Unpublished Dispositionjohn Calvin Guiles, Plaintiff-appellant, v. Mahlon Nowland; Franklin County Public Defender's Office,defendants-appellees, 880 F.2d 1321 (6th Cir. 1989)

Before KRUPANSKY and RYAN, Circuit Judges, and HENRY R. WILHOIT, Jr., District Judge.^* 

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

John Calvin Guiles appeals the dismissal of his civil rights action filed under 42 U.S.C. § 1915(d). Guiles alleged that the defendant individual public defender failed to adequately investigate physical evidence and subpoena requested witnesses while representing Guiles in a criminal case.

Recently, the Supreme Court enunciated the circumstances under which a complaint filed in forma pauperis may be dismissed as frivolous pursuant to 18 U.S.C. § 1915(d) in Neitzke v. Williams, 109 S. Ct. 1827 (1989). A complaint is frivolous "where it lacks an arguable basis either in law or fact." Neitzke, 109 S. Ct. at 1831. Here, we conclude that Guiles's complaint was properly dismissed.

Generally, "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." Polk County v. Dodson, 454 U.S. 312, 325 (1981) (footnote omitted). Here, the district court correctly concluded that plaintiff alleged only conduct which is clearly not actionable under Sec. 1983. Although plaintiff claims on appeal that he intended to amend his complaint to assert a cognizable claim, plaintiff provides not basis for the claim beyond innuendo. Under these circumstances, we can only conclude that the complaint was properly dismissed as frivolous.

Therefore, the judgment of the district court is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.