# Opposition Brief — Allen Oil & Gas, LLC v. Klish

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 812

## Text

Supreme US

FILED
(2) JUN 2 0 2005
Lo

OFFICEO
NO. 04-1304 “THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

ALLEN OIL & GAS, L.L.C.,
Petitioner,
VS.

MICHAEL KLISH, BRUCE JOHNSON,
DANIEL SKRABACZ, and ADRAN PHILLIPS,

Respondents.

On Petition for Writ of Certiorari to
The United States Court of Appeals for the Tenth Circuit
SARA LG: TE MEINE PRET ACRE IR HPT ARLEN NOE DRAIN: AEA TERI HNN NN OE A CIEE

BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

John W. Suthers

Attorney General
John J. Krause

Interim Solicitor General
Friedrick C. Haines

First Assistant Attorney General
William V. Allen*

Assistant Attorney General
1525 Sherman Street, Fifth Floor
Denver. Colorado 80203
Telephone: (303) 866-5240

*Counsel of Record

Attorneys for Respondents
June 20, 2005

‘
:

QUESTIONS PRESENTED FOR REVIEW

é Did the Tenth Circuit misapply the standards
of Fed.R.Civ.P. 12(b)(6) when it affirmed dismissal
of Allen Oil & Gas, L.L.C.’s (“AOG’s”) complaint
for failure to state a claim on which relief could be
granted?

a Did the Tenth Circuit err when it affirmed the
District Court’s determination that amendment would
be futile, as there are no facts which AOG could
plead to support its claims?

TABLE OF CONTENTS

PAGE
QUESTIONS PRESENTED FOR REVIEW ................:::000+ i
OPINIONS BELOW ocscisssisccrccctassssaiaaaiaieaiaibineineas l
JURISDICTION .... .csssaccncctateceveasbealealaaaasinlaea diana l
CONSTITUTIONAL, STATUTORY, AND OTHER
PROVISIONS IN VG VURED siasssssetsctcserdicaccetionniabasminierennes 2
STATEMENT OF ‘Tiiie © Biitiesssstavtatsencesssteussumamactantastacnsss 2
REASONS FOR DENYING THE WRIT..............:.ccceeeeeeees 4
I. There Is No Need For This Court To Exercise Its
Supervisory Authority In This Case...................06: 4

A. Petitioner was not subjected to a heightened
Pleading SURIMIIIG,. .:cusssiseersssovsenseelligeiaglnasesisniceannise 4

B. Petitioner failed to amend its complaint despite
numerous opportunities, and in any event failed to
demonstrate how amendment could cure defects in
its COmMpIRRION. ....s: The transcript indicates that the Court found that “personal
jurisdiction” was lacking. However, unis is likely an error in
transcription or an inadvertent misstatement by the Court, as
personal jurisdiction was not a disputed issue at that stage of
the proceedings. The Court likely meant to identify
“personal participation” as the crux issue, as the Court
immediately went on to discuss dismissal of the complaint
Jue to AOG’s failure to allege “personal participation” by
Respondents. App. at A-9.

> The Tenth Circuit did not address Petitioner’s qualified
immunity argument, as the Court affirmed dismissal under
Rule 12(b)(6) for failure to state a claim. App. at C-3 & 4.

7

for AOG’s wells to be plugged was issued. App. at C-9.
Ultimately, the Tenth Circuit affirmed the District Court’s
finding that leave to amend, if given, would have been futile.
App. at C-10.

Where, as here, a plaintiff has no ability to state a good
cause of action, dismissal is appropriate without affording an
opportunity to amend. Czosek v. O'Mara, 397 U.S. 25, 27-
28 (1970); Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Decisions by the courts below dismissing the case
without affording Petitioner further opportunity to amend are
supported in the record and under applicable law.
Accordingly, no issue exists that requires this Court’s
supervisory powers on review.

CONCLUSION

For the reasons and upon the authorities set forth
above, Respondents request that this Court deny the Petition
for Writ of Certiorari.

