Wilbert Lee Ward appeals from the district court's order dismissing his action, under 42 U.S.C. § 1983 (1988), for failure to comply with a court order. We affirm the dismissal, but on other grounds.

Ward's complaint alleged that Defendant, the attorney who represented Ward on charges of distribution of illegal substances, gave Ward erroneous advice concerning the effect of a guilty plea on his probationary status. In an order conditioning filing of Ward's suit on the payment of a filing fee, the court required Ward to respond to two interrogatories, concerning the institutions in which he had been incarcerated during the preceding six months, within twenty days. The court cautioned Ward that failure to comply could result in the dismissal of his case. Ward submitted a letter to the district court after expiration of the twenty-day period but before dismissal, inquiring into the status of the case. Later, after receiving no answers to the interrogatories, the district court dismissed the case without prejudice.

We'd ordinarily treat a dismissal without prejudice as one committed to trial court discretion, and review it only for abuse of discretion. The dismissal here, however, should, as a matter of law, have been on the merits, hence with prejudice. Defense attorneys do not act "under color of" state law and are, therefore, not amenable to suit under § 1983, whether privately retained, Deas v. Potts, 547 F.2d 800 (4th Cir. 1976), appointed by the state, Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980), cert. denied, 454 U.S. 1141 (1982), or employed as public defenders, Polk County v. Dodson, 454 U.S. 312, 325 (1981). Accordingly, we modify the dismissal to a dismissal with prejudice and affirm the district court's dismissal of this case. Ward v. Ghee, No. CA-92-519-N (E.D. Va. Sept. 8, 1992).

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.