UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ RONALD HAROLD, individually and as the widower and next of kin for wife, the late Olive Harold, Plaintiff - Appellant,

v. UNIVERSITY OF COLORADO HOSPITAL; CITY AND COUNTY OF DENVER; MAYOR MICHAEL HANCOCK; DENVER DEPARTMENT OF HUMAN SERVICES; DON MARES; DENVER DEPARTMENT OF HUMAN SERVICES, ADULT PROTECTION UNIT; JUANITA-RIOS JOHNSTON; QUALITY PARTNERS HEALTH CARE SERVICES, LLC; VIVAGE QUALITY HEALTH CARE PARTNERS; HIGHLINE REHABILITATION & CARE CENTER; JEFFREY A. RICHARDSON; KIM M. RUSSELL; LISA MARIE DIPONIO; DAVID M. BERNHART, JR. ESQ.; REBECCA PARKER; TAMMY MONTGOMERY; ERIN EGAN; STACY GIBBS; DERRIC MONTANO, Defendants - Appellees. No. 16-1314 (D.C. No. 1:15- CV-01919-LTB) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral FILED United States Court of Appeals Tenth Circuit 

### February 23, 2017
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ Before HARTZ , MURPHY , and PHILLIPS , Circuit Judges.

________________ _________________ Ronald Harold has waged a protracted, pro se legal battle against the people and institutions that he holds responsible for th e death of his wife, O live Harold. In 2015, Mrs. Harold died while a ward of the state living at the Highline Rehabilitation and Care Community in Denver, Colora do. Mr. Harold asserts constitutional claims based on the State’s making his wife its ward, on the State’ s obtaining civil protection orders against him, and for the State’s mistreating him a nd his wife while she was a ward. Under 42 U.S.C. § 1983, he sues agai nst an array of defendants, from the City and County of Denver to the medical professionals who a ttended to his wife. Despite Mr. Harold’s detailed allegations, the district court has re peatedly concluded that they lack merit, asking Mr. Harold several times to revise them to state acti onable claims. Mr. Harold has twice sought and been denied appointed counsel. After giving Mr. Harold these opportunities to amend, the district court re solved the case based on Mr. Harold’s Second Amended Complaint, dismissing all his asserted claims as legally fr ivolous. Because each of the claims fails to m eet some requirement of § 1983, we must agree. BACKGROUND A. Olive Harold In October 2014, Olive Ha rold was admitted to the University of Colorado Hospital, suffering from a urinary-tract infecti on. While there, she a ttracted the attention estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.3 of Denver County Adult Pr otection Services. In Decemb er, the Denver Probate Court granted Adult Protection servic es a temporary, two-month guardianship of Mrs. Harold. Mrs. Harold was moved to the Highline Reha bilitation and Care Center (Highline), also in Denver. Mr. Harold apparen tly got into an escalating seri es of disputes with various officials about his wife’s status and treatmen t and his visiting rights . The Denver Probate Court held that Mrs. Harold should be a ward of the state and issu ed temporary and then permanent civil protection orders against Mr. Harold. On November 12, 2015, Mrs. Harold died at Highline. B. Ronald Harold’s Lawsuit On September 3, 2015, Mr. Harold sued Highline and the other defendants in federal court, soon before his wife’s deat h. A magistrate judge found his Complaint deficient and ordered Mr. Harold to try to cure several of its deficiencies. On October 23, 2015, Mr. Harold filed an Amen ded Complaint, as well as a Motion for Leave to Proceed in forma pauperis (IFP) under 28 U.S.C. § 1915. The magistrate judge again ordered Mr. Harold to amend to cure deficiencies in his Amended Complaint. Before doing so, Mr. Harold filed an Emergency Mo tion to stay the protection order against him and to move his wife to a different facility. The district court denied both motions, finding that it had no subject-matter jurisdiction to overturn decisions of a state probate court. The magistrate judge then denied as premature Mr. Harold’s request for counsel, which had been pending since th e first Complaint. On January 13, 2016, after two time ex tensions, Mr. Harold filed his second Amended Complaint. The magistrate judge gr anted Mr. Harold IFP status, and ordered4 him to amend his Amended Complaint. Mr. Ha rold asked for another time extension and again asked for appointed counsel. The magi strate judge granted additional time, but denied appointed counsel. On the last day for Mr. Harold to file a third Amended Complaint, he instead asked