Cook v. Baca

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 7, 2013

Elisabeth A. Shumaker
Clerk of Court
DANIEL W. COOK, individually,

Plaintiff-Appellant,

v. No. 12-2023
(D.C. No. 1:10-CV-01173-JAP-KBM)
THE HONORABLE THEODORE C. (D. N.M.)
BACA, individually and in his official
capacity; WELLS FARGO BANK, N.A.;
WELLS FARGO & COMPANY; JAY D.
HERTZ, Esq.; MICHELLE K. OSTRYE,
Esq., both individually and as counsels
for Wells Fargo Bank, N.A. and Wells
Fargo Company; PENNY T. KNIPPS,
individually and in her capacity as a V.P.
of Wells Fargo Bank, N.A.; SUTIN,
THAYER AND BROWN P.C.; SCOTT
GARRETT, individually; SCOTT AND
PAMELA GARRETT TRUST DATED
JUNE 14, 1999; BID GROUP, INC.;
GARRETT CAPITAL, LLC; JULIE
VARGAS, Esq.; CATHERINE DAVIS,
Esq., both counsels for Scott Garrett, the
Garrett Trust, Garrett Capital, LLC, and
Bid Group, Inc.; HUNT & DAVIS, P.C.,
JOHN DOE and/or JANE DOE,

Defendants-Appellees.

ORDER AND JUDGMENT*

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
(continued)
Before GORSUCH, ANDERSON, and EBEL, Circuit Judges.

Daniel W. Cook, proceeding pro se, appeals from the district court’s orders in

this civil rights case that dismissed his first amended complaint for failure to state a

claim, denied his motion to re-open and for reconsideration, and denied his motion

for leave to amend. We affirm the dismissal of his complaint in part and remand with

instructions to modify a portion of the dismissal from a dismissal with prejudice to a

dismissal without prejudice for lack of subject-matter jurisdiction. We affirm the

remainder of the district court’s orders.

BACKGROUND

In Mr. Cook’s 117-page, pro se, verified first amended complaint (“FAC” or

“complaint”), he alleged numerous violations of his constitutional rights and of

various federal statutes. The FAC is a recent installment in what the bankruptcy

court for the District of New Mexico characterized as

the long, twisted litigation history of Mr. Cook with the various parties
that has proceeded in the New Mexico State District Court, the New
Mexico Court of Appeals, the New Mexico Supreme Court, the
Bankruptcy Court, the District Court, and the Tenth Circuit Court of
Appeals and has included, among other items, requests to enjoin the
state court from ruling, removals, remands, sanctions, an application for

estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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 a writ of mandamus, motions to reconsider virtually every order entered
by every judge, a motion in the Tenth Circuit for a rehearing en banc,
suits against judges and the adverse parties’ attorneys, and claims of
conspiracy, RICO violations and civil rights deprivations.

In re Cook, No. 7-04-17704-SA, 2012 WL 5408905, at *16 (Bankr. D. N.M Nov. 6,

2012).

In order to lay the groundwork for our ruling, we first provide here a brief

summary of the relevant portions of the FAC. As the parties are familiar with its

contents, we present only an abbreviated summary of its allegations.

1. Background (First Amended Complaint, ¶¶ 1-88)

In its order dismissing the FAC, the district court determined that it asserted

three main types of federal claims: (1) claims for racial discrimination (Counts I

through VI); (2) a claim for violations of Securities and Exchange Commission

(SEC) Rule 10b-5 (Count VII); and (3) claims seeking relief for alleged civil

violations of the Racketeer Influenced Corrupt Organizations Act (RICO) (Claims

X-XIII).1 On appeal, Mr. Cook has abandoned his racial discrimination claims,

RICO claims, and claims against state court judge Theodore C. Baca individually and

for damages. See Aplt. Opening Br. at 5. Accordingly, we find it unnecessary to

discuss in detail the factual underpinnings of these claims. But he also asserts that

some of his claims in Counts I through VI alleged a conspiracy to violate his civil

1
Claims VIII and IX included state-law claims that are not at issue in this
appeal.

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rights and an “alleged failure to prevent wrongs,” id. at 2, that were unrelated to

racial discrimination, see id. at 3.2

Stripped of scurrilous material and invective, the FAC may be summarized as

follows. It begins with a lengthy recitation of difficulties resulting from the alleged

failure to implement a 2001 settlement agreement involving (1) the Cooks,3 (2) their

company Hydroscope Group, Inc. (“Group”) and its subsidiaries; (3) a related

company known as Hydroscope Canada, Inc. (HCAN); (4) Scott Garrett and the

Garrett Trust, prospective investors in the Group; and (5) Wells Fargo.

The origins of the settlement agreement are unclear from Mr. Cook’s

complaint. They are, however, described in some detail as part of the Garrett Trust’s

complaint against Mr. Cook and others filed in New Mexico state court. The record

contains a copy of the Trust’s third amended state court complaint, which describes

its investment in the Group and its dissatisfaction with Mr. Cook’s alleged

misconduct in connection with that investment. R., Vol. 2 at 30-35. The complaint

explains that “[o]n March 30, 2001, at the request of [Mr.] Cook and the Hydroscope

Board of Directors, [the] Garretts and Hydroscope entered into a settlement

agreement which provided for the repurchase of [Mr.] Garrett’s stock.” Id. at 35. As

2
Mr. Cook misleadingly asserts that the district court “misapprehended, ignored
and or overlooked” these claims. Id. In fact, as will be discussed, the district court
addressed the claims on the merits in detail in its order denying his motion for
re-opening and reconsideration.
3
Yolanda Cook, Mr. Cook’s wife, who joined him in the settlement agreement
and his subsequent bankruptcy, is now deceased.

