State Action in § 1983 Under § 1331 Is a Merits Element (Not Jurisdiction) and Colorado Child Legal Representatives Are Not State Actors

I. Introduction

In Gladstone v. Tarrin (10th Cir. Aug. 18, 2026), Stephen Theodore Gladstone, proceeding pro se, sued Kristen Tarrin under 42 U.S.C. § 1983 based on her conduct as a court-appointed child legal representative (CLR) in a Colorado state child-custody case. He alleged she submitted hearsay-based reports, committed perjury, omitted favorable evidence, and sought to quash subpoenas—conduct he claimed caused him to lose parenting time and harmed his child.

The district court dismissed the case for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), reasoning that Tarrin was not a “state actor.” On appeal, the Tenth Circuit affirmed dismissal—but clarified that, where the plaintiff invokes 28 U.S.C. § 1331 (federal-question jurisdiction), failure to plead or prove “state action” generally defeats the claim on the merits (Rule 12(b)(6)), not the court’s jurisdiction (Rule 12(b)(1)). The court also reaffirmed that court-appointed child advocates performing traditional fiduciary advocacy for a child are not state actors for § 1983 purposes.

II. Summary of the Opinion

  • The Tenth Circuit exercised appellate jurisdiction under 28 U.S.C. § 1291 to review the dismissal.
  • It held Tarrin, as a CLR, is not a state actor under § 1983 when performing the traditional advocacy/fiduciary role owed to the child.
  • It found the district court erred in treating the absence of state action as a subject-matter jurisdiction defect under Rule 12(b)(1) because Gladstone pleaded jurisdiction under 28 U.S.C. § 1331.
  • It affirmed on the alternative ground that the amended complaint failed to state a claim under Rule 12(b)(6) because it did not satisfy § 1983’s “under color of state law” element.
  • It remanded for the district court to decide whether the dismissal should be with prejudice.
  • It denied Gladstone’s motions for judicial notice and denied Tarrin’s request for appellate attorney fees because it was not made by separate motion.

III. Analysis

A. Precedents Cited

1. Appellate jurisdiction and standards of review

  • Jacobs v. Salt Lake City Sch. Dist., 154 F.4th 790, 798 n.3 (10th Cir. 2025): Cited to confirm the Tenth Circuit’s authority to review Rule 12(b)(1) dismissals under 28 U.S.C. § 1291, notwithstanding the appellee’s suggestion that the court lacked “jurisdictional authority” over claims against a non-state actor.
  • Mukhtar v. Lambrecht, 172 F.4th 836, 841 (10th Cir. 2026): Provided the de novo standard for reviewing Rule 12(b)(1) dismissals.
  • Cuervo v. Sorenson, 112 F.4th 1307, 1312 (10th Cir. 2024): Provided the de novo standard for reviewing Rule 12(b)(6) dismissals.
  • Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)): Supplied the governing “plausibility” pleading standard used to evaluate whether Gladstone’s allegations stated a claim.
  • Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005): Cited for the rule that pro se filings are construed liberally, but courts will not act as the litigant’s attorney by constructing arguments or combing the record.

2. § 1983 “under color of state law” (state action) doctrine

  • West v. Atkins, 487 U.S. 42, 48–49 (1988): Provided the baseline rule that § 1983 requires deprivation of a federal right by a person acting “under color of state law,” meaning the defendant exercised power made possible only because the defendant was “clothed with the authority of state law.”
  • Polk County v. Dodson, 454 U.S. 312, 325 (1981): Held that a public defender does not act under color of state law when performing traditional functions as counsel in a criminal proceeding; the court used this as the template for analyzing court-appointed professionals whose loyalty runs to the client rather than the State.
  • Meeker v. Kercher, 782 F.2d 153, 155 (10th Cir. 1986) (per curiam): Extended Polk County to guardians ad litem in state child-protection proceedings, reasoning that such advocates are fiduciaries owing “undivided loyalty” to the child, not the State—therefore not state actors for § 1983. This became the decisive authority for treating a CLR equivalently.
  • Dennis v. Sparks, 449 U.S. 24, 27–28 (1980), and Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1982): Invoked by Gladstone for a “joint action”/conspiracy-style theory of state action. The court rejected the argument as pleaded: the amended complaint did not rely on joint action; it merely asserted that CLR status itself made Tarrin a state actor. The court also emphasized Meeker’s statement that it is “of no consequence” if the advocate’s independent judgment aligns with state objectives.

3. Jurisdiction versus elements of a § 1983 claim

  • Grapentine v. Pawtucket Credit Union, 755 F.3d 29, 32 n.1 (1st Cir. 2014): Cited for the proposition that, “almost by definition,” a § 1983 claim arises under federal law and supports federal-question jurisdiction under 28 U.S.C. § 1331 even if the claim later fails on the merits.
  • Elliott v. Chrysler Fin., 149 F. App’x 766, 768 (10th Cir. 2005): Cited (for persuasive value under Fed. R. App. P. 32.1; 10th Cir. R. 32.1) to reinforce that when § 1983 plaintiffs invoke § 1331, the state action requirement is ordinarily treated as an element of the claim—not a jurisdictional prerequisite.

4. Waiver, judicial notice, and fee requests on appeal

  • Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012): Used to hold Gladstone waived any challenge to denial of leave to amend by not raising it in the opening brief.
  • Abeyta v. City of Albuquerque, 664 F.3d 792, 797 (10th Cir. 2011): Applied to deny Tarrin’s fee/sanctions request because a request embedded in a brief is not adequate notice; Fed. R. App. P. 38 requires a separately filed motion.

