Elwood Bishop v. Don E. Richardson

852 F.2d 565, 1988 U.S. App. LEXIS 9835, 1988 WL 76277

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 21, 1988
• Docket: 88-6616
• Status: Unpublished

Opinion

852 F.2d 565
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Elwood BISHOP, Plaintiff-Appellant,
v.
Don E. RICHARDSON, Defendant-Appellee.

No. 88-6616.

United States Court of Appeals, Fourth Circuit.

Submitted: May 27, 1988.
Decided: July 21, 1988.

Elwood Bishop, appellant pro se.

Before DONALD RUSSELL, SPROUSE and CHAPMAN, Circuit Judges.

PER CURIAM:

Elwood Bishop, a Maryland inmate, filed this suit pursuant to 42 U.S.C. Sec. 1983 against the attorney who represented him at his criminal trial in state court. The district court dismissed the action as frivolous pursuant to 28 U.S.C. Sec. 1915(d) because of Bishop's failure to allege that the attorney had acted "under color of state law" in the deprivation of Bishop's constitutional rights. We affirm.

Bishop's Sec. 1983 complaint alleged that the attorney failed to object to the use at trial of evidence which the attorney knew had been obtained in violation of Bishop's fourth amendment rights. However, an attorney representing a criminal defendant does not act under state law with respect to matters arising out of the representation, at least in the absence of some conspiracy with state actors. Polk County v. Dodson, 454 U.S. 312 (1981); Tower v. Glover, 467 U.S. 914, 920 (1984). Although Bishop mentioned a "conspiracy" in his complaint, the "naked assertion of a conspiracy ... without supporting operative facts" establishing an agreement between the defense attorney and the prosecutor or some other state actor, and a common plan to put the agreement into effect, is insufficient to implicate Sec. 1983 liability. Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir.1984); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir.1984). Therefore, we affirm the district court's dismissal of Bishop's complaint. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

AFFIRMED.