Respectfully submitted,

John W. Suthers

Attorney General
John J. Krause

Interim Solicitor General
Friedrick C. Haines

First Assistant Attorney General
William V. Allen*

Assistant Attorney General
1525 Sherman Street, Fifth Floor
Denver, Colorado 80203
Telephone: (303) 866-5240

* Counsel of Record

Attorneys for Respondents

APPENDIX A

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. O1-N-1811

ALLEN OIL & GAS, LLC,
Plaintuff,

VS.

MICHAEL KLISH, et al.,
Defendants.

REPORTER'S TRANSCRIPT MOTION HEARING

Proceedings before the HONORABLE EDWARD W.
NOTTINGHAM, Judge, United States District Court for the District of
Colorado, commencing at 4:17 p.m., on the 24th day of January, 2003, in
Courtroom 14, United States Courthouse, Denver, Colorado.

APPEARANCES

For the Plaintiff CLAUDE T. ALLEN, SR.
JOE McDERMOTT, ESQ.
Allen & Allen
301 Knipp
Houston, Texas
(APPEARING VIA VIDEO
CONFERENCE)

For the Defendants WILLIAM V. ALLEN, ESQ.
Colorado Attomey General's Office
1525 Sherman Street
Denver, Colorado

THERESE LINDBLOM, Official Reporter
901 19th Street. Denver, Colorado 80294
Proceedings Reported by Mechanical Stenography
Transcription Produced via Computer

A-|

PROCEEDINGS

THE COURT: Case No. 01-N-1811, Allen Oil &
Gas, a limited liability corporation v. Michael Klish, Bruce
Johnson, Daniel Skrabacz and Adrian Phillips.

I'll take the appearances of counsel, starting with
plaintiff's counsel.

MR. CLAUDE ALLEN: I'm Claude T. Allen, Sr.,
Your Honor.

MR. McDERMOTT: Judge my name is Joe
McDermott, M-c-D-E-R-M-O-T-T. | am not admitted 1n
Colorado, but I am admitted in the Southern District in the
Fifth and Eighth Circuits. With the Court's indulgence,

would like to be able to assist Mr Allen today.

THE COURT: Well, you won't be permitted to talk,

but you will be permitted to assist him.
You can't appear as an advocate in this court without

being admitted to this Court's bar. You may be seated.

aR ee a we

MR. WILLIAM ALLEN: William Allen on behalf
of all the defendants, Your Honor, in the state of Colorado.

THE COURT: This matter comes before the Court
this afternoon on the defendants’ renewed motion to dismiss
the Complaint and the defendants’ motion for summary
judgment with incorporated legal authority.

The Court has reviewed the Complaint and the
materials submitted by the parties and is of the view that oral
argument this afternoon would not materially assist the
Court in resolving this matter. Accordingly, the Court does
not intend to permit oral argument and will rule on the
papers.

This is a case alleging a violation of the plaintiff's
civil rights. The plaintiff alleges that the defendants,
Michael Klish, Bruce Johnson, Daniel Skrabacz, and
Adrian Phillips, individually, members of the Colorade Oil
and Gas Commission, stole the plaintiff's wells by plugging

certain oil and gas wells.

The defendants are members of the Board of the Oil
and Gas Conservation Commission of the State of
Colorado. They are residents and citizens of Colorado. The
Commission 1s the regulatory agency governing the

production of oil and gas in the state of Colorado.

By way of general factual background, as alleged in
the Amended Complaint, the plaintiff was the operator of |
oil leases located in a field referred to as the Tow Creek
Field in Routt County, Colorado.

In November of 1998, after there had been a number
of transactions between the parties -- that is to say, between
the plaintiff and the Oil and Gas Conservation Commission
-- the plaintiff received notice in the form of a
recommended order that certain wells located in the Tow
Creek Field did not comply with the Commission
regulations.

Thereafter, there were certain further proceedings.

In January of 1999, the Commission held a hearing

regarding the Tow Creek Field wells. At this time,
A-4

according to the Complaint, the oil prices were the lowest
in history.

