81 F.3d 173
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Jason Aaron SIMMONS, Plaintiff-Appellant,v.Philip BEINVENU, Stan Kimble, Cleveland Holmes, Leroy L.Yowell, Judge Arren, Judge Nieschburg, JudgeStewart, Michael Guvara, WilliamSylvester, Dennis Hounon, IvanDew, Defendants-Appellees.
No. 95-1440.
United States Court of Appeals, Tenth Circuit.
March 25, 1996.

Before BRORBY, EBEL and HENRY, Circuit Judges.


1
ORDER AND JUDGMENT*


2
After examining the briefs and 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);  10th Cir.  R. 34.1.9.   The cause is therefore ordered submitted without oral argument.


3
Mr. Simmons, a state inmate and a pro se litigator, commenced this action against three state court judges, the district attorney, a sheriff in his capacity as a witness, his two court-appointed attorneys, his court-appointed investigator, a department of corrections investigator, again in his capacity as a witness, and two probation officers.   The district court, in a thorough thirteen-page "Order of Dismissal," dismissed the complaint for a variety of reasons including the fact the civil rights claims asserted were frivolous and the claims construed as habeas corpus claims were unexhausted.


4
Mr. Simmons appeals the Order of Dismissal, pro se, asserting, inter alia, claims of double jeopardy and malicious prosecution.   Mr. Simmons does not tell us why the actions of the district court were legally or factually incorrect;  rather he asserts the Bill of Rights is not frivolous and argues the district court did not actually apply any law.   He charges the district court "totally ignored the constitution" and "totally ignored each and every fact."   He asks this court "to order Default Judgement against the Plaintiffs and order them to pay me the money that I'm due."   He concludes by informing us "I am pro se and mentally disabled and have been since 1991."


5
We have reviewed the record on appeal and carefully considered Mr. Simmons' brief and arguments.   He has failed to convince us the district court erred in dismissing his complaint.


6
The judgment of the district court is AFFIRMED for substantially the same reasons set forth in the Order of Dismissal entered by the district court, a copy thereof being attached.

ORDER OF DISMISSAL
Sept. 22, 1995

7
DANIEL B. SPARR.


8
Plaintiff Jason Aaron Simmons currently is incarcerated at the Denver County, Colorado, Jail.  He initiated this action by filing pro se a civil rights complaint pursuant to 42 U.S.C. § 1983 (1994), alleging that the defendants have violated his rights under the United States Constitution.    As relief, he seeks money damages and apparently to have the defendants prosecuted.    He also seeks the vacation of his conviction, a new trial, and a change of venue.    The requests for vacating the conviction and for a new trial are for relief in the nature of habeas corpus and these claims will be treated as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994).    Mr. Simmons also has filed two identical motions for an expedited ruling in the instant case and has written four letters to the court, filed on August 11, September 14, September 19, and September 21, 1995, further explaining the facts of his case.    The September 19 and 21 letters include exhibits.    The court will treat the August 11, September 14, September 19 and September 21 letters as amendments to the complaint.    In addition, Mr. Simmons has filed in a single document a "Motion To Modify Previously Filed 42 U.S.C. § 1983 [complaint] And [to] Elevate Case Number 95-1818, To A Writ Of Habeus [sic] Corpus, [a] Motion For The Appointment Of An Attorney At Law To Represent Plaintiff Under 28 U.S.C. § 1915 [regarding the] Civil Rights Complaint, [and a] Motion For The Appointment Of An Attorney At Law To Represent Plaintiff Under 18 U.S.C. § 3006A [regarding the] Writ Of Habeus [sic] Corpus."


9
Mr. Simmons is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) (1994).    The court must construe Mr. Simmons' complaint, as amended, liberally because he is representing himself.    Haines v. Kerner, 404 U.S. 519, 520-21 (1972);  Ruark v. Solano, 928 F.2d 947, 949 (10th Cir.1991).


10
Pursuant to Local Rule 72.4 of the Local Rules of Practice of the United States District Court for the District of Colorado, this matter has been referred to Magistrate Judge Richard M. Borchers.    The reference to the magistrate judge pursuant to D.C.COLO.LR 72.4 is vacated.    The civil rights claims asserted pursuant to 42 U.S.C. § 1983 will be dismissed pursuant to 28 U.S.C. § 1915(d) for the reasons stated below.    The claims construed as asserted as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 also will dismissed for the reasons stated below.    The motions for an expedited ruling will be denied as moot.    The "Motion To Modify Previously Filed 42 U.S.C. § 1983 [complaint] And [to] Elevate Case Number 95-1818, To A Writ Of Habeus [sic] Corpus, [a] Motion For The Appointment Of An Attorney At Law To Represent Plaintiff Under 28 U.S.C. § 1915 [regarding the] Civil Rights Complaint, [and a] Motion For The Appointment Of An Attorney At Law To Represent Plaintiff Under 18 U.S.C. § 3006A [regarding the] Writ Of Habeus [sic] Corpus" also will be denied as moot.