for more time to file it, so he c ould obtain his wife’s medical records. He also requested that the court or der release of those medical records to him. The magistrate judge, citing the early stage of the case and the hundreds of pages Mr. Harold had already filed withou t stating a claim, declined to order the release of the medical records, but granted M r. Harold a final 30-day extens ion to file a third Amended Complaint. The court also wa rned that “any additional unre asonable delay tactics will be frowned upon by the court and may result in di smissal of this action.” R., vol. 1 at 218. Despite this warning, Mr. Harold waited un til the last business day before the June 3, 2016 deadline to seek yet another time extension. This time the district court refused to grant it and noted that it could dismiss Mr. Ha rold’s action without prejudice for failure to follow a court order. Instead, the district co urt turned to Mr. Harold’s second Amended Complaint, concluded that all claims were legally frivolous, and dismissed them with prejudice under 28 U.S.C. § 1 915. Mr. Harold appealed. DISCUSSION A. Time Extension Mr. Harold based his final request for a time extension—the only one denied—on his alleged need to review transcripts from the Denver Probate Court. “When an act may or must be done within a specified time, the court may, for good cause, extend the time.” Fed. R. Civ. P. 6(b)(1). We review denials of such extensi ons for an abuse of discretion.5 Ellis v. University of Kan. Med. Ctr. , 163 F.3d 1186, 1193 (10th Cir. 1998). Mr. Harold alleges that he needed extra time to review the transcri pts of the seven Denver Probate Court hearings (he now appears to have a ll seven) because they concern the State’s making his wife a ward of the state and its obtaining civil protection orders against him. This may well be true, but the probate-hearin g transcripts could not support his claims under § 1983. As the cour ts have repeatedly explained to Mr. Harold, the RookerFeldman doctrine prevents lower federal courts from reviewing state-court judgments if the federal suit depends upon the federal cour ts rejecting those state-court judgments. See, e.g. , Campbell v. City of Spencer , 682 F.3d 1278, 1281-84 (10th Cir. 2012). Mr. Harold has not indicated how the Denver Pr obate Court transcripts could supply a valid jurisdictional basis to overturn the local cour t’s decisions about Mr. Harold and his wife in a § 1983 action. So the distri ct court did not abuse its disc retion in denying what surely would have been a futile time extension. B. Appointed Counsel Mr. Harold twice requested and was deni ed appointed counsel. The district court has discretion on the appointmen t of counsel for those who ca nnot afford it. 28 U.S.C. § 1915(e)(1). We review the refusa l to appoint co unsel for an indigent plaintiff in a civil case for abuse of discretion. McCarthy v. Weinberg , 753 F.2d 836, 838 (10th Cir. 1985). The plaintiff has the burden of demonstrating that his claim is sufficiently meritorious to warrant appointed counsel. Id. “Only in those extreme case s where the lack of counsel results in fundamental unfairness will the district court’s decision be overturned.” Id. at 839. Mr. Harold has not met his burden. Hi s claims may be factually complex, but6 despite repeated attempts, he has not manage d to state the basic elements of a § 1983 claim. The magistrate judge had discretion to consider the legal merits of Mr. Harold’s claims in weighing the appo intment of counsel and, find ing none, did not abuse its discretion in twice denying counsel. C. § 1983 Claims Because Mr. Harold was proceeding IFP wh en he filed his complaints, 28 U.S.C. § 1915(e)(2)(B)(i) mandates that the district cour t dismiss his claims if it determines that they are frivolous. An IFP claim is frivolous if it is based on a meri tless legal theory or baseless factual contentions. Schlicher v. Thomas , 111 F.3d 777, 779 (10th Cir. 1997). We generally review a § 1915 frivolousness di smissal for abuse of discretion, unless the dismissal turns on a legal issue and then we review de novo

. Fogle v. Pierson , 435 F.3d 1252, 1259 (10th Cir. 2006). 1 Our review should examine whether “factual allegations could be remedied through more specific pl eading” and therefore whether a “district court abused its discre tion by dismissing the complaint with prejudice or without leave to amend.” Denton v. Hernandez , 504 U.S. 25, 34 (1992).

