F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         DEC 13 2004
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


NATHANIEL W. ELLIBEE,

          Plaintiff-Appellant,

v.

STANTON A. HAZLETT, Kansas
State Disciplinary Administrator,                      No. 04-3128
Topeka, KS, in his official capacity;              (District of Kansas)
DAVID J. ORR, Officer, Kansas                  (D.C. No. 03-CV-3023-GTV)
Supreme Court; JAMES G.
CHAPPAS, Officer, Kansas Supreme
Court; LLOYD R. GRAHAM, Officer,
Kansas Supreme Court, in their
individual and official capacities,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      After examining appellant’s brief and the appellate record, this court has

determined unanimously that oral argument would not materially assist the


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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.

      Proceeding pro se, Nathaniel W. Ellibee appeals the district court’s

dismissal of the civil rights complaint he brought pursuant to 42 U.S.C. §§ 1983

and 1985. 1 Ellibee alleged that his Sixth and Fourteenth Amendment rights were

violated by three attorneys who represented him in various criminal and civil

matters and that his First, Sixth, and Fourteenth Amendment rights were violated

by the Kansas Disciplinary Administrator. Ellibee also asserted numerous state

law claims against the three attorney-defendants, including allegations of fraud

and breach of contract. Ellibee sought both monetary damages, injunctive relief,

and attorney’s fees pursuant to 42 U.S.C. § 1988.

      The district court dismissed the federal claims asserted against the Kansas

Disciplinary Administrator, concluding that the administrator had immunity from

claims for damages and that Ellibee lacked standing to bring a civil action against

the individual charged with the investigation and resolution of attorney

disciplinary complaints. See Doyle v. Okla. Bar Ass’n, 

, 1566-67

(10th Cir. 1993). The district court also dismissed the federal constitutional

claims asserted against the three attorneys, concluding that the attorneys had not


      1
        Although Ellibee did not specifically rely on 42 U.S.C. § 1985, his
amended complaint contains allegations that defendants conspired to deprive him
of his constitutional rights and the district court addressed the claim.

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acted under color of state law for purposes of stating a claim for relief under 42

U.S.C. § 1983. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 

, 49-50 (1999)

(“To state a claim for relief in an action brought under § 1983, [plaintiffs] must

establish that they were deprived of a right secured by the Constitution or laws of

the United States, and that the alleged deprivation was committed under color of

state law.”) Neither public defenders performing their “traditional functions as

counsel to a defendant in a criminal proceeding” nor private attorneys act under

color of state law. Polk County v. Dodson, 

, 325 (1981); Barnard v.

Young, 

, 1189 (10th Cir. 1983). In its order denying Ellibee’s Rule

59(e) motion, the court also concluded that Ellibee had failed to present a

cognizable claim of a conspiracy among the attorneys and the Kansas Disciplinary

Administrator. Accordingly, the court dismissed the federal claims asserted

against all defendants. See McKinney v. Okla. Dep’t of Human Servs., 

, 365 (10th Cir. 1991) (holding district court may dismiss sua sponte a pro se

complaint for failure to state a claim when it is “patently obvious that the plaintiff

could not prevail on the facts alleged, and allowing him an opportunity to amend

his complaint would be futile” (quotation and citations omitted)); 28 U.S.C. §

1915(e)(2)(B); Fed. R. Civ. P. 12(b)(6).

      In its initial order, the district court also concluded that Ellibee had failed

to allege an amount in controversy that exceeded the $75,000 threshold for


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establishing diversity jurisdiction under 28 U.S.C. § 1332 and had failed to

demonstrate that he was not a citizen of Kansas. The court declined to exercise

supplemental jurisdiction over the state-law claims asserted against the attorney-

defendants and, accordingly, dismissed those claims without prejudice.

      In his Rule 59(e) motion, Ellibee drew the court’s attention to the fact that

his amended complaint included a prayer for exemplary and punitive damages

against each attorney-defendant in excess of the $75,000 jurisdictional limit and

the district court corrected its initial order accordingly. Ellibee also alleged in the

motion that he is a citizen of the state of Idaho and attached an affidavit in

support of this allegation. Singletary v. Cont’l Ill. Nat’l Bank & Trust Co., 

, 1238 (7th Cir. 1993) (“[Citizenship] should be the state of which [the

prisoner] was a citizen before he was sent to prison unless he plans to live

elsewhere when he gets out, in which event it should be that state.”). The district

court, however, did not consider Ellibee’s arguments because it concluded that

Ellibee could not pursue his state-law malpractice claims until he first

demonstrated that he had obtained post-conviction relief. See Canaan v. Bartee,

, 921 (Kan. 2003) (holding that a plaintiff must first obtain post-

conviction relief before suing his criminal defense attorney for malpractice).

      We have reviewed the record, Ellibee’s brief, and the applicable law and

affirm the district court’s dismissal of the claims Ellibee asserted against


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defendants pursuant to § 1983 for substantially the reasons stated by the district

court. We also affirm the dismissal of the claims Ellibee asserted pursuant to §

1985 but on grounds other than those relied upon by the district court. “In order

to support a section 1985(3) claim, the plaintiff must be a member of a statutorily

protected class, and the actions taken by defendant must stem from plaintiff’s

membership in the class.” Silkwood v. Kerr-McGee Corp., 

, 746

(10th Cir. 1980). Ellibee has asserted that the alleged conspiracy was motivated

by his membership in a class consisting of “incarcerated felons.” This is not a

class protected by § 1985. Accordingly, Ellibee’s federal conspiracy claim fails.

        Finally, as to the state malpractice claims asserted against the three

attorney-defendants, the district court improperly failed to first examine whether

it had subject matter jurisdiction before dismissing the claims on the basis that

Ellibee had not demonstrated that he had obtained post-conviction relief. Steel

Co. v. Citizens for a Better Env’t, 

, 94 (1998) (“Without jurisdiction

[a] court cannot proceed at all in any cause. Jurisdiction is power to declare the

law, and when it ceases to exist, the only function remaining to the court is that of

announcing the fact and dismissing the cause.” (quotation omitted)). It is

necessary, therefore, to examine Ellibee’s prayer for relief and allegation of Idaho

citizenship to determine whether there is diversity jurisdiction over this part of his

suit.


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      If the district court concludes it has subject matter jurisdiction, it must then

consider whether the principle of Canaan v. Bartee, 

, 921 (Kan.

2003), which holds that a plaintiff may not sue a criminal defense attorney unless

he has first sought and obtained post-conviction relief, is applicable to all of

Ellibee’s state-law malpractice claims. In this connection, we note, that only

defendant Orr served as Ellibee’s criminal defense attorney. The remaining two

attorney-defendants were allegedly retained by Ellibee to represent him in two

civil matters.

      That portion of the district court’s order dismissing the federal claims

asserted against all four defendants and is hereby affirmed. The portion of the

court’s order dismissing the state-law claims asserted against defendants Orr,

Chappas, and Graham is reversed and the matter remanded to the district court

for further proceedings not inconsistent with this opinion.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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