Private Resort to Courts Is Not “State Action”: Tenth Circuit Affirms § 1983 Dismissal and Clarifies Post–Rule 59(e) Appellate Requirements in Pollak v. Strong

Court: United States Court of Appeals for the Tenth Circuit

Date: September 30, 2025

Case: Pollak v. Strong, No. 24-2183 (appeal from D.N.M. No. 1:24-CV-00494-JMC-JFR)

Panel: Circuit Judges Federico, Baldock, and Murphy (Order and Judgment by Judge Michael R. Murphy)

Disposition: Affirmed

Citation Status: Nonprecedential; citable for persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1

Introduction

This appeal arises from a pro se civil rights suit in which Plaintiff–Appellant Jason Pollak sued Defendant–Appellee Lillian McKenzie Strong under 42 U.S.C. § 1983, alleging that Strong either acted under color of state law or conspired with New Mexico state judicial actors to violate his constitutional rights. The United States District Court for the District of New Mexico dismissed the complaint for failure to state a claim, denied several recusal motions, declined to impose monetary sanctions on Strong (while admonishing her to comply with the procedural rules), and disposed of Strong’s counterclaims by dismissing their federal aspects and declining supplemental jurisdiction over the state-law aspects.

On appeal, the Tenth Circuit affirmed in a comprehensive Order and Judgment, emphasizing two core principles:

Private use of the courts does not transform a private litigant into a state actor for § 1983 purposes, and conclusory assertions of conspiracy with judicial officers fail without concrete factual allegations of agreement and joint action.
After filing a timely Rule 59(e) motion, an appellant who wishes to obtain review of the order denying that motion must file a new or amended notice of appeal designating the post-judgment order; failure to do so limits the court’s jurisdiction to the underlying judgment.

The panel also upheld the district court’s denial of recusal motions and refusal to impose monetary sanctions, and endorsed the routine practice of declining supplemental jurisdiction over state-law claims once all federal claims have been dismissed.

Summary of the Opinion

§ 1983 claim dismissed: Affirmed de novo. The complaint failed to plausibly allege that Strong acted under color of state law or conspired with state actors. Private conduct is not actionable under § 1983; merely resorting to state courts is not state action.
Recusal motions denied: Affirmed for lack of abuse of discretion. Dissatisfaction with adverse merits rulings does not warrant recusal; motions targeted judges not assigned to the case; no record evidence of bias or partiality.
Sanctions denied (monetary): Affirmed for lack of abuse of discretion. The district court reasonably admonished Strong to follow rules but declined monetary sanctions; her counterclaim was not frivolous or brought in bad faith.
Counterclaims: Dismissal of federal parts of Strong’s counterclaim affirmed; as to state-law counterclaims, the district court appropriately declined supplemental jurisdiction and dismissed them without prejudice.
Appellate jurisdiction after Rule 59(e): The panel lacked jurisdiction to review the order denying Pollak’s Rule 59(e) motion because he did not file a new or amended notice of appeal designating that order. The appeal thus proceeded only as to the November 25, 2024 final judgment.

Detailed Analysis

1) Appellate Jurisdiction and the Rule 59(e) Trap

The panel carefully addressed its jurisdiction. The district court entered final judgment on November 25, 2024. Pollak timely filed a Rule 59(e) motion and, shortly thereafter, a notice of appeal specifying the dismissal order and judgment. The Tenth Circuit abated the appeal pending resolution of Rule 59(e), as allowed by Fed. R. App. P. 4(a)(4)(A) and (B)(i). Once the district court denied the Rule 59(e) motion on June 17, 2025, Pollak did not file a new or amended notice of appeal designating the post-judgment order. Under Husky Ventures, Inc. v. B55 Investments, Ltd., 911 F.3d 1000, 1009–10 (10th Cir. 2018), the omission deprived the Tenth Circuit of jurisdiction to review the Rule 59(e) denial. Review was confined to the underlying judgment.

Notably, the opinion refers once to “Fed. R. Crim. P. 59(e),” which appears to be a typographical slip; the context and the panel’s rule citations confirm the court meant Fed. R. Civ. P. 59(e).

