                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 19 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    RICHARD LYNN DOPP,

                Plaintiff-Appellant,

    v.                                                    No. 02-5017
                                                    (D.C. No. 01-CV-256-L)
    BEN LORING, District Attorney;                        (N.D. Okla.)
    EDDIE J. WYANT; TRISA K.
    RUNYAN, a/k/a TRISA K. DOPP;
    DELBERT DUCKETT; BRIAN
    WILSON; ROBERT E. REAVIS, II,
    ROBERT G. HANEY; BEVERLY
    STEPP; TIMOTHY PERIGO;
    PEGGY SPICER;
    CATHERINE J. DEPEW,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY , BALDOCK , and LUCERO , 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      This order and judgment is not binding precedent, except under the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.
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.

       Plaintiff Richard Lynn Dopp, proceeding pro se and in forma pauperis,

brought this action under the Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. §§ 1861-1868, against a district attorney, an assistant district

attorney, three state court judges, two state court clerks, an assistant United States

attorney, and three private individuals. The incidents complained of stem from

the seizure of plaintiff’s property pursuant to a valid state-issued search warrant

and from later forfeiture proceedings under both Oklahoma and federal law. With

the exception of plaintiff’s claim against the private individual defendants

Runyan, Duckett, and Wilson, we affirm for substantially the reasons stated by the

district court.

       The district court dismissed plaintiff’s complaint sua sponte under

28 U.S.C. § 1915(e)(2)(b)(ii), (iii), and § 1915A(b)(2) for failure to state a claim

and because some of the defendants plaintiff attempted to sue are immune from

suit. We review this dismissal de novo.     Gaines v. Stenseng , 292 F.3d 1222, 1224

(10th Cir. 2002) (reviewing dismissal under § 1915(e)(2)(b)(ii));   Gagan v.

Norton , 35 F.3d 1473, 1475 (10th Cir. 1994) (reviewing dismissal based on

defendants’ immunity).

       Dismissal of a pro se complaint for failure to state a claim is proper
       only where it is obvious that the plaintiff cannot prevail on the facts

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       he has alleged and it would be futile to give him an opportunity to
       amend. In determining whether a dismissal is proper, we must
       accept the allegations of the complaint as true and construe those
       allegations, and any reasonable inferences that might be drawn from
       them, in the light most favorable to the plaintiff. In addition, we
       must construe a pro se appellant’s complaint liberally.

Gaines, 292 F.3d at 1224 (quotation and citations omitted).

       To the extent plaintiff alleged illegal activity under RICO for actions taken

pursuant to the rulings of a state court, the district court correctly concluded that

its jurisdiction was barred by the    Rooker-Feldman doctrine. See Johnson v.

Riddle , 305 F.3d 1107, 1116 (10th Cir. 2002) (explaining       Rooker-Feldman ). For

those claims not so barred, the district court further correctly determined that all

official defendants (the state and federal prosecutors, the judges, and the court

clerks) had absolute immunity from suit. With respect to the individual

defendants, the district court held that plaintiff’s complaint failed to state a RICO

claim against them because it did not allege an “enterprise” distinct from the

defendant persons themselves.        See 18 U.S.C. § 1962(c).

       To this latter point, plaintiff argues that his complaint adequately stated

a RICO claim against the individual defendants and that, in the alternative,

he should be allowed to amend his complaint to allege the requisite distinct

enterprise. Under RICO, “the ‘person’ and the ‘enterprise’ engaged in

racketeering activities [must] be different entities.”   Bd. of County Comm’rs v.

Liberty Group , 965 F.2d 879, 885 (10th Cir. 1992). Plaintiff argues that because

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he has named more than one individual defendant, he has satisfied the distinct

enterprise requirement. That is not so. Plaintiff must show that the three

individual defendants “were part of an enterprise which had an existence and

purpose distinct from any one of them     to establish [RICO] liability.”   Id.

(emphasis added). RICO liability “depends on showing that the defendants

conducted or participated in the conduct of the ‘enterprise’s affairs,’ not just their

own affairs.” Reves v. Ernst & Young , 507 U.S. 170, 185 (1993).

      As mentioned above, 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). “[P]ro 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). The district court, therefore, erred in

dismissing plaintiff’s complaint with prejudice without first giving him an

opportunity to amend his complaint to cure any deficiencies. “Under 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 ruled upon.”      Neitzke v. Williams , 490 U.S.

319, 329 (1989).


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      Because it is not patently obvious that plaintiff will be unable to state

a RICO claim against defendants Runyon, Duckett, and Wilson, the district court

erred in dismissing that part of the complaint under § 1915(e)(2)(B)(ii). On

remand, plaintiff should be afforded an opportunity to amend his complaint to

cure that deficiency.

      Because we are vacating a portion of the judgment in this case, the

assessment of a strike by the district court for purposes of 28 U.S.C. § 1915(g)

should be rescinded. Plaintiff’s request that this court order the recusal of

all federal district court judges in the Northern District of Oklahoma from

participation in this matter is DENIED. Plaintiff is reminded that he is obligated

to continue making partial payments on his filing fees until they are paid in full.

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED in part and VACATED and REMANDED in part for

further proceedings. The mandate shall issue forthwith.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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