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

                                   TENTH CIRCUIT                        December 13, 2011

                                                                        Elisabeth A. Shumaker
JOHN B. YANCEY,                                                             Clerk of Court

Plaintiff - Appellant,

v.                                                           No. 11-3232
                                                              (D. Kan.)
SAM A. CROW, Senior Judge, District                (D.C. No. 5:10-CV-03248-RDR)
Court of Kansas; CROW, CLOTHIER &
ASSOCIATES; FNU SCRIVNER,
Chaplin; FNU MULA, Warden/Director;
CORRECTIONAL CORPORATION OF
AMERICA, INC., Executive Board
Members,

Defendants - Appellees.



                               ORDER AND JUDGMENT*


Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.




       *
        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). We have decided this case on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
       John B. Yancey, proceeding pro se and in forma pauperis (ifp),1 appeals from the

district court’s sua sponte dismissal of his complaint for failure “to state a claim upon

which relief may be granted” under 28 U.S.C. § 1915(e)(2)(B).2 The district court

reasoned the complaint contained nothing more than “conclusory allegations” without

any meaningful factual support. (R. at 18.) We agree and affirm.

                                   I.   BACKGROUND

       While Yancey was incarcerated in a detention center operated by Corrections

Corporation of America (CCA), he filed a § 1983 complaint against CCA and its

employees. The complaint in that case claimed Yancey “was unlawfully denied access to

religious call-out and religious materials” during his incarceration. Yancey v. Scrivner,

No. 07-3175-SAC, slip op. at 1 (D. Kan. Jan. 13, 2009).3 Senior United States District

Judge Sam A. Crow dismissed the complaint because Yancey failed to exhaust his

administrative remedies, as required by 42 U.S.C. § 1997e(a).4 Before filing the


       1
         The district court granted Yancey’s motions to proceed without prepayment of
fees in the district court and, inexplicably, on appeal. See 28 U.S.C. § 1015(a) and (c).
       2
        Although 28 U.S.C. § 1915(e)(2)(B) was amended by the Prisoner Litigation
Reform Act, it applies to all ifp proceedings. See Ruston v. Church of Jesus Christ of
Latter-Day Saints, 304 F. App’x 666, 668 (10th Cir. 2008) (unpublished). An
unpublished Order and Judgment is not binding precedent. 10th Cir. R. App. P. 32.1(A).
We mention Ruston only because of its reasoned analysis.
       3
       We may “take judicial notice of court records” in related proceedings. Gee v.
Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010).
       4
        Defendants Scrivner and Mula (the chaplain and warden, respectively, of the
CCA facility) were named in Yancey’s complaint in the prior case. They are again
named in the current complaint but Yancey fails to allege how either of them is
connected to the alleged conspiracy.


                                            -2-
complaint in the present case, he was released from confinement. This civil rights

complaint alleges a “conspiracy” among the defendants to “manipulate cases against

[CCA].” (R. at 3) It names Judge Crow and a variety of other defendants. It contends

Judge Crow “should have recused himself because there are three separate Crows

involved with [CCA].” 5 (Id.) He seeks compensatory and punitive damages.

                                   II.   DISCUSSION

       We review de novo the district court’s decision to dismiss a prisoner’s complaint

under § 1915(e)(2)(B) for failure to state a claim.6 See Kay v. Bemis, 500 F.3d 1214,

1217 (10th Cir. 2007).



       5
         As we read Yancey’s complaint, the second Crow in the conspiracy was the
Crow who was a named partner of Crow, Clothier, and Associates, the law firm which
defended CCA against Yancey’s first complaint. Yet the complaint names the law firm
as a defendant, rather than the partner named Crow. The complaint never identifies the
third Crow.
       6
          Yancey’s appellate brief does not contain any argument directly challenging the
district court’s conclusion. Because he is proceeding pro se, we construe his brief
liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and “have tried to discern the
kernel of the issues [he] wishes to present on appeal.” de Silva v. Pitts, 481 F.3d 1279,
1283 n.4 (10th Cir. 2007). Thus, we consider whether the district court erred in in
dismissing Yancey’s complaint.

        The district court’s order does not indicate whether it was a dismissal with or
without prejudice. Nevertheless, since Yancey’s complaint was dismissed without
inviting him to amend it and without specifying whether the dismissal was without
prejudice, we conclude the district court’s order is a final appealable order supporting our
jurisdiction over Yancey’s appeal. See Coffee v. Whirlpool Corp., 591 F.2d 618, 620
(10th Cir. 1979) (holding a dismissal without prejudice is a final appealable order when it
“is intended to dispose of the cause of action”). Yancey’s brief to this Court makes no
mention, let alone argument, with respect to a possible entitlement to amend his
complaint; we do not address that potential issue. He did not move to amend in the
district court.


                                            -3-
       A conspiracy requires two or more persons to act in concert for an unlawful

purpose. Abercrombie v. City of Catoosa, Okla., 896 F.2d 1228, 1230 (10th Cir. 1990);

see Brever v. Rockwell Int’l Corp., 40 F.3d 1119, 1126 (10th Cir. 1994). Accordingly, to

state a claim for relief for conspiracy, Yancey’s complaint must allege both (1) “a

meeting of the minds or agreement among the defendants,” and (2) an unlawful purpose.

See Brever, 40 F.3d at 1126 (quoting Abercrombie, 896 F.2d at 1231).

       Yancey’s complaint fails to satisfy either of these requirements. First, it does not

allege a meeting of the minds. It alleges only “there are three separate Crows involved

with the [CCA].” (Id.) The complaint does not allege any agreement among the three

Crows. Nor does it allege any communication among the defendants, so “there is nothing

to give rise to the inference that [the defendants] conspired.” See Abercrombie, 896 F.2d

at 1231.

       Likewise, Yancey’s complaint fails to allege an unlawful purpose. The complaint

only alleges Judge Crow should have recused himself because of the “sign of

impropriety” of sitting on a case where other people with the surname of “Crow” were

somehow involved with the defendant. (Id.) Judges should, of course, avoid the

appearance of impropriety. See, e.g., 28 U.S.C. § 455(a); In re Charge of Judicial

Misconduct, 91 F.3d 1416, 1417-18 (10th Cir. Jud. C. 1996). But Yancey’s complaint

does not explain how an appearance of impropriety “manipulate[s] the outcome of cases”

or how this alleged manipulation unlawfully violates his rights.7 (Id.)



       7
           A complaint must “make clear exactly who is alleged to have done what to

                                            -4-
       In addition, judges are immune from suits for money damages unless the judge’s

misconduct is either taken outside his judicial capacity or his actions, even “though

judicial in nature” are “taken in the complete absence of all jurisdiction.” Mireles v.

Waco, 502 U.S. 9, 11-12 (1991); see Stein v. Disc. Bd. of Sup. Ct. of N.M., 520 F.3d

1183, 1195 (10th Cir. 2008). Since Yancey’s complaint does not suggest Judge Crow’s

participation went beyond his involvement in Yancey’s prior case, Judge Crow is

immune from suit.

       AFFIRMED.

                                          Entered by the Court:


                                          Terrence L. O’Brien
                                          United States Circuit Judge




whom, to provide each individual with fair notice as to the basis of the claims against him
or her.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008).


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