Switzer v. Coan

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 16 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

DUANE R. SWITZER,

Plaintiff-Appellant,

v. No. 00-1400

PATRICIA A. COAN; ZITA L.
WEINSHIENK; WALKER D.
MILLER; THOMAS LEE
STRICKLAND; STEPHANIE K.
SEYMOUR; STEPHEN HALE
ANDERSON; BOBBY R. BALDOCK;
MARY BECK BRISCOE; WADE
BRORBY; DAVID M. EBEL;
ROBERT H. HENRY; PAUL J.
KELLY, JR.; CARLOS F. LUCERO;
MICHAEL R. MURPHY; JOHN C.
PORFILIO; DEANELL REECE
TACHA; JAMES E. BARRETT;
WILLIAM J. HOLLOWAY, JR.;
JAMES K. LOGAN; MONROE G.
MCKAY; ROBERT H.
MCWILLIAMS; PATRICK FISHER;
JOHN K. KLEINHEKSEL, and other
unknown staff attorneys and law
clerks,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 99-D-1705)
Submitted on the briefs:

Duane R. Switzer, Pro se.

Richard B. Caschette, First Assistant United States Attorney, Michael E. Hegarty,
Assistant United States Attorney, Denver, Colorado, for Defendants-Appellees.

Before HENRY , BALDOCK , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.

Following adverse trial and appellate rulings in other cases, see generally

Switzer v. Berry , 198 F.3d 1255, 1257 (10th Cir. 2000); Switzer v. Jones ,

No. 99-1508, 2000 WL 1289204 (10th Cir. Sept. 13, 2000) (unpub.), plaintiff

filed suit against a long list of magistrate, district, and appellate judges of this

circuit; the circuit’s clerk, former chief staff attorney, unspecified staff attorneys

and law clerks; and a former U. S. Attorney for Colorado. Plaintiff alleged he

“is the victim of a denial of meaningful access to the courts and [an] obstruction

of justice conspiracy perpetrated by the defendants because of his status as a

pro se litigant in that Orders and Opinions issued by the defendant Article III

judges are actually authored by the defendant staff attorneys and law clerks and

signed by the defendant Article III judges who have not bothered to read what

their clerks and staff attorneys have written.”

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 Plaintiff characterized the alleged conduct as unconstitutional and criminal,

and formally pled two claims for relief: one designated “fraud on the court” and

the other a violation of the Racketeer Influenced and Corrupt Organizations Act

(RICO). He did not seek damages, but concluded his pleadings with numerous

requests for equitable relief and a blanket demand for the recusal of all Tenth

Circuit appellate and district judges. 1
The district court dismissed the action,

holding that the complaint failed to state a claim upon which relief could be

granted and that the inadequacy could not be cured by amendment. We affirm,

though with some modification in rationale. 2

One significant complication here is that the proper legal characterization

of the first claim framed by the pleadings is far from clear. It has some features

indicative of the “independent action to . . . set aside a judgment for fraud on the

1
As for recusal, there are no pertinent, particularized allegations of bias, and
we have already determined on a prior appeal by plaintiff that “a lawsuit brought
indiscriminately against all the active and senior judges on the Tenth Circuit
Court of Appeals does not operate automatically to render the court unable to hear
and decide an appeal brought by the plaintiff/petitioner.” Switzer , 198 F.3d at
1258 (following Tapia-Ortiz v. Winter , 185 F.3d 8, 10 (2d Cir. 1999)); accord
Bolin v. Story , 225 F.3d 1234, 1238-39 (11th Cir. 2000). “Thus, neither this court
nor this panel [nor the district judge] is disqualified from hearing and resolving
this [case].” Switzer , 198 F.3d at 1258.
2
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.

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court” expressly preserved in Rule 60(b) 3
: it is formally designated “fraud on the

court” and includes allegations of such fraud; one of the specific requests for

relief is that the court set aside an adverse judgment; and the complaint references

several precedents involving Rule 60(b) actions. But, it also has several features

appropriate, rather, to a Bivens 4 claim: it encompasses specific allegations of

unconstitutional conduct; the federal officers implicated in the conduct are named

defendants against whom relief is sought; the complaint invokes federal question

jurisdiction pursuant to 28 U.S.C. § 1331, a jurisdictional basis necessary for

a Bivens claim but not for a Rule 60(b) action; 5
and the relief requested includes

a wide range of injunctive and declaratory remedies clearly beyond the limited

scope of a Rule 60(b) action “to set aside a judgment.” The distinction between

a Rule 60(b) action and a Bivens claim is not academic. Elements of the claims,

specificity-of-pleading rules, standards of review, affirmative defenses, and

available relief all differ significantly.

