Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1989)

MEMORANDUM

Gladney, a state prisoner, appeals pro se the district court's dismissal of his section 1983 action for failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

We review de novo a district court's dismissal for failure to state a claim. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 623 (9th Cir. 1988) (Karim-Panahi) . To state a claim under section 1983, a plaintiff must plead that (1) the defendants, acting out of color of state law, (2) deprived plaintiff of rights secured by the Constitution or federal statutes. 42 U.S.C. § 1983; Karim-Panahi, 839 F.2d at 624. Where the plaintiff appears pro se, the court must construe the pleadings liberally. Karim-Panahi, 839 F.2d at 623. Further, the court must give a pro se plaintiff an opportunity to amend his complaint, unless it is absolutely clear that the deficiencies in the complaint cannot be cured by amendment. Id.

It appears that district court relied on the findings of a magistrate in the Eastern District to determine the facts underlying Gladney's claims. But these magistrate's findings were made in relation to a prior section 1983 claim filed by Gladney. Although Gladney refers to this prior complaint in his new complaint, it is not clear that the two claims were identical or that he intended to incorporate the facts of the prior complaint by reference. Therefore, the district court erred in using these findings to determine whether Gladney had stated a claim.

We may, however, affirm the district court's decision on any ground finding support in the record. Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir. 1986). Gladney brought his section 1983 action against an attorney and director of Legal Aid for their conduct in handling a civil case for him. An attorney, even if appointed and paid for by the state, is not acting under color of state law when performing his functions as counsel. Polk County v. Dodson, 454 U.S. 312, 325 (1981). Furthermore, a private agency's actions are not state actions, even if the agency is the recipient of public funds or is heavily regulated by the state. Rendell-Baker v. Kohn, 457 U.S. 830, 840-41 (1982). Because Gladney's complaint is against employees of a private agency, he has failed to state a claim under section 1983. See Aasum v. Good Samaritan Hospital, 542 F.2d 792, 794 (9th Cir. 1976) (section 1983 does not proscribe private conduct), citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972).

Gladney also alleged in his complaint that the employees of Legal Aid conspired to deprive him of a federal right. An otherwise private person who conspires with state officials to deprive another of federal rights may be found to have acted under color of state law. Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). Gladney stated in his complaint that the employees of Legal Aid conspired with its directors. Because the directors are not state officials, this does not constitute a claim under section 1983. See id.

Finally, it is clear that these deficiencies could not be cured by an amendment, as there is no indication that the conduct which allegedly injured Gladney involved anyone other than employees and directors of a private agency. Therefore, Gladney need not be given an opportunity to amend his complaint. Karim-Panahi, 839 F.2d at 623 (pro se litigant must be given an opportunity to amend a complaint unless it is clear that the deficiencies could not be cured by amendment).

AFFIRMED.

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