According to the Commission, the Commission
forced plaintiff to shut down the alleged non-compliant
wells until the Commission continued on Mareh of 1999.
The hearing did continue in March of 1999, amd the revised
recommended order issued as a result of that hearing
included a recommendation to plug plaintiff's wells that had
been shut in during January, allegedly with ut sufficient or
any findings of fact.

At the end of this hearing, the Commission made
findings and entered an order directing -- directed to
plaintiff regarding the operation of the Tow Creek Field.

The Commission found that the plaintiff's operation
of certain main wells in that field was a violation of the
Commission regulations. The Commission ordered the
plaintiff's shut-in wells to be plugged, imposed a fine on the
plaintiff, and ordered plaintiff to post further bond with the

Commission in order to be allowed to continue operation of

A-5

wells in the Buck Peak Field, another field located in
Colorado, but evidently not the subject of the complaint
which was then before the Commission.

In May of 1999, plaintiffs sought to amend the

application -- excuse me, filed an application to amend the
Commission's March of 1999 order. The Commission set a
further hearing on that application for July 8, 1999, and
that was continued until August 19 and 20 of 1999.

After the August 1999 hearing, the Commission
declined to amend its prior order, directing that all of the
wells in the Tow Creek Field be plugged. Plaintiff alleges
that during the course of the 1999 hearing on August 19,
the evidence was well received by Commission Board
members. According to the plaintiff, however, on August
20, the hearing went much less well for the plaintiff, and it
was apparent to the plaintiff, at least, that the minds of

Commission Board members had been changed.

A-6

In October of 1999, according to the Complaint,
plaintiff filed for judicial review of the Commission's orders
in the Colorado State District Court. |

On -- in August of 2000, the plaintiff allegedly
drove by its Tow Creek Field and found the Commission
destroying its property, according to the Complaint. And
there is no specification of how the Commission was
destroying the property.

Thereafter, the Commission took action to plug wells
in another field operated by the plaintiff, the ones that I've
alluded to earlier, Buck Peak Field. The Commission set a
hearing for the plaintiff's Buck Peak Field matter for October
of 1999. The Commission -- the hearing was continued
until December of 1999. And according to the Complaint,
plaintiff did not receive a written notice of continuance of the
hearing, and therefore, did not appear at the December
hearing.

The Commission at that hearing found the operation

of the Buck Peak Field uneconomic. Accordingly, the
A-7

Commission ordered that the wells be plugged in that field

and fined the plaintiff.

The plaintiff's Complaint makes three claims. All of
them arise under Title 42 United States Code Section 1983.
The first is a claim that the defendants’ act deprived plaintiff
of due process of law under the Fifth and Fourteenth
Amendments by taking plaintiff's property without making
factual findings for all of the wells.

The second claim alleges that the defendants denied
plaintiff's due process rights by denying an impartial hearing
in the August of 1999 hearing.

And the third claim is a -- appears to be a substantive
due process claim for the defendants’ action in ordering the
Tow Creek wells plugged and abandoned.

The defendants first filed a motion to dismiss, and
thereafter they filed a motion for summary judgment. In the
supplement to the motion to dismiss, the defendants added

qualified immunity as a defense.

A-8

_
A iw Pe a Be

In their original motion to dismiss, they argue that a
second claim for relief is based on the actions of a person
other than defendants, namely, Rich Griebling, who was a
staff person with the Commission. Second, they argue that
the plaintiff's claim failed to allege personal participation by
any of the defendants.

I find the defendants’ arguments regarding personal
jurisdiction and qualified immunity to be dispositive of this
case. And, accordingly, I address only those issues and will
not need to address the issues presented by the motion for
summary judgment.

First, | address the question of personal participation
by the defendants.

This is a curious Complaint. The Complaint is
riddled with allegations concerning actions of the Oil and
Gas Commission, and it refers continuously and vaguely to

the Commission as having been the body doing the things of

which the Complaint complains.

