                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 28 1997
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    LARRY W. SARNER, an individual
    and alleged general partner,

                Plaintiff-Appellant,
                                                       No. 96-1461
    v.                                          (D.C. No. 96-WY-194-WD)
                                                        (D. Colo.)
    PETER PAUL LUCE, an individual
    and alleged general partner; MURRAY
    RICHTEL, State District Judge for the
    District of Boulder County, Division
    3; JUDICIAL ARBITERS GROUP,
    a Colorado private arbitration and
    mediation business,

                Defendants-Appellees.




                             ORDER AND JUDGMENT *



Before TACHA, MCKAY, and BALDOCK, Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
      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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff commenced a 42 U.S.C. § 1983 civil rights action alleging that

defendants, a private individual, a state court judge, and a court-appointed

receiver, deprived him of property without due process. The alleged deprivation

occurred in the course of state court litigation to dissolve a de facto partnership

during which the judge appointed the receiver at the request of the private

individual. Plaintiff sought injunctive relief against all three defendants and

damages against the private individual and receiver. The district court dismissed

the action under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which

relief may be granted.

      We review a dismissal under Rule 12(b)(6) de novo. See Chemical

Weapons Working Group, Inc. v. United States Dep’t of Army, 111 F.3d 1485,

1490 (10th Cir. 1997). We will uphold the dismissal “when it appears that the

plaintiff can prove no set of facts in support of the claims that would entitle him

to relief, accepting the well-pleaded allegations of the complaint as true and

construing them in the light most favorable to the plaintiff.” Yoder v. Honeywell

Inc., 104 F.3d 1215, 1224 (10th Cir.) (further quotation omitted), cert. denied,


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66 U.S.L.W. 3246 (U.S. Oct. 6, 1997) (No. 96-1848). Applying this standard, we

affirm.

      Plaintiff argues with respect to defendant Luce, the private individual, that

the district court erroneously determined that plaintiff failed to prove state action

necessary for a § 1983 action. Specifically, plaintiff objects to the district court’s

interpretation of Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), and the

court’s subsequent determination that plaintiff failed to assert facts showing a

conspiracy between Luce and the other defendants to deprive plaintiff of his

constitutional rights.

      We agree with plaintiff that Lugar merely held that conspiracy meets the

test for state action, but is not the definitive standard for determining whether

there is state action. See also Gallagher v. Neil Young Freedom Concert, 49 F.3d

1442, 1453-54 (10th Cir. 1995). The framework for state action set forth in Lugar

analyzes (1) “whether the claimed constitutional deprivation resulted from the

exercise of a right or privilege having its source in state authority” and (2)

“whether the private party charged with the deprivation could be described in all

fairness as a state actor.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620

(1991). State action may be found when a “private part[y] make[s] extensive use

of state procedures with ‘the overt, significant assistance of state officials.’” Id.

at 622 (quoting Tulsa Prof’l Collection Servs., Inc. v. Pope, 485 U.S. 478, 486


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(1988)); see also Cobb v. Saturn Land Co., 966 F.2d 1334, 1337 (10th Cir. 1992)

(county clerk’s acceptance and recording of lien materials and issuance of filed

notices not enough to be overt and significant help for state action sufficient to

implicate due process).

      Applying this standard to this case, we conclude as a matter of law that

plaintiff did not establish state action on the part of defendant Luce. See also

United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994) (permitting

affirmance on any ground for which there is record to permit conclusion of law,

even if affirmance is on ground not relied upon by district court). Plaintiff failed

to plead overt or significant action by the other defendants such that defendant

Luce was a state actor. Even if the other two defendants had acted improperly,

there was no state action. See Torres v. First State Bank, 588 F.2d 1322, 1325-27

(10th Cir. 1978).

      Plaintiff argues the district court erred in determining that the federal

courts lacked jurisdiction to grant injunctive relief against defendant Richtel, a

state trial court judge. Plaintiff disagrees with the district court’s finding that

plaintiff essentially sought review of state court decisions. Rather, plaintiff

believes that federal courts can enjoin state court proceedings litigating the rights

of a person, such as plaintiff, who has not been made a party to the state

proceedings. We conclude, for substantially the same reasons stated by the


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district court, that the district court correctly decided it lacked jurisdiction to

grant injunctive relief.

      With respect to the damage claim against defendant Judicial Arbiter Group,

Inc. (JAG), the receiver, plaintiff argues the district court erred in determining

that JAG has judicial immunity as a court-appointed receiver and did not act

outside the scope of its judicial authority. Plaintiff also challenges the district

court’s determination that the request for injunctive relief against JAG is moot in

light of involuntary bankruptcy proceedings against United States Voting

Machines, Inc., the subject of the receivership proceedings. For substantially the

same reasons stated by the district court, we agree with the district court’s

determinations.

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED. Defendants’ request for attorney’s fees and costs is

DENIED. The mandate shall issue forthwith.



                                                       Entered for the Court



                                                       Monroe G. McKay
                                                       Circuit Judge




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