                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          SEP 30 1997

                                   TENTH CIRCUIT                    PATRICK FISHER
                                                                             Clerk



 HARRISON DWIGHT FOOS;
 CAROLYN SUE FOOS,

          Plaintiffs-Appellants,
                                                       No. 97-3129
                                               (D.C. No. 97-CV-1129-MLB)
 v.
                                                         (Kansas)
 STEVE TIMKEN,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.



      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); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.

      Plaintiffs Harrison Dwight Foos and Carolyn Sue Foos appeal the dismissal

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
without prejudice of their complaint against Steve Timken. We agree with the

district court that plaintiffs have failed to state a claim upon which relief may be

granted. Accordingly, we AFFIRM the judgment of the district court

substantially for the reasons given in the court’s Memorandum and Order dated

May 5, 1997.

                                                ENTERED FOR THE COURT


                                                Stephanie K. Seymour
                                                Chief Judge




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