Unpublished Dispositionvictor Medina, Plaintiff-appellant, v. John Lydick, Defendant-appellee, 909 F.2d 1483 (6th Cir. 1990)

ORDER

Victor Medina, a Michigan state prisoner, requests the appointment of counsel on appeal from the dismissal of his civil rights action filed under 42 U.S.C. § 1983. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and appellant's briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Medina sued the defendant, an attorney employed by the Michigan Appellate Defender Office, for monetary damages. He alleged that defendant had failed to raise certain issues on direct appeal from Medina's 1978 conviction of felony murder. The district court dismissed the case as frivolous pursuant to 28 U.S.C. § 1915(d), concluding that the defendant was not subject to suit under Sec. 1983 because he was not acting under color of state law. See Polk County v. Dodson, 454 U.S. 312, 325 (1981).

Upon consideration, we conclude that the district court correctly dismissed the case. Even though the attorney was employed by the state, his function involved only the representation of a client as in Polk County.

The judgment of the district court is affirmed for the reasons stated by the district court. Rule 9(b) (5), Rules of the Sixth Circuit. The request for counsel is denied.