                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                      November 22, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
ROY L. JACKSON,

      Plaintiff - Appellant,

v.                                                         No. 17-5041
                                               (D.C. No. 4:16-CV-00217-CVE-PJC)
RICHARD COONS; DRYER &                                     (N.D. Okla.)
ASSOCIATES P.C.; DAVID M. DRYER,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

      The district court dismissed claims Roy L. Jackson made under 42 U.S.C.

§ 1985(3) and declined to exercise supplemental jurisdiction over his state-law

claims. It later denied a post-judgment motion to alter or amend the judgment.

Representing himself, Mr. Jackson appeals. Given the plain designation in the notice

of appeal of only the order denying the post-judgment motion, our jurisdiction

extends only so far as to review that decision. We affirm.


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                   BACKGROUND

      When Richard and Barbara Coons bought real property from Patricia Howie,

they agreed to pay her mortgage loan. They made the payments online. Ms. Howie

later tried to cancel the transaction and to bar the Coonses’ online access to the

mortgage account. The Coonses, represented by David M. Dryer of

Dryer & Associates, P.C. (the Dryer Firm), prevailed in state court, which ordered

Ms. Howie not to interfere with their access to the account. But shortly thereafter the

Coonses again lost online access to the account, and disputes over their access

continued for months. Those later events involved Mr. Jackson, allegedly acting as

Ms. Howie’s attorney-in-fact. Ultimately the state court found Ms. Howie in

contempt of court based on her and Mr. Jackson’s actions.

      As relevant to this action, § 1985(3) prohibits conspiracies “for the purpose of

depriving, either directly or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities under the laws.” In an

original complaint and then a first amended complaint, Mr. Jackson claimed that by

impairing his privilege to manage the mortgage account, Mr. Coons, Mr. Dryer, and

the Dryer Firm deprived him of his First Amendment rights to free expression and

free association, thereby violating § 1985(3). He also made claims under state law.

The district court dismissed the § 1985(3) claims because Mr. Jackson did not allege

any state action or involvement in the alleged conspiracy, a required element of a

§ 1985(3) claim alleging deprivation of First Amendment rights. See United Bhd. of

Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 830, 832

                                            2
(1983); Tilton v. Richardson, 6 F.3d 683, 686-87 (10th Cir. 1993). “Plaintiff alleges

that defendants conspired to interfere with his access to Patricia Howie’s mortgage

account, but this is a purely private matter and there is no possible state involvement

or interest in the alleged conspiracy.” R. at 31-32. The district court declined to

exercise supplemental jurisdiction over the state-law claims.

      Mr. Jackson moved to set aside the judgment, asserting that he “believed he

would have an opportunity through discovery” to make the required allegation of

state action and that he “has alleged with particularity ‘State action’ in His 2nd

amended complaint presented simultaneously with this motion.” R. at 35. Treating

the motion as one under Fed. R. Civ. P. 59(e), the district court denied relief.

“Plaintiff’s filings in this case show[] that he is reasonably familiar with the legal

system, and his pro se status does not excuse his failure to allege an essential element

of his § 1985 claims.” R. at 68-69. The district court further concluded that the

second amended complaint also failed to state a claim under § 1985(3).

                                      ANALYSIS

I.    Order(s) Under Review

      We first must determine what order or orders we can review. The notice of

appeal states that Mr. Jackson appeals “from the Order filed April 7, 2017,” R. at 71,

which was the order denying the Rule 59(e) motion. The appellees therefore argue

that under Fed. R. App. P. 3(c)(1)(B), this court may review only the Rule 59(e)

order, not the original order dismissing the § 1985(3) claims and declining to exercise

jurisdiction over the state-law claims.

