UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ NATHAN D. BLACK, Plaintiff - Appellant,

v. ZULIFIKAR WAFAI, Defendants - Appellee. No. 22-1037 (D.C. No. 1:21-CV -02722-LTB-GPG) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MORITZ , BRISCOE , and CARSON Circuit Judges.

________________ _________________ Plaintiff Nathan Black, appearing pro se , appeals the district court’s dismissal of his amended complaint. The district court dismis sed Black’s claims under 42 U.S.C. § 1983 as frivolous pur suant to 28 U.S.C. § 1915(e)(2 )(B)(i), and it declined to exercise supplemental jurisdiction over any state law claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. We also deny Black’s motion for leave to proceed on appeal in forma pauperis.

* After examining the briefs and appella te record, this pa nel 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 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 2, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 22-1037 Document: 010110691886 Date Filed: 06/02/2022 Page: 12 I Defendant Zulfikar Wafai was the cour t-appointed public defender assigned to represent Black in a Colorado state criminal proceeding. Ultimately, Black appeared pro se at trial and was convicted. On Oc tober 8, 2021, Black filed a pro se prisoner complaint against Wafai in the United States District Court for the District of Colorado. He filed an amended complain t on November 15, 2021. He asserts a claim of “Misrepresentation,” essentially claiming Wafai violated his constitutional rights by being an ineffective advocate, and he stated th at the district court had jurisdiction because 42 U.S.C. § 1983 formed the basis of his legal claim. He sought damages of $2,500,000 and an order suspending Wafai fro m the practice of law for 30 days. On October 12, 2021, Black’s motion fo r leave to proceed in forma pauperis was granted. On December 13, 2021, a magistrate judge i ssued a recommendation that the case be dismissed with prejudice as frivolous, to which Black objected. On January 10, 2022, the district court a dopted the recommendation and issued a judgment dismissing the case with prejudice. The district court d eclined to exercise supplemental jurisdiction over a ny remaining state claims, de nied leave to proceed in forma pauperis on appeal, and certified that an appeal would not be taken in good faith. Black timely appealed. He then moved to proceed in forma pauperis on appeal. Appellate Case: 22-1037 Document: 010110691886 Date Filed: 06/02/2022 Page: 23 II Where, as here, a plaintiff was allowe d by the district court to proceed in forma pauperis, his complaint is governed by the requiremen ts of 28 U.S.C. § 1915. Section 1915(e)(2)(B) requires a district court to “dismiss the case at any time if the court determines,” in pertinent part, “that . . . the action . . . is frivolous.” 28 U.S.C. § 1915(e)(2)(B)(i). Generally speaking, we review for an abuse of discretion a district court’s order dism issing claims as frivolous under § 1915(e)(2)(B)(i). See Fogle v. Pierson , 435 F.3d 1252, 1259 (10th Cir. 2006) . That said, if the district court based its frivolousness determinati on on a legal issue, we review that underlying legal issue de novo. Id. Because Black appears pro se, we constr ue his filings liberally, but we do not serve as his advocate. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005).
III The district court dismissed Black’s § 1983 claims on two grounds. Primarily, it recognized that Wafai was not “acting unde r color of state law” when representing Black and therefore not subj ect to suit under § 1983. 42 U.S.C. § 1983. As an alternative ground for dismissi ng his claim for damages, th e district court noted the claim was barred under Heck v. Humphrey , 512 U.S. 477 (1994) . We agree on both grounds. Appellate Case: 22-1037 Document: 010110691886 Date Filed: 06/02/2022 Page: 34 A plaintiff may only bri ng claims under § 1983 against persons acting under the color of state law. See Polk County v. Dodson , 454 U.S. 312, 315 (1981). 1 “[A] public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Id. at 325. Black’s complaint does not support a contention that Wafa i was acting in any role other than that of a defense attorney acting on behalf of his client . On appeal, Black asserts that Wafai was acting under color of state law as a licen sed member of the Colorado state bar. We disagree. To hold otherwise would mean any licensed attorney performing a lawyer’s traditional f unctions in representing his or her client in any action would be acting under color of state law. Moreover, it is fundamentally inconsistent with the Supreme Court’s clea r statement that public defenders acting as attorneys on behalf of their clients are not state actors because all public defenders are necessarily licensed attorneys. Black’s claim for damages is further barred by the rule of Heck . Under Heck , a defendant cannot receive damages relating to an unlawful criminal conviction until after “the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared i nvalid by a state tribunal authorized to make such determination, or called into question by a fe deral court’s issuance of a writ of habeas

1 A person acts “under color of state la w” when “exercising power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law,” but there mu st also be “‘a real nexus’ between the employee’s use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant.” Schaffer v. Salt Lake City Corp. , 814 F.3d 1151, 1156 (10th Ci r. 2016) (internal quotations omitted). Appellate Case: 22-1037 Document: 010110691886 Date Filed: 06/02/2022 Page: 45 corpus.” Heck , 512 U.S. 477, 486–87. Black’s comp laint does not assert that any of those events have occurred, and he does no t challenge the district court’s conclusion on this point. We also conclude that the district court did not abus e its discretion in refusing to exercise supplementa l jurisdiction over Black’s state law claims. See Koch v. City of Del City , 660 F.3d 1228, 1248 (10t h Cir. 2011) (outlining st andard of review). “When all federal claims have been dismi ssed, the court may, and usually should, decline to exercise ju risdiction over any remain ing state claims.” Smith v. City of Enid ex rel. Enid City Comm’n , 149 F.3d 1151, 1156 (10th Cir. 1998). It is uncertain whether Black raised any state law claims at all, but cons truing the complaint liberally, there is at least a possibility that he seeks relief under Colorado state law because he references Wafai’s Colorado license to practice law. If he did raise state claims, the district court pr operly declined to exercise supplemental jurisdiction over them. We AFFIRM the district court’s dismissal of this action as fri volous, and we also DISMISS this appeal as frivolous. Black’s motion for leave to proceed on appeal in forma pauperis is DENIED, and as a result, Blac k is obligated to pay the filing fee in full. Dismissal of this appeal as frivolous al so counts against Black as a strike. See Jennings v. Natrona Cnty. Det. Ctr. , 175 F.3d 775, 780–81 (10th Cir. 1999) (overruled in part by Appellate Case: 22-1037 Document: 010110691886 Date Filed: 06/02/2022 Page: 56 Coleman v. Tollefson , 135 S. Ct. 1759 (2015)); see also Neitzke v. Williams , 490 U.S. 319, 325 (1989) (defini ng frivolous claim).

Entered for the Court
Mary Beck Briscoe Circuit Judge Appellate Case: 22-1037 Document: 010110691886 Date Filed: 06/02/2022 Page: 6