Alonzo Gardner v. Charles Lusby

785 F.2d 308, 1986 U.S. App. LEXIS 19864, 1986 WL 16415

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 21, 1986
• Docket: 85-1511
• Status: Unpublished

Opinion

785 F.2d 308

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
ALONZO GARDNER, Plaintiff-Appellant
v.
CHARLES LUSBY, ET AL., Defendants-Appellees.

85-1511

United States Court of Appeals, Sixth Circuit.

1/21/86

ORDER

BEFORE: CONTIE, MILBURN, Circuit Judges and CELEBREZZE, Senior Circuit Judge.

Plaintiff has appealed from the decision of the district court dismissing his civil rights complaint. The appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the appellant's brief and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure. Appellant has filed a motion for appointment of counsel.

Plaintiff alleged in his civil rights complaint filed pursuant to 42 U.S.C. Sec. 1983 that his court-appointed counsel conspired against him and kept issues from receiving full and fair review. The district court dismissed the action as frivolous pursuant to 28 U.S.C. Sec. 1915(d).

It is well settled that neither court-appointed nor retained counsel can be sued under 42 U.S.C. Sec. 1983 since their representation does not amount to state action. Polk County v. Dodson, 454 U.S. 312 (1981; Hall v. Quillen, 631 F.2d 1154 (4th Cir. 1980), cert. denied, 454 U.S. 1141 (1982); Jackson v. Salon, 614 F.2d 15 (1st Cir. 1980); Housand v. Heiman, 594 F.2d 923 (2nd Cir. 1979); Harkins v. Eldredge, 505 F.2d 802 (8th Cir. 1974); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968).

The district court dismissal of plaintiff's complaint under 28 U.S.C. Sec. 1915(d) without allowing service of it does not conflict with this Court's holding in Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983). The plaintiff's detailed complaint was subject to dismissal under 1915(d) if it appears beyond doubt that the plaintiff could prove no set of facts which would entitle him to relief. Malone v. Colyer, 710 F.2d 261 (6th Cir. 1983). Upon review of the record, it appears that the district court did not err in dismissing the plaintiff's complaint.

It is ORDERED that the motion for counsel be denied and the decision of the district court be and hereby is affirmed. Rule 9(d)(3), Rules of the Sixth Circuit.