                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         APR 14 2004
                             FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


    STATE OF NEW MEXICO, ex rel.
    RICHARD TAST,

               Plaintiff-Appellant,

    v.                                                 No. 03-2150
                                               (D.C. No. CIV-03-312 JP/LFG)
    GAMING CONTROL BOARD, State                          (D. N.M.)
    of New Mexico, each member thereof
    at times pertinent; MADONNA N.
    BIXBY, individually and as Executive
    Director; PEGGY HARDWICK, as
    Counsel for the Gaming Control
    Board; OFFICE OF THE NEW
    MEXICO GOVERNOR,

               Defendants-Appellees,

         and

    OFFICE OF THE NEW MEXICO
    ATTORNEY GENERAL; J. KEVIN
    KISER, as Hearing Official for the
    Gaming Control Board,

               Defendants.




                             ORDER AND JUDGMENT         *




*
  The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
                                                                      (continued...)
Before LUCERO , McKAY , and TYMKOVICH , Circuit Judges.


      Plaintiff Richard Tast, proceeding pro se, appeals the district court’s order

dismissing his complaint against the following defendants: Gaming Control

Board (Board), Madonna N. Bixby, Peggy Hardwick, and Office of the New

Mexico Governor. We exercise jurisdiction under 28 U.S.C. § 1291 and

AFFIRM .

      Tast applied to the Board for a work permit to allow him to work at a New

Mexico gaming facility, which permit the Board denied and affirmed its denial on

administrative appeal. When the attorney general and district attorney refused his

request to take legal action to redress denial of the work permit, Tast filed this

civil rights lawsuit under N.M. Stat. Ann. § 44-3-4, which authorizes quo

warranto causes of action. A quo warranto cause of action permits a private

person to bring a suit in the name of the state when the attorney general or district

attorney refuses to act:

            A. when any person shall usurp, intrude into or unlawfully
      hold or exercise any public office, civil or military, or any franchise
      within this state, or any office or offices in a corporation created by
      authority of this state; or,


*
 (...continued)
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.

                                         -2-
              B. when any public officer, civil or military, shall have done
       or suffered an act which, by the provisions of law, shall work a
       forfeiture of his office;

Id. The district court dismissed Tast’s complaint for failure to state a claim upon

which relief can be granted under Fed. R. Civ. P. 12(b)(6).

       Our review of an order dismissing a complaint for failure to state a claim

under Rule 12(b)(6) is de novo.     Hartman v. Kickapoo Tribe Gaming Comm’n           ,

319 F.3d 1230, 1234 (10th Cir. 2003). “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.”         Maher v. Durango Metals, Inc. ,

144 F.3d 1302, 1304 (10th Cir. 1998). Dismissal of a complaint 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.”

Conley v. Gibson , 355 U.S. 41, 45-46 (1957). Because Tast is representing

himself, we construe his pleadings liberally.      Haines v. Kerner , 404 U.S. 519,

520-21 (1972).

       Tast asserts that the district court’s judgment was based on the erroneous

conclusion that the attorney general’s or district attorney’s refusal to file an

action against an offending party must have been wrongful. He argues that any

refusal, wrongful or not, authorizes a private party to bring a complaint in the

name of the state pursuant to § 44-3-4. Consequently, Tast reasons, the fact that


                                            -3-
the attorney general and the district attorney refused to take legal action to

address his grievance demonstrates that he was entitled to file a quo warranto

action.

       Contrary to Tast’s argument, however, the district court held that Tast

could not maintain his suit because the relief he sought, a private remedy and

damages, is not authorized by § 44-3-4. Quo warranto is used to correct “the

usurpation, misuser, or nonuser, of a public office,”     State ex rel. Martinez v.

Padilla , 612 P.2d 223, 226 (N.M. 1980) (citation omitted), or to “ascertain

whether one is constitutionally authorized to hold the office he claims,”        State

ex rel. N.M. Judicial Standards Comm’n v. Espinosa        , 73 P.3d 197, 198

(N.M. 2003) (quotation omitted). It is “not a proper remedy to test the legality of

the acts of an officer or his misconduct in office, nor to compel, restrain, or

obtain a review of such acts . . . .”   State ex rel White v. Clevenger     , 364 P.2d 128,

131 (N.M. 1961). Because § 44-3-4 does not authorize the relief Tast seeks, the

district court properly dismissed the complaint under Rule 12(b)(6).

       Moreover, because the complaint was dismissed as failing to state a claim

under § 44-3-4, the court did not reach the additional substantive allegations Tast

now presses on appeal.     1
                               We also do not address those issues because we find no


1
  Specifically, Tast argues that: (1) the regulation prohibiting him from
reapplying for a work permit is invalid as a “bill of pains and penalties”; (2) he is
                                                                       (continued...)

                                             -4-
error in the district court’s ruling that Tast cannot receive relief “to correct the

wrong done to him” in an action filed under § 44-3-4. (Appellant Brief at 9);         see

Clevenger , 364 P.2d at 131.

       Tast also complains that the district court improperly denied relief on his

motions and denied his request for a hearing. To the extent Tast claims that the

magistrate judge ruled against his motions due to bias or other improper motive,

we reject Tast’s claim because “adverse rulings cannot in themselves form the

appropriate grounds for disqualification,” and because Tast did not request

recusal. Green v. Branson , 108 F.3d 1296, 1305 (10th Cir. 1997) (quotation

omitted). We also find no error in the district court’s decision to grant the Rule

12(b)(6) motion without a hearing because the issues involved only questions of

law and there is no right to an oral hearing under Rule 12(b)(6).        Steele v. Fed.

Bureau of Prisons , 355 F.3d 1204, 1214 (10th Cir. 2003).

       Tast’s vague suggestion that the district court was without authority to

enter the orders now on appeal is also rejected. Tast has not provided the

requisite argument and pertinent legal authority to invoke our review.         See


1
 (...continued)
a member of an easily ascertainable segment of society singled out for
punishment; (3) the district court usurped its constitutional powers; and
(4) defendants conspired (a) to deprive him of his constitutional right to life,
liberty and the pursuit of happiness, (b) to deprive him of his right to be free of a
life-long restraint against his liberty, and (c) to hold him as chattel property under
unlawful regulations.

                                            -5-
Phillips v. Hillcrest Med. Ctr.    , 244 F.3d 790, 799 n.10 (10th Cir. 2001) (declining

to consider appellate argument not supported by any authority, legal or

otherwise). Finally, we do not consider Tast’s “Notice to the Court of Recently

Acquired Evidence Essential for Decision,” because that information was not first

presented to the district court.    Cf. John Hancock Mut. Life Ins. Co. v. Weisman   ,

27 F.3d 500, 506 (10th Cir. 1994) (holding an appellate court cannot consider

evidence not before the district court in reviewing summary judgment).

Furthermore, the proffered information does not affect our conclusion that Tast’s

claims are improvidently brought under § 44-3-4.

       AFFIRMED . The mandate shall issue forthwith.


                                                        Entered for the Court



                                                        Carlos F. Lucero
                                                        Circuit Judge




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