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       Rule 3(c)(1)(B) requires that a notice of appeal “designate the judgment, order,

or part thereof being appealed.” “Rule 3’s dictates are jurisdictional in nature, and

their satisfaction is a prerequisite to appellate review. Although courts should

construe Rule 3 liberally when determining whether it has been complied with,

noncompliance is fatal to an appeal.” Smith v. Barry, 502 U.S. 244, 248 (1992)

(citation omitted). And even though Mr. Jackson represents himself, he still must

“follow the same rules of procedure that govern other litigants.” Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal quotation

marks omitted).

       Because the notice of appeal named only the April 7, 2017, order, it did not

preserve an appeal of the earlier merits order. See Scrivner v. Sonat Expl. Co.,

242 F.3d 1288, 1290 n.1 (10th Cir. 2001) (holding that notice of appeal that “clearly

states that it is appealing the attorney fee order . . . is insufficient to appeal the

merits”); cf. Brown v. Eppler, 725 F.3d 1221, 1228 n.4 (10th Cir. 2013) (determining

that both a final judgment and an order denying a Rule 59 motion were properly

designated when the notice of appeal referred to both orders). Of course, “our

jurisdiction will not be defeated if other papers filed within the time period for filing

the notice of appeal provide the functional equivalent of what Rule 3 requires.”

Denver & Rio Grande W. R.R. Co. v. Union Pac. R.R. Co., 119 F.3d 847, 849

(10th Cir. 1997) (internal quotation marks omitted). No other document filed in the

appeal period, however, indicated an intent to appeal the earlier dismissal order. We



                                              4
therefore may review only the April 7, 2017, decision denying Mr. Jackson’s post-

judgment motion.

II.    Denial of Post-Judgment Motion

       We review the denial of a Rule 59(e) motion for abuse of discretion. Etherton

v. Owners Ins. Co., 829 F.3d 1209, 1228 (10th Cir. 2016). “To reverse, we must

have a definite and firm conviction that the lower court made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.” Id.

(internal quotation marks omitted). “The abuse of discretion standard includes

review to determine that the discretion was not guided by erroneous legal

conclusions.” Id. (internal quotation marks omitted).

       The district court’s principal reason for denying the Rule 59 motion was that

Mr. Jackson had been on notice that his § 1985(3) claim required the “state action”

element, yet his first amended complaint had failed to allege facts to support state

action and he had failed to argue state action in the briefing. The district court did

not abuse its discretion in denying post-judgment relief on the ground that

Mr. Jackson should have made his assertions of state action earlier. A post-judgment

motion should not advance “supporting facts which were available at the time of the

original motion,” and “a motion for reconsideration . . . is not appropriate to . . .

advance arguments that could have been raised in prior briefing.” Servants of the

Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

       The district court further concluded that the proposed second amended

complaint failed to state a claim under § 1985(3). We agree that the second amended

                                            5
complaint does not state a § 1985(3) claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (“[A] complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” (internal quotation marks

omitted)). Mr. Dryer’s and the Dryer Firm’s representation of Mr. Coons in the

state-court lawsuit was purely private activity that fails to support a § 1985(3) claim.

See Redwood v. Dobson, 476 F.3d 462, 467 (7th Cir. 2007). Contrary to

Mr. Jackson’s argument, these defendants’ membership in the state bar and

organization under state law do not plausibly establish the state action element.

       Finally, Mr. Jackson argues in his reply brief that his proposed second

amended complaint also presented a claim under 42 U.S.C. § 1983. This argument is

waived for failure to present it in the opening brief. See Reedy v. Werholtz, 660 F.3d

1270, 1274 (10th Cir. 2011). But in any event, Mr. Jackson cannot proceed against

these defendants under § 1983 because an attorney’s representation of a client in a

lawsuit does not constitute action under color of state law as required by § 1983.

See Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005); Barnard v. Young,

720 F.2d 1188, 1189 (10th Cir. 1983).

                                    CONCLUSION

       The district court’s denial of the post-judgment motion is affirmed.


                                             Entered for the Court


                                             Monroe G. McKay
                                             Circuit Judge


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