Timothy R. Kendrix v. Thomas R. Lietz, Court Appointed Attorney, 21 F.3d 1121, 10th Cir. (1994)
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Scribd Government DocsTimothy R. Kendrix v. Thomas R. Lietz, Court Appointed Attorney, 21 F.3d 1121, 10th Cir. (1994)
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Scribd Government Docs21 F.
3d 1121
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Timothy R. KENDRIX, Plaintiff-Appellant,
v.
Thomas R. LIETZ, court appointed attorney, DefendantAppellee.
No. 93-3362.
United States Court of Appeals, Tenth Circuit.
April 11, 1994.
Before LOGAN, SETH, and BARRETT, Circuit Judges.
1ORDER AND JUDGMENT*
2
Petitioner is seeking leave to proceed on appeal in forma pauperis pursuant to
Rule 24(a) of the Federal Rules of Appellate Procedure. We grant Petitioner's
motion in order to reach the merits of his claim on appeal. In October 1993,
Petitioner filed a civil rights complaint under 42 U.S.C.1983 in the United
States District Court for the District of Kansas alleging that his court appointed
defense attorney was incompetent and racially discriminated against him. The
court issued a memorandum and order correctly dismissing his claim because
he could not meet the requirements for maintaining a 1983 claim. "To state a
claim under 1983, a plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law." West
v. Atkins, 487 U.S. 42, 48. Court appointed defense attorneys serve the interest
of their client and do not act "under color of state law" within the meaning of
1983. Polk County v. Dodson, 454 U.S. 312.
Petitioner then filed a motion with the district court for leave to appeal in forma
Petitioner then filed a motion with the district court for leave to appeal in forma
pauperis. Under Rule 24, a district court may certify that an "appeal is not taken
in good faith" or that "the party is otherwise not entitled to proceed." The court
denied Petitioner's motion, finding the appeal legally frivolous and not made in
good faith. Upon a motion for reconsideration, the court again denied
Petitioner's motion.
We agree with the district court's analysis finding that Petitioner has no legal
basis for an appeal and therefore dismiss his claim.
IT IS SO ORDERED.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470
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