United States District Court, E.D. New York
MEMORANDUM & ORDER
K. BRODIE, United States District Judge
Jean-Gespere Pierre, proceeding pro se, brings this
action against Defendants The Ingber Law Firm, PLLC, Clifford
Ingber and Sharon O. Simon for their role in representing
Plaintiff's employer, FJC Security Services, Inc., in an
employment discrimination action currently pending before
this Court. Plaintiff's request to proceed in forma
pauperis is granted pursuant to 28 U.S.C. §
1915(a). For the reasons set forth below, the Court dismisses
September 2, 2015, Plaintiff filed a complaint, alleging
employment discrimination by his employer, FJC Security
Services, Inc. (“FJC”) under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (“Title VII”), (the “FJC
Action”). (Compl., Docket Entry No. 1.) Clifford J.
Ingber and Sharon D. Simon of The Ingber Law Firm, PLLC
appeared on behalf of FJC in the FJC Action, which remains
pending in this Court. Pierre v. FJC Sec. Servs., Inc.,
No. 15-CV-4627 (E.D.N.Y. filed Sept. 2, 2015).
filed the instant action on October 26, 2016 against The
Ingber Law Firm and its attorneys, alleging “false
accusations in [his] complaint against Judge Steven
Tiscione.” (Compl. 5.) Plaintiff alleges that
Defendants “are involved in a series of acts of false
statements that violated” his rights secured by the
First, Fifth and Fourteenth Amendments. (Id.)
Plaintiff states that “I have requested from the Court
to order a relief from law firm Ingber, PLLC, and its lawyer
Clifford and its attorney Sharon D. Simon for having misused
my statements in my process with FJC Security and the Judge
Steven Tiscione for ex parte, while I have proof for
that” (sic). (Id. at 6.) Plaintiff
has not specified the type of relief he seeks.
Standard of review
complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Although all allegations contained in the complaint
are assumed to be true, this tenet is “inapplicable to
legal conclusions.” Iqbal, 556 U.S. at 678. In
reviewing a pro se complaint, the court must be
mindful that a plaintiff's pleadings should be held
“to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam) (quoting Estelle v.
Gamble, 429 U.S. 97, 104-105 (1976)); see Wiley v.
Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (holding
that courts must liberally construe papers submitted by
pro se litigants “to make the strongest
arguments they suggest”); Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (noting that even after
Twombly, the court “remain[s] obligated to
construe a pro se complaint liberally”).
Nevertheless, the Court is required to dismiss sua
sponte an in forma pauperis action if the Court
determines it “(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);
see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.
Section 1983 claim
alleges that Defendants violated his rights under the First,
Fifth and Fourteenth Amendments by being “involved in a
series of acts of false statements” and
“mis[using] [his] statements” in his lawsuit
against his employer. (Compl. 5-6.) Because a suit for
damages based on allegedly unconstitutional conduct must be
pursued under 42 U.S.C. § 1983, the Court has construed
Plaintiff's allegations as assertions of unconstitutional
state action under Section 1983. See Matusick v. Erie
Cty. Water Auth., 757 F.3d 31, 55 (2d Cir. 2014)
(“Section 1983 provides persons with a private cause of
action against those acting under color of state law to
recover money damages for the deprivation of any rights . . .
secured by the Constitution.” (citation and internal
quotation marks omitted)).
1983 requires a plaintiff to demonstrate that the challenged
conduct was “committed by a person acting under color
of state law, ” and that the conduct “deprived
[the plaintiff] of rights, privileges, or immunities secured
by the Constitution or laws of the United States.”
Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010).
The Supreme Court has held, “the
under-color-of-state-law element of [Section] 1983 excludes
from its reach merely private conduct, no matter how
discriminatory or wrongful.” American Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal
quotation marks omitted).
are private individuals and a private law firm whose conduct
cannot be fairly attributed to the State. “It is
well-settled that private attorneys and law firms . . . do
not act under color of state law and are not state actors for
purposes of Section 1983 simply by virtue of their
state-issued licenses to practice law.” Manko v.
Steinhardt, No. 11-CV-5430, 2012 WL 213715, at *4
(E.D.N.Y. Jan. 24, 2012) (collecting cases); see Polk
County v. Dodson, 454 U.S. 312, 319 (1981) (“[T]he
Courts of Appeals are agreed that a lawyer representing a
client is not, by virtue of being an officer of the court, a
state actor ‘under color of state law' within the
meaning of [Section] 1983.”). Thus, Plaintiff's
Section 1983 claims are dismissed for failure to state a
claim upon which relief may be granted. See Azkour v.
Bowery Residents Comm., Inc., 646 F. App'x 40, 41
(2d Cir. 2016) (affirming dismissal of a Section 1983 claim
because the defendant was a private entity, not a state
actor); Grogan v. Blooming Grove Volunteer Ambulance
Corps., 768 F.3d 259, 263-69 (2d Cir. 2014) (affirming
dismissal of a Section 1983 claim because the plaintiff
failed to prove that the defendant's actions were state
actions); Harrison v. New York, 95 F.Supp.3d 293,
306 (E.D.N.Y. 2015) (dismissing pro se
plaintiff's Section 1983 claims for failure to plead
reasons set forth above, the Complaint is dismissed for
failure to state a claim. 28 U.S.C. § 1915(e)(2)(B). The
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal would not be taken in good faith, and therefore
in forma pauperis status is denied for ...