Unpublished Disposition, 878 F.2d 386 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 386 (9th Cir. 1989)

Lawrence SIMMONS, Plaintiff-Appellant,v.Lawrence E. AYERS, Defendant-Appellee.

No. 87-2898.

United States Court of Appeals, Ninth Circuit.

Submitted April 27, 1989.* Decided June 27, 1989.

Before SNEED, FLETCHER and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Lawrence Simmons, a federal prisoner, appeals pro se the district court's dismissal with prejudice of his section 1983 civil rights complaint against Attorney Lawrence E. Ayers pursuant to 28 U.S.C. § 1915(d). Simmons alleges that Ayers, an attorney he contends was not properly appointed by the court to represent him, sabotaged Simmons's 28 U.S.C. § 2255 motion by failing to properly amend it to meet Simmons's specifications. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Although Simmons claims that his action falls under section 1983, it appears to be a Bivens action because Ayers was apparently appointed by a federal court to represent Simmons in a collateral attack on a federal conviction. According to Bivens v. Six Unknown Named Federal Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), Simmons is required to plead and prove that Ayers was a federal officer acting under color of federal law when he represented Simmons in the federal criminal proceeding. See Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982).

For purposes of 42 U.S.C. § 1983, a person acts under color of state law only when exercising power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Polk County v. Dodson, 454 U.S. 312, 317-318 (1981) (holding that a public defender does not act under color of state law for purposes of section 1983 when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding).

In either a section 1983 action against a state officer or a Bivens action against a federal officer, action under color of law is a jurisdictional prerequisite. Cox, 685 F.2d at 1099. If a public defender does not act under color of state law in representing an indigent defendant in a state criminal proceeding, it follows that a public defender does not act under color of federal law in performing the identical functions as a lawyer to an indigent defendant in a federal criminal proceeding. Cox, 685 F.2d at 1099; Franklin v. State of Oregon, State Welfare Division, 662 F.2d 1337, 1345 (9th Cir. 1981) aff'd in part, rev'd in part on other grounds, Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984) (retained or appointed counsel does not act under color of state law in section 1983 context).

Because Simmons is alleging that Ayers was acting in the capacity of an attorney when he allegedly sabotaged his section 2255 motion by not amending it to reflect Simmons's requests, Simmons cannot state a claim for which relief can be granted under section 1983 or in a Bivens action, as attorneys do not act under color of state or federal law when representing clients. See, e.g., Polk County, 454 U.S. at 318-19; Cox, 685 F.2d at 1099 (9th Cir. 1982); Franklin, 662 F.2d at 1345. Furthermore, this deficiency cannot be cured by amendment, as there is no indication whatsoever that the conduct which allegedly injured Simmons involved anyone other than an attorney. Therefore, Simmons need not be given an opportunity to amend his complaint. See Hernandez v. Denton, 861 F.2d 1421, 1423 (9th Cir. 1988).1 

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Simmons also appears to be contending on appeal that the district court abused its discretion by failing to give him notice that Ayers had been appointed as counsel and by refusing to allow him to proceed pro se. However, because Simmons did not raise these issues before the district court, and the factual record is unclear, we will not consider them in this appeal. See In re Southeast Co. v. Florida Partners Corp., No. 88-5606, slip op. Feb. 21, 1989 at 1265 (this court does not generally consider issues raised for the first time on appeal, even though it does have the power and discretion to do so when the issue presented is "purely one of law.")

Additionally, in his motion for reconsideration, Simmons appears to allege that Judge Price demonstrated bias towards him in previous dealings over the course of Simmons's criminal trial and post-conviction proceedings. Although Simmons does not address this issue on appeal, we note that the district court did not err in denying the motion to reconsider because Simmons does not allege prejudice resulting from an extrajudicial source; a claim of prejudice cannot be based solely on a judge's prior rulings. See 28 U.S.C. §§ 144, 455; United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986).