* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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

July 30, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GREG ANDERSON,

Plaintiff-Appellant,

v.

DANIEL W. KITCHEN; SAND BAY,

LLC.; SUN LAKE, LLC.; ORCHID

BEACH, LLC.; ROOSEVELT HILLS,

LLC.; JAMES L. AHLSTROM;

CLARK A. MCCLELLAN; TERRY E.

WELCH; LYNN KITCHEN; GARY

KITCHEN; MATHEW J. KITCHEN;

MARK R. KITCHEN,

Defendants-Appellees.

No. 09-4229

(D.C. No. 2:09-CV-00362-TC)

(D. Utah)

ORDER AND JUDGMENT*

Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and O’BRIEN,

Circuit Judge.

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Greg Anderson appeals from the district court’s order dismissing his civil

rights suit against the defendants. He brought the action pursuant to 42 U.S.C.

§ 1983, alleging that the defendants had wrongfully and unconstitutionally

procured a state court eviction order against him. The district court dismissed the

action because it concluded that the defendants, who are private parties, could not

fairly be said to be state actors for purposes of § 1983 or the Fourteenth

Amendment. We agree, and therefore affirm the dismissal.

BACKGROUND

In his First Amended Verified Complaint, Mr. Anderson alleged that he was

the purchaser of a home from defendant Daniel W. Kitchen under a Real Estate

Purchase Contract (REPC). He contended that notwithstanding his rights under

the REPC and his performance of its terms, a Utah state district court wrongfully

entered an eviction order granting possession of the home to Mr. Kitchen. 

Mr. Anderson offered two explanations for this unfavorable state court result. 

First, he alleged the defendants misrepresented facts and law in the eviction

proceeding to obtain the order. Alternatively, he contended that “[t]hrough

information and belief there is some type of collusion and/or quid pro quo going

on between Defendant Clark McClellan, his law firm and [state court] Judge

Anderson in numerous actions in the Eighth District Court.” R. at 90. 

Mr. Anderson did not sue Judge Anderson, the state court judge who

ordered the eviction, because he rightly recognized that Judge Anderson had

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1 In addition to his procedural due process claim, Mr. Anderson contends that

his complaint states constitutional claims for deprivation of a liberty interest,

unconstitutional seizure, and denial of equal protection, all based on the

wrongfully-obtained eviction order. Aplt. Opening Br. at 12, 18-24. To the

extent that a liberal construction of his pro se complaint could be viewed to

include these claims, they fail for the same reasons as his procedural due process

claim.

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judicial immunity. But his complaint did rely heavily on what happened in

Judge Anderson’s courtroom. Specifically, he alleged a denial of procedural

due process in connection with the eviction. Because of defendants’

misrepresentations, he charged, the state court had (1) denied Mr. Anderson’s

motion to dismiss; (2) failed to permit him to prove that the house was paid for;

and (3) failed to permit him to file an answer to the eviction complaint. Id.

at 77.1

Prior to filing his federal court complaint, Mr. Anderson attempted to

appeal Judge Anderson’s eviction ruling to the Utah Court of Appeals. But that

court dismissed his appeal for lack of jurisdiction because it concluded that the

eviction order was not a final, appealable judgment. Thus, state proceedings

between the parties remained ongoing at the time Mr. Anderson filed his federal

§ 1983 action. 

The defendants subsequently filed a motion to dismiss the federal action,

on three grounds. They contended the action was barred by Utah’s judicial

proceedings privilege; that there was no state action present to invoke federal

question jurisdiction; and that the federal district court should abstain from

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2 The defendants sought abstention under the Colorado River doctrine,

see Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976),

based on a separate action Mr. Anderson had filed in Utah state court containing

many of the same claims he has asserted in this action. We discern no abuse of

discretion in the district court’s decision to reach the merits of Mr. Anderson’s

federal constitutional claims rather than dismissing or staying this action under

Colorado River. See Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir. 1999)

(applying abuse of discretion standard to review of district court’s decision

concerning Colorado River abstention).

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hearing the case pending the outcome of the state court litigation.2 The district

court dismissed the action based on lack of “state action.” It also declined to

exercise supplemental jurisdiction over Mr. Anderson’s state law claims. 

ANALYSIS

We review de novo the district court’s order granting the defendants’

motion to dismiss. See Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227

(10th Cir. 2004). We construe Mr. Anderson’s pro se complaint liberally. Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 

“Section 1983 provides a federal cause of action against any person who,

acting under color of state law, deprives another of his federal rights.” Conn v.

