                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 26 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    ALLEN OIL & GAS, LLC,

                Plaintiff-Appellant,

    v.                                                   No. 03-1082
                                                     (D.C. No. 01-N-1811)
    MICHAEL KLISH; BRUCE                                   (D. Colo.)
    JOHNSON; DANIEL SKRABACZ;
    ADRAN PHILLIPS,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before McCONNELL , HOLLOWAY , and PORFILIO , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. 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.
      Plaintiff Allen Oil & Gas, LLC, appeals the judgment of the district court

dismissing its § 1983 complaint for failure to state a claim upon which relief can

be granted under Fed. R. Civ. P. 12(b)(6) and further refusing to grant plaintiff

leave to amend its complaint. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1332 and affirm.

      Plaintiff was the operator of oil leases located in Routt County, Colorado.

In the complaint, defendants are identified as members of the board of the

Colorado Oil and Gas Conservation Commission (Commission). Plaintiff brought

suit under 42 U.S.C. § 1983 alleging that defendants affected a taking of its

property without due process in derogation of the Fifth Amendment when the

Commission ordered some of plaintiff’s wells plugged. Specifically, plaintiff

alleged, inter alia, that defendants denied it the opportunity for a hearing before

an impartial tribunal, prevented it from complying with Commission regulations,

and continued a hearing without written notice to plaintiff.

      In ruling on defendants’ renewed motion to dismiss the complaint, the

district court held that because plaintiff failed to allege any personal participation

by defendants in the allegedly illegal acts, its complaint was subject to dismissal

under Rule 12(b)(6). Because the court found it “patently obvious that the

plaintiff cannot prevail under the alleged facts,” Aplt. App. at 164, it further




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denied leave to amend the complaint. Alternatively, the court held that

defendants were shielded by qualified immunity.

      Plaintiff takes issue with all three of these conclusions. We need not

address the qualified immunity issue, however, because we find no error in the

dismissal for failure to state a claim and in the refusal to allow amendment.

                    This court reviews de novo the district court’s
             dismissal under Rule 12(b)(6) for failure to state a
             claim. We accept as true all well-pleaded facts, as
             distinguished from conclusory allegations, and view
             those facts in the light most favorable to the nonmoving
             party. The district court’s dismissal pursuant to Rule
             12(b)(6) will be upheld only if it appears beyond doubt
             that the plaintiff can prove no set of facts in support of
             his claim which would entitle him to relief.

Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998) (citations

and quotation omitted).

      In order to state a claim for relief under § 1983, plaintiff must show an

affirmative link between defendants’ conduct and the alleged constitutional

violation. Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1156-

57 (10th Cir. 2001). Here, the complaint makes no link between these individual

defendants and the acts complained of. The complaint identifies defendants as

members of the Commission, Aplt. App. at 8, but does not identify them as




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members of the Commission during the relevant time period. 1 The complaint does

not allege how any or all of the defendants voted on matters concerning the wells.

The complaint does claim that activities of a particular employee of the

Commission injured plaintiff, but that individual is not named as a defendant.

Further, there is no allegation that any of the defendants personally considered the

allegedly improper intervention of this employee or allowed it to influence them.

      In its opening brief, plaintiff correctly cites the law requiring personal

participation in this type of suit but fails to ultimately show that defendants were

directly involved in the acts that resulted in the claimed deprivation of rights.

Merely saying that it has shown individual involvement on the part of each

defendant does not make it so. See Aplt. Br. at 17-18.

      Plaintiff also correctly points to various theories of recovery which would

state a claim for relief had the correct defendants been named or had these

defendants been affirmatively linked to the alleged harm that befell plaintiff.

Without the personal participation by each defendant, however, plaintiff’s

theories are of no avail. Plaintiff cites Barrett v. Tallon, 30 F.3d 1296, 1299

(10th Cir. 1994), for the proposition that even if the factual allegations made in a

complaint fail to support the legal theory underlying the plaintiff’s case, dismissal



1
      The statement in plaintiff’s opening brief that the complaint alleged
defendants were members of the Commission is inaccurate.     See Aplt. Br. at 16.

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is inappropriate. In Barrett, this court reversed a dismissal under Rule 12(b)(6)

because, while the plaintiffs failed to state a RICO claim, they had adequately

pleaded claims of “garden variety” fraud and conversion. There is no indication

in Barrett, however, that the plaintiffs either failed to name the correct defendants

or failed to allege personal participation by them.

      Plaintiff’s citation to Stidham, 265 F.3d 1144, is similarly unavailing. In

Stidham, one of the defendants, the director of Utah’s Peace Officer Standards

and Training Division, argued that the claims against him must be dismissed

because the plaintiff had failed to allege an affirmative link between his conduct

and any constitutional violation. This court clarified that such a link is required

to be alleged in the complaint as well as proven at trial. Id. at 1157. We refused

to affirm the dismissal of the complaint against the director, however, because the

plaintiff had sufficiently alleged wrongdoing on the part of the defendants as a

group and had defined the director as part of that group. Id.

      Although not part of the published opinion in Stidham, the complaint there

clearly alleged that the defendant director was the director at the time of the acts

complained of. 2 The complaint in the case at bar does not make a similar




2
       We have ascertained this fact by taking judicial notice of the appellate
record in Stidham which is still on file in this court.

                                         -5-
allegation as to the named defendants and therefore does not state a claim upon

which relief can be granted.

       Finally, plaintiff argues that the district court erred in refusing to grant it

leave to amend the complaint. In declining to grant leave to amend, the district

court began by noting that defendants had pointed out plaintiff’s failure to allege

personal participation when they filed their motion to dismiss in the Southern

District of Texas. Briefing on that motion was complete before the case was

transferred to Colorado. We also note that defendants made the same argument in

their renewed motion to dismiss filed in the district court on December 19, 2001.

At the time of the district court’s ruling here, January 24, 2003, discovery in the

case was complete and the deadline for filing dispositive motions had passed

without any request from plaintiff to amend the complaint. The district court

concluded that “it is patently obvious that the plaintiff cannot prevail under the

alleged facts and that an opportunity to amend would be futile.” Aplt. App. at

164. We review this conclusion de novo. Watson ex rel. Watson v. Beckel, 242

F.3d 1237, 1239 (10th Cir. 2001).

      We have reviewed the pleadings on file in this case and the other materials

of record and agree that granting leave to amend would be futile. As noted above,

plaintiff does not allege any personal participation by any of the defendants in its

alleged injury. Plaintiff does not dispute that three of the four defendants were not


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members of the Commission in March 1999 when the wells were ordered plugged.

Despite being on notice that defendants would raise the issue of lack of personal

participation, plaintiff did not request leave to amend its complaint until the

district court was prepared to rule on defendants’ renewed motion to dismiss.

Even then, the district court found the request to be rather opaque: “There is some

suggestion in the papers that the plaintiff should be given leave . . . to replead.”

Aplt. App. at 163. Further, plaintiff does not indicate in its filings in this court

how it would amend the complaint to cure the noted defect. Under these

circumstances, we find no error in the refusal of the district court to grant leave to

amend.

      The judgment of the district court is AFFIRMED.



                                                      Entered for the Court



                                                      Michael W. McConnell
                                                      Circuit Judge




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