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part of the agreement, Mr. Garrett was to be granted a license for the exclusive use of

the Hydroscope technology in the state of California. Id.

But this technology was pledged to Wells Fargo, which could potentially have

affected Mr. Garrett’s exercise of his rights. Id. at 36. To help deal with this

problem, the parties entered into a Forbearance Agreement, which allegedly required

Wells Fargo to provide Mr. Garrett with a non-disturbance agreement pledging not to

interfere with Mr. Garrett’s exercise of IP rights. Once this was accomplished,

Mr. Garrett was to receive a sublicense of certain IP rights from HCAN. He and his

trust were to then release $50 million in investment funds to the Group.

This non-disturbance agreement was never executed, however, allegedly due

to Wells Fargo’s intransigence concerning the terms of the proposed agreement. As a

result, Wells Fargo

caused there to be no settlement with Garrett et al to be effectuated, it
caused the $50 million investment not to be completed, it caused the
Cooks to lose their home, it caused the Cooks to lose their office
complex, it caused HCAN to sell IP that was allegedly pledged and
facing foreclosure, and it caused the Cooks to file their Chapter 11
[bankruptcy] to seek time to resolve differences and disputes that the
Bank was contractually obligated to [resolve].

R., Vol. 1 at 172 (¶ 58). The FAC also asserts that due to Wells Fargo’s

failure to effectuate the settlement, HCAN could not afford to pay

“maintenance fees” on the IP and was therefore forced to sell the IP before its

rights expired “for lack of payment of maintenance fees to the different patent

offices and or intellectual property agencies worldwide.” Id. (¶ 59). Among

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the purchasers of HCAN’s IP were the Cooks and a business known as CBM

Group, Inc. (“CBM”).

On October 21, 2004, more than three years after the settlement agreement had

been executed, and with no non-disturbance agreement yet in place, the Cooks filed a

Chapter 11 bankruptcy petition. In December 2004, as debtors-in-possession, they

filed an adversary proceeding in bankruptcy court against Wells Fargo. In the

adversary proceeding, the Cooks asserted claims against Wells Fargo allegedly

transferred to them by the Group before their bankruptcy filing.

Wells Fargo objected to the bankruptcy court’s jurisdiction over the adversary

proceeding. The Cooks responded by protectively filing a complaint in New Mexico

state court containing similar claims to those asserted in the adversary proceeding.

Wells Fargo responded with a motion for summary judgment in state court, seeking

to foreclose its interest in some of the IP and to have the Cooks’ “individual and

corporate owned claims transferred to the Cooks individually pre-petition” dismissed.

Id. at 175 (¶ 73). By filing this summary judgment motion, Wells Fargo allegedly

violated the automatic stay in the Cooks’ Chapter 11 bankruptcy.

Wells Fargo also objected to having the Cooks remain debtors-in-possession in

the bankruptcy proceeding. In July 2006, on motion by Wells Fargo, the bankruptcy

court appointed Linda Bloom Chapter 11 trustee for the Cooks’ estate. In March

2008 the court converted the Chapter 11 case to a Chapter 7 case.

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 By December 2006, Mr. Cook allegedly had reached an agreement with

Trustee Bloom that would have allowed the bankruptcy estate’s claims against Wells

Fargo and others to be litigated in the state court proceedings, led by Mr. Cook. But

the FAC asserts that Trustee Bloom “mysteriously and without prior notice” to

Mr. Cook’s counsel withdrew her consent to this arrangement on December 18, 2006.

Id. at 177 (¶ 86).

The FAC next describes three illegal fraudulent schemes allegedly perpetrated

against Mr. Cook by the defendants. To the extent these allegations concern his

abandoned RICO claims, they are irrelevant. It appears, however, that they may also

be intended to support his civil rights claims. Accordingly, we briefly describe them.

2. “Scheme One” (Complaint, ¶¶ 89 – 114)

In this first scheme, the defendants filed a “Stipulated Motion to Approve

Compromise of Controversy” (Motion to Approve) with the bankruptcy court.

Id. ¶ 96. As part of the compromise, Wells Fargo agreed to pay Trustee Bloom

$100,000 as a “bribe.” It was a curious sort of bribe, however, for the money

apparently was to be paid to the Cook bankruptcy estate rather than to Trustee Bloom

personally.

Trustee Bloom allegedly agreed to falsely affirm that the Cook bankruptcy

estate was the owner of the IP previously purchased by CBM, to confirm Wells

Fargo’s asserted lien interest in all of the IP, and to consent to lifting of the automatic

stay. With the stay lifted, Wells Fargo agreed to foreclose on all the IP and to give

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the IP to Scott Garrett. Trustee Bloom would then give Mr. Garrett control over the

Cooks’ shares in the Group. Mr. Garrett would elect himself an officer of the Group

and dismiss all of the claims of the Group and its subsidiaries against the defendants,

including himself. Trustee Bloom further agreed to dismiss all of the Cooks’

individually owned claims against Wells Fargo and Mr. Garrett. The net result would

be loss of the IP owned by CBM and the Cook bankruptcy estate and the loss of the

Cooks’ claims against the defendants, without any corresponding benefit to the Cook

bankruptcy estate.

