* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The 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. 

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

### OCT 19 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PATRICK C. LYNN,

Plaintiff-Appellant,

v. JESSICA KUNEN, Appellate Defender of Kansas, and CARLA STOVALL, Attorney General,

Defendants-Appellees. No. 97-3287 (D.C. No. 97-3294-GTV) (D. Kan.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff Patrick C. Lynn was convicted in a Kansas state court in November 1996 of a variety of charges including agg ravated kidnaping and rape, and is currently incarcerated in a Kansas state pri son. He brought this action seeking injunctive relief under 42 U.S.C. § 1983. The district court summarily dismissed the complaint for failing to state a clai m pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Although it is yet unclear whether we review a dismissal under § 1915(e)(2)(B)(ii) de novo, as we would a dismissa l for failure to state a claim under Fed. R. Civ. P. 12(b)(6), see Chemical Weapons Working Group, Inc. v. United States Dep’t of the Army , 111 F.3d 1485, 1490 (10th Cir. 1997), or for an abuse of discretion, as we would a dismissal under § 1915(e)(2)(B)(i), the successor to § 1915(d), see Schlicher v. Thomas , 111 F.3d 777, 779 (10th Cir. 1997), we conclude plaintiff’s arguments fail under either standard. Defendant Kunen is a public defender appointed to r epresent plaintiff in his direct appeal of his state court convictions. Plai ntiff contends that Kunen has and is providing ineffective assistance of counsel to h im by refusing to meet with him or answer his correspondence or telephone calls, re fusing to share trial transcripts with him, and refusing to investigate his claims of innocence. He alleges that Kunen has conspired with defendant Stovall, attorney general of Kansas, to deny him his right to effective assistance of counsel onappeal. As relief, he seeks appointment of new counsel to represent him on appe al.-3-

The district court rejected plaintiff’s claim of co nspiracy on the basis that he offered nothing more than vague, conclusory alle gations and failed to allege specific facts showing agreement and concerted action between defendants. See Durre v. Dempsey , 869 F.2d 543, 545 (10th Cir. 1989). The court al so found that as a state public defender involved in a criminal p roceeding, Kunen did not act under color of state law and thus was not susceptib le to a claim under § 1983. See Polk County v. Dodson , 454 U.S. 312, 325 (1981). On appeal, plaintiff contends that his complaint pr esented adequate factual allegations to support his claim of conspiracy and that Kunen can be liable under § 1983 for conspiracy. He contends that the distri ct court should have allowed him leave to amend his complaint, although he does not explain what additional information an amended complaint would provide or h ow it would cure the existing problems. He also contends that the distr ict court judge should have recused himself. We have reviewed the record and c onsidered plaintiff’s arguments and find his arguments unpersuasive. We therefore affirm the district court’s dismissal of his complaint for substantially the same reasons as stated in the district court’s July 25, 1997 order. We also conclude that plaintiff has presented no indication of improper extrajudicial b ias or prejudice that would warrant the district judge’s recusal.-4-

The judgment of the district court dismissing plaintiff’s complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) is AFFIRMED. We conclude that this appeal is frivolous or fails to state a claim and counts as a prior occasion for purposes of § 1915(g). The mandate shall issue forthwith.

Entered for the Court

Robert H. Henry Circuit Judge