                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 25 2003
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

STEVEN C. DAVIS, KAREN
TAYLOR DAVIS, and MARK GALEN
TAYLOR, individuals and trustees,

             Plaintiffs - Appellants,

v.

STEPHEN M STUDDERT, a former
employee of the U. S. Government;
THE CORPORATION OF THE                                  No. 02-4110
PRESIDENT OF THE CHURCH OF                       (D.C. No. 2:02-CV-226-S)
JESUS CHRIST OF LATTER-DAY                               (D. Utah)
SAINTS, a 1923 Utah Corporation
sole; THE CORPORATION OF THE
PRESIDING BISHOP OF THE
CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS, a 1916 Utah
Corporation sole; DOUGLAS
JOHNSON, an employee of the
State of Utah; and STAN ROBERTS, a
former Utah Notary Public,

             Defendants - Appellees.


                           ORDER AND JUDGMENT           *




      *
        This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. 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.
Before EBEL , HENRY , and HARTZ , Circuit Judges.


       Steven C. Davis, Karen Taylor Davis, and Marc Galen Taylor appeal the

district court’s dismissal of their complaint pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure for failure to state a claim upon which relief can

be granted. The plaintiffs also challenge the district court’s denial of several

other district court rulings. After examining the record, we conclude that the

plaintiffs’ complaint fails to state a claim under federal law but that the district

court should have dismissed the complaint without prejudice to the plaintiffs’

pursuing their claims in state court. We further conclude that the district court

properly denied the plaintiffs’ other motions.    1




                                   I. BACKGROUND

       The rambling thirty-four page complaint filed by the Davis’s and Mr.

Taylor is “the antithesis of the ‘short and concise’ pleading requirement of Fed.

R. Civ. P. 8(a).”   Tonkovich v. Kan. Bd. of Regents   , 159 F.3d 504, 510 n.1 (10th

Cir. 1998). Because the parties are familiar with the plaintiffs’ allegations, we

will summarize them only briefly.


       1
         After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore submitted without oral argument.

                                            -2-
      As to the defendants Stephen M. Studdert, the Corporation of the President

of the Church of Jesus Christ of Latter Day Saints, and the Corporation of the

Presiding Bishop of the Church of Jesus Christ of Latter Day Saints (collectively

referred to as “the Church defendants” in parts of the Complaint), the Complaint

includes the following allegations: that these defendants: (1) “[f]ail[ed] to train

and supervise [the] Mormon Church’s hierarchical clergy in the proper

implementation of . . . guidelines, policies and procedures regarding the treatment

of victims of fraud, spouse abuse, child abuse, and fail[ed] to monitor and insure

compliance with its guidelines, policies, and procedures,” (2) “[f]ail[ed] to warn

members and leaders of the Mormon Church that Studdert and others were in

violation to [sic] Federal Banking and Slander/Libel Laws,” (3) “[r]etain[ed] and

allow[ed] Defendant Studdert to participate as a leader in the Mormon Church,

working directly with others knowing [that] he was an Agent for Corrupt Banks

and bankers,” (4) “fail[ed] to protect Plaintiffs and the members of the Mormon

Church from fraudulent actions caused deliberately by [the] named Defendants,”

(5) “[s]ustain[ed] and endors[ed] the False Ex-communication [of the plaintiff

Mr. Davis],” and (6) “receiv[ed] financial gain, totaling more than Twenty Billion

Dollars, from assets stolen from and owned by Kanco Energy, Inc.” Rec. vol. I,

doc. 1, at 32-33 (Complaint, filed March 19, 2002).




                                          -3-
       As to the defendant Stan Roberts, the plaintiffs allege that he issued a

deliberately false signature as a notary public, thereby “committ[ing] a crime

against the laws of the State of Utah.”   Id. at 24. Finally, as to the defendant

Douglas Johnson, the plaintiffs allege that he “committed several slanderous,

defamation of character, false claims as the Utah Deputy State Treasurer.”      Id. at

23.

       The plaintiffs sought to recover the following damages: (1) twenty billion

dollars from the Corporation of the President of the Church of Jesus Christ of

Latter Day Saints, and the Corporation of the Presiding Bishop of the Church of

Jesus Christ of Latter Day Saints, and (2) five million dollars from the defendants

Studdert, Roberts, and Johnson.     Id. at 33.

