James C. Hogan, Plaintiff-appellant, v. Karen Brazier, Deputy State Public Defender, Defendant-appellee, 12 F.3d 1106 (9th Cir. 1993)

MEMORANDUM^** 

James C. Hogan, a former Nevada state prisoner, appeals pro se the district court's dismissal for failure to state a claim of his 42 U.S.C. § 1983 action against Karen Braizer, a deputy state public defender. He contends that the district court erred in dismissing his claims that Braizer inadequately represented him and conspired with the district attorney in a state criminal proceeding. We review de novo, Kruso v. Int'l Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937 (1990), and we affirm.

A public defender "performing a lawyer's traditional functions as counsel to a defendant in a state criminal proceeding" does not act under color of state law and cannot be liable under section 1983. Polk County v. Dodson, 454 U.S. 312, 325 (1981). Accordingly, the district court properly dismissed Hogan's claim that Braizer inadequately represented him. See id.

A public defender who conspires with state officials does act under color of state law and may be liable under section 1983. Tower v. Glover, 467 U.S. 914, 923 (1984). To prove conspiracy under section 1983, an agreement or a meeting of the minds to violate the plaintiff's constitutional rights must be shown. Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

In his complaint, Hogan merely alleged that Braizer conspired with the district attorney to prosecute him. He failed to allege any facts showing an agreement to deprive him of his constitutional rights. Accordingly, the district court properly dismissed his conspiracy claim.¹  See Tower, 467 U.S. at 923; Ivey, 673 F.2d at 288.

AFFIRMED.