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

                             FOR THE TENTH CIRCUIT                        October 1, 2019
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 ANTHONY J. LUCERO,

       Plaintiff - Appellant,

 v.                                                         No. 19-1016
                                               (D.C. No. 1:17-CV-03142-WJM-KMT)
 PAUL GORDON; PAUL GORDON LLC,                               (D. Colo.)

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, O’BRIEN, and MATHESON, Circuit Judges.
                  _________________________________

      Anthony J. Lucero appeals the dismissal of his pro se complaint alleging

Fourteenth Amendment violations by his former counsel, Paul Gordon and Paul

Gordon, LLC (collectively, Mr. Gordon). Exercising jurisdiction under 28 U.S.C.

§ 1291, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                 I. BACKGROUND

      This is the latest litigation stemming from Mr. Lucero’s work-related injuries.

After he was injured on the job, Mr. Lucero hired the Koncilja law firm to represent

him on worker’s compensation and related state tort claims. Dissatisfied with his

legal representation, Mr. Lucero sued the Koncilja firm twice in state court, once

pro se and once through counsel—Mr. Gordon. When both suits were dismissed, he

filed a malpractice action against Mr. Gordon in state court. The state court granted

summary judgment to Mr. Gordon because Mr. Lucero repeatedly failed to designate

an expert witness to establish the relevant standard of care.

      Mr. Lucero then initiated two separate suits in federal court, one against the

Koncilja firm and the other against Mr. Gordon. The district court dismissed both

suits. We recently affirmed the dismissal of the suit against the Koncilja firm,

see Lucero v. Koncilja, No. 18-1404, 2019 WL 3564157, at *3 (10th Cir. Aug. 6,

2019), and we now take up the case against Mr. Gordon.

      Mr. Lucero raises two claims. First, he alleges Mr. Gordon violated his

Fourteenth Amendment rights by failing to file a “certificate of review, [failing to] do

any interrogatories, depositions, or investigations,” and “wast[ing] valuable time and

cho[osing] to accomplish nothing in my case.” R. at 15 (emphasis omitted). Second,

he claims Mr. Gordon engaged in fraud by repeatedly filing “an unprovable,

non-evidential, sham affidavit that is evidentially provable to be fraudulent, perjured

in all aspects, and grounds for disbarment and criminal prosecution.” Id. (emphasis



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omitted). Mr. Lucero also notes “42 U.S.C. § 1983[] creates a federal remedy for

violations of constitutional rights by what are called ‘state actors.’” Id.

      On September 17, 2018, a magistrate judge recommended that the suit be

dismissed under Federal Rule of Civil Procedure 12(b)(6) because the allegations

against Mr. Lucero’s private attorney failed to plead state action for purposes of the

Fourteenth Amendment and § 1983. Absent a viable federal claim, the magistrate

judge also recommended that the district court decline to exercise supplemental

jurisdiction over the state-law fraud claim.

      On October 9, 2018, Mr. Lucero objected to the magistrate judge’s report and

recommendation. He attempted to show state action by suggesting there was a

conspiracy between Mr. Gordon and a state court judge, who, he asserted, “legally

align[ed] herself with [Mr.] Gordon, ignoring the rules of law and equity.” Id. at 89.

He claimed the state judge permitted Mr. Gordon to file a sham affidavit, refused to

designate herself as his expert witness, and granted Mr. Gordon’s motion for

summary judgment. Mr. Lucero also asserted the district court could exercise

diversity jurisdiction over his state-law fraud claim, though he offered no sound basis

for doing so.

      The district court overruled the objections, adopted the report and

recommendation, and dismissed the suit. The court ruled that the amended complaint

failed to state a claim because it contained no allegations of state action for purposes

of the Fourteenth Amendment and § 1983. The court observed that Mr. Lucero did

not allege a conspiracy until his objections, and even if the objections were construed

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as a supplement to his amended complaint, he still failed to allege that Mr. Gordon

and the state judge agreed to deprive him of his constitutional rights. The court

further determined there was no basis for exercising either diversity or supplemental

jurisdiction over the state-law fraud claim, and thus dismissed that claim as well.