< Oe R

It is curious, therefore, that the Commission, which
consists of seven members, is not sued in its official
capacity, or in any other capacity, and it is also curious that
only four of the seven members are sued.

The plaintiff has never explained this in the
Complaint or in any of its pleadings, and the Court does not
understand how personal participation can be alleged in these
circumstances.

The Court concludes as a matter of law that individual
liability under Section 1983 must be based on personal
involvement in the constitutional violation.

The plaintiffs contend that the defendants are the
members of the Commission who used their authority to
deprive plaintiff of its rights and that only the Commission
members whose acts violated the plaintiffs rights were sued.

Notably, the plaintiff makes a distinction between the
Commission members who violated plaintiff's rights and
those who did not. But nothing that the plaintiff has filed in

this court indicates how the plaintiffs came by this distinction

A-10

OO

or what the distinction might be. The plaintiff does not
mention defendants’ specific acts to constitute a violation of
the nights.

Plaintiff's argument seems to this court to boil down
to the proposition that the Commission committed acts that
violated the plaintiff's rights, but these defendants were
members of the Commission, and therefore, the defendants
personally participated in violating the plaintiff's rights.

Notably, however, that the entire Commission did not
participate in the violation of the plaintiff's rights dis --itself
disproofs this line of reasoning.

The Court finds the Complaint to be sorely lacking
concerning any allegations directly against the defendants
personally. The Complaint does not mention any of the
defendants by name, describe acts that they in particular
participated in or otherwise imply that they personally were
liable for plaintiff's harm.

In fact, as I have noted before, the Commission is

made up of seven members, only four of whom have been

A-|1

named as defendants. And the Complaint is completely
without information as to why this is the case.

I conclude, therefore, that the plaintiff's Complaint
fails to allege personal participation by these defendants.
This suit against defendants is 1n their individual capacity,
not in their official capacity. And so this is not, in effect, a
Complaint against the Oil and Gas Commission.

Accordingly, the plaintiff needs to allege more than
the fact that the defendants are members of the Commission
and that the Commission violated plaintiff's rights. It has not
done so.

There is some suggestion in the papers that the
piaintiffs should be given leave -- that the plaintiff should be
given leave to replead -- leave to replead on the ground that
it can correct the defects that the Court has seen 1n this
respect.

According to Tenth Circuit law, however, dismissal
under Rule 12 without affording plaintiff an opportunity to y

amend is appropriate when it is patently obvious that the
A-12

plaintiff cannot prevail under the alleged facts and allowing
plaintiff an opportunity to amend may be -- would be futile.

I note that the defendants made this same argument
against the plaintiff when the motion to dismiss was filed in
the Southern District of Texas before the case was transferred
to Colorado. Briefing on the motion was complete before
the case was transferred. Discovery is complete in the case,
and the dispositive motion deadline has passed without any
request by the plaintiff to amend the Complaint.

There is no indication that the plaintiff could amend
the Complaint to allege personal participation by the
defendants any more specifically than it has attempted to do
so in the current Complaint.

The Court finds that it is patently obvious that the
plaintiff cannot prevail under the alleged facts and that an
opportunity to amend would be futile. Accordingly, the
Court will grant the motion to dismiss with prejudice.

A second ground for granting the motion to dismiss 1s

the Doctrine of Qualified Immunity. The Doctrine of
A-13

Qualified Immunity shields government officials performing
discretionary functions from individual liability under
Section 1983, where their actions do not violate clearly
established statutory or constitutional nights of which a
reasonable person might have known.

Once a defendant puts in issue the question of
qualified immunity, the plaintiff bears the heavy burden of
demonstrating, first, that the defendants' alleged violation --
alleged actions violated a clearly established constitutional or
statutory right. And, second, that the constitutional or
statutory right was clearly established at the time of the
alleged violation.

The plaintiff must articulate with specificity the
clearly established constitutional or statutory right at issue. It
is insufficient simply to identify in the abstract a clearly
established right and then allege that the defendant has
violated it.

