UNITED STATES COURT OF APPEALS

Filed 11/5/96 FOR THE TENTH CIRCUIT

KEVIN LACEY,

Plaintiff-Appellant,

v. CITY OF CASPER, WYOMING; JUDGE HARRY LEIMBACK, individually, and in his official capacity as Judge, Seventh Judicial District, Natrona County, Wyoming; NATRONA COUNTY, WYOMING; MIKE BLONIGEN, individually, and in his official capacity as Natrona County Deputy District and Prosecuting Attorney; DAVE ANDERSON, individually, and in his official capacity as Casper Police Department Officer; WYATT SKAGGS, individually, and in his official capacity as Wyoming Public Defender; NANCY JOHNSON, individually, and in her official capacity as Wyoming Public Defender’s Office, Crime Victims Compensation Commission, Casper; GLORIA STEWART; SHARON COX; DIANE STEWART,

Defendants-Appellees No. 95-8072 (D.C. No. 95-CV-145) (D. Wyo.)* This order and judgment is not binding precedent, e xcept under the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.

** Honorable G. Thomas Van Bebber, Chief Judge, UnitedStates District Court for the District of Kansas, sitting by design ation.

1 Although it dismissed his complaint as frivolous, the district court granted appellant leave to proceed in forma pauperis in thi s appeal. Both the notice of appeal and the district court’s order were entered prior to enactment of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26, 1996), and so the Act’s amendments to 28 U.S.C. § 1915 do not apply here. White v. Gregory , 87 F.3d 429, 430 (1996). -2- ORDER AND JUDGMENT *

Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist 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. Plaintiff-appellant Kevin Lacey appeals from the di strict court’s order dismissing his civil rights complaint as frivolous under 28 U.S.C. § 1915(d). 1 Appellant contends that his complaint was not frivo lous, because it alleged the following violations of his civil rights:-3-

(1) The defendants conspired to convict him of kid naping and aggravated assault and battery in violation of the Double Jeop ardy Clause; (2) The defendants conspired to introduce, and int roduced, perjured testimony in support of his conviction; (3) His public defender was ineffective and neglig ent, and defamed him and prejudiced his defense by making comments adver se to him both in court and in interviews with a newspaper reporter; (4) The defendants subjected him to search and sei zure which was illegal because of the double jeopardy violation; (5) The defendants conspired to seal the record of appellant’s prior restraining order proceeding in order to allow him to be convicted in violation of the Double Jeopardy Clause; and (6) The state court judge assigned to his case err ed in rulings made during his trial, and made comments prejudicial to the def ense. Courts may dismiss in forma pauperis complaints as “frivolous” if they rely on “inarguable legal conclusion[s]” or “fanciful fa ctual allegation[s].” Neitzke v. Williams , 490 U.S. 319, 325 (1989). We review the districtcourt’s dismissal for frivolousness for abuse of discretion. Green v. Se ymour , 59 F.3d 1073, 1077 (10th Cir. 1995).-4-

Appellant fails to set forth in his complaint any f acts which would support his wide-ranging conspiracy claims. See id. His allegation that the defendants knew that his prosecution for assault and kidnaping was a violation of the Double Jeopardy Clause, and acted on this knowledge by con spiring against him, is utterly unfounded. See United States v. Ursery , 116 S. Ct. 2135, 2142 (1996)(action taken against offender under remedial statute is not “punishment” which can form the basis for a double jeopardy viol ation). Moreover, appellant’s claims that he was convicted by use of perjured testimony or in violation of the Double Jeopardy Cl ause are not cognizable in this § 1983 action. He fails to show that his underlyin g conviction “has been reversed on direct appeal, expunged by executive order, decl ared invalid by a state tribunal authorized to make such determination, or called in to question by a federal court’s issuance of a writ of habeas corpus.” Heckv. Humphrey , 114 S. Ct. 2364, 2372 (1994). We note that the Wyoming Supreme Court has rejected appellant’s claim that his conviction was obtained by the use o f perjured testimony. See Lacey v. State , 803 P.2d 1364, 1369 (Wyo. 1990). A public defender who performs a lawyer’s tradition al function as counsel to a defendant in a criminal proceeding is not acti ng “under color of law” for2 Appellant alleges, for the first time on appeal, th at his public defender

made adverse comments to a newspaper reporter. Thi s claim was not part of his complaint, and we do not consider it in assessing f rivolousness. -5- purposes of § 1983. Polk County v. Dodson , 454 U.S. 312, 325 (1981). The conduct complained of by appellant’s public defende r falls within this rule. 2 The state court judge had absolute immunity for his actions, unless they were nonjudicial, or taken in the complete absence of all jurisdiction. Mireles v.
Waco , 502 U.S. 9, 11-12 (1991). The rulings and commen ts made during appellant’s trial, as described by appellant in his complaint and explained in his brief, do not meet this standard. We conclude that the district court did not abuse i ts discretion in dismissing appellant’s complaint as frivolous under § 1915(d). The judgment of the United States District Court for the District of Wyoming i s AFFIRMED. Appellant’s motion to strike defendants’ brief is DENIED.

Entered for the Court

Mary Beck Briscoe Circuit Judge