                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                 September 6, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 ALTO N RA YM OND AM ES,

              Plaintiff - Appellant,
                                                        No. 07-6014
 v.                                                      W .D. Okla.
                                                 (D.C. No. CIV-06-0668-HE)
 AND REA D. M ILLER,

              Defendant - Appellee.
 __________________________

 ALTO N RA YM OND AM ES,

              Plaintiff - Appellant,
 v.                                                      No. 07-6019
                                                         W .D. Okla.
 JO N A TH A N R. G RA M M A R; JOHN              (D.C. No. 06-CV -0728-HE)
 W . G ILE; G RA N T M . LU CK Y ;
 DAV ID W . KIRK; CLIFFORD B.
 SHILLING, assistant city attorney,
 Stillwater; NIX AN D M CINTYRE
 LLP; K LIN G EN BER G B RO WN AND
 ASSOCIATES; LYTLE SOU LE &
 C URLEE PC ; C ITY O F
 STILLW ATER,

              Defendant - Appellee.



                           OR D ER AND JUDGM ENT *


      *
        This order and judgment is not binding precedent except under the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.
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




      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.

      Alton Raymond Ames, a state prisoner proceeding pro se, 1 has a tale of

woe; he is quite unhappy about his experience with the justice system. He filed

two cases, Ames v. M iller and Ames v. Grammar, et. al., claiming violations of his

civil rights by his attorneys and the city attorney in his prior criminal and federal

habeas proceedings. He also asserted various state law claims. The district court

dismissed each of the cases sua sponte for failure to state a claim on the federal

claims and declined to exercise supplemental jurisdiction. Ames appeals from

those dismissals. W e consolidated the appeals and dismiss them because they are

frivolous.




      1
         Because Ames proceeds pro se on appeal, we will construe his pleadings
liberally. Freeman v. Watkins, 479 F.3d 1257, 1258 (10th Cir. 2007).

                                          -2-
                                   I. Background

A. Ames v. M iller

          Ames was convicted by a jury of drug charges. He hired appellate counsel

to represent him in various state and federal post-conviction proceedings. In

M iller, Ames brought a 42 U.S.C. § 1983 action and various state law claims

against his retained counsel expressing his dissatisfaction with his retained

counsel’s representation in those proceedings. The district court dismissed Ames’

§ 1983 claim because his attorney could not be considered a “state actor.” It then

declined to exercise supplemental jurisdiction over the remaining state law

claims.

B. Ames v. Grammar, et. al.

      In 2002, Ames filed a civil rights action in federal court in which he

alleged city law enforcement officers acted improperly during the arrest which led

to the drug charges against him.    The court appointed an attorney to represent

him. In Grammar, Ames brought a § 1983 claim and various state law claims

against his court appointed attorney and others. Ames expresses dissatisfaction

with counsel’s performance and alleges the city attorney conspired with his

appointed attorney to violate his rights. In addition to his attorney and the city

attorney Ames also makes claims against the city and all the law firms for whom

his attorney had ever worked.

      The district court determined: 1) A mes could not state a § 1983 claim

                                         -3-
because his attorney was not a “state actor;” 2) nor were the sundry law firms

with which his attorney was associated; 3) Ames failed to allege facts sufficient

to support the conspiracy claim against the city attorney; and 4) Ames failed to

allege a custom or policy of the city, an allegation necessary to state a § 1983

claim against the city. The court consequently dismissed Ames’ § 1983 claims

and declined to exercise supplemental jurisdiction over the remaining state

claims.

                                    II. Discussion

      Ames challenges the dismissals in both cases. He insists he stated

cognizable claims under § 1983. In addition, he claims he should have been

afforded the opportunity to amend his complaints. Along with everyone else,

Ames is dissatisfied with the trial judge, complaining that the judge did not

recuse from these cases. Finally, Ames challenges the court’s imposition of a

strike under 28 U.S.C. § 1915(g).

A.    Failure to state claim

      “To state a claim for relief in an action brought under § 1983, respondents

must establish that they were deprived of a right secured by the Constitution or

laws of the United States, and that the alleged deprivation was comm itted under

color of state law.” Am. M frs. M ut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50

(1999). Private attorneys performing traditional legal functions as counsel do not

act “under color of state law.” Polk County v. Dodson, 454 U.S. 312, 318-20, 325

                                          -4-
(1981); Lemmons v. Law Firm of M orris & M orris, 39 F.3d 264, 266 (10th Cir.

1994) (“The conduct of retained counsel does not rise to the level of state action

within the meaning of § 1983.”). Also, § 1983 does not impose liability “based

on a respondeat superior theory of liability.” Polk, 454 U.S. at 325. Thus, Ames

cannot prevail in his claims against the defendant law firms. W hile Ames does

name one state actor as a defendant in Grammar, the city attorney, he failed to

allege a sufficient conspiracy with his former attorney. Durre v. Dempsey, 869

F.2d 543, 545 (10th Cir. 1989) (“Because [pro se] plaintiff failed to allege

specific facts showing agreement and concerted action among defendants, the

district court properly dismissed the conspiracy claim with prejudice. Conclusory

allegations of conspiracy are insufficient to state a valid § 1983 claim.”) (citations

omitted). As for the claim against the city itself, the court noted, and we agree,

that Ames failed to allege a policy or custom sufficient to support a § 1983 claim

against a municipal entity. Graves v. Thom as, 450 F.3d 1215, 1218 (10th Cir.

2006).

         One thing is clear from the record – Ames failed to allege facts sufficient to

support any of his § 1983 claims against any of the defendants. Accordingly, it

was appropriate for the court to dismiss those claims sua sponte. W e now

proceed to consider whether Ames should have had an opportunity to amend his

complaint.

