961 F.2d 216
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Maurice L. FITZGERALD, Plaintiff-Appellant,v.ALLEN BECK, P.C., Defendant-Appellee.
No. 91-35351.
United States Court of Appeals, Ninth Circuit.
Submitted April 20, 1992.*Decided April 24, 1992.

Before FARRIS, O'SCANNLAIN and TROTT, Circuit Judges.


1
MEMORANDUM**


2
Maurice L. Fitzgerald, a Montana state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action as frivolous.   We review de novo,  Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.1989), and we affirm.


3
Under 28 U.S.C. § 1915(d), the district court may dismiss sua sponte a frivolous in forma pauperis complaint.   Neitzke v. Williams, 109 S.Ct. 1827, 1831 (1989).   A complaint is frivolous "where it lacks an arguable basis either in law or in fact."   Id.


4
In his section 1983 complaint, Fitzgerald alleged that he received inadequate representation from his court-appointed attorney during his criminal trial and sought damages.   Fitzgerald's complaint lacks an arguable basis in law because a court-appointed attorney does not act under color of state law when serving as counsel to a defendant in a criminal proceeding.   See Polk County v. Dodson, 454 U.S. 312, 325 (1981).   Accordingly, the district court properly dismissed Fitzgerald's complaint as frivolous.   See Neitzke, 109 S.Ct. at 1831.


5
AFFIRMED.



*
 The panel unanimously finds this case suitable for decision without oral argument.   Fed.R.App.P. 34(a);  9th Cir.R. 34-4


**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


