Elwood Bishop, Plaintiff-appellant, v. Don E. Richardson, Defendant-appellee, 852 F.2d 565 (4th Cir. 1988)

Elwood Bishop, a Maryland inmate, filed this suit pursuant to 42 U.S.C. § 1983 against the attorney who represented him at his criminal trial in state court. The district court dismissed the action as frivolous pursuant to 28 U.S.C. § 1915(d) because of Bishop's failure to allege that the attorney had acted "under color of state law" in the deprivation of Bishop's constitutional rights. We affirm.

Bishop's Sec. 1983 complaint alleged that the attorney failed to object to the use at trial of evidence which the attorney knew had been obtained in violation of Bishop's fourth amendment rights. However, an attorney representing a criminal defendant does not act under state law with respect to matters arising out of the representation, at least in the absence of some conspiracy with state actors. Polk County v. Dodson, 454 U.S. 312 (1981); Tower v. Glover, 467 U.S. 914, 920 (1984). Although Bishop mentioned a "conspiracy" in his complaint, the "naked assertion of a conspiracy ... without supporting operative facts" establishing an agreement between the defense attorney and the prosecutor or some other state actor, and a common plan to put the agreement into effect, is insufficient to implicate Sec. 1983 liability. Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984). Therefore, we affirm the district court's dismissal of Bishop's complaint. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

AFFIRMED.