Kent Arland Mcneil, Plaintiff-appellant, v. Robert W. Brott, Esq., Defendant-appellee, 891 F.2d 291 (6th Cir. 1989)

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).

Kent Arland McNeil appeals the dismissal of his civil rights action filed under 42 U.S.C. § 1983 as frivolous pursuant to 28 U.S.C. § 1915(d). McNeil alleged that the defendant private attorney failed to advise him of his right to appeal a 1978 conviction. The district court concluded that plaintiff failed to allege state action and dismissed the complaint sua sponte as frivolous. Upon consideration we conclude that the dismissal was proper.

Generally, a complaint may be dismissed as frivolous pursuant to 28 U.S.C. § 1915(d) "where it lacks an arguable basis either in law or fact." Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). Clearly, an attorney does not act "under color of state law" when representing a client on a criminal charge. Polk County v. Dodson, 454 U.S. 312, 318-19 (1981). Plaintiff's contention that the attorney conspired with the prosecutor is merely a conclusion which must be rejected. See Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). Further, this contention was not raised in the district court and will not be considered in the first instance on appeal. See Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir.), cert. denied, 109 S. Ct. 196 (1988).

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