Opinion
Civ. No. 05-767 JP/ACT.
August 3, 2005
ORDER OF DISMISSAL OF LAWSUIT WITHOUT PREJUDICE
The pro se Plaintiff filed this 42 U.S.C. § 1983 case on July 13, 2005. The Defendants are not a state entity or state officials. The Plaintiff alleges in this lawsuit that on December 6, 2000, Angelo Smith, Plaintiff's half-brother, was appointed trustee for Wilfred Smith's irrevocable trust as part of court proceedings in PB-00-61, Div. II, in the District Court of Otero County, New Mexico, Twelfth Judicial District. Wilfred Smith was Plaintiff's father. Plaintiff alleges that Defendants allowed Angelo Smith to fraudulently drain Wilfred Smith's trust account. Plaintiff alleges he was appointed the personal representative for Wilfred Smith's estate after Wilfred Smith passed away on September 5, 2002. The Plaintiff alleges that the Defendants violated his rights under the Fourteenth Amendment and violated other unspecified "self explanatory" rights and/or laws as well. Complaint at 3. Plaintiff asks for injunctive relief, namely, an audit of Wilfred Smith's trust account during the time Angelo Smith was its trustee.
Beatrice Wing, Wilfred Smith's sister, was appointed successor trustee on October 19, 2001.
A court may sua sponte dismiss a pro se complaint for failure to state a claim when it is "`patently obvious' that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile." McKinney v. State of Okla., Dept. of Human Services, Shawnee OK, 925 F.2d 363, 365 (10th Cir. 1991) (citations omitted)). See also 28 U.S.C. § 1915(e)(2)(B); Fed.R.Civ.P. 12(b)(6). "To state a claim for relief in an action brought under § 1983, [plaintiff] must establish that [he was] deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). When private parties are involved as defendants, as in this case, the plaintiff must satisfy two conditions to state a § 1983 claim: "First, the `deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.' Second, the private party must have `acted together with or . . . obtained significant aid from state officials' or engaged in conduct `otherwise chargeable to the State.'" Wyatt v. Cole, 504 U.S. 158, 162 (1992) (quoting Lugar v. Edmonson Oil Co. Inc., 457 U.S. 922, 937 (1982)). Here, even assuming that the Plaintiff meets the first condition, the Plaintiff has not alleged any facts nor is it likely that he could allege any facts to show that state officials aided the Defendants in allegedly violating Plaintiff's rights, or that the Defendants' alleged actions were somehow "chargeable" to the State of New Mexico. The Court, therefore, finds that the Plaintiff has not stated a valid § 1983 claim against the Defendants. In addition, Plaintiff's allegation that other "self explanatory" violations occurred is too vague to state a claim upon which relief may be granted.
IT IS ORDERED that this lawsuit is dismissed without prejudice.