[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 23, 2006

THOMAS K. KAHN

N o . 06-10335

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 05-20828-CV-DLG

M O N T G O M E R Y BLAIR SIBLEY,

Plaintiff-Appellant,

versus

JAY LEVY,

Defendant-Appellee.

A p p e al from the United States District Court

fo r the Southern District of Florida

(O cto b er 23, 2006)

B efo re TJOFLAT, CARNES and PRYOR, Circuit Judges.

P E R CURIAM:

M o n tg o m ery Blair Sibley, an attorney proceeding pro se, appeals the grant

o f attorney's fees to Jay Levy, the defendant, which were awarded pursuant to 42 U .S .C . § 1988, because the complaint that Sibley brought against Levy, under 42 U .S .C . §§ 1983, 1985(2), was frivolous. The substance of the underlying co m p lain t was that Sibley saw, but did not hear, the substance of a conversation b e tw e en Levy and two Florida appellate court judges in a lounge during a court recess, and, the conversation violated Sibley's rights under §§ 1983, 1985(2). The d istrict court found that Levy was entitled to attorney's fees because: (1) Sibley did n o t and could not establish a prima facie action under either section; (2) his case w as dismissed before trial; and (3) it was without merit or foundation.

S ib ley argues on appeal that the district court erred in finding that his co m p lain t was frivolous, and, additionally, because he was not allowed to amend h is complaint to respond to the deficiencies, there was a violation of his due p ro cess rights and an abuse of discretion.

W e review the district court's imposition of attorneys' fees and costs p u rsu an t to § 1988 for an abuse of discretion. Baker v. Alderman, 158 F.3d 516, 5 2 1 (11th Cir. 1998). "`An abuse of discretion occurs if the judge fails to apply the p ro p er legal standard or to follow proper procedures in making the determination, o r bases an award upon findings of fact that are clearly erroneous.'" ACLU v. B arn es, 168 F.3d 423, 427 (11th Cir. 1999) (quoting In re Hillsborough Holdings C o r p ., 127 F.3d 1398, 1401 (11th Cir. 1997)).

U n d e r § 1988, a prevailing defendant is entitled to recover attorney's fees if "the plaintiff's action was frivolous, unreasonable, or without foundation, even th o u g h not brought in subjective bad faith." Christiansburg Garment Co. v. EEOC, 4 3 4 U.S. 412 , 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). "In determining w h eth er a suit is frivolous, `a district court must focus on the question whether the case is so lacking in arguable merit as to be groundless or without foundation rath er than whether the claim was ultimately successful.'" Sullivan v. Sch. Bd. of P in ellas County, 773 F.2d 1182, 1189(11th Cir. 1985) (internal citation omitted).

The three factors we have noted to be used in determining if a claim was frivolous are: "(1) whether the plaintiff established a prima facie case; (2) whether the d efen d an t offered to settle; and (3) whether the trial court dismissed the case prior to trial or held a full-blown trial on the merits." Id. Typically, cases that are friv o lo u s have been dismissed before trial, on summary judgment or on a motion to d ism iss. Id.

S e ctio n 1983 creates a civil remedy against any person who deprives another o f a constitutional or federal right under color of state law. 42U.S.C. § 1983. In o r d e r to prevail in a § 1983 action, a plaintiff must show that he was deprived of a fed eral right by a person acting "under color of state law." Griffin v. City of O p a - L o c k a , 261 F.3d 1295, 1303 (11th Cir. 2001). "Only in rare circumstances can a private party be viewed as a 'state actor ' for § 1983 purposes." Harvey v. H arv ey, 949 F.2d 1127, 1130 (11th Cir. 1992). Section 1985(2) creates a private cau se of action against any two or more people who conspire to (1) threaten, in tim id ate, or forcefully deter any party or witness from testifying truthfully or atten d in g court, (2) injure a witness or party for attending court or testifying, (3) in flu en ce the verdict, or (4) hinder the course of justice in any manner with the in ten t or depriving a citizen of the equal protection of the law. 42U.S.C. § 1 9 8 5 (2 ). A § 1985 claim requires "some racial, or perhaps otherwise class-based, in v id io u s ly discriminatory animus behind the conspirators' action." United B ro th erh o o d of Carpenters & Joiners of America, Local 610 v. Scott, 463 U.S.

8 2 5 , 835, 103 S.Ct. 3352, 3359, 77 L.Ed.2d 1049 (1983); Childree, 92 F.3d at 1147.

The district court did not abuse its discretion in granting attorney's fees as it p r o p e rly used the Sullivan frivolity test and determined that Sibley's claim was m eritless because Sibley failed to state a prima facie case under 42U.S.C. §§ 1983, 1 9 8 5 ( 2 ) . As to his other arguments ­ the denial of due process the district court a b u s e of discretion by denying his claim without allowing him to amend ­ Sibley is attempting to appeal the underlying judgment dismissing his complaint, which w e cannot hear, as that the appeal has been dismissed for a failure to prosecute.

AFFIRMED.