PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DUANE R. SWITZER ,

Plaintiff-Appellant,

v.

PATRICIA A. COAN ; ZITA L. WEINSHIENK ; WALKER D. MILLER; THOMAS LEE STRICKLAND ; STEPHANIE K. SEYMOUR; STEPHEN HALE ANDERSON; BOBBY R. BALDOCK ; MARY BECK BRISCOE ; WADE BRORBY ; DAVID M. EBEL ; ROBERT H. HENRY; PAUL J. KELLY, JR.; CARLOS F. LUCERO; MICHAEL R. MURPHY; JOHN C. PORFILIO ; DEANELL REECE TACHA ; JAMES E. BARRETT; WILLIAM J. HOLLOWAY, JR.; JAMES K. LOGAN; MONROE G. MCKAY ; ROBERT H. MCWILLIAMS ; PATRICK FISHER; JOHN K. KLEINHEKSEL , and other unknown staff attorneys and law clerks,

Defendants - Appellees.

No. 00-1400

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 99-D-1705)

Submitted on the briefs:

Duane R. Switzer, Pro se.

Richard B. Caschette, First Assistant United States Attorney, Michael E. Hegarty, Assistant United States Attorney, Denver, Colorado, for Defendants-Appellees.

Before HENRY, BALDOCK, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Following adverse trial and appellate rulings in other cases, see generally Switzer v. Berry, 198 F.3d 1255, 1257 (10th Cir. 2000); Switzer v. Jones, No. 99-1508, 2000 WL 1289204 (10th Cir. Sept. 13, 2000) (unpub.), plaintiff filed suit against a long list of magistrate, district, and appellate judges of this circuit; the circuit's clerk, former chief staff attorney, unspecified staff attorneys and law clerks; and a former U. S. Attorney for Colorado. Plaintiff alleged he "is the victim of a denial of meaningful access to the courts and [an] obstruction of justice conspiracy perpetrated by the defendants because of his status as a pro se litigant in that Orders and Opinions issued by the defendant Article III judges are actually authored by the defendant staff attorneys and law clerks and signed by the defendant Article III judges who have not bothered to read what their clerks and staff attorneys have written."

Plaintiff characterized the alleged conduct as unconstitutional and criminal, and formally pled two claims for relief: one designated "fraud on the court" and the other a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). He did not seek damages, but concluded his pleadings with numerous requests for equitable relief and a blanket demand for the recusal of all Tenth Circuit appellate and district judges.1 The district court dismissed the action, holding that the complaint failed to state a claim upon which relief could be granted and that the inadequacy could not be cured by amendment. We affirm, though with some modification in rationale.2

One significant complication here is that the proper legal characterization of the first claim framed by the pleadings is far from clear. It has some features indicative of the "independent action to . . . set aside a judgment for fraud on the court" expressly preserved in Rule 60(b)3: it is formally designated "fraud on the court" and includes allegations of such fraud; one of the specific requests for relief is that the court set aside an adverse judgment; and the complaint references several precedents involving Rule 60(b) actions. But, it also has several features appropriate, rather, to a Bivens4 claim: it encompasses specific allegations of unconstitutional conduct; the federal officers implicated in the conduct are named defendants against whom relief is sought; the complaint invokes federal question jurisdiction pursuant to 28 U.S.C. § 1331, a jurisdictional basis necessary for a Bivens claim but not for a Rule 60(b) action;5 and the relief requested includes a wide range of injunctive and declaratory remedies clearly beyond the limited scope of a Rule 60(b) action "to set aside a judgment." The distinction between a Rule 60(b) action and a Bivens claim is not academic. Elements of the claims, specificity-of-pleading rules, standards of review, affirmative defenses, and available relief all differ significantly.

When the substance of a legal claim is otherwise present, this court has indicated that "confusion of various legal theories," a technical pleading error, should not be dispositive in pro se cases. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Consequently, our disposition of the fraud on the court allegations will separately address the two distinct legal claims identified above.

Rule 60(b) Action

We review the disposition of a Rule 60(b) action for fraud on the court under an abuse of discretion standard. See Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1267 (10th Cir. 1995); Bulloch v. United States, 763 F.2d 1115, 1122 (10th Cir. 1985) (en banc). As explained below, the district court's analysis of the legal insufficiency of this claim is correct and should therefore be affirmed. And, for reasons independent of those relied upon by the district court, we affirm its ruling that amendment of the pleadings should not be allowed.

A. Dismissal of Claim

This court has adopted the following definition of fraud on the court:

Fraud on the court . . . is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. . . . It is thus fraud where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function–thus where the impartial functions of the court have been directly corrupted.

Robinson, 56 F.3d at 1266 (citation and quotation omitted, emphasis added).