For a right to have been clearly established in this

circuit, the contours of the right must be sufficiently clear that
A-14

ee ee ee

aes

a reasonable official would understand that what he is doing
violates that right.

In the Tenth Circuit, ordinarily ... order for the law to
be clearly established, there must be a Supreme Court or
Tenth Circuit decision on point, or the clearly established
authority from other courts must have found the law to be as
the plaintiff maintains.

In the Tenth Circuit, determining qualified immunity
under these legal principles is a two-step process. First, the
Court must determine whether the plaintiff has met its
burden of coming forward with sufficient facts to show that
the defendants’ actions violated a federal constitutional or
statutory right.

Only when the plaintiff has done that will the Court
proceed to the second step, to determine whether the right
was Clearly established at the time of the alleged conduct.

I conclude in these circumstances that the plaintiff
has not met the first part of the test for qualified immunity,

because it has failed to come forward with sufficient facts to
A-15

show that the defendants violated a federal constitutional
right.
The plaintiff's Complaint does intone the verbal

talismans of due process and violation of the Fourth and

idtelvs

Fifth -- Fourteenth and Fifth Amendment, but it is devoid of
specific allegations of fact, particularly with regard to the
actions of these defendants, as opposed to the actions of the
Commission as a whole.

As I have already noted, the Complaint does not
even mention any of the defendants by name, except in the
caption of the Complaint. It is devoid of specific allegations

of fact, particularly with regard to the actions of the

Complaint -- the defendants, as opposed to the Commission
as a whole.

As I have already noted, it is particularly notable, in
light of the fact that plaintiff chose to proceed only against
certain Commission members, that it is not violating --

alleging a violation of clearly established rights.

A-16

The defendants, having moved to dismiss on the
basis of qualified immunity, the plaintiff is obliged to come
forward with additional allegations showing that each
defendant violated clearly established law. Even in the
response to the supplement to the motion to dismiss,
plaintiff argues that it meets the first step by noting that it
alleges that the defendants violated its constitutional rights,
specifically that the acts of the defendant violated its due
process rights to notice and an opportunity to be heard, its
due process right to be heard by an impartial tribunal, and its
substantive due process right to possession of its property
without interference with that right under color of law.

This is simply lacking under Tenth Circuit case law in
sufficient detail to meet the pleading standards in this
circuit. All that the plaintiff has done is to allege in the
abstract the violation of a constitutional right, without
alleging why that right is applicable or without alleging that

each defendant has participated in the violation.

A-17

The Court concludes that the plaintiff's Complaint in
this case must be dismissed with prejudice. The plaintiff's
response to the defendants' supplement, which raised the
qualified immunity defense, was filed in this case after
discovery was complete and after the dispositive motion
deadline had passed.

Even the plaintiff's response, having had a full
opportunity for discovery, fails to make specific allegations
regarding the defendants' actions.

The plaintiff could have chosen to amend the

Complaiit or to seek to amend the Complaint. There is a

request in the response to the motion to dismiss to replead if
the Court finds that the Complaint is lacking. There is no
indication, however, that the plaintiff has any further
evidence which would support the allegations which it is
making.

As the defendant points out as well, the plaintiff was
present at the hearings where the alleged improper actions

took place, and therefore was in possession of all the
A-18

necessary facts. At this point in the case, if plaintiff has not
made sufficient allegations, it is reasonable to conclude that
it cannot do so.

On the basis of those findings of fact and conclusions
of law, the Court grants the motion to dismiss and dismisses
the plaintiff's Complaint with prejudice.

The defendants' motion for summary judgment is
denied as moot.

The defendants, if they wish, may have their costs
upon the filing of a bill of costs within 11 days from today's
date.

That concludes this matter.

Counsel are excused. The video conference is ended.

(Hearing concluded at 4:38 p.m.)

A-19

EE EE OY

PE TE

APPENDIX B
IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLORADO
JUDGE EDWARD W. NOTTINGHAM
Civil Action No. 01-N-1811 (MJW)
ALLEN OIL & GAS, LLC
Plaintiff,
v.
MICHAEL KLISH,
BRUCE JOHNSON,
DANIEL SKRABACA, and
ADRAN PHILLIPS, Individually,

Defendants,

FINAL JUDGMENT

In accordance with orders filed during the pendency
of this case, and pursuant to Fed. R. Civ. P. 58(2), the
following FINAL JUDGMENT is hereby entered.

1. Pursuant to the findings of fact and
conclusions of law entered orally in open
court by Judge Edward W. Nottingham on

January 24, 2003:

a. Defendant’s Motion to Dismiss
Complaint (#8), filed December 19,
2001, is GRANTED.

b. Defendants’ motiot. for summary
judgment (#31), filed June 28,2002, is
DENIED as MOOT.

c. Judgment is entered in favor of

Defendants Michael Klish, Bruce
Johnson, Daniel Skrabacz, and Adran
Phillips and against Plaintiff Allen O1l
& Gas, LLC, and Plaintiff's
Complaint and this action are
DISMISSED with prejudice.

6. Defendants shall have their costs
upon the proper filing of a Bill of
Costs within eleven days of
January 24, 2003, the date of the
court’s order.

Dated this 30" day of January, 2003.

B-2

APPROVED BY THE ENTERED FOR THE

COURT: COURT:
JAMES R. MANSPEAKER,
CLERK

EDWARD W. By

NOTTINGHAM Stephen P. Ehrlich

United Stated District Judge Chief Deputy Clerk

IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLORADO

CERTIFICATE OF SERVICE

I hereby certify that a copy of the Final Judgment
signed by Judge Edward W. Nottingham on January 30,
2003 was served on January 30, 2003 by hand-delivery,
where a “D.C.” box number or asterisk (*) is indicated after
the recipient’s name, by electronic mail to the address
specified where a double asterisk (**) is indicated after the
recipient’s name, or otherwise by depositing it in the United
States mail, postage prepaid, addressed to the recipient:

Magistrate Judge Michael J Claude T. Allen, Sr.,
Watanabe* Esq.
Allen & Allen
301 Knipp
Houston, TX 77024
Attorney for Plaintiff
William V. Allen, Esq.
Assistant Attorney General
Litigation Section
D.C. Box No. 20
Attorney for Defendants

JAMES R. MANSPEAKER, CLERK

By

Deputy Clerk

APPENDIX C

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ALLEN OIL & GAS, LLC,
Plaintiff-Appellant,
v.
No. 03-1082

MICHAEL KLISH; (D.C. No. 01-N-1811)
BRUCE JOHNSON; (D. Colo.)
DANIEL SKRABACZ;
ADRAN PHILLIPS,

Defendants-Appellees.

ORDER AND JUDGMENT'

Before McCONNELL, HOLLOWAY, and
PORFILIO, Circuit Judges.

After examining the briefs and appellate record, this

panel has determined unanimously to grant the parties’

' 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 20" Cir. R. 36.3.

request for a decision 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. Plaintiff
Allen Oil & Gas, LLC, appeals the judgment of the district
court dismissing its § 1983 complaint for failure to state a
claim upon which relief can be granted under Fed. R. Civ. P.
12(b)(6) and further refusing to grant plaintiff leave to
amend its complaint. We exercise jurisdiction pursuant to 28
U.S.C. § 1332 and affirm.

Plaintiff was the operator of oil leases located in
Routt County, C olorado. In the complaint, defendants are
identified as members of the board of the Colorado Oil and
Gas Conservation Commission (Commission). Plaintiff
brought suit under 42 U.S.C. § 1983 alleging that
defendants affected a taking of its property without due
process in derogation of the Fifth Amendment when the
Commission ordered some of plaintiff's wells plugged.
Specifically, plaintiff alleged, inter alia, that defendants

denied it the opportunity for a hearing before an impartial :

C-2

tribunal, prevented it from complying with Commission
regulations, and continued a hearing without written notice
to plaintiff.

