UNITED STATES COURT OF APPEALS TENTH CIRCUIT

JOHN PAUL THOMAS, Plaintiff–Appellant,

v. DOÑA ANA COUNTY DISTRICT ATTORNEY; DOÑA ANA COUNTY ASSISTANT DISTRICT ATTORNEY MICHELLE E. PICKETT; STATE PUBLIC DEFENDER JOHN BIGELOW; A DONA ANA COUNTY ASSISTANT PUBLIC DEFENDER, Defendants–Appellees. No. 09-2108 (D.C. No. 2:09-CV-00293-RB-WPL) (D. N.M.)

ORDER AND JUDGMENT *

Before LUCERO , McKAY , and MURPHY , Circuit Judges.

John Paul Thomas, a New Mexico state prisoner proceeding pro se, 1 appeals the

* The case is unanimously ordered subm itted without oral argument pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel. The court generally disf avors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit January 22, 2010
Elisabeth A. Shumaker Clerk of Court- 2 - district court’s dismissal of his 42 U.S.C. § 1983 cl aims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the d ecision of the district court.
I Thomas sued Doña Ana Coun ty District Attorney Su sana Martinez, Doña Ana County Assistant District A ttorney Michelle E. Pickett, New Mexico Public Defender John Bigelow, and an unnamed Doña Ana Coun ty assistant public defender, alleging that the defendants made false stat ements to Thomas’ criminal co -defendant in the course of negotiating a plea bargain. The defendants rem oved the case to the United States District Court for the District of New Mexico. The di strict court interprete d Thomas’ allegations that his due process rights were violated and that his “safety and character” were placed in jeopardy as allegations his rights under th e Eighth and Fourteenth Amendments were violated. The court also determined that 42 U.S.C. § 1983 genera ted a cause of action under which he could bring claims for viol ation of these rights by state officials. Screening Thomas’ complaint as required by 28 U.S.C. § 1915A, the district court sua sponte dismissed the claims for failure to state a claim upon which relief may be granted under § 1915A and Fed. R. Civ. P. 12(b)(6). It c oncluded that Thomas had failed to state a claim against the public defender defendants because pu blic defenders do not act under color of state law as required for § 1 983 claims. In addition, the district court determined that Thomas failed to state a cl aim against the district attorney defendants

1 Because Thomas proceeds pro se, we c onstrue his complaint liberally. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972).- 3 - because they were entitled to prosecutorial immunity. After dismissing all claims over which it had original jurisdiction, the distri ct court declined to exercise supplemental jurisdiction over Thomas’ state law claims and re manded them to state court. This appeal ensued.
II Thomas raises two arguments on appeal. First, he contends that a district court is barred from dismissing a complaint pursuant to 28 U.S.C. § 1915A when the plaintiff does not proceed in forma pauperis (“IFP”). Th is assertion is incorrect. Section 1915A

states: The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmenta l entity or officer or employee of a governmental entity . . . [and shall] dismiss the complaint, or any portion of the complaint, if the complaint – (1) is frivolous, malicious, or fails to state a claim upon which relief may be gr anted; or (2) seeks monetary relief from a defendant who is immune from such relief. The text of § 1915A does not restrict the district court’s ability to dismiss a claim brought by a prisoner to only those cas es in which a prisoner proceeds IFP. Thomas next contends that the distri ct court erred when it dismissed Thomas’ complaint under Rule 12(b)(6). We have held that “sua sponte dismissal under Rule 12(b)(6) is not reversible error when it is ‘p atently obvious’ that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” McKinney v. Okla. Dep’t of Human Servs , 925 F.2d 363, 365 (10th Cir. 1991) (citations a nd italicization omitted).- 4 - In this case, it is “paten tly obvious” that Thomas could not prevail on the facts alleged in his complaint. First, as the dist rict court noted, a plain tiff claiming a violation of § 1983 must allege facts demonstrating th at the defendant acted under color of state law. See Maestas v. Lujan , 351 F.3d 1001, 1012 n.1 (1 0th Cir. 2003). Two of the defendants in this case are public defenders. Thomas sued one in his role as defense counsel, and we assume Thomas sued the ot her in a supervisory capacity. The Supreme Court has determined that a public defender, even if responsible for a deprivation of a defendant’s constitutional rights, “does not hims elf act under color of state law within the meaning of § 1983.” Briscoe v. LaHue , 460 U.S. 325, 330 n.6 ( 1983). Thus neither the Doña Ana County assistant public defende r nor Bigelow may be held liable under § 1983. It is therefore “patently obvious” that Thomas could not prevail against these two defendants. Second, it is also “patently obvious” that Thomas’ claims against the remaining defendants must fail. Thom as’ claim against Pickett and Martinez arise from Pickett’s offering Thomas’ co-defendant a plea bargain. The Supreme Court has held that, “in initiating a prosecution and in presenting the State’s case, [a] prosecutor is immune from a civil suit for damages under § 1983.” Imbler v. Pachtman , 424 U.S. 409, 431 (1976). Negotiating a plea bargain is included in these activities, and therefore the claims against Pickett and Martinez must fail.
III For the foregoing reasons, we AFFIRM the dismissal of Thomas’ § 1983 claims- 5 - and the remand of the state law claims to the st ate court. All motions pending before the

court are DENIED

.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge