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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

February 3, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RENE SAWANIE MERSWIN,

Plaintiff-Appellant,

v.

THE WILLIAMS COMPANIES, INC.,

Defendant-Appellee.

No. 09-5096

(D.C. No. 4:09-CV-00051-CVE-PJC)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before GORSUCH and ANDERSON, Circuit Judges, and BRORBY, Senior

Circuit Judge.

Rene Sawanie Merswin, who at all times has proceeded pro se, appeals

from the district court’s order dismissing under Fed. R. Civ. P. 12(b)(6) his

42 U.S.C. § 1981 claims as barred by the doctrine of res judicata and his

42 U.S.C. § 1985(2) claim for failure to state a claim upon which relief may be

granted. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

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I. BACKGROUND

Mr. Merswin’s employment with The Williams Companies, Inc. (TWC)

ended in 2004 when his job was outsourced. In 2005, he filed a lawsuit against

TWC in the United States District Court for the Northern District of Oklahoma

alleging race and national origin discrimination, a hostile work environment, and

retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e

through 2000e-17, and § 1981. The district court granted TWC’s motion for

summary judgment on all claims. We affirmed. Merswin v. Williams Cos., Inc.,

244 F. App’x 897 (10th Cir. 2007) (unpublished). And the Supreme Court denied

a writ of certiorari. Merswin v. Williams Cos., Inc., 128 S. Ct. 1884 (2008). 

On July 1, 2008, Mr. Merswin filed suit against TWC in the United States

District Court for the Northern District of Georgia, alleging retaliation and

constructive discharge under § 1981 and conspiracy to obstruct justice with the

intent to injure him under § 1985(2). These claims arose out of his employment

termination and the prior legal proceedings. TWC made a special appearance and

moved to transfer the lawsuit to the Northern District of Oklahoma. The Georgia

court granted the motion. Thereafter, in the Northern District of Oklahoma, TWC

moved to dismiss, asserting that the § 1981 claims were barred by the doctrine of

res judicata and that the § 1985(2) claim did not set forth sufficient facts from

which it could be inferred that TWC conspired to obstruct justice or interfere with

Mr. Merswin’s first lawsuit. The district court granted the motion to dismiss. 

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The court found that the § 1981 claims were barred by res judicata because 

(1) Mr. Merswin’s current retaliation claim is identical to the retaliation claim he

raised in the first lawsuit; (2) his constructive discharge claim arose from the

same transaction and time period and is based on the same facts asserted in his

first lawsuit, and therefore could have been raised in that suit; (3) he cannot seek

a remedy under § 1981 for alleged incidents occurring during his deposition; and

(4) he had a full and fair opportunity to litigate his claims in his first lawsuit,

because he either could have raised his allegations of poisoning at his deposition

by TWC’s counsel during his first lawsuit, challenged the admissibility of his

deposition testimony in his response to TWC’s motion for summary judgment, or

filed a post-judgment motion in the first lawsuit. The court dismissed the

§ 1985(2) claim for failure to state a claim that is plausible on its face, because

Mr. Merswin’s allegations of a conspiracy by TWC’s counsel during his

deposition were conclusory and unsupported by specific factual averments. 

On appeal, Mr. Merswin argues that (1) res judicata does not bar his § 1981

claims; (2) the district court erred by considering matters outside the complaint,

without converting the Rule 12(b)(6) motion to dismiss to a Fed. R. Civ. P. 56

motion for summary judgment so that he could present additional materials;

(3) the district court judge should have recused; and (4) his § 1985(2) claim for

conspiracy to interfere with his civil rights does state a claim that is plausible on

its face. 

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II. ANALYSIS

We review the district court’s Rule 12(b)(6) dismissal de novo. Kane

County Utah v. Salazar, 562 F.3d 1077, 1085 (10th Cir. 2009). In doing so, we

consider whether the complaint “contain[ed] sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)); see also Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (applying

Bell Atlantic Corp. to pro se action). To be facially plausible, the complaint must

state enough facts to suggest “that the defendant is liable for the misconduct

alleged.” Iqbal, 129 S. Ct. at 1949. Additionally, we liberally construe

Mr. Merswin’s pro se pleadings. Erickson, 551 U.S. at 94; see Smith v. United

States, 561 F.3d 1090, 1096 (10th Cir. 2009) (noting that despite liberal

construction, “[w]e have on several occasions dismissed pro se complaints for

failure to allege sufficient facts”), cert. denied, ___ S. Ct. ___, 2010 WL 154973

(U.S. Jan. 19, 2010). 

We first address Mr. Merswin’s argument that the district court improperly

considered matters outside his complaint without converting TWC’s motion to

dismiss to a motion for summary judgment. Generally, when a district court

considers matters outside the complaint, the court should treat a motion to dismiss

as a motion for summary judgment. See, e.g., Miller v. Glanz, 948 F.2d 1562,

1565 (10th Cir. 1991). Mr. Merswin, however, challenges the court’s

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consideration of the court’s own records from his first lawsuit. It is settled that

the district court can take judicial notice of its own decision and records in a prior

case involving the same parties. See Amphibious Partners, LLC v. Redman,

534 F.3d 1357, 1361-62 (10th Cir. 2008); St. Louis Baptist Temple, Inc. v. FDIC,

605 F.2d 1169, 1172 (10th Cir. 1979); see also Q Int’l Courier, Inc. v. Smoak,

441 F.3d 214, 216 (4th Cir. 2006) (“When entertaining a motion to dismiss on the

ground of res judicata, a court may take judicial notice of facts from a prior

judicial proceeding when the res judicata defense raises no disputed issue of

fact.”). Thus, the district court did not err in failing to convert the motion to

dismiss into a motion for summary judgment. See Tal v. Hogan, 453 F.3d 1244,

1264-65 n.24 (10th Cir. 2006). 

Next, we address Mr. Merswin’s assertion that the district court judge was

biased because she entered judgment against him in the first lawsuit. An

accusation of bias based on prior rulings almost never demonstrates partiality

requiring a judge’s recusal. Liteky v. United States, 510 U.S. 540, 555 (1994). 

And this case is no exception. 

Finally, we address Mr. Merswin’s assertions that the district court erred in

dismissing his § 1981 and § 1985(2) claims. Upon careful consideration of the

record on appeal, the parties’ appellate briefs, and the relevant case law in light of

the standards of review set forth above, we conclude that the district court

correctly dismissed these claims. Accordingly, we affirm for substantially the

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same reasons stated by the district court in the order dated June 10, 2009. 

R., Vol. 1 at 202-12. 

III. CONCLUSION

The judgment of the district court is AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge

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