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affirming the dismissal of a private process server because he was not a state actor under § 1983
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No. 09-2027.
July 24, 2009.
Appeal from the United States District Court for the District of New Mexico.
Janice L. Schrader, Columbus, NM, pro se.
Robert F. Turner, Deming, NM, pro se.
Edward P. Apodaca, Deming, NM, pro se.
Ramona Barba, Deming, NM, pro se.
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
ORDER AND JUDGMENT
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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.
After examining the briefs and the appellate record, this court 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.
Proceeding pro se, Janice L. Schrader appeals the district court's dismissal of the civil rights complaint she brought pursuant to 42 U.S.C. § 1983. In the complaint, Schrader alleged her Fourteenth Amendment due process rights were violated by Defendants: a New Mexico attorney, the attorney's legal assistant, and a New Mexico process server. All three individuals were involved in the representation of a plaintiff who filed a civil suit against Schrader in New Mexico state court. The district court dismissed Schrader's complaint sua, sponte, concluding Defendants are not state actors subject to suit under § 1983. See Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) ("The conduct of an attorney acting in his professional capacity while representing his client does not constitute action under color of state law for the purposes of § 1983." (quotation omitted)); McKinney v. Okla. Dep't of Human Sews., 925 F.2d 363, 365 (10th Cir. 1991) (holding district court may dismiss sua sponte a pro se complaint for failure to state a claim when 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" (quotation and citations omitted)); 28 U.S.C. § 1915(e)(2)(B); Fed.R.Civ.P. 12(b)(6).
In her appellate brief, Schrader argues Defendants conspired with each other to deprive her of her federal due process rights. Schrader's complaint, however, does not assert a 42 U.S.C. § 1985 conspiracy claim and this court does not consider arguments made for the first time on appeal. Hill v. Kan. Gas Sera Co., 323 F.3d 858, 866 (10th Cir. 2003). In any event, Schrader's conspiracy theory fails because she has not identified a state actor involved in the alleged conspiracy. She simply argues Defendants, all private individuals, conspired with each other. Thus, her new allegations are still insufficient to state a claim under § 1983. See Am. Mfrs. Mat. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) ("To state a claim for relief in an action brought under § 1983, [plaintiffs] must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.").
After reviewing the record, the appellate briefs, and the applicable law, we affirm the dismissal of Schrader's complaint for substantially the reasons stated by the district court in its Order dated January 5, 2009. Schrader's motion for oral argument is denied.