                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    June 10, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT




    PHILIP ANDREW WOLF,

                Plaintiff-Appellant,

    v.                                                    No. 09-1514
                                             (D.C. No. 1:08-CV-02749-PAB-KMT)
    JAMES J. PETROCK,                                      (D. Colo.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before McKAY, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.


         Plaintiff Philip Andrew Wolf, appearing pro se, appeals the district court’s

order and judgment granting Defendant James J. Petrock’s motion for summary

judgment and dismissing Mr. Wolf’s complaint with prejudice as barred by res

judicata. We have jurisdiction under 28 U.S.C. § 1291 and we affirm the

dismissal, albeit for a different reason than that given by the district court.


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Mr. Wolf is upset by penalties imposed upon him in Colorado state court

for violating the zoning requirements of Gilpin County, Colorado. The gist of

Mr. Wolf’s argument against the penalties is his assertion that his land was

exempt from regulation by Gilpin County because it qualified as “mineral lands”

under the Colorado Enabling Act, 18 Stat. 474. After finding no relief in the

Colorado courts, Mr. Wolf turned to the federal court system.

      He first filed an “EX PARTE VERIFIED COMPLAINT under 5th Amdt.,

and under 28 U.S.C. §§ 2201, 2002.” R., Vol. 1 at 6. The complaint failed to list

any defendants. In the argument portion of his complaint, Mr. Wolf asserted that

his complaint was brought under criminal statute 18 U.S.C. § 4, which concerns

misprision of a felony. He stated that he was officially notifying the judge in the

case that (1) the judge in his state case; (2) Mr. Petrock, the County Attorney for

Gilpin County; and (3) a “Community Development Director” for Gilpin County,”

were all guilty of the felonies of conspiracy and receiving proceeds of extortion in

regard to the zoning enforcement action against his land. See R., Vol. 1 at 7-8.

Nevertheless, the relief sought in the complaint was a declaratory judgment

holding that neither the State of Colorado, nor its officials, had any right to

regulate Mr. Wolf’s land.

      The district court read the complaint as naming Mr. Petrock and the other

two named individuals as the defendants in the suit, and ordered the Clerk to add

those individuals to the docket and the caption. Id. at 12. Mr. Wolf responded

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with a filing entitled “Waiver of Claim” in which he asserted that he had merely

been trying to report the felonies of those individuals; that he was waiving any

reference to, or claims against, those individuals in his complaint; and that his

complaint was “in no way . . . directed at these persons.” Id. at 13. The court

then evidently ordered Mr. Wolf to show cause why his complaint should not be

dismissed since there were no defendants.

      Mr. Wolf responded by filing an amended complaint naming Mr. Petrock as

the sole defendant. The amended complaint did not state that Mr. Petrock was

being sued in his official capacity as Gilpin County Attorney. The sole

substantive factual allegation against Mr. Petrock was that he had “expressed a

belief” that county and state law “provide him free and unencumbered access to

[Mr. Wolf’s] land at any time of day or night, and on every day of every year”

contrary to federal law. Id. at 29-30. The amended complaint was apparently

served on Mr. Petrock personally and in the “Verification” section Mr. Wolf

stated “I believe Defendants have violated the law as alleged above, and it is my

intent herewith to cause criminal charges against Defendant PETROCK for the

purposes of having them sanctioned to the full extent of the law.” Id. at 31.

Nevertheless, the relief sought in the amended complaint was unchanged from

that sought in the original complaint.

      Mr. Petrock responded to the amended complaint by filing a motion to

dismiss in his individual capacity. He claimed that dismissal was proper because

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the amended complaint sued him in his individual capacity yet failed to raise any

claims against him or seek relief from him, that Mr. Wolf had explicitly

represented to the court he had no claims against Mr. Petrock prior to filing the

amended complaint, that it seemed Mr. Wolf was intending to sue the State of

Colorado, and that the assertions made about the government’s authority to

regulate Mr. Wolf’s property should be precluded because they had either been

raised in the state proceedings or could have been raised there. Id. at 34-36. The

magistrate judge converted Mr. Petrock’s motion to a motion for summary

judgment.

      Mr. Wolf responded to the motion by asserting that Mr. Petrock, and not

the State of Colorado, was the intended defendant in the lawsuit. He accused

Mr. Petrock of planning to commit criminal trespass by entering Mr. Wolf’s

property and photographing his wife through the widows of their house. 1 He

asserted that the State of Colorado was aware of the lawsuit against Mr. Petrock

and could therefore have intervened in the action if it wished, but had chosen to

refrain from doing so. The magistrate judge recommended granting the motion

for summary judgment and dismissing with prejudice on res judicata grounds.

