Mangir v. Williams

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

URSULA MANGIR,

Plaintiff,

1:22-CV-508

V. (BKS/DJS)

JOSEPH WILLIAMS, et al.,

Defendants.

APPEARANCES: OF COUNSEL:

URSULA MANGIR

Plaintiff Pro Se

Albany, NY 12201-1110

DANIEL J. STEWART

United States Magistrate Judge

REPORT-RECOMMENDATION and ORDER

The Clerk has sent to the Court Plaintiffs pro se Complaint. Dkt. No. 1, Compl.

The Court has previously granted leave to proceed in forma pauperis. This is the third

federal action commenced in this District by Plaintiff related to allegations involving

Family Court proceedings in Rensselaer County. See Mangir, et al. v. Pratico, et al., 21-

CV-665 (BKS/DJS); Mangir, et al. v. Walsh, 21-CV-674 (BKS/DJS).

28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to proceed in forma

pauperis, “the court shall dismiss the case at any time if the court determines that . . . the

action or appeal (1) is frivolous or malicious; (11) fails to state a claim on which relief may

be granted; or (111) seeks monetary relief against a defendant who is immune from such

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relief.” 28 U.S.C. § 1915(e)(2)(B). Thus, it is a court’s responsibility to determine that

a plaintiff may properly maintain his or her complaint before permitting the matter to

proceed further.

The Complaint in this action was filed by using a form complaint for actions

brought under 42 U.S.C. § 1983. See generally Compl. Named as Defendants are four

attorneys alleged to have been involved in various stages of Plaintiff's Family Court

proceedings and Plaintiff's ex-husband. /d. at pp. 1-2. The allegations of the Complaint

are made in wholly conclusory terms, but allege generally that Defendants have engaged

in fraud, misrepresentation, and other misconduct related to those state court proceedings.

Id. at pp. 2-4.

Section 1983 allows individuals to recover for constitutional or federal statutory

violations committed by state actors. Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508

(1990) (“Section 1983 provides a cause of action for ‘the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws’ of the United States.”).

It is an essential element of a claim under section 1983 that a plaintiff “prove that the

defendant has deprived [her] of a right secured by the ‘Constitution and laws’ of the

United States.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970). Beyond a purely

conclusory allegation that Defendants have “committed multiple fraudulent acts that

violate Plaintiff's civil rights,’ Compl. at pp. 2-3, the Complaint cites no federal law,

regulation, or constitutional provision that Defendants are alleged to have violated. See

generally Compl. In fact, Plaintiffs claims are entirely state law claims. She specifically

alleges, for example, claims for breach of contract, fraud, assault, slander, and intentional

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infliction of emotional distress. /d. at p. 4. Given the failure to allege the violation of a

federal right, Plaintiff may not maintain a section 1983 claim.

In addition, as Plaintiff has previously been made aware, any claim under section

1983 requires state action. Mangir v. Pratico, Dkt. No. 9 at pp. 3-4. “Because the United

States Constitution regulates only the Government, not private parties, a litigant claiming

that his constitutional rights have been violated must first establish that the challenged

conduct constitutes state action.” Flagg v. Yonkers Sav. & Loan Ass’n, FA. 396 F.3d 178,

186 (2d Cir. 2005) (internal quotation marks omitted). “A plaintiff pressing a claim of

violation of his constitutional rights under § 1983 is thus required to show state action.”

Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003). “State action requires

_,| both the exercise of some right or privilege created by the State and the involvement of'a

person who may fairly be said to be a state actor.” Meadows v. United Servs., Inc., 963

F.3d 240, 243 (2d Cir. 2020) (quoting Flagg v. Yonkers Sav. & Loan Ass’n, FA, 396 F.3d

at 186) (internal quotations and alterations omitted). Plaintiff has failed to make any

allegations establishing that Defendants engaged in state action.

As outlined above, the failure to properly allege a section 1983 claim, or any other

federal cause of action also means that Plaintiff has not established that the Court has

federal question jurisdiction over this case under 28 U.S.C. § 1331 as alleged in the

Complaint. Though not alleged, the Court notes that there is also no basis for finding

diversity jurisdiction here with respect to Plaintiff's state law claims. “To have complete

diversity, ‘each plaintiff's citizenship must be different from the citizenship of each

defendant.’” Johnson v. Glob. Promotion & Pub. Corp., 2013 WL 828744, at *1

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(E.D.N.Y. Mar. 6, 2013) (quoting Hallingby v. Hallingby, 574 F.3d 51, 56 (2d Cir. 2009)).

Here, there is clearly a lack of complete diversity since all of the parties here are alleged

to be residents of New York. Compl. at pp. 1-3. As a result, diversity jurisdiction is

lacking. Butler v. Geico Gen. Ins. Co., 2019 WL 330591, at *3 (N.D.N.Y. Jan. 25, 2019),

report and recommendation adopted, 2019 WL 652197 (N.D.N.Y. Feb. 15, 2019).

For these reasons, none of the stated legal causes of action provide a basis for a

claim in this proceeding. The Court, therefore, recommends that the Complaint be

dismissed. “Ordinarily, a court should not dismiss a complaint filed by a pro se litigant

without granting leave to amend at least once ‘when a liberal reading of the complaint

gives any indication that a valid claim might be stated.’” Bruce v. Tompkins Cty. Dep’t

of Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting

Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)). Here, given that there is no non-

frivolous basis for asserting state action and no other basis on which federal jurisdiction

would appear to exist, the Court recommends that the Complaint be dismissed without

prejudice.

Also pending is Plaintiffs Motion for Appointment of Counsel. Dkt. No. 3.

Several factors must be carefully considered by the court in ruling upon such a motion.

Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). As a threshold matter,

however, the court should ascertain whether the indigent’s claims seem likely to be of

substance. Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). A motion for

appointment of counsel may be properly denied if the court concludes that the plaintiff's

“chances of success are highly dubious.” Leftridge v. Connecticut State Trooper Officer

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No. 1283, 640 F.3d at 69. Considering the recommendation made here that the Complaint

be dismissed, Plaintiff has not met the threshold requirement of demonstrating that his

claims seem likely to be of substance. The Motion for Appointment of Counsel, therefore,

is DENIED.

ACCORDINGLY, it is hereby

RECOMMENDED, that Plaintiffs Complaint be DISMISSED without

prejudice; and it is

ORDERED, that Plaintiff's Motion for Appointment of Counsel be DENIED;

and it is further

ORDERED, that the Clerk of the Court serve a copy of this Report-

Recommendation and Order upon the parties to this action.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)! days within

which to file written objections to the foregoing report. Such objections shall be filed

with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN

FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v.

Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs.,

a

| If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the

fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and

file objections. FED. R. CIv. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal

holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.

FED. R. CIV. P. 6(a)(1)(C).

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892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIv. P. 72 & 6(a).

Dated: May 25, 2022

Albany, New York

fel hp

US-Magistrate Judge

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