named James Riordan as a defendant, but Riordan was dismissed 

as a defendant by stipulation on January 23, 2008. 

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 2 
- 3 - 

failure to state a claim upon which relief can be granted. Exercising jurisdiction under 28 

U.S.C. § 1291, we affirm.

I 

On the morning of December 8, 1982, Carter was found dead in her garage 

apartment in the small town of Ada, Oklahoma. She had been raped and suffocated by 

her assailant. Four years later, Rogers and his fellow officers arrested Williamson and 

Fritz for Carter’s murder. Peterson prosecuted the case. 

The evidence against Williamson and Fritz consisted of hair samples, 

Williamson’s statement to police about a dream in which he had committed the murder, 

and the testimony of jailhouse informants. Williamson v. State, 812 P.2d 384, 391-93 

(Okla. Crim. App. 1991). Hett testified that hairs recovered from the crime scene 

belonged to Williamson and Fritz. Id. at 391. Based on this evidence, the jury convicted 

Williamson and Fritz of rape and murder. Williamson was sentenced to death, and Fritz 

received life in prison. Id. at 390, 391 n.1.

Following a grant of habeas relief by the Eastern District of Oklahoma, DNA 

testing was ordered in 1999. That testing revealed that hair and semen samples taken 

from the crime scene could not have come from Williamson and Fritz. Both men had 

been wrongfully convicted. Another man was eventually found guilty of Carter’s 

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 3 
- 4 - 

murder. Gore v. State, 119 P.3d 1268 (Okla. Crim. App. 2005).2 Williamson and Fritz’s 

exonerations spawned two different books, as well as a chapter in a third and an 

afterword in a fourth. 

Grisham published The Innocent Man in 2006. It tells Williamson’s life story and 

explores the circumstances leading to his wrongful conviction, imprisonment, and 

subsequent exoneration. Grisham depicts Peterson, Rogers, and Hett as particularly 

responsible for the plight of Williamson and Fritz. He also faults what he describes as a 

broken criminal justice system that condones “bad police work, junk science, faulty 

eyewitness identifications, bad defense lawyers, lazy prosecutors, [and] arrogant 

prosecutors.” 

In Journey Toward Justice, Fritz speaks in equally harsh tones about the public 

officials who put him behind bars. As the title suggests, the book describes Fritz’s 

agonizing trail from wrongful imprisonment to exoneration. Fritz recounts in vivid detail 

his fears and frustrations as a wrongfully accused murder suspect and convict, and his 

eventual elation upon release. 

Barry Scheck, Fritz’s former attorney and a prominent anti-death penalty 

advocate, wrote the foreword to Journey Toward Justice. In that foreword, Scheck 

commends Fritz for having the courage to write his personal story, and praises Fritz for 

his recent work in the anti-death penalty movement. Both Fritz and Scheck were 

 2

 An appellate court reversed the conviction after finding a due process error. Id.

at 1272-78. 

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 4 
- 5 - 

interviewed by Grisham for The Innocent Man. Scheck ultimately devoted a chapter of 

his 2003 book, Actual Innocence, to the wrongful convictions of Williamson and Fritz. 

 Lastly, Robert Mayer’s book, The Dreams of Ada, explores the 1985 convictions 

of Tommy Ward and Karl Fontenot for the death of Denice Haraway. The Haraway case 

shared many parallels with the Carter case, including minimal physical evidence, the use 

of “dream” confessions, and reliance on testimony by jailhouse informants. That case 

also involved a similar cast of characters: Peterson was the prosecutor and Rogers was 

the investigator. Grisham used The Dreams of Ada—and found it to be particularly 

helpful—in his research for The Innocent Man. Shortly after Grisham’s book was 

published, Broadway Books reissued The Dreams of Ada with a new afterword written 

by Mayer.3

 

 With the exception of Actual Innocence, all these books were released (or, in the 

case of The Dreams of Ada, re-released) in October 2006. One year later, Peterson and 

Rogers filed suit alleging defamation, false light invasion of privacy, intentional infliction 

of emotional distress, and civil conspiracy. They subsequently amended their complaint 

to add Hett as a plaintiff. 4 After defendants filed motions to dismiss, the district court 

 3

 Because The Dreams of Ada was originally published in 1987, the district court 

correctly dismissed plaintiffs’ claims regarding Mayer’s statements in that book as timebarred. See Okla. Stat. tit. 12 § 95(A)(3)-(4). Thus, we will only discuss Mayer in regard 

to his 2006 afterword and his alleged involvement in a civil conspiracy against plaintiffs. 

