                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                   November 2, 2007
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 LO U IS G . G A LLO WA Y ,

              Plaintiff - Appellant,                     No. 07-3111
       v.                                                   D. Kan.
 LAW REN CE JOU RN AL W OR LD                    (D.C. No. 07-CV-3045-SAC)
 NEWSPAPER ; ERIC W ESLANDER,
 Publisher, Lawrence Journal W orld
 New spaper,

              Defendants - Appellants.



                              OR D ER AND JUDGM ENT *


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.




       *
        This order and judgment is not binding precedent except under the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.
      Louis Galloway, appearing pro se and in form a pauperis, appeals from the

district court’s sua sponte dismissal of his civil rights complaint for failure to state

a claim upon which relief may be granted under 28 U.S.C. § 1915A(a), (b). 1

Specifically, the court dismissed the complaint because the defendants, the

Lawrence Journal W orld Newspaper and its publisher, were not persons acting

under color of state law as required to state a claim for relief under 42 U.S.C.

§ 1983. It further concluded that allowing Galloway an opportunity to amend his

complaint to cure this deficiency would be futile.

      W e review de novo a district court’s dismissal of a prisoner’s case for

failure to state a claim. M cBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001).

U nder § 1983, liability attaches only to conduct occurring under color of state law ;

conduct constituting state action under the Fourteenth Amendment satisfies this

requirement. Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n.18 (1982). In this

case, both defendants are private actors. Private conduct constitutes state action if

it is “fairly attributable to the State.” Id. 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



       1
       Pro se pleadings are liberally construed. Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).

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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 defendants’ conduct in this case,

publishing an article allegedly containing false information about Galloway, does

not satisfy Lugar. The court properly dismissed the complaint for failure to state a

claim.

         W e conclude this appeal is frivolous and DISM ISS it under 28 U.S.C.

§ 1915(e)(2)(B)(i). Galloway has accumulated two strikes in this matter, one due

to the district court’s dismissal for failure to state a claim and one due to our

dismissal of the appeal as frivolous. See 28 U.S.C. § 1915(g). W e DENY his

“M otion For Continuance.” Galloway is reminded to continue making partial

payments of his appellate filing fee until the entire balance is paid. See Kinnell v.

Graves, 265 F.3d 1125, 1129 (10th Cir. 2001) (dismissal of an appeal does not

relieve appellant of the obligation to pay the appellate filing fee in full).

                                                 ENTERED FOR THE COURT


                                                 Terrence L. O’Brien
                                                 Circuit Judge




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