UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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DEMARCO D. BLEDSOE, 

 Plaintiff - Appellant,

v.

MARK SCHLACHTENHAUFEN, 

 Defendant - Appellee.

No. 20-6093

(D.C. No. 5:20-CV-00328-J)

(W.D. Okla.)

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ORDER AND JUDGMENT*

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Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.

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Pro se appellant Demarco D. Bledsoe appeals the district court’s dismissal of 

his complaint alleging constitutional violations pursuant to 42 U.S.C. § 1983. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I

On September 24, 2014, Mark Schlactenhaufen, a journalist for the Edmond 

Sun, published an online article reporting that Appellant was charged with “beating a 

* 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.

FILED

United States Court of Appeals

Tenth Circuit

November 16, 2020

Christopher M. Wolpert

Clerk of Court
2

female Logan County jail guard and verbally assaulting another female jail officer.” 

Appellant filed a complaint in the Western District of Oklahoma, alleging that this 

statement is false because the purported victim was male. He further alleged that the 

false statement caused him great mental anguish, placed in him in physical danger in 

prison due to prison politics around offenses involving violence against women, and 

harmed his ability to pursue a career in the NFL after his release from prison. The 

complaint asserted violations of the Fifth and Fourteenth Amendments under § 1983. 

The district court referred the complaint to a magistrate judge for screening 

pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommended that the 

complaint be dismissed for failure to state a claim. The district court adopted the 

magistrate judge’s recommendation over Appellant’s objections and dismissed the 

complaint. Appellant filed this timely appeal. 

II

A lawsuit alleging that a person was harmed by a false newspaper article 

would normally be brought as a libel claim under state law. See, e.g., Gaylord 

Entm’t Co. v. Thompson, 958 P.2d 128, 146 (Okla. 1998); see also Okla. Stat. Ann. 

tit. 12, § 1441. Appellant does not assert a state law libel claim, but instead advances

a claim under § 1983, arguing that Schlachtenhaufen violated Appellant’s rights 

under the Fifth and Fourteenth Amendments.

Section 1983 protects an individual’s constitutional rights from harm 

committed “under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). This 

generally limits the reach of § 1983 to lawsuits against state employees or officials. 
3

However, private individuals may be sued for their actions under § 1983 if “the 

conduct allegedly causing the deprivation of a federal right [is] fairly attributable to 

the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). We have held 

that acts of a private individual can be attributable to the state under one of four tests:

the nexus test, the symbiotic relationship test, the joint action test, or the public 

function test. Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th 

Cir. 1995). 

“Under the nexus test, a plaintiff must demonstrate that there is a sufficiently 

close nexus between the government and the challenged conduct such that the 

conduct may be fairly treated as that of the State itself.” Id. at 1448 (quotation 

omitted). The symbiotic relationship test finds state action when “the [S]tate has so 

far insinuated itself into a position of interdependence with a private party that it 

must be recognized as a joint participant in the challenged activity.” Id. at 1451. 

The joint action test extends § 1983 liability to a “willful participant in joint action 

with the State or its agents.” Id. at 1453. Finally, under the public function test, a 

private individual may be deemed a state actor if the state delegates to that individual 

a function “traditionally exclusively reserved to the State.” Id. at 1456. 

Appellant did not allege facts that support finding Schlachtenhaufen is a state 

actor under any of these tests. Appellant’s complaint involved no allegations of any

coordination between Schlachtenhaufen and state officials; indeed, the complaint 

does not allege that any state official was even aware of Schlachtenhaufen’s article.
4

Appellant cites Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) for support,

but Gertz did not involve § 1983. Instead, it held that that a publisher who defames a 

private individual who is not a public figure may not rely on New York Times Co. v. 

Sullivan, 376 U.S. 254 (1964) to protect itself from liability. We do not consider 

whether Schlachtenhaufen is entitled to New York Times protection in this case 

because Appellant’s complaint did not include a state-law defamation claim against 

Schlachtenhaufen.

Because Appellant did not allege a constitutional violation caused by a state 

actor, the district court was correct to dismiss the complaint.1

III

The district court’s dismissal for failure to state a claim is AFFIRMED. The 

district court certified in writing that any appeal taken from its order would not be in 

good faith; therefore, Appellant’s motion to proceed in forma pauperis is DENIED. 

28 U.S.C. § 1915(a)(3). Appellant is obligated to pay the filing fee in full.

Entered for the Court

Carlos F. Lucero

Circuit Judge

1 Appellant’s motion to appoint counsel is denied as moot.