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Adams v. Smith

August 9, 2007

KAREN MARIE ADAMS, FORMERLY KNOWN AS KAREN MARIE DAVIS, PLAINTIFF,
v.
KATHRYN WILSON SMITH; KENNETH L. SMITH; DONALD E. LOREMAN, SR., INDIVIDUALLY AND DOING BUSINESS AS KEESEVILLE LAUNDERETTE AND C & D ENTERPRISES; CAROLYN LOREMAN, INDIVIDUALLY AND DOING BUSINESS AS KEESEVILLE LAUNDERETTE AND C & D ENTERPRISES; MARK J. WHITNEY, INDIVIDUALLY AND AS MAYOR OF THE VILLAGE OF KEESEVILLE; GEORGE HEAD, INDIVIDUALLY AND AS JUSTICE OF THE VILLAGE COURT OF KEESEVILLE; EDWARD BEZIO, INDIVIDUALLY AND FORMER MAYOR OF THE VILLAGE OF KEESEVILLE; WILLIAM SEAVER, INDIVIDUALLY AND AS EMPLOYEE OF THE VILLAGE OF KEESEVILLE COURT; THE VILLAGE OF KEESEVILLE; EVAN BRACY; NILES, PILLAR, & BRACY; THOMAS G. TOBIN, SR.; STANDARD FEDERAL BANK, AS SUCCESSOR BY MERGER TO ABN AMRO MORTGAGE GROUP, IT SUCCESSORS IN INTEREST, AGENTS &/OR ASSIGNS, AGENT FOR SECRETARY OF HOUSING & URBAN DEVELOPMENT ("HUD"); WILLIAM O'CONNOR; AND THE STATE OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Lawrence E. Kahn, United States District Judge.

DECISION and ORDER

I. Background

The Clerk of the Court has sent Plaintiff Karen Marie Adams' second amended complaint to the Court for its review. The second amended complaint was submitted by Plaintiff in compliance with the Memorandum Decision and Order issued by this Court on May 24, 2007. Dkt. No. 5 ("May 24, 2007 Order").In the May 24, 2007 Order, the Court advised Plaintiff that many of her allegations were time-barred. The Court also dismissed many of the defendants from the action on the basis of judicial immunity or failure to allege state action. See May 24, 2007 Order.

In her second amended complaint, Plaintiff alleges, inter alia, that she has been harassed, defrauded and tricked into entering into contracts to Plaintiff's detriment. Plaintiff also seems to claim that Defendants have conspired with each other to destroy Plaintiff's financial condition, to breach various contracts, and to violate Plaintiff's civil rights. Dkt. No. 7 at 5-47. Additionally, Plaintiff alleges that Defendant Standard Federal Bank, through its predecessor ABN AMRO, subjected Plaintiff to "a pattern of abuses and negligence going at least as far back as January 2003 and continuing to the present." Id. at 47. Plaintiff also seems to allege that ABN AMRO and the Village of Keeseville violated Plaintiff's rights under the Fair Debt Collection Practices Act. Id. at 59-60. Additionally, Plaintiff seeks damages from Defendants for intentional infliction of emotional distress. Id. at 59. For a more complete statement of Plaintiff's claims, reference is made to her second amended complaint. Dkt. No. 7.

A. Statute of Limitations

Plaintiff was previously advised that the statute of limitations for actions commenced pursuant to 42 U.S.C. § 1983 is three years. Dkt. No. 5 at 5-6; see alsoPinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir. 1995). Since Plaintiff's original complaint was filed on April 26, 2007, Plaintiff was advised that any further amended complaint that she filed pursuant to § 1983 should only contain claims which occurred no more than three years prior to April 26, 2007. Dkt. No. 5 at 6. The Court has reviewed Plaintiff's second amended complaint and finds that all of the wrongdoing described in paragraphs 19 through 36 of the second amended complaint are alleged to have occurred in 2003. Accordingly, the allegations contained in paragraphs 19 through 36 inclusive, are dismissed from this action as time-barred.*fn1

B. State Action

Plaintiff's second amended complaint continues to assert § 1983 claims against Kathryn Wilson Smith; Kenneth L. Smith; Donald E. Loreman, Sr.; Carolyn Loreman; Evan Bracy; Niles, Piller, & Bracy; and Thomas G. Tobin, Sr.*fn2 Plaintiff again alleges that these private parties conspired with the Village of Keeseville, and its officials, to deprive Plaintiff of her constitutional rights. Dkt. No. 7 at 5-47. Plaintiff was previously advised that 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 order to state a claim under § 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law."

Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). A private actor acts under color of state law when the private actor "is a willful participant in joint activity with the State or its agents." Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) (internal quotations omitted). A merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private entity. See Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir.1992).

Mione v. McGrath,435 F.Supp.2d 266, 272 (S.D.N.Y. 2006). Plaintiff has again failed to allege a § 1983 action against Kathryn Wilson Smith; Kenneth L. Smith; Donald E. Loreman, Sr.; Carolyn Loreman; Evan Bracy; Niles, Piller, & Bracy; and Thomas G. Tobin, Sr. Accordingly, Plaintiff's § 1983 claims against these Defendants are dismissed.

C. Section 1985 Claims

To state a claim under 42 U.S.C. 1985(3),*fn3 a Plaintiff must allege "'(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right of the citizens of the United States.'" Fox v. City of New York, No. 03 Civ. 2268, 2004 WL 856299, at *9 (S.D.N.Y. Apr. 20, 2004) (quoting Mian [v. Donaldson, Lufkin & Jenrette Securities Corp.], 7 F.3d [1085,] at 1087-88) [(2d Cir. 1993)]. "A plaintiff states a viable cause of action under § 1985 [excepting clause 1 of § 1985(2) ] only by alleging a deprivation of his rights on account of his membership in a particular class of individuals." Zemsky v. City of New York, 821 F.2d 148, 151 (2d Cir.1987) (modification in original).

Mione,435 F.Supp.2d at 271 -272. "[T]he conspiracy must also be motivated by 'some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.'" Mian, 7 F.3d 1085 at 1088 (citation omitted). Plaintiff's ยง 1985 claims fail because she does not allege any facts to support a finding that the defendants were conspiring against her on account of her race or some other invidious discrimination. SeeAmadasu v. Ngati, No. 05 Civ. 2585, 2006 WL 842456, at *7 (E.D.N.Y. Mar. 27, 2006); see also Atuahene v. City of Hartford, ...


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