Bledsoe v. Schlachtenhaufen

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
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DEMARCO D. BLEDSOE,

Plaintiff - Appellant,

v.

MARK SCHLACHTENHAUFEN,

Defendant - Appellee.

No. 20-6093
(D.C. No. 5:20-CV-00328-J)
(W.D. Okla.)
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ORDER AND JUDGMENT
*

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Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
Pro se appellant Demarco D. Bledsoe appeals the district court’s dismissal of
his complaint alleging constitutional violations pursuant to 42 U.S.C. § 1983.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
On September 24, 2014, Mark Schlactenhaufen, a journalist for the Edmond
Sun, published an online article reporting that Appellant was charged with “beating a

*
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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and collateral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

November 16, 2020

Christopher M. Wolpert
Clerk of Court
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female Logan County jail guard and verbally assaulting another female jail officer.”
Appellant filed a complaint in the Western District of Oklahoma, alleging that this
statement is false because the purported victim was male. He further alleged that the
false statement caused him great mental anguish, placed in him in physical danger in
prison due to prison politics around offenses involving violence against women, and
harmed his ability to pursue a career in the NFL after his release from prison. The
complaint asserted violations of the Fifth and Fourteenth Amendments under § 1983.
The district court referred the complaint to a magistrate judge for screening
pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommended that the
complaint be dismissed for failure to state a claim. The district court adopted the
magistrate judge’s recommendation over Appellant’s objections and dismissed the
complaint. Appellant filed this timely appeal.
II
A lawsuit alleging that a person was harmed by a false newspaper article
would normally be brought as a libel claim under state law. See, e.g., Gaylord
Entm’t Co. v. Thompson, 958 P.2d 128, 146 (Okla. 1998); see also Okla. Stat. Ann.
tit. 12, § 1441. Appellant does not assert a state law libel claim, but instead advances
a claim under § 1983, arguing that Schlachtenhaufen violated Appellant’s rights
under the Fifth and Fourteenth Amendments.
Section 1983 protects an individual’s constitutional rights from harm
committed “under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). This
generally limits the reach of § 1983 to lawsuits against state employees or officials.
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However, private individuals may be sued for their actions under § 1983 if “the
conduct allegedly causing the deprivation of a federal right [is] fairly attributable to
the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). We have held
that acts of a private individual can be attributable to the state under one of four tests:
the nexus test, the symbiotic relationship test, the joint action test, or the public
function test. Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th
Cir. 1995).
“Under the nexus test, a plaintiff must demonstrate that there is a sufficiently
close nexus between the government and the challenged conduct such that the
conduct may be fairly treated as that of the State itself.” Id. at 1448 (quotation
omitted). The symbiotic relationship test finds state action when “the [S]tate has so
far insinuated itself into a position of interdependence with a private party that it
must be recognized as a joint participant in the challenged activity.” Id. at 1451.
The joint action test extends § 1983 liability to a “willful participant in joint action
with the State or its agents.” Id. at 1453. Finally, under the public function test, a
private individual may be deemed a state actor if the state delegates to that individual
a function “traditionally exclusively reserved to the State.” Id. at 1456.
Appellant did not allege facts that support finding Schlachtenhaufen is a state
actor under any of these tests. Appellant’s complaint involved no allegations of any
coordination between Schlachtenhaufen and state officials; indeed, the complaint
does not allege that any state official was even aware of Schlachtenhaufen’s article.
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Appellant cites Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) for support,
but Gertz did not involve § 1983. Instead, it held that that a publisher who defames a
private individual who is not a public figure may not rely on New York Times Co. v.
Sullivan, 376 U.S. 254 (1964) to protect itself from liability. We do not consider
whether Schlachtenhaufen is entitled to New York Times protection in this case
because Appellant’s complaint did not include a state-law defamation claim against
Schlachtenhaufen.
Because Appellant did not allege a constitutional violation caused by a state
actor, the district court was correct to dismiss the complaint.
1

III
The district court’s dismissal for failure to state a claim is AFFIRMED. The
district court certified in writing
that any appeal taken from its order would not be in
good faith; therefore, Appellant’s motion to proceed in forma pauperis is DENIED.
28 U.S.C. § 1915(a)(3). Appellant is obligated to pay the filing fee in full.
Entered for the Court

Carlos F. Lucero
Circuit Judge

1
Appellant’s motion to appoint counsel is denied as moot.
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