* 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 

1 We review pro se pleadings and filings liberally. See Haines v. Kerner,

(continued...)

FILED

United States Court of Appeals

Tenth Circuit

February 15, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DONA KELLER,

Plaintiff-Appellant,

v.

PORTER HOSPITAL; CENTURA

HEALTH; CANNON COCHRAN

MANAGEMENT SERVICE INC.

(actually named as Cannon Cochran

Mng. Serv. Inc.),

Defendants-Appellees.

No. 07-1448

(D.C. No. 07-CV-1543-ZLW)

(D. Colo.)

ORDER AND JUDGMENT*

Before LUCERO, HARTZ, and HOLMES, Circuit Judges.

Plaintiff-Appellant Dona Keller, appearing pro se, appeals the dismissal of

her complaint by the United States District Court for the District of Colorado. 

We have jurisdiction under 28 U.S.C. § 1291. Reviewing her filings liberally,1

 
1

(...continued)

404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Howard v. U.S.

Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007). 

2 The defendants were never served and thus did not appear in the district

court and do not appear in this court on appeal.

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we conclude that the district court correctly held that the defendants did not act

under color of state law, and thus her complaint failed to state a claim for relief

under 42 U.S.C. § 1983. Further, we conclude that the district court did not abuse

its discretion in declining to exercise supplemental jurisdiction over her state law

claims. Accordingly, we AFFIRM the district court’s order of dismissal.2

I. BACKGROUND

Ms. Keller filed suit against her former employer, Porter Hospital/Centura

Health, and Cannon Cochran Management Service Inc., the third-party

administrator hired by her employer to administer workers-compensation claims. 

The gravamen of her complaint was the alleged failure to receive adequate

medical treatment for an injury suffered at work. More specifically, Ms. Keller

alleged a constitutional claim under § 1983 for an alleged denial of her “rights to

life, liberty[,] property and the pursuit of happiness,” R., Doc. 7 at 3, in that “the

defendants are allowed to [circumvent] the rules and regulations of the Colorado

Workers’ Compensation process[.]” Id. She also asked the court to exercise

supplemental jurisdiction over her state law claims for “Standards of Professional

Responsibility” and “False Claims Act.” Id. at 7, 11. Along with the complaint,
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Ms. Keller filed a motion to proceed in forma pauperis under 28 U.S.C. § 1915,

which was granted. The district court dismissed the suit as frivolous because the

defendants did not act under color of state law – one of several prerequisites to

relief under § 1983. The court also declined to exercise supplemental jurisdiction

over the state law claims. 

II. DISCUSSION 

A district court is required to dismiss a complaint filed in forma pauperis

when, among other things, it is frivolous. 28 U.S.C. § 1915(e)(2)(B)(I). An in

forma pauperis complaint is frivolous when “it lacks an arguable basis either in

law or in fact.” Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006)

(quotation omitted). As in this case, “where the frivolousness determination turns

on an issue of law, we review the determination de novo.” Id. 

“To state a claim under § 1983, [a plaintiff] must allege that [she was]

deprived of a right secured by the Constitution and laws of the United States and

that this deprivation was committed under color of state law.” Yanaki v. Iomed,

Inc., 415 F.3d 1204, 1207 (10th Cir. 2005) (footnote and quotation omitted). A

two-part test is used to determine whether the conduct was under the color of

state law: 

First, 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. . . . Second,

the 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
-4-

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.

Johnson v. Rodrigues, 293 F.3d 1196, 1202 (10th Cir. 2002) (quoting Lugar v.

Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)). 

Ms. Keller’s complaint was devoid of any allegations that the defendants

were state actors. Therefore, the district court correctly dismissed the complaint 

as legally frivolous. 

Ms. Keller’s argument that the district court erred in declining to exercise

supplemental jurisdiction over her state law claims also lacks merit. Under

28 U.S.C. § 1367(c), the “district courts may decline to exercise supplemental

jurisdiction over a claim . . . [if] the district court has dismissed all claims over

which it has original jurisdiction.” “Section 1367 thus expressly grants the court

discretion to dismiss the supplemental state law claims as well.” Tonkovich v.

Kansas Bd. of Regents, 254 F.3d 941, 945 (10th Cir. 2001). Indeed, none of the

factors which might indicate an abuse of discretion such as “judicial economy,

convenience, and fairness,” Anglemyer v. Hamilton County Hosp., 58 F.3d 533,

541 (10th Cir. 1995), favor a decision to retain jurisdiction. Because there was no

abuse of discretion, we affirm the district court’s order declining to exercise

supplemental jurisdiction. 
-5-

The judgment of the district court is AFFIRMED. Ms. Keller’s motion to

proceed in forma pauperis on appeal is DENIED. 

Entered for the Court

Jerome A. Holmes

Circuit Judge