The government's brief could be read as suggesting that fraud on the court requires an external influence brought to bear on the court. Plaintiff counters this suggestion by referring to the emphasized portion of the above passage from Robinson, which appears to contemplate a fraud on the court claim based on an improper abdication or delegation of Article III authority by the judge.

Rather than focusing on the more nebulous aspects of a claim asserting fraud on the court, the district court held that the pleadings lacked a specific and essential allegation of intent. Relying upon the Robinson opinion, the district court stated that plaintiff's allegations "are simply too conclusory and vague to support such a claim." District Court Order at 4. In Robinson, this court clarified that "'fraud on the court,' whatever else it embodies, requires a showing that one has acted with an intent to deceive or defraud[, i.e.,] . . . a showing of conscious wrongdoing–what can properly be characterized as a deliberate scheme to defraud–before relief from a final judgment is appropriate under the Hazel-Atlas[] standard." 56 F.3d at 1267. The district court properly resolved that the complaint fails to allege the fraudulent intent necessary to support a Rule 60(b) action.7 The district court thus did not abuse its discretion in dismissing the claim.

B. Futility of Amendment

The district court went on to reject the possibility of curative amendment, saying:

The Court will take judicial notice of the fact that the district court and circuit judges of the Tenth Circuit first review, approve and sign all Orders and Rulings before they are entered in their respective cases, including matters brought by pro se litigants. Accordingly, any effort to show that the federal courts of the Tenth Circuit have improperly delegated all of their judicial authority to their clerks would be futile. Therefore, permitting Plaintiff to amend his Complaint would be pointless.

District Court Order at 5. While we certainly would not gainsay this observation regarding judicial practice in the Tenth Circuit, we also do not rely on it as a conclusive fact in this case.

Plaintiff asserts that judges in this circuit have issued decisions which they have not read. While the district judge may personally know this allegation is false, such knowledge is not a proper basis for judicial notice. United States v. Lewis, 833 F.2d 1380, 1385-86 (9th Cir. 1987); United States v. Sorrells, 714 F.2d 1522, 1527 n.6 (11th Cir. 1983); Virgin Islands v. Gereau, 523 F.2d 140, 147-48 (3d Cir. 1975). "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned." Fed. R. Evid. 201(b). The confidential, internal workings of the federal judiciary do not seem to fall into either category: they are inherently outside the realm of general knowledge and there are no ready sources for incontestable confirmation of the facts in question here.8

Plaintiff, however, has never challenged the district court's futility of amendment analysis, nor does he argue even now that he could have corrected the deficiency in his pleadings by amendment. This is not a mere technical default. If the plaintiff is unable or unwilling to hazard the allegation that the defendants acted with fraudulent intent, particularly after the district court identified this missing element, then he stands on his initial pleading, which is deficient. Indeed, even if plaintiff were to now argue that he should have been allowed to amend his complaint to correct its deficiencies, such a contention would be properly rejected because "it was incumbent upon [him] to seek leave from the district court to make the attempt" after dismissal of his action below. By not doing so, he has "elected to appeal the case as it stood." Dahn v. United States, 127 F.3d 1249, 1252 (10th Cir. 1997); see also Calderon v. Kansas Dep't of Social & Rehab. Servs., 181 F.3d 1180, 1185-87 (10th Cir. 1999) (reaffirming holding in Glenn v. First Nat'l Bank, 868 F.2d 368, 369-71 (10th Cir. 1989), that party cannot object on appeal to lack of opportunity to cure defective pleading when curative amendment was not properly sought in district court).

Bivens Claim

A. Sufficiency of the Pleadings

In contrast to the deference appropriate in fraud on the court actions, we review the dismissal of a Bivens claim de novo. Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001). Plaintiff's allegations of unconstitutional delegation of Article III authority to law clerks and staff attorneys in pro se proceedings would appear to state such a claim.

The U.S. Attorney attempts to bolster the district court's disposition by citing several cases generally describing with approval various proper uses of law clerks.9 See, e.g., Fredonia Broadcasting Corp. v. RCA Corp., 569 F.2d 251, 256 (5th Cir.), cert. denied, 439 U.S. 859 (1978); Dorsey v. Kingsland, 173 F.2d 405, 413 (D.C. Cir.), rev'd on other grounds, 338 U.S. 318 (1949); Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037, 1047 (7th Cir. 1984) (dissent); Oliva v. Heller, 670 F. Supp. 523, 526 (S.D.N.Y. 1987), aff'd, 839 F.2d 37 (2d Cir. 1988). Plaintiff's allegations of wrongdoing, however, go beyond the facts in those cases by effectively alleging that the judges wholly delegate their official duties and assign their powers to staff. At this stage of the proceedings, these allegations must be accepted as true and construed in the light most favorable to plaintiff. Oxendine, 241 F.3d at 1278.

