IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51136
Summary Calendar
ANTONIO SEPEDA,
Plaintiff-Appellant,
versus
JAMES H. DENSFORD, Attorney at Law,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-99-CV-149
--------------------
June 7, 2000
Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
Antonio Sepeda (#469585), a state prisoner, filed a civil
rights complaint in the district court, alleging that James
Densford, an attorney, had conspired with Sepeda's ex-wife, to
deprive him of personal property without due process. Mr.
Densford allegedly represented Ms. Sepeda in divorce proceedings
while pursuing criminal assault charges against Sepeda in his
capacity as an assistant county attorney. Sepeda contends that
Mr. Densford helped his ex-wife to prepare a false affidavit
*
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this opinion should not be published and is not precedent except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.
No. 99-51136
-2-
stating that she did not know Sepeda's whereabouts, when, in
fact, both knew that Sepeda was incarcerated.
The district court dismissed the complaint as frivolous,
holding that Mr. Densford was not a "state actor" for purposes of
42 U.S.C. § 1983. Sepeda gave timely notice of his appeal.
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. Siglar v. Hightower, 112 F.3d 191, 193
(5th Cir. 1997); see Denton v. Hernandez, 504 U.S. 25, 32-33
(1992). Section 1915(e)(2)(B)(i) dismissals are reviewed for
abuse of discretion. Siglar, 112 F.3d at 193.
“[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).
Sepeda argues that Mr. Densford acted in his official
capacity as an assistant county attorney. Sepeda also contends
that the district court acted prematurely in dismissing his
complaint as frivolous. The district court speculated that Mr.
Densford "apparently doubled as a family law practitioner."
Although this fact was not finally determined by the district
court, further development of the facts is not required because
the district court concluded correctly that Mr. Densford, in
representing Ms. Sepeda in the civil divorce proceedings, had not
acted as a state actor for purposes of § 1983.
No. 99-51136
-3-
"[A] person does not act under color of state law solely by
virtue of [his] relationship to the state, but depending on [his]
function–-i.e., the nature of [his] challenged conduct." Doe v.
Rains County Indep. Sch. Dist., 66 F.3d 1402, 1411 (5th Cir.
1995).
Regardless of one's affiliation with the state, a
person acts under color of state law only when
exercising power possessed by virtue of state law and
made possible only because the wrongdoer is clothed
with the authority of state law. Hence, to determine
which state-law duties are such that a breach is under
color of state law [], we focus on the nature of the
duty, not the status of the person.
Id. at 1411-12 (internal quotation marks and citations omitted);
see Polk County v. Dodson, 454 U.S. 312, 317-24 (1981) (holding
that public defender is not a "state actor," reasoning that
public defender's role is traditionally filled by retained
counsel, for which state office and authority are not needed, and
rejecting argument that "employment relationship" alone
establishes state-actor element of § 1983 claim).
"Lawyers who participate in the trial of private state court
litigation are not state functionaries acting under color of
state law within the meaning of the Federal Civil Rights Acts;
likewise, they are not liable under said Acts." Hill v.
McClellen, 490 F.2d 859, 860 (5th Cir. 1974) (holding that
attorney representing wife in divorce proceedings against
prisoner was not a state actor), overruled on other grounds,
Sparks v. Duval County Ranch Co., Inc., 604 F.2d 976, 978 & n.2
(5th Cir. 1979). Regardless whether Mr. Densford was employed as
an assistant county attorney and, in that capacity, prosecuted
the assault charge, Mr. Densford did not act under color of state
No. 99-51136
-4-
law in representing Ms. Sepeda in her divorce proceedings because
that role is traditionally filled by private retained counsel.
See Polk County v. Dodson, 454 U.S. at 317-19; Mills, 837 F.2d at
679; Hill, 490 F.2d at 860.
The district court did not abuse its discretion in
dismissing the complaint as frivolous. The judgment is
AFFIRMED.