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* This order and judgment is not binding precedent, except under the

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

** Honorable G. Thomas Van Bebber, Chief Judge, United States District

Court for the District of Kansas, sitting by designation. 

1 Although it dismissed his complaint as frivolous, the district court granted

appellant leave to proceed in forma pauperis in this 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, this 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 case is therefore

ordered submitted without oral argument.

Plaintiff-appellant Kevin Lacey appeals from the district 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 frivolous, because it alleged the

following violations of his civil rights:
-3-

(1) The defendants conspired to convict him of kidnaping and aggravated

assault and battery in violation of the Double Jeopardy Clause;

(2) The defendants conspired to introduce, and introduced, perjured

testimony in support of his conviction; 

(3) His public defender was ineffective and negligent, and defamed him

and prejudiced his defense by making comments adverse to him both in court and

in interviews with a newspaper reporter;

(4) The defendants subjected him to search and seizure 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 erred in rulings made during

his trial, and made comments prejudicial to the defense.

Courts may dismiss in forma pauperis complaints as “frivolous” if they rely

on “inarguable legal conclusion[s]” or “fanciful factual allegation[s].” Neitzke v.

Williams, 490 U.S. 319, 325 (1989). We review the district court’s dismissal for

frivolousness for abuse of discretion. Green v. Seymour, 59 F.3d 1073, 1077

(10th Cir. 1995).
-4-

Appellant fails to set forth in his complaint any facts 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 conspiring 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 violation). 

Moreover, appellant’s claims that he was convicted by use of perjured

testimony or in violation of the Double Jeopardy Clause are not cognizable in this

§ 1983 action. He fails to show that his underlying conviction “has been reversed

on direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal

court’s issuance of a writ of habeas corpus.” Heck v. 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 of perjured testimony. See

Lacey v. State, 803 P.2d 1364, 1369 (Wyo. 1990).

A public defender who performs a lawyer’s traditional function as counsel

to a defendant in a criminal proceeding is not acting “under color of law” for
2 Appellant alleges, for the first time on appeal, that his public defender

made adverse comments to a newspaper reporter. This claim was not part of his

complaint, and we do not consider it in assessing frivolousness.

-5-

purposes of § 1983. Polk County v. Dodson, 454 U.S. 312, 325 (1981). The

conduct complained of by appellant’s public defender 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 comments 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 its discretion in dismissing

appellant’s complaint as frivolous under § 1915(d). The judgment of the United

States District Court for the District of Wyoming is AFFIRMED. Appellant’s

motion to strike defendants’ brief is DENIED.

Entered for the Court

Mary Beck Briscoe 

Circuit Judge