IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60841
Summary Calendar
LAVEAL MCGHEE,
Plaintiff-Appellant,
versus
SUSIE BRADSHAW; JULIE A. EPPS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:96-CV-106BrS
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September 5, 1997
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Laveal McGhee (#37135), a state prisoner, has appealed the
dismissal of his civil rights complaint as frivolous. An in
forma pauperis complaint may be dismissed as frivolous pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i) if it has no arguable basis in
law or in fact. See Booker v. Koonce, 2 F.3d 114, 115 (5th Cir.
1993) (applying former § 1915(d)); see also Denton v. Hernandez,
504 U.S. 25, 32-33 (1992). Section 1915(e) dismissals are
reviewed for abuse of discretion. Id.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Because the district court neither sent McGhee a
questionnaire nor held a Spears hearing, McGhee did not have an
opportunity to clarify his allegations in the district court.
Thus, this court must determine whether McGhee’s allegations, if
developed further, “might have presented a nonfrivolous section
1983 claim.” Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994); see
Denton, 504 U.S. at 32.
In order to state an arguable claim under § 1983, a
plaintiff must allege a violation of rights secured by the
Constitution or laws of the United States. Leffall v. Dallas
Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994). McGhee’s
claims implicate his constitutional right of access to the
courts. See Bounds v. Smith, 430 U.S. 817, 821 (1977).
McGhee contends that the district court erred in dismissing
his action against Epps on the ground that, as a private
attorney, Epps is not a state actor for purposes of § 1983.
“[S]ection 1983 claims require that the conduct complained of be
done under color of law, and private attorneys, even
court-appointed attorneys, are not official state actors, and
generally are not subject to suit under section 1983.” Mills v.
Criminal Dist. Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988).
However, “private attorneys who have conspired with state
officials may be held liable under section 1983 even though the
state officials with whom they conspire are themselves immune
from suit . . . .” Id. McGhee contends on appeal that Epps and
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Bradshaw conspired to deprive him of the documents he needed to
pursue habeas relief. McGhee’s complaint, if liberally
construed, alleges the existence of a conspiracy between Bradshaw
and Epps to deprive McGhee of his right of access to the courts.
The allegation of a conspiracy is not “irrational or the wholly
incredible.” Moore, 976 F.2d at 270.
McGhee contends that the district court erred in dismissing
his claim against Bradshaw on grounds of absolute immunity. It
is unclear whether McGhee is alleging that Bradshaw was acting in
a non-routine matter under the command of a court decree or at
the direction of a judge. If so, she would be entitled to
absolute immunity. See Williams v. Wood, 612 F.2d 982, 984-85
(5th Cir. 1980). If Bradshaw were acting on routine matters
within the scope of her employment as a court clerk, however, she
would be entitled to qualified immunity only. Id. We cannot
determine whether the district court applied the wrong legal
standard in resolving this claim. See Moore, 976 F.2d at 270.
The district court’s dismissal of McGhee’s complaint was
premature. The order of dismissal is VACATED and the case is
REMANDED for further proceedings in accordance with this opinion.
VACATED AND REMANDED.
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