Donald E. Ewing, Plaintiff-appellant, v. Dennis Auto Plaza and City of Olathe Police Department,defendant-appellee, 993 F.2d 1551 (10th Cir. 1993)

Plaintiff-appellant Donald E. Ewing appeals the district court's dismissal of his claim based on 42 U.S.C. § 1983. We grant Mr. Ewing leave to proceed in forma pauperis on appeal and affirm.

The district court dismissed Mr. Ewing's claim as one based on an indisputably meritless legal theory. See 28 U.S.C. § 1915(d); Neitzke v. Williams, 490 U.S. 319 (1989). "It is axiomatic that, in order to maintain a civil rights action, the 'conduct allegedly causing the deprivation of a federal right [must] be fairly attributable to the state.' " Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159, 1163 (10th Cir. 1986) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). We agree with the district court that Mr. Ewing failed to allege this essential element of his claim against Defendant-appellee Dennis Auto Plaza.

With respect to Defendant-appellee City of Olathe Police Department, the district court noted that "plaintiff claims the police officers arrested the wrong person" and found such a claim insufficient under § 1983. We agree. The violated right that would allow a § 1983 claim must be one that is "protected by the Constitution." Baker v. McCollan, 443 U.S. 137, 146 (1979). Even if the arresting officers failed to exercise due diligence in order to avoid arresting the wrong person, no right protected by the Constitution has been violated. Id. See also Hewitt v. City of Truth or Consequences, 758 F.2d 1375 (10th Cir. 1985); Glass v. Pfeffer, 657 F.2d 252 (10th Cir. 1981).

AFFIRMED.