FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 2, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-11724

Non-Argument Calendar

________________________

D. C. Docket No. 06-00133-CV-J-20-MCR

RONALD GARY MOORE, 

Plaintiff-Appellant, 

versus 

LINDA BARGSTEDT, 

LAWSON LAMAR, Assistant State Attorney, 

ESQ. MICHAEL L. FLIPPO, Office of Public Defender, 

ESQ. KEVIN R. HOLTZ, Assistant P.D. Appellate 

Division, 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(November 2, 2006)

Before ANDERSON, BIRCH and WILSON, Circuit Judges.

PER CURIAM:
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Ronald Gary Moore, a Florida prisoner proceeding pro se and in forma

pauperis, appeals from the district court’s sua sponte dismissal of his 42 U.S.C. §

1983 civil rights action. Upon review of the record, we find that none of the

named defendants are subject to liability under § 1983, and we therefore affirm. 

Background

Moore is currently serving a life sentence for a multiple count sexual battery

conviction. He alleges that he was accused of the criminal act in 1992, and the

accusation was investigated and deemed unfounded. He alleged that he was

prosecuted on the basis of these allegations a year later, and sentenced to probation

and a monetary fine following a guilty plea. He claims that in 2001 he was again

prosecuted on the basis of the same allegations by the state’s attorney, and that his

public defenders refused to challenge the validity of the second prosecution at trial

and on appeal. 

Moore brought his claims under § 1983 against the following defendants: (1)

Linda Bargstedt, mother of Moore’s victim; (2) Michael Flippo, Moore’s public

defender at his criminal trial; (3) Kevin Holtz, Moore’s public defender on direct

appeal; and (4) Lawson Lamar, Florida Assistant State’s Attorney. He claims that

these individuals were involved in the denial of his constitutional rights and

unlawful prosecution. His claims were dismissed, sua sponte, by the district court
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under 28 U.S.C. § 1915(e)(2)(B) on the grounds that the complaint was frivolous

and failed to state a claim on which relief could be granted. 

Standard of Review

We review frivolity dismissals, pursuant to § 1915(e)(2)(B), for abuse of

discretion. Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). A claim is

frivolous if it is “without arguable merit either in law or fact”. Id. We review de

novo the district court’s dismissal for failure to state a claim upon which relief may

be granted. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). In

evaluating pro se claims, we construe the pleadings liberally and hold them to a

less stringent standard than those drafted by attorneys. Hughes v. Lott, 350 F.3d

1157, 1160 (11th Cir. 2003). 

Discussion

To successfully raise a § 1983 claim, Moore was required to show that he

“was deprived of a federal right by a person acting under color of state law.” 

Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). For § 1983

purposes, a private person generally acts ‘under color of state law’ only when

engaged in a conspiracy with state officials. Tower v. Glover, 467 U.S. 914, 920,

104 S. Ct. 2820, 2824, 81 L. Ed. 2d 758 (1984). Moore bases his claim against

Linda Bargstedt, a private person, on the fact that she made repeated complaints
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about him to the police. Since he does not allege the existence of such a

conspiracy, he fails to raise a valid § 1983 claim against her and we find that it was

properly dismissed.

Similarly, a state-appointed 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,

102 S. Ct. 445, 453, 70 L. Ed. 2d 509 (1981). The decision by Moore’s trial and

appellate counsel not to challenge the second prosecution represents the exercise of

their independent professional judgment. Such a decision, even when incorrectly

made, can not be considered an action under color of state law. We therefore find

that the district court made no error in dismissing the claim.

Finally, a prosecutor in a criminal proceeding is entitled to absolute

immunity from § 1983 suits when acting within the scope of his prosecutorial

duties. Imbler v. Pachtman, 424 U.S. 409, 427, 96 S. Ct. 984, 993, 47 L. Ed. 2d

128 (1976). As Lawson Lamar, Moore’s prosecutor, can not be held liable under §

1983 for his decision to initiate and prosecute the case against Moore, we agree

with the district court that Moore’s lacks a viable claim. Accordingly, we affirm

the district court’s dismissal of all claims. 

AFFIRMED.