                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         APR 11 2005
                              FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


    JEANNE A. ROBERSON;
    HARALD A. HELLMAN,

                 Plaintiffs-Appellants,
                                                        No. 04-1024
    v.                                          (D.C. No. 02-RB-2333 (OES))
                                                          (D. Colo.)
    WOODMOOR-MONUMENT FIRE
    PROTECTION DISTRICT, EL PASO
    COUNTY; SIMMONS COMPANY;
    JOHN ANDERSON, individually and
    in his official capacity as Sheriff of El
    Paso County; RICK McMORRAN,
    individually and in his official
    capacity as Fire Investigator;
    PENROSE HOSPITAL, of Penrose-St.
    Francis Health Services, a division of
    Centura Health; and RANDOLPH
    MAUL, M.D.,

                 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not binding precedent, except under the doctrines of law of the case, res judicata,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 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.
Before HARTZ , and BALDOCK , Circuit Judges, and           BRIMMER , ** District
Judge.


       On March 19, 2001, the home of pro se plaintiff Jeanne A. Roberson caught

fire. Ms. Roberson and pro se plaintiff Harald A. Hellman, Ms. Roberson’s

tenant and caregiver, were in Ms. Roberson’s home at the time the fire started.

Both escaped the burning structure and subsequently brought suit, under

42 U.S.C. §§ 1983 and 1985(3), alleging defendants’ actions and inactions, during

the fire and in its aftermath, caused plaintiffs to suffer serious injuries and

property losses. In their complaint, plaintiffs raised six “claims” for relief:

product liability, equal protection, search and seizure, conspiracy, declaratory

judgment, and exemplary damages. R. Doc. 1 at 8-11.

       On May 30, 2003, the district court adopted the magistrate judge’s

recommendation to grant John Anderson’s and Rick McMorran’s motion to

dismiss or in the alternative for summary judgment, Dr. Maul’s motion to dismiss,

Woodmoor-Monument Fire Protection District’s motion to dismiss or in the

alternative for summary judgment, and Penrose Hospital’s motion to dismiss. At

the same time, the district court granted the Simmons Company’s motion to

dismiss all claims against it   except the product liability claim. All that remained



**
      The Honorable Clarence A. Brimmer, District Judge, United States District
Court for the District of Wyoming, sitting by designation.

                                           -2-
of plaintiffs’ case, at this point, was their product liability claim against the

Simmons Company. But before pursuing that claim, plaintiffs, alleging bias, filed

a motion to recuse both the district judge and the magistrate judge. Plaintiffs’

motion was denied by orders dated July 18, 2003, and July 21, 2003. On

December 16, 2003, the district court adopted the magistrate judge’s

recommendation to grant the Simmons Company’s motion to dismiss the product

liability claim against it. This appeal followed.

       On appeal, plaintiffs take issue with both district court orders adopting the

magistrate judge’s recommendations to grant defendants’ motions to dismiss or in

the alternative for summary judgment. Plaintiffs also challenge the orders

denying their motion to recuse the district judge and the magistrate judge.

       Our jurisdiction arises under 28 U.S.C. § 1291. We review de novo both a

district court’s dismissal for failure to state a claim under Fed. R. Civ.

P. 12(b)(6), and its grant of summary judgment under Fed. R. Civ. P. 56.         Santana

v. City of Tulsa , 359 F.3d 1241, 1243 (10th Cir. 2004). “We review the denial of

a motion to recuse for abuse of discretion,”         Higganbotham v. Okla. ex rel. Okla.

Transp. Comm’n , 328 F.3d 638, 645 (10th Cir. 2003), and “will uphold a district

court’s decision unless it is an ‘arbitrary, capricious, whimsical, or manifestly

unreasonable judgment,’”     id. (quoting Coletti v. Cudd Pressure Control      , 165 F.3d

767, 777 (10th Cir. 1999)). Because plaintiffs are proceeding pro se, we construe


                                               -3-
their allegations and appellate filings liberally,   Haines v. Kerner, 404 U.S. 519,

520-21 (1972); Hunt v. Uphoff , 199 F.3d 1220, 1223 (10th Cir. 1999).

       Applying the foregoing standards, and after careful consideration of the

parties’ briefs, the record, and applicable law, we conclude that the district court

correctly decided this case. We therefore AFFIRM its orders dated May 30, 2003,

and December 16, 2003, for substantially the same reasons as stated in the

magistrate judge’s recommendations, dated May 6, 2003, R. Doc. 51, and

August 18, 2003, id. at Doc. 69, respectively. We likewise AFFIRM the district

court’s July 19, 2003, and July 21, 2003, orders denying plaintiffs’ motion to

recuse, for substantially the same reasons as stated in each order.    Id. at Docs. 64,

65. Finally, plaintiffs’ request that this court hear their case en banc is DENIED,

Fed. R. App. P. 35, and all outstanding motions are DENIED as moot.



                                                         Entered for the Court



                                                         Clarence A. Brimmer
                                                         District Judge




                                               -4-