3
For ease of reference we refer to this as a “Rule 60(b) action.”
4
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics ,
403 U.S. 388 (1971).
5
The Supreme Court recently reaffirmed that Rule 60(b) actions “may be
regarded as ancillary to the prior suit, so that the relief may be granted by the
court which made the decree in that suit.” United States v. Beggarly , 524 U.S.
38, 46 (1998) (quoting Pac. R.R. of Mo. v. Missouri Pac. R. Co. , 111 U.S. 505,
522 (1884)). Thus, there is no need for an independent basis for the district
court’s jurisdiction. See id.

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 When the substance of a legal claim is otherwise present, this court has

indicated that “confusion of various legal theories,” a technical pleading error,

should not be dispositive in pro se cases. Hall v. Bellmon , 935 F.2d 1106, 1110

(10th Cir. 1991). Consequently, our disposition of the fraud on the court

allegations will separately address the two distinct legal claims identified above.

Rule 60(b) Action

We review the disposition of a Rule 60(b) action for fraud on the court

under an abuse of discretion standard. See Robinson v. Audi Aktiengesellschaft ,

56 F.3d 1259, 1267 (10th Cir. 1995) ; Bulloch v. United States, 763 F.2d 1115,

1122 (10th Cir. 1985) (en banc). As explained below, the district court’s analysis

of the legal insufficiency of this claim is correct and should therefore be affirmed.

And, for reasons independent of those relied upon by the district court, we affirm

its ruling that amendment of the pleadings should not be allowed.

A. Dismissal of Claim

This court has adopted the following definition of fraud on the court:

Fraud on the court . . . is fraud which is directed to the judicial
machinery itself and is not fraud between the parties or fraudulent
documents, false statements or perjury. . . . It is thus fraud where the
court or a member is corrupted or influenced or influence is
attempted or where the judge has not performed his judicial
function –thus where the impartial functions of the court have been
directly corrupted.

Robinson , 56 F.3d at 1266 (citation and quotation omitted, emphasis added).

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 The government’s brief could be read as suggesting that fraud on the court

requires an external influence brought to bear on the court. Plaintiff counters this

suggestion by referring to the emphasized portion of the above passage from

Robinson, which appears to contemplate a fraud on the court claim based on an

improper abdication or delegation of Article III authority by the judge.

Rather than focusing on the more nebulous aspects of a claim asserting

fraud on the court, the district court held that the pleadings lacked a specific and

essential allegation of intent. Relying upon the Robinson opinion, the district

court stated that plaintiff’s allegations “are simply too conclusory and vague to

support such a claim.” District Court Order at 4. In Robinson, this court clarified

that “‘fraud on the court,’ whatever else it embodies, requires a showing that one

has acted with an intent to deceive or defraud[, i.e.,] . . . a showing of conscious

wrongdoing–what can properly be characterized as a deliberate scheme to

defraud–before relief from a final judgment is appropriate under the Hazel-Atlas [6]

standard.” 56 F.3d at 1267. The district court properly resolved that the

complaint fails to allege the fraudulent intent necessary to support a Rule 60(b)

6
Hazel-Atlas Glass Co. v. Hartford-Empire Co. , 322 U.S. 238 (1944), is
cited in the Advisory Committee Note to the 1946 amendment of Rule 60(b) as an
illustration of the independent action preserved by the rule.

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action. 7 The district court thus did not abuse its discretion in dismissing the

claim.

B. Futility of Amendment

The district court went on to reject the possibility of curative amendment,

saying:

The Court will take judicial notice of the fact that the district court
and circuit judges of the Tenth Circuit first review, approve and sign
all Orders and Rulings before they are entered in their respective
cases, including matters brought by pro se litigants. Accordingly,
any effort to show that the federal courts of the Tenth Circuit have
improperly delegated all of their judicial authority to their clerks
would be futile. Therefore, permitting Plaintiff to amend his
Complaint would be pointless.

District Court Order at 5. While we certainly would not gainsay this observation

regarding judicial practice in the Tenth Circuit, we also do not rely on it as a

conclusive fact in this case.

