Wasko v. Silverberg ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JUN 16 2004
TENTH CIRCUIT PATRICK FISHER
Clerk
PETER WASKO,
Plaintiff-Appellant,
No. 03-2204
v. (D.C. No. CIV-03-794-WJ/RHS)
(New Mexico)
HERBERT M. SILVERBERG,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, LUCERO and O’BRIEN, Circuit Judges.
Peter Wasko filed suit under 42 U.S.C. § 1983, alleging violations of his
state and federal constitutional rights to due process of law and equal protection.
Mr. Wasko’s former attorney, Herbert Silverberg, is the focus of this complaint.
Mr. Silverberg filed a motion to dismiss for lack of subject matter jurisdiction,
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
which the district court granted. Mr. Wasko appeals, and we affirm.
The district court aptly set forth the basic facts and allegations underlying
Mr. Wasko’s complaint:
Plaintiff’s Complaint alleges that Defendant was his attorney in an
age discrimination in employment case against the State of New
Mexico Environment Department. Plaintiff contends that Defendant
committed malpractice with regard to his representation of Plaintiff
on the employment claim. Defendant’s alleged acts of malpractice
include lack of diligence and promptness with regard to Plaintiff’s
case, and a failure to communicate with Plaintiff. Plaintiff filed a
malpractice claim against defendant in state court which is still
pending. Plaintiff’s Complaint in this case asserts that Defendant has
continued to commit acts of malpractice during the pendency of the
state malpractice case by failing to timely file an answer to the state
malpractice complaint, falsely representing to the state court that he
was not properly served, failing to file responses to various
pleadings, and failing to appear at a pre-trial conference. Plaintiff’s
Complaint alleges that these various acts by Defendant violated
Plaintiff’s rights to due process and equal protection under the
Fourteenth Amendment of the Constitution of the United States and
under Article III Section 18 of the Constitution of the State of New
Mexico.
Wasko v. Silverberg, No. CIV-03-794 at 1-2.
As mandated by the Fourteenth Amendment: “No state shall . . . deprive
any person of life, liberty, or property, without due process of law; nor deny to
any person . . . the equal protection of the laws.” U.S. C ONST . amend. XIV, § 1
(emphasis added). The rights guaranteed by this section are actionable in federal
court pursuant to 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects, or causes to be subjected,
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any citizen of the United States . . . to the deprivation of any rights
privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress . . . .
Id. (emphasis supplied). A violation of either the Fourteenth Amendment or §
1983 requires wrongs committed by a state actor. Regardless of the character of
the particular rights asserted, if there is no state actor, there will be no federal
cause of action.
Mr. Wasko failed to present any evidence that Mr. Silverberg is state actor,
so he cannot succeed on a claim under the Fourteenth Amendment or § 1983. Mr.
Silverberg was clearly not acting on behalf of the state when he was representing
Mr. Wasko in the state court proceedings nor when he allegedly failed to respond
properly to Mr. Wasko’s state court malpractice action.
Mr. Wasko’s remaining claim arises under the Constitution of the State of
New Mexico. Mr. Wasko asks us to review his state law claim under our
“pendent claim jurisdiction,” Aplt. Br. at 2, but given our disposition of his
federal claims, pendent jurisdiction does not exist. As we explained in Sullivan v.
Scoular Grain Co. of Utah, 930 F.2d 798, 803 (10th Cir. 1991), we may exercise
pendant jurisdiction only where “the federal claim [has] substance sufficient to
confer subject matter jurisdiction on the court.” Id. (quoting United Mine
Workers v. Gibbs, 383 U.S. 715, 725 (1966)). Mr. Wasko’s claims lack this
required substance, and thus are not appropriate for federal review.
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For the foregoing reasons, we AFFIRM the district court’s dismissal of
Mr. Wakso’s complaint.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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