     08-2996-pr
     Brown v. Legal Aid Soc’y

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of                     Appeals
 2       for the Second Circuit, held at the Daniel Patrick                     Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                     City of
 4       New York, on the 23 rd day of February, two thousand                   ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                              Senior Circuit Judge,
10                CHRISTOPHER F. DRONEY, *
11                              District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       Thurman J. Brown,
15                Plaintiff-Appellant,
16
17                    -v.-                                               08-2996-pr
18
19       Legal Aid Society,
20                Defendant-Appellee.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANT:                  Thurman J. Brown, pro se, Rome, NY.
24


                *
               Christopher F. Droney, Judge of the United States
         District Court for the District of Connecticut, sitting by
         designation.

                                                  1
1    FOR APPELLEE:          William D. Buckley, Garbarini &
2                           Scher, P.C., New York, NY.
3
4         Appeal from a judgment of the United States District
5    Court for the Eastern District of New York (Seybert, J.).

6         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
7    AND DECREED that the order of the district court be
8    AFFIRMED.

 9        New York State prisoner Thurman J. Brown appeals pro se
10   from the district court’s sua sponte dismissal of his
11   complaint brought pursuant to 42 U.S.C. § 1983 for failure
12   to state a claim. We assume the parties’ familiarity with
13   the underlying facts, the procedural history of the case,
14   and the issues on appeal.

15         We review a district court’s 28 U.S.C. § 1915A
16   dismissal of a complaint de novo. See Shakur v. Selsky, 391
17   F.3d 106, 112 (2d Cir. 2004). Section 1983 creates a cause
18   of action only against persons acting under color of state
19   law. See, e.g., Rodriguez v. Phillips, 66 F.3d 470, 473 (2d
20   Cir. 1995). A “public defender does not act under color of
21   state law when performing a lawyer’s traditional functions
22   as counsel to a defendant in a criminal proceeding.” Polk
23   County v. Dodson, 454 U.S. 312, 325 (1981); accord Rodriguez
24   v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997). To the extent
25   Brown attempts to avoid Dodson’s limitation by alleging that
26   the public defenders in his case conspired with a state
27   court judge to pursue his illegal prosecution, see Tower v.
28   Glover, 467 U.S. 914, 920 (1984), this conspiracy allegation
29   is wholly conclusory and, as such, insufficient even at the
30   pleading stage to establish that the public defenders were
31   acting under color of state law. Accordingly, the district
32   court properly dismissed Brown’s complaint.

33        We have considered each of Brown’s remaining arguments
34   and find them to be without merit. We remind Brown that he
35   has been warned by this Court that the continued filing of
36   duplicative and meritless appeals will result in the
37   imposition of a leave to file sanction, under which Brown
38   will be required to obtain permission from this Court prior
39   to filing any further submissions in this Court. See In re
40   Martin-Trigona, 9 F.3d 226, 229 (2d Cir. 1993); Sassower v.
41   Sansverie, 885 F.2d 9, 10-11 (2d Cir. 1989). For the


                                  2
1   foregoing reasons, we AFFIRM the judgment of the district
2   court.

3                              FOR THE COURT:
4                              CATHERINE O’HAGAN WOLFE, CLERK
5
6
7




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