In ruling on defendants’ renewed motion to dismiss
the complaint, the district court held that because plaintiff
failed to allege any personal participation by defendants in
the allegedly illegal acts, its complaint was subject to
dismissal under Rule 12(b)(6). Because the court found it
"patently obvious that the plaintiff cannot prevail under the
alleged facts," Aplt. App. at 164, it further 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
conclusions. 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 refusal
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

C-3

facts, as distinguished from
conclusory allegations, and view
those facts in the light most favorable
to the nonmoving party. The district
court's dismissal pursuant to Rule
12(b)(6) will be upheld only if it
appears beyond doubt that the plaintiff
can prove no set of facts in support 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 the 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
complaint identifies defendants as members of the
Commission, Aplt. App. at 8, but does not identify them

as members of the Commission during the relevant time

C-4

period.” The complaint does not allege how any or all of

the defendants voted on matters concerning the wells.
The complaint does claim that activities of a particular
employee of the Commission injured plaintiff, but that
individual is not named as a defendant. Further, there is
no allegation that any of the defendants personally
considered the allegedly improper intervention of this
employee or allowed it to influence them.

In its opening brief, plaintiff correctly cites the law
requiring personal participation in this type of suit but
fails to ultimately show that defendants were directly
involved in the acts that resulted in the claimed deprivation
of rights. Merely saying that it has shown individual
involvement on the part of each defendant does not make it

so. See Aplt. Br. at 17-18.

: The statement in plaintiff's opening brief that the complaint alleged
defendants were members of the Commission is inaccurate. See Apt.
Br.At 16.

C-5

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 underlying the
plaintiff's case, dismissal is inappropriate. In Barrett, this
court reversed a dismissal under Rule 12(b)({6) because,
while the plaintiffs failed to state a RICO claim, they had
adequately pleaded claims of "garden variety" fraud and
conversion. There is no indication in Barrett, however, that
the plaintiffs either failed to name 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 Peace Officer Standards and

C-6

Training Division, argued that the claims against him
must be dismissed because the plaintiff had failed to
allege an affirmative link between his conduct and any
constitutional violation. This court clarified that such a
link is required to be alleged in the complaint as well as
proven at trial. /d. at 1157. We refused to affirm the
dismissal of the complaint against the director, however,
because the plaintiff had sufficiently alleged
wrongdoing on the part of the defendants as a group and
had defined the director as part of that group. /d.
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.’ The complaint in the case at bar does not
make a similar allegation as to the named defendants and
therefore does not state a claim upon which relief can be

granted.

* We have ascertained this fact by taking judicial notice of the appellate
record in Stidham which is still on file in this court.

C-7

Finally, plaintiff argues that the district court
erred 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 hax
pointed out plaintiff's failure to allege personal
participation when they filed their motion to 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
district 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
dispositive motions had passed without any request from
plaintiif to amend the complaint. The district court
concluded that "it is patently obvious that the plaintiff
cannot prevail under the alleged facts and that an

opportunity to amend would be futile." Aplt. App. at

C-8

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 would be futile. As noted above, plaintiff
does not allege any personal participation by any of the
defendants in its alleged injury. Plaintiff does not dispute
that three of the four defendants were not members of the
Commission in March 1999 when the wells were ordered
plugged. Despite being on notice that defendants would
raise the issue of lack of personal participation, plaintiff did
not request leave to amend 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 indicate 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

C-9

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

C-10

APPENDIX D

UNITED STATES COURT OF APPEALS FOR THE
TENTH CIRCUIT

ALLEN OIL & GAS, LLC
Plaintiff — Appellant,

v. No. 03-1082

MICHEAL KLISH; BRUCE
JOHNSON; DANIEL
SKRABACA; ADRAN
PHILLIPS,

Defendants - Appellees

ORDER
Filed December 29, 2005

Before McCONNELL, HOLLOWAY and PORFILIO,
Circuit Judges.

Appellant’s petition for rehearing is denied.

Entered for the Court
PATRICK FISHER, Clerk of Court

By:
Deputy Clerk

D-|

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0696%3A3. Public record. Not legal advice.