4

 Hett was not involved in the Haraway case and is not mentioned in The Dreams 

of Ada. He asserted substantive claims only against Grisham and his publishers. 

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 5 
- 6 - 

directed plaintiffs to file a second amended complaint specifying the alleged defamatory 

statements. 

In their 116-page second amended complaint, plaintiffs claimed that defendants 

engaged in “a massive joint defamatory attack” against them. This attack was motivated 

in part by defendants’ shared desire “to further efforts to abolish the [d]eath [p]enalty.” 

The district court dismissed the second amended complaint pursuant to Federal Rule of 

Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. 

Peterson v. Grisham, No. CIV-07-317-RAW, 2008 WL 4363653, at *10 (E.D. Okla. 

Sept. 17, 2008) (unpublished). It also dismissed plaintiffs’ motion to further amend their 

complaint. Id. This appeal ensued. 

II 

We review de novo the district court’s grant of a Rule 12(b)(6) motion to dismiss. 

Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007). “The court’s function on a 

Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at 

trial, but to assess whether the plaintiff’s amended complaint alone is legally sufficient to 

state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565 

(10th Cir. 1991). We accept all well-pled factual allegations as true and view these 

allegations in the light most favorable to the nonmoving party. Sutton v. Utah State Sch. 

for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). 

To survive a Rule 12(b)(6) motion, a plaintiff must allege sufficient facts to make 

her “claim for relief . . . plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 6 
- 7 - 

557 (2007). While “[t]echnical fact pleading is not required . . . the complaint must still 

provide enough factual allegations for a court to infer potential victory.” Bryson v. 

Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). If the allegations “are so general that 

they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have 

not nudged their claims across the line from conceivable to plausible.’” Robbins v. 

Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting 

Twombly, 550 U.S. at 570). 

A 

Before evaluating each of plaintiffs’ claims individually, we consider plaintiffs’ 

general arguments that the district court incorrectly applied Rule 12(b)(6). Plaintiffs 

argue that that the district court applied summary judgment standards in evaluating 

defendants’ 12(b)(6) motions. It is correct that the district court cited to two summary 

judgment cases in its analysis, Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995), and 

Riley v. Harr, 292 F.3d 282 (1st Cir. 2002). Peterson, 2008 WL 4363653, at *4-5. 

However, the court cited to these cases in discussing the proper review of an alleged 

defamatory statement in the context of the book as a whole. When reciting the legal 

standard for dismissal, the district court specifically stated it was evaluating defendants’ 

motions under Rule 12(b)(6). Id. at *1-2. 

Plaintiffs also contend that the district court “failed to take into consideration any 

of the one-hundred and three . . . pages of specific factual allegations” in their second 

amended complaint. According to plaintiffs, the court sweepingly concluded that 

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 7 
- 8 - 

statements by authors regarding government officials and public figures could never be 

considered defamatory or otherwise actionable. They further accuse the district court of 

neglecting to analyze each of the factual allegations in their complaint on the basis that 

the district court noted that such a task would be “boring” and “repetitive.” Id. at *6.

Plaintiffs mischaracterize the district court’s statements. The court did not rule 

that defamation claims against authors writing about public officials are never plausible. 

Instead, it dismissed plaintiffs’ complaint only “after review of each of the statements 

alleged.” Id. Though we encourage district courts to more fully articulate their reasoning 

in granting Rule 12(b)(6) motions, the court was not required to engage in a detailed 

written analysis of each of dozens of allegedly defamatory statements. The district court 

concluded the statements shared common characteristics that preclude relief, and the 

record on appeal provides this court with an adequate basis for reviewing each statement. 

Cf. Aramburu v. Boeing Co., 112 F.3d 1398, 1401 n.1 (10th Cir. 1997) (reaching a 

similar conclusion in a summary judgment context). 

