Lewis v. Roth

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------X

O’KEITH LEWIS,

Plaintiff,

-against- MEMORANDUM & ORDER

21-CV-6818(JS)(ARL)

PAMELA ROTH (ATTORNEY),

FILED

Defendant. CLERK

-----------------------------------X 3:45 pm, Feb   09, 2022

APPEARANCES

For Plaintiff: O’Keith Lewis, pro se U.S. DISTRICT COURT

21-A-2093 EASTERN DISTRICT OF NEW YORK

Orleans Correctional Facility LONG ISLAND OFFICE

3531 Gaines Basin Road

Albion, New York 14411

For Defendant: No appearance.

SEYBERT, District Judge:

On December 6, 2021, pro se plaintiff O’Keith Lewis

(“Plaintiff”) commenced this action while incarcerated by filing

a Complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”) against

Pamela Roth, Esq. (“Defendant”). (Compl., ECF No. 1.) Plaintiff

did not remit the Court’s filing fee nor did he file an application

to proceed in forma pauperis (“IFP”) at the time he filed the

Complaint. By Notice of Deficiency dated December 8, 2021,

Plaintiff was instructed to either remit the filing fee or to

complete and return the enclosed IFP application and form pursuant

to the Prison Litigation Reform Act (“PLRA”) within fourteen days.

(See ECF No. 2.) On December 27, 2021, Plaintiff filed an IFP

application and a PLRA form, both of which are dated December 21,

2021. (IFP App., ECF No. 7; PLRA Form, ECF No. 8.)

For the reasons that follow, Plaintiff’s IFP application

is GRANTED; however, his Complaint is sua sponte dismissed pursuant

to 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b).

BACKGROUND1

Plaintiff utilized the Court’s form complaint for civil

rights actions pursuant to Section 1983; however, the Complaint

only contains one sentence that alleges any factual information:

“During my civil case in which my attorney (Pamela Roth) I was

greatly mis-represented by my attorney (Pamela Roth).” (Compl.

¶ II.) In the spaces on the form that ask when and where the

events giving rise to his claim(s) occurred, Plaintiff wrote

“6 years ago now” and “during my trail for my civil suite in

Central Islip Long Island NY”. (Id.) Plaintiff did not include

any information in the space on the form which asks about injuries

he sustained. (Id. ¶ 2.A.) Notwithstanding, Plaintiff seeks to

recover $10 million for his “pain and suffering”. (Id. ¶ III.)

1 Excerpts from the Complaint are reproduced here exactly as they

appear in the original. Errors in spelling, punctuation, and

grammar have not been corrected or noted.

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DISCUSSION

I. Plaintiff’s In Forma Pauperis Application is Granted

The Court finds that Plaintiff is qualified by his

financial status to commence this action without prepayment of the

filing fee. See 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff’s

IFP application is GRANTED.

II. Legal Standards

A. Consideration of the Complaint Under 28 U.S.C. § 1915

Section 1915 of Title 28 requires a district court to

dismiss an in forma pauperis complaint if the action is frivolous

or malicious, fails to state a claim upon which relief may be

granted, or seeks monetary relief against a defendant who is immune

from such relief. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii),

1915A(b). An action is frivolous as a matter of law when, inter

alia, it is based on an “indisputably meritless legal theory” or

when it “lacks an arguable basis in law . . . or [when] a

dispositive defense clearly exists on the face of the complaint.”

Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.

1998) (citation omitted). The Court is required to dismiss the

action as soon as it makes such a determination. See 28 U.S.C.

§ 1915A; Avant v. Miranda, No. 21-CV-0974, 2021 WL 1979077, at *2

(E.D.N.Y. May 18, 2021).

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Courts are obliged to construe the pleadings of a pro se

plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant,

537 F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d

197, 200 (2d Cir. 2004). However, a complaint must plead

sufficient 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 has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

The plausibility standard requires “more than a sheer possibility

that a defendant has acted unlawfully.” Id.; accord Wilson v.

Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011). While

“detailed factual allegations” are not required, “[a] pleading

that offers ‘labels and conclusions’ or ‘a formulaic recitation of

the elements of a cause of action will not do.’” Iqbal, 556 U.S.

at 678 (quoting Twombly, 550 U.S. at 555).

