FILED

United States Court of Appeals

Tenth Circuit

December 20, 2016

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEVEN E. HOLLOWAY,

Plaintiff - Appellant, No. 16-4121

v. (D.C. No. 2:14-CV-00861-DB)

STEVE HARRIS IMPORTS;

ALBERTO GARCIA,

Defendants - Appellees.

(D. Utah)

ORDER AND JUDGMENT*

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.

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This order and judgment is not binding precedent except under the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.
Steven E. Holloway appeals from an order of the United States District

Court for the District of Utah. The district court dismissed Holloway’s civil

rights complaint pursuant to the provisions of 28 U.S.C. § 1915(e). Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms.

Holloway filed a 42 U.S.C. § 1983 civil rights complaint in the District of

Utah, which named as defendants various private entities and individuals. In

response, the district court filed a “Memorandum Decision & Order to Cure

Deficient Complaint.” The district court’s order identified numerous deficiencies

in Holloway’s complaint, specifically including: (1) the complaint brought civilrights claims against parties that did not appear to be state actors, (2) the

complaint did not affirmatively link any particular defendants to a violation of

Holloway’s civil rights, and (3) the complaint contained fantastical sounding

claims that appeared frivolous. After Holloway filed an amended complaint, the

matter was referred to a magistrate judge for initial screening and preparation of a

report and recommendation. 28 U.S.C. § 636(b)(1)(B). The magistrate judge

recommended that Holloway’s complaint be dismissed with prejudiced pursuant

to the provisions of § 1915(e)(2)(B)(i) and (ii). In that regard, the magistrate

judge noted as follows:

[T]he Amended Complaint continues to bring civil-rights claims

against commercial entities and individuals who are not state actors.

The United States Constitution imposes limitations only on state

action; it does not reach the conduct of private parties, no matter how

discriminatory or harmful. The Defendants named herein are not

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alleged to have acted under authority or color of law. . . . Plaintiff

has not affirmatively linked Defendants to any violation of Plaintiff’s

civil rights. It is clear from the Complaint that Plaintiff believes he

is entitled to money from Defendants, but what Plaintiff has not done

is make clear exactly who is alleged to have done what to whom. . . . 

[F]inally, Plaintiff continues to have fantastical claims that appear

frivolous.

Report & Recommendation at 3 (quotation and footnotes omitted). Upon de novo

review, the district court adopted the magistrate judge’s report and

recommendation and dismissed Holloway’s complaint with prejudice.

This court reviews de novo the district court dismissal of Holloway’s

complaint. Conkle v. Potter, 352 F.3d 1333, 1335 (10th Cir. 2003) (conducting

de novo review of dismissal pursuant to § 1915(e)(2)(B)(ii)).1

 Upon de novo

review, we affirm the district court for substantially those reasons set out in the

magistrate judge’s report and recommendation, dated June 7, 2016, and the

district court’s order, dated June 27, 2016. Accordingly, the order of the district

court dismissing Holloway’s complaint is hereby AFFIRMED.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

1

We recognize that this court generally reviews for abuse of discretion the

dismissal of a complaint as frivolous under § 1915(e)(2)(B)(i). Conkle v. Potter,

352 F.3d 1333, 1335 n.4 (10th Cir. 2003). Because, however, the district court’s

determination of frivolousness appears, at least in part, intertwined with its

determination Holloway’s complaint failed to state a claim, de novo review is

appropriate in this case. Id. In any event, the resolution of this appeal does not

turn in any way on the standard of review.

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