Takeaway: When a party files a timely Rule 59(e) motion, an earlier notice of appeal springs into effect after the motion is decided—but only as to the underlying judgment. To obtain review of the post-judgment order (e.g., the Rule 59(e) denial), an appellant must file a new or amended notice of appeal specifically designating that order.

2) Section 1983: “Under Color of State Law” and Conspiracy Pleading

The court reviewed de novo the Rule 12(b)(6) dismissal. Even liberally construing the pro se Third Amended Complaint, see Haines v. Kerner, 404 U.S. 519, 520–21 (1972), the panel held that the pleading failed to allege facts showing Strong was a state actor or that she conspired with state officials.

Key authorities and propositions:

Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1235–36 (10th Cir. 2020): The “under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.”
Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1453 (10th Cir. 1995): “The mere acquiescence of a state official in the actions of a private party is not sufficient” to convert private conduct into state action.
Scott v. Hern, 216 F.3d 897, 906 (10th Cir. 2000): A private party’s resort to the courts does not, without more, transform her into a state actor.

Against this backdrop, the panel concluded that Pollak’s allegations, even generously construed, did not plausibly state either:

Direct state action: Strong is a private individual; nothing in the complaint plausibly alleged she performed a public function, was compelled by the state, was entwined with the state, or was in a joint venture with state officials sufficient to make her conduct “under color of” state law.
Conspiracy with state actors: The complaint lacked specific facts showing an agreement or concerted action with judicial officers. Conclusory assertions of conspiracy are insufficient—particularly where the alleged “state involvement” is limited to a private party’s use of judicial processes and the judiciary’s routine adjudication.

In the Tenth Circuit, Gallagher identifies several alternative “state action” pathways (public function, state compulsion, nexus/symbiotic relationship, and joint action). The panel’s opinion directly invokes Gallagher’s core teaching that mere acquiescence or ordinary judicial involvement does not suffice. That Strong turned to the state courts, or that state judges ruled (adversely) in related proceedings, does not transform her into a state actor.

3) Recusal Motions

Applying an abuse-of-discretion standard, see Burke v. Regalado, 935 F.3d 960, 1052 (10th Cir. 2019), and United States v. Wells, 873 F.3d 1241, 1250 (10th Cir. 2017) (defining abuse of discretion as an “arbitrary, capricious, whimsical, or manifestly unreasonable” judgment), the panel affirmed the denial of recusal.

Two rationales carried the day:

Adverse rulings are not bias: “A motion to recuse cannot be based solely on adverse rulings.” Willner v. Univ. of Kan., 848 F.2d 1023, 1028 (10th Cir. 1988).
Scope and subject: The motions targeted judges not assigned to the case and largely repackaged disagreements with merits determinations, neither of which is a legitimate basis for recusal. The record contained no evidence of actual bias or partiality.

The court also endorsed the district court’s measured solicitude toward pro se filings in pursuit of Rule 1’s mandate to secure “the just, speedy, and inexpensive determination” of the case.

4) Sanctions Rulings

On sanctions, the court again applied an abuse-of-discretion standard. See Dodd Ins. Servs., Inc. v. Royal Ins. Co. of Am., 935 F.2d 1152, 1155 (10th Cir. 1991) (applying abuse of discretion to both factual findings and the determination that a pleading is warranted by existing law or a good-faith argument for change). The district court admonished Strong to comply with federal and local rules but denied Pollak’s request for monetary sanctions. The panel found this balanced response reasonable, particularly given its implicit conclusion that Strong’s counterclaim was not frivolous or brought in bad faith.

5) Counterclaims and Supplemental Jurisdiction

The district court granted Pollak’s motion to dismiss the federal aspects of Strong’s counterclaim and declined to exercise supplemental jurisdiction over the remaining state-law aspects, dismissing them without prejudice. The Tenth Circuit affirmed, emphasizing:

28 U.S.C. § 1367(c)(3): A district court may decline supplemental jurisdiction when it “has dismissed all claims over which it has original jurisdiction.”
Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011): Once federal claims are dismissed, the court “usually should” decline jurisdiction over state claims. Dismissal without prejudice permits the parties to pursue state-law matters in state court.

The panel found the district court’s approach well within the “abundant discretion” afforded by § 1367(c)(3) and Koch.