                                    II. DISCUSSION

                              A. Fourteenth Amendment

       We first consider the dismissal of Mr. Lucero’s Fourteenth Amendment claim.

Under our de novo review of the district court’s Rule 12(b)(6) dismissal, we accept

all well-pleaded factual allegations in the amended complaint as true and view them

in the light most favorable to Mr. Lucero. See Smith v. United States, 561 F.3d 1090,

1098 (10th Cir. 2009). To survive a motion to dismiss, a complaint must “contain[]

enough facts to state a claim to relief that is plausible on its face.” Id. (internal

quotation marks omitted). Although we liberally construe Mr. Lucero’s pro se

materials, we “will not supply additional factual allegations to round out [his]

complaint or construct a legal theory on [his] behalf.” Id. at 1096 (internal quotation

marks omitted).

       “To state a cause of action under 42 U.S.C. § 1983 for an alleged violation of

the Fourteenth Amendment . . . , the challenged conduct must constitute state action.”

Scott v. Hern, 216 F.3d 897, 906 (10th Cir. 2000) (citing Lugar v. Edmondson Oil

Co., 457 U.S. 922, 930-32 (1982)). “When a plaintiff in a § 1983 action attempts to

assert the necessary ‘state action’ by implicating state officials or judges in a

conspiracy with private defendants, mere conclusory allegations with no supporting

                                             4
factual averments are insufficient; the pleadings must specifically present facts

tending to show agreement and concerted action.” Id. at 907 (internal quotation

marks omitted). The complaint must plausibly allege “a significant nexus or

entanglement between the absolutely immune State official and the private party in

relation to the steps taken by each to fulfill the objects of their conspiracy.” Norton

v. Liddel, 620 F.2d 1375, 1380 (10th Cir. 1980).

      Mr. Lucero did not allege any such facts. In his amended complaint, he did

not mention the state judge; rather, he simply charged Mr. Gordon—a private

attorney—with violating his due process rights. In his objections to the magistrate

judge’s report and recommendation, Mr. Lucero suggested there was conspiracy

between the state judge and Mr. Gordon, but those allegations failed to plausibly

allege an agreement or concerted action between them. He merely averred that the

state judge permitted Mr. Gordon to file an affidavit that Mr. Lucero claimed was a

sham affidavit. He also faulted the state judge for not acting as his expert witness

and for ruling in Mr. Gordon’s favor. These averments fail to plausibly allege an

agreement, a nexus, or a shared conspiratorial objective to violate Mr. Lucero’s

Fourteenth Amendment rights. Because Mr. Lucero failed to plausibly allege state

action, the district court correctly dismissed the claim.

                  B. State-Law Claim & Supplemental Jurisdiction

      Having dismissed the Fourteenth Amendment claim, the district court declined

to exercise supplemental jurisdiction over the state-law fraud claim. We perceive no

abuse of discretion. See Nielander v. Bd. of Cty. Comm’rs, 582 F.3d 1155, 1172

                                            5
(10th Cir. 2009). Once “the district court has dismissed all claims over which it has

original jurisdiction,” 28 U.S.C. § 1367(c)(3), “the court may, and usually should,

decline to exercise jurisdiction over any remaining state claims,” Smith v. City of

Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998); see 13D

Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3567.3

(3d ed. Aug. 2019 Update) (“As a general matter, a court will decline supplemental

jurisdiction if the underlying [federal] claims are dismissed before trial.”). Absent a

viable federal claim, the court did not abuse its discretion in declining to exercise

supplemental jurisdiction over the state-law claim. To the extent Mr. Lucero

maintains the court alternatively could have exercised diversity jurisdiction, he still

cites no sound basis for doing so.

                                  III. CONCLUSION

      We affirm the district court’s judgment.

                                                       Entered for the Court


                                                       Scott M. Matheson, Jr.
                                                       Circuit Judge




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