3. “Scheme Two” (Complaint, ¶¶ 115 – 198)

Scheme One was to some degree thwarted after CBM filed an adversary

proceeding in the Cooks’ bankruptcy case. The bankruptcy court held a trial on

CBM’s allegations, which the FAC asserts “did not go well” for the defendants.

Id. at 184 (¶ 112). Failure to achieve their goals in the bankruptcy court allegedly

caused the defendants to hatch what the FAC describes as “Scheme Two.”

Scheme Two involved proceedings in New Mexico state court. The

defendants allegedly made misrepresentations to the state court concerning the

bankruptcy estate’s ownership of CBM’s IP, HCAN’s claims, and the Group and

HUSA’s defenses. On August 27, 2008, the state case was reassigned to the

Honorable Theodore C. Baca, who is named as a defendant in the FAC. The

appointment of Judge Baca coincided with the inception of what the complaint refers

to as “Scheme Three.”

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 4. “Scheme Three” (Complaint, ¶¶ 199 – 292)

Judge Baca allegedly “racially discriminated against [Mr.] Cook and denied

[Mr.] Cook his federally protected civil rights,” and the defendants “exploited the

prejudice of Judge Baca in intentionally denying [Mr. Cook] his civil rights,” and/or

“conspired with Judge Baca to deny [Mr. Cook] his civil rights.” Id. at 199 (¶¶ 199,

201-02). Mr. Cook allegedly provided Judge Baca with state court and bankruptcy

court orders “specifically giving the Cooks separate standing [to pursue claims and

defenses pertaining to the IP] and reiterating that grant in the state court action from

that of the Chapter 7 trustee to defend estate property in which the Cooks had an

interest,” and “reminding all that federal jurisdiction over estate owned claims was

still pending before the U.S. District Court.” Id. at 199-220 (¶ 204). He also filed

three motions “[t]o make sure Judge Baca, new to the case, understood the status of

the case.” Id. at 201 (¶ 209).

But at a hearing on February 18, 2009, “Judge Baca without notice to

[Mr.] Cook and without [Mr.] Cook having an opportunity to prepare, first heard a

motion Judge Baca had scheduled to hear on April 7, 2009 and then declared Cook

could not participate in the state court case.” Id. at 202 (¶ 214). Judge Baca then

entered judgment in favor of Wells Fargo, permitting Wells Fargo to foreclose on the

IP and dismissing the claims and defenses asserted by the Group and its subsidiaries,

HCAN, CBM, and the Cooks and their bankruptcy estate. These actions denied

Mr. Cook his fundamental rights to due process and a fair hearing, along with his

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equal civil rights to protect his property interest and “to have equal access to and be

heard in a place of public accommodation,” and his right to a fresh start under the

Bankruptcy Code. Id. (¶ 215).

The FAC further alleges that Judge Baca denied Mr. Cook’s request to enter

formal findings of fact and conclusions of law in support of his orders. Wells Fargo

also filed a motion seeking injunctive relief in the form of filing restrictions against

Mr. Cook. Judge Baca converted the TRO hearing into a hearing on a preliminary

injunction—which resulted in an order of permanent filing restrictions—without

notice to Mr. Cook. In entering the filing restriction order, the FAC asserts,

Judge Baca acted in collusion with and/or in privity with the interests of Wells Fargo

and its attorneys and in collusion with or supported by Garrett et al. and their

attorneys, in depriving Mr. Cook of his constitutional rights.4

After the order of filing restrictions was entered, Mr. Cook sought an

extraordinary writ from the New Mexico Supreme Court. The New Mexico Supreme

Court denied his petition. He then unsuccessfully attempted to remove the state court

action to federal district court. See Garrett v. Cook, 652 F.3d 1249, 1257 (10th Cir.

2011) (upholding award of attorney’s fees and costs to Wells Fargo and Garrett

Group based on untimely and objectively unreasonable notice of removal).

4
The district court dismissed the FAC’s claims against Judge Baca based on
absolute judicial immunity.

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 5. Securities Law Claims (Count VII)

The FAC also includes a claim for “fraud, interference in contract [sic] &

violations of securities act & Nevada securities laws . . . and slander of title,

violations of N[ew] M[exico] securities law & unfair trade practices.” R., Vol. 1

at 228. This claim seeks “to clear title to and the exercised control over [sic]

securities for which [sic] are owned by Plaintiff individually, and for which Plaintiff

has the assigned right by [Group and CBM] to pursue actions that diminish and or

affect securities of Group and CBM[.]” Id. at 229 (¶ 384).

The Cooks allegedly claimed certain shares of Group and CBM as exempt

personal property in their Chapter 11 bankruptcy. But Wells Fargo fraudulently

asserted in the bankruptcy proceedings that these shares had been pledged as

collateral to Wells Fargo. Wells Fargo also claims to hold a stock certificate for

1,720,000 shares in Group pledged as collateral, but the FAC asserts that this

certificate was cancelled long ago and that these shares were never actually pledged

to Wells Fargo. Wells Fargo allegedly also wrongfully asserts a security interest in

20,000 of the Cooks preferred shares in Group, and in one share of CBM common

stock.

The FAC asserts that Wells Fargo and Garrett et al. falsely asserted an interest

in these securities in state court proceedings. Through fraudulent misrepresentation,

Wells Fargo and Garrett obtained an injunction in state court preventing Group from

issuing additional shares and preventing CBM from completing its contract involving

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a merger with a publically-traded company, Galtech. Mr. Garrett purchased

restricted shares in Group and transferred these shares to the Garrett Trust without

permission from the Group’s Board of Directors, in violation of the Nevada securities

laws and federal securities statutes.

