Unpublished Disposition, 889 F.2d 1094 (9th Cir. 1989)

MEMORANDUM^** 

* Appellant Gates filed pro se a 42 U.S.C. § 1983 action in district court seeking damages from his court-appointed counsel for several alleged improper actions. Among other things, Gates contends that his court-appointed counsel, Iverson and McDowell, misrepresented his mental capacity and the status of his petitions for writ of habeas corpus to the courts. Gates also alleges that Iverson acted as a "state appointed mole" and conspired with unnamed state officials to lure Gates to Marin General Hospital where he would be set up to be killed during an anticipated escape attempt. Determining that Gates failed to state a claim under 42 U.S.C. § 1983 and that his "conspiracy" allegation was frivolous, the district court dismissed Gates' section 1983 action. Gates now appeals pro se from the district court's judgment.

II

In order to establish a section 1983 claim, the plaintiff must show that the alleged constitutional deprivation was committed by a person acting under the color of state law. West v. Atkins, 108 S. Ct. 2250, 2255 (1988). Generally, state-appointed attorneys are not considered to be acting under the color of state law when engaged in the ordinary course of conducting the defense. Polk County v. Dodson, 454 U.S. 312, 325 (1981). Therefore, the district court properly determined that Gates failed to state a claim under 42 U.S.C. § 1983 because Iverson and McDowell, as state-appointed attorneys performing the traditional functions of counsel, were not acting under the color of state law.

One exception to this rule that state-appointed attorneys generally do not act under the color of state law for purposes of a section 1983 action is when the plaintiff pleads and proves facts which show that the public defender conspired with state officials. Tower v. Glover, 467 U.S. 914, 923 (1984). Here, one of Gates' claims is that Iverson conspired with state officials to have him killed. Under this specific claim, Gates' state-appointed counsel may be an appropriate defendant under section 1983. Nonetheless, the district court may dismiss, as frivolous, complaints which only "recit [e] bare legal conclusions with no suggestion of supporting facts, or postulat [e] events and circumstances of a wholly fanciful kind." Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) (quotation omitted); accord 28 U.S.C. § 1915(d). Therefore, we conclude that the district court did not err in dismissing, on the grounds that it is frivolous, Gates' claim that Iverson conspired with state officials to have him killed.

AFFIRMED.