F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 19 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
JOSEPH A. VENTO,
Plaintiff-Appellant,
v. No. 98-1236 (D.C. No. 97-S-463) COLORADO NATIONAL BANK; (D. Colo.) C. JEAN STEWART; DAVID W. STARK; JACK M. MERRITTS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , EBEL , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ 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.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Plaintiff Joseph A. Vento appeals from the district court’s order adopting
the magistrate judge’s recommendation to dismiss his complaint brought pursuant
to 42 U.S.C. §§ 1983 & 1988. 1 We exercise jurisdiction under 28 U.S.C. § 1291
and affirm.
Plaintiff brought suit in federal court against defendants, Colorado National
Bank (CNB), Stark and Merritts, alleging that they conspired with defendant
Stewart, a Denver Probate Court judge, to file a vexatious interpleader action in
the Denver Probate Court. In 1993, plaintiff and his sister obtained a judgment
against CNB in the District Court in Pueblo County, Colorado. The Colorado
Court of Appeals affirmed the judgment on appeal. See Vento v. Colorado Nat’l
Bank-Pueblo , 907 P.2d 642 (Colo. Ct. App. 1995). On December 11, 1995, the
Colorado Supreme Court denied certiorari. On December 29, 1995, CNB filed the
interpleader action seeking to interplead the amount of the Pueblo District Court
judgment because of competing claims on the judgment, including claims by
trusts owned by other members of plaintiff’s family. Plaintiff claims the
interpleader action was filed to prevent him from collecting the Pueblo District
Court judgment. Defendant Stewart, acting in her capacity as a Denver Probate
Court judge, entered an order on January 3, 1996, granting CNB’s request to
1 By order dated September 29, 1998, the appeal from the district court’s award of sanctions and attorney fees was dismissed.
-2- interplead the funds and enjoining all claimants, including Joseph Vento, from
taking any action to collect the Pueblo District Court judgment.
Plaintiff then filed this lawsuit alleging his federal civil rights were
violated by CNB, defendant Stark (the attorney who represented CNB in the
interpleader action), defendant Merritts (the attorney who represented other
claimants on the Pueblo District Court judgment), and defendant Stewart (the
Denver Probate Court judge assigned to the interpleader action).
We review de novo an order dismissing a complaint for failure to state
a claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
using the same standard applied by the district court. See Ordinance 59 Ass’n v.
United States Dep’t of Interior Secretary , 163 F.3d 1150, 1152 (10th Cir. 1998).
“We accept as true all well-pleaded facts, as distinguished from conclusory
allegations, and view those facts in the light most favorable to the nonmoving
party.” Maher v. Durango Metals, Inc. , 144 F.3d 1302, 1304 (10th Cir. 1998).
Dismissal of a complaint 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.” Conley v. Gibson , 355 U.S. 41, 45-46
(1957) (footnote omitted).
Plaintiff’s claims against Judge Stewart, a state court judge, raise the issue
of judicial immunity. “[A] state judge is absolutely immune from § 1983 liability
-3- except when the judge acts ‘in the clear absence of all jurisdiction.’” Hunt v.
Bennett , 17 F.3d 1263, 1266 (10th Cir. 1994) (quoting Stump v. Sparkman ,
435 U.S. 349, 356-57 (1978)). Plaintiff maintains that the Denver Probate Court
had no jurisdiction over the interpleader action, relying on Rule 22 of the
Colorado Rules of Civil Procedure and other rules. “[T]he scope of the judge’s
jurisdiction must be construed broadly where the issue is the immunity of the
judge.” Stump , 435 U.S. at 356. Neither a judge’s “commission of grave
procedural errors,” id. , at 359, nor her action “in excess of [her] authority,” id.
at 356, will deprive the judge of immunity. A judge acts in the clear absence
of all jurisdiction when she “acts clearly without any colorable claim of
jurisdiction.” Snell v. Tunnell , 920 F.2d 673, 686 (10th Cir. 1990). We need
not decide whether the Denver Probate Court had jurisdiction over the
interpleader action because we find that under Colo. Rev. Stat. § 13-9-103(5),
granting jurisdiction to the Denver Probate Court over “every legal and equitable
question arising out of or in connection with express trusts,” Judge Stewart had
at least colorable jurisdiction sufficient to invoke judicial immunity. Therefore,
Judge Stewart cannot be held liable under § 1983.
