Maurice L. Fitzgerald, Plaintiff-appellant, v. Allen Beck, P.c., Defendant-appellee, 961 F.2d 216 (9th Cir. 1992)

MEMORANDUM^** 

Maurice L. Fitzgerald, a Montana state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action as frivolous. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and we affirm.

Under 28 U.S.C. § 1915(d), the district court may dismiss sua sponte a frivolous in forma pauperis complaint. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Id.

In his section 1983 complaint, Fitzgerald alleged that he received inadequate representation from his court-appointed attorney during his criminal trial and sought damages. Fitzgerald's complaint lacks an arguable basis in law because a court-appointed attorney does not act under color of state law when serving as counsel to a defendant in a criminal proceeding. See Polk County v. Dodson, 454 U.S. 312, 325 (1981). Accordingly, the district court properly dismissed Fitzgerald's complaint as frivolous. See Neitzke, 109 S. Ct. at 1831.

AFFIRMED.