Unpublished Disposition, 924 F.2d 1062 (9th Cir. 1991)

MEMORANDUM^** 

INTRODUCTION

John Hall appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action against his former attorney, Richard Turner. Mr. Turner represented Mr. Hall, an incarcerated prisoner, in his underlying criminal trial. Mr. Hall contends, in his second amended complaint, that Mr. Turner conspired with various state officials to suppress Mr. Hall's claimed evidence of public corruption and to deprive him of his constitutional rights to due process and a speedy trial.¹ 

The district court dismissed Mr. Hall's action without prejudice finding it to be frivolous. We reverse.

DISCUSSION

A pro se, in forma pauperis section 1983 action may not be dismissed if the complaint has any "arguable substance in law and fact." Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). At this state, we assume the truth of the allegations contained in the complaint. Id. at 1228.

The district court dismissed the complaint as frivolous on the basis of our prior precedent holding that an attorney, whether retained or appointed, does not act under color of state law, within the meaning of section 1983. See, e.g., Franklin v. Oregon, 662 F.2d 1337, 1345 (9th Cir. 1981); Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir. 1978); Briley v. California, 564 F.2d 849, 855 (9th Cir. 1977); Szijarto v. Legeman, 466 F.2d 864 (9th Cir. 1972).² 

Intervening Supreme Court decisions make the district court's reliance on these cases inappropriate. In Tower v. Glover, 467 U.S. 914, 923 (1984), the Supreme Court held that public defenders are liable under section 1983 "for intentional misconduct, 'under color of state law,' by virtue of alleged conspiratorial action with state officials that deprives their clients of federal rights."

The Supreme Court has also held that private persons act "under color of" state law when they are "willful participant [s] in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting 'under color' of law for purposes of Sec. 1983 actions." Dennis v. Sparks, 449 U.S. 24, 27-28 (1980).

In light of the foregoing, the district court's conclusion that Mr. Hall's action was frivolous because defense attorneys "do [ ] not act under color of state law for purposes of Sec. 1983" was erroneous. Mr. Hall alleges that Mr. Turner conspired with state authorities to deprive him of his federal constitutional rights to due process and a speedy trial. He charges that Mr. Turner: (1) " [sat] idly by," rather than protect Mr. Hall's rights; (2) failed to bring evidence of official misconduct to light; and (3) covered up illegal actions taken against Mr. Hall by state authorities.

We, of course, express no opinion concerning the truth or falsity of these accusations. As noted earlier, for purposes of this motion, we must accept Mr. Hall's allegations as true. Franklin, 745 F.2d at 1228.

In accordance with our obligation to construe allegations in pro se complaints liberally, we hold that Mr. Hall's complaint alleges that his attorney engaged in "intentional misconduct ... by virtue of alleged conspiratorial action with state officials," and/or was a "willful participant in joint action with the State or its agents" that violated Mr. Hall's constitutional rights. At this early stage of the litigation, we cannot say that these allegations have absolutely no "arguable substance in law and fact." Franklin, 745 F.2d at 1227. Mr. Hall must be given at least a preliminary opportunity to present his case. We therefore reverse and remand for further proceedings.

REVERSED and REMANDED.