Schrader v. Turner

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* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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

-2- 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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