B. Legal Reasoning

1. CLR not a state actor under § 1983 (merits)

The court treated the CLR’s function as analogous to that of a guardian ad litem. Relying on Polk County v. Dodson and the Tenth Circuit’s extension in Meeker v. Kercher, the panel emphasized the advocate’s fiduciary duty to the child and the “undivided loyalty” owed to the minor rather than to the State. It cited Colorado’s statutory description of a child’s legal representative—Colo. Rev. Stat. § 14-10-116(2)(a)—to confirm that a CLR represents the child’s best interests, reinforcing the non-state-actor characterization.

Although Gladstone attempted on appeal to recast Tarrin’s role as “jointly initiat[ing], influenc[ing], and perpetuat[ing] law-enforcement action,” the court treated this as both (i) not adequately pleaded in the amended complaint and (ii) insufficient in light of Meeker’s point that alignment with state objectives does not transform independent child advocacy into state action.

2. State action as jurisdictional defect versus claim element

The opinion’s most doctrinally clarifying move is its separation of (a) federal subject-matter jurisdiction from (b) § 1983’s state-action element. The district court dismissed under Rule 12(b)(1) because Tarrin was not a state actor. The Tenth Circuit disagreed with the procedural framing because Gladstone invoked 28 U.S.C. § 1331, which grants jurisdiction over cases “arising under” federal law and does not contain an “under color of state law” clause.

The panel contrasted § 1331 with 28 U.S.C. § 1343(a)(3), which expressly ties jurisdiction to deprivations “under color of” state law. Since Gladstone did not rely on § 1343(a)(3), the absence of state action did not defeat jurisdiction; it defeated the merits of the § 1983 claim. The proper disposition, therefore, was dismissal under Rule 12(b)(6), not Rule 12(b)(1).

3. Remedy: affirmance on alternative grounds and remand re prejudice

Exercising de novo review and relying on the alternative-ground principle, the court affirmed the dismissal as a Rule 12(b)(6) failure. It remanded for the district court to determine whether dismissal should be with prejudice—an issue that can turn on whether amendment would be futile (particularly given the categorical state-action barrier for CLRs performing traditional functions).

C. Impact

1. Procedural impact: channeling state-action failures into Rule 12(b)(6)

For litigants and district courts within the Tenth Circuit, Gladstone v. Tarrin underscores a practical pleading-and-motion rule: when a § 1983 complaint invokes federal-question jurisdiction under § 1331, the “under color of state law” requirement should typically be treated as a merits element (Rule 12(b)(6)) rather than a subject-matter jurisdiction prerequisite (Rule 12(b)(1)). This affects:

  • Dismissal labeling and consequences (including preclusion and amendment analysis).
  • Burden and materials considered (Rule 12(b)(6) confines courts to complaint allegations and properly considered documents more strictly than certain 12(b)(1) inquiries).
  • Remedial sequencing (courts may reach merits dismissal without suggesting federal courts lack adjudicatory power over the subject matter).

2. Substantive impact: reinforcing immunity-by-non-state-actor status for child representatives

The decision reinforces the protective boundary for court-appointed child representatives: absent well-pleaded joint action or other recognized state-action pathways, CLRs (like guardians ad litem) are generally outside § 1983 liability for conduct within their traditional advocacy role. This is significant in family-law-adjacent federal filings, where disappointed litigants frequently attempt to recast adverse custody outcomes as federal civil-rights violations.

3. Pleading impact: joint-action theories must be pleaded, not improvised on appeal

By rejecting Gladstone’s reliance on Dennis v. Sparks and Lugar v. Edmondson Oil Co. as unpleaded, the opinion signals that plaintiffs must set out the factual basis for “joint action” state action in the complaint itself—conclusory labels tied to appointment status will not suffice under Twombly/Iqbal.

IV. Complex Concepts Simplified

  • Subject-matter jurisdiction (Rule 12(b)(1)): The court’s power to hear a type of case. Under 28 U.S.C. § 1331, federal courts have power to hear cases arising under federal law—even if the plaintiff ultimately loses on the merits.
  • Failure to state a claim (Rule 12(b)(6)): Even if the court can hear the case, the complaint must plausibly allege each required element of the claim. If an element is missing (here, state action), dismissal is on the merits.
  • “Under color of state law” / state action: § 1983 applies only to conduct fairly attributable to the State. A private person can be a state actor in limited situations (e.g., conspiracy/joint action with officials), but court appointment alone does not automatically make an advocate a state actor.
  • Guardian ad litem / Child legal representative (CLR): A court-appointed fiduciary charged with representing a child’s best interests. Because their loyalty runs to the child—not the government—they are usually treated like defense counsel in Polk County for state-action purposes.
  • With prejudice vs. without prejudice: “With prejudice” bars refiling the same claim; “without prejudice” allows refiling. The remand signals the district court must decide whether amendment/refiling would be futile given the legal barriers.
  • Nonprecedential “Order and Judgment”: The decision is not binding precedent except for law-of-the-case, res judicata, and collateral estoppel, but may be cited for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

V. Conclusion

Gladstone v. Tarrin delivers two core takeaways for § 1983 litigation in the Tenth Circuit. First, when a plaintiff invokes 28 U.S.C. § 1331, the absence of “under color of state law” is ordinarily a merits failure warranting Rule 12(b)(6) dismissal—not a jurisdictional defect under Rule 12(b)(1). Second, a Colorado court-appointed child legal representative, like a guardian ad litem under Meeker v. Kercher and the logic of Polk County v. Dodson, is not a state actor when performing traditional fiduciary advocacy for the child. The opinion thus both corrects procedural mislabeling and fortifies a substantive barrier to § 1983 claims targeting court-appointed child advocates for actions taken within the scope of their representative role.