Raymond P. Cabututan, Plaintiff-appellant, v. Quinn D. Hunsaker, Defendant-appellee, 989 F.2d 507 (10th Cir. 1993)

This case comes before us on the district court's 28 U.S.C. § 1915(d) dismissal of the appellant's civil rights claims under 42 U.S.C. §§ 1983, 1981, 1985(3) and 1986.¹  We affirm the district court's order as to the appellant's Section 1981, 1985(3) and 1986 claims but remand for further proceedings with respect to the appellant's Section 1983 claim.

On October 26, 1989, the appellant, Raymond P. Cabututan, was arrested and charged with second degree murder, aggravated assault, and threatening or using a dangerous weapon in a fight or quarrel. The appellee, Quinn D. Hunsaker, acted as a public defender and represented the appellant at trial in Box Elder County, Utah. The appellant was convicted and is currently incarcerated at the Utah Central Correctional Facility in Gunnison, Utah.

On February 12, 1992, the appellant filed this pro se civil rights action in the United States District Court for the District of Utah. He alleges that the appellee violated his constitutional rights in the course of representing him at trial.²  The district court referred the action to a magistrate pursuant to 28 U.S.C. § 636(b) (1) (B). The magistrate issued a Report and Recommendation on March 20, 1992, advising that the complaint should be dismissed under 28 U.S.C. § 1915(d). The appellant subsequently filed objections to the magistrate's report. The district court adopted the magistrate's Report and Recommendation in full on April 21, 1992.

Under 28 U.S.C. § 1915(d), a claim is to be dismissed only if it is found to be "frivolous or malicious."³  We review the dismissal of an action under 28 U.S.C. § 1915(d) for an abuse of discretion. LaFevers v. Saffle, 936 F.2d 1117, 1118 (10th Cir. 1991). "Whenever a plaintiff states an arguable claim for relief, dismissal for frivolousness under § 1915(d) is improper, even if the legal basis underlying the claim is incorrect." McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir. 1991).⁴ 

I. The Claims Under 42 U.S.C. §§ 1981, 1985(3) and 1986

The district court properly dismissed the appellant's claims under 42 U.S.C. §§ 1981, 1985(3) and 1986. The appellant failed to allege any racial or class based discriminatory animus as required by § 1981,⁵  General Building Contractors v. Pennsylvania, 458 U.S. 375, 391 (1982) (cited in Patrick v. Miller, 953 F.2d 1240, 1250 (10th Cir. 1992)), and § 1985(3), Griffen v. Breckenridge, 403 U.S. 88, 102 (1971).⁶  In addition, the appellant's § 1986 claim was correctly dismissed because there can be no liability for failing to prevent a civil rights conspiracy under § 1986 where there is no valid claim of conspiracy under § 1985(3). Taylor v. Nichols, 558 F.2d 561, 568 (10th Cir. 1977).

The magistrate recommended, and the district court ordered, the dismissal of the appellant's § 1983 claims because they concluded that " [a]n attorney acting as a public defender in a criminal case does not act under color of state law within the meaning of 42 U.S.C. § 1983." The magistrate cited Polk County v. Dodson, 454 U.S. 312 (1981) and Brown v. Chaffee, 612 F.2d 497 (10th Cir. 1979). While this statement of the law is generally correct, the district court failed to note the more recent Supreme Court case of Tower v. Glover, 467 U.S. 914, 923 (1984) in which it was held that

public defenders are not immune from liability in actions brought by a criminal defendant against state public defenders who are alleged to have conspired with state officials to deprive the § 1983 plaintiff of federal constitutional rights.

In the instant case, the district court failed to consider the appellant's claims of a conspiracy between the appellees and the prosecutor in determining whether the appellee was acting under color of state law.⁷  This court has spoken to the level of proof necessary to establish state action by asserting a conspiracy between private defendants and state officials. A court must proceed with caution when considering the pre-trial dismissal of conspiracy allegations in civil rights proceedings because of the difficult nature of the proof involved. Fisher v. Shamburg, 614 F.2d 156, 162 (10th Cir. 1980). However, "mere conclusory allegations with no supporting factual averments are insufficient; the pleadings must specifically present facts tending to show agreement and concerted action." Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983). "The standard is even stricter where the state officials involved in the conspiracy are immune from suit." Id. at 512. As we set out in Norton v. Liddel, 620 F.2d 1375, 1380 (10th Cir. 1980), the plaintiff must demonstrate "the existence of a significant nexus or entanglement between the absolutely immune state official and the private party in relation to the steps taken by each to fulfill the objects of their conspiracy."

Since the court failed to consider whether the appellee conspired with the prosecutor to deny the appellant his constitutional rights, we find that it abused its discretion in dismissing the Section 1983 claim. Accordingly, we REMAND for the district court to reconsider its dismissal of the appellant's Section 1983 claims in light of this opinion. In all other respects the district court's order is AFFIRMED.