FILED
United States Court of Appeals
Tenth Circuit
July 24, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JANICE L. SCHRADER,
Plaintiff - Appellant, No. 09-2027
v. (D. New Mexico)
ROBERT F. TURNER; EDWARD P. (D.C. No. 1:08-CV-01081-BB-KBM)
APODACA; RAMONA BARBA,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
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
*
This order and judgment is not binding precedent except under the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.
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 Servs., 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 Serv.
Co., 323 F.3d 585, 866 (10th Cir. 2003). In any event, Schrader’s conspiracy
theory fails because she has not identified a state actor involved in the alleged
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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. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (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.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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