Appellate Case: 24-8075 Document: 15-1 Date Filed: 04/21/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS April 21, 2025 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court SEAN ROGERS,
Plaintiff - Appellant,
v. No. 24-8075 (D.C. No. 2:24-CV-00163-KHR) TERRY BROWN; BOOT HILL (D. Wyo.) NIGHT CLUB,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before FEDERICO, BALDOCK, and MURPHY, Circuit Judges. ** _________________________________
Sean Rogers, a state prisoner proceeding pro se, appeals the district
court’s dismissal of his complaint for frivolity and failure to state a claim
* This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. **After examining the briefs and 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). The case is therefore ordered submitted without oral argument. Appellate Case: 24-8075 Document: 15-1 Date Filed: 04/21/2025 Page: 2
on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(i), (ii).
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
On August 28, 2024, Rogers filed a complaint against the Boot Hill
Night Club and its owner, Terry Brown, in the United States District Court
for the District of Wyoming. The district court construed his complaint to
fall under 42 U.S.C. § 1983 because Rogers asserted the defendants violated
his constitutional rights. Rogers essentially claimed that the defendants
had caused him to be convicted of a crime because they illegally permitted
a minor to enter the Boot Hill Night Club. He thus claimed that he was
“robbed of 17 years of [his] life due to willful and wanton illegal
[deprivation] of life, liberty, and property without equal protection of the
law.” R. at 6.
On August 30, 2024, the district court screened the complaint under
28 U.S.C. § 1915A, and because Rogers sought to proceed in forma pauperis,
the district court dismissed the complaint for frivolity and failure to state a
claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2) (“[T]he
court shall dismiss the case at any time if the court determines that . . . the
action . . . is frivolous or malicious . . . [or] fails to state a claim on which
relief may be granted.”). It concluded that dismissal on such grounds was
appropriate because the defendants are private actors, not state actors, and
2 Appellate Case: 24-8075 Document: 15-1 Date Filed: 04/21/2025 Page: 3
thus cannot be held liable in a section 1983 action. See 42 U.S.C. § 1983
(requiring a defendant to be acting “under color of” state law). It further
concluded that amendment of the complaint would be futile because
Rogers’s “failures are foundational to his claims, rather than factual or
pleading insufficiencies.” R. at 15. Because it dismissed the case, the district
court also imposed a “strike” under 28 U.S.C. § 1915(g).
Rogers moved for reconsideration on September 6, 2024, arguing that
the defendants were acting under color of state law given their liquor and
business licenses. The district court denied the motion, concluding that such
licenses do not transform private actors into state actors under Supreme
Court precedent.
Rogers again moved for reconsideration on September 20, 2024, this
time requesting leave to amend his complaint. On October 3, 2024, the
district court denied his motion and concluded that amendment would be
futile given the basis of his complaint. In its order, the district court noted
that it would “not entertain” any further motions for reconsideration and
would instead “summarily deny” them. Id. at 24.
On October 15, 2024, Rogers moved to amend his complaint. In this
motion, Rogers stated that he never specified he was bringing his complaint
under section 1983, but that he would name the State of Wyoming as a
defendant if granted leave to amend his complaint. The district court denied
3 Appellate Case: 24-8075 Document: 15-1 Date Filed: 04/21/2025 Page: 4
the motion, concluding that Rogers had “improperly and without any
support or justification [sought] to file a completely new and unrelated
action.” Id. at 27. Rogers timely filed his notice of appeal on October 25,
2024. 1
II. STANDARD OF REVIEW
We review de novo a district court’s dismissal of a complaint under
section 1915(e)(2)(B)(ii), accepting the allegations as true and viewing them
in the light most favorable to Rogers. Kay v. Bemis, 500 F.3d 1214, 1217
(10th Cir. 2007). Because Rogers filed his complaint pro se, we also construe
his pleadings liberally. Bear v. Patton, 451 F.3d 639, 641 (10th Cir. 2006).
III. DISCUSSION
To state a claim under section 1983, “a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United
States[] and must show that the alleged deprivation was committed by a
person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(emphasis added) (citations omitted). The state actor requirement is a
1 The notice of appeal is timely as to the district court’s dismissal of
the case because the district court did not enter judgment in a separate document, so the time to file a notice of appeal did not begin to run until 150 days after August 30, 2024. See Fed. R. App. P. 4(a)(7)(A)(ii), (a)(7)(B); Fed. R. Civ. P. 58(a), (c)(2). The notice of appeal is also timely as to the denial of his motions because the time to file a notice of appeal did not begin to run until the district court ruled on them. See Fed. R. App. P. 4(a)(4)(A).
4 Appellate Case: 24-8075 Document: 15-1 Date Filed: 04/21/2025 Page: 5
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Appellate Case: 24-8075 Document: 15-1 Date Filed: 04/21/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS April 21, 2025 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court SEAN ROGERS,
Plaintiff - Appellant,
v. No. 24-8075 (D.C. No. 2:24-CV-00163-KHR) TERRY BROWN; BOOT HILL (D. Wyo.) NIGHT CLUB,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before FEDERICO, BALDOCK, and MURPHY, Circuit Judges. ** _________________________________
Sean Rogers, a state prisoner proceeding pro se, appeals the district
court’s dismissal of his complaint for frivolity and failure to state a claim
* 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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. **After examining the briefs and 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). The case is therefore ordered submitted without oral argument. Appellate Case: 24-8075 Document: 15-1 Date Filed: 04/21/2025 Page: 2
on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(i), (ii).
