Andre Brigham Young, Plaintiff-appellant, v. Jeffrey Needle, Defendant-appellee, 978 F.2d 717 (9th Cir. 1992)

MEMORANDUM^** 

Andre Young, a Washington state prisoner, appeals pro se the district court's order dismissing his 42 U.S.C. § 1983 civil rights action against Jeffrey Needle, the attorney in Young's habeas action, as frivolous under 28 U.S.C. § 1915(d). We review for an abuse of discretion. Denton v. Hernandez, 112 S. Ct. 1728, 1730 (1992). We affirm.¹ 

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). A complaint is frivolous "where it lacks an arguable basis in law or in fact." Id. A district court must afford a pro se plaintiff notice of the deficiencies of the complaint and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies of the complaint cannot be cured. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

To establish a section 1983 claim, the plaintiff must allege facts showing a deprivation of a constitutional right, privilege, or immunity by a person acting under color of state law. 42 U.S.C. § 1983; Parrat v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniel v. Williams, 474 U.S. 327 (1986). Here, Young cannot successfully state a section 1983 claim against his attorney for failing to file a timely notice of appeal or for failing to adequately represent him in his habeas action. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (a private attorney, even if appointed and paid for by the state, is not acting under color of state law when performing his function as counsel). Accordingly, because the deficiencies of his complaint could not be cured by amendment, the district court properly dismissed Young's action. See Noll, 809 F.2d at 1448.

AFFIRMED.