Donald E. Ewing v. Agency Rental Car

993 F.2d 1551, 1993 WL 147481

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 6, 1993
• Docket: 92-3428
• Status: Published

Opinion

993 F.2d 1551

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Donald E. EWING, Plaintiff-Appellant,
v.
AGENCY RENTAL CAR, Defendant-Appellee.

No. 92-3428.

United States Court of Appeals, Tenth Circuit.

May 6, 1993.

Before TACHA, BALDOCK and KELLY, Circuit Judges.*

ORDER AND JUDGMENT**

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-appellant Donald E. Ewing appeals the dismissal of his claim based on 42 U.S.C. § 1983. We grant Mr. Ewing leave to proceed in forma pauperis on appeal and affirm.

The district court dismissed Mr. Ewing's claim as one based on an indisputably meritless legal theory. See 28 U.S.C. § 1915(d); Neitzke v. Williams, 490 U.S. 319 (1989). Mr. Ewing failed to demonstrate how Defendant-appellee Agency Car Rental acted under color of state law. "It is axiomatic that, in order to maintain a civil rights action, the 'conduct allegedly causing the deprivation of a federal right [must] be fairly attributable to the state.' " Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159, 1163 (10th Cir.1986) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). Accordingly, we affirm the dismissal of the complaint.

AFFIRMED.

* 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 Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause therefore is ordered submitted without oral argument

** This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3