Samora v. Kerr , 259 F. App'x 126 ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 19, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
MICHAEL ANTHONY SAMORA,
Plaintiff - Appellant, No. 07-2110
v. (D. New Mexico)
LIANE E. KERR, (D.C. No. CIV-07-200-JB-RHS)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
Michael Anthony Samora, a prisoner proceeding pro se, brought claims
under 28 U.S.C. § 1343(a)(3) and 42 U.S.C. §§ 1983, 1985, 1988, and 2000a-2 in
the United States District Court for the District of New Mexico against his former
criminal defense attorney, Liane Kerr. The district court granted Mr. Samora’s
motion to proceed in forma pauperis under 28 U.S.C. § 1915(b)(1) and dismissed
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
his claims sua sponte under § 1915(e)(2) and Federal Rule of Civil Procedure
12(b)(6).
On appeal Mr. Samora argues only that he was denied his Sixth
Amendment right to a speedy trial. Because he did not allege in his complaint or
argue in his brief that the violation was the product of a conspiracy, see 42 U.S.C.
§ 1985, or of discrimination or segregation, see id. at § 2000a-2, we presume that
he challenges the district court’s decision with respect to his claims against Kerr
under §§ 1343(a)(3) and 1983. See Gaines v. Stenseng, 292 F.3d 1222, 1224
(10th Cir. 2002) (“[W]e must construe a pro se appellant’s complaint liberally.”).
To state a claim under §§ 1343(a)(3) and 1983, a plaintiff must allege that a
constitutional violation “was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988). Private actors ordinarily cannot be
said to act under color of state law. In particular, “[t]he conduct of an attorney
acting in his professional capacity while representing his client does not
constitute action under color of state law . . . .” Beedle v. Wilson, 422 F.3d 1059,
1073 (10th Cir. 2005) (internal quotation marks omitted). Mr. Samora does not
allege that Kerr committed the violation under color of state law. Thus, the
district court ruled correctly.
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We AFFIRM the district court’s dismissal of Mr. Samora’s complaint. We
DENY Mr. Samora’s application to proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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