                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES COURT OF APPEALS                July 31, 2013
                                                              Elisabeth A. Shumaker
                                 TENTH CIRCUIT                    Clerk of Court



 WADE LAY,

               Plaintiff - Appellant,                   No. 13-6056
          v.                                         (W.D. Oklahoma)
 SUSAN OTTO, Federal Public                     (D.C. No. 5:12-CV-00888-D)
 Defender; RANDY BAUMAN,
 Supervisor FPD; PATTI GHEZZI,
 Lead Counsel FPD; SARAH
 JERNIGAN, Co-Counsel FPD; ANNA
 WRIGHT, Investigator FPD;
 SUSANNA GATTONI, Attorney,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      Plaintiff Wade Lay, proceeding pro se, appeals the dismissal with prejudice

of his civil-rights lawsuit under 42 U.S.C. § 1983 because it was frivolous. See

28 U.S.C. §1915(e)(2)(B)(i). Because the district court lacked subject-matter


      *
       After examining the brief 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)(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not binding precedent except under the doctrines of law of the case, res judicata,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.
jurisdiction over this suit, we vacate its dismissal on the merits and remand the

case with directions to dismiss the action without prejudice.

I.    BACKGROUND

      Lay was convicted in Oklahoma state court of murder and attempted

robbery with a firearm and sentenced to death. His conviction and sentence were

affirmed on appeal in February 2008. See Lay v. State, 179 P.3d 615 (Okla. Crim.

App. 2008). That October he filed an application for relief under 28 U.S.C.

§ 2254 in the United States District Court for the Northern District of Oklahoma.

The court appointed three lawyers to represent him: Patti Ghezzi and Sarah

Jernigan of the federal public defender’s office, and Susanna Gattoni of an

Oklahoma law firm. Upset by his attorneys’ request for an evaluation of his

competency, Lay complained to the district court about their performance, but to

no avail.

      While the § 2254 action was still pending, Lay filed this lawsuit under

42 U.S.C. § 1983 in August 2012 in the United States District Court for the

Western District of Oklahoma against Ghezzi, Jernigan, and Gattoni; two

supervisors at the federal public defender’s office, Randy Bauman and Susan

Otto; and an investigator at the office, Anna Wright (Defendants). His amended

complaint alleged, among other things, that Defendants (1) “distort[ed] . . . the

facts of the case” and “mischaracterize[d] [Lay] to other professional associates

(psychologist, attorneys, etc.),” R. at 32; (2) used “lies, deception, manipulation

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and sexual seduction . . . to deceive and distract” Lay, id.; (3) committed “sexual

misconduct with other inmates,” id.; (4) failed “to abide by numerous ABA

guidelines,” id.; (5) made “fraudulent filings” in the habeas proceeding, id.; (6)

ignored Lay’s complaints to them about their performance; (7) “conspir[ed] with

ill-intent to discredit [Lay] with false claims of mental illness,” id. at 33; and (8)

withheld the results of his mental evaluation.

      The magistrate judge issued a report and recommendation (R&R)

recommending dismissal of Lay’s lawsuit as frivolous. The R&R explained (1)

that Lay could not bring a claim under 42 U.S.C. § 1983 against Defendants

because they were not state actors; (2) that even if his lawsuit was liberally

construed to bring claims against federal actors under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), Defendants

were not federal actors; and (3) that Lay had failed to identify unconstitutional

conduct. The district court adopted the R&R and dismissed the lawsuit with

prejudice.

      On appeal Lay, besides addressing the merits of his claims, also asserts that

the district court withheld documents to protect Defendants, altered the docket

sheet to make it appear that Lay filed documents without leave of court, provided

a “distorted” summary of the events in his habeas case, Aplt. Br. at 10, and

collaborated with Defendants. Additionally, he complains that Defendants chose




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not to pursue various arguments that he made in a pro se brief and failed to

“exercise due diligence.” Id. at 18.

II.   DISCUSSION

      We conclude that the district court lacked jurisdiction over Lay’s lawsuit.

The existence of subject-matter jurisdiction is a threshold inquiry that must

precede any merits-based determination. See Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94 (1998). If the district court lacked jurisdiction, it had no

authority to rule on the merits of Lay’s claims by dismissing his § 1983 claims

with prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th

Cir. 2006) (“[D]ismissals for lack of jurisdiction should be without prejudice

because the court, having determined that it lacks jurisdiction over the action, is

incapable of reaching a disposition on the merits of the underlying claims.”). If

the district court lacked subject-matter jurisdiction, our jurisdiction on appeal is

limited to “correcting the error of the lower court in entertaining the suit.” Steel

Co., 523 U.S. at 95 (internal quotation marks omitted).

      Although Lay claimed to bring a lawsuit under § 1983, he has not alleged

facts showing that Defendants acted under color of state law. This element is “a

jurisdictional requisite for a § 1983 action.” Polk Cnty. v. Dodson, 454 U.S. 312,

315 (1981). Defendants worked for the federal public defender (or were

appointed by the district court to work with the public defender), and § 1983 is

“applicable only to actions by state and local entities, not by the federal

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government.” Dry v. United States, 235 F.3d 1249, 1255 (10th Cir. 2000).

Moreover, even state public defenders do “not act under color of state law when

performing a lawyer’s traditional functions as counsel to a defendant in a criminal

proceeding.” Polk Cnty., 454 U.S. at 325. Neither Lay’s numerous objections to

the R&R, nor his arguments on appeal, say anything to cure this jurisdictional

defect (for example, by alleging that Defendants “engaged in a conspiracy with

state actors,” Hunt v. Bennett, 17 F.3d 1263, 1268 (10th Cir. 1994)). Therefore,

Lay’s § 1983 claim did not support the district court’s exercise of federal

jurisdiction over the lawsuit. 1

       Accordingly, we must remand the case with directions to the district court

to dismiss Lay’s lawsuit “without prejudice” for lack of subject-matter

jurisdiction. We do not address any nonjurisdictional issues.

III.   CONCLUSION




       1
        Lay filed a proposed second amended complaint bringing his allegations
under Bivens. Under Bivens, Lay must plead and prove that Defendants were
federal agents acting under color of federal law. See Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971). The
magistrate judge struck the pleading because Lay never sought leave to file it and,
in the alternative, because the amendments would be futile since “a public
defender does not act under color of federal law in performing . . . as a lawyer to
an indigent defendant” in a federal proceeding. Cox v. Hellerstein, 685 F.2d
1098, 1099 (9th Cir. 1982); see Haley v. Walker, 751 F.2d 284, 285 (8th Cir.
1984) (“[A]n attorney appointed by a federal court is not a federal officer for
purposes of a Bivens-type action.”).

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      We VACATE the judgment of the district court and REMAND with

directions to dismiss this lawsuit without prejudice for lack of subject-matter

jurisdiction.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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