Timothy R. Kendrix, Plaintiff-appellant, v. Thomas R. Lietz, Court Appointed Attorney, Defendant-appellee, 21 F.3d 1121 (10th Cir. 1994)

ORDER AND JUDGMENT^* 

Petitioner is seeking leave to proceed on appeal in forma pauperis pursuant to Rule 24(a) of the Federal Rules of Appellate Procedure. We grant Petitioner's motion in order to reach the merits of his claim on appeal. In October 1993, Petitioner filed a civil rights complaint under 42 U.S.C.1983 in the United States District Court for the District of Kansas alleging that his court appointed defense attorney was incompetent and racially discriminated against him. The court issued a memorandum and order correctly dismissing his claim because he could not meet the requirements for maintaining a 1983 claim. "To state a claim under 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48. Court appointed defense attorneys serve the interest of their client and do not act "under color of state law" within the meaning of 1983. Polk County v. Dodson, 454 U.S. 312.

Petitioner then filed a motion with the district court for leave to appeal in forma pauperis. Under Rule 24, a district court may certify that an "appeal is not taken in good faith" or that "the party is otherwise not entitled to proceed." The court denied Petitioner's motion, finding the appeal legally frivolous and not made in good faith. Upon a motion for reconsideration, the court again denied Petitioner's motion.

We agree with the district court's analysis finding that Petitioner has no legal basis for an appeal and therefore dismiss his claim.

IT IS SO ORDERED.