* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 29 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTHONY W. BROWN, Plaintiff - Appellant,

v. KEVIN MCCRAY, Attorney; JENNIFER RICHARDS, Attorney; JOHN WHETSEL, Sheriff; COUNTY OF OKLAHOMA, Defendants - Appellees. No. 03-6073 (D.C. No. 02-CV-1353-R) (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before KELLY , BRISCOE , and LUCERO , Circuit Judges. **

Plaintiff-Appellant Anthony W. Brown, a state priso ner appearing pro se, appeals from the district court’s order dismissing his 42 U.S.C. § 1983 civil rights complaint for failure to state a claim for which re lief may be granted. 28 U.S.C.- 2 -

§ 1915(e)(2)(B)(ii). In his complaint, which reque sted monetary damages and his release from prison, Mr. Brown asserted claims agai nst the two public defenders assigned to represent him during his pre-trial incarceration (“attorneys”), the sheriff responsible for managing the facility were he was detained (“sheriff”), and the County were the facility was located (“County”) . A magistrate judge recommended that the complaint be dismissed for fai lure to state a claim for which relief may be granted, and Mr. Brown thereaft er filed an objection which, instead of objecting, sought permission to amend hi s complaint to include a conspiracy claim. Consequently, the district courtadopted the magistrate judge’s report and recommendation and dismissed the complai nt, but granted leave for Mr. Brown to file an amended complaint within 15 days. R. Doc. 13. After Mr. Brown filed his amended complaint, the magistrate j udge again recommended dismissal, and the district court dismissed the complaint over Mr. Brown’s objections. Our jurisdiction arises under 28 U.S.C . § 1291, and we affirm. In his complaints, Mr. Brown alleges that he spent over 1,500 days in pretrial confinement before he was afforded a trial, a nd that he was thereby deprived of due process. He also claims that his pre-trial detention violated his right to a speedy trial and effective assistance of counsel un der the Sixth Amendment, R. Doc. 2 at 2, and that the defendants violated his c onstitutional rights by conspiring to keep him in pre-trial confinement. R . Doc. 11.1 Although we must liberally construe pro se pleadi ngs, see Haines v.

Kerner , 404 U.S. 519, 520 (1972), we decline to construe Mr. Brown’s complaint as a petition for a writ of habeas corpus because s uch a petition would nonetheless be subject to dismissal for failure to exhaust available state remedies in light of his admission that he has filed no prev ious lawsuits raising his claims in any state court. R. Doc. 2 at 4. - 3 - On appeal Mr. Brown renews his claims that the nam ed defendants are liable under § 1983 due to the allegedly “excessive ” period of pre-trial detention. Aplt. Br. at 14. He further argues that the distri ct court erred in dismissing his complaint because he proved that he was in pre-tria l detention for approximately 4 1⁄2 years, and that such amounted to proof that the defendants violated his constitutional rights. Id. at 15. We disagree. Contrary to the assertions in his brief, it is not enough to state a claim under § 1983 to allege, or even prove, that he was incarcerated as a pre-trial detainee for a certain period of time. As to his r equest to be released from prison, the magistrate judge properly concluded that such r elief must be sought via a petition for a writ of habeas corpus after exhausti ng any available state-court remedies. See Preiser v. Rodriguez , 411 U.S. 475, 500 (1973). 1 Moreover, we agree that Mr. Brown’s damages claims were properlydismissed under 28 U.S.C. § 1915(e)(2)(B)(ii). Because a criminal defendant’ s attorneys do not act “under color of state law” for purposes of § 1983, dismiss al of the claims against his attorneys was proper on that ground. See Polk County v. Dodson , 454 U.S. 312,2 As noted by the district court, a claim against asheriff in his official

capacity is “the equivalent of a suit against [the] County.” Lopez v. LeMaster , 172 F.3d 756, 762 (10th Cir. 1999). Consequently, to the extent Mr. Brown’s complaint can be construed as including an official capacity claim against the sheriff, we need only address the claim against the County. - 4 - 317 n.4 (1981) (holding that public defenders do no t act under color of state law “when performing the traditional functions of couns el to a criminal defendant.”). Moreover, Mr. Brown’s conspiracy claim did not save his claims against his attorneys because, although a public defender who c onspires with public officials to deprive a client of constitutional rights indeed acts under color of state law, Mr. Brown’s conspiracy allegations were conclusory in nature and thus insufficient to state a claim for relief. See Hunt v. Bennett , 17 F.3d 1263, 1268 (10th Cir. 1994) (dismissing § 1983 claim against attorneys on ground that the conspiracy allegation was conclusory and unsupporte d by facts). We also hold that Mr. Brown failed to state a claim against the sheriff because he failed to make the required showing thatthe sheriff personally participated in the alleged constitutional violatio ns. See Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993). Although Mr. Brown cl aims in his brief that the sheriff “knew that he should have been gotten [sic] to trial sooner,” Aplt. Br. at 15, the claim is insufficient. 2 Likewise, Mr. Brown failed to allege that the violation of his rights was caused by an official c ustom or policy of the County–a showing that is required in order to state a § 1983 claim against a municipality.- 5 -

See Bd. of County Comm’rs of Bryan County v. Brown , 520 U.S. 397, 403 (1997). Consequently, we AFFIRM for substantially the same reasons given by the magistrate judge, and GRANT Mr. Brown’s motion to p roceed in forma pauperis.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge