Unpublished Dispositionmatthew Adkins, Plaintiff-appellant, v. Wendell E. Jacobs, Defendant-appellee, 848 F.2d 188 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 848 F.2d 188 (6th Cir. 1988) May 23, 1988

Before KEITH and WELLFORD, Circuit Judges, and ODELL HORTON, Chief District Judge.* 

ORDER

This pro se Michigan prisoner appeals the district court's order dismissing his civil rights claim as frivolous under 28 U.S.C. § 1915(d). The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After consideration of the record and the plaintiff's appellate brief, the panel unanimously agrees that oral argument is unnecessary. Fed. R. App. P. 34(a).

In a complaint filed pursuant to 42 U.S.C. § 1983, plaintiff alleged that defendant "mislead and misrepresented" him at plaintiff's criminal proceedings. In addition to finding that venue was improper, the district court determined that defendant was entitled to absolute immunity from suit under Sec. 1983. The complaint was dismissed as frivolous.

Upon review we agree that dismissal under 28 U.S.C. § 1915(d) was proper because it appears beyond doubt that plaintiff can prove no facts that would entitle him to the relief he seeks. See Harris v. Johnson, 784 F.2d 222 (6th Cir. 1986); Malone v. Colyer, 710 F.2d 258 (6th Cir. 1983). We conclude the complaint is frivolous because plaintiff failed to allege a constitutional deprivation under color of state law. See Parratt v. Taylor, 451 U.S. 527, 535 (1981). An attorney who is appointed to represent an indigent defendant in criminal proceedings does not act under color of state law for purposes of Sec. 1983. Polk County v. Dodson, 454 U.S. 312 (1981); Mulligan v. Schlachter, 389 F.2d 21 (6th Cir. 1968).

Accordingly, the order of dismissal, filed November 18, 1987 is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.

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The Honorable Odell Horton, Chief U.S. District Judge for the Western District of Tennessee, sitting by designation