FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                October 24, 2007
                      UNITED STATES CO URT O F APPEALS
                                                      Elisabeth A. Shumaker
                               TENTH CIRCUIT              Clerk of Court



 R AU L C . ZA PA TA ,

          Plaintiff - Appellant,
 v.
                                                       No. 06-2334
                                            (D.C. No. CIV-06-952 M CA/KBM )
 PUBLIC D EFENDERS OFFICE,
                                                        (D . N.M .)
 SU SA N PO RTER, Attorney for the
 State Public Defenders Office,

          Defendants - Appellees.

 __________________________

 R AU L C . ZA PA TA ,

      Plaintiff - Appellant,
                                                      No. 07-2031
                                                (CIV-06-1108-M CA-KBM )
 v.
                                                        (D . N.M .)
 RA UL LO PEZ,

      Defendant - Appellee.



                              OR DER AND JUDGM ENT *




      *
       After examining appellant’s briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of these appeals. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G ). The cases are 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order and judgment is not binding precedent, except under the doctrines of law of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.
Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.


      Plaintiff-Appellant Raul C. Zapata, acting pro se, commenced two civil

actions against the attorneys who represented him in a state criminal prosecution,

arguing those attorneys provided him ineffective representation. The district

court permitted Zapata to pursue these civil actions in forma pauperis, see 28

U.S.C. § 1915, but dismissed both complaints with prejudice pursuant to 28

U.S.C. § 1915(e). Having jurisdiction to consider these appeals under 28 U.S.C.

§ 1291, we AFFIRM . 1

I.    Background

      In his first complaint, which is the subject of appeal No. 06-2334, Zapata

sued the New M exico Public Defenders Office (“Office”) and an attorney

employed by that office, Susan Porter. Zapata alleged that the Office assigned

Porter to represent him in the state criminal prosecution. After the district court

dismissed Zapata’s federal civil complaint with prejudice, he tried unsuccessfully

to amend his complaint to add “John Bigelow Public Defender of AID New

M exico.” According to Zapata, Bigelow was Porter’s supervisor.

      In his second federal civil complaint, which is the subject of appeal

No. 07-2031, Zapata sued Raul Lopez, a private attorney who, pursuant to a




      1
      W e GRANT Zapata’s motions to pursue both of these appeals in forma
pauperis. See 28 U.S.C. § 1915(a), (b).

                                          2
contract with the public defenders office, represented Zapata in the state criminal

prosecution after Porter withdrew. Zapata later, on his own, began adding John

Bigelow, the “Chief Public D efender,” to the caption in the pleadings he filed in

this case.

      Zapata asserted claims against these defendants under 42 U.S.C. § 1983,

alleging they deprived him of his Sixth Amendment and due process rights to

effective representation in a criminal proceeding. As relief, Zapata sought money

damages and Lopez’s disbarment. 2 The district court dismissed both complaints

with prejudice, ruling that Zapata could not, as a matter of law, obtain the relief

he seeks against these defendants under § 1983, and that Zapata could not amend

his complaints to state a claim upon which relief could be granted. Zapata

appeals those decisions.

II.   Standard of review

      W e review de novo the district court’s decisions to dismiss both of Zapata’s

complaints pursuant to 28 U.S.C. § 1915(e)(2). 3 See Trujillo v. W illiams, 465


      2
        Because Zapata specifically invoked § 1983, and because he sought only
civil remedies, we do not interpret Zapata’s complaints to seek habeas relief from
any state-court custody or conviction.
      3
      In a case where the court has permitted a plaintiff to proceed without the
prepayment of fees, 28 U.S.C. § 1915(e)(2) provides that,

      [n]otwithstanding any filing fee, or any portion thereof, that may have
      been paid, the court shall dismiss the case at any time if the court
      determines that—
                                                                      (continued...)

                                          

, 1214, 1215 (10th Cir. 2006). The district court may sua sponte

dismiss an action under § 1915(e)(2) “for failure to state a claim if the

allegations, taken as true, show the plaintiff is not entitled to relief.” Jones v.

Bock, 

, 920 (2007). Before dismissing, however, it must be clear

that “allowing [the plaintiff] an opportunity to amend his complaint would be

futile.” 

; see also Gaines v. Stenseng, 

,

1225 (10th Cir. 2002). Further, this court will liberally construe a pro se

plaintiff’s pleadings. See 

; see also H aines v. Kerner,

, 520 (1972).

