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

                                                                 February 17, 2011
                                 TENTH CIRCUIT
                            __________________________          Elisabeth A. Shumaker
                                                                    Clerk of Court
 MARCELLUS H. BAKER, SR.,

          Plaintiff-Appellant,
                                                        No. 10-3208
 v.                                        (D.Ct. No. 6:10-CV-01162-JAR-DJW)
                                                         (D. Kan.)
 PUBLISHERS CLEARING HOUSE,

          Defendant-Appellee.
                       ______________________________

                             ORDER AND JUDGMENT *


Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument.



      Appellant Marcellus H. Baker, Sr., a pro se litigant, appeals the district

court’s dismissal of his complaint, filed pursuant to 42 U.S.C. § 1983 and Kansas

      *
         This order and judgment is not binding precedent except under the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.
law, against Appellee Publishers Clearing House and all its subsidiaries for

failure to state a claim on which relief may be granted. Exercising our

jurisdiction under 28 U.S.C. § 1291, we affirm.



                             I. Procedural Background

      On May 21, 2010, Mr. Baker filed his § 1983 complaint alleging Publishers

Clearing House and all its subsidiaries violated his civil rights under both federal

and state law when it sent him allegedly racially discriminatory e-mails associated

with a sweepstakes giveaway of prizes. The district court granted Mr. Baker’s

request to proceed without prepayment of filing fees (in forma pauperis) pursuant

to 28 U.S.C. § 1915(a)(1) and, later, on June 7, 2010, issued a notice and order to

show cause to Mr. Baker, directing him to explain why his action should not be

dismissed for failure to state a claim on which relief may be granted. Mr. Baker

responded by attaching the e-mails sent to him by Publishers Clearing House

which he alleged “[spoke] for themselves on this civil right’s [sic] racial issue

before the court.”



      Relying on 28 U.S.C. § 1915(e)(2)(B)(ii), 42 U.S.C. § 1983, and the Kansas

Act Against Discrimination, K.S.A. § 44-1001, the district court sua sponte

dismissed Mr. Baker’s complaint on grounds it failed to state a claim on which

relief may be granted. With respect to the federal statutes, the district court

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determined Publishers Clearing House and its subsidiaries were not state actors

within the meaning of 42 U.S.C. § 1983. It also explained the Kansas Act applied

to discrimination in employment, free and public accommodations, and housing,

and that Mr. Baker failed to allege an employment relationship with the defendant

or that the Act would otherwise apply to the e-mails on which he brought his

claim. Because the defendant was not an actor subject to liability under federal

law and Mr. Baker failed to allege a relationship with Publishers Clearing House

or its subsidiaries giving rise to a claim under Kansas law, the district court

determined he failed to state a claim on which relief may be granted and

dismissed his complaint.



                                    II. Discussion

      Mr. Baker now appeals, making the same or similar arguments raised in his

pleading dismissed by the district court. However, he fails to address the grounds

on which the district court dismissed his pleading, other than to claim it erred in

its ruling, is “out of touch” with his case, and is “just over stepping [its]

authority.” Nowhere does he provide argument as to why his instant pleading

states a cause of action on which relief may be granted under 42 U.S.C. § 1983 or

Kansas law.




                                           -3-
      “We apply the same standard of review for dismissals under

§ 1915(e)(2)(B)(ii) that we employ for Federal Rule of Civil Procedure 12(b)(6)

motions to dismiss for failure to state a claim,” which is a de novo review. Kay v.

Bemis, 500 F.3d 1214, 1217 (10 th Cir. 2007). In reviewing § 1915(e)(2)(B)(ii)

dismissals “we look for plausibility in the complaint,” and “[i]n particular, we

look to the specific allegations in the complaint to determine whether they

plausibly support a legal claim for relief.” Id. at 1218 (quotation marks and

citation omitted). “Rather than adjudging whether a claim is improbable, factual

allegations in a complaint must be enough to raise a right to relief above the

speculative level.” Id. (quotation marks and citation omitted). Under this

standard, “a plaintiff must nudge his claims across the line from conceivable to

plausible in order to survive a motion to dismiss.” Smith v. United States, 561

F.3d 1090, 1098 (10 th Cir. 2009) (quotation marks and citation omitted), cert.

denied, 130 S. Ct. 1142 (2010).



      Applying this standard of review and applicable legal principles, we must

affirm the district court’s dismissal of Mr. Baker’s complaint. For substantially

the same reasons articulated by the district court, we conclude as a matter of law

that Mr. Baker’s allegations do not support a legal claim for relief. In sum, Mr.

Baker fails to make plausible allegations either identifying the Appellee and its

subsidiaries as state actors, which is a necessary element of a § 1983 claim, or

                                         -4-
alleging an employment or other relationship with the Appellee, as required by

Kansas law.



                                 III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s dismissal of

Mr. Baker’s complaint.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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