                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit

                                                         August 12, 2009
                  UNITED STATES COURT OF APPEALS
                                               Elisabeth A. Shumaker
                                                          Clerk of Court
                         FOR THE TENTH CIRCUIT


NAOMI A. STINSON, as a private
attorney, ex rel, the United States of
America, and as next friend of Glenn
Horace Stinson,

             Plaintiff-Appellant,
                                                   No. 08-6238
v.                                       (D.C. No. 5:07-CV-00387-WFD)
                                                  (W.D. Okla.)
ALLISON MAYNARD, an individual;
ANGELA MARTIN, an individual;
BILL O-BRIEN, an individual;
BRINDA WHITE, an individual;
BRYAN SLABOTSKY, an individual;
CHARLES S. ROGERS, an individual;
CHARLIE PRICE, an individual;
CHRISTY BAKER, an individual;
CLAIRE V. EAGAN, an individual;
CLAUDIA CONNER, an individual;
DAN WEITMAN, an individual;
DAVID KINNEY, an individual;
DAVID L. RUSSELL, an individual;
DEBRA SCHWARTZ, an individual;
DIANE L. SLAYTON, an individual;
DON BROWN, an individual; DON
SELF, an individual; DOROTHY
BROWN, an individual; DOUGLAS L.
JACKSON, an individual; E. EDD
PRITCHETT, an individual;
EDWARD CLYDE KIRK, an
individual; ELIZABETH RYAN, an
individual; ELIZABETH SCOTT, an
individual; ELLEN PHILLIPS, an
individual; FRANK H. SEAY, an
individual; GAY ABSTON TUDOR,
an individual; GLEN D.
HAMMONDS, an individual; GRANT
MOAK, an individual; GREGORY K.
FRIZZELL, an individual; GREGORY
T. METCALFE, an individual;
GRETCHEN HARRIS, an individual;
H. DALE COOK, an individual;
HEATH ROBINSON, an individual;
JAMES BARWICK, an individual;
JAMES H. PAYNE, an individual;
JANE F. WHEELER, an individual;
JANIS W. PRESLAR, an individual;
JAY SCHNIEDERJAN, an individual;
JENNIFER B. MILLER, an individual;
JENNIFER DICKSON, an individual;
JENNIFER STRICKLAND, an
individual; JOANN STEVENSON, an
individual; JOE HEATON, an
individual; JOELLYN A.
MCCORMICK, an individual; JOHN
CRITTENDEN, an individual; JOHN
DOE number one, an individual;
JOHN DOE number two, an
individual; JULIE BAYS, an
individual; KAREN DIXON, an
individual; KARL HAWKINS, an
individual; KATHY BASS, an
individual; KEELEY L. HARRIS, an
individual; KELLY HUNTER
BURCH, an individual; KEVIN
MCCLURE, an individual;
KIMBERLY WHITE, an individual;
KINDY JONES, an individual; LEE R.
WEST, an individual; LINDA K.
SOPER, an individual; LISA
MOLINSKY, an individual; LYNN C.
ROGERS, an individual; MARC S.
PATE, an individual; MARIANNE
SMITH HARDCASTLE, an
individual; MARTHA KULMACZ, an
individual; MARY ANN ROBERTS,
an individual; NEAL BRYAN, an


                                     -2-
individual; NEAL LEADER, an
individual; PHILLIP L. STAMBECK,
an individual; PRESTON DRAPER, an
individual; RALPH G. THOMPSON,
an individual; RICHARD D.
OLDERBAK, an individual;
RICHARD MANN, an individual;
ROBERT L. BARR, an individual;
ROBERT SINGLETARY, an
individual; ROBERT WHITAKER, an
individual; ROBERT J. CAUTHRON,
an individual; RONALD A. WHITE,
an individual; RONALD G.
FRANKLIN, an individual; SANDRA
D. RINEHART, an individual; SCOTT
BOUGHTON, an individual; SETH
BRANHAM, an individual; SHERRY
A. TODD, an individual; STEPHANIE
JACKSON, an individual; STEPHEN
KRISE, an individual; STEPHEN P.
FRIOT, an individual; SUSAN C.
STALLINGS, an individual; SUSAN
K. NOLAND, an individual; SUSAN
KRUG, an individual; SUSIE
PRITCHETT, an individual;
TERENCE C. KERN, an individual;
THEODORE PEEPER, an individual;
THOMAS L. TUCKER, an individual;
THOMAS W. GRUBER, an
individual; TIM LEONARD, an
individual; TOM BALES, an
individual; TOMMY HUMPHRIES, an
individual; TREVOR HAMMONS, an
individual; TRICIA L. EVEREST, an
individual; VICKI MILES-
LAGRANGE, an individual; W. A.
EDMONDSON, an individual;
WALTER JENNY, an individual;
WAYNE JOHNSON, an individual;
WHITNEY WEINGARTNER, an