6. Disposition of Mr. Cook’s Post-Judgment Motions

After the district court dismissed all of Mr. Cook’s federal claims with

prejudice, and declined to exercise jurisdiction over his remaining state law claims,

he filed a motion to re-open and for reconsideration. In response, the district court

expanded on its reasoning in its previous order of dismissal. In particular, it provided

a detailed discussion of its reasons for rejecting Mr. Cook’s non-racially-based

discrimination claims, and explained why the state-court order of filing restrictions

did not deny Mr. Cook access to the courts. The district court also explained that it

had dismissed his claims with prejudice because his claims failed as a matter of law

and it would be futile to grant him leave to amend them.

Mr. Cook also filed a post-judgment motion for leave to amend the FAC, to

which he attached an 87-page proposed second amended complaint. He later filed a

revised proposed second amended complaint, also 87 pages long, purporting to make

several (undisclosed) corrections to the proposed second amended complaint, and a

“notice of errata and correction” again modifying his proposed second amended

complaint, both of which the district court explicitly stated it had considered in ruling

on his motion for leave to amend. R., Vol. 1 at 778. The district court carefully

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analyzed each of the claims in the proposed second amended complaint and

concluded that all of them would be subject to dismissal if the amendment were

allowed, and that the motion to amend should therefore be denied.

ANALYSIS

I. Jurisdictional Issues

The district court disposed of Mr. Cook’s federal claims on the merits,

concluding that they failed to state a claim. The Wells Fargo Defendants contend

that all or part of the complaint should have been dismissed, either under the

Rooker-Feldman doctrine or for lack of standing.

A. Rooker-Feldman Doctrine

In its dismissal order, the district court declined to consider whether the

Rooker-Feldman doctrine applied. Rooker-Feldman, however, “concerns a district

court’s subject-matter jurisdiction,” Lance v. Coffman, 549 U.S. 437, 439 n* (2007),

and must therefore be considered “before proceeding to the merits,” id. at 439.5

“Rooker-Feldman is a jurisdictional prohibition on lower federal courts

exercising appellate jurisdiction over state-court judgments.” Campbell v. City of

Spencer, 682 F.3d 1278, 1281 (10th Cir. 2012). It applies to “cases brought by

state-court losers complaining of injuries caused by state-court judgments rendered

5
But in its order denying leave to amend, the district court concluded that Count
I of the proposed second amended complaint, which asserted a claim that Judge Baca
violated Mr. Cook’s civil due process rights, would be barred by Rooker-Feldman.

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before the district court proceedings commenced and inviting district court review

and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 284 (2005). Rooker-Feldman prohibits “review of the proceedings

already conducted by the [state court] tribunal to determine whether it reached its

result in accordance with law.” Campbell, 682 F.3d at 1283 (internal quotation

marks omitted).

The defendants assert that Rooker-Feldman bars Mr. Cook’s complaints about

the state court’s October 14, 2009, injunctive order of filing restrictions. We need

only address one of Mr. Cook’s replies to this assertion, involving whether the order

of filing restrictions was “final” before he filed his suit in federal court.

“Rooker-Feldman applies only to suits filed after state proceedings are final.”

Guttman v. Khalsa, 446 F.3d 1027, 1032 (10th Cir. 2006). State proceedings

generally become final either after the highest state court has affirmed a judgment or

the time to appeal has expired. See id. at 1032 n.2. Wells Fargo argues that because

the time to appeal from the order of filing restrictions expired 30 days after the date it

entered, that order was “final” for Rooker-Feldman purposes when Mr. Cook filed his

suit in federal court.6

6
Mr. Cook did not appeal the filing restriction order within 30 days of its entry.
See N.M. Rule Ann. 12-201(A)(2) (requiring that notice of appeal be filed “within
thirty (30) days after the judgment or order appealed from is filed in the district court
clerk’s office.”). Instead, he filed a “Verified Petition for Extraordinary Writs and
Request for Stay” on December 14, 2009 with the New Mexico Supreme Court. The
New Mexico Supreme Court denied the petition without comment. Mr. Cook then
(continued)
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 We cannot agree with Wells Fargo’s argument. Generally speaking, the right

to appeal in New Mexico state court is restricted to final judgments and decisions.

See N.M. Stat. Ann. § 39-3-2 (1966) (“Within thirty days from the entry of any final

judgment or decision, any interlocutory order or decision which practically disposes

of the merits of the action, or any final order after entry of judgment which affects

substantial rights, in any civil action in the district court, any party aggrieved may

appeal therefrom to the supreme court or to the court of appeals, as appellate

jurisdiction may be vested by law in these courts.” (emphasis added)). Wells Fargo

fails to show that the order of filing restrictions constituted a “final judgment or

decision” within the meaning of this rule, and we have found no authority indicating

that the New Mexico courts would treat it as such. Thus, it does not appear that a

final judgment had been entered in the New Mexico state court litigation at the time

Mr. Cook filed this proceeding. We therefore conclude that the Rooker-Feldman

filed an additional pleading with the New Mexico Supreme Court in which he
requested additional time to file his notice of appeal. It does not appear that
additional time was granted. See Wells Fargo Aplee. Br. at 23 (“[T]he time for
Mr. Cook to appeal the injunction was not tolled and has expired.” (emphasis
added)).