To state a claim under § 1983 plaintiff must show that defendants acted
under color of state law. See Haines v. Fisher , 82 F.3d 1503, 1508 (10th Cir.
1996). Plaintiff recognizes that CNB, Stark and Merritts are private parties, not
-4- public actors subject to liability under § 1983, but he alleges that they acted
under color of state law by engaging in joint activity and/or a conspiracy with
Judge Stewart who is a state actor, to violate his rights. “[T]he immunity of
a state official will not necessarily protect a private individual alleged to have
conspired with [her].” Shaffer v. Cook , 634 F.2d 1259, 1260 (10th Cir. 1980).
The test is whether “the plaintiff [has] demonstrated the existence of a significant
nexus or entanglement between the absolutely immune State official and the
private part[ies] in relation to the steps taken by each to fulfill the objects of their
conspiracy[.]” Norton v.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 19 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
JOSEPH A. VENTO,
Plaintiff-Appellant,
v. No. 98-1236 (D.C. No. 97-S-463) COLORADO NATIONAL BANK; (D. Colo.) C. JEAN STEWART; DAVID W. STARK; JACK M. MERRITTS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , EBEL , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ 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.
* 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. Plaintiff Joseph A. Vento appeals from the district court’s order adopting
the magistrate judge’s recommendation to dismiss his complaint brought pursuant
to 42 U.S.C. §§ 1983 & 1988. 1 We exercise jurisdiction under 28 U.S.C. § 1291
and affirm.
Plaintiff brought suit in federal court against defendants, Colorado National
Bank (CNB), Stark and Merritts, alleging that they conspired with defendant
Stewart, a Denver Probate Court judge, to file a vexatious interpleader action in
the Denver Probate Court. In 1993, plaintiff and his sister obtained a judgment
against CNB in the District Court in Pueblo County, Colorado. The Colorado
Court of Appeals affirmed the judgment on appeal. See Vento v. Colorado Nat’l
Bank-Pueblo , 907 P.2d 642 (Colo. Ct. App. 1995). On December 11, 1995, the
Colorado Supreme Court denied certiorari. On December 29, 1995, CNB filed the
interpleader action seeking to interplead the amount of the Pueblo District Court
judgment because of competing claims on the judgment, including claims by
trusts owned by other members of plaintiff’s family. Plaintiff claims the
interpleader action was filed to prevent him from collecting the Pueblo District
Court judgment. Defendant Stewart, acting in her capacity as a Denver Probate
Court judge, entered an order on January 3, 1996, granting CNB’s request to
1 By order dated September 29, 1998, the appeal from the district court’s award of sanctions and attorney fees was dismissed.
-2- interplead the funds and enjoining all claimants, including Joseph Vento, from
taking any action to collect the Pueblo District Court judgment.
Plaintiff then filed this lawsuit alleging his federal civil rights were
violated by CNB, defendant Stark (the attorney who represented CNB in the
interpleader action), defendant Merritts (the attorney who represented other
claimants on the Pueblo District Court judgment), and defendant Stewart (the
Denver Probate Court judge assigned to the interpleader action).
We review de novo an order dismissing a complaint for failure to state
a claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
using the same standard applied by the district court. See Ordinance 59 Ass’n v.
United States Dep’t of Interior Secretary , 163 F.3d 1150, 1152 (10th Cir. 1998).
“We accept as true all well-pleaded facts, as distinguished from conclusory
allegations, and view those facts in the light most favorable to the nonmoving
party.” Maher v. Durango Metals, Inc. , 144 F.3d 1302, 1304 (10th Cir. 1998).
Dismissal of a complaint 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.” Conley v. Gibson , 355 U.S. 41, 45-46
(1957) (footnote omitted).