1 Though, in two unpublished cases, we have also called that standard into doubt, seeing as the Supreme C ourt case that created it, Denton v. Hernandez , 504 U.S. 25, 33-34 (1992), was based on an ol der version of the relevant statute. Lowe v. Sockey , 36 Fed. Appx. 353, 356 (10t h Cir. 2002) (unpublished); Basham v. Uphoff , No. 98-8013, 1998 WL 847689, at *4 n.2 (Dec. 8, 1998) (unpublished). Denton found that § 1915 gave the district court disc retion over IFP frivolous ness dismissals, but the 1995 Prison Litigation Reform Act (PLR A) removed the discretionary language from the statute. Lowe , 36 Fed. Appx. at 356. The Sixth Circuit has found that the PLRA now compels a de novo review standard. McGore v. Wrigglesworth , 114 F.3d 601, 604 (6th Cir. 1997) ( Partially overruled on other grounds by LaFountain v. Harry , 716 F.3d 944, 951 (6th Cir. 2013)). We find that Mr. Harold’s claims would be frivolous under either standard, and so do not decide the standard of review issue.7 Mr. Harold’s second Amended Complaint pr esented thirty-nine claims for relief against twenty defendants. 2 Even construing the allegations liberally because Mr. Harold
was pro se, Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Ci r. 1991), the district court rejected all the claims. Mr. Ha rold brought two types of cl aims: those on behalf of his wife and those on behalf of hi mself. The district court dismissed the former because the § 1983 claims of a deceased Colorado vic tim must be brought by the personal representative of the victim’s estate, and Mr. Harold has not shown himself qualified to act in that capacity. See Cobello v. Pelle ex rel. Boulder Cty. Bd. of Comm’rs , No. 06-cv02600-MJW-MEH, 2008 WL 926522, at *3 (D. Colo. March 31, 2008) (unpublished). The district court broke Mr. Harold’s cl aims made on his own behalf into seven categories and dismissed each fo r a § 1983 deficiency. First, Mr. Harold’s claim against the Denver Probate Court Judge Elizabeth Leith was barred by absolute judicial immunity. That claim could ha ve proceeded only if Mr. Haro ld showed that Judge Leith had acted non-judicially or in the clear abse nce of all jurisdiction, which she did not do. See Mireles v. Waco , 502 U.S. 9, 11-12 (1991). Seco nd, Eleventh Amendment immunity barred the claims against the Denver Depa rtment of Human Services and its Adult Protection Unit, the University of Colorado Hospital, and st ate officials acting in their official capacity. Third, th e claims against the city and county of Denver alleged violations by the employees of those entities, not the required showing that those entities had policies or customs causally linked to the alleged injury. See City of Canton, Ohio v.

