                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           NOV 5 1998
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


BOSS MAN EINSTEIN, also known
as Accountability Burns, on complaint
as Boss Einstein-Burns!,

          Plaintiff-Appellant,
                                                         No. 98-5042
                                                  (N. District of Oklahoma)
v.
                                                   (D.C. No. 93-CV-632-B)
DAN MEDECK, Downtown Y
Building Owner,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.


      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); 10 th Cir. R. 34.1.9. 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       This order and judgment is not binding precedent, except under the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. 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.
      This case is before the court on Boss Man Einstein’s pro se motion to

proceed on appeal in forma pauperis. The district court dismissed Einstein’s 42

U.S.C. § 1983 complaint on the ground it failed to set forth a rational argument

on the law or the facts to support [Einstein’s] claims.” Dist Ct. Order at 1; See 28

U.S.C. § 1915 (providing courts “shall dismiss the case at any time” if the court

determines the case is frivolous or malicious). Furthermore, in light of its

conclusion Einstein’s claims were frivolous, the district court denied Einstein

leave to proceed on appeal in forma pauperis.

      This court has reviewed Einstein’s appellate pleadings and the entire record

on appeal. After that thorough review, this court is convinced the district court

did not err in dismissing this case pursuant to § 1915(e). In particular, Einstein’s

complaint and appellate filings, although difficult to decipher, appear to allege

that his landlord violated his civil rights when the landlord evicted Einstein for

nonpayment of rent. However, the complaint contains no allegation the landlord

was a state actor acting under color of state law. See West v. Atkins, 487 U.S.

319, 327 (1988) (“To state a claim under § 1983, a plaintiff must allege a

violation of a right secured by the Constitution and laws of the United States, and

must show the alleged deprivation was committed by a person acting under color

of state law.”). Accordingly, Einstein’s motion for leave to proceed on appeal in




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forma pauperis is DENIED and the appeal is hereby DISMISSED. See 28

U.S.C. § 1915(e)(2)(B)(i).

                                  ENTERED FOR THE COURT:



                                  Michael R. Murphy
                                  Circuit Judge




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