Charlie Burks, Plaintiff-appellant, v. Brett B. Stein, Defendant-appellee, 47 F.3d 1167 (6th Cir. 1995)

Before: MERRITT, Chief Judge; BATCHELDER, Circuit Judge, and BERTELSMAN, Chief District Judge.^* 

ORDER

Charlie Burks appeals a district court order dismissing as frivolous his civil rights suit filed pursuant to 42 U.S.C. § 1983. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Seeking monetary relief, Burks sued Brett Stein, a private attorney appointed to represent Burks in state court proceedings resulting in Burks's conviction for armed robbery. Burks alleged that Stein did not provide him with effective representation in those proceedings nor did he file an appeal from Burks's conviction or sentence. The district court concluded that Burks's action was not properly brought pursuant to 42 U.S.C. § 1983, because he had failed to demonstrate any state action on the part of Stein. Consequently, the court dismissed his complaint as frivolous. Burks has filed a timely appeal.

Upon review, we conclude that the district court did not abuse its discretion in dismissing Burks's complaint as frivolous. See Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992). Burks cannot maintain his Sec. 1983 action as he has not shown that the defendant's conduct is fairly attributable to the state. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).

Accordingly, we affirm the judgment for the reasons set forth in the district court's order filed on March 8, 1994. Rule 9(b) (3), Rules of the Sixth Circuit.