                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       June 11, 2007
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


 PETER E. WA SK O ,

              Plaintiff-Appellant,                     No. 06-2314
       v.                                           (D. New M exico)
 HERBERT M. SILVERBERG                      (D.C. No. CIV-05-1073 JB/RHS)

              Defendant-Appellee.




                                     OR DER


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.


      Peter W asko filed this action pursuant to 42 U.S.C. § 1983, alleging that

the defendant Herbert M . Silverberg, an attorney who had represented M r. W asko

in a wrongful termination proceeding before the New M exico Human Rights

Commission, committed malpractice. In a thorough and well-reasoned

memorandum opinion and order, the district court dismissed M r. W asko’s

complaint on two grounds. First, the court concluded that the defendant M r.

Silverberg was not a state actor and thus could not be sued in a § 1983 action.

Second, the court held that M r. W asko’s complaint was barred by the doctrine of

res judicata because M r. W asko had raised the same claim in a prior federal

lawsuit. See W asko v. Silverberg, 103 Fed. Appx. 332, 334 (10th Cir. 2004).
      M r. W asko now seeks to appeal the district court’s dismissal of his action.

He has moved to proceed in forma pauperis.

      For substantially the same reasons set forth in the district court’s order, w e

conclude that M r. W asko has failed to present a reasoned non-frivolous challenge

to the district court’s ruling. M r. Silverberg was clearly not a state actor. See

American M frs. M ut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) (liability

under § 1983 requires showing that deprivation of federal right was committed

under color of state law). M oreover, this action is barred by the doctrine of res

judicata. Nwosun v. Gen. M ills Rests., Inc., 124 F.3d 1255, 1257 (10th Cir.

1997) (explaining that res judicata applies when: (1) the prior action has been

finally adjudicated on the merits; (2) the parties are identical or in privity; (3) the

suit is based on the same cause of action; and (4) the plaintiff had a full and fair

opportunity to litigate the claim in the prior action).

      Accordingly, we DENY M r. W asko’s motion to proceed in forma pauperis

and DISM ISS this appeal.

                                 Entered for the Court,



                                  Robert H. Henry
                                  United States Circuit Judge




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