11
Mr. Simmons makes lengthy, vague and conclusory allegations in forty-one handwritten pages.    The pages are difficult to follow and ramble about a variety of errors that allegedly occurred during plaintiff's state criminal prosecution.    The pages also are at times unclear as to which defendants were involved in which alleged asserted constitutional violations.    At the heart of the prolix complaint, as amended, is the plaintiff's contention that defendants conspired to deprive him of his due process rights during his state criminal prosecution.    These allegations are based on the following facts that the court is able to glean from the complaint, as amended.


12
Mr. Simmons alleges that he was arrested in September, 1994;  that he was charged with criminal extortion and harassment;  and that he was placed in the Lincoln County jail with his bail set at $10,000.    He further alleges that he entered a guilty plea pursuant to a plea agreement which gave him thirty-four days of credit for time he already had served in jail and which guaranteed him a sentence of six years "normal" probation under courtesy supervision in the State of Alaska.    Letter filed August 11, 1995, at 1.


13
Plaintiff next alleges that, when he appeared before the court to enter his plea, Judge Arren asked the district attorney what would happen if the State of Alaska would not accept courtesy supervision of Mr. Simmons, and that the district attorney advised Judge Arren that the State of Colorado would accept courtesy supervision of the plaintiff.    Plaintiff asserts that the State of Alaska refused to accept courtesy supervision of his probation and that the State of Colorado also refused to accept to supervise him on probation, apparently because he did not meet the criteria for probation supervision in either state.


14
Mr. Simmons also alleges that, despite having entered into this plea and being sentenced pursuant to the plea agreement, the plea was withdrawn for no reason;  he was held without bail for five months;  and he was "forced into trial in a kangaroo court."    Complaint at 2. He further alleges that he was convicted after a three-day jury trial and "then was sentenced a [second] time on one arrest and was given a stiffer sentence" to eight years of intensive supervised probation with conditions such as taking neuroleptic and psychotropic medication as directed by the probation officer.    Complaint at 2. Mr. Simmons contends that he was given this sentence, "supposedly because [he] plead guilty back in September 1994."    Letter filed August 11, 1995, at 2.


15
Mr. Simmons lodges a host of complaints concerning his criminal prosecution and contends, as previously stated, that the defendants conspired against him.    For example, he complains that defendant Sheriff Yowell committed perjury;  that the crime victims did not testify at the preliminary hearing;  that he was denied the right to proceed pro se;  that he was denied the right to shave and get a haircut;  that his court-appointed counsel Mr. Beinvenu was deliberately ineffective for several things, including failing to cross-examine plaintiff's sister;  that he has been denied transcripts to appeal the case;  and that he was denied the right to bring his own psychiatrist to trial.    Mr. Simmons further contends that he first was "placed in jeopardy when the court accepted the plea and [he] did the time (single jeopardy)."    He next contends that it was double jeopardy when he was "taken to trial and found guilty in front of a jury of 12 of my peirs [sic] (double jeopardy)."    Lastly, Mr. Simmons contends that, "according to the state and federal constitution," the withdrawal of his plea, the trial and the sentencing, "can in fact be construed as "triple jeopardy."    Letter filed August 11, 1995, at 2-3.


16
Under 42 U.S.C. § 1983, a plaintiff must allege that the defendants deprived him of a right secured by the United States Constitution while they acted under color of state law.    Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970).    Mr. Simmons is suing Philip Beinvenu and Stan Kimble, his court appointed attorneys;  Cleveland Holmes and Michael Guevara, probation officers;  Leroy Yowell, sheriff of Lincoln County, Colorado;  District Judges Arren, Nieschburg and Stewart;  William Sylvester, Lincoln County district attorney;  Dennis Hougnan, a Department of Corrections investigator;  and Ivan Dew, plaintiff's court-appointed investigator.    Plaintiff asserts claims for "double jepeordy [sic] in violation of [his Fifth] Amendments rights," and for "malicious prosecution in a kangaroo court."    Complaint at 6.