B 

Turning to plaintiffs’ individual claims, we agree with the district court that each 

cause of action fails to state a claim upon which relief can be granted. Taking as true the 

facts plaintiffs allege in their second amended complaint, we conclude that defendants are 

statutorily protected from suit. 

1 

Oklahoma law defines libel as “a false or malicious unprivileged publication . . . 

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 8 
- 9 - 

which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends 

to deprive him of public confidence, or to injure him in his occupation.” Okla. Stat. tit. 

12, § 1441. To state a claim for libel, a plaintiff must allege that a defendant made: “(1) 

a false and defamatory statement concerning [plaintiff]; (2) an unprivileged publication to 

a third party; and (3) fault amounting to at least negligence on the part of the publisher.” 

Cardtoons, L.C. v. Major League Baseball Players Ass’n, 335 F.3d 1161, 1166 (10th Cir. 

2003) (citing Sturgeon v. Retherford Publ’ns, Inc., 987 P.2d 1218, 1223 (Okla. Civ. App. 

1999)). 

Unless a plaintiff demonstrates that a defendant committed libel per se, she must 

also plead and prove special damages caused by publication. Id. Because plaintiffs in 

this case concede that they alleged no special damages, they must prove libel per se, 

which requires a statement that is “clearly defamatory on its face.” Miskovsky v. Tulsa 

Tribune Co., 678 P.2d 242, 247 (Okla. 1983) (quotation omitted); see also Nichols v. 

Bristow Publ’g Co., 330 P.2d 1044, 1045 (Okla. 1957) (“Per se means by itself, and 

without innuendo.” (internal quotations omitted)). In contrast, statements that are 

“reasonably susceptible of both a defamatory and innocent meaning” are not libelous per 

se. Miskovsky, 678 P.2d at 247 (quotation omitted). Likewise, mere “gratuitous 

conclusions of the pleader” cannot be taken to give “words a meaning which they did not 

otherwise have.” Okla. Publ’g Co. v. Kendall, 221 P. 762, 764 (Okla. 1923). 

Given that plaintiffs are public officials, they face an especially heavy burden in 

attempting to demonstrate libel per se. Under Title 12, § 1443.1, of the Oklahoma 

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 9 
- 10 - 

Statutes, “[a]ny and all criticisms upon the official acts of any and all public officers” are 

privileged and cannot be considered libelous, unless a defendant makes a false allegation 

that the official engaged in criminal behavior. To fall into this category, “the words 

alleged to have been spoken of the plaintiff, when taken in their plainest and most natural 

sense, and as they would be ordinarily understood, [must] obviously import the 

commission of crime punishable by indictment.” Kendall, 221 P. at 764.5

 

Plaintiffs have not carried their burden. Several of the statements included in 

plaintiffs’ second amended complaint do not concern plaintiffs and therefore would not 

constitute libel against them regardless of their status as public officials or whether they 

had pled special damages.6

 As to those that do, we agree with the district court that 

 5

 Kendall may arguably provide for an additional exception: “When a defense of 

privileged comment on a matter of public interest is presented by the issues, the plaintiff 

may overcome the privilege pleaded either by proof that the publication was inspired by 

actual malice, or that the facts published and commented upon were false.” Id. at 768 

(quotations omitted); see also John W. Hager, Civil Libel and Slander in Oklahoma, 2 

Tulsa L.J. 1, 24-25 (1965); Phillip D. Hart, Note, Libel and Slander: Privilege to 

Criticize Public Officials, 12 Okla. L. Rev. 300, 300-02 (1959). We do not address the 

potential existence of such an exception because plaintiffs conceded or waived the point 

below in their response to a motion to dismiss by stating “[b]ecause of the nature of the 

communication this lawsuit is based upon, all statements other than those which ‘falsely 

impute[] crime to the’ Plaintiffs are, by statute, privileged communication.” (Quoting 

§ 1443.1); see O’Connor v. City & County of Denver, 894 F.2d 1210, 1214 (10th Cir. 

1990); see also Kendall, 221 P. at 768 (holding that that once a defendant raises a 

§ 1443.1 defense, the plaintiff bears the burden of demonstrating the privilege does not 

apply). 