Plaintiff asserts that judges in this circuit have issued decisions which they

have not read. While the district judge may personally know this allegation is

false, such knowledge is not a proper basis for judicial notice. United States v.

Lewis , 833 F.2d 1380, 1385-86 (9th Cir. 1987); United States v. Sorrells ,

714 F.2d 1522, 1527 n.6 (11th Cir. 1983); Virgin Islands v. Gereau , 523 F.2d

7
It has been held that the strict specificity requirements for pleading fraud
under Fed R. Civ. P. 9 apply to fraud on the court claims. See Madonna v. United
States , 878 F.2d 62, 63, 66 (2d Cir. 1989). We need not rely on Rule 9 here, as
plaintiff has failed to state a claim under Fed. R. Civ. P. 12(b)(6) in any event.

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140, 147-48 (3d Cir. 1975). “A judicially noticed fact must be one not subject to

reasonable dispute in that it is either (1) generally known within the territorial

jurisdiction of the trial court or (2) capable of accurate and ready determination

by resort to sources whose accuracy cannot be reasonably questioned.”

Fed. R. Evid. 201(b). The confidential, internal workings of the federal judiciary

do not seem to fall into either category: they are inherently outside the realm of

general knowledge and there are no ready sources for incontestable confirmation

of the facts in question here. 8

Plaintiff, however, has never challenged the district court’s futility of

amendment analysis, nor does he argue even now that he could have corrected the

deficiency in his pleadings by amendment. This is not a mere technical default.

If the plaintiff is unable or unwilling to hazard the allegation that the defendants

acted with fraudulent intent, particularly after the district court identified this

missing element, then he stands on his initial pleading, which is deficient.

Indeed, even if plaintiff were to now argue that he should have been allowed to

amend his complaint to correct its deficiencies, such a contention would be

8
Contestability and disputation are critical considerations here. We do not
mean to suggest that a court could never take judicial notice of its own internal
procedures. The problem is that the procedures in question here entail the central
allegation of impropriety in the case, and the judicial officers accused of that
impropriety would be both the conduit and source of the confidential information
vindicating those procedures.

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properly rejected because “it was incumbent upon [him] to seek leave from the

district court to make the attempt” after dismissal of his action below. By not

doing so, he has “elected to appeal the case as it stood.” Dahn v. United States ,

127 F.3d 1249, 1252 (10th Cir. 1997); see also Calderon v. Kansas Dep’t of

Social & Rehab. Servs. , 181 F.3d 1180, 1185-87 (10th Cir. 1999) (reaffirming

holding in Glenn v. First Nat’l Bank , 868 F.2d 368, 369-71 (10th Cir. 1989), that

party cannot object on appeal to lack of opportunity to cure defective pleading

when curative amendment was not properly sought in district court).

Bivens Claim

A. Sufficiency of the Pleadings

In contrast to the deference appropriate in fraud on the court actions, we

review the dismissal of a Bivens claim de novo. Oxendine v. Kaplan , 241 F.3d

1272, 1275 (10th Cir. 2001). Plaintiff’s allegations of unconstitutional delegation

of Article III authority to law clerks and staff attorneys in pro se proceedings

would appear to state such a claim.

The U.S. Attorney attempts to bolster the district court’s disposition by

citing several cases generally describing with approval various proper uses of law

clerks. 9 See, e.g. , Fredonia Broadcasting Corp. v. RCA Corp. , 569 F.2d 251, 256

9
The U.S. Attorney also argues that plaintiff’s allegations implicate judicial
or quasi-judicial immunity shielding all or most of the defendants. Invocation of
(continued...)

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(5th Cir.), cert. denied , 439 U.S. 859 (1978); Dorsey v. Kingsland , 173 F.2d 405,

413 (D.C. Cir.), rev’d on other grounds , 338 U.S. 318 (1949); Geras v. Lafayette

Display Fixtures, Inc. , 742 F.2d 1037, 1047 (7th Cir. 1984) (dissent); Oliva v.

Heller , 670 F. Supp. 523, 526 (S.D.N.Y. 1987), aff’d , 839 F.2d 37 (2d Cir. 1988).

Plaintiff’s allegations of wrongdoing, however, go beyond the facts in those cases

by effectively alleging that the judges wholly delegate their official duties and

assign their powers to staff. At this stage of the proceedings, these allegations

must be accepted as true and construed in the light most favorable to plaintiff.