2 The Amended Complaint’s caption menti ons only nineteen, but its text also includes allegations against the Denver Probate Court Judge Elizabeth Leith.8 Harris , 489 U.S. 378, 385-86 (1989). Fourth, the claims against the mayor of Denver and the directors of the Department of Human Se rvices and its Adult Protection unit did not allege the required personal participation, exerci se of control or direction, or failure to supervise. Butler v. City of Norman , 992 F.2d 1053, 10 55 (10th Cir. 1993). Fifth, Mr. Harold’s claims against non-st ate actors did not adequately allege state action. A person who has allege dly deprived a victim of federal constitutional rights must have been acting under color of stat e law to be a proper § 1983 defendant. Connecticut v. Gabbert , 526 U.S. 286, 290 (1999). If private conduc t has caused the alleged violation in a § 1983 action, the conduct must be “fairly attributable” to the State. Lugar v. Edmondson Oil Co., Inc. , 457 U.S. 922, 937 (1982). Th e conduct may be by a state official or by someone who “has acted togeth er with or has obtained significant aid from state officials” or may be “other wise chargeable to the State.” Id. A plaintiff seeking to tie private conduct to state action must ma ke more than conclusory allegations—the plaintiff must plead “facts tending to show agreement and concerted action” between the private and state actors. Beedle v. Wilson , 422 F.3d 1059, 1073 (10th Cir. 2005) (quoting Sooner Prods. Co. v. McBride , 708 F.2d 510, 512 (10th Cir. 1983)). The district court found that Mr. Harold did not do so when he named as de fendants three organizations (Quality Partners Health Care Services, LLC, Vivage Quality Health Care Partners, and Highline Rehabilitation and Care Community) and seven people (De rric Montano, Stacy Gibbs, Erin Egan, Lisa DiPonio, Jeffre y Richardson, Rebecc a Parker, and Tammy Montgomery). Instead, Mr. Harold made conclu sory allegations that are insufficient to support a § 1983 claim.9 Sixth, Mr. Harold’s claims agains t Kim Russell, the Denver County Human Services worker assigned to his wife’s ca se, alleged acts that were “inextricably intertwined” with state-court proceed ings and thus were barred by the Rooker-Feldman doctrine, see Campbell , 682 F.3d at 1282, or simply failed to allege constitutional violations. Seventh, Mr. Harold’s claims agai nst David Bernhart, Jr., an attorney for the Denver Department of Human Services, also failed under the Rooker-Feldman doctrine. In his appellate brief, Mr. Harold provid es little legal argument against the district court’s dismissals. He mostly repeats his allega tions and states that they are sufficient for the case to go forward. As best we can te ll, though, he does present two specific arguments. He argues that he needs no special paperwork to bring claims on behalf of his wife, and that the private healthcare provide r defendants acted under color of law because they were subject to federal Medicare and Me dicaid laws and associated state rules and laws. Mr. Harold provides no legal backing for either argument, but considering his pro se status, we will examine them. Mr. Harold argues that he needs “no spec ial paperwork or documents” to assert claims on behalf of his wife. Appellant Br., A ttachment at 2. He is mistaken. A federal § 1983 lawsuit is not a substitute for a state cl aim. Section 1983 remedies are “to the party injured.” 42 U.S.C. § 1983. The estate of a de ceased victim must be the one to bring suit. Berry v. City of Muskogee, Oklahoma , 900 F.2d 1489, 1506-07 (10th Cir. 1990). No one disputes that Ronald Harold was Olive Harold’s husband, but Mr. Harold must still show that he is the personal representative of her estate if he seeks to bring federal § 1983 claims on her behalf.10 Next, Mr. Harold argues that governme nt regulation and funding of the private healthcare actors involved in his case su ffice to satisfy § 1983’s color-of-law requirement. This is not so. Neither be ing subject to government regulation, Blum v. Yaretsky , 457 U.S. 991, 1004 (1982), nor bei ng totally dependent on government contracts and funds, Rendell-Baker v. Kohn , 457 U.S. 830, 840-41 (1982), makes a private company’s acts under the color of stat e law. Mr. Harold’s private healthcare defendants do not qualify as state actors. Mr. Harold has repeatedly failed to presen t claims that fulfill the requirements of a § 1983 action, and his argumen ts on appeal do not change that. After Mr. Harold’s multiple chances to amend his Co mplaint, we cannot say that the district court abused its discretion in concluding that further amendm ent would be futile. The district court was right to dismiss the claims with prejudice. D. Medical Records Mr. Harold also appears to challenge the magistrate judge’s May 2016 order denying him access to his wife’s medical record s. We review pretrial discovery rulings for an abuse of discretion. King v. PA Consulting Grp., Inc. , 485 F.3d 577, 590 (10th Cir. 2007). At the time of the denial, Mr. Harold had yet to establish that he had any nonfrivolous claims. The magistrate judge did not abuse his discretion in finding that, given the early status of the case and legitimate doubt s about whether Mr. Harold would be able to state any valid claim, ordering the re lease of medical records would have been premature.11 E. IFP Status Mr. Harold was initially granted leave to pr oceed IFP in this action. But on appeal, after the district court found all his claims frivolous, it denied him IFP status. Further, the district court certified that any appeal taken from its denial of Mr. Harold’s claims would not be in good faith. See 28 U.S.C. § 1915(a)(3). Mr. Haro ld appealed anyway, and filed a motion to proceed IFP. Even a party who ha s been certified as not appealing in good faith can request IFP status on appeal so long as he shows both a financial inability to pay and a reasoned, nonfrivolous argument, and fo llows the procedure mandated by Fed. R. Civ. P. 24(a)(5). Rolland v. Primesource Staffing, L.L.C. , 497 F.3d 1077, 1078-79 (10th Cir. 2007). 3 But we agree with the district c ourt that Mr. Harold has not shown the existence of a reasoned, nonfrivolous ar gument and so he cannot proceed IFP. CONCLUSION We affirm the district c ourt’s denials of Mr. Harold ’s requests for appointed counsel, a time extension, and his wife’s medical records. And because Mr. Harold, despite repeated opportunities, has set forth no claim that fulfills all the requirements that § 1983 demands, we must affirm the district court’s dismissal with prejudice of his

3 “Upon its face, § 1915(a)(3) would appear to foreclose our consideration of [a motion to proceed IFP]; its mandatory language deni es the availability of an appeal in forma pauperis upon th e district court’s certificat ion of a lack of good faith, and it provides no escape hatch of appellate review or rec onsideration. Federal Rule of Appellate Procedure 24(a)(5), on the othe r hand, purports to expressly permit our consideration of [such] a mo tion . . . . The palpable conf lict between these provisions is resolved in favor of the procedures dict ated by Rule 24(a)(5), by virtue of the fact that its most recent re enactment postdates th at of § 1915(a)(3).” Rolland , 497 F.3d at 1078.12 claims as legally frivolous , and deny him IFP status.

Entered for the Court
Gregory A. Phillips Circuit Judge