                                                           FILED
                                                United States Court of Appeals
                                                        Tenth Circuit

                                                       July 13, 2010
                UNITED STATES COURT OF APPEALS
                                             Elisabeth A. Shumaker
                                                       Clerk of Court
                       FOR THE TENTH CIRCUIT


PAULA NELSON,

           Plaintiff-Appellant,

v.                                              No. 10-1003
                                      (D.C. No. 1:09-CV-01723-ZLW)
JEFFREY SKEHAN; CONNIE                           (D. Colo.)
TROUT; DAVID G. SKEHAN; JOHN
DOE # 1; BOULDER COUNTY
DRUG TASK FORCE; LAFAYETTE
POLICE DEPARTMENT; Lafayette
Police Chief PAUL SCHULTZ;
Detective NATHAN VASQUEZ;
Lafayette Police Officer JAMES
JOHNSON; Lafayette Police Sergeant
MASCHKA; Lafayette Police
Detective GARY THATCHER;
LAFAYETTE POLICE OFFICERS
JOHN DOES 3-8; Lafayette Police
Officer KEITH CHAGNON;
LAFAYETTE MUNICIPAL COURT;
ROGER BUCHHOLZ, Lafayette
Municipal Judge; RALPH
JOSEPHSON, Prosecutor for the City
of Lafayette; THE CITY OF
LAFAYETTE; GARY KLAPHAKE,
Administrator City of Lafayette;
CHRIS CAMERON, Mayor of the City
of Lafayette; DAVID WILLIAMSON,
Attorney for the City of Lafayette;
DAVID STRUNGIS, Mayor Pro Tem
City of Lafayette; KERRY
BENSMAN, Council Member - City of
Lafayette; ALEX SCHATZ, Council
Member - City of Lafayette; FRANK
PHILLIPS, Council Member - City of
Lafayette; CAROLYN CUTLER,
    Council Member - City of Lafayette;
    JAY RUGGERI, Council Member -
    City of Lafayette,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.


         Paula Nelson appeals pro se from a district court order that dismissed her

civil-rights complaint for asserting claims that were frivolous or that failed to

state a claim. We have jurisdiction under 28 U.S.C. § 1291, and we dismiss this

appeal for substantially the same reasons identified by the district court.

                                    B ACKGROUND

         Nelson’s second amended complaint asserts eight claims for relief that stem

from an alleged theft of her personal property and an automobile accident she had

with a bicycle. Specifically, she alleges that (1) Jeffrey Skehan and Connie Trout

stole over $60,000 of her property; (2) David Skehan was an accessory to the


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
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.

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theft; (3) various City of Lafayette police officers treated the theft as a civil

domestic dispute rather than a criminal matter; (4) one of the officers was unfit

for duty and was not properly supervised; (5) the City of Lafayette Police

Department refused Nelson’s subsequent requests to investigate the theft and

failed to properly investigate her automobile accident; (6) the police officers

sided with Jeffrey Skehan, possibly because he was a police informant; (7) the

municipal judge and prosecutor in her motor-vehicle case denied her a fair trial

and interfered with her appellate rights; (8) various City of Lafayette officials,

including the mayor and city council members, failed to supervise the judge.

Nelson sought relief under 42 U.S.C. §§ 1983 and 1985(3), as well as various

state-law theories.

      The district court granted her in forma pauperis status (IFP), reviewed the

second amended complaint under 28 U.S.C. § 1915(e)(2)(B), and sua sponte

dismissed it, 1 prompting Nelson to seek reconsideration. When that failed,

Nelson appealed and moved the district court for leave to proceed on appeal in

forma pauperis. The district court denied the motion, concluding that an appeal

would not be in good faith.

      Nelson now renews her IFP motion in this court, and in her opening brief

reiterates the allegations of her complaint.

1
       Section 1915(e)(2)(B) requires a court to dismiss a case if it is frivolous or
malicious, fails to state a claim on which relief may be granted, or seeks monetary
relief against an immune defendant. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

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                                    D ISCUSSION

                              I. Standards of Review

      We review de novo a district court’s § 1915(e)(2)(B) dismissal for failure

to state a claim. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). But if

a claim is dismissed as frivolous, we review for an abuse of discretion, unless

“the district court’s decision turns on an issue of law,” in which case our review

is de novo. Conkle v. Potter, 352 F.3d 1333, 1335 n.4 (10th Cir. 2003) (quotation

omitted).

