Marshall v. Price

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 2 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk

DAVID L. MARSHALL and
LYNDA E. SHOUGH,

Plaintiffs-Appellants, No. 00-1473
v. (D.C. No. 00-WM-1166)
MICHELE S. PRICE; ROBERT (D. Colo.)
WARREN; MICHAEL CURRAN;
CITY OF COLORADO SPRINGS; and
LEON YOUNG; LINDA BARLEY;
TED EASTBURN; WILLIAM F.
GUMAN; JUDY NOYES; JAMES A.
NOYES; LIONEL RIVERA;
RICHARD SKORMAN; GREGORY
GARLAND; and MARY LOU
MAKEPEACE, personally and in their
official capacities,
Defendants-Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.

*
This order and judgment is not binding precedent, except under the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.
 After examining the briefs and the 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.

Plaintiffs David L. Marshall and Lynda E. Shough, proceeding pro se,

appeal the district court’s Rule 12(b)(6) dismissal of their complaints. Without

presenting any factual support, Plaintiffs alleged before the magistrate judge and

district court that (1) the doctrine of Separation of Powers prohibited the

Colorado Springs City Council from appointing municipal court judges, and (2)

certain statements in court by municipal judges and prosecutors were both

perjurious and capitally treasonous. On appeal, Plaintiffs reiterate their

allegations—again without factual support—adding a claim that sections 16 and

18(2) of article XIV of the Colorado Constitution are unconstitutionally vague.

See Br. Aplt. at 2-5.

Having reviewed the briefs and the record in this case de novo, we affirm

the district court’s Rule 12(b)(6) dismissal for substantially the same reasons

given by the magistrate judge and affirmed by the district court in its Order filed

October 17, 2000. While we are obliged to construe pro se pleadings liberally,

Haines v. Kerner, 404 U.S. 519, 520-21 (1973) (per curiam), Plaintiffs’

allegations alone cannot state a valid claim. “[C]onclusory allegations without

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supporting factual averments are insufficient to state a claim on which relief can

be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Although

Plaintiffs’ desire for a hearing is understandable, they must provide in their

pleadings factual support “on which a recognized legal claim could be based,” id.,

in order to justify the time and expense of trial. Plaintiffs have failed to provide

supporting facts at every phase of this action.

In addition, even if Plaintiffs had presented sufficient factual support, the

district court found that they still failed to state claims upon which relief may be

granted. States may determine whether its judges are elected or appointed, and

nothing in the federal Constitution prohibits that right. See, e.g., Chisom v.

Roemer, 501 U.S. 380, 400 (1991) (noting that the Constitution requires Article

III judges to be appointed, but acknowledging that Louisiana had chosen to elect

its judges). Moreover, judges and prosecutors acting in their official roles are not

under oath, and thus they cannot perjure themselves even if they make “materially

false” statements (which was not determined here). Colo. Rev. Stat. §§ 18-8-502,

18-8-503. Plaintiffs’ latest claim—that sections 16 and 18(2), article XIV, of the

Colorado Constitution are unconstitutionally vague—was not raised at the district

court level, and thus we decline to consider it on appeal. See Walker v. Mather,

959 F.2d 894, 896 (10th Cir. 1992).

For the reasons stated above, the judgment of the district court is

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AFFIRMED.

Entered for the Court

Monroe G. McKay
Circuit Judge

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