Gladstone v. Tarrin

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
STEPHEN THEODORE GLADSTONE,

Plaintiff - Appellant,

v.

KRISTEN TARRIN,

Defendant - Appellee.

No. 25-1423
(D.C. No. 1:25-CV-01355-CNS-KAS)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before MATHESON, CARSON, and ROSSMAN, Circuit Judges.
_________________________________
Stephen Gladstone, proceeding pro se, appeals the district court’s dismissal of
his civil rights complaint against Kristen Tarrin for lack of subject matter
jurisdiction.

*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED
United States Court of Appeals
Tenth Circuit

August 18, 2026

Christopher M. Wolpert
Clerk of Court
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2

Exercising jurisdiction under 28 U.S.C. § 1291,
1
we affirm on the alternative
ground that the amended complaint failed to state a claim.
2

I. BACKGROUND
Ms. Tarrin served as a court-appointed child legal representative (CLR) for
Mr. Gladstone’s son in a state court child custody case. Mr. Gladstone sued her
under 42 U.S.C. § 1983, alleging that, in the state custody case, “[s]he submitted
reports based on hearsay, committed perjury, omitted favorable evidence, and moved
to quash subpoenas seeking evidence of therapist misconduct and maternal abuse.”
R. vol. 1 at 94. He claimed that her actions caused him to lose “all parenting time”
and his son to suffer emotional harm. Id. at 97. He also alleged Ms. Tarrin acted
“under color of state law.” Id. at 94, 96. The amended complaint said the district
court had jurisdiction under 28 U.S.C. § 1331.
Ms. Tarrin moved to dismiss Mr. Gladstone’s claims under Federal Rule of
Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and under Rule

1
Ms. Tarrin appears to dispute this court’s jurisdiction. See Resp. Br. at 1–2
(“[T]he Court lacks jurisdictional authority over the claims against Defendant-
Appellee as she is not a state actor under applicable law.”). But she also “requests a
court order affirming the district court’s order and final judgment” rather than
dismissal of this appeal. Id. at 13 (capitalization omitted). We have jurisdiction to
review dismissals under Federal Rule of Civil Procedure 12(b)(1) and
28 U.S.C. § 1291. See Jacobs v. Salt Lake City Sch. Dist., 154 F.4th 790, 798 n.3
(10th Cir. 2025).

2
Because Mr. Gladstone proceeds pro se, we construe his arguments liberally,
but we “cannot take on the responsibility of serving as [his] attorney in constructing
arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005).

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12(b)(6) for failure to state a claim. The district court granted the motion under Rule
12(b)(1) because Ms. Tarrin was not a state actor. It dismissed Mr. Gladstone’s case
without prejudice, denied leave to amend, and denied as moot his pending motions.
This appeal followed.
II. DISCUSSION
“We review a dismissal for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1) de novo.” Mukhtar v. Lambrecht, 172 F.4th 836,
841 (10th Cir. 2026). We also review de novo whether a complaint has failed to
state a claim under Federal Rule of Civil Procedure 12(b)(6). Cuervo v. Sorenson,
112 F.4th 1307, 1312 (10th Cir. 2024). “To survive a motion to dismiss [for failure
to state a claim], a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“To state a claim under § 1983, a plaintiff . . . 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).
3
The defendant must “have exercised power

3
Section 1983 provides, in relevant part:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at
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possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law.” Id. at 49 (internal quotation marks omitted).
Mr. Gladstone’s complaint failed to satisfy the “under color of state law” element.
In Polk County v. Dodson, 454 U.S. 312, 325 (1981), the Supreme Court held
that “a public defender does not act under color of state law when performing a
lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” In
Meeker v. Kercher, 782 F.2d 153 (10th Cir. 1986) (per curiam), we extended Polk
County to hold a guardian ad litem exempt from § 1983 liability. See id. at 155
(“[T]he reasoning of Polk County applies with equal force to a guardian ad litem
representing a minor in a state proceeding on a petition alleging abuse or neglect.”).
Mr. Gladstone does not distinguish how a CLR differs from a guardian ad
litem for purposes of a § 1983 action. Like a guardian ad litem, a CLR “is a fiduciary
who must act in the minor’s best interest.” Id. (internal quotation marks omitted);
see also Colo. Rev. Stat. § 14-10-116(2)(a) (“The legal representative of the child . . .
shall represent the best interests of the minor or dependent child . . . .”). Ms. Tarrin
thus “owe[d] . . . her undivided loyalty to the minor, not the state.” Meeker,
782 F.2d at 155.
Mr. Gladstone relies on Dennis v. Sparks, 449 U.S. 24, 27–28 (1980), and
Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1982), to argue Ms. Tarrin was

law, suit in equity, or other proper proceeding for redress
. . . .

