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

                                                                      October 23, 2012
 DEMETRIUS TOMAZ ROGERS,                                            Elisabeth A. Shumaker
                                                                        Clerk of Court
                Plaintiff–Appellant,

           v.                                               No. 12-6198
                                                     (D.C. No. 5:12-CV-00373-R)
 RAYMOND E. DENECKE,                                      (W.D. Oklahoma)

                Defendant–Appellee.


                              ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered

submitted without oral argument.

       Plaintiff Demetrius Rogers, a pro se Oklahoma state prisoner, challenges the

dismissal of his 42 U.S.C. § 1983 prisoner complaint. In his complaint, Plaintiff alleged

that Defendant, the assistant public defender who represented him in his state criminal



       *
         This order and judgment is not binding precedent, except under the doctrines of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.
case, deprived him of his right to due process by advising him to accept a plea agreement

rather than proceed to trial because of his race. Plaintiff’s complaint also included a state

malpractice claim.

       The magistrate judge recommended that the district court dismiss Plaintiff’s §

1983 claim because, as set forth in Polk County. v. Dodson, 454 U.S. 312, 325 (1981),

Defendant, as a public defender, was not acting under color of state law when he

represented Plaintiff in the criminal proceeding. The magistrate judge further

recommended that the district court decline to exercise supplemental jurisdiction over the

state law malpractice claim. After reviewing Plaintiff’s objections, the district court

agreed. It adopted the magistrate judge’s report and recommendation and dismissed

Plaintiff’s complaint.

       Nothing in Plaintiff’s brief or the appellate record persuades us there was any error

in the magistrate judge’s analysis or the district court’s order. Therefore, for substantially

the same reasons given by the magistrate judge and the district court, we AFFIRM the

dismissal of Plaintiff’s complaint. Plaintiff’s motion to proceed in forma pauperis on

appeal is GRANTED. Plaintiff is reminded of his obligation to continue making partial

payments until his entire filing fee has been paid in full.

                                                    Entered for the Court



                                                    Monroe G. McKay
                                                    Circuit Judge


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