                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             March 27, 2006
                                  TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                              Clerk of Court

 PAUL NAGY,

               Plaintiff-Appellant,                         No. 05-8108
          v.                                               (D. Wyoming)
 GERRY L. SPENCE,                                    (D.C. No. 05-CV-219-D)

               Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and O’BRIEN, 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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Paul Nagy, a federal prisoner proceeding pro se, filed a 42 U.S.C. § 1983

civil rights action for damages against Gerry L. Spence. Mr. Spence is an

attorney in private practice in Jackson, Wyoming. Mr. Nagy seeks damages from


      *
        This order and judgment is not binding precedent, except under the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.
Mr. Spence for refusing to represent him in proceedings against the Federal

Medical Center in Butner, North Carolina. The district court dismissed sua

sponte Mr. Nagy’s complaint for failure to state a claim under § 1983, concluding

that Mr. Spence is not a state actor. On appeal, Mr. Nagy challenges the district

court’s dismissal of his complaint, and he also seeks to proceed in forma pauperis

(“IFP”).

      We review de novo a district court’s sua sponte dismissal of a complaint

for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Perkins v. Kan.

Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999). “Dismissal of a pro se

complaint for failure to state a claim [under § 1915(e)(2)(B)(ii)] is proper only

where it is obvious that the plaintiff cannot prevail on the facts he has alleged and

it would be futile to give him an opportunity to amend.” Id. Because Mr. Nagy is

proceeding pro se, we must construe his complaint liberally, holding him to a less

stringent standard than formal pleadings that lawyers draft. Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991).

      We agree with the district court that Mr. Nagy’s complaint should be

dismissed for failure to state a claim because he has not alleged (nor could he)

that Mr. Spence is a state actor. “A prerequisite to any relief under section 1983

is that the defendant has acted under color of state law.” Barnard v. Young, 720

F.2d 1188, 1188-89 (10th Cir. 1983). Mr. Nagy has not alleged that Mr. Spencer


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“is a state official, . . . has acted together with or has obtained significant aid

from state officials, or . . . his conduct is otherwise chargeable to the State.”

Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (describing ways in which

a person “may fairly be said to be a state actor”). Contrary to Mr. Nagy’s

contentions, the state-actor requirement for a § 1983 action is not set aside even if

there is “ongoing [i]mminent [d]anger” to the plaintiff. Aplt’s Br. at 3.

      Accordingly, we AFFIRM the district court’s dismissal of Mr. Nagy’s

complaint for failure to state a claim, and the district court’s dismissal counts as a

strike for purposes of 28 U.S.C. § 1915(g). See Jennings v. Natrona County Det.

Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999). We also DENY Mr.

Nagy’s motion to proceed IFP, and order immediate payment of the unpaid

balance of his appellate filing fee.



                                         Entered for the Court,



                                         Robert H. Henry
                                         Circuit Judge




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