                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                      UNITED STATES COURT OF APPEALS                    January 22, 2010
                                                                      Elisabeth A. Shumaker
                                  TENTH CIRCUIT                           Clerk of Court




 JOHN PAUL THOMAS,

        Plaintiff–Appellant,

 v.

 DOÑA ANA COUNTY DISTRICT                                   No. 09-2108
 ATTORNEY; DOÑA ANA COUNTY                      (D.C. No. 2:09-CV-00293-RB-WPL)
 ASSISTANT DISTRICT ATTORNEY                                 (D. N.M.)
 MICHELLE E. PICKETT; STATE
 PUBLIC DEFENDER JOHN BIGELOW;
 A DONA ANA COUNTY ASSISTANT
 PUBLIC DEFENDER,

        Defendants–Appellees.


                               ORDER AND JUDGMENT*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      John Paul Thomas, a New Mexico state prisoner proceeding pro se,1 appeals the



      * The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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 10th
Cir. R. 32.1.
district court’s dismissal of his 42 U.S.C. § 1983 claims. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm the decision of the district court.

                                              I

       Thomas sued Doña Ana County District Attorney Susana Martinez, Doña Ana

County Assistant District Attorney Michelle E. Pickett, New Mexico Public Defender

John Bigelow, and an unnamed Doña Ana County assistant public defender, alleging that

the defendants made false statements to Thomas’ criminal co-defendant in the course of

negotiating a plea bargain. The defendants removed the case to the United States District

Court for the District of New Mexico. The district court interpreted Thomas’ allegations

that his due process rights were violated and that his “safety and character” were placed

in jeopardy as allegations his rights under the Eighth and Fourteenth Amendments were

violated. The court also determined that 42 U.S.C. § 1983 generated a cause of action

under which he could bring claims for violation of these rights by state officials.

       Screening Thomas’ complaint as required by 28 U.S.C. § 1915A, the district court

sua sponte dismissed the claims for failure to state a claim upon which relief may be

granted under § 1915A and Fed. R. Civ. P. 12(b)(6). It concluded that Thomas had failed

to state a claim against the public defender defendants because public defenders do not

act under color of state law as required for § 1983 claims. In addition, the district court

determined that Thomas failed to state a claim against the district attorney defendants

       1
        Because Thomas proceeds pro se, we construe his complaint liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

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because they were entitled to prosecutorial immunity. After dismissing all claims over

which it had original jurisdiction, the district court declined to exercise supplemental

jurisdiction over Thomas’ state law claims and remanded them to state court. This appeal

ensued.

                                               II

          Thomas raises two arguments on appeal. First, he contends that a district court is

barred from dismissing a complaint pursuant to 28 U.S.C. § 1915A when the plaintiff

does not proceed in forma pauperis (“IFP”). This assertion is incorrect. Section 1915A

states:

          The court shall review, before docketing, if feasible or, in any event, as
          soon as practicable after docketing, a complaint in a civil action in which a
          prisoner seeks redress from a governmental entity or officer or employee of
          a governmental entity . . . [and shall] dismiss the complaint, or any portion
          of the complaint, if the complaint – (1) is frivolous, malicious, or fails to
          state a claim upon which relief may be granted; or (2) seeks monetary relief
          from a defendant who is immune from such relief.

The text of § 1915A does not restrict the district court’s ability to dismiss a claim

brought by a prisoner to only those cases in which a prisoner proceeds IFP.

          Thomas next contends that the district court erred when it dismissed Thomas’

complaint under Rule 12(b)(6). We have held that “sua sponte dismissal under Rule

12(b)(6) is not reversible error when it is ‘patently obvious’ that the plaintiff could not

prevail on the facts alleged, and allowing him an opportunity to amend his complaint

would be futile.” McKinney v. Okla. Dep’t of Human Servs, 925 F.2d 363, 365 (10th

Cir. 1991) (citations and italicization omitted).
                                              -3-
       In this case, it is “patently obvious” that Thomas could not prevail on the facts

alleged in his complaint. First, as the district court noted, a plaintiff claiming a violation

of § 1983 must allege facts demonstrating that the defendant acted under color of state

law. See Maestas v. Lujan, 351 F.3d 1001, 1012 n.1 (10th Cir. 2003). Two of the

defendants in this case are public defenders. Thomas sued one in his role as defense

counsel, and we assume Thomas sued the other in a supervisory capacity. The Supreme

Court has determined that a public defender, even if responsible for a deprivation of a

defendant’s constitutional rights, “does not himself act under color of state law within the

meaning of § 1983.” Briscoe v. LaHue, 460 U.S. 325, 330 n.6 (1983). Thus neither the

Doña Ana County assistant public defender nor Bigelow may be held liable under

§ 1983. It is therefore “patently obvious” that Thomas could not prevail against these

two defendants.

       Second, it is also “patently obvious” that Thomas’ claims against the remaining

defendants must fail. Thomas’ claim against Pickett and Martinez arise from Pickett’s

offering Thomas’ co-defendant a plea bargain. The Supreme Court has held that, “in

initiating a prosecution and in presenting the State’s case, [a] prosecutor is immune from

a civil suit for damages under § 1983.” Imbler v. Pachtman, 424 U.S. 409, 431 (1976).

Negotiating a plea bargain is included in these activities, and therefore the claims against

Pickett and Martinez must fail.

                                              III

       For the foregoing reasons, we AFFIRM the dismissal of Thomas’ § 1983 claims
                                             -4-
and the remand of the state law claims to the state court. All motions pending before the

court are DENIED.



                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




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