On June 20, 2011, Mr. Cook filed a notice of appeal to the New Mexico Court
of Appeals from various orders entered in the (now apparently final) state court
litigation. Among the state district court orders which he purported to appeal was the
order of filing restrictions of October 14, 2009. See “Appellant’s Docketing
Statement,” Cook v. Wells Fargo Bank, N.A., No. 31419, at 6 (N.M. Ct. App. Aug.
15, 2011) (attached to Wells Fargo Aplee. Br. as “Exhibit A”).

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doctrine does not apply to Mr. Cook’s claims concerning the order of filing

restrictions.7

B. Standing

As standing is also jurisdictional, we must additionally determine whether

Mr. Cook had standing to assert his claims before examining the merits. Wells Fargo

argues that Mr. Cook lacks standing to assert any of the claims contained in the FAC,

because these claims are the property of his bankruptcy estate and can only be

asserted by the Chapter 7 trustee. In addressing this issue, we must also consider

Wells Fargo’s argument that the Tenth Circuit Bankruptcy Appellate Panel (BAP)

has already resolved the issue of standing against Mr. Cook and that the BAP’s

decision concerning standing is entitled to preclusive effect in this appeal.

1. Preclusive Effect of BAP Decision

Mr. Cook appealed to the BAP after the bankruptcy court denied his motions

for sanctions against Wells Fargo and Garrett for alleged violations of the automatic

7
The injunctive order of filing restrictions against Mr. Cook could potentially
be viewed as separately appealable under the “collateral order” exception to the final
judgment rule. See Carrillo v. Rostro, 845 P.2d 130, 136-37 (N.M. 1992)
(recognizing collateral order doctrine). Whether an appealable collateral order
becomes “final” for Rooker-Feldman purposes when entered, after expiration for the
time for taking a collateral appeal from such an order, and even before a final
judgment has entered in the state court action, poses an interesting question. But we
need not address this issue, for we have significant doubt that the New Mexico courts
would classify the order of filing restrictions as an immediately appealable collateral
order. The New Mexico courts apply the collateral order doctrine in only very
limited circumstances. See Williams v. Rio Rancho Pub. Schs., 195 P.3d 879, 882
(N.M. App. 2008).

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stay. In re Cook, Nos. NM-11-082, 04-17704, 2012 WL 1356490, at *1, 3 (10th Cir.

BAP Apr. 19, 2012). The bankruptcy court had determined that “[Mr.] Cook lacked

standing to bring the stay violations motions because causes of action for stay

violations are estate property and can only be asserted by the trustee[.]” Id. at 3. On

appeal, the BAP rejected Mr. Cook’s arguments that (1) the trustee’s notice of

abandonment, filed July 1, 2009, conferred standing on Mr. Cook to seek sanctions

for the alleged stay violations; and (2) he possessed standing to bring the motion in

any event under his claim of exemption and under a Bankruptcy Code provision

concerning damages for violations of the automatic stay, see 11 U.S.C. § 362(k).

Cook, 2012 WL 1356490, at *4-*10. The BAP concluded that “[Mr.] Cook suffered

no injury to a legally protected interest fairly traceable to the Bank’s or Garrett’s

actions” in allegedly violating the stay, and it therefore upheld the bankruptcy court’s

decision denying standing as to those alleged violations. Id. at *10.

A decision concerning standing may be entitled to preclusive effect in a

subsequent proceeding. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218-19

(10th Cir. 2006). Issue preclusion generally applies when four elements are satisfied:

(1) the issue previously decided is identical with the one presented in
the action in question, (2) the prior action has been finally adjudicated
on the merits, (3) the party against whom the doctrine is invoked was a
party, or in privity with a party, to the prior adjudication, and (4) the
party against whom the doctrine is raised had a full and fair opportunity
to litigate the issue in the prior action.

Park Lane Res. Ltd. Liab. v. U.S. Dep’t of Agric., 378 F.3d 1132, 1136 (10th Cir.

2004) (internal quotation marks omitted).

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 Mr. Cook supplies us with no reason to conclude that these elements have not

been satisfied here.8 We therefore conclude that he is collaterally estopped from

asserting that he has standing to assert his claims against the defendants involving

alleged violations of the automatic stay.

2. Other Standing Issues

Mr. Cook’s allegations concerning violations of the automatic stay, however,

comprise only a small part of the wrongs alleged in the FAC. Wells Fargo makes a

much broader standing argument. It contends that all of the causes of action asserted

in the FAC belong to the bankruptcy estate and can therefore only be pursued, if at

all, by the Chapter 7 trustee.

If Wells Fargo is correct in its assertion that all the claims asserted in the FAC

belong to the bankruptcy estate, we agree with its assertion that Mr. Cook lacks

standing to pursue them. See, e.g., Turner v. Cook, 362 F.3d 1219, 1225-26 (9th Cir.

2004) (denying standing to debtor to pursue Fair Debt Collection Practices Act,

RICO, and state law claims, where such claims belonged to the estate and

bankruptcy trustee had been appointed for the estate). See also Cable v. Ivy Tech

8
Mr. Cook has appealed the above-mentioned BAP decision to this court. Cook
v. Wells Fargo Bank, No. 12-2100. Notwithstanding Mr. Cook’s assertions to the
contrary, the pendency of the appeal does not strip the BAP’s decision of preclusive
effect. See 18A Charles Alan Wright, Arthur R. Miller et al., Federal Practice &
Procedure § 4433 (2d ed. 1981) (“[I]t is . . . held in federal courts that the preclusive
effects of a lower court judgment cannot be suspended simply by taking an appeal
that remains undecided.”); Phelps v. Hamilton, 122 F.3d 1309, 1318 (10th Cir. 1997)
(stating general rule).

