Roberson v. Fine, 865 F.2d 265 (9th Cir. 1988)

MEMORANDUM^** 

Ronald W. Roberson, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 civil rights action for failure to state a claim. Roberson contends that Anthony Fine, his defense attorney in a 1983 criminal proceeding, conspired with John Davis, the prosecutor in that proceeding, to secure a guilty plea from Roberson. We affirm.

Anthony Fine was Roberson's court-appointed attorney. Generally, an attorney, whether retained or appointed, does not act under color of state of law when representing a criminal defendant. Polk County v. Dodson, 454 U.S. 312, 325 (1981). An otherwise private individual may, however, act under color of state law for section 1983 purposes by engaging in a conspiracy with state officials to deprive another of federal rights. Tower v. Glover, 467 U.S. 914, 923 (1983). Roberson's complaint does not allege a conspiracy and cannot be amended to do so. The procedural irregularities that Roberson attributes to the judge at the sentencing hearing cannot be attributed to Fine by merely declaring a conspiracy to exist between the defense counsel and the judge. Roberson does not assert any connection between the alleged irregularities and his decision to plead guilty. He does not allege that either Fine or Davis coerced him to plead guilty nor does he deny his guilt.

Because it appears beyond doubt that Roberson will not be able to show that Fine conspired with any state official to violate Roberson's rights, the district court did not err in dismissing the action as to Fine. See Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980).

The dismissal of prosecutor Davis was likewise proper. Davis was entitled to absolute immunity from section 1983 civil damage liability for acts taken within the scope of his authority and in a quasi-judicial capacity. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1983) (en banc). Participation in a plea bargaining agreement is within the scope of Davis' prosecutorial authority. Briley v. California, 564 F.2d 849, 858 (9th Cir. 1977).

The judgment is affirmed.