UNITED STATES COURT OF APPEALS
Filed 4/16/96
TENTH CIRCUIT
VINCENT LEON TUBBS,
Plaintiff - Appellant, No. 95-1191
v. (D. Ct. No. 95-S-466)
(D. Colo.)
LISA WAYNE,
Defendant - Appellee.
ORDER AND JUDGMENT*
Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
This appeal is from an order of the district court dismissing pro se appellant’s civil
rights complaint brought pursuant to 42 U.S.C. § 1983 (1994) on the grounds that the
complaint is legally frivolous. Appellant appeals on the ground that the district court
*
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and conditions
of 10th Cir. R. 36.3.
erred in failing to find that appellee deprived him of his constitutional rights when she
provided ineffective assistance of counsel and allegedly utilized perjured testimony in
representations before the court in obtaining a plea agreement. We affirm.
We agree with the district court that this record is clear that the appellee, Ms.
Wayne, was the public defender representing the plaintiff in state court on his criminal
charges and was acting in the scope of her duties as a public defender. Public defenders
serve in the traditional role of an attorney for a defendant in a criminal proceedings and
are not presumed to act under the color of state law. Therefore, they cannot be sued
under 42 U.S.C. § 1983. Polk County v. Dodson, 454 U.S. 312 (1981). In this action,
appellant has sued for 2 million dollars and a combination of punitive and “injunctive”
damages. We agree with the district court that the basis for the filing of the complaint is
frivolous and that there is no basis for the appeal. Therefore, we AFFIRM the order of
the district court dismissing this complaint pursuant to 28 U.S.C. § 1915(d).
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Deanell Reece Tacha
Circuit Judge
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