B. Opportunity to Amend Complaint

                                            -5-
      “Although the preferred practice is to accord a plaintiff notice and an

opportunity to amend his complaint before acting upon a motion to dismiss for

failure to state a claim,” “a sua sponte dismissal under Rule 12(b)(6) is not

reversible error when it is ‘patently obvious’ that the plaintiff could not prevail on

the facts alleged, and allowing him an opportunity to amend his complaint would

be futile . . . .” M cKinney v. State of Okla., Dept. of Human Svcs., Shawnee

Okla., 925 F.2d 363, 365 (10th Cir. 1991).

       Ames’ complaint about his former attorneys concern only those actions

which are traditional legal functions. The lawyers are not state actors and,

accordingly, Ames cannot prevail in a § 1983 suit against them. W e have also

explained how the other claims – the conspiracy claim against the city attorney

and municipal liability claim against the city itself – are defective. In support of

his motion to amend his pleadings he failed to suggest any facts suggesting he

could sufficiently state a conspiracy claim against the city attorney or

demonstrate a custom or policy necessary to support municipal liability.

      The district court was correct. From the proceedings before the court, it

was clear Ames could not prevail; thus, affording an opportunity to amend the

complaint would have been futile. 2

      2
       Ames also cites Rule 15 of the Federal Rules of Civil Procedure.
However, Rule 15(a) permits the district court to deny a motion to amend if the
amendment would be futile. Stafford v. Saffle, 34 F.3d 1557, 1560 (10th Cir.
1994) (quotations omitted). Our agreement with the district court that an
amendment would be futile distinguishes the cases A mes cites in support of his

                                          -6-
C. Pendant Jurisdiction

      Following 28 U.S.C. § 1367(c), the district court determined it should not

exercise pendant jurisdiction following the dismissal of the only claim over which

it had jurisdiction. W e do not fault this determination. “Once federal question

jurisdiction exists, it is within the trial court's discretion to exercise supplemental

jurisdiction over those state law claims that derive from a common nucleus of

facts.” United Intern. Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207,

1220 (10th Cir. 2000). The district court did not abuse its discretion by

dismissing the remaining state claims after all federal claims had been dismissed. 3

D. Recusal

      Finally, Ames w ants another judge to preside in his case. Although his

briefs question the impartiality and fairness of the district judge, he provides us

no record citations substantiating his claims. The gist of his complaint is that the

judge made rulings against him, made him pay fees, and dismissed his cases.

      “A judge should not be disqualified for faithfully performing the duties of

his office. Unfavorable judicial rulings do not in themselves call into question

the impartiality of a judge.” United States v. M endoza, 468 F.3d 1256, 1262



argument. See, e.g., Church v. Attorney General of Com. of Va., 125 F.3d 210,
215 (4th Cir. 1997); Karim -Panahi v. Los Angeles Police Dep’t., 839 F.2d 621,
623-24 (9th Cir. 1988).
      3
        Ames concedes all parties reside in Oklahoma. Therefore, diversity
jurisdiction cannot support federal jurisdiction in these cases.

                                           -7-
(10th Cir. 2006). Ames’ arguments are little more than the lamentations of a

disgruntled litigant; this is certainly insufficient grounds for recusal.

E.    Strikes Under 28 U.S.C. §1915(e)

      Finally, Ames contests the district court’s decision to impose a strike in

Grammar under 28 U.S.C. § 1915(g). 4      This, too, must fail. Section

1915(e)(2)(B) requires the district court (and this Court as w ell) to summarily

dismiss frivolous actions (or appeals) and those which fail to state a claim upon

which relief may be granted. 5

      Ames’ briefs fail to present any legal theory or present allegations which

could conceivably refute the district court’s thoroughly reasoned disposition.

Northington v. Jackson, 973 F.2d 1518, 1520 (10th Cir. 1992) (“A claim is

frivolous or malicious [under § 1915] if it is based on an indisputably meritless

legal theory.”) (quotations omitted). Both appeals before us are frivolous and

must be dismissed. These dismissals also count as strikes under § 1915(g). Thus,



      4
       The district court did not expressly impose a strike in M iller as it did in
Grammar. However, it is clear that the complaint in M iller, too, failed to state a
claim and the district court’s dismissal thus counts as a strike. 28 U.S.C. §
1915(g).
      5
        Ames also argues the district court erred in dismissing his cases after he
paid his filing fee. How ever, § 1915(e)(2) requires the court to dismiss the case
“at any time” if the court concludes the action is frivolous or fails to state a claim
for which relief may be granted, “[n]otwithstanding any filing fee, or any portion
thereof, that may have been paid . . . .” Ames’ argument is therefore without
merit. See Fogle v. Pierson, 435 F.3d 1252, 1257-58 (10th Cir.), cert. denied, 127
S.Ct. 675 (2006).

                                           -8-
Ames has accumulated four strikes, two in the district court and two here. See 28

U.S.C. § 1915(g) 6 ; Jennings v. Natrona County D et. Ctr. M ed. Facility, 175 F.3d

775, 780 (10th Cir.1999).

      DISM ISSED.

                                       FOR TH E CO UR T:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




      6
          Section 1915(g) provides:

      In no event shall a prisoner bring a civil action or appeal a judgment in a civil
      action or proceeding under this section if the prisoner has, on 3 or more prior
      occasions, while incarcerated or detained in any facility, brought an action or
      appeal in a court of the United States that was dism issed on the grounds that
      it is frivolous, malicious, or fails to state a claim upon which relief may be
      granted, unless the prisoner is under imm inent danger of serious physical
      injury.

                                         -9-