6) Unaddressed Arguments

While Pollak raised seventeen alleged errors, the panel—echoing its practice—addressed the core issues and noted that any remaining arguments had been considered and found meritless. See United States v. Stilley, No. 24-5133, 2025 WL 2718277, at *2 (10th Cir. Sept. 24, 2025) (unpublished; cited for persuasive value).

Precedents Cited and Their Influence

Haines v. Kerner, 404 U.S. 519 (1972): Anchors the liberal construction of pro se pleadings. Here, even with maximum liberality, the allegations did not plausibly allege state action or conspiracy.
Smith v. United States, 561 F.3d 1090 (10th Cir. 2009): Provides the de novo standard for Rule 12(b)(6) dismissals.
Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228 (10th Cir. 2020): Reiterates that purely private conduct is not actionable under § 1983.
Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442 (10th Cir. 1995): Explains the “state action” doctrine and rejects the notion that mere acquiescence by state officials converts private conduct into state action.
Scott v. Hern, 216 F.3d 897 (10th Cir. 2000): Squarely holds that a private party’s use of state courts does not create state action for § 1983 purposes.
Burke v. Regalado, 935 F.3d 960 (10th Cir. 2019), and United States v. Wells, 873 F.3d 1241 (10th Cir. 2017): Frame the abuse-of-discretion standard and its formulation for recusal and other discretionary rulings.
Willner v. Univ. of Kan., 848 F.2d 1023 (10th Cir. 1988): Adverse rulings are not evidence of bias warranting recusal.
Dodd Ins. Servs., Inc. v. Royal Ins. Co. of Am., 935 F.2d 1152 (10th Cir. 1991): Sanctions decisions are reviewed for abuse of discretion, including whether pleadings are warranted by existing law or good-faith arguments for change.
Koch v. City of Del City, 660 F.3d 1228 (10th Cir. 2011): Articulates the standard and presumption favoring declination of supplemental jurisdiction after dismissal of federal claims.
Husky Ventures, Inc. v. B55 Investments, Ltd., 911 F.3d 1000 (10th Cir. 2018): Requires a new or amended notice of appeal to secure review of post-judgment orders entered after a tolling motion (like Rule 59(e)).

These authorities collectively shaped the panel’s straightforward resolution: no state action or viable conspiracy; no basis for recusal; no abuse in denying monetary sanctions; appropriate declination of supplemental jurisdiction; and jurisdiction confined to the original judgment due to notice-of-appeal limitations.

Legal Reasoning

On the merits (Rule 12(b)(6)): The panel accepted the district court’s careful analysis and reemphasized settled doctrine: § 1983 reaches only conduct fairly attributable to the state. A private person’s invocation of court processes—even if aggressive or unfounded—is not “state action.” Allegations of conspiracy must contain concrete facts suggesting a meeting of the minds with state officials; mere conclusions or the inference that routine judicial rulings imply agreement do not suffice.

On recusal: The Tenth Circuit noted that litigant dissatisfaction with judicial decisions does not equate to bias. The motions at issue improperly targeted judges not involved in the case and articulated grievances with merits determinations. The record contained no signs of partiality. The district court’s leniency toward pro se filings was consistent with Rule 1’s case-management mandate and did not evidence favoritism.

On sanctions: Sanctions are discretionary tools to deter abusive litigation. The district court’s choice to admonish (rather than penalize monetarily) a pro se litigant for rule noncompliance was a reasonable, proportionate response and not an abuse of discretion, especially given the absence of frivolity or bad faith.

On supplemental jurisdiction: Once the federal claims (including federal aspects of counterclaims) are dismissed, § 1367(c)(3) permits—and Koch encourages—declining jurisdiction over state-law claims. Dismissal without prejudice preserves the parties’ ability to litigate those issues in state court, aligning with comity and judicial economy.

On appellate jurisdiction: The panel followed straightforward rules: a timely Rule 59(e) motion suspends the finality of judgment for appeal purposes; once decided, the prior notice springs back to life for the judgment itself. But the court lacks jurisdiction over the post-judgment order absent a new or amended notice designating that order. This bright-line rule promotes clarity and protects both parties’ appellate rights.

