Adrian Lee Chow v. Deborah A. Delambert

972 F.2d 1338, 1992 U.S. App. LEXIS 27403, 1992 WL 203878

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 20, 1992
• Docket: 91-16116
• Status: Unpublished

Opinion

972 F.2d 1338

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Adrian Lee CHOW, Petitioner-Appellant,
v.
Deborah A. DELAMBERT, Defendant-Appellee.

No. 91-16116.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 12, 1992.*
Decided Aug. 20, 1992.

Before BRUNETTI, RYMER and KLEINFELD, Circuit Judges.

MEMORANDUM**

Adrian Lee Chow, a federal prisoner, appeals pro se the district court's sua sponte dismissal of his complaint as frivolous. Chow filed a complaint pursuant to Bivens v. Six Unknown Unnamed Fed. Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and alleged that his public defender represented him negligently in his criminal proceedings. We review for an abuse of discretion, Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992), and we affirm.

A district court may dismiss a complaint as frivolous if the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under Bivens, a plaintiff must establish that a person acting under color of federal law deprived him of a constitutional right. See Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir.1982).

Chow's claim does not have an arguable basis in law or in fact because his attorney is a private party who does not act under color of federal law. See Polk County v. Dodson, 454 U.S. 312, 317-18 (1981); Cox, 685 F.2d at 1099. His claim essentially is a state legal malpractice claim.

On appeal, Chow states that he no longer wants damages but instead wants "a finding that the [public defender's] ... action abridges his constitutional rights to effective assistance of effective counsel." Chow did not raise this claim in the district court, and we decline to consider it. See United States v. Oregon, 769 F.2d 1410, 1415 (9th Cir.1985).

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3