Opinion
06 Civ. 3468 (KMW) (DCF).
July 30, 2007
OPINION AND ORDER
Plaintiff Nonna Osipova brings this suit pro se, alleging that Defendants, landlord and building manager, violated her federal constitutional rights by subjecting her to a pattern of neglect, harassment, and abuse for the past several years. By report and recommendation dated March 15, 2007 ("Report"), Magistrate Judge Debra C. Freeman recommended that the Court dismiss Plaintiff's Complaint sua sponte for failure to state a claim upon which relief can be granted. Plaintiff objected to portions of the Report. For the reasons set forth below, the Court adopts the Report and dismisses Plaintiff's Complaint without prejudice.
BACKGROUND
Magistrate Judge Freeman's Memorandum and Order dated February 7, 2007 ("Memorandum and Order") contains a more detailed description of the facts, familiarity with which is assumed. See Osipova v. J J Holding Co., 06 Civ. 3486 (KMW) (DCF), 2007 WL 430423, at *2-3 (S.D.N.Y. Feb. 8, 2007) (Dkt. No. 7).
Plaintiff commenced this pro se action on May 8, 2006, purporting to assert claims for money damages against Defendants under the Fourteenth, First, and Fourth Amendments to the United States Constitution. In the Memorandum and Order, Magistrate Judge Freeman ordered Plaintiff to show why her Complaint should not be dismissed sua sponte for failure to state a claim upon which relief can be granted. See Osipova, 2007 WL 430423, at *4 (Dkt. No. 7). Plaintiff filed papers opposing dismissal of her claim on March 9, 2007.
Magistrate Judge Freeman subsequently issued the Report, which recommended that the Court dismiss Plaintiff's complaint sua sponte. Plaintiff filed timely written objections to the Report on March 28, 2007.
STANDARD OF REVIEW
DISCUSSION
de novo See28 U.S.C. § 63672 See McCarthy v. Dun Bradstreet Corp. 482 F.3d 184191pro se See Triestman v. Fed. Bureau of Prisons 470 F.3d 471474
A district court may dismiss a complaint sua sponte for failure to state a claim only where plaintiff has been given "notice and an opportunity to be heard." Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (internal citations and quotations omitted). The Memorandum and Order, which afforded Plaintiff both notice of the potential dismissal of her Complaint, and an opportunity to oppose the recommended dismissal, satisfies this requirement. See Maaouirk v. Phillips, 144 F.3d 348, 359 (5th Cir. 1998) (finding magistrate's report sufficient to satisfy notice and hearing requirement for sua sponte dismissal by the district court).
Plaintiff asserts that Defendants' conduct violated her due process rights under the Fourteenth Amendment, and her rights under the First and Fourth Amendments, as applied to the states by the Fourteenth Amendment. See generally Complaint (Dkt. No. 1). These allegations are best construed as a claim under 42 U.S.C. § 1983 ("Section 1983"), which creates a cause of action against persons who, acting "under color of state law," deprive another of rights created by the Constitution and laws of the United States. See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 924 (1982). Where, as here, Plaintiff alleges that private individuals violated her constitutional rights, Plaintiff must prove that their conduct constituted "state action" in order to properly state a claim under Section 1983. See United States v. Price, 383 U.S. 787, 794 n. 7 (1966) (interpreting "under color of state law" language to be the same as "state action" requirement of the Fourteenth Amendment).
Plaintiff fails to plead sufficient facts to show that Defendants' conduct amounted to "state action." As Magistrate Judge Freeman correctly found, nothing in Plaintiff's submissions, even liberally construed, indicates that Defendants' conduct was anything other than acts of private persons. See Report at 2-3 (Dkt. No. 10). Consequently, Plaintiff fails to state a claim under Section 1983.
CONCLUSION
The Complaint is DISMISSED without prejudice for failure to state a claim upon which relief can be granted. The Clerk of Court is hereby ordered to close this case. All pending motions are moot.
SO ORDERED.