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Voght v. Voght

July 14, 2006

GILBERT M. VOGHT, PLAINTIFF,
v.
SGT. DANIEL R. VOGHT; LORRAINE MARY CAGWIN VOGHT HARRISON; MONTGOMERY COUNTY SHERIFF'S DEPARTMENT; AND NEW YORK STATE POLICE DIVISION HEADQUARTERS, DEFENDANTS.



The opinion of the court was delivered by: Norman A. Mordue, Chief United States District Judge

DECISION and ORDER

I. Background

The Clerk of the Court has sent Plaintiff Gilbert M. Voght's amended complaint to the Court for its review. The amended complaint was submitted by Plaintiff in compliance with the Order issued by this Court on October 5, 2005.*fn1 Dkt. No. 4 ("October Order").

In Plaintiff's pro se amended complaint, he alleges that Defendant Sgt. Daniel R. Voght filed false charges against Plaintiff, stole items from Plaintiff's property, and harassed Plaintiff. Dkt. No. 10 at 3-4. Plaintiff also alleges that when he sought help from the Defendants employed by the Montgomery County Sheriff's Department or the New York State Police, they denied him assistance and protection in violation of Plaintiff's right to equal protection. Id. at 3-5. For a more complete statement of Plaintiff's claims, reference is made to his amended complaint. Dkt. No. 10.

A. Defendant Sgt. Daniel R. Voght

Plaintiff has commenced this action pursuant to 42 U.S.C. § 1983 ("Section 1983"). Section 1983 establishes a cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. German v. Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote omitted); see also Myers v. Wollowitz, No. 95-CV-0272, 1995 WL 236245, *2 (N.D.N.Y. Apr. 10, 1995) (McAvoy, C.J.) (§ 1983 "is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights.") (citation omitted).

Parties may not be held liable under Section 1983 unless it can be established that they have acted under the color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625 (2d Cir. 1994) (noting state action requirement under § 1983); Wise v. Battistoni, 92-Civ-4288, 1992 WL 380914, *1 (S.D.N.Y. Dec. 10, 1992) (same) (citations omitted). State action is an essential element of any § 1983 claim. See Gentile v. Republic Tobacco Co., No. 95-CV-1500, 1995 WL 743719, *2 (N.D.N.Y. Dec. 6, 1995) (Pooler, D.J.) (citing Velaire v. City of Schenectady, 862 F.Supp. 774, 776 (N.D.N.Y. 1994) (McAvoy, C.J.) (citation omitted)).

In this Court's October Order, Plaintiff was advised that In order to maintain a section 1983 action, two essential elements must be present: (1) the conduct complained of must have been committed by a person acting under color of state law; and (2) the conduct complained of must have deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Courts have had frequent occasion to interpret the term "color of law" for the purposes of section 1983 actions, and it is by now axiomatic that "under 'color' of law means under 'pretense' of law" and that "acts of officers in the ambit of their personal pursuits are plainly excluded." Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1495 (1945).

Pitchell v. Callan, 13 F.3d 545, 547-48 (2d Cir. 1994); see also Costello v. Norton, No. 96-CV-1634, 1998 WL 743710, at *10 (N.D.N.Y. Oct. 21, 1998) (a state trooper acting in his capacity as a private citizen is not acting under color of state law).

Dkt. No. 4 at 5. Plaintiff was also advised in the October Order that "because defendant Daniel R. Voght retired from the State Police force around June 2004, it is clear that any acts taken by Daniel R. Voght after that date were not done under color of law." Id. Plaintiff was further advised that any amended complaint must clearly allege state action on the part of Defendant Daniel R. Voght, or Defendant Daniel R. Voght will be dismissed from this action.

The majority of the alleged wrongdoing against Daniel R. Voght occurred after June 2004 --when Daniel R. Voght retired from the New York State Troopers -- therefore this alleged wrongdoing cannot be said to have occurred under color of state law. Moreover, it does not appear that Daniel R. Voght was acting "under color of law" in his dealings with the Plaintiff. Instead, it appears that the disputes between Plaintiff and Daniel R. Voght -- Plaintiff's brother -- were personal in nature. Accordingly, Daniel R. Voght is dismissed as a defendant to this action.

B. Montgomery County Sheriff Department and New York State Police Headquarters

Plaintiff's amended complaint contains no allegations against the Montgomery County Sheriff's Department or New York State Police Headquarters and neither of these entities are included in the caption of Plaintiff's amended complaint. ...


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