6

 For example, plaintiffs contend that Grisham falsely stated in his book that the 

judge handling Fritz and Williamson’s preliminary hearing was elected, when in fact the 

judge was appointed. This statement, although it may convey incorrect information about 

Continued . . . 

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 10 
- 11 - 

plaintiffs point to no statement in which defendants directly accuse any plaintiff of a 

crime.7

 Plaintiffs expect us to scale a mountain of inferences in order to reach the 

conclusion that defendants’ statements impute criminal acts to plaintiffs and render the 

statutory privilege of § 1443.1 inapplicable. We decline to engage in such inferential 

analysis, or to take a myriad of other analytical leaps plaintiffs ask us to make. Any 

connection between defendants’ statements and an accusation of criminal activity is far 

too tenuous for us to declare them as unprivileged for purposes of § 1443.1.

2 

Although the text of § 1443.1 only specifically includes claims for libel, 

Oklahoma courts have extended its reach to cover claims for intentional infliction of 

emotional distress and false light invasion of privacy. See Kirchstein v. Haynes, 788 

P.2d 941, 954 (Okla. 1990) (intentional infliction of emotional distress); Johnson v. 

KFOR, 6 P.3d 1067, 1069 (Okla. Civ. App. 2000) (false light). In Kirschstein, the 

 

the judge, does not directly implicate any of the plaintiffs. Thus, as a matter of law, the 

statement, along with numerous others that do not directly concern plaintiffs, is not 

libelous as to plaintiffs. 

7

 The district court also determined that the First Amendment protects at least 

some of defendants’ statements. Peterson, 2008 WL 4363653, at *4-6. Because 

Oklahoma law is dispositive in this case, we need not engage in a constitutional analysis. 

But we note that, at a minimum, allowing the plaintiffs to recover would offend the spirit 

of the First Amendment. Defendants wrote about a miscarriage of justice and attempted 

to encourage political and social change. To the extent their perceptions of the affair 

were erroneous, we depend on the marketplace of ideas—not the whim of the bench—to 

correct insidious opinions. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 

(1974); accord Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). 

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 11 
- 12 - 

Oklahoma Supreme Court held that “when [a] claim for intentional infliction of 

emotional distress is based on the same factual underpinnings as a defamation claim for 

which the privilege applies, a claim for intentional infliction of emotional distress is also 

barred by the reach of the absolute privilege.” 788 P.2d at 954.8

 We are faced with the 

same factual underpinnings for plaintiffs’ intentional infliction of emotional distress 

claims as those for their libel claims. Because we have already determined that § 1443.1 

applies to plaintiffs’ libel claims, we necessarily conclude that plaintiffs are also barred 

under the statute from asserting a valid claim of intentional infliction of emotional 

distress. 

Similarly, § 1443.1 protects defendants from plaintiffs’ false light claims. See

Johnson, 6 P.3d at 1069 (applying the privilege to both defamation and false light 

claims). Unlike a claim for libel per se, a claim for false light invasion of privacy can 

properly rest on a defendant stating a falsehood by implication—such as through the use 

of innuendo. See Restatement (Second) of Torts § 652E cmt. b (1977) (“It is not . . . 

necessary to the action for invasion of privacy that the plaintiff be defamed.”); 

McCormack v. Okla. Publ’g Co., 613 P.2d 737, 741 (Okla. 1980) (“It is not necessary 

that the statements be untrue.”). However, there must be a clear connection between a 

defendant’s statement and the falsehood that the statement purportedly implies. See

 8

 We recognize that Kirschstein dealt with the privilege for communications made 

in connection with judicial proceedings, but we find its reasoning equally applicable in 

the context of § 1443.1. 

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 12 
- 13 - 

Restatement (Second) of Torts § 652E cmt. b, illus. 1-5. As noted, plaintiffs fail to allege 

the necessary nexus between defendants’ statements and the proposition that plaintiffs 

were involved in a crime.9

 It necessarily follows that, under Oklahoma law, plaintiffs fail 

to state an actionable claim for false light invasion of privacy. 