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State Coll., 200 F.3d 467, 472 (7th Cir. 1999) (“In [Chapter 7] liquidation

proceedings, only the trustee has standing to prosecute or defend a claim belonging to

the estate.”); 11 U.S.C. § 323 (stating trustee is representative of estate, with capacity

to sue and be sued); Fed. R. Bankr. P. 6009 (“With or without court approval, the

trustee or debtor in possession may prosecute or may enter an appearance and defend

any pending action or proceeding by or against the debtor, or commence and

prosecute any action or proceeding in behalf of the estate before any tribunal.”).

The dispute here actually centers on two issues: whether Mr. Cook’s claims

became property of the estate by virtue of his bankruptcy filing, and if so whether the

trustee subsequently abandoned them to Mr. Cook, thus restoring his ability to pursue

them on his own behalf. We consider each of these issues in turn.

Wells Fargo attempts to reduce all of Mr. Cook’s claims “seeking redress for

alleged constitutional and civil rights violations” to an attempt to “reverse the state

court judge’s rejection of Mr. Cook’s contention that Wells Fargo Bank’s security

interest in Hydroscope Canada, Inc’s IP was void because Wells Fargo Bank

allegedly breached a forbearance agreement in 2001.” Wells Fargo Aplee. Br. at 15.

Wells Fargo contends that all of the claims flowing from this alleged injury

asserted in the FAC belong to the estate, because they either (1) had accrued at the

time the Cooks filed their bankruptcy petition; (2) were “sufficiently rooted in the

pre-bankruptcy past” to be considered part of the estate; or (3) accrued post-petition

and involved an injury to the bankruptcy estate. Id.

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 Filing a petition for bankruptcy creates a bankruptcy estate. 11 U.S.C.

§ 541(a). This estate comprises property, broadly defined to include “all legal or

equitable interests of the debtor in property as of the commencement of the case.”

Id. § 541(a)(1) (emphasis added). Under this rule, “[p]re-petition causes of action are

part of the bankruptcy estate and post-petition causes of action are not.” Witko v.

Menotte (In re Witko), 374 F.3d 1040, 1042 (11th Cir. 2004).

Certain claims advanced in the FAC clearly belong to Mr. Cook’s

bankruptcy estate. Claims concerning Wells Fargo’s alleged failure to execute the

non-disturbance agreement, for example, had certainly accrued at the time the Cooks

filed their bankruptcy petition. Other claims, however, are less clearly property of

the estate. The FAC asserts that some of Mr. Cook’s claims involve property that is

exempt or never became part of the bankruptcy estate. Also, the FAC contains

numerous allegations concerning conspiracies against Mr. Cook’s interests that are

based on events occurring after the Cooks filed their petition.

We have noted Wells Fargo’s assertion that these claims should nevertheless

be considered part of Mr. Cook’s bankruptcy estate because they are “sufficiently

rooted in the pre-bankruptcy past.” Property that a debtor acquires after the filing of

bankruptcy will be considered part of the estate if it is “sufficiently rooted in the

pre-bankruptcy past that it should be considered to have accrued to the debtor’s estate

prior to the bankruptcy filing. Segal v. Rochelle, 382 U.S. 375, 380 (1966).

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 This doctrine applies, for example, in cases where the debtor obtains a

contingent interest in property prior to the bankruptcy filing that only matures after

the filing. Thus we have held that an employee’s stock appreciation rights were part

of his bankruptcy estate, even though their vesting was contingent on post-petition

events, where the contingent obligation itself arose prior to the bankruptcy filing.

Parks v. Dittmar (In re Dittmar), 618 F.3d 1199, 1207-10 (10th Cir. 2010).

Here, by contrast, the FAC alleges tortious actions by the defendants in

furtherance of conspiracies that allegedly arose after the Cooks filed their

bankruptcy. In particular, the FAC accuses the prior Chapter 7 bankruptcy trustee of

participating in a conspiracy involving misconduct committed in the Cooks’

bankruptcy proceedings. Allegations of the trustee’s participation in the conspiracy

make it particularly incongruous to assert that the trustee, rather than Mr. Cook, was

the only party with standing to assert such claims. Cf. Casey v. Grasso (In re

Riccitelli), 320 B.R. 483, 492 & n.18 (Bankr. D. Mass. 2005) (stating that claim by

debtor as against his own estate was particularly unlikely to be considered property

of the estate).

In any event, these claims plainly arose after the bankruptcy proceedings were

filed. Though, as Wells Fargo argues, the alleged conspiracies involved property that

was the subject of dispute between the parties prior to the bankruptcy filing, the

alleged constitutional injuries did not exist prior to the filing. Simply put, Mr. Cook

alleges harms to his constitutional rights that he suffered post-bankruptcy, not prior

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to or contemporaneous with the bankruptcy filing. See Witko, 374 F.3d at 1043

(holding legal malpractice claim against debtor’s attorneys that arose when divorce

proceedings concluded against debtor, which occurred several months after he filed

his bankruptcy petition, was not part of bankruptcy estate). These claims were not

“sufficiently rooted in the pre-bankruptcy past,” and are not part of the estate.