Oxendine , 241 F.3d at 1278.

B. Availability of an Adequate Legal Remedy

In Bolin v. Story , 225 F.3d 1234 (11th Cir. 2000), the plaintiffs’ allegations

were similar to those presented here: “the defendant federal judges do not READ

9
(...continued)
this defense raises a thorny legal question, as the complaint seeks equitable relief.
The Supreme Court held in Pulliam v. Allen , 466 U.S. 522 (1984), that judicial
immunity does not insulate state judges from claims for equitable relief under
42 U.S.C. § 1983, and it is unsettled whether the corresponding immunity
afforded federal judges in Bivens cases permits or precludes such claims.
Compare Mullis v. United States Bankr. Court for the Dist. of Nev. , 828 F.2d
1385, 1394 (9th Cir. 1987) (distinguishing Pulliam and extending federal judicial
immunity to preclude equitable Bivens claim) and Bolin v. Story , 225 F.3d 1234,
1240-42 (11th Cir. 2000) (following Mullis , but noting issue “is a closer one than
it would seem at first blush”), with Scruggs v. Moellering , 870 F.2d 376, 378
(7th Cir. 1989) (finding Mullis immunity analysis to be “of doubtful merit,”
though not deciding issue). We express no opinion on the issue and rely instead
for our disposition on uncontroversial principles specifically barring the equitable
relief sought here.

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anything submitted by pro se litigants, thereby defrauding them of the judgments

that are rightfully theirs;” the “defendant district judge . . . had not read any of

[plaintiff’s earlier] § 2255 petition and that ‘predictably’ his arguments will not

be read by Article III judges [on appeal] either;” and “someone else . . . is writing

[the district judge’s] opinions for him.” Id. 1236-37. Based on these allegations,

the plaintiffs in Bolin , as the plaintiff here, sought declaratory and prospective

injunctive relief under Bivens for the alleged wrongdoing in the earlier cases.

In addition to applying judicial immunity, the court in Bolin noted, as an

alternative basis to affirm dismissal, that the earlier proceedings had provided

adequate remedial process through appellate review or an extraordinary writ,

thereby precluding equitable relief in the subsequent civil rights case. 10
Id.

at 1243. In similar Bivens actions against federal judges, other courts have

rejected equitable claims on this basis as well. See, e.g. , Scruggs , 870 F.2d

at 378; Affeldt v. Carr , 628 F. Supp. 1097, 1102-03 (N.D. Ohio 1985). While this

court has not considered the matter in precisely this context, it has repeatedly

applied the general rule that equitable relief is available only in the absence of

adequate remedies at law. See Floyd v. IRS , 151 F.3d 1295, 1300 (10th Cir.

10
While the court in Bolin focused this analysis on claims brought against the
defendant prosecutors, it stated that absent judicial immunity, the defendant
judges would be entitled to dismissal for the same reason. 225 F.3d at 1243 n.7.

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1998); United States v. Madden , 95 F.3d 38, 39 (10th Cir. 1996); Winfield

Assocs., Inc. v. Stonecipher , 429 F.2d 1087, 1090-91 (10th Cir. 1970).

Plaintiff’s prayer for relief includes requests that the court vacate past

adverse decisions and allow him discovery. This relief was available through

such standard legal means as post-judgment motion, appeal, 11
mandamus,

prohibition, and/or certiorari review in the prior proceedings. We note in this

regard that the sources upon which petitioner loosely bases his allegations of

improper Article III delegation long predate the prior proceedings. 12

Plaintiff also requested less conventional remedies: that the court

(1) “prepare a Report to be sent to Congress addressing the depredations

complained of herein;” (2) “convene a grand jury . . . to investigate the criminal

depredations of the defendants named herein;” and (3) declare (a) that “the

practice of allowing law clerks and/or staff attorneys to do any research or draft

any opinion or part thereof in either the district or appellate courts [is]

unconstitutional” and (b) “that plaintiff, as a pro se litigant, is entitled to the same

consideration in adjudication of his actions as any lawyer from any ‘blue chip’

law firm.” These requests replicate, virtually verbatim, the relief sought by the

11
Appeal proceedings may also include rehearing, with or without an en banc
suggestion.
12
The sources are various published materials discussing judicial use of law
clerks and staff attorneys generally and adoption of practical screening procedures
to facilitate review of pro se cases in particular.

