Opinion
5:24-cv-1003 (BKS/TWD)
11-25-2024
MICHAEL D. DARLING, Plaintiff, v. JOSEPH M. SISE, Defendant.
MICHAEL D. DARLING Plaintiff, pro se
MICHAEL D. DARLING Plaintiff, pro se
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, United States Magistrate Judge
I. INTRODUCTION
Currently before the Court for sufficiency review is an amended complaint filed by pro se plaintiff Michael D. Darling (“Plaintiff”). Dkt. No. 16. For the reasons set forth below, the undersigned recommends the amended complaint be dismissed.
II. BACKGROUND
Plaintiff commenced the instant action by filing a complaint on August 15, 2024, see Dkt. No. 1, along with a motion to proceed in forma pauperis (“IFP”), see Dkt. Nos. 2, 4. In his complaint, Plaintiff alleged Defendant Joseph M. Sise (“Defendant”) “violated Article VI of the U.S. constitution” as well as, inter alia, Plaintiff's “fourth, fifth, sixth and fourteenth amendment[]” rights. Dkt. No. 1 at 4.
Citations to Plaintiff's submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
The matter was assigned to the undersigned for sufficiency review pursuant to 28 U.S.C. § 1915, and prior to this Court's Report and Recommendation, a document purporting to be an answer submitted on behalf of the Defendant was filed. See Dkt. No. 9. The undersigned directed the Clerk to strike the answer by text order, explaining: “if the complaint is accepted for filing once the initial review is complete, the Court will issue a summons and make further directions regarding service of the complaint.” Dkt. No. 10.
By Report-Recommendation and Order dated October 25, 2024, the undersigned granted Plaintiff's IFP application and recommended dismissal of the complaint for lack of subject matter jurisdiction. See generally, Dkt. No. 11. On November 15, 2024, Plaintiff filed a submission, see generally, Dkt. No. 16, which the Honorable Brenda K. Sannes, Chief U.S. District Judge, construed as an amended complaint, Dkt. No. 18, and referred to the undersigned for review.
III. LEGAL STANDARD
This Court previously set forth the legal standards for review under 28 U.S.C. §§ 1915 and 1915A, see Dkt. No. 11 at 3-4, therefore, those standards will not be repeated here.
IV. ANALYSIS
In his submission which was construed as an amended complaint, Plaintiff appears to respond to the stricken answer, see, e.g., Dkt. No. 16 at 3 (“Mr. Sise states . . . in the ‘Answer' document.”), and provides additional allegations about Defendant's representation of Plaintiff in the criminal matter discussed in his complaint. Compare Dkt. No. 16, with Dkt. No. 1. Plaintiff avers “Mr. Sise is guilty of violating many state and Federal laws, rules and regulations.” Dkt. No. 16 at 15. He argues:
Mr. Sise under the Federal Constitution violated Mr. Darling's 5th, 6th and 14th Amendments. He has conspired with the judge and DA to get easy money for little or no work in belief Mr. Darling is a criminal and stupid. Mr. Darling demands a jury trial (his right) to prove to the court that he is entitled to $25,000 refund or for the judge to enforce Mr. Sise to pay the money back to Mr. Darling. Mr. Darling also believes Mr. Sise should pay a penalty for his actions.Id. at 15. For a complete statement of Plaintiff's allegations, reference is made to his submissions.
As previously explained, federal courts exercise limited jurisdiction pursuant to Article III of the U.S. Constitution. “When subject matter jurisdiction is lacking, ‘the district court lacks the power to adjudicate the merits of the case ....'” Green v. Dep't of Educ. of City of New York, 16 F.4th 1070, 1074 (2d Cir. 2021) (quoting Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54 (2d Cir. 2016)).