17
Mr. Simmons cannot maintain a civil rights action against the named defendants.    Mr. Kimble and Mr. Beinvenu, court-appointed counsel;  and Mr. Dew, an agent for court-appointed counsel, do not act under color of state law, and therefore are not subject to a civil rights complaint under § 1983.    Public defenders and their agents, whether court appointed or privately retained, performing in the traditional role of attorney and investigator for the defendant in a criminal proceeding are not deemed to act under color of state law;  such attorneys and investigators represent their client only, not the state, and cannot be sued in a 42 U.S.C. § 1983 action.    Polk County v. Dodson, 454 U.S. 312, 325 (1981).    See also Brown v. Schiff, 614 F.2d 237, 238-39 (10th Cir.1980), cert. denied, 446 U.S. 941 (1980).    Therefore, the claims against Stan Kimble, Philip Beinvenu, and Ivan Dew will be dismissed.


18
Mr. Simmons also is suing three state court judges.    Judges are absolutely immune from liability in civil rights suits for money damages for actions taken in their judicial capacity unless the judge was acting in the clear absence of all jurisdiction.    Mireles v. Waco, 502 U.S. 9, 11-12 (1991);  Stump v. Sparkman, 435 U.S. 349, 356-57 (1978).    The factors relevant in determining whether an act is judicial "relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity."    Mireles, 502 U.S. at 12;  Stump, 435 U.S. at 362.    Mr. Simmons fails to allege that Judges Arren, Nieschburg, and Stewart were acting in anything but their judicial capacity in their dealings with the plaintiff.    Therefore, Judges Arren, Nieschburg and Stewart are entitled to absolute judicial immunity and the claims against them will be dismissed.


19
Lincoln County District Attorney William Sylvester similarly is immune from civil liability for his actions or failure to act within the scope of his prosecutorial duties.    "[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity."    Buckley v. Fitzimmons, 113 S.Ct. 2606, 2615 (1993).    Therefore, the claims against Mr. Sylvester also will be dismissed.


20
Witness Sheriff Leroy Yowell is immune from suit, as well.    Plaintiff asserts that Sheriff Yowell committed perjury during his trial.    Police officer witnesses are absolutely immune from a suit for damages for their testimony at a criminal trial, even if the testimony is perjurious.    Brisco v. LaHue, 460 U.S. 325, 328 (1983);  Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir.1990).    Therefore, the claim against Sheriff Yowell also must be dismissed.


21
Department of Corrections Investigator Dennis Hougnan similarly is immune from civil liability under § 1983.    Plaintiff alleges that Mr. Hougnon "perjered [sic] himself on many different occaisions [sic]" during the plaintiff's criminal prosecution.    Witnesses are protected with absolute immunity from civil suits derivative of their trial testimony.    Brisco, 460 U.S. at 345-46;  Snell v. Tunnell, 920 F.2d at 686.    Furthermore, Mr. Simmons may not sue Mr. Hougnan in his official capacity.    Official capacity suits are an alternative pleading an action against an entity.    Monell v. Department of Social Servs., 436 U.S. 658, 690 n. 55 (1978);  see Brandon V. Holt, 469 U.S. 464 (1985).    Mr. Hougnan is a Department of Corrections employee and suing him in his official capacity is, in reality, a suit against the Department of Corrections.    The Department of Corrections, as a state governmental entity, is considered an arm of the state, and is protected by Eleventh Amendment immunity.    Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989);  Meade v. Grubbs, 841 F.2d 1512, 1525-26 (10th Cir.1988).    Therefore, the claims against Mr. Hougnan also will be dismissed.


22
Lastly, the court will address the claims against probation officers Cleveland Holmes and Michael Guevara.    The precise roles played by these defendants is not entirely clear.    Mr. Simmons alleges that Cleveland Holmes was supposed to arrange for another state that would accept courtesy probation supervision for plaintiff.    He alleges that Michael Guevara is a probation officer for the Eighteenth Judicial District and conspired with other unnamed public officials that were acting "under color of."    Complaint at 5.


23
Mr. Simmons allegations against Mr. Holmes and Mr. Guevara are vague and conclusory and must be dismissed.    Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir.1986);  Wise v. Bravo, 666 F.2d 1328, 1332-33 (10th Cir.1981).    Mr. Simmons also fails to allege that Mr. Holmes or Mr. Guevara deprived him of any right conferred by the United States Constitution.    See Adickes, 398 U.S. at 150.


24
Furthermore, the court notes that even if Mr. Simmons had sued proper parties in this lawsuit, the asserted claims for malicious prosecution and for conspiracy to deprive the plaintiff of his constitutional rights must fail.    The claim for malicious prosecution claim asserts a state law tort.    Title 42 U.S.C. § 1983 creates liability for deprivations, under color of state law, of federal constitutional rights.    Sampley v. Ruettgers, 704 F.2d 491, 494 (10th Cir.1983).    Not all state law torts are constitutional violations for which § 1983 provides a remedy.    Id. Therefore the asserted claim for malicious prosecution must be dismissed for failure to present a constitutional violation under § 1983.    Id.