Impact and Implications

§ 1983 pleadings against private parties: Pro se plaintiffs often attempt to frame ordinary private disputes as constitutional torts. The Tenth Circuit’s reaffirmation—consistent with Gallagher and Scott—will continue to screen out such claims unless plaintiffs can allege specific, plausible facts showing joint action with state officials or other recognized forms of state action (public function, compulsion, nexus, entwinement).
Conspiracy allegations: The opinion underscores the importance of particularized facts showing an agreement with state actors. Bare assertions that adverse judicial rulings prove conspiracy are insufficient.
Recusal practice: Litigants should not expect recusal based on disagreement with rulings. The opinion supports district courts in denying recusal motions that are effectively merits arguments in disguise.
Sanctions discretion with pro se litigants: District courts retain wide latitude to enforce procedural rules through admonitions rather than monetary penalties. This opinion validates measured, proportional responses to procedural missteps—particularly in pro se contexts.
Supplemental jurisdiction: The court again endorses the routine decline of supplemental jurisdiction once federal questions are gone, promoting comity and efficiency by allowing state courts to decide state-law issues.
Appellate practice—Rule 59(e) and notices of appeal: The decision provides a practical warning: if an appellant wants to challenge the denial of Rule 59(e), a new or amended notice of appeal is essential. This is a recurring procedural pitfall; counsel and pro se litigants should docket this step as a matter of course.
Precedential value: Although nonprecedential, the opinion is citable for persuasive value and reflects the Tenth Circuit’s steady application of well-settled doctrine in multiple areas (state action, recusal, sanctions, supplemental jurisdiction, and appellate procedure).

Complex Concepts Simplified

“Under color of state law” (State action): § 1983 remedies constitutional violations by government actors. A private person is not liable under § 1983 unless her conduct is fairly attributable to the state—e.g., performing a traditional government function, being compelled by the state, being entwined with the state, or acting jointly with state officials. Simply using public courts does not make a private person a state actor.
Conspiracy under § 1983: Requires specific facts indicating an agreement with state officials and concerted action to violate rights. Conclusory allegations or mere parallel activity—especially adverse rulings by judges—do not establish conspiracy.
De novo review vs. abuse of discretion: De novo means the appellate court takes a fresh look without deference (e.g., dismissals for failure to state a claim). Abuse of discretion is deferential; the appellate court reverses only if the lower court’s decision was arbitrary, capricious, whimsical, or manifestly unreasonable (e.g., recusal decisions, sanctions, supplemental jurisdiction).
Rule 59(e) motions: A motion to alter or amend a judgment (civil). Filing it within 28 days tolls the time for appeal. After the district court rules, a party who wants to challenge the Rule 59(e) order must file a new or amended notice of appeal designating that order.
Supplemental jurisdiction (§ 1367): Federal courts can decide related state-law claims alongside federal claims. But if all federal claims are dismissed, courts “usually should” decline jurisdiction over remaining state claims, dismissing them without prejudice.
Dismissal “with prejudice” vs. “without prejudice”: With prejudice bars refiling; without prejudice allows a party to refile, typically in an appropriate forum (such as state court for state-law claims).
Recusal: Judges must step aside if impartiality might reasonably be questioned, but adverse rulings are not evidence of bias. Recusal requires more—such as extrajudicial bias or specific facts showing partiality.
Sanctions: Courts can deter improper filings or conduct. Sanctions range from admonitions to monetary penalties; the choice is discretionary and depends on frivolousness, bad faith, and proportionality.

Conclusion

Pollak v. Strong is a clear reaffirmation of several entrenched principles in federal civil practice:

A private party’s use of the courts does not constitute “state action,” and conclusory conspiracy allegations cannot salvage a § 1983 claim.
Recusal is not a vehicle for rearguing merits; adverse rulings are not bias.
District courts have broad discretion to manage pro se litigation and to calibrate sanctions proportionately.
Once federal claims fall away, declining supplemental jurisdiction over state-law claims is often the correct course.
Appellants must mind the procedural step of filing a new or amended notice of appeal after Rule 59(e) if they seek review of the post-judgment order.

While nonprecedential, the decision provides a coherent, practice-oriented template for assessing § 1983 claims against private actors, handling recusal and sanctions motions, managing mixed federal–state pleadings, and navigating the jurisdictional intricacies of post-judgment motions and notices of appeal. Its core message is both simple and significant: private litigation is not state action, and precise procedural steps matter on appeal.