Tillman v. Johnson, (10th Cir. 2007)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

MARSHALL A. TILLMAN,

Plaintiff-Appellant,

No. 07-3103

v.

District of Kansas

JOSEPH D. JOHNSON,

Defendant-Appellee.

(D.C. No. 06-CV-3285-SAC)

ORDER AND JUDGMENT
name="txt*">(*)

Before BRISCOE,
name="9">EBEL, and McCONNELL,

Circuit Judges.

Marshall A. Tillman, a state prisoner proceeding pro se, appeals the

dismissal of his 42 U.S.C. 1983 complaint for failure to state a claim upon

which relief may be granted. See 28 U.S.C. 1915(e)(2)(b)(ii). We affirm.

"To state a claim under section 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 (1988); Northington v. Jackson,

973 F.2d

1518, 1523 (10th Cir. 1992). Because Mr. Tillman is proceeding pro se this

Court accords a liberal construction to his claim. See Haines v. Kerner, 404 U.S.

519, 520 (1972) (per curiam).

Mr. Tillman names his former criminal defense attorney Mr. Johnson as the

sole defendant in this action. Mr. Tillman accuses Mr. Johnson of violating his

right to a speedy trial, lying to him about various aspects of the proceedings, and

providing ineffective assistance.

The purpose of 42 U.S.C. 1983 is "to protect the people from

unconstitutional action under color of state law, 'whether that action be executive,

legislative, or judicial.'" Mitchum v. Foster, 407 U.S. 225, 242 (1972) (citing

Ex

Parte Virginia, 100 U.S. 339 , 346 (1879)). Private actors do not fall under this

umbrella. Because counsel for a defendant is acting in the interest of his

client--rather than the state--"[t]he conduct of an attorney acting in his

professional capacity while representing his client does not constitute action

under color of state law for the purposes of § 1983." Beedle v. Wilson, 422

F.3d

1059, 1073 (10th Cir. 2005) (internal quotation marks omitted). We therefore

agree with the district court that Mr. Tillman has filed a claim which fails to state

a claim upon which relief may be granted.

The judgment of the United States District Court for the District of Kansas

is AFFIRMED.

Entered for the Court,

Michael W. McConnell

Circuit Judge

FOOTNOTES

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*.After examining the briefs and appellate

record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This

case is

therefore 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.

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