                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                September 9, 2013
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                    TENTH CIRCUIT


 MARVIN K. SHUE,

          Plaintiff - Appellant,

 v.                                                     No. 13-8027
                                               (D.C. No. 1:12-CV-00248-ABJ)
 DION J. CUSTIS, individually, and in                     (D. Wyo.)
 his official capacity; WYOMING
 PUBLIC DEFENDER’S OFFICE,

          Defendants - Appellees.



 MARVIN K. SHUE,

          Plaintiff - Appellant,
                                                         No. 13-8045
 v.
                                               (D.C. No. 2:13-CV-00081-NDF)
                                                          (D. Wyo.)
 DION J. CUSTIS, individually, and in
 his official capacity,

          Defendant - Appellee.


                              ORDER AND JUDGMENT *




      *
         After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f) 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judgment is not binding precedent except under the doctrines of law of the case,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.
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      Dissatisfied with the legal representation he received on the way to a

criminal conviction and sentence, Marvin Shue brought a civil action pro se

against his former attorney and his former attorney’s former employer. He

alleged that his public defender, Dion Custis, attempted to bribe the victim’s

mother in the hope of winning her support for a lighter sentence. Mr. Shue

believes the effort backfired and amounted to ineffective assistance of counsel.

Relying on 42 U.S.C. § 1983, he seeks financial compensation from Mr. Custis

and the Wyoming Public Defender’s Office. After the district court dismissed his

complaint for failing to state a valid legal claim, Mr. Shue filed a substantively

indistinguishable complaint — though this time against Mr. Custis only. Again,

however, the district court dismissed the complaint. Now Mr. Shue appeals both

dismissal orders.

      Under the federal statute that Mr. Shue invokes, victims of civil rights

violations can civilly sue those who wronged them. 42 U.S.C. § 1983. But these

suits succeed only when the person who violated the claimant’s rights did so

while acting “under color” of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

As the district court explained, this requirement poses an insuperable obstacle for

Mr. Shue’s claims against Mr. Custis — regardless whether Mr. Custis is sued in

an individual or official capacity. It is long established that public defenders do


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not act under color of state law while providing legal assistance to a client

accused of criminal wrongdoing. Polk Cnty. v. Dodson, 454 U.S. 312, 325

(1981). While we share the district court’s concern about the tactics Mr. Custis

allegedly used in Mr. Shue’s defense, there is no doubt he used those tactics in

Mr. Shue’s defense. And so although Mr. Custis’s alleged actions don’t qualify as

good lawyering, neither do they qualify as grounds for a § 1983 claim.

      Mr. Shue’s complaint doesn’t exactly specify why he is entitled to relief

against the Wyoming Public Defender’s Office. So far as we can tell, though, the

gist of his claim against them is that they should have kept a closer watch on their

employee, Mr. Custis. But because a § 1983 action can’t be based on such a

theory of supervisor liability, this claim cannot succeed either. Polk Cnty., 454

U.S. at 325 (“Section 1983 will not support a claim based on a respondeat

superior theory of liability.”).

      Because we affirm its dismissals of Mr. Shue’s complaints for the reasons

given above, we do not need to address the other reasons the district court offered

in its dismissal orders — including the defendants’ potential immunity from suit

and Mr. Shue’s failure to plead (as § 1983 would here require) that his conviction

or sentence has been invalidated in some way. See Heck v. Humphrey, 512 U.S.

477, 486-87 (1994).




                                         -3-
      Mr. Shue’s motions to proceed in forma pauperis are granted, his motions

to enter evidence are denied, and the judgments of the district court are affirmed.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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