III.   M erits

       Zapata sued these defendants under 42 U.S.C. § 1983, alleging they

deprived him of his Sixth Amendment and due process rights to effective

representation in a criminal proceeding. Section 1983 “provides that ‘every




       3
           (...continued)

                (A) the allegation of poverty is untrue; or

                (B) the action or appeal—

                       (i) is frivolous or malicious;

                       (ii) fails to state a claim on w hich relief may
                       be granted; or

                       (iii) seeks monetary relief against a defendant
                       who is immune from such relief.

                                              4
person’ who acts under color of state law to deprive another of constitutional

rights ‘shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress.’” Lawrence v. Reed, 

, 1229

(10th Cir. 2005) (quoting 42 U.S.C. § 1983) (alterations omitted). To state a

cause of action under § 1983, therefore, Zapata must allege two things: “(1) The

plaintiff was deprived of a right secured by the Constitution or laws of the United

States, and (2) defendant deprived [him] of this right acting under color of state

law.” M aestas v. Lujan, 

, 1012 n.1 (10th Cir. 2003).

      Zapata’s claims against his defense attorneys fail to state a § 1983 claim

because a public defender representing an indigent defendant in a state criminal

proceeding does not act under color of state law. See Polk County v. Dodson,

, 314 (1981); see also Harris v. Champion, 

, 909 (10th

Cir. 1995). Although a public defender may be paid with state funds, she acts

independent of the state’s authority, and instead exercises her independent

judgment in representing a criminal defendant. See 

,

321-22, 324-25. Zapata, therefore, cannot recover under § 1983 against

Defendant-Appellee Susan Porter, who was the public defender designated to

defend Zapata. The same is true of Defendant-Appellee Raul Lopez, who

represented Zapata under a contract with the public defenders office. Cf.

Lemm ons v. Law Firm of M orris & M orris, 

, 266 (10th Cir. 1994)

(holding private attorney did not act under color of state law for § 1983

                                            5
purposes); Barnard v. Young, 

, 1188-89 (10th Cir. 1983) (same);

Smith v. Freestone, No. 99-4005, 1999 W L 510524, at *1 (10th Cir. July 20,

1999) (unpublished) (relying on Dodson and holding that plaintiff could not assert

§ 1983 claim against attorneys appointed to represent prisoners pursuant to a

contract with the state of Utah).

      And, to the extent Zapata has properly asserted a claim against him, Zapata

also cannot recover against Porter’s supervisor, Bigelow. See Dry v. City of

Durant, No. 99-7137, 2000 W L 1854140, at *6 (10th Cir. Dec. 19, 2000)

(unpublished) (holding under Dodson that, where plaintiff failed to establish that

defendant police officers were acting under state law for § 1983 purposes,

plaintiff’s claims against the officers’ supervisors also failed because those

“claims against the supervisory defendants are derivative in nature”).

      To the extent Zapata alleges that the public defenders office is liable under

§ 1983 because that office hired Porter and assigned her to represent Zapata,

those allegations also fail to state a claim on which relief may be granted because

“[s]ection 1983 will not support a claim based on a respondeat superior theory of

liability,” D 

; that is, on a theory that the employer is

responsible for its employee’s wrongful acts, see Black’s Law Dictionary 1179

(5th ed. 1979). M oreover, it appears that the N ew M exico Public D efender’s

Office is an arm of the state and, thus, is not a “person” amenable to suit under




                                          6
§ 1983. See M cLaughlin v. Bd. of Trustees of State Colls., 

, 1172

(10th Cir. 2000); 

.

      Liberally construing his complaints, Zapata may be able to assert a

malpractice action under state law against his attorneys. See D

(declining to express any “views as to a public defender’s liability for

malpractice in an appropriate case under state tort law”); see also 

. But such an action would not implicate the federal courts’

federal-question jurisdiction. See 28 U.S.C. § 1331. Further, because Zapata and

the defendants are residents of New M exico, such state-law malpractice claims

would also not implicate federal courts’ diversity jurisdiction. See 28 U.S.C.

§ 1332. As we have concluded Zapata has failed to state a claim under § 1983,

the district court acted within its discretion to also dismiss any pendent state law

claims.

      On appeal, Zapata has filed several motions w ith this court seeking to

amend his complaints. W e must deny these motions because Zapata cannot raise

a new claim before this court that he did not previously raise before the district

court, see M acArthur v. San Juan County, 

, 1161 (10th Cir. 2007).

IV.   Conclusion

      For these reasons, we AFFIRM the district court’s decisions dismissing

both of Zapata’s complaints with prejudice under 28 U.S.C. § 1915(e). Further,




                                          7
Zapata’s motions filed w ith this court seeking to amend his complaints are

DENIED.

      The mandates shall issue forthwith.

                                      ENTERED FOR THE COURT



                                      David M . Ebel
                                      Circuit Judge




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