                                    -3-
    individual; WILLIAM L. HUMES, an
    individual; WILLIAM R. HOLMES,
    an individual; DENNIS BANTHER, an
    individual; CATHY STOCKER, an
    individual; MARK A. MOORE, an
    individual; MONTI I. BELOT, a.k.a.
    “The Bee”, an Individual; A. JOE
    FISH, an individual; DAVID HAWK,
    an individual; BARRY REILLY, an
    individual; ELDON DICKSON, an
    individual; SUSAN O. WILLIAMS, an
    individual; ANTHONY FELDER, an
    individual; DALE CHOATE, an
    individual; WANDA COLLIER, and
    JOHN DOE COLLIER, a married
    couple; REVA JEANNE LUBER, and
    JOHN LUBER, a married couple;
    BRAD THRASH, an individual; JOHN
    DOE number three, an individual;
    JOHN DOE number four, an
    individual; BEATRIX BARR, wife of
    Robert L. Barr,

               Defendants-Appellees.


                          ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and ANDERSON, 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)(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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                         -4-
      Naomi A. Stinson appeals pro se the district court’s dismissal of her action

under Fed. R. Civ. P. 12(b)(6). Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.

      Ms. Stinson filed an amended complaint against 123 defendants, purporting

to allege causes of action under the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. § 1964(c), and 42 U.S.C. § 1983. She

alleged in her amended complaint that all of the defendants were members of a

syndicate of organized crime. She further stated that:

             [a]fter picking a convenient target, [David] Russell and the
      others will surreptitiously contact the target, then knowingly utter
      false evidence of indebtedness to the target with the intent to deceive
      the person and extort money and property from them. Documents
      used by Russell and co-conspirators are purported by Russell and
      Russell’s co-conspirators to be genuine but are not because they have
      been falsely made or manufactured in their entirety.

R., Doc. 6 at 6. Ms. Stinson thereafter asserted that defendant Russell, on

specified dates, uttered false documents constituting manufactured evidence of

indebtedness through the United States mail. She also accused defendants Robert

Barr, E. Edd Pritchett, Susie Pritchett, Bryan Slabotsky, Douglas Jackson, and

Ronald Franklin of aiding and abetting “Russell’s scam.” Id. at 7. 1


1
        Although there is no reference in her amended complaint to previous
litigation, the district court surmised that Ms. Stinson’s claims appear to relate to
an action brought by the United States against Ms. Stinson, her husband, and their
children, to recover a judgment for unpaid taxes and foreclosure tax liens. In that
prior case, Judge David Russell, United States District Judge for the Western
                                                                       (continued...)

                                         -5-
      Numerous defendants filed motions to dismiss Ms. Stinson’s amended

complaint, raising various theories. In its dismissal order, the court construed her

amended complaint as attempting to raise RICO claims based on fraud. It noted

that, other than in the case caption, plaintiff mentioned only a handful of the

named defendants in her amended complaint, and she failed to specify how any

defendant was involved in a racketeering enterprise. The court concluded that

Ms. Stinson did not allege her fraud-based RICO claims with particularity, as

required by Fed. R. Civ. P. 9(b). Therefore the court dismissed all claims against

all defendants with prejudice under Rule 12(b)(6). 2 The court declined to allow

Ms. Stinson another opportunity to amend her complaint, noting that her

complaint was “vague, conclusory, and utterly incomprehensible,” and that “[h]er

later filings do not serve to clarify,” but instead “only allowed her to add

additional defendants and make further spurious claims without any factual

averments to support an implication of criminal wrongdoing.” R., Doc. 88 at 7.


1
 (...continued)
District of Oklahoma and one of the defendants in this case, entered judgment in
favor of the United States. Land belonging to the Stinsons was subsequently sold.
When Mr. Stinson failed to vacate that property, state-court criminal proceedings
were brought against him. Many of the defendants in this action were involved in
the prior court proceedings involving the Stinsons. See R., Doc. 73 at 1-2.
2
      Citing an additional basis for dismissal of Ms. Stinson’s claims against
some of the defendants, the court concluded that the allegations against the
numerous judicial and prosecutorial defendants related to their exercise of official
responsibilities, and therefore those defendants were entitled to absolute
immunity.