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plaintiff in Bolin . See 225 F.3d at 1237. Without addressing whether all such

relief could have been obtained in the prior legal proceedings, the Bolin court

broadly held that those proceedings provided a legal remedy sufficient to preclude

the subsequent pursuit of collateral equitable relief under Bivens . We note, in any

event, that barriers to these non-traditional remedies exist whether these remedies

are viewed in the context of the earlier proceedings or this Bivens action. 13

13
We doubt the request for a report to Congress about judicial use of staff
was cognizable in the prior proceedings. However, that is because we doubt there
is any mechanism in the federal courts for a private litigant to compel the
judiciary to subordinate itself to another branch of government in this manner.

We also need not decide whether a request to convene a grand jury was
cognizable in the prior proceedings. The authority to convene a grand jury “is
vested in the District Court [and] [i]ts exercise of its discretion is not reviewable
on appeal.” Korman v. United States , 486 F.2d 926, 933 (7th Cir. 1973) (quoting
In re A & H Transp., Inc. , 319 F.2d 69, 71 (4th Cir. 1963)). And, plaintiff has not
alleged “such abuse of discretion as would justify issuance of the extraordinary
writ of mandamus” in this regard. In re A & H Transp., Inc. , 319 F.2d at 71; see
Korman , 486 F.2d at 933 (indicating “flagrant abuse of discretion” would warrant
mandamus relief). We thus have no occasion to review the disposition of his
grand jury request.

The requests for declaratory relief may appear to exceed the case-specific
legal remedies available in the prior proceedings and to fall more aptly within the
scope of this Bivens action. Nevertheless, neither request affects our analysis.
The first declaration–that law clerks and staff may not assist the court with any
research or drafting duties–is incorrect as a matter of law. Thus, it was properly
rejected on the pleadings in any event. The substance of the second–that pro se
litigants are entitled to equal treatment under the law–would be inherent in any
order vacating an adverse decision on the grounds plaintiff asserts. Thus, it was
effectively obtainable through the legal procedures available to accomplish that
end discussed above, i.e., appeal, writ or motion in the prior proceedings.

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 RICO

The district court dismissed plaintiff’s RICO claim for failure to allege

a pattern of racketeering activity with sufficient particularity, presumably for

lack of names, dates, and specific instances of the alleged conduct. Plaintiff

insists he did the best he could without the benefit of internal court information

or discovery to obtain such information.

In any event, the “adequate legal remedy” principle barring the Bivens

claim applies as well to bar the same equitable relief sought under RICO. 14

Further, there is an obvious RICO pleading deficiency here having nothing to do

with plaintiff’s incomplete factual knowledge: the “enterprise” he specified in

the complaint is simply the group of individual defendants accused of engaging in

the racketeering. “It is well-settled in this circuit, as in most others, that for

purposes of 18 U.S.C. § 1962(c), [15]
the defendant ‘person’ must be an entity

distinct from the alleged ‘enterprise.’” Brannon v. Boatmen’s First Nat’l Bank ,

153 F.3d 1144, 1146 (10th Cir. 1998) (following Board of County Comm’rs v.

14
Indeed, there is considerable doubt that equitable relief is available to
private RICO litigants under any circumstances. See Bolin v. Sears, Roebuck &
Co. , 231 F.3d 970, 977 n.42 (5th Cir. 2000); Lincoln House, Inc. v. Dupre ,
903 F.2d 845, 848 (1st Cir. 1990).
15
Plaintiff refers to § 1962(a) in the complaint, but that is clearly a mistake.
His allegations have nothing to do with the derivation and investment of income
to which § 1962(a) relates, but rather match up with the elements of a § 1962(c)
claim, which he specifically lists and follows with citations to § 1962(c) case law.

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Liberty Group , 965 F.2d 879, 885 & n.4 (10th Cir. 1992)); see also Cedric

Kushner Promotions, Ltd. v. King , 121 S. Ct. 2087, 2091 (2001) (“accepting the

[RICO] ‘distinctness’ principle” developed in the circuit courts, though holding it

inapplicable under circumstances irrelevant to the instant case). Plaintiff has thus

failed to allege an enterprise distinct from the individual defendants.

The judgment of the United States District Court for the District of

Colorado is AFFIRMED. The U.S. Attorney’s motion to file a supplemental

appendix containing the pleadings, motions, and orders in the district court file

is GRANTED.

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