Subject matter jurisdiction can be established either through federal question or diversity jurisdiction. Under 28 U.S.C. § 1331, a case arising under the Constitution, laws, or treaties of the United States[ ] is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State, and the amount in controversy is more than $75,000, is a diversity case.Lewis v. Despos, LLC, No. 8:24-CV-0079 (AMN/CFH), 2024 WL 2846991, at *7 (N.D.N.Y. June 5, 2024) (internal quotations omitted), report and recommendation adopted, 2024 WL 3371063 (N.D.N.Y. July 11, 2024).
Here, given Plaintiff's allegations that the Defendant violated his constitutional rights, it is apparent Plaintiff seeks to invoke this Court's federal question jurisdiction. However, “[b]ecause the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes ‘state action.'” Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d 178, 186 (2d Cir. 2005) (quoting United States v. Int'l. Bhd. of Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991)) (emphasis added, internal quotations omitted). “To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.” Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (emphasis added).
Even afforded a liberal construction, Plaintiff's submissions lack any facts suggesting Mr. Sise acted under color of state law. “The law is well established that attorneys, whether privately-retained or court-appointed, do not act under color of state law when they perform traditional functions of counsel.” Saio Barzee v. Aaron M. Wilson, Jr., et al., No. 5:24-CV-1237 (DNH/MJK), 2024 WL 4751552, at *10 (N.D.N.Y. Nov. 12, 2024) (collecting cases); see also, e.g., Bulluck v. Benjamin, No. 3:24-CV-0347 (GTS/ML), 2024 WL 4250316, at *3 (N.D.N.Y. July 11, 2024) (explaining, “private attorneys[] are not state actors.”).
Therefore, “[t]o the extent plaintiff wishes to sue his attorney . . . he cannot proceed under section 1983.” Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024 WL 2747619, at *5 (N.D.N.Y. May 29, 2024), report and recommendation adopted sub nom. Ali v. Dow, 2024 WL 3460745 (N.D.N.Y. July 18, 2024). Next,
to the extent plaintiff may wish to allege that his defense counsel engaged in a conspiracy with the prosecutors and/or [the state court] to deprive him of his constitutional rights, pursuant to 42 U.S.C. § 1983, “[a] conclusory allegation that a private individual acted in concert with a state actor does not constitute a plausible allegation that the private individual acted under color of state law.”Id. at *6 (quoting Wilson v. Flanders, No. 3:23-CV-0263 (DNH/TWD), 2023 WL 3251992, at *4 (N.D.N.Y. May 4, 2023), report and recommendation adopted, 2023 WL 3496372 (N.D.N.Y. May 17, 2023), and citing Bornschein v. Herman, 304 F.Supp.3d 296, 301 (N.D.N.Y. 2018)). Alternatively, “[t]o the extent plaintiff wishes to bring a legal malpractice claim against his attorney, this would be a state law claim.” Id. (citing Delap v. Mackey, No. 1:21-CV-0847 (LEK/CFH), 2021 WL 5991702, at *7 (N.D.N.Y. Sept. 15, 2021), report and recommendation adopted as modified, 2021 WL 5354762 (N.D.N.Y. Nov. 17, 2021)).
Accordingly, Plaintiff has failed to invoke federal question jurisdiction. Moreover, as with his original complaint, see Dkt. No. 11 at 6-7, Plaintiff has not alleged facts suggesting this Court's exercise of diversity jurisdiction would be proper. Because Plaintiff has failed to demonstrate the existence of a controversy over which this Court has subject matter jurisdiction, dismissal is required. However, “dismissals for lack of subject matter jurisdiction must be without prejudice ....” Green, 16 F.4th at 1074 (internal quotations and citation omitted).
Therefore, while the undersigned has serious doubts as to Plaintiff's ability to amend his complaint such that this court's exercise of jurisdiction over Mr. Sise would be proper, the amended complaint must be dismissed without prejudice.
V. CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED that Plaintiff's amended complaint (Dkt. No. 16) be DISMISSED WITHOUT PREJUDICE; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
IT IS SO ORDERED.
(Attachment Omitted)