Unpublished Disposition, 893 F.2d 1338 (9th Cir. 1987)

MEMORANDUM^** 

Loyd G. Dickinson, a California state prisoner, appeals pro se and in forma pauperis the district court's dismissal as frivolous under 28 U.S.C. § 1915(d) of his 42 U.S.C. §§ 1983, 1985(2), and 1986 civil rights claim against his former attorney, assistant federal public defender N. Patrick Flanagan, The district court's dismissal is affirmed.

Standard of Review

This court reviews de novo a district court's dismissal of a complaint as frivolous under section 1915(d). Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987). A pro se appellant's complaint must be interpreted liberally. Neitzke v. Williams, 109 S. Ct. 1827 (1989).

Analysis

A complaint filed in forma pauperis may be dismissed as frivolous under section 1915(d) if it lacks arguable substance in law and fact, is founded on fanciful allegations, or is subject to a defense which is complete and obvious from the face of the pleadings or the court's own records. 28 U.S.C. § 1915(d); Nietzke, 109 S. Ct. 1831.

To state a claim under section 1985(2), a plaintiff must show either (1) the existence of conspiracy to use threat, force, or intimidation of a witness or party to obstruct justice in federal court, Dooley v. Reiss, 736 F.2d 1392, 1395-96 (9th Cir.), cert. denied, 469 U.S. 1038 (1984), or (2) class-based invidious discrimination. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Dickinson's conclusionary allegations that his attorney conspired with state officials to violate his civil and constitutional rights do not suffice. Because Dickinson recited no facts to support his legal conclusions, the district court correctly dismissed his section 1985(2) claim as frivolous under section 1915(d). See Jackson v. Arizona, 885 F.2d 639 (9th Cir. 1985).

Without a valid 1985 claim, Dickinson's section 1986 claim fails by definition. See Trerice v. Pedersen, 769 F.2d 1398, 1403 (9th Cir. 1985). The district court's dismissal of the section 1986 claim as frivolous was therefore correct.

To state a claim under section 1983, a plaintiff must show that a person acting under color of state law, custom or practice has deprived him of a federally protected right. Karim-Panali v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988). Generally, a federal public defender does not act under color of state law. Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); see also Polk v. Dodson, 454 U.S. 312, 320-22 (1981). An otherwise private person, however, acts under color of state law when engaged in a conspiracy with state officials to deprive another of federal rights. Tower v. Glover, 467 U.S. 914, 920 (1984). To present an adequate conspiracy claim, there must be allegations of a common understanding between the conspiring parties. See Calderan v. County of Kauai, 866 F.2d 1175, 1181 (9th Cir.), cert. denied, 110 S. Ct. 69 (1989).

Dickinson failed to allege any common understanding between Flanagan and the various state officials. Moreover, he provided no facts to support his bare legal conclusions. The district court's dismissal of his section 1983 claim as frivolous under section 1915(d) is affirmed.

The magistrate's recommendation of July 28, 1987 designated the elements of Dickinson's complaint which were insufficient. Dickinson's amended complaint failed to cure these deficiencies. The court then gave Dickinson another opportunity to cure the defects in his complaint, and he again failed to do so. The district court fulfilled its obligation to allow amendment after providing a list of the deficiencies. See Karim-Panali, 839 F.2d at 626.

The district court's dismissal is

AFFIRMED.