# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 23, 2020 *

Decided October 23, 2020

Before

MICHAEL B. BRENNAN, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 20

‐ 1626

J OHN NIKOLOFF,

Plaintiff

‐ Appellant

,

v

.

NEAL ZILIAK,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Southern District of Indiana,

Indianapolis Division.

No. 1:18

‐ cv

‐ 02273

‐ JRS

‐ DML

J ames R. Sweeney II,

J udge

.

O R D E R

John Nikoloff sued his criminal defense lawyer under 42 U.S.C. § 1983, alleging

that he pleaded guilty based on his lawyer’s bad advice. The district court dismissed his

suit on several grounds, among them that his lawyer was not a state actor under § 1983.

We agree and affirm.

* We have agreed to decide this case without oral argument because the briefs

and record adequately present the facts and legal arguments, and oral argument would

not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 20

‐ 1626 Page 2

In 2014, Nikoloff was charged in Indiana state court with operating a vehicle

while intoxicated in a manner that endangered a person—a Class A misdemeanor.

See I ND

. C ODE § 9

‐ 30

‐ 5

‐ 2(b). After hiring Neal Ziliak to represent him, Nikoloff pleaded

guilty and was sentenced to work release and home confinement for one year.

In 2015, Nikoloff petitioned the Indiana state court to set aside his conviction

based on the absence of a factual basis for his plea and on Ziliak’s ineffective assistance.

The court agreed that his conviction could not stand because no testimony at his plea or

sentencing hearing suggested that he had endangered anyone, and it downgraded his

conviction from a Class A to a Class C misdemeanor—operating a vehicle while

intoxicated. See I ND

. C ODE § 9

‐ 30

‐ 5

‐ 2(a). The court, however, rejected Nikoloff’s

ineffective

‐ assistance claim, highlighting his explanation at sentencing that he

understood his rights as they had been advised to him by counsel.

Three years later, Nikoloff sued Ziliak in federal court for due process violations

in failing “while representing [him] to make sure he was charged with the right

charge.” Because of Ziliak’s oversights, Nikoloff alleged, he was sentenced and fined

excessively.

The district court granted Ziliak’s motion to dismiss the case. First, Ziliak was

not a state actor under § 1983. Second, collateral estoppel barred Nikoloff’s claim

because the Indiana post

‐ conviction proceedings considered and rejected his claim for

ineffective assistance of counsel. Third, his claim was time

‐ barred under Indiana’s

two

‐ year statute of limitations for personal

‐ injury claims because he knew the basis for

his claim no later than 2015 (when he filed his petition for post

‐ conviction relief)—more

than two years before he sued.

On appeal, Nikoloff challenges the conclusion that his attorney need be a state

actor to be liable under § 1983. But § 1983 reaches only those “who deprive[] an

individual of federally guaranteed rights ‘under color’ of state law,” Filarsky v. Delia

,

566 U.S. 377, 383 (2012) (quoting § 1983), and a lawyer is not a state actor when he—like

Ziliak here—performs his traditional role as counsel to a defendant in a criminal case.

See Polk Cty. v. Dodson

, 454 U.S. 312, 318, 325 (1981); Spiegel v. McClintic

, 916 F.3d 611,

616 (7th Cir. 2019). In his reply brief, Nikoloff asserts for the first time that Ziliak

somehow acted “in concert” with the judge in his criminal case, a state actor. But

Nikoloff waived this argument by omitting it from his opening brief. See Carroll v.

Lynch

, 698 F.3d 561, 568 (7th Cir. 2012). And in any event, his assertion is only a legal

conclusion, unsupported by allegations in his complaint. See Ashcroft v. Iqbal

, 556 U.S.

662, 679 (2009).No. 20

‐ 1626 Page 3

Because we affirm the district court’s judgment on this basis, we need not reach

its alternative bases for dismissal.

AFFIRMED