* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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 . 36.3. 

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

### JUL 11 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM MCNALLY, Plaintiff-Appellant, v. COLORADO STATE PUBLIC DEFENDER, DAVID F. VELA, CHRISTOPHER P. AHMANN, SHERYL L. UHLMANN, in their individual and professional capacities, Defendants-Appellees. No. 01-1059 (D.C. No. 00-Z-2278) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL , KELLY and LUCERO , Circuit Judges.
Plaintiff-Appellant William McNally (“McNally”) app eals the district court’s dismissal of a civil suit he brought agains t attorneys of the Colorado State Public Defender’s office and the office itself (col lectively “Defendants”).- 2 -

McNally’s suit raises a variety of claims arising o ut of Defendants’ representation of him with respect to several unspecified traffic offenses. (Doc. 3 at ¶ 4). According to his complaint, he was represented by aseries of public defenders who consistently failed to provide effective repres entation and one of whom – McNally’s trial counsel – was an unlicenced law stu dent who held himself out to be a lawyer. (Id. at ¶¶ 5-14, 16.) McNally alleges that he was conv icted, but that his conviction was reversed by the Douglas County D istrict Court because his trial counsel was not licensed. (Id. at ¶¶ 18 & 20.) McNally then filed the case at bar alleging violati ons of his Sixth Amendment Right to Counsel, his Fifth and Fourteent h Amendment rights to due process, the Contracts Clause, failure properly to train and supervise attorneys working for the Colorado State Public Defender, and a conspiracy to violate his civil rights. McNally’s case was filed pro se , and the district court granted his motion to proceed in formapauperis pursuant to 28 U.S.C. § 1915(a)(1). The court dismissed McNally’s case under § 1915(e)(2)(B )(i) after finding that it was frivolous (see generallyDoc. 6), and then denied him leave to appeal in forma pauperis , finding that McNally’s appeal was not taken in go od faith. For substantially the reasons set forth in the dist rict court’s order, we find that McNally has failed to raise a nonfrivolous arg ument for relief, and1 McNally argues on appeal that he relied on § 1983 t o support only his

conspiracy claim, and that the rest of his claims a re brought under 28 U.S.C. § 1331. Although § 1331 creates original jurisdict ion in the district courts for civil actions arising under the Constitution, laws, or treaties of the United States, it does not itself create a cause of action upon wh ich a plaintiff may seek relief. McNally must instead turn to § 1983 to recover for violations of his federal rights. Cf. , e.g. , Albright v. Oliver , 510 U.S. 266, 271 (1994) (Section 1983 “provides a method for vindicating federal rights e lsewhere conferred” (quotations omitted)). - 3 - accordingly we deny his motion to proceed in formapauperis and dismiss his appeal. As the district court noted, McNally has not allege d that a change in law impaired a contractual relationship, and therefore he has failed to allege facts sufficient to support his claim under the Contracts Clause. See General Motors Corp. v. Romein , 503 U.S. 181, 186 (1992). McNally’s remaining cl aims fail because he has failed to establish state action by Defendants, as is required to bring a claim under 42 U.S.C. § 1983 for deprivatio ns of rights under the Constitution and laws of the United States. 1 “[A] public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v. Dodson , 454 U.S. 312, 325 (1981). Although allegations of a co nspiracy between McNally’s attorneys and state actors might be sufficient to d emonstrate Defendants acted under color of law, “mere conclusory allegations wi th no factual averments are insufficient; the pleadings must specifically prese nt facts tending to show- 4 -

agreement and concerted action.” Hunt v. Bennett , 17 F.3d 1263, 1268 (10th Cir. 1994) (citation and quotations omitted). McNally h as not pleaded specific facts demonstrating agreement and concerted action, and t herefore he cannot demonstrate that Defendants acted under color of st ate law. In sum, we find McNally’s appeal was not taken in g ood faith, we deny his application to proceed in formapauperis , and accordingly we dismiss his appeal.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge