993 F.2d 1551
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.
Donald E. EWING, Plaintiff-Appellant,v.DENNIS AUTO PLAZA and City of Olathe Police Department,Defendant-Appellee.
No. 92-3427.
United States Court of Appeals, Tenth Circuit.
May 6, 1993.

Before TACHA, BALDOCK and KELLY, Circuit Judges.*
ORDER AND JUDGMENT**
PAUL KELLY, Jr., Circuit Judge.


1
Plaintiff-appellant Donald E. Ewing appeals the district court's dismissal of his claim based on 42 U.S.C. § 1983.   We grant Mr. Ewing leave to proceed in forma pauperis on appeal and affirm.


2
The district court dismissed Mr. Ewing's claim as one based on an indisputably meritless legal theory.   See 28 U.S.C. § 1915(d);   Neitzke v. Williams, 490 U.S. 319 (1989).  "It is axiomatic that, in order to maintain a civil rights action, the 'conduct allegedly causing the deprivation of a federal right [must] be fairly attributable to the state.' "   Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159, 1163 (10th Cir.1986) (quoting  Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).   We agree with the district court that Mr. Ewing failed to allege this essential element of his claim against Defendant-appellee Dennis Auto Plaza.


3
With respect to Defendant-appellee City of Olathe Police Department, the district court noted that "plaintiff claims the police officers arrested the wrong person" and found such a claim insufficient under § 1983.   We agree.   The violated right that would allow a § 1983 claim must be one that is "protected by the Constitution."   Baker v. McCollan, 443 U.S. 137, 146 (1979).   Even if the arresting officers failed to exercise due diligence in order to avoid arresting the wrong person, no right protected by the Constitution has been violated.   Id. See also Hewitt v. City of Truth or Consequences, 758 F.2d 1375 (10th Cir.1985);   Glass v. Pfeffer, 657 F.2d 252 (10th Cir.1981).


4
AFFIRMED.



*
 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 therefore is ordered submitted without oral argument


**
 This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel.   10th Cir.R. 36.3


