FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 6, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ANTHONY J. LUCERO,
Plaintiff - Appellant,
v. No. 18-1404
(D.C. No. 1:17-CV-01374-WJM-KMT)
JAMES R. KONCILJA; KONCILJA & (D. Colo.)
KONCILJA, P.C.,
Defendants - Appellees.
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ORDER AND JUDGMENT*
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Before MATHESON, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Anthony J. Lucero appeals the dismissal of his pro se complaint alleging
Fourteenth Amendment violations by his former counsel, James R. Koncilja, and the
law firm of Koncilja & Koncilja, P.C. (collectively, the Koncilja firm). We affirm.
I. BACKGROUND
After he was injured at work, Mr. Lucero hired the Koncilja firm to represent
him on worker’s compensation and related state tort claims. Dissatisfied with his
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
legal representation, Mr. Lucero sued the Koncilja firm twice in state court. Both
cases were dismissed. He then initiated this federal suit pro se, asserting three claims
for relief:
(1) The Koncilja firm “committed gross legal malpractice
in every conceivable [re]spect and negligently violated
[his] [Fourteenth] Amendment rights” and “failed to
even do the minimal amount of legal work, . . . filed in
the wrong county, did absolutely no investigation[,]
. . . failed to do any interrogatories, no depositions, no
questioning or photographs of [his] injuries, no
medical discovery, and ultimately [his] legal case was
dismissed for . . . failure to prosecute.” R. at 18
(emphasis and internal quotation marks omitted).
(2) By “filing one day before the deadline and filing [his]
civil case against the wrong parties, Defendants
precluded [him] or any conscientious attorney from
filing [his] case.” Id. at 20.
(3) His “[Fourteenth] Amendment rights were severely
violated in Colorado state courts,” and “[i]t apparently
does not really matter what laws or professional
conduct rules the Koncilja[] [firm] violate[s], the courts
still rule in their favor.” Id.
A magistrate judge recommended dismissal of the Fourteenth Amendment
claims because Mr. Lucero’s allegations against these private parties failed to allege
state action under 42 U.S.C. § 1983. Although Mr. Lucero argued the Koncilja firm
colluded with the state court judge who presided over his case (apparently in his
second state suit against the Koncilja firm), the magistrate judge declined to consider
that state-action theory, ruling that Mr. Lucero could not effectively amend his
complaint with these new collusion allegations.
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The magistrate judge recommended that the remaining claims be liberally
construed to allege state-law malpractice and fraud. Absent a viable federal claim,
however, the magistrate judge recommended that the district court decline to exercise
supplemental jurisdiction over the state-law claims and dismiss them.
Mr. Lucero objected to the dismissal of his Fourteenth Amendment claims but
did not object to the dismissal of the state-law claims.
The district court adopted the magistrate judge’s report and recommendation
but modified its analysis of the Fourteenth Amendment claims. Given Mr. Lucero’s
pro se status, the court considered his state-action theory. The court determined he
failed to state a claim because Mr. Lucero did not allege a sufficient conspiratorial
nexus between the firm and the judge. Rather, he simply averred that the state court
judge ruled in favor of the Koncilja firm, granted its motions for extensions, and
allowed late filings. The court therefore dismissed the Fourteenth Amendment
claims, and without any objection to the dismissal of the state-law claims, dismissed
them as well. Mr. Lucero appealed.
II. DISCUSSION
We review de novo the district court’s dismissal of a complaint under Fed. R.
Civ. P. 12(b)(6) for failure to state a claim. Wasatch Equal. v. Alta Ski Lifts Co.,
820 F.3d 381, 386 (10th Cir. 2016). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Dismissal of
a pro se complaint for failure to state a claim is proper only where it is obvious that
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the plaintiff cannot prevail on the facts he has alleged and it would be futile to give
him an opportunity to amend.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007)
(internal quotation marks omitted).
Although we afford a pro se litigant’s materials a solicitous construction,
Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), we have
“repeatedly insisted that pro se parties follow the same rules of procedure that govern
other litigants,” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005) (internal quotation marks omitted). Indeed, we “cannot take on the
responsibility of serving as the litigant’s attorney in constructing arguments and
searching the record.” Id. “Accordingly, we will not supply additional facts, nor will
we construct a legal theory for plaintiff that assumes facts that have not been
pleaded.” Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (internal
quotation marks omitted).
A. Fourteenth Amendment Claims & State Action
We first consider Mr. Lucero’s Fourteenth Amendment claims. “To state a
cause of action under 42 U.S.C. § 1983 for an alleged violation of the Fourteenth
Amendment . . . , the challenged conduct must constitute state action.” Scott v. Hern,
216 F.3d 897, 906 (10th Cir. 2000) (citing Lugar v. Edmondson Oil Co., 457 U.S.
922, 930-32 (1982)). “When a plaintiff in a § 1983 action attempts to assert the
necessary ‘state action’ by implicating state officials or judges in a conspiracy with
private defendants, mere conclusory allegations with no supporting factual averments
are insufficient; the pleadings must specifically present facts tending to show
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agreement and concerted action.” Id. at 907 (internal quotation marks omitted). In
particular, a plaintiff must plausibly allege “a significant nexus or entanglement
between the absolutely immune State official and the private party in relation to the
steps taken by each to fulfill the objects of their conspiracy.” Norton v. Liddel,
620 F.2d 1375, 1380 (10th Cir. 1980).
Mr. Lucero offers no specific allegations suggesting a conspiracy between the
Koncilja firm and the state court judge who presided over his case. He merely
alleges the state court judge repeatedly abused his discretion by ruling in favor of the
Koncilja firm, accepting the firm’s untimely filings, and granting its motions for
extensions of time, while denying or ignoring his similar requests. But these
allegations do not suggest a nexus or shared conspiratorial objective between the firm
and the state court judge. Nor is there any inference that they agreed or even acted in
concert to violate Mr. Lucero’s Fourteenth Amendment rights. We therefore agree
with the district court that Mr. Lucero failed to plausibly allege state action.
B. State-Law Claims & Firm Waiver Rule
We next consider Mr. Lucero’s state-law claims. As indicated above, although
he objected to the dismissal of his Fourteenth Amendment claims, he did not object
to the magistrate judge’s recommendation to dismiss the state-law claims. “Under
this court’s firm waiver rule, the failure to timely object to a magistrate judge’s
finding and recommendations waives appellate review of both factual and legal
questions.” Klein v. Harper, 777 F.3d 1144, 1147 (10th Cir. 2015) (internal
quotation marks omitted). “This rule does not apply, however, when (1) a pro se
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litigant has not been informed of the time period for objecting and the consequences
of failing to object, or when (2) the interests of justice require review.”
Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (italics and internal
quotation marks omitted).
The first exception to the firm waiver rule is inapplicable because the
magistrate judge informed Mr. Lucero he had 14 days to file timely, specific
objections to the report and recommendation and that failure to do so would waive
appellate review. R. at 27. Neither do we have occasion to consider the interests-of-
justice exception because Mr. Lucero advances no argument invoking that exception.
See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have
declined to consider arguments that are not raised, or are inadequately presented, in
an appellant’s opening brief.”). Consequently, the firm waiver rule bars review of
the claims.
III. CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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