Gabbert, 526 U.S. 286, 290 (1999). Liability attaches only to conduct occurring

under color of state law, and conduct constituting “state action” under the

Fourteenth Amendment satisfies this requirement. Lugar v. Edmondson Oil Co.,

457 U.S. 922, 935 & n.18 (1982). “[T]he under-color-of-state-law element of

§ 1983 excludes from its reach merely private conduct, no matter how

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discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50

(1999) (internal quotation marks omitted). 

Private conduct constitutes state action, however, if it is “fairly attributable

to the State.” Lugar, 457 U.S. at 937; see also Scott v. Hern, 216 F.3d 897, 906

(10th Cir. 2000). This requirement is satisfied if two conditions are met: (1) “the

deprivation must be caused by the exercise of some right or privilege created by

the State or by a rule of conduct imposed by the state or by a person for whom the

State is responsible” and (2) the private party charged with the deprivation “must

be a person who may fairly be said to be a state actor. This may be because he is

a state official, because he has acted together with or has obtained significant aid

from state officials, or because his conduct is otherwise chargeable to the State.” 

Lugar, 457 U.S. at 937.

The actions by defendants that Mr. Anderson complains of do not satisfy

either of the Lugar conditions. He does not contend that the Utah eviction

statutes are themselves unconstitutional. Instead, he alleges only a private misuse

of state laws, undertaken by parties who allegedly misled a state court judge. 

The actions taken by defendants to mislead Judge Anderson did not represent the

“exercise of some right or privilege created by the State,” id.; rather, their alleged

actions, which Anderson contends were unlawful under state law, violated state

policy. Their conduct cannot therefore be attributed to the State, and

consequently it fails the first prong of Lugar. See Yanaki v. Iomed, Inc., 415 F.3d

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1204, 1209 (10th Cir. 2005). We further note that “[t]o hold otherwise would

open the door wide to every aggrieved litigant in a state court proceeding, and set

the federal courts up as an arbiter of the correctness of every state decision.” 

Id. (internal quotation marks and brackets omitted). 

Nor do the defendants’ actions satisfy the second Lugar condition. They

were not “state actors.” First, although Mr. Anderson has named as defendants

the attorneys who opposed him in the eviction proceeding, the “vast weight of

authority” holds that “private attorneys, by virtue of being officers of the court,

do not act under color of state law within the meaning of section 1983.” Barnard

v. Young, 720 F.2d 1188, 1189 (10th Cir. 1983). Second, while state action can

be “present if a private party is a ‘willful participant in joint action with the State

or its agents,’” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1453

(10th Cir. 1995) (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)), “the mere

acquiescence of a state official in the actions of a private party is not sufficient,”

id. (citing Flagg Bros. v. Brooks, 436 U.S. 149, 164 (1978)). “[C]onstitutional

standards are invoked only when it can be said that the State is responsible for the

specific conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U.S.

991, 1004 (1982). Again, defendants’ actions in allegedly misleading a state

court judge did not constitute joint action between defendants and the judge. 

Nor does Mr. Anderson present any other basis from which we could conclude

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that defendants’ conduct is “otherwise chargeable to the State.” Lugar, 457 U.S.

at 937. 

As noted, Mr. Anderson alleged alternatively in his complaint that

defendants acted in collusion with Judge Anderson to seize his property. To the

extent that he thereby attempted to plead a conspiracy to deprive him of his

constitutional rights, his complaint also failed to state a claim under § 1983. 

“When a plaintiff in a § 1983 action attempts to assert the necessary ‘state action’

by implicating state officials or judges in a conspiracy with private defendants,

mere conclusory allegations with no supporting factual averments are insufficient;

the pleadings must specifically present facts tending to show agreement and

concerted action.” Scott, 216 F.3d at 907 (internal quotation marks omitted). 

Such facts are conspicuously absent from Mr. Anderson’s complaint. 

Finally, Mr. Anderson challenges the dismissal of his supplemental state

claims. In accordance with 28 U.S.C. § 1367(c)(3), a district court has the

discretion to decline to exercise supplemental jurisdiction over a state-law claim

if “the district court has dismissed all claims over which it has original

jurisdiction.” See also Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d

1151, 1156 (10th Cir. 1998) (“When all federal claims have been dismissed,

the court may, and usually should, decline to exercise jurisdiction over any

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remaining state claims.”). We discern no abuse of discretion in the district

court’s dismissal of the supplemental state claims. 

CONCLUSION

The judgment of the district court is AFFIRMED.

Entered for the Court

Wade Brorby

Senior Circuit Judge

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