                                         -6-
      “We review de novo a district court’s decision on a Rule 12(b)(6) motion

for dismissal for failure to state a claim.” Alvarado v. KOB-TV, L.L.C., 493 F.3d

1210, 1215 (10th Cir. 2007). In doing so, we accept as true all well-pleaded

allegations of the complaint and construe them in the light most favorable to the

plaintiff. See id. We “look to the specific allegations in the complaint to

determine whether they plausibly support a legal claim for relief.” Id. at 1215

n.2. “For [a] fraud claim, the pleading standard is higher: ‘In all averments of

fraud or mistake, the circumstances constituting fraud or mistake shall be stated

with particularity.’” Pace v. Swerdlow, 519 F.3d 1067, 1073 n.5 (10th Cir. 2008)

(quoting Fed. R. Civ. P. 9(b)). We liberally construed Ms. Stinson’s pro se

pleadings. See Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005).

      Ms. Stinson raises several claims of error on appeal. First she asserts that

the district court erred in dismissing her husband’s complaint for false arrest and

false imprisonment. Her second contention is that the district court misapplied

the Federal Rules of Civil Procedure in dismissing her RICO claim. She argues

that she was only required to include in her amended complaint a short and plain

statement of her claim and why she was entitled to relief. Alternatively, she

argues that the court should have applied the summary judgment standard because




                                         -7-
the defendants failed to rebut her sworn testimony. Finally, Ms. Stinson contends

that the district court should have afforded her an opportunity to replead. 3

      Plaintiff’s first contention is without merit. The district court construed her

amended complaint to allege RICO fraud-based violations. 4 She points to nothing

in that pleading that would support a claim based upon her husband’s alleged

false arrest or false imprisonment, nor do we find any such allegations in the

amended complaint. Ms. Stinson protests in her reply brief that her amended

complaint incorporated all of the allegations from her original complaint. But

even if an incorporation by reference in an amended complaint were sufficient to

carry through allegations included in an earlier pleading, we can identify no such

allegations in her original complaint.

      Regarding the district court’s dismissal of her RICO claims, Ms. Stinson

completely ignores the heightened pleading standard applicable to fraud claims

under Rule 9(b). Moreover, her contention that dismissal was improper because

none of the defendants rebutted her “sworn testimony,” Aplt. Opening Br. at 18,

3
       Ms. Stinson does not challenge in her opening appeal brief the district
court’s construction of her RICO claims, its holding that she failed to allege facts
with particularly in support of her fraud claims, or its holding regarding absolute
immunity as applicable to some of the defendants. As such, we deem those issues
waived. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (holding
omission of issue in opening brief “generally forfeits appellate consideration of
that issue”).
4
       In an earlier order dismissing Ms. Stinson’s claims against some of the
defendants, the district court also construed her claims under 42 U.S.C. § 1983 as
resting upon her RICO fraud-based allegations. See R., Doc. 73 at 9.

                                          -8-
misconstrues the court’s function on a Rule 12(b)(6) motion, which “is not to

weigh potential evidence that the parties might present at trial, but to assess

whether the plaintiff’s complaint alone is legally sufficient to state a claim for

which relief may be granted.” Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir.

2006) (emphasis added). Thus, absent exceptions not applicable here, when

considering a Rule 12(b)(6) motion, “a federal court may only consider facts

alleged within the complaint.” County of Santa Fe v. Pub. Serv. Co. of N.M.,

311 F.3d 1031, 1035 (10th Cir. 2002).

      Finally, Ms. Stinson appears to argue that, because she is pro se, the district

court should have granted her leave to file a second amended complaint. We

review a district court’s denial of leave to amend a complaint for an abuse of

discretion. See Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d

1357, 1362-63 (10th Cir. 1989). Plaintiff fails to address any of the district

court’s specific bases for denying her leave to amend. We note, as well, that the

district court dismissed her RICO claims against some of the defendants in June

2007, because they failed to satisfy the heightened pleading requirements of Rule

9(b). Despite receiving notice via that order that her amended complaint was

deficient, Ms. Stinson apparently chose to stand on that pleading until all her

claims were dismissed on the same basis more than a year later. See Sheldon v.

Vermonty, 269 F.3d 1202, 1207 n.5 (10th Cir. 2001) (holding dismissal with

prejudice appropriate where plaintiff had already filed previous amended

                                          -9-
pleadings that failed to cure the deficiencies in his claims). Ms. Stinson identifies

no basis for this court to conclude that the district court abused its discretion in

dismissing her amended complaint with prejudice.

      We AFFIRM the district court’s dismissal of plaintiff’s claims under

Fed. R. Civ. P. 12(b)(6) on the bases stated in the district court’s dismissal order

dated September 30, 2008. See R., Doc. 88. We DENY Ms. Stinson’s motion to

proceed in forma pauperis on appeal and remind plaintiff that she is responsible

for the immediate payment of any unpaid balance of the appellate filing fee.


                                                      Entered for the Court



                                                      John C. Porfilio
                                                      Circuit Judge




                                          -10-
