                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                May 31, 2006
                                       TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                                Clerk of Court

 PETER WASKO,

           Plaintiff - Appellant,

                                                               No. 05-2228
           v.                                       (D. Ct. No. CIV-03-910 JH/WDS)
                                                              (D. N. Mex.)
 JOHNNY GONZALES,

           Defendant - Appellee.



                                    ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance 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.

       Plaintiff-Appellant Peter Wasko appeals pro se an order of the District Court

granting Defendant-Appellee Johnny Gonzales’ motion for summary judgment. Mr.

Wasko’s claims in this matter arose from an action that was filed against his neighbor Mr.


       *
        This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. This court generally disfavors the citation of orders ;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 36.3.
Gonzales in the state courts of New Mexico seeking damages for assault and battery.

After the state court granted Mr. Wasko an injunction against Mr. Gonzales, the court

ordered Mr. Gonzales’s attorney to prepare the judgment. Mr. Wasko claims that the

judgment was prepared ambiguously, with the result being that it could be interpreted as a

denial of relief. Due to these events, Mr. Wasko filed this 42 U.S.C. § 1983 claim against

Mr. Gonzales alleging due process and equal protection violations. His complaint also

raised claims arising under the New Mexico Constitution. The District Court granted

summary judgment in favor of Mr. Gonzales on the § 1983 claim because Mr. Wasko had

not demonstrated the defendant acted under color of state law. See Barnard v. Young,

720 F.2d 1188, 1188–1189 (10th Cir. 1983) (stating that relief under section 1983

requires that the defendant is a state actor and has acted under color of state law). Mr.

Wasko now appeals.

       After considering the record in this matter, we agree with the District Court that

there is simply no evidence that Mr. Gonzales was acting under color of state law in the

issues raised in this appeal. Moreover, Mr. Wasko’s pro se brief rests its allegations

exclusively on Mr. Gonzales’ attorney’s actions and the actions of the state court rather

than any actions of Mr. Gonzales himself. Therefore, for substantially the reasons given

by the District Court, we agree that Mr. Gonzales was not acting under color of state law.

Summary judgment was appropriate.

       The District Court also declined to exercise supplemental jurisdiction over Mr.

Wasko’s remaining state claims under 28 U.S.C. § 1367(c)(3). We review the decision of

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the district judge declining supplemental jurisdiction for an abuse of discretion. See

Robey v. Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208, 1213 (10th Cir. 2006). We

find no abuse of discretion in the District Court’s determination to decline supplemental

jurisdiction in this case. Thus, the order of the District Court is affirmed.

                                                   ENTERED FOR THE COURT,



                                                   Deanell Reece Tacha
                                                   Chief Circuit Judge




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