B. Availability of an Adequate Legal Remedy

In Bolin v. Story, 225 F.3d 1234 (11th Cir. 2000), the plaintiffs' allegations were similar to those presented here: "the defendant federal judges do not READ anything submitted by pro se litigants, thereby defrauding them of the judgments that are rightfully theirs;" the "defendant district judge . . . had not read any of [plaintiff's earlier] § 2255 petition and that 'predictably' his arguments will not be read by Article III judges [on appeal] either;" and "someone else . . . is writing [the district judge's] opinions for him." Id. 1236-37. Based on these allegations, the plaintiffs in Bolin, as the plaintiff here, sought declaratory and prospective injunctive relief under Bivens for the alleged wrongdoing in the earlier cases. In addition to applying judicial immunity, the court in Bolin noted, as an alternative basis to affirm dismissal, that the earlier proceedings had provided adequate remedial process through appellate review or an extraordinary writ, thereby precluding equitable relief in the subsequent civil rights case.10 Id. at 1243. In similar Bivens actions against federal judges, other courts have rejected equitable claims on this basis as well. See, e.g., Scruggs, 870 F.2d at 378; Affeldt v. Carr, 628 F. Supp. 1097, 1102-03 (N.D. Ohio 1985). While this court has not considered the matter in precisely this context, it has repeatedly applied the general rule that equitable relief is available only in the absence of adequate remedies at law. See Floyd v. IRS, 151 F.3d 1295, 1300 (10th Cir. 1998); United States v. Madden, 95 F.3d 38, 39 (10th Cir. 1996); Winfield Assocs., Inc. v. Stonecipher, 429 F.2d 1087, 1090-91 (10th Cir. 1970).

Plaintiff's prayer for relief includes requests that the court vacate past adverse decisions and allow him discovery. This relief was available through such standard legal means as post-judgment motion, appeal,11 mandamus, prohibition, and/or certiorari review in the prior proceedings. We note in this regard that the sources upon which petitioner loosely bases his allegations of improper Article III delegation long predate the prior proceedings.12

Plaintiff also requested less conventional remedies: that the court (1) "prepare a Report to be sent to Congress addressing the depredations complained of herein;" (2) "convene a grand jury . . . to investigate the criminal depredations of the defendants named herein;" and (3) declare (a) that "the practice of allowing law clerks and/or staff attorneys to do any research or draft any opinion or part thereof in either the district or appellate courts [is] unconstitutional" and (b) "that plaintiff, as a pro se litigant, is entitled to the same consideration in adjudication of his actions as any lawyer from any 'blue chip' law firm." These requests replicate, virtually verbatim, the relief sought by the plaintiff in Bolin. See 225 F.3d at 1237. Without addressing whether all such relief could have been obtained in the prior legal proceedings, the Bolin court broadly held that those proceedings provided a legal remedy sufficient to preclude the subsequent pursuit of collateral equitable relief under Bivens. We note, in any event, that barriers to these non-traditional remedies exist whether these remedies are viewed in the context of the earlier proceedings or this Bivens action.13

RICO

The district court dismissed plaintiff's RICO claim for failure to allege a pattern of racketeering activity with sufficient particularity, presumably for lack of names, dates, and specific instances of the alleged conduct. Plaintiff insists he did the best he could without the benefit of internal court information or discovery to obtain such information.

In any event, the "adequate legal remedy" principle barring the Bivens claim applies as well to bar the same equitable relief sought under RICO.14 Further, there is an obvious RICO pleading deficiency here having nothing to do with plaintiff's incomplete factual knowledge: the "enterprise" he specified in the complaint is simply the group of individual defendants accused of engaging in the racketeering. "It is well-settled in this circuit, as in most others, that for purposes of 18 U.S.C. § 1962(c),[] the defendant 'person' must be an entity distinct from the alleged 'enterprise.'" Brannon v. Boatmen's First Nat'l Bank, 153 F.3d 1144, 1146 (10th Cir. 1998) (following Board of County Comm'rs v. Liberty Group, 965 F.2d 879, 885 & n.4 (10th Cir. 1992)); see also Cedric Kushner Promotions, Ltd. v. King, 121 S. Ct. 2087, 2091 (2001) ("accepting the [RICO] 'distinctness' principle" developed in the circuit courts, though holding it inapplicable under circumstances irrelevant to the instant case). Plaintiff has thus failed to allege an enterprise distinct from the individual defendants.

The judgment of the United States District Court for the District of Colorado is AFFIRMED. The U.S. Attorney's motion to file a supplemental appendix containing the pleadings, motions, and orders in the district court file is GRANTED.