The district court adopted the recommendation and Mr. Wolf appeals.



1
       It is impossible to tell from the response whether Mr. Wolf believes that
this conduct has already occurred or if he is merely concerned that Mr. Petrock
intends to photograph his wife at some point in the future.

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      “We review the grant of a summary judgment motion de novo, applying the

same standards as the district court.” Proctor v. United Parcel Serv., 502 F.3d

1200, 1205 (10th Cir. 2007). Summary judgment is appropriate when “there is no

genuine issue as to any material fact and . . . the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(c). We view all evidence and draw

reasonable inferences therefrom in the light most favorable to the nonmoving

party. Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004). We may affirm

the district court’s decision “for any reason supported by the record.” Amro v.

Boeing Co., 232 F.3d 790, 796 (10th Cir. 2000).

      On appeal, Mr. Wolf’s stated points of error are: “1. The lower court erred

when it held that state court’s refusal to look at 18 Stat. § 474 renders it

irrelevant[,]” Aplt. Opening Br. at 3 (emphasis omitted); and “2. The lower court

erred when it held that Appellant is not entitled to review beyond that given by

state court through its denial of Appellant’s motion to vacate[,]” id. at 5

(emphasis omitted). As best this court can tell, Mr. Wolf’s main contention is

that the district court had a duty to issue a declaratory judgment that the state

court decisions imposing penalties for zoning violations were incorrect, and that

Colorado had no right to regulate the use of his land. But the State of Colorado is

not a party to this action. Mr. Wolf’s filings are inconsistent. We acknowledge

that, at times, it appears that the State of Colorado is the true party in interest.

For example, the relief requested in the amended complaint is against Colorado,

                                           -5-
and Mr. Wolf originally claimed that he had no claims against Mr. Petrock or the

other individuals. But Mr. Wolf sued and served Mr. Petrock in his individual

capacity, not the State of Colorado; Mr. Wolf specifically denied any intent to sue

Colorado; and, even if he had brought such a suit, it would appear to be a clearly

prohibited attempt to appeal a state court ruling to federal district court.

      So it appears that Mr. Wolf did, indeed, intend to sue Mr. Petrock in his

individual capacity. But he has utterly failed to state a claim against Mr. Petrock

upon which relief could be granted. The only factual allegation against

Mr. Petrock in the amended complaint is that he allegedly expressed a belief that

he had unfettered access to Mr. Wolf’s property. And the only possible claim for

relief against Mr. Petrock is the statement, made in the “VERIFICATION” section

of the amended complaint, that Mr. Wolf is hoping to have criminal charges filed

against Mr. Petrock. See R., Vol. 1 at 31. Mr. Wolf cannot personally bring

criminal charges against Mr. Petrock. Andrews v. Heaton, 483 F.3d 1070, 1076

(10th Cir. 2007) (holding that criminal statutes that do not provide for a private

right of action are not enforceable through a civil action). We therefore affirm

the district court’s dismissal with prejudice on the ground that Mr. Wolf failed to

state a claim upon which relief could be granted against Mr. Petrock.

      We acknowledge that “[u]nder Rule 12(b)(6), a plaintiff with an arguable

claim is ordinarily accorded notice of a pending motion to dismiss for failure to

state a claim and an opportunity to amend the complaint before the motion is

                                          -6-
ruled upon.” Neitzke v. Williams, 490 U.S. 319, 329 (1989). Further, “pro se

litigants are to be given reasonable opportunity to remedy the defects in their

pleadings.” Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).

Therefore, dismissal of a pro se plaintiff’s complaint for failure to state a claim

“is appropriate only where it is patently obvious that the plaintiff could not

prevail on the facts alleged, and allowing [him] an opportunity to amend [his]

complaint would be futile.” Whitney v. New Mexico, 113 F.3d 1170, 1173

(10th Cir. 1997) (quotation omitted).

      But here, amendment of Mr. Wolf’s complaint would be futile. He is either

seeking a declaratory judgment as to the rights of the State of Colorado and its

officers in a suit against an individual or seeking to personally bring criminal

charges against that individual. And he has specifically argued below that it was

not his intention to sue the state government. No opportunity to amend would

allow Mr. Wolf to successfully pursue such claims against Mr. Petrock.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court


                                                     Wade Brorby
                                                     Senior Circuit Judge




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