Unpublished Disposition, 889 F.2d 1094 (9th Cir. 1989)

MEMORANDUM^** 

Joseph David Hink, an Arizona state prisoner, appeals pro se and in forma pauperis the district court's sua sponte dismissal with prejudice of his 42 U.S.C. § 1983 suit for failure to state a claim for which relief could be granted. The district court ruled that Hink's civil rights action failed to allege sufficient facts to demonstrate that the defendants acted under color of state law. Hink also appeals the district court's refusal to appoint counsel to represent him. We affirm the refusal to appoint counsel, but reverse the district court's order dismissing with prejudice for failure to state a claim.

* Appellant argues that the district court should have appointed counsel to represent him. We review the district court's denial to appoint counsel for an abuse of discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). District courts should designate counsel only in exceptional circumstances after evaluating both "the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Although an attorney could have helped Hink, there is no evidence that the district court abused its discretion by refusing to appoint counsel.

II

Hink alleges that Extradition Corporation of America and its employee, Dennis Harkness, violated the fifth, eighth, thirteenth and fourteenth amendments of the United States Constitution during his extradition. He claims that appellees handcuffed and shackled him in an overcrowded, freezing, foul-smelling, and inadequately ventilated vehicle plagued with garbage and exhaust fumes. He further maintains that the four day trip caused severe physical pain and mental anguish.

The district court initially dismissed Hink's case without prejudice because he failed to allege that defendants acted under color of state law. Hink refiled his complaint in this case, but again failed to allege state action. The district court, on its own motion, allowed Hink to amend his complaint. It warned him that his suit would be dismissed for failure to state a claim if he did not allege facts which could establish state action. Hink's amended complaint added bare allegations of "under color of state law." The district court found that Extradition Corporation and its employee were private parties and dismissed with prejudice.

Pro se complaints must be liberally construed and held to less stringent standards than pleadings by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976). However, district judges do not have to serve as advocates for pro se litigants. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). They only have to draft a few sentences explaining the deficiencies of a complaint. Id. at 1449. " [I]n a 42 U.S.C. § 1983 action where the pro se plaintiff fail [s] to allege that the defendant acted under color of state law, the court need point out only that the complaint fails to state a claim because it fails to allege facts sufficient to show that the defendant acted under color of state law." Id.

The district court in this case pointed out that Hink's allegations failed to show that Extradition Corporation of America acted under color of state law. In addition, it further explained that a private defendant acts under color of state law if "he is a willful participant in joint action with the state or its agents." Dennis v. Sparks, 449 U.S. 24, 27 (1980). The district court's instruction amply satisfied the Noll requirement.

After the district court's order, the Supreme Court in West v. Atkins, 108 S. Ct. 2250 (1988), found state action in a 42 U.S.C. § 1983 case where the state had delegated its authority to a private actor. In West, the state of North Carolina contracted with a private physician to provide health care services to state prison inmates. The court explained that states cannot relieve themselves of their constitutional obligation to provide adequate medical treatment to those in its custody by contracting out to private parties. Id. at 2259.

Hink's allegations suggest that state authority was similarly delegated to Extradition Corporation of America, a private party. Because we find that Hink's amended complaint sufficiently alleges the "under color of state law" requirement under West, we reverse and remand the district court's order dismissing Hink's complaint for failure to state a claim.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.