and New York State laws. By Order dated September 14, 1993, the Court dismissed all claims against the A.S.P.C.A. and the City Defendants, except the Fourth Amendment claim against Officer Martinez for entering Osipova's apartment without permission. By Memorandum Opinion and Order dated October 6, 1994, the Court dismissed the claim against Officer Martinez on the basis of qualified immunity.
Clarke is the sole remaining defendant in the instant action. Read liberally, see Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), Osipova's petition claims that Clarke conspired with Officer Martinez to violate Osipova's Fourth Amendment rights by unlawfully entering her apartment. In moving for summary judgment, Clarke argues that Osipova cannot, as a matter of law, establish a claim of conspiracy between Clarke and any of the City Defendants.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where, as here, "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (discussing standards governing motion for summary judgment); see also Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
Under 42 U.S.C. § 1983, a plaintiff must prove that he was deprived of a right secured by the constitution and laws of the United States. See Adickes v. Kress & Co., 398 U.S. 144, 150, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1969). Where, as here, a private party is charged with a constitutional violation, the plaintiff must prove state action. Id. A plaintiff must establish state action by showing that the private party acted together with, or obtained significant aid from, state officials or that her conduct is otherwise attributable to the state. See Lugar v. Edmondson Oil Company, Inc., 457 U.S. 922, 937, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). Under § 1983, state action requires a showing that a private party acted "under color of" state law by conspiring or jointly participating with a state official to violate the plaintiff's constitutional rights. See id. at 931, 941 (explaining holding in Adickes, supra). Alternatively, a plaintiff may prove state action by establishing that the state procedures employed were constitutionally suspect. See Lugar, 457 U.S. at 933.
Where, as here, a private party merely invokes state legal procedures not alleged to be constitutionally suspect, no cognizable claim under § 1983 arises. See id. at 939 n.21. Nor can any alleged private misuse of a state statute, without more, be attributable to the state under § 1983. See id. at 941; see also Dahlberg v. Becker, 748 F.2d 85, 91 (2d Cir. 1984); cert. denied 470 U.S. 1084, 85 L. Ed. 2d 144, 105 S. Ct. 1845 (1985) (private party's misuse of New York's Judiciary Law, resulting in plaintiff's unconstitutional imprisonment, not fairly attributable to state).
Osipova's complaint must be dismissed because she has failed to set forth any facts supporting her allegation of a conspiracy between Officer Martinez and Clarke. The Court granted Officer Martinez qualified immunity on the ground that "the undisputed facts establish that there was an objectively reasonable basis for Martinez to believe there existed an exigency threatening the health and safety of the tenants such that he had the right to enter Osipova's apartment without a warrant." Osipova, 864 F. Supp. at 364. The record is devoid of any facts which could rationally support a finding that Officer Martinez believed he was violating Osipova's constitutional rights, or that a conspiracy between Clarke and Officer Martinez existed. Nor does Osipova set forth any basis supporting the conclusion that the police procedures followed by Officer Martinez were unconstitutional or otherwise improper. Indeed, Osipova makes no such claim.
Because Clarke's motion is dispositive of the federal claim, Osipova's pendent state law claims are dismissed without prejudice for lack of subject matter jurisdiction. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).
For the reasons stated above, Clarke's motion for summary judgment shall be and is hereby granted as to the federal claim, the remaining state claims shall be and are hereby dismissed. The Clerk of Court shall enter judgment and close the above-captioned action.
It is SO ORDERED.
Dated: New York, New York
December 7, 1995
John E. Sprizzo
United States District Judge
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