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 dismissed Black’s claims under 42 

U.S.C. § 1983 as frivolous pursuant 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 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 

June 2, 2022

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 22-1037 Document: 010110691886 Date Filed: 06/02/2022 Page: 1
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I 

Defendant Zulfikar Wafai was the court-appointed public defender assigned to 

represent Black in a Colorado state criminal proceeding. Ultimately, Black appeared 

pro se at trial and was convicted. On October 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 complaint 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 that 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 from the practice of law for 

30 days. 

On October 12, 2021, Black’s motion for leave to proceed in forma pauperis 

was granted. On December 13, 2021, a magistrate judge issued a recommendation 

that the case be dismissed with prejudice as frivolous, to which Black objected. On 

January 10, 2022, the district court adopted the recommendation and issued a 

judgment dismissing the case with prejudice. The district court declined to exercise 

supplemental jurisdiction over any remaining state claims, denied 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. 

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II 

Where, as here, a plaintiff was allowed by the district court to proceed in 

forma pauperis, his complaint is governed by the requirements 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 dismissing 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 determination on a legal issue, we review that 

underlying legal issue de novo. Id.

Because Black appears pro se, we construe 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 under color of state law” when representing 

Black and therefore not subject to suit under § 1983. 42 U.S.C. § 1983. As an 

alternative ground for dismissing his claim for damages, the district court noted the 

claim was barred under Heck v. Humphrey, 512 U.S. 477 (1994). We agree on both 

grounds. 

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A plaintiff may only bring 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 Wafai 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 licensed member of the 

Colorado state bar. We disagree. To hold otherwise would mean any licensed 

attorney performing a lawyer’s traditional functions 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 clear 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 invalid by a state tribunal authorized to make such 

determination, or called into question by a federal court’s issuance of a writ of habeas 

1

 A person acts “under color of state law” 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 must 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 Cir. 2016) (internal quotations omitted). 

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corpus.” Heck, 512 U.S. 477, 486–87. Black’s complaint does not assert that any of 

those events have occurred, and he does not challenge the district court’s conclusion 

on this point. 

We also conclude that the district court did not abuse its discretion in refusing 

to exercise supplemental jurisdiction over Black’s state law claims. See Koch v. City 

of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011) (outlining standard of review). 

“When all federal claims have been dismissed, the court may, and usually should, 

decline to exercise jurisdiction over any remaining 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 construing 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 properly declined to exercise supplemental jurisdiction over 

them. 

We AFFIRM the district court’s dismissal of this action as frivolous, 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, Black is obligated to pay the filing fee in full. 

Dismissal of this appeal as frivolous also 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 

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Coleman v. Tollefson, 135 S. Ct. 1759 (2015)); see also Neitzke v. Williams, 490 U.S. 

319, 325 (1989) (defining frivolous claim). 

Entered for the Court 

Mary Beck Briscoe 

Circuit Judge 

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