* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-60841

Summary Calendar

 

LAVEAL MCGHEE,

Plaintiff-Appellant,

versus

SUSIE BRADSHAW; JULIE A. EPPS,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 5:96-CV-106BrS

- - - - - - - - - -

September 5, 1997

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Laveal McGhee (#37135), a state prisoner, has appealed the

dismissal of his civil rights complaint as frivolous. An in

forma pauperis complaint may be dismissed as frivolous pursuant

to 28 U.S.C. § 1915(e)(2)(B)(i) if it has no arguable basis in

law or in fact. See Booker v. Koonce, 2 F.3d 114, 115 (5th Cir.

1993) (applying former § 1915(d)); see also Denton v. Hernandez,

504 U.S. 25, 32-33 (1992). Section 1915(e) dismissals are

reviewed for abuse of discretion. Id. 
2

Because the district court neither sent McGhee a

questionnaire nor held a Spears hearing, McGhee did not have an

opportunity to clarify his allegations in the district court. 

Thus, this court must determine whether McGhee’s allegations, if

developed further, “might have presented a nonfrivolous section

1983 claim.” Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994); see 

Denton, 504 U.S. at 32. 

In order to state an arguable claim under § 1983, a

plaintiff must allege a violation of rights secured by the

Constitution or laws of the United States. Leffall v. Dallas

Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994). McGhee’s

claims implicate his constitutional right of access to the

courts. See Bounds v. Smith, 430 U.S. 817, 821 (1977). 

McGhee contends that the district court erred in dismissing

his action against Epps on the ground that, as a private

attorney, Epps is not a state actor for purposes of § 1983. 

“[S]ection 1983 claims require that the conduct complained of be

done under color of law, and private attorneys, even

court-appointed attorneys, are not official state actors, and

generally are not subject to suit under section 1983.” Mills v.

Criminal Dist. Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988). 

However, “private attorneys who have conspired with state

officials may be held liable under section 1983 even though the 

state officials with whom they conspire are themselves immune

from suit . . . .” Id. McGhee contends on appeal that Epps and
3

Bradshaw conspired to deprive him of the documents he needed to

pursue habeas relief. McGhee’s complaint, if liberally

construed, alleges the existence of a conspiracy between Bradshaw

and Epps to deprive McGhee of his right of access to the courts. 

The allegation of a conspiracy is not “irrational or the wholly

incredible.” Moore, 976 F.2d at 270. 

McGhee contends that the district court erred in dismissing

his claim against Bradshaw on grounds of absolute immunity. It

is unclear whether McGhee is alleging that Bradshaw was acting in

a non-routine matter under the command of a court decree or at

the direction of a judge. If so, she would be entitled to

absolute immunity. See Williams v. Wood, 612 F.2d 982, 984-85

(5th Cir. 1980). If Bradshaw were acting on routine matters

within the scope of her employment as a court clerk, however, she

would be entitled to qualified immunity only. Id. We cannot

determine whether the district court applied the wrong legal

standard in resolving this claim. See Moore, 976 F.2d at 270. 

The district court’s dismissal of McGhee’s complaint was

premature. The order of dismissal is VACATED and the case is

REMANDED for further proceedings in accordance with this opinion.

VACATED AND REMANDED.