IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
ROBERT STEVEN MIX
Civil No. 06-5163
PUBLIC DEFENDER’S OFFICE;
JAY SAXTON, Chief Public
Defender; and JANETTE
McKINNEY, Chief Deputy
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff’s complaint was filed September 1, 2006. He proceed pro se and in forma
pauperis Before the undersigned is the issue of whether the complaint should be served.
Mix contends his public defender, Janette McKinney, did nothing to defend him against
state criminal charges. He names as defendants McKinney, Jay Saxton, the chief public
defender, and the Public Defender’s Office.
As relief, he asks that McKinney be fired. Mix also asks for compensatory damages.
Mix’s claims are subject to dismissal. The defendants are not subject to suit under §
1983. A § 1983 complaint must allege that each defendant, acting under color of state law,
deprived plaintiff of "rights, privileges or immunities secured by the Constitution and laws" of
the United States. 42 U.S.C. § 1983. DuBose v. Kelly, 187 F.3d 999 (8th Cir. 1999). An
attorney does not act under color of state law while representing a client. Polk County v.
Dodson, 454 U.S. 312, 318, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981) (public defender does not
Case 5:06-cv-05163-JLH Document 5 Filed 09/14/2006 Page 1 of 2
Mix v. Public Defender's Office et al
act under color of state law when performing traditional functions as counsel); DuBose v. Kelly,
187 F.3d 999 (8th Cir. 1999)(“[C]onduct of counsel generally does not constitute action under
color of law.”); Dunn v. Hackworth, 628 F.2d 1111, 1112 (8th Cir. 1980)(“The actions of
privately retained counsel are not considered state action and therefore cannot form the basis of
a § 1983 claim.”).
I therefore recommend the case be dismissed on the grounds the claims are frivolous or