Leslie Wayne Smith, Plaintiff-appellant, v. Robert Laughlin, Canon Stevens, Robert Jacobs, Acting Intheir Individual Capacities, Defendants-appellees, 5 F.3d 547 (10th Cir. 1993)

ORDER AND JUDGMENT¹ 

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff appeals the district court's decision dismissing his civil rights action pursuant to Fed. R. Civ. P. 12(b) (6). We review such a decision de novo, accepting plaintiff's well-pleaded factual allegations as true and construing those allegations in the light most favorable to him. See Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991). Dismissal under Rule 12(b) (6) is appropriate only if it appears that plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir. 1991). We shall not express any opinion on any matter other than the district court's dismissal of plaintiff's action based on Rule 12(b) (6).

Plaintiff, proceeding pro se, asserted three causes of action under 42 U.S.C.1983, alleging, in essence, that defendants, New Mexico public defenders who represented plaintiff in a state criminal proceeding, had deprived him of federally protected rights by conspiring to obtain his conviction and to have that conviction affirmed on appeal. In order to state a valid 1983 cause of action, a plaintiff must allege the deprivation of a right guaranteed by the Constitution and the laws of the United States and that the defendants deprived him of that right under color of state law, custom, or policy. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). Because appointed counsel in a state criminal prosecution does not act under color of state law in the normal course of conducting a defense, Tower v. Glover, 467 U.S. 914, 920 (1984) (citing Polk County v. Dodson, 454 U.S. 312 (1981)), plaintiff's complaint did fail to state any valid 1983 claims.

The judgment of the United States District Court for the District of New Mexico is, therefore, AFFIRMED. Plaintiff's complaint is dismissed without prejudice. Plaintiff's request for in banc consideration of this appeal and his motion to present exhibits to this court are DENIED.

The mandate shall issue forthwith.