Unpublished Disposition, 936 F.2d 577 (9th Cir. 1991)

MEMORANDUM^** 

David Raymond Durham, an Oregon state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 complaint. Durham challenges several of Oregon's procedural requirements and contends that his state habeas corpus petition was inadequately litigated by the state public defender's office and the state attorney general's office, and that several public officials conspired to handle Durham's case improperly. Durham also asserts a pendant state claim under Oregon's Racketeer Influenced and Corrupt Organizations Act, Or.Rev.Stat. Secs. 166.715 et seq. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

A dismissal for failure to state a claim pursuant to Fed. R. Civ. P. 12(b) (6) is reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990).

To state a section 1983 claim, a plaintiff must allege facts which show a deprivation of a right, privilege, or immunity secured under the United States Constitution by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).

* State Procedural Challenge

In general, Durham challenges the processes by which appeals, habeas corpus petitions, post-conviction petitions, and petitions for review by the Oregon Supreme Court are handled and litigated by the defendants. Because "state created 'procedural requirements even if mandatory, do not raise a constitutionally cognizable liberty interest,' " Bonner v. Lewis, 857 F.2d 559, 564 (9th Cir. 1988) (quoting Toussaint v. McCarthy, 810 F.2d 1080, 1094 (9th Cir. 1986), the district court properly dismissed Durham's challenge to Oregon's procedural requirements.

II

Claims Against Individual Defendants

Durham's claims against Babcock are brought in Babcock's capacity as the director of the state public defender's office. Durham contends that the state public defender's office inadequately represented him and inadequately litigated his case before the Oregon courts. Durham contends that the state public defender's office "will only raise one or two issues for appeal, will not reserve-raise all issues for appeal ... will not go over briefs, petitions or meet with their clients ... [and that there is] a lack of adequate, independent investigation and analysis of issues into these Appeals Briefs and Petitions." Durham also contends that briefs and petitions were filed or dismissed without his knowledge or consent and that there has been a lack of competence and diligence in his representation.

" [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). Here, Durham alleges deficiencies in his defense counsel's performance pursuant to policies of the state public defender's office. Because Durham's allegations involve Babcock's actions while representing Durham in a criminal proceeding, the district court properly dismissed that part of his claim against Babcock.

Durham also contends that Babcock participated in a conspiracy with other state officials to determine how cases like his "are to be handled or litigated, doing so without any legal binding authority."

" [A]n otherwise private person acts under color of state law when engaged in a conspiracy with state officials to deprive another of federal rights." Tower v. Glover, 467 U.S. 914, 920 (1984). To prove 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 participation in civil rights violations are insufficient to withstand a motion to dismiss. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

In his complaint, Durham simply states that Babcock has "engaged in a common understanding or meeting of the minds" with other state officials to improperly litigate habeas corpus petitions. Because Durham fails to allege any facts showing an agreement to deprive him of his constitutional rights, the district court properly dismissed his complaint against Babcock for conspiracy.

Durham contends that Judge Barber conspired with other state officials to litigate habeas corpus petitions improperly, and that he "is not following the rules of the Court or Statute dealing with habeas corpus petitions."

Judges have absolute immunity from suit for their judicial actions taken within the subject matter jurisdiction of the court. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). Here, because Durham does not allege that Judge Barber either acted "in the clear absence of all jurisdiction," or "perform [ed] an act that [was] not judicial in nature," id. at 1075, immunity applies.

Durham contends that Frohnmayer, in his capacity as state attorney general and by establishing certain policies within his office, conspired with other state officials to litigate habeas corpus petitions improperly.

State officials acting within their official capacity to establish policy are not subject to suit under section 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71 (1989). There is no indication that Frohnmayer was not acting within his official capacity in establishing policy for the attorney general's office. Furthermore, as previously noted, Durham's vague allegations of conspiracy do not save his complaint against Frohnmayer from dismissal. See Ivey, 673 F.2d at 268.

Durham contends that Van Valkenburg, in his capacity as assistant attorney general, conspired with other state officials to "undermine" Durham's mandamus and habeas corpus petitions and that he purposefully delayed various judicial proceedings.

Again, Durham's vague allegations of conspiracy do not save his complaint against Van Valkenburg from dismissal. See id. Furthermore, Van Valkenburg is absolutely immune from liability for his prosecutorial activities. See Imbler v. Pactman, 424 U.S. 409, 424 (1976); Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)

E. Oregon public defender committee defendants

Durham contends that the members of the public defender committee have failed to oversee properly the operation of the public defender's office. Durham thus seeks to assess liability for perceived deficiencies in the public defenders office under the theory of respondeat superior. Because the theory of respondeat superior does not apply to section 1983 actions, Durham's complaint against the public defender committee was also properly dismissed. See Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978).

III

The Pendant State Claim

In addition to his federal civil rights claim, Durham also asserts a pendant state claim seeking compensatory damages from Babcock and Frohnmayer pursuant to Or.Rev.Stat. Secs. 166.715 et seq. Because Durham's federal claim was dismissed before trial, his pendant state claim also was properly dismissed. See Jones v. Community Redevelopment Agency, 733 F.2d 646, 651 (9th Cir. 1984).

AFFIRMED.