We turn next to Mr. Cook’s counter-argument that none of his claims belongs

to his bankruptcy estate, because the trustee abandoned them to him. A formal

abandonment, including compliance with the notice requirements of the Bankruptcy

Code, is required to vest the right to pursue the estate’s causes of action in the debtor.

See Turner, 362 F.3d at 1226. As we noted previously, the BAP determined that no

such abandonment had occurred in Mr. Cook’s case. Cook, 2012 WL 1356490,

at *6-7. The BAP’s decision on this point is entitled to preclusive effect, and we

therefore reject Mr. Cook’s argument.

3. Conclusion

Mr. Cook’s claims in the FAC are not barred by the Rooker-Feldman doctrine.

But some aspects of his claims asserted in the FAC are barred by his lack of standing.

He lacks standing to assert claims relative to alleged violations of the automatic stay

in bankruptcy, and any other claims that are part of the bankruptcy estate. The

district court should have dismissed these portions of Mr. Cook’s claims without

prejudice for lack of standing. See Brereton, 434 F.3d at 1219-20.

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 II. Merits Issues

We turn to Mr. Cook’s challenge to the district court’s determination on the

merits that the FAC did not allege any cognizable federal claims against the

defendants.

This court reviews de novo a district court’s dismissal for failure to state a

claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Khalik v. United Air

Lines, 671 F.3d 1188, 1190-91 (10th Cir. 2012). Accordingly, all well-pleaded

allegations of the complaint are accepted as true and viewed in a light most favorable

to the nonmoving party. Federal Rule of Civil Procedure 8 requires a pleading to

contain a “short and plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a)(2). To survive dismissal under Rule 12(b)(6) for

failure to state a claim, plaintiffs must “nudge[ ] their claims across the line from

conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

While factual assertions are taken as true, legal conclusions are not. A plaintiff is

“not required to set forth a prima facie case for each element, [but] is required to set

forth plausible claims.” Khalik, 671 F.3d at 1193. “A claim has facial plausibility

when the [pleaded] factual content . . . allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). Because Mr. Cook filed his complaint pro se, we construe

his pleadings liberally. See Bear v. Patton, 451 F.3d 639, 641 (10th Cir. 2006).

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 A. Alleged Violation of Mr. Cook’s Constitutional Rights

Mr. Cook contends that he alleged sufficient facts to state one or more claims

for violation of his constitutional rights. He asserts that the defendants’ actions

deprived him of his right of access to the courts, his right to due process, and his

rights under the First and Fourteenth Amendments. See Aplt. Opening Br. at 7.

Seeking a remedy for these alleged violations, he claims to have stated claims for

relief under 42 U.S.C. §§ 1983 and 1986. See Aplt. Opening Br. at 3, 10.

“To state a claim under § 1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show that the

alleged deprivation was committed by a person acting under color of state law.”

West v. Atkins, 487 U.S. 42, 48 (1988). With the exception of Judge Baca, the

defendants Mr. Cook has sued are all private parties. “Private persons may be said to

act under color of state law if they are jointly engaged with state officials in the

challenged action. But private conduct that is not fairly attributable to the State is

simply not actionable under § 1983, however discriminatory or wrongful the conduct

is.” Hall v. Witteman, 584 F.3d 859, 864 (10th Cir. 2009) (internal quotation marks

and citations omitted).

Mr. Cook’s allegations of state action rest on an alleged conspiracy or at least

substantial cooperation between Judge Baca and the other defendants. But “[w]hen a

plaintiff in a § 1983 action attempts to assert the necessary ‘state action’ by

implicating state officials or judges in a conspiracy with private defendants, mere

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conclusory allegations with no supporting factual averments are insufficient; the

pleadings must specifically present facts tending to show agreement and concerted

action.” Hunt v. Bennett, 17 F.3d 1263, 1268 (10th Cir. 1994) (internal quotation

marks omitted). “In fact, [this] standard is even stricter where the state officials

allegedly involved in the conspiracy are immune from suit, as are the state court

judges.” Id. Having reviewed the FAC, we conclude that its conclusory allegations

of a conspiracy fail to demonstrate agreement and concerted action between Judge

Baca and the other defendants to deprive Mr. Cook of his constitutional rights. We

therefore affirm the dismissal of this claim.

Mr. Cook also asserts a claim for “failure to protect” under 42 U.S.C. § 1986.

In order to establish a § 1986 claim, a plaintiff must demonstrate that he was the

subject of a conspiracy under 42 U.S.C. § 1985 from which the defendants failed to

protect him. See Taylor v. Nichols, 558 F.2d 561, 568 (10th Cir. 1977). Mr. Cook

asserts that the FAC pleads a violation of § 1985(3). But § 1985(3) only reaches

conspiracies “motivated by some racial, or perhaps otherwise class-based, invidiously

discriminatory animus.” Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993)

(internal quotation marks omitted).

Although Mr. Cook has abandoned his allegations of a race-based conspiracy,

he asserts that Judge Baca and the other defendants conspired to violate his

“class-based” rights as a pro-se debtor in bankruptcy. But these allegations fall short

of stating a claim under either § 1985 or § 1986. See, e.g., United Bhd. of Carpenters

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& Joiners of Am. v. Scott, 463 U.S. 825, 837 (1983) (stating § 1985(3) was not

intended “to reach conspiracies motivated by bias towards others on account of their

economic views, status, or activities.”). The district court therefore properly

dismissed his § 1986 claim (along with any corresponding § 1985 claim the FAC

might be construed to raise).

