UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
August 1, 2006
DAVID J. SAFRAN, PLAINTIFF,
JOSEPH SAPIO, ATTORNEY AT LAW, DEFENDANT.
The opinion of the court was delivered by: Neal P. McCURN, Senior Judge
DECISION & ORDER
Presently before the Court is a civil rights complaint filed by Plaintiff David J. Safran.*fn1
Dkt. No. 1. Plaintiff, who is incarcerated at Auburn Correctional Facility, also filed an application to proceed in forma pauperis. Dkt. No. 2.
In his complaint, Plaintiff claims that Defendant, his former assigned counsel, failed to provide effective assistance of counsel. Dkt. No. 1, Complaint at pp. 4-5. Plaintiff claims that Defendant "orchestrated" Plaintiff's "illegal" incarceration at Cayuga County Jail from May 24, 2005 to December 14, 2005. Id. at p. 5. Plaintiff also alleges that Defendant failed to file a state petition for writ of habeas corpus, failed to "allow" Plaintiff to sign release papers, and failed to resign after Plaintiff filed a grievance against Defendant. Id. at pp. 4-5. For a complete statement of Plaintiff's claims, reference is made to the complaint.
Consideration of whether a pro se plaintiff should be permitted to proceed in forma pauperis is a two-step process. First, the Court must determine whether the plaintiff may proceed with the action without pre-paying, in full, the statutory filing fee. The Court must then consider whether the causes of action stated in the complaint are, inter alia, frivolous or malicious, or if they fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. 1915A(b).
A. Application to Proceed in Forma Pauperis
Based upon a review of Plaintiff's in forma pauperis application, the Court finds that Plaintiff has demonstrated sufficient economic need. See Dkt. No. 2.
B. Sufficiency of the Complaint
Since the Court has found that Plaintiff meets the financial criteria for commencing this case in forma pauperis, the Court must consider the sufficiency of the complaint in light of 28 U.S.C. § 1915(e). Section 1915(e) directs that when a plaintiff seeks to proceed in forma pauperis, the Court:
(2) [S]hall dismiss the case at any time if the court determines that -***
(B) the action ... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B). Thus, even if a plaintiff meets the financial criteria to commence an action in forma pauperis, it is the Court's responsibility to determine that a complaint may properly be maintained in this District before it may permit the plaintiff to proceed with his or her action in forma pauperis. Id.
Plaintiff has sued Defendant, his former appointed counsel, for allegedly failing to provide effective assistance of counsel. However, parties may not be held liable under 42 U.S.C. § 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, 628 (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, J.) (citing Velaire v. City of Schenectady, 862 F.Supp. 774, 776 (N.D.N.Y. 1994) (McAvoy, C.J.) (citation omitted)). It is the plaintiff's duty to allege that the defendant acted under color of state law, and if a plaintiff fails to plead that element of his claim, a court may dismiss an action under 28 U.S.C. § 1915(e). See, e.g., Giannini v. Pearson et al., No. 95-CV-1669, slip op. at 4 (N.D.N.Y. Dec. 28, 1995), appeal dismissed (2d Cir. Apr. 19, 1996); Carollo-Gardner v. Diners Club, 628 F.Supp. 1253, 1256 (E.D.N.Y. 1986) (dismissing as frivolous pro se complaint in which the plaintiff failed to allege state action by defendants) (citations omitted). It is well established that court-appointed attorneys performing a lawyer's traditional functions as counsel to defendants do not act "under color of state law;" and therefore are not subject to suit under § 1983. Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir. 2004) (citing Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (other citation omitted)).
In the instant action, Defendant, as Plaintiff's former appointed attorney, is not subject to suit under § 1983 because he did not act under color of state law. Accordingly, the complaint must be dismissed for failure to state a claim upon which relief may be granted.
WHEREFORE, it is hereby
ORDERED that the complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief may be granted, and it is further
ORDERED that in light of the dismissal of this action, Plaintiff's in forma pauperis application is DENIED as moot, and it is further
ORDERED that the Clerk serve a copy of this Order on Plaintiff. IT IS SO ORDERED.