                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                February 9, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT


 TRIGINAL D. JACKSON,

          Plaintiff-Appellant,

 v.                                                     No. 08-2307
                                             (D.C. No. 08-CIV-1091-PJK-LFG)
 PATI BRUMMETT, New Mexico                               (D.N.M.)
 Public Defender Office; 2 UNNAMED
 PUBLIC DEFENDERS,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


      Proceeding pro se, Triginal Jackson brought this suit under 42 U.S.C.

§ 1983, against various state public defenders as well as their employer, the New

Mexico Public Defender’s Office. Mr. Jackson’s complaint alleged that, after he

was charged with felony assault and four other misdemeanors in New Mexico

state court, the public defenders appointed to represent him violated his


      *
         After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is 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order and judgment is not binding precedent except under the doctrines of law of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.
constitutional rights by, among other things, continuing to represent him after he

made clear that he wished to represent himself, and by prolonging his

incarceration by requesting an unnecessary competency hearing.

      Acting sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the district

court dismissed Mr. Jackson’s federal claims with prejudice, holding that the

allegations in the complaint did not state a plausible claim for relief, and that

granting leave to amend would be futile. To the extent Mr. Jackson’s complaint

raised state law claims, the district court declined to exercise its supplemental

jurisdiction and dismissed them without prejudice. Dist. Ct. Op. at 3.

      With respect to the federal claims against the individual public defenders

named in Mr. Jackson’s suit, the district court dismissed the complaint, reasoning

that (a) a § 1983 suit may be brought against only defendants who act under color

of state law, and (b) public defenders performing traditional functions as counsel

to a defendant in a criminal proceeding do not do so. Dist Ct. Op. at 2-3 (citing

Polk County v. Dodson, 454 U.S. 312, 325 (1981)). With respect to Mr.

Jackson’s claim against the New Mexico Public Defender Office, the district court

held that the complaint failed to state a claim because (a) it was based on

respondeat superior liability, which is not recognized under § 1983, Dist. Ct. Op.

at 3 (citing Polk County, 454 U.S. at 325), and because (b) the office, an “arm of

the state,” possesses Eleventh Amendment immunity and is not a “person” for




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purposes of § 1983, id. (citing Will v. Michigan Dep’t of State Police, 491 U.S.

58, 70-71 (1989)).

      We review the district court’s dismissal de novo. Kay v. Bemis, 500 F.3d

1214, 1217 (10th Cir. 2007). “In determining whether dismissal is proper, we

must accept the allegations of the complaint as true and construe those

allegations, and any reasonable inferences that might be drawn from them, in the

light most favorable to the plaintiff.” Id. (quoting Gaines v. Stenseng, 292 F.3d

1222, 1224 (10th Cir. 2002)). Additionally, because Mr. Jackson is proceeding

pro se, we construe his pleadings and other papers with special solicitude. Van

Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).

      Even with these generous standards in mind, we conclude that Mr.

Jackson’s suit does not state a plausible federal claim for relief for the very same

reasons given by the district court. We also agree with the district court that it

would be futile to grant leave to amend Mr. Jackson’s federal claims. We cannot

conceive of a way in which Mr. Jackson could amend his pleadings to state a

plausible claim for relief under § 1983; neither has Mr. Jackson suggested any

such course to us. Because we find Mr. Jackson’s federal claims were properly

dismissed with prejudice, the district court properly declined to exercise

jurisdiction over Mr. Jackson’s remaining state law claims. See Bauchman ex rel.

Bauchman v. West High Sch., 132 F.3d 542, 549 (10th Cir. 1997) (“If federal

claims are dismissed before trial, leaving only issues of state law, the federal

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court should decline the exercise of jurisdiction by dismissing the case without

prejudice.”) (quotation omitted). Accordingly, the district court’s judgment is

affirmed.


                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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