F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 11, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
PETER E. WA SK O ,
Plaintiff-Appellant, No. 06-2314
v. (D. New M exico)
HERBERT M. SILVERBERG (D.C. No. CIV-05-1073 JB/RHS)
Defendant-Appellee.
OR DER
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.
Peter W asko filed this action pursuant to 42 U.S.C. § 1983, alleging that
the defendant Herbert M . Silverberg, an attorney who had represented M r. W asko
in a wrongful termination proceeding before the New M exico Human Rights
Commission, committed malpractice. In a thorough and well-reasoned
memorandum opinion and order, the district court dismissed M r. W asko’s
complaint on two grounds. First, the court concluded that the defendant M r.
Silverberg was not a state actor and thus could not be sued in a § 1983 action.
Second, the court held that M r. W asko’s complaint was barred by the doctrine of
res judicata because M r. W asko had raised the same claim in a prior federal
lawsuit. See W asko v. Silverberg, 103 Fed. Appx. 332, 334 (10th Cir. 2004).
M r. W asko now seeks to appeal the district court’s dismissal of his action.
He has moved to proceed in forma pauperis.
For substantially the same reasons set forth in the district court’s order, w e
conclude that M r. W asko has failed to present a reasoned non-frivolous challenge
to the district court’s ruling. M r. Silverberg was clearly not a state actor. See
American M frs. M ut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) (liability
under § 1983 requires showing that deprivation of federal right was committed
under color of state law). M oreover, this action is barred by the doctrine of res
judicata. Nwosun v. Gen. M ills Rests., Inc., 124 F.3d 1255, 1257 (10th Cir.
1997) (explaining that res judicata applies when: (1) the prior action has been
finally adjudicated on the merits; (2) the parties are identical or in privity; (3) the
suit is based on the same cause of action; and (4) the plaintiff had a full and fair
opportunity to litigate the claim in the prior action).
Accordingly, we DENY M r. W asko’s motion to proceed in forma pauperis
and DISM ISS this appeal.
Entered for the Court,
Robert H. Henry
United States Circuit Judge
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