B. Section 1983

Section 1983 provides that

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State . . . subjects, or causes to be

subjected, any citizen of the United

States . . . to the deprivation of any rights,

privileges, or immunities secured by the

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Constitution and laws, shall be liable to the

party injured . . . .

42 U.S.C. § 1983; accord Rehberg v. Paulk, 566 U.S. 356, 361

(2012). To state a claim under Section 1983, a plaintiff must

“allege that (1) the challenged conduct was attributable at least

in part to a person who was acting under color of state law and

(2) the conduct deprived the plaintiff of a right guaranteed under

the Constitution of the United States.” Rae v. Cty. of Suffolk,

693 F. Supp. 2d 217, 223 (E.D.N.Y. 2010) (quoting Snider v. Dylag,

188 F.3d 51, 53 (2d Cir. 1999)).

III. Application

As noted above, to state a plausible Section 1983 claim,

a plaintiff must allege that the challenged conduct was committed

by a person acting under color of state law. Thus, private parties

are not generally liable under Section 1983 because such liability

may only be imposed upon wrongdoers “who carry a badge of authority

of a State and represent it in some capacity, whether they act in

accordance with their authority or misuse it.” Nat’l Collegiate

Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988)

(citation omitted).

Generally, attorneys are not state actors for purposes

of Section 1983 regardless of whether they are court-appointed or

retained. See Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981); see

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also Brown v. Legal Aid Soc’y, 367 F. App’x 215, 216 (2d Cir. Feb.

23, 2010) (holding that a public defender does not act under color

of state law when performing a lawyer’s traditional functions as

counsel to a defendant in a criminal proceeding). Nevertheless,

liability may be imposed under Section 1983 upon private

individuals who are not state actors pursuant to a conspiracy

theory. See Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324-25

(2d Cir. 2002). In order to state a Section 1983 conspiracy claim,

a plaintiff must allege: “(1) an agreement between a state actor

and a private party; (2) to act in concert to inflict an

unconstitutional injury; and (3) an overt act done in furtherance

of that goal causing damages.” Id.

As is readily apparent here, Plaintiff’s Complaint must

be dismissed because his sparse allegations do not suggest that

Defendant is a state actor nor that she conspired with a state

actor to inflict an unconstitutional injury. (See generally

Compl.) In fact, Plaintiff does not even allege that he suffered

any injuries. (See id. ¶ 2.A.)

Moreover, the Complaint must be dismissed because

Plaintiff’s Section 1983 claim is untimely. Pursuant to New York

Law, Section 1983 claims are governed by a three-year statute of

limitations. See Wheeler v. Slanovec, No. 16-CV-9065, 2019 WL

6

2994193, at *5 (S.D.N.Y. July 9, 2019) (instructing that federal

claims pursuant to Section 1983 are governed by the applicable

state’s statute of limitations for personal injury torts and that

“federal courts in New York apply a three-year statute of

limitations for personal injury actions to [Section] 1983 claims”

(citations omitted)). Plaintiff indicated that his claim accrued

six years ago (see Compl. ¶ II), therefore, the events giving rise

to his claim occurred three years outside of the applicable statute

of limitations period.2

CONCLUSION

For the reasons stated, IT IS HEREBY ORDERED that

Plaintiff’s IFP application is GRANTED; and

IT IS FURTHER ORDERED that the Complaint is sua sponte

DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii); 1915A(b)(1)

and that this case is CLOSED;

IT IS FURTHER ORDERED that, pursuant to 28 U.S.C.

§ 1915(a)(3), any appeal from this Order would not be taken in

2 To the extent the Complaint can be construed to assert any state

law claims, i.e., a claim for legal malpractice, the Court declines

to exercise supplemental jurisdiction over any such claims and

DISMISSES them WITHOUT PREJUDICE. See 28 U.S.C. § 1367(c)(3);

Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988); see

also Delaney v. Bank of America Corp., 766 F.3d 163, 170 (2d Cir.

2014) (“In general, where the federal claims are dismissed before

trial, the state claims should be dismissed as well.”).

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good faith. Therefore, in forma pauperis status is DENIED for the

purpose of any appeal. See Coppedge v. United States, 369 U.S.

438, 444-45 (1962); and

IT IS FURTHER ORDERED that the Clerk of the Court shall

mail a copy of this Memorandum & Order to the pro se Plaintiff at

his address of record and include the notation “Legal Mail” on the

envelope.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: February 9, 2022

Central Islip, New York

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