Unpublished Disposition, 885 F.2d 875 (9th Cir. 1987)

MEMORANDUM^** 

John Joseph Albano, a Nevada state prisoner, appeals pro se the district court's order dismissing his 42 U.S.C. § 1983 action against two public defenders without allowing him an opportunity to amend his complaint. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.¹ 

FACTS

Albano was arrested on December 24, 1986 and charged with a parole violation. On July 14, 1987 Albano filed his 42 U.S.C. § 1983 action in district court against Clark County public defender Morgan D. Harris and deputy public defender Lee A. Gates. He alleged that these defendants violated his sixth amendment right to effective assistance of counsel due to numerous deficiencies in Gates's performance while Gates represented Albano following Albano's arrest for a parole violation. Albano also alleged that the public defender's office failed to send counsel to represent him at his preliminary hearing.

Gates and Harris filed a motion to dismiss Albano's action for failure to state a claim. Albano filed a written opposition to the motion. The district court granted the defendants' motion and dismissed Albano's complaint without providing him with notice of the complaint's deficiencies and without affording him an opportunity to amend.

STANDARD OF REVIEW

This court reviews de novo a district court's dismissal of an action for failure to state a claim. Mir v. Little Company of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988). Dismissal without leave to amend is also reviewed de novo. Whittington v. Whittington, 733 F.2d 620, 621 (9th Cir. 1984).

DISCUSSION

A court should liberally construe pro se civil rights pleadings, affording the plaintiff the benefit of doubt. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc)). A dismissal of a complaint for failure to state a claim will not be upheld by this court unless it appears beyond doubt that the petitioner can prove no set of facts that supports a claim. Conley v. Gibson, 355 U.S. 41, 48 (1957); De la Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir.), cert. denied, 441 U.S. 965 (1979).

To establish a 42 U.S.C. § 1983 claim, a plaintiff must allege that defendants (1) deprived him of a right, privilege or immunity secured by the Constitution of laws of the United States, and (2) acted under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981). A private individual is not subject to suit under section 1983 unless engaged in a conspiracy with public officials. Tower v. Glover, 467 U.S. 914, 920 (1984). Public defenders are private individuals for purposes of section 1983. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (public defenders do not act under color of state law when performing a lawyer's traditional functions).

To prove a conspiracy under section 1983, an agreement or meeting of the minds to violate the plaintiff's constitutional rights must be shown. See Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989). Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).

In his complaint, Albano made various allegations regarding Gates's deficiencies in defending him at his parole revocation hearing and failure to file a habeas petition on his behalf. Significantly, however, Albano fails to allege that Gates acted conspiratorially with anyone else to deprive him of any rights. Defendant Harris is not even mentioned; Albano refers to Judges Guy and Foley, but states only that Judge Guy continued a hearing because Judge Foley was not on the bench.

Because Albano's complaint contains only vague and conclusory allegations of conspiracy, the district court did not err in dismissing Albano's complaint for failure to state a claim. See Ivey, 673 F.2d at 268.

But Albano is a pro se litigant. Before an action brought pro se may be dismissed, the court must generally provide the plaintiff with notice of the complaint's deficiencies and an opportunity to amend. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). However, where it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment," the action may be dismissed without granting leave to amend. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (per curiam). See also Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).

Here it is absolutely clear that the deficiencies in Albano's complaint cannot be cured by amendment. His section 1983 action against the public defenders fails under Polk County v. Dodson, 454 U.S. 312, 325 (1981). The complaint cannot be salvaged unless Albano were to set forth specific allegations tending to show that the public defenders conspired with state officials to violate a right protected by the Constitution or by federal law. See Tower v. Glover, 467 U.S. 914, 920 (1984). Contradicting this possibility, however, Albano's complaint contains specific allegations which demonstrate that the only section 1983 violation he complains of resulted, not from any conspiracy, but from his lawyers' alleged ineffective representation. He only uses the word "conspiracy" twice in his lengthy complaint: at page 7, lines 23-26 he states: "This case comes down to a very simple principle 'Conspiracy, Fraud and Negligent Representation,' in which records concur to the fact!" At page 9, lines 19-23 of his complaint Albano makes another reference to "conspiracy." Here he states his conclusion that "Records demonstrate existence of a genuine, material triable issue of fact concerning conspiracy and other wrongdoing in violation of the Civil Rights Act."

When the public defenders moved to dismiss, Albano filed a 24-page opposition. This opposition contained extensive arguments and citation of authorities, but the only mention Albano made of any conspiracy was a reference to the previously quoted allegations of his complaint, and a conclusory argument that "Defendants Harris and Gates aided and abetted in a circle of conspiracy with state officials to deprive plaintiff of a fair preliminary and final revocation hearing." The express allegations of Albano's complaint, however, belie the existence of any conspiracy.

We conclude it is absolutely clear that the deficiencies of Albano's complaint could not have been cured by amendment even if the district court had provided Albano with notice of the complaint's deficiencies and granted him leave to amend.

AFFIRMED.