Bilyeu v. The Daily Oklahoman

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 5, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
SHEILA BILYEU,
Plaintiff-Appellant,
v. No. 05-6010
(D.C. No. 04-CV-1428-R)
THE DAILY OKLAHOMAN; NOLAN (W.D. Okla.)
CLAY,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY , McKAY , and McCONNELL , 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This order and judgment is not binding precedent, except under the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. 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.
Pro se plaintiff Sheila Bilyeu was the Independent Party candidate for
Oklahoma’s United States Senate seat in 2004. As such, she was the subject of a
September 6, 2004, newspaper article written by Nolan Clay and published by The
Daily Oklahoman (“defendants”). 1
Dissatisfied with the article and a photograph
“that made her look weird,” Ms. Bileyu sued defendants in state court “for
discrimination and conspiracy to ruin her life and her candidacy for the U.S.
Senate,” Aplee. App. Doc. 2 at 2 (complaint).
Defendants removed the case to federal court and filed a motion to dismiss
for failure to state a claim upon which relief can be granted, Fed. R. Civ. P.
12(b)(6). The district court granted defendants’ Fed. R. Civ. P. 12(b)(6) motion
and dismissed the case with prejudice. This appeal followed.
Our jurisdiction arises under 28 U.S.C. § 1291. We review de novo a
district court’s dismissal of a complaint for failure to state a claim upon which
relief can be granted, Fed. R. Civ. P. 12(b)(6). Sutton v. Utah State Sch. for the
Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). Because Ms. Bilyeu is
representing herself, we construe her pleadings liberally. Hall v. Bellmon , 935
F.2d 1106, 1110 (10th Cir. 1991).
1
“[I]n the interest of judicial economy,” The Oklahoman has accepted
service in the name of The Daily Oklahoman , despite defendants’ contention that
The Daily Oklahoman is not a proper party to this suit. Aplee. Br. at 1 n.1.
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On appeal, Ms. Bilyeu contends that the district court judge should have
recused himself because he has twice previously ruled against her. But “‘adverse
rulings cannot in themselves form the appropriate grounds for disqualification.’”
United States v. Nickl , 427 F.3d 1286, 1298 (10th Cir. 2005) (quoting Green v.
Branson , 108 F.3d 1296, 1305 (10th Cir. 1997)). We therefore hold that, on the
facts of this case, the district court judge was not required to recuse himself.
We likewise reject Ms. Bilyeu’s assertion that the district court erred by
granting defendants’ 12(b)(6) motion. Having carefully reviewed the briefs, the
record, and applicable law, we agree with the district court that Ms. Bilyeu’s
complaint fails to state a claim upon which relief can be granted, Fed. R. Civ. P.
12(b)(6).
Andrew S. Bestor’s motion for leave of the court to file an amicus curiae
brief is DENIED. Ms. Bilyeu’s motion to find appellees “out of time” is
DENIED. The judgment of the district court is AFFIRMED.
Entered for the Court
Michael W. McConnell
Circuit Judge
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