       All of the defendants filed motions to dismiss the plaintiffs’ complaint for

failure to state a claim upon which relief could be granted. The district court

granted the defendants’ motions, explaining that it had so ruled for the reasons set

forth in the defendants’ supporting briefs. Rec., vol. III, docs. 24-26 (Orders of

Dismissal, dated May 30, 2002). The court dismissed the plaintiffs’ claims with

prejudice.

       The plaintiffs then filed a variety of motions, including a motion to amend

the complaint, a motion for a new trial under Fed. R. Civ. P . 59, a motion to

amend the judgment under Fed. R Civ. P Rule 60(b) on the grounds of newly


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discovered evidence, and a motion to remove the district court judge from the

case. The district court denied all of these motions. Rec. vol. IV, doc. 37 (order

dated June 19, 2002), doc. 41 (Order, dated June 27, 2002).



                                    II. DISCUSSION

              On appeal, the plaintiffs challenge the dismissal of the complaint.

They also argue that the district court erred in refusing to allow amendment of the

complaint and in denying their motion for a new trial and for amendment of the

judgment. Finally, the plaintiffs argue that the district judge and opposing

cousnel should be removed from the case.



                             A. Dismissal of the Complaint

       We review de novo the district court’s dismissal under Fed. R. Civ.

12(b)(6) for failure to state a claim upon which relief can be granted, applying the

same standard as the district court pursuant to Fed. R. Civ. P. 12(b)(6).      Stidham

v. Peace Officer Standards & Training     , 265 F.3d 1144, 1149 (10th Cir. 2001)

(citation omitted). Because plaintiffs are pro se, we construe their pleadings

liberally. Haines v. Kerner , 404 U.S. 519, 520 (1972) (per curiam);        Hall v.

Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). Nevertheless, pro se plaintiffs




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retain “the burden of alleging sufficient facts on which a recognized legal claim

could be based.” Hall , 935 F.2d at 1110.

1. Church Defendants

       We agree with the district court that the plaintiffs failed to state a claim

against the church defendants. To the extent that the plaintiffs allege that the

church defendants committed fraud, acted negligently, and failed to protect them

from various injuries, their complaint asserts state law claims that the federal

courts are not required to adjudicate, absent diversity of citizenship (which is not

alleged here).   See Basso v. Utah Power & Light Co. , 495 F.2d 906, 910 (10th

Cir. 1974) (holding that the plaintiff’s complaint should have been dismissed

because “[o]n its face . . . [it] manifests a lack of diversity jurisdiction”).

Although the complaint also alleges that the church defendants violated the

plaintiff’s First Amendment rights, it does not allege that these defendants acted

under color of law.   See Sooner Products Co. v. McBride     , 708 F.2d 510, 512

(10th Cir. 1983) (noting that an allegation of “an elaborate conspiracy among

numerous private defendants” is insufficient to allege a First Amendment claim

under 42 U.S.C. § 1983 if the complaint does not allege that the defendants acted

under color of state law). Moreover, to the extent that the plaintiffs’ allegations

are grounded in the church defendants’ decisions about membership or doctrine,

these defendants may not be sued for the First Amendment violations alleged


                                            -6-
here. See Bryce v. Episcopal Church in the Diocese of Colo.       , 289 F.3d 648, 655

(10th Cir. 2002) (stating that “[c]ourts have held that churches have autonomy in

making decisions regarding their own internal affairs” and that “th[e] church

autonomy doctrine prohibits civil court review of internal church disputes

involving matters of faith, doctrine, church governance, and polity”).     2



       Nevertheless, given the liberal construction we must afford pro se

pleadings, we cannot say that the plaintiffs can prove no set of facts that would

entitle them to relief under state law. Therefore, we will remand the case to the

district court with instructions to vacate its order of dismissal with prejudice and

to enter an order dismissing the plaintiffs’ claims without prejudice to pursuing

those claims in state court.   See Basso v. Utah Power & Light Co.       , 495 F.2d 906,

910 (10th Cir. 1974) (holding that, in a case in which the plaintiff’s complaint

failed to allege diversity jurisdiction, the case should be dismissed “without

prejudice to the plaintiffs’ right to pursue their remedy in a subsequent state

proceeding”).