B. Alleged Violation of SEC Rule 10b-5

Count VII of the FAC includes various securities-related claims, including an

alleged violation of SEC Rule 10b-5. We note that Mr. Cook plainly lacks standing

to make some of his assertions connected with this claim, for example when he

claims that “[t]he Cooks, CBM, Group and its subsidiaries, HCAN, the estate and all

creditors of the estate, all interests represented by Plaintiff [sic], suffered substantial

damages by [the defendants’] false allegations of interest in certified securities made

by [Wells Fargo] and by Scott Garrett in state court proceedings.” R., Vol. 1 at 233

(¶ 420) (emphasis added).

To the extent Mr. Cook asserts rights belonging to himself alone, and not part

of his bankruptcy estate, the district court properly dismissed his claims. The district

court concluded that the FAC failed to state a claim for violation of Rule 10b-5,

because it failed to allege that the defendants had made any fraudulent statement or

misrepresentations in connection with the sale of a security. In order to state a claim

for private securities fraud under Rule 10b-5, a plaintiff must allege:

(1) the defendant made an untrue or misleading statement of material
fact, or failed to state a material fact necessary to make statements not

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 misleading; (2) the statement complained of was made in connection
with the purchase or sale of securities; (3) the defendant acted with
scienter, that is, with intent to defraud or recklessness; (4) the plaintiff
relied on the misleading statements; and (5) the plaintiff suffered
damages as a result of his reliance.

In re Level 3 Commc’ns, Inc. Sec. Litig., 667 F.3d 1331, 1333 (10th Cir. 2012)

(emphasis added) (internal quotation marks omitted).

Mr. Cook argues that the FAC met this “purchase or sale” pleading

requirement because it contained allegations that misrepresentations by Wells Fargo

and Garrett et al. interfered with CBM’s merger into Galtech as a public entity.

See Aplt. Opening Br. at 11. We will assume that a defendant’s alleged misstatement

that interfered with a prospective merger potentially involving a transfer of shares

was “made in connection with the purchase or sale of securities.” Level 3, 667 F.3d

at 1333. See, e.g., Realmonte v. Reeves, 169 F.3d 1280, 1285 (10th Cir. 1999)

(“When an exchange of shares facilitates the merger of two separate and distinct

corporate entities, that exchange constitutes a ‘purchase or sale’ for purposes of

bringing a Rule 10b-5 action.”). If this assumption is correct, we cannot affirm on

the basis relied upon by the district court.

We detect another fatal deficiency in the FAC’s Rule 10b-5 claim, however.

Nowhere in this claim does the FAC assert that the plaintiff, Mr. Cook, relied on any

of the allegedly misleading statements in connection with a sale or purchase of a

security, or that he “suffered damages as a result of his reliance.” Level 3, 667 F.3d

at 1333. Instead, it alleges that others, including members of the public, relied on the

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alleged misstatements, thus affecting Mr. Cook’s interests. For this reason, the FAC

fails to plead the necessary reliance elements of a 10b-5 claim, and the district court

therefore properly dismissed the claim.

C. Leave to Amend Complaint

Mr. Cook raises two issues concerning his attempts to file an amended

complaint after the district court dismissed the FAC. First, he challenges the district

court’s denial of his general request for leave to amend contained in his motion to

re-open and for reconsideration. Second, he challenges the district court’s failure to

grant his motion for leave to file his proposed second amended complaint. In our

view, these two challenges collapse into one: whether the district court should have

granted his motion for leave to amend to file the 87-page second amended complaint.

In other words, Mr. Cook’s motion for leave to amend, accompanied by a specific

filing of a proposed amended complaint, superseded his earlier, general request that

he be granted leave to amend.9

We ordinarily review the denial of leave to amend for abuse of discretion, but

“[w]hen denial is based on a determination that amendment would be futile, our

review for abuse of discretion includes de novo review of the legal basis for the

9
The district court concluded that the motion for leave to amend was moot
because it had previously denied Mr. Cook’s motion to re-open the case. See R.,
Vol. 2 at 778. It nevertheless addressed the claims in the proposed second amended
complaint. See id. Mr. Cook’s motion for leave to amend could be viewed as
implicitly requesting that the case be reopened in order for the amended complaint to
be filed. We therefore detect no jurisdictional problem arising from mootness here.

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finding of futility.” Hertz v. Luzenac Grp., 576 F.3d 1103, 1117 (10th Cir. 2009)

(internal quotation marks omitted). Here, the district court patiently and thoroughly

examined each of the allegations of Mr. Cook’s proposed second amended complaint,

and determined that if filed, they would be subject to dismissal. R., Vol. 2 at 774-84.

We agree, and affirm the order of the district court denying leave to amend the FAC.

D. Alleged Denial of Access to Courts

Finally, Mr. Cook contends that the district court denied him his First

Amendment right to access to the courts, along with his Fourteenth Amendment right

to equal treatment and due process. He primarily complains about actions of the state

courts and makes only conclusory allegations of violations of his rights by the district

court. His allegations are meritless.

CONCLUSION

The judgment and challenged orders of the district court are affirmed with the

exception of those portions of the order dismissing Mr. Cook’s First Amended

Complaint that should have been entered without prejudice. We remand in part for

further proceedings consistent with this order and judgment modifying those portions

of the dismissal order to a dismissal without prejudice. Mr. Cook’s amended motion

for sanctions is denied.

Entered for the Court

David M. Ebel
Circuit Judge

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