25
Mr. Simmons alleges that the defendants conspired to deprive him of his constitutional rights.    To tie an individual to a conspiracy, however, more than vague and conclusory allegations charging that person with conspiracy are needed to state a civil rights claim.    Hammond v. Bales, 843 F.2d 1320, 1323 (10th Cir.1988).    The pleading must present specific facts tending to show agreement and concerted action.    Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir.1989);  Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983).    Mr. Simmons provides only vague and conclusory allegations of conspiracy between the defendants.    He fails to allege any specific facts which would tend to show an agreement and concerted action.    Therefore, this claim also must be dismissed.


26
As previously stated, Mr. Simmons is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915, the federal in forma pauperis statute.    Subsection (a) of § 1915 allows a litigant to commence a lawsuit without prepayment of fees and costs.    Subsection (d) of § 1915 is intended to discourage the filing of frivolous, malicious, or repetitive lawsuits.    Neitzke v. Williams, 490 U.S. 319, 324 (1989).    Subsection (d) gives judges the authority to dismiss sua sponte a complaint based upon an indisputably meritless legal theory or factual allegations that clearly are baseless.    Neitzke, 490 U.S. at 327;  see also 28 U.S.C. § 1915(d).    Claims of infringement of a legal interest which clearly does not exist or claims in which the plaintiff's factual allegations do not support an arguable claim are legally frivolous claims.    Neitzke, 490 U.S. at 327.    A finding of factual frivolousness is appropriate when the facts alleged rise to the level of irrational or wholly incredible.    Denton v. Hernandez, 504 U.S. 25, 33 (1992).    The district court may pierce the veil of the complaint's factual allegations, and determine that the facts alleged are fantastic or delusional and warrant dismissal for factual frivolousness.    Neitzke, 490 U.S. at 327;  Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991).    The civil rights claims asserted pursuant to 42 U.S.C. § 1983 will be dismissed as legally frivolous pursuant to § 1915(d).


27
Finally, the court will address the claims treated as a petition for a writ of habeas corpus.    Courts are to construe actions according to the nature of the relief sought, not according to how they are styled by their drafters.    Preiser v. Rodriguez, 411 U.S. 475, 500 (1973);  Parkhurst v. Wyoming, 641 F.2d 775, 776 (10th Cir.1981).    The relief sought by Mr. Simmons is to have his conviction vacated and to have a new trial.    Because this relief may affect the length of his confinement, his sole federal remedy is a petition for a writ of habeas corpus.    See Preiser, 411 U.S. at 500.    Thus, these claims will be construed as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.    See Id. at 500.


28
Under 28 U.S.C. § 2254(b), a habeas corpus petitioner must exhaust state remedies prior to filing such a petition with the federal court.    Furthermore, a state prisoner bringing a federal habeas corpus action bears the burden of showing that he has exhausted all available state remedies.    Miranda v. Cooper, 967 F.2d 392 (10th Cir.)  (citations omitted), cert. denied, 113 S.Ct. 347 (1992).    Mr. Simmons fails to allege whether or not he has exhausted his state remedies.    Therefore, the claims construed as asserted as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 also will be dismissed.    Accordingly it is


29
ORDERED that the reference to the magistrate judge pursuant to D.C.COLO.LR 72.4 is vacated.    It is


30
FURTHER ORDERED that the letters to the court, filed August 11, September 14, September 19, and September 21, 1995, be treated as amendments to the complaint.    It is


31
FURTHER ORDERED that the civil rights claims asserted pursuant to 42 U.S.C. § 1983 are dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(d).    It is


32
FURTHER ORDERED that the claims construed as asserted as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 are dismissed for failure to exhaust state remedies.    It is


33
FURTHER ORDERED that the motions for an expedited ruling are denied as moot.    It is


34
FURTHER ORDERED that the "Motion To Modify Previously Filed 42 U.S.C. § 1983 [complaint] And [to] Elevate Case Number 95-1818, To A Writ Of Habeus [sic] Corpus, [a] Motion For The Appointment Of An Attorney At Law To Represent Plaintiff Under 28 U.S.C. § 1915 [regarding the] Civil Rights Complaint, [and a] Motion For The Appointment Of An Attorney At Law To Represent Plaintiff Under 18 U.S.C. § 3006A [regarding the] Writ Of Habeus [sic] Corpus" are denied as moot.


35
FURTHER ORDERED that the complaint, as amended, and the action are dismissed.



*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.   The court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 10th Cir.36.3


