Summary
affirming sua sponte dismissal of pro se § 1983 complaint that was frivolous for failure to allege that defendant attorney acted under color of state law
Summary of this case from Mitchell v. Conn. Region 14 Dist. Probate CourtOpinion
No. 08-4920-pr.
April 26, 2010.
Appeal from a judgment of the United States District Court for the District of Connecticut (Alvin W. Thompson, Judge).
UPON CONSIDERATION WHERE-OF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Randal Licari, Newtown, CT, pro se.
Anthony Nuzzo, Jr., Nuzzo Roberts, L.L.C., Chesire, CT, for Appellant.
PRESENT: JOSÉ A. CABRANES, RICHARD C. WESLEY, Circuit Judges.
The Honorable Rosemary S. Pooler, originally scheduled to be a member of the panel hearing this appeal, was unable to participate. The appeal has been decided by the remaining two members of the panel, who are in agreement. See 2d Cir. Local Rules, Internal Operating Procedure E(b).
SUMMARY ORDER
Plaintiff Randal Licari appeals from the September 30, 2008 judgment of the District Court dismissing plaintiffs complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). On appeal, plaintiff argues that the District Court erred in dismissing plaintiffs claims under 42 U.S.C. § 1983 because defendant was a private attorney, and not a state actor. Plaintiff also reasserts on appeal claims that could be construed as state law tort claims, over which the District Court declined to exercise supplemental jurisdiction because both plaintiff and defendant are residents of Connecticut. We assume the parties' familiarity with the facts and procedural history of this case.
28 U.S.C. § 1915, providing for in forma pauperis proceedings in the federal courts, states, in relevant part, as follows: "[T]he court shall dismiss the case at any time if the court determines that . . . the action or appeal is frivolous or malicious.' § 1915(e)(2)(B)(1).
First, we review the District Court's dismissal of Licari's claims under 42 U.S.C. § 1983. We review the District Court's sua spante dismissal of plaintiffs complaint de novo. See Giano v. Goord, 250 F.3d 146, 149-150 (2d Cir. 2001). To successfully state a claim under 42 U.S.C. § 1983, a plaintiff must allege that the defendant was acting under color of state law. Here, plaintiff alleges that Voog, a private attorney hired by Licari to represent him during criminal proceedings, committed malpractice. It is well established that private attorneys — even if the attorney was court appointed — are not state actors for the purposes of § 1983 claims. See Rodrigmz v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997). Accordingly, a suit alleging that Voog violated Licari's rights under federal law is frivolous, and thus the District Court did not err in dismissing plaintiffs claims under § 1983.
Next, we review the District Court's dismissal of Licari's related state law claims. Construing Licari's complaint liberally, the District Court determined that Licari asserted various state law tort claims. The District Court, however, concluded that it lacked jurisdiction to resolve these claims, since both plaintiff and defendant are residents of Connecticut and no claims arising under federal law remained. We conclude that the District Court did not err in dismissing plaintiffs remaining state law claims for lack of jurisdiction.
Because pro se litigants are granted wide latitude with procedural rules, see In re Sims, 534 F.3d 117, 133 (2d Cir. 2008), we construe the appellant's submission of August 20, 2009 as a motion for leave to file an amended brief, which we grant. We have therefore considered the appellant's submission as a part of the record. Nevertheless, for the reasons set forth in this order, we find the arguments stated therein to be without merit.
For the reasons stated above, the September 30, 2008 judgment of the District Court is AFFIRMED.