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a state actor because she functioned as “a court-appointed representative who
jointly initiate[d], influence[d], and perpetuate[d] law-enforcement action.”
Aplt. Opening Br. at 11. But his amended complaint did not rely on this joint action
theory—he simply asserted that Ms. Tarrin’s CLR position made her subject to
§ 1983. And in Meeker, we held that “[i]t is of no consequence if, in the exercise
of . . . her independent judgment on behalf of the minor, the guardian ad litem arrives
at a position of advocacy which corresponds with the objectives of the state.”
782 F.2d at 155. This holding applies equally to Ms. Tarrin. Under Polk County and
Meeker, Ms. Tarrin, a CLR, was not a § 1983 state actor.
The district court erred, however, in dismissing the amended complaint for
lack of subject matter jurisdiction under Rule 12(b)(1). For jurisdiction, the amended
complaint relies only on 28 U.S.C. § 1331, which confers “jurisdiction of all civil
actions arising under the . . . laws of the United States.” Unlike 28 U.S.C.
§ 1343(a)(3), which grants district courts jurisdiction over civil rights actions “[t]o
redress the deprivation, under color of any State law, statute, ordinance, regulation,
custom or usage, of any right, privilege or immunity secured by the Constitution of
the United States or by any Act of Congress providing for equal rights of citizens or
of all persons within the jurisdiction of the United States” (emphasis added), § 1331
does not contain an “under color of state law” requirement for subject matter
jurisdiction.
Because the amended complaint does not rely on § 1343(a)(3) for jurisdiction,
and because Mr. Gladstone’s § 1983 claims “aris[e] under the . . . laws of the United
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States,” he did not need to show state action for subject matter jurisdiction under
§ 1331. See Grapentine v. Pawtucket Credit Union, 755 F.3d 29, 32 n.1
(1st Cir. 2014) (“[A]lmost by definition, a claim under § 1983 arises under federal
law and will support federal-question jurisdiction pursuant to § 1331.” (internal
quotation marks omitted)).
But he still must show that Ms. Tarrin acted “under color of state law” as an
element of his § 1983 claim. Elliott v. Chrysler Fin., 149 F. App’x 766, 768
(10th Cir. 2005) (“Ordinarily, § 1983 plaintiffs assert federal question jurisdiction
under 28 U.S.C. § 1331, and the state action requirement is treated only as an
element of the claim.”) (cited for persuasive value under Fed. R. App. P. 32.1;
10th Cir. R. 32.1). His amended complaint does not do so. It therefore should have
been dismissed under Rule 12(b)(6) because it failed to allege that Ms. Tarrin acted
under color of state law. We affirm the district court’s dismissal on this alternative
ground, and remand for the district court to determine whether the dismissal should
be with prejudice.
4

4
In his brief, Mr. Gladstone challenges the district court’s denial of discovery
motions and the referral of non-dispositive motions to a magistrate judge for
recommendation. But these matters are immaterial given the amended complaint’s
failure to state a claim. Also, Mr. Gladstone does not challenge on appeal the district
court’s denial of his request for leave to amend his complaint, so he has waived any
such argument. See Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012) (“Arguments
not clearly made in a party’s opening brief are deemed waived.”).

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III. CONCLUSION
We affirm dismissal of the amended complaint because it fails to state a claim
under Rule 12(b)(6). We deny Mr. Gladstone’s “Request for Judicial Notice”
(Dkt. No. 24) and his “Motion for Judicial Notice of Related District Court Filings
and Sworn Therapeutic Evidence” (Dkt. No. 29). We remand for further proceedings
consistent with this order and judgment.
5

Entered for the Court

Scott M. Matheson, Jr.
Circuit Judge

5
In her response brief, Ms. Tarrin requests an award of appellate attorney fees.
We deny the request because she did not make it by separate motion. See
Fed. R. App. P. 38 (allowing the court to award damages and costs for a frivolous
appeal upon “a separately filed motion”); Abeyta v. City of Albuquerque,
664 F.3d 792, 797 (10th Cir. 2011) (“A statement inserted in a party’s brief that the
party moves for sanctions is not sufficient notice.” (internal quotation marks
omitted)).
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