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Chandrea T. Agnew v. Diane Randall

February 28, 2011

CHANDREA T. AGNEW, PLAINTIFF,
v.
DIANE RANDALL, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent to the court for review a complaint, together with an application to proceed in forma pauperis filed by plaintiff, Chandrea T. Agnew. (Dkt. Nos. 1, 3). Plaintiff has also filed a motion for appointment of counsel. (Dkt. No. 4).

I. In Forma Pauperis (IFP) Application

A review of plaintiff's IFP application shows that she declares she is unable to pay the filing fee. (Dkt. No. 3). She is unemployed, states that she is on public assistance (PA), and she receives food stamps. Id. at 2. Thus, for purposes of this Order, the Court finds that plaintiff meets the economic criteria for proceeding without the payment of fees.

In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) 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)(i) -(iii).

In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp., 550 U.S. at 555). The Court will now turn to a consideration of the plaintiff's complaint under the above standards.

II. Complaint

Plaintiff identifies approximately seventeen*fn1 defendants who she claims have been harassing her and monitoring her through "technology devices," including implanting a microchip in her brain. (Compl. at 2-4, 6).*fn2 In the "Defendants" section of the form-complaint she also appears to be attempting to name "all my relatives/religious organizations/some are not listed not enough info." (Compl. at 3). She claims that defendants have invaded her privacy, defamed her character, and have falsely diagnosed her with a mental disability. Id. at 2-4, 6.

A brief summary of plaintiff's claims as far as the court can determine is that she has gone through involuntary surgery and has had some sort of device implanted into her brain. Plaintiff alleges that her family, the Syracuse Police, the FBI, and the doctors do not believe her. The medical defendants have falsely diagnosed her with a mental disease. Based upon these false diagnoses, plaintiff states that she has been defamed and her reputation impaired by her family*fn3 and by her church congregation.

In the "Relief" section of her complaint, plaintiff states that she wishes that "these people and others they know" be "confronted and arrested" or told to leave plaintiff alone. (Compl. at 5).

III. Jurisdiction

Plaintiff states that she is bringing this action pursuant to 42 U.S.C. § 1983. In order to assert a claim under section 1983, the plaintiff must allege that she has been deprived of a constitutional or federal statutory right by a defendant acting under color of state law. 42 U.S.C. § 1983. See West v. Atkins, 487 U.S. 42, 48 (1988)). The actions of private individuals are not deemed to be under color of state law unless those individuals are conspiring with state officials to deprive the plaintiff of her constitutional rights. See Tower v. Glover, 467 U.S. 914, 919-20 (1984). However, a conclusory allegation that a private individual "conspired" with a state actor fails to state a claim under section 1983. Spear v. Town of W. Hartford, 954 F.2d 63, 68 (2d Cir. 1992). To state a claim against a private individual on a conspiracy theory, the private defendant must have acted in concert with the state actor to commit the unconstitutional act. Id. Ultimately, the question becomes whether the conduct that caused the constitutional violation can be "fairly attributable to the state." Id.

Additionally, the actions of a nominally private entity are attributable to the state when the entity acts pursuant to the "coercive power" of the state: when the entity is a "willful participant" in joint activity with the state; when the entity's functions are "entwined" with the state; or when the entity has been delegated a public function by the state. Sybalski v. Independent Group Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 296 (2001)). However, it is not enough that the state is somehow involved with the defendant institution. Id. at 257-58 (citing inter alia Schlein v. Milford Hosp., ...


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