Plaintiff’s claims against Judge Stewart, a state court judge, raise the issue
of judicial immunity. “[A] state judge is absolutely immune from § 1983 liability
-3- except when the judge acts ‘in the clear absence of all jurisdiction.’” Hunt v.
Bennett , 17 F.3d 1263, 1266 (10th Cir. 1994) (quoting Stump v. Sparkman ,
435 U.S. 349, 356-57 (1978)). Plaintiff maintains that the Denver Probate Court
had no jurisdiction over the interpleader action, relying on Rule 22 of the
Colorado Rules of Civil Procedure and other rules. “[T]he scope of the judge’s
jurisdiction must be construed broadly where the issue is the immunity of the
judge.” Stump , 435 U.S. at 356. Neither a judge’s “commission of grave
procedural errors,” id. , at 359, nor her action “in excess of [her] authority,” id.
at 356, will deprive the judge of immunity. A judge acts in the clear absence
of all jurisdiction when she “acts clearly without any colorable claim of
jurisdiction.” Snell v. Tunnell , 920 F.2d 673, 686 (10th Cir. 1990). We need
not decide whether the Denver Probate Court had jurisdiction over the
interpleader action because we find that under Colo. Rev. Stat. § 13-9-103(5),
granting jurisdiction to the Denver Probate Court over “every legal and equitable
question arising out of or in connection with express trusts,” Judge Stewart had
at least colorable jurisdiction sufficient to invoke judicial immunity. Therefore,
Judge Stewart cannot be held liable under § 1983.
To state a claim under § 1983 plaintiff must show that defendants acted
under color of state law. See Haines v. Fisher , 82 F.3d 1503, 1508 (10th Cir.
1996). Plaintiff recognizes that CNB, Stark and Merritts are private parties, not
-4- public actors subject to liability under § 1983, but he alleges that they acted
under color of state law by engaging in joint activity and/or a conspiracy with
Judge Stewart who is a state actor, to violate his rights. “[T]he immunity of
a state official will not necessarily protect a private individual alleged to have
conspired with [her].” Shaffer v. Cook , 634 F.2d 1259, 1260 (10th Cir. 1980).
The test is whether “the plaintiff [has] demonstrated the existence of a significant
nexus or entanglement between the absolutely immune State official and the
private part[ies] in relation to the steps taken by each to fulfill the objects of their
conspiracy[.]” Norton v. Liddel , 620 F.2d 1375, 1380 (10th Cir. 1980).
Plaintiff alleges that the following circumstances demonstrate that the
private party defendants and Judge Stewart conspired to violate his rights:
plaintiff was not granted a continuance of the January 3, 1996 hearing, he was
not given sufficient time to respond to the complaint, and Judge Stewart made
statements and rulings with which he disagreed. We hold that these “[c]onclusory
allegations of conspiracy are insufficient to state a valid § 1983 claim,” Hunt ,
17 F.3d at 1266 (quotation omitted), and that they do not “allege the kind of
conspiratorial nexus” to support a “conspiracy intended to deprive [plaintiff] of
his constitutional rights.” Shaffer , 634 F.2d at 1261. Because plaintiff has failed
to demonstrate a conspiracy between the private party defendants and a state
actor, their conduct is not covered by § 1983.
-5- Plaintiff’s final argument is framed as a claim that he was deprived of his
property through state action without due process of law. Even if plaintiff was
deprived of his property, see Vento v. Colorado Nat’l Bank , No. 97CA1814,
1999 WL 46924 (Colo. Ct. App. Feb. 4, 1999) (noting that Denver Probate Court
held that plaintiff was entitled to receive approximately $2.9 million from the
interpled funds), his arguments to this court demonstrate only a disagreement with
the state court’s decisions. Therefore, we invoke the Rooker-Feldman doctrine,
which prohibits federal district courts from hearing federal claims whose only
purpose is to obtain review of state court judgments when review should be
achieved through appellate review in the state court system. See Kiowa Indian
Tribe v. Hoover , 150 F.3d 1163, 1165 (10th Cir. 1998).
The judgment of the district court is AFFIRMED. The mandate shall issue
forthwith.
Entered for the Court
Mary Beck Briscoe Circuit Judge
-6-