      In determining whether the dismissal of Nelson’s complaint was proper,

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

plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (quotation

omitted). In other words, the “factual allegations in a complaint must be enough

to raise a right to relief above the speculative level.” Id. (quotation omitted).

And if a claim “lacks an arguable basis either in law or in fact,” it is frivolous.

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Finally, while we construe

Nelson’s complaint liberally, it is not the proper function of a court to “assume

the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991).

      After reviewing the record, Nelson’s appellate brief, and the applicable

law, we agree with the district court’s decision to dismiss the complaint for

substantially the same reasons given by the district court. Specifically, as the

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district court noted, there are no plausible allegations identifying the theft

defendants as state actors, a necessary element of a § 1983 claim. See Anderson

v. Suiters, 499 F.3d 1228, 1232-33 (10th Cir. 2007). As for the claims against the

police officers based on their investigations and conclusions regarding the theft

and motor-vehicle accident, Nelson has not alleged a constitutional violation. In

short, Nelson has no constitutional right to have the Skehans and Trout

prosecuted. See Doyle v. Okla. Bar Ass’n, 998 F.2d 1559, 1566-67 (10th Cir.

1993). And to the extent Nelson’s complaint targets municipal-entity defendants

like the Boulder County Drug Task Force and the City of Lafayette Police

Department, she has not alleged that her injuries were the result of a municipal

“government’s policy or custom,” so as to implicate municipal liability under

§ 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

      Further, based on Nelson’s allegations, the municipal judge and prosecutor

in her motor-vehicle case were absolutely immune from suit. See Stein v.

Disciplinary Bd. of Sup. Ct. of N.M., 520 F.3d 1183, 1190 (10th Cir. 2008).

Regarding her claims that various City of Lafayette government officials failed to

supervise the municipal judge, “there is no concept of strict supervisor liability

under § 1983.” Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (quotations

omitted). Rather, a supervisor must have personally participated in the

constitutional violation, or perhaps “had actual knowledge of the violation and




                                          -5-
acquiesced in its continuance.” Id. at 994-95. 2 Nelson merely alleges that the

defendant city officials ignored her email, warning that the judge was

administering the court in violation of federal, state, and local laws. But such

“naked assertions devoid of further factual enhancement” are insufficient to state

a claim for relief. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotation

omitted). Nelson’s claim that certain City of Lafayette police officers failed in

their supervisory duties fails for the same reasons—there is no supervisory

liability under § 1983 and there are no plausible allegations of acquiescence in a

constitutional violation.

      Finally, Nelson’s § 1985(3) conspiracy claim fails because there are no

allegations that any state-actor defendant harbored “some racial, or perhaps

otherwise class-based, invidiously discriminatory animus” toward her. Tilton v.

Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (quotation omitted).

      With no viable federal claims, the district court acted within its discretion

by declining to exercise supplemental jurisdiction over Nelson’s state-law claims.

See Anglemyer v. Hamilton County Hosp., 58 F.3d 533, 541 (10th Cir. 1995)

(stating that jurisdiction over supplemental state-law claims should be retained in

the absence of a federal claim “in those cases in which, given the nature and



2
       Whether the “acquiescence” component of supervisory liability has
survived Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), is an open question in
this Circuit. See Lewis v. Tripp, 604 F.3d 1221, 1227 n.3 (10th Cir. 2010).

                                         -6-
extent of pretrial proceedings, judicial economy, convenience, and fairness would

be served by retaining jurisdiction” (quotation omitted)).

                                       C ONCLUSION

      For substantially the same reasons given by the district court in its

November 24, 2009, dismissal order, we DISMISS this appeal pursuant to

28 U.S.C. § 1915(e)(2)(B), and we DENY the motion to proceed IFP under

§ 1915(a)(1). Nelson is responsible for the immediate payment of the unpaid

balance of the appellate filing fee.

                                                     Entered for the Court


                                                     Wade Brorby
                                                     Senior Circuit Judge




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