                  United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                              _____________

                              No. 99-1625EA
                              _____________

Ben S. Garner,                         *
                                       *
             Appellant,                *
                                       *
      v.                               *
                                       *
John W. Cole, Jr.,                     * On Appeal from the United
                                       * States District Court
             Appellee,                 * for the Eastern District
                                       * of Arkansas.
Judy Frost Pridgen, Sheriff,           *
                                       * [Not To Be Published]
             Defendant,                *
                                       *
Louis L. Loyd, Prosecuting Attorney;   *
Richard Mattison, Attorney,            *
                                       *
             Appellees.                *
                                  ___________

                       Submitted: January 3, 2000
                           Filed: January 25, 2000
                               ___________

Before McMILLIAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.
       Ben S. Garner, an Arkansas prisoner, appeals the District Court’s1 dismissal of
his 42 U.S.C. § 1983 action without prejudice. We affirm.

       Garner filed this action against a state circuit judge and a prosecutor, claiming
they falsely charged him with possession of a controlled substance and withheld or
disregarded evidence at his criminal trial. Garner also named his court-appointed
attorney (a public defender), claiming he failed to counsel him. He requested damages
and asked that the court overturn his guilty plea. On appeal, he has moved for
appointment of counsel and an evidentiary hearing. We deny those motions.

        Upon de novo review, see Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir.
1999) (per curiam), we conclude the District Court properly dismissed Garner’s action.
First, judge and prosecutor are immune from this action for damages. Second, Garner
failed to state a section 1983 claim against the public defender, because the public
defender was not acting under color of state law when representing Garner. See Polk
County v. Dodson, 454 U.S. 312, 325 (1981). Last, Garner could not seek to overturn
his guilty plea in this action. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

      Accordingly, we affirm.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      1
       The Honorable James Maxwell Moody, United States District Judge for the
Eastern District of Arkansas.
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