       2
         We do note that the church autonomy doctrine “does not apply to purely
secular decisions, even when made by churches.”  Bryce , 289 F.3d at 657.

                                            -7-
2. Dismissal of Defendants Roberts and Johnson.

       The district court properly dismissed the plaintiffs’ claims against the

defendant Mr. Roberts as well. As noted above, the complaint alleges only that

Mr. Roberts violated Utah law. It does not allege a violation of federal law.

       Similarly, the plaintiffs’ claims against the defendant Johnson are based on

alleged “slanderous, defamation of character, false claims as the Utah Deputy

State Treasurer.” Rec. vol. I, doc. I, at   23. Again, the plaintiffs’ assertions are

insufficient to establish that these alleged state law violations constitute a

violation of federal law. However, in light of the liberal rules of construction for

pro se pleadings we will remand these claims to the district court so that they may

dismissed without prejudice to the plaintiffs’ refiling them in state court.



B. Motions to Amend the Complaint, for a New Trial, and to Amend the Judgment

       The plaintiffs also challenge the district court’s denial of their motion to

amend the complaint, their motion for a new trial, and their motion to amend the

judgment. We review those decisions for an abuse of discretion.        See Scott v.

Hern , 216 F.3d 897, 906 (10th Cir. 2000) (motion to amend complaint);       Joseph v.

Terminix Intern. Co. , 17 F.3d 1282, 1285 (10th Cir. 1994) (motion for a new

trial); White v. Am. Airlines, Inc. , 915 F.2d 1414, 1425 (10th Cir. 1990) (motion

to amend judgment).


                                             -8-
      As to the plaintiffs’ motion to amend, we note that “leave [to amend the

complaint] shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a);

Calderon v. Kan. Dept. of Social and Rehabilitation Services    , 181 F.3d 1180,

1185 (10th Cir. 1999). However, a district court need not grant leave to amend

the complaint if the amendment would be futile.     See Huxall v. First State Bank ,

842 F.2d 249, 250 n. 2 (10th Cir.1988) (recognizing dismissal of claim under

Rule 12(b)(6) and approving district court’s denial of motion for leave to amend

complaint where such amendment would be futile). Here, we have carefully

reviewed the additional allegations set forth in the plaintiffs’ motion to amend

and conclude that these allegations do not cure the deficiencies noted above.

Accordingly, the district court did not abuse its discretion in denying the

plaintiffs’ motion to amend.

      We reach the same conclusion as to the plaintiffs’ motions for a new trial

and to amend the judgment. Nothing in their submissions indicates that the

district court erred in denying the motions.



                 C. Motion to Remove the Trial Judge and Counsel

      After the district court’s initial ruling dismissing their complaint, the

plaintiffs filed a motion to remove the trial judge, alleging that he knew the

president of one of the church defendants and that he had recused in another case


                                           -9-
involving the same man. The district court denied the motion, and we now review

its decision for an abuse of discretion.   United States v. Cooley , 1 F.3d 985, 994

(10th Cir. 1993). While a district judge should disqualify himself when “his

impartiality might reasonably be questioned,” 28 U.S.C. § 455(a), the party

seeking recusal must provide a reasonable factual basis to doubt the judge’s

impartiality. Nichols v. Alley , 71 F.3d 347, 351 (10th Cir. 1995). Here, the

plaintiffs have failed to provide such a factual allegation. The conclusory

allegation about the friendship between the judge and the president of one of the

church defendants, unsupported by admissible evidence, is insufficient to warrant

recusal.

       In their appellate brief, the plaintiffs also contend that counsel for the

defendants should be disqualified because of conflicts of interest. Again, these

allegations are not supported by admissible evidence.




                                           -10-
                                III. CONCLUSION

      For the reasons set forth above, we VACATE the district court’s dismissal

of the plaintiffs’ complaint with prejudice and REMAND the case to the district

court with instructions to dismiss the complaint without prejudice to refiling in

state court. We AFFIRM the district court’s denial of the plaintiffs’ other

motions.



                                Entered for the Court,



                                Robert H. Henry
                                Circuit Judge




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