John Michael Irk, Plaintiff-appellant, v. Morgan D. Harris, et al., Defendants-appellees, 972 F.2d 1339 (9th Cir. 1992)

MEMORANDUM^** 

John Michael Irk appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action. The district court dismissed Irk's action under Fed. R. Civ. P. 12(b) (6) for failure to state a claim upon which relief could be granted. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937 (1990), and we affirm.

Irk contends that he was deprived of due process and equal protection because the public defenders who represented him prior to trial and on appeal provided ineffective assistance and conspired with the prosecutor and judge to secure his conviction.¹  These contentions lack merit.

A public defender "performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding" does not act under color of a state law. Polk County v. Dodson, 454 U.S. 312, 325 (1981). Nevertheless, a public defender who conspires with state officials does act under color of state law and may be liable under section 1983. Tower v. Glover, 467 U.S. 914, 923 (1984). Although pro se civil rights complaints are to be construed liberally, " [v]ague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

Here, Irk makes only vague allegations that public defenders conspired to secure his conviction. These allegations are insufficient to state a claim upon which relief could be granted. Accordingly, the district court properly dismissed Irk's action. See id.

AFFIRMED.