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
On August 28, 2024, Rogers filed a complaint against the Boot Hill
Night Club and its owner, Terry Brown, in the United States District Court
for the District of Wyoming. The district court construed his complaint to
fall under 42 U.S.C. § 1983 because Rogers asserted the defendants violated
his constitutional rights. Rogers essentially claimed that the defendants
had caused him to be convicted of a crime because they illegally permitted
a minor to enter the Boot Hill Night Club. He thus claimed that he was
“robbed of 17 years of [his] life due to willful and wanton illegal
[deprivation] of life, liberty, and property without equal protection of the
law.” R. at 6.
On August 30, 2024, the district court screened the complaint under
28 U.S.C. § 1915A, and because Rogers sought to proceed in forma pauperis,
the district court dismissed the complaint for frivolity and failure to state a
claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2) (“[T]he
court shall dismiss the case at any time if the court determines that . . . the
action . . . is frivolous or malicious . . . [or] fails to state a claim on which
relief may be granted.”). It concluded that dismissal on such grounds was
appropriate because the defendants are private actors, not state actors, and
2 Appellate Case: 24-8075 Document: 15-1 Date Filed: 04/21/2025 Page: 3
thus cannot be held liable in a section 1983 action. See 42 U.S.C. § 1983
(requiring a defendant to be acting “under color of” state law). It further
concluded that amendment of the complaint would be futile because
Rogers’s “failures are foundational to his claims, rather than factual or
pleading insufficiencies.” R. at 15. Because it dismissed the case, the district
court also imposed a “strike” under 28 U.S.C. § 1915(g).
Rogers moved for reconsideration on September 6, 2024, arguing that
the defendants were acting under color of state law given their liquor and
business licenses. The district court denied the motion, concluding that such
licenses do not transform private actors into state actors under Supreme
Court precedent.
Rogers again moved for reconsideration on September 20, 2024, this
time requesting leave to amend his complaint. On October 3, 2024, the
district court denied his motion and concluded that amendment would be
futile given the basis of his complaint. In its order, the district court noted
that it would “not entertain” any further motions for reconsideration and
would instead “summarily deny” them. Id. at 24.
On October 15, 2024, Rogers moved to amend his complaint. In this
motion, Rogers stated that he never specified he was bringing his complaint
under section 1983, but that he would name the State of Wyoming as a
defendant if granted leave to amend his complaint. The district court denied
3 Appellate Case: 24-8075 Document: 15-1 Date Filed: 04/21/2025 Page: 4
the motion, concluding that Rogers had “improperly and without any
support or justification [sought] to file a completely new and unrelated
action.” Id. at 27. Rogers timely filed his notice of appeal on October 25,
2024. 1
II. STANDARD OF REVIEW
We review de novo a district court’s dismissal of a complaint under
section 1915(e)(2)(B)(ii), accepting the allegations as true and viewing them
in the light most favorable to Rogers. Kay v. Bemis, 500 F.3d 1214, 1217
(10th Cir. 2007). Because Rogers filed his complaint pro se, we also construe
his pleadings liberally. Bear v. Patton, 451 F.3d 639, 641 (10th Cir. 2006).
III. DISCUSSION
To state a claim under section 1983, “a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United
States[] and must show that the alleged deprivation was committed by a
person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(emphasis added) (citations omitted). The state actor requirement is a
1 The notice of appeal is timely as to the district court’s dismissal of
the case because the district court did not enter judgment in a separate document, so the time to file a notice of appeal did not begin to run until 150 days after August 30, 2024. See Fed. R. App. P. 4(a)(7)(A)(ii), (a)(7)(B); Fed. R. Civ. P. 58(a), (c)(2). The notice of appeal is also timely as to the denial of his motions because the time to file a notice of appeal did not begin to run until the district court ruled on them. See Fed. R. App. P. 4(a)(4)(A).
4 Appellate Case: 24-8075 Document: 15-1 Date Filed: 04/21/2025 Page: 5
“jurisdictional requisite for a [section] 1983 action, which . . . furthers the
fundamental goals of preserving an area of individual freedom by limiting
the reach of federal law . . . and avoiding imposing on the state, its agencies
or officials, responsibility for conduct for which they cannot fairly be
blamed.” Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir. 1995) (internal
quotation marks and citation omitted).
“The traditional definition of acting under color of state law requires
that the defendant in a [section] 1983 action have exercised power
‘possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.’” West, 487 U.S. at 49
(citation omitted). “The authority with which the defendant is allegedly
‘clothed’ may be either actual or apparent.” Jojola, 55 F.3d at 493. We thus
must find that the conduct allegedly causing the deprivation of a federal
right was “fairly attributable to the State.” Gallagher v. Neil Young
Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (quoting Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982)).
Rogers does not explain how the defendants are state actors, nor does
he demonstrate that an exception to the state actor rule should apply.
Rogers merely reiterates his argument that a liquor license transformed the
defendants into state actors, but this argument is unavailing. See Moose
Lodge No. 107 v. Irvis, 407 U.S. 163, 177 (1972) (“[T]he operation of the
5 Appellate Case: 24-8075 Document: 15-1 Date Filed: 04/21/2025 Page: 6
regulatory scheme enforced by the [State] Liquor Control Board does not
sufficiently implicate the State in the discriminatory guest policies of [a
private club] to make the latter ‘state action[.]’”). We furthermore fail to see
how amendment of the complaint would not be futile since Rogers
essentially blames the defendants for his conviction. As such, Rogers has
failed to show how the district court erred in dismissing his complaint. See
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005)
(“[W]e cannot fill the void by crafting arguments and performing the
necessary legal research” for pro se litigants. (citation omitted)).
IV. CONCLUSION
Because Rogers fails to show the existence of a reasoned, nonfrivolous
argument, we AFFIRM the dismissal of his complaint, DENY his motion
to proceed in forma pauperis, and direct Rogers to pay his filing fee in full.
See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
Entered for the Court
Richard E.N. Federico Circuit Judge