* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### March 27, 2006 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAUL NAGY,

Plaintiff-Appellant, No. 05-8108
v. (D. Wyoming) GERRY L. SPENCE,

Defendant-Appellee. (D.C. No. 05-CV-219-D)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, t his panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See F ED
. R. A PP
. P. 34(a)(2); 10 TH C IR
. R. 34.1(G). The case is therefore ordered submitted without oral argument. Paul Nagy, a federal prisoner proceeding pro se, fi led a 42 U.S.C. § 1983 civil rights action for damages against Gerry L. Sp ence. Mr. Spence is an attorney in private practice in Jackson, Wyoming. Mr. Nagy seeks damages from-2-

Mr. Spence for refusing to represent him in proceed ings against the Federal Medical Center in Butner, North Carolina. The dist rict court dismissed sua sponte Mr. Nagy’s complaint for failure to state a claim under § 1983, concluding that Mr. Spence is not a state actor. On appeal, M r. Nagy challenges the district court’s dismissal of his complaint, and he also see ks to proceed in forma pauperis (“IFP”). We review de novo a district court’s sua sponte dis missal of a complaint for failure to state a claim under 28 U.S.C. § 1915 (e)(2)(B)(ii). Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999). “Dismissal of a pro se complaint for failure to state a claim [under § 191 5(e)(2)(B)(ii)] is proper only where it is obvious that the plaintiff cannot preva il on the facts he has alleged and it would be futile to give him an opportunity to am end.” Id. Because Mr. Nagy is proceeding pro se, we must construe his complaint l iberally, holding him to a less stringent standard than formal pleadings that lawye rs draft. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). We agree with the district court that Mr. Nagy’s co mplaint should be dismissed for failure to state a claim because he h as not alleged (nor could he) that Mr. Spence is a state actor. “A prerequisite to any relief under section 1983 is that the defendant has acted under color of stat e law.” Barnard v. Young , 720 F.2d 1188, 1188-89 (10th Cir. 1983). Mr. Nagy has not alleged that Mr. Spencer-3-

“is a state official, . . . has acted together with or has obtained significant aid from state officials, or . . . his conduct is otherwise chargeable to the State.” Lugar v. Edmondson Oil Co. , 457 U.S. 922, 937 (1982) (describing ways in whic h a person “may fairly be said to be a state actor”). Contrary to Mr. Nagy’s contentions, the state-actor requirement for a § 19 83 action is not set aside even if there is “ongoing [i]mminent [d]anger” to the plain tiff. Aplt’s Br. at 3. Accordingly, we AFFIRM the district court’s dismiss al of Mr. Nagy’s complaint for failure to state a claim, and the dis trict court’s dismissal counts as a strike for purposes of 28 U.S.C. § 1915(g). See Jennings v. Natrona County Det. Ctr. Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999). We also DENYMr. Nagy’s motion to proceed IFP, and order immediate p ayment of the unpaid balance of his appellate filing fee.

Entered for the Court,

Robert H. Henry Circuit Judge