* This order and judgment is not binding precedent, except under the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

### September 2, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BARTLETT ELLIOTT,

Plaintiff-Appellant, No. 05-2073

v. District of New Mexico CHRYSLER FINANCIAL,

Defendant-Appellee. (D.C. No. Civ-04-1432 ACT/RHS)

ORDER AND JUDGMENT *

Before SEYMOUR, HARTZ , and McCONNELL , Circuit Judges.

Plaintiff Bartlett Elliott filed a pro se complaintunder 42 U.S.C. § 1983 alleging that Defendant Chrysler Financial violatedhis constitutional rights by unlawfully seizing his vehicle. The district courtgranted Chrysler Financial’s motion to dismiss for lack of subject matter jurisd iction. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM. On December 22, 2004, agents of Chrysler Financial repossessed Mr. Elliott’s 2000 Chrysler Voyager minivan while it wa s parked behind his home.2

Mr. Elliott contends that this repossession was an unlawful seizure in violation of the Fourth Amendment. He filed a pro se complaint alleging that Chrysler Financial and its agents violated his constitutiona l rights and is seeking one million dollars in damages. The complaint asserted a claim under 42 U.S.C. § 1983 with jurisdiction under 28 U.S.C. § 1343(3). Chrysler Financial moved to dismiss the complaint f or lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(1), (6). The magistrate judg e, hearing the case by consent of the parties, dismissed the complaint for lack of su bject matter jurisdiction, holding that federal question jurisdiction was lacking because the claim does not arise under federal law, that § 1983 does not provide jur isdiction because the facts in the complaint do not identify any action taken unde r color of state law, and that diversity jurisdiction does not exist because the c omplaint does not allege a state of citizenship for Chrysler Financial. We review the dismissal for lack of subject matter jurisdiction de novo. See U.S. West, Inc. v. Tristani , 182 F.3d 1202, 1206 (10th Cir. 1999). We liberal ly construe pro se appellants’ filings, Hunt v. Uphoff , 199 F.3d 1220, 1223 (10th Cir. 1999), but we may not advocate on behalf of the lit igant. Whitney v. New Mexico , 113 F.3d 1170, 1173–74 (10th Cir. 1997). Because M r. Elliott asserted jurisdiction only under § 1343, the state action re quirement is an element of Mr. Elliott’s cause of action as well as a jurisdiction al prerequisite. Compare 423

U.S.C. § 1983 with 28 U.S.C. § 1343(3). Before Steel Co. v. Citizens for a Better
Environment , 523 U.S. 83 (1998), we analyzed issues common to jurisdiction and the merits under Rule 12(b)(6). See Pringle v. United States , 208 F.3d 1220, 1222 (10th Cir. 2000) (per curiam) (quoting Holt v. United States , 46 F.3d 1000, 1003 (10th Cir. 1995)). After Steel Co. , the better practice is to determine jurisdiction first, though in this case it amounts to the same thing. See Examining Bd. of Engineers, Architects and Surveyors v. Flores de Ot ero , 426 U.S. 572, 581–82 (1976) (explaining that the state action elements i n § 1343 and § 1983 were “deemed to coincide”); cf. City of Kenosha v. Bruno , 412 U.S. 507, 513–14 (1973) (finding no jurisdiction under § 1343 because the m unicipality was not a “person”). To establish subject matter jurisdiction under § 13 43, the plaintiff must show that the defendant acted “under color of any s tate law.” See 28 U.S.C. § 1343(3). To satisfy the state action requirement, “the party charged with the deprivation must be a person who may fairly be saidto be a state actor . . . because he is a state official, because he has acte d together with or has obtained significant aid from state officials, or because hi s conduct is otherwise chargeable to the State.” Lugar v. Edmondson Oil Co., Inc. , 457 U.S. 922, 937 (1982) (holding that a private party did not act under col or of state law in a prejudgment attachment of the debtor’s property if the creditoracted contrary to state policy); Jackson v. Metro. Edison Co. , 419 U.S. 345, 351 (1974) (explaining that private4

action supports a § 1983 claim only if it “may be f airly treated as that of the State itself”); Pino v. Higgs , 75 F.3d 1461, 1465 (10th Cir. 1996) (noting that pr ivate action must be “fairly attributable to the state”). In his complaint, Mr. Elliott alleges that agents o f Chrysler Financial improperly repossessed his vehicle for failure to m ake timely payments, when in fact he had made all payments on the account. Repo ssession is governed by state law. See N.M. Stat. Ann. § 55-9-609 (establishing procedures for repossession of collateral by secured creditors). Merely following a procedure established by state law does not transform a private party’s activity i nto state action. Scott v. Hern , 216 F.3d 897, 906–07 (10th Cir. 2000); see also Kirksey v. Theilig , 351 F. Supp. 727 (D. Colo. 1972) (holding that self-help reposse ssion of an automobile by a private party is not action under color of state law). Section 1343 is the sole basis of jurisdiction asserted in Mr. Elliott’s complaint ; however, none of his factual allegations support the conclusion that the governm ent played a part in the repossession. Mr. Elliott therefore fails to invok e federal subject matter jurisdiction. Mr. Elliott’s claim fares no better on alternative grounds of jurisdiction not asserted in his complaint. Ordinarily, § 1983 plai ntiffs assert federal question jurisdiction under 28 U.S.C. § 1331, see Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg. , 125 S. Ct. 2363, 2366 (2005), and the state actio n requirement is treated only as an element of the cl aim. See West v. Atkins , 4875

U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution an d laws of the United States, and must show that the alleged deprivation was committe d by a person acting under color of state law.”). Although § 1331 would provi de subject matter jurisdiction, Mr. Elliott’s complaint fails to state a claim uponwhich relief can be granted because it fails to establish state action. The di strict court also considered the possibility of diversity jurisdiction under 28 U.S. C. § 1332, but correctly found jurisdiction lacking because the complaint failed t o allege jurisdictional facts. Because the district court lacked subject matter ju risdiction over Mr. Elliott’s claim, we AFFIRM the magistrate judge’s o rder dismissing the complaint. Entered for the Court, Michael W. McConnell, Circuit Judge