James Long v. Stanley E. Tolliver, Sr.

Before KENNEDY and DAVID A. NELSON, Circuit Judges, and THOMAS A. WISEMAN, Jr., Chief District Judge.*

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

James Long appeals the dismissal of his civil rights action filed under 42 U.S.C. Sec. 1983. Long alleged that the defendant, a privately retained attorney, rendered Long ineffective assistance of counsel during certain criminal proceedings. The district court concluded that the complaint is frivolous and dismissed the action sua sponte.

Generally, a complaint should not be dismissed sua sponte as frivolous unless plaintiff is afforded an opportunity to correct deficiencies or the dismissal is expressly made pursuant to 28 U.S.C. Sec. 1915(d). Harris v. Johnson, 784 F.2d 222, 224 (6th Cir.1986); Tingler v. Marshall, 716 F.2d 1109, 1111-12 (6th Cir.1983). However, a complaint may be dismissed for lack of subject matter jurisdiction where the allegations are wholly unsubstantial. Hagins v. Lavine, 415 U.S. 528, 536-37 (1974). Here, plaintiff's complaint is so meritless as to deprive the district court of jurisdiction.

Plaintiff alleged no action taken under color of state law. Clearly, a defense lawyer does not act under color of state law when undertaking to defend a client. See Polk County v. Dodson, 454 U.S. 312, 318-19 (1981). Plaintiff alleged no circumstances under which an attorney may be held to have acted under color of state law. See Dennis v. Sparks, 449 U.S. 24, 27-29 (1980). Therefore, plaintiff's complaint is completely without merit.

Accordingly, the judgment of the district court is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.