C 

Plaintiffs likewise fail on their final claim, civil conspiracy. A civil conspiracy 

consists of two or more persons agreeing “to do an unlawful act, or to do a lawful act by 

unlawful means.” Roberson v. PaineWebber, Inc., 998 P.2d 193, 201 (Okla. Ct. App. 

1999). But “a conspiracy between two or more persons to injure another is not enough; 

an underlying unlawful act is necessary to prevail on a civil conspiracy claim.” Id. 

“Disconnected circumstances, any . . . of which[] are just as consistent with lawful 

purposes as with unlawful purposes, are insufficient to establish a conspiracy.” Dill v. 

Rader, 583 P.2d 496, 499 (Okla. 1978). 

 Plaintiffs argue that defendants’ parallel conduct in publishing (and republishing) 

their books in close temporal proximity and defendants’ endorsements of each other’s 

 9

 For example, plaintiffs contend the following statement by Grisham cast Hett in 

a false light as an individual who committed the felony offense of perjury: “The only 

proof that remotely tied Fritz to the murder was the hair analysis testimony of Melvin 

Hett. . . . Barney and Greg Saunders knew the hair and fingerprint testimony was 

suspect.” To construe that statement as imputing perjury to Hett, we would need to infer 

from the statement that, in addition to the other individuals named, Hett had personal 

knowledge the evidence was suspect to a degree that his testimony could be considered 

perjurious. It would be unreasonable to credit so tenuous an inference. 

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 13 
- 14 - 

books are sufficient evidence to establish a civil conspiracy.10 We disagree. Merely 

because defendants published their books in close temporal proximity to one another does 

not demonstrate there was an illegal agreement to engage in “a massive joint defamatory 

attack.” The same is true for book endorsements. There may well have been other 

entirely legitimate motives at play, such as a desire to sell more books or aspirations to 

foster public support for the abolition of the death penalty. Publishing and endorsing 

books are perfectly lawful activities. We conclude that plaintiffs failed to plead either 

illegal ends or illegal means, and accordingly the district court did not err in dismissing 

plaintiffs’ claim of a civil conspiracy. 

III 

Having determined that plaintiffs’ second amended complaint fails to state a claim 

on which relief may be granted, we now ask whether a new affidavit produced by 

plaintiffs changes the equation and effects a different result. The district court 

determined it would not, denying plaintiffs’ motion to amend based on new evidence as 

futile. Peterson, 2008 WL 4363653, at *9-10. Although we review a district court’s 

decision to deny a motion to amend a pleading for abuse of discretion, when the denial is 

“based on a determination that amendment would be futile, our review for abuse of 

 10 Examples of these endorsements include: Grisham’s stating that Journey 

Toward Justice is “Compelling and Fascinating”; Fritz’s expressing his thanks to 

Grisham “for his friendship, inspiration and encouragement to write my story”; and 

Grisham’s endorsing The Dreams of Ada as “[a] riveting true story of a brutal murder in 

a small town and the tragic errors made in the pursuit of justice.” 

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 14 
- 15 - 

discretion includes de novo review of the legal basis for the finding of futility.” Miller v. 

Bd. of Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1249 (10th Cir. 2009). 

 Plaintiffs sought leave to amend their complaint for a third time by supplementing 

it with an affidavit allegedly showing that Scheck sought opinions from more than one 

expert when he defended Williamson and Fritz. According to plaintiffs, this affidavit 

would provide further support for each of their claims. We agree with the district court 

that attorneys regularly consult more than one expert. Such “run-of-the-mill litigation 

tactics” do not demonstrate a conspiracy. Peterson, 2008 WL 4363653, at *9. Moreover, 

the affidavit does not speak to whether any of defendants’ statements impute criminal 

activity to plaintiffs. Thus, we take the view of the district court that amendment would 

be futile. 

IV 

 For the foregoing reasons, we AFFIRM the district court’s dismissal of plaintiffs’ 

second amended complaint for failure to state a claim upon which relief can be granted. 

We also AFFIRM the court’s denial of plaintiffs’ motion to amend. 

Appellate Case: 08-7100 Document: 01018359048 Date Filed: 02/01/2010 Page: 15