“Private persons, jointly engaged with state officials in the challenged action, are acting see [sic] ‘under color’ of law for purposes of § 1983 actions.”
How later courts described this case
- “Private persons, jointly engaged with state officials in the challenged action, are acting see [sic] ‘under color’ of law for purposes of § 1983 actions.”
- “[A] plaintiff must allege specific facts showing an agreement and concerted action amongst the defendants. Conclusory allegations of conspiracy are insufficient to state a valid § 1983 claim.”
- “[P]rivate parties acting in a conspiracy with a state official to deprive others of constitutional rights are also acting ‘under color’ of state law.”
- “Himchak’s conclusory allegations of conspiracy are not sufficient to plead a claim that these attorneys conspired with any state actors.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARK LE SCHACK, )
)
) 2:20-cv-1233
Plaintiff, )
)
v. )
)
)
JOHN DEVEREUX, et al., )
Defendants. )
)
MEMORANDUM ORDER
Plaintiff Mark Le Schack, who is proceeding pro se, has timely objected
to the Chief Magistrate Judge’s Report & Recommendation, which
recommends that Mr. Le Schack’s complaint be dismissed with prejudice as
frivolous under 28 U.S.C. § 1915(e)(2). [ECF 2]. After careful consideration,
the Court will overrule Mr. Schack’s objections in all but one respect. That is,
the Court will adopt the R&R insofar as it recommends dismissal of Mr. Le
Schack’s complaint for failure to state a claim, but, for the reasons below, the
Court will deviate from the R&R by granting Mr. Le Schack leave to amend
his complaint.
Under 28 U.S.C. § 636b(b)(1)(C), the Court must make a de novo
determination of any portions of the R&R to which a party objects. The Court
may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The Court may also
recommit the matter to the magistrate judge with instructions.
In his complaint, Mr. Le Schack alleges that Defendants conspired to
violate his federal due-process and equal-protection rights “under cover of state
law” by “intimidation, bribery, perjury and extortion.” [ECF 1-2, ¶¶ 27-28]. He
names two of his ex-wife’s family members, an attorney, and a real-estate
agent as defendants. The relevant facts, as alleged in Mr. Le Schack’s
complaint, were aptly summarized by the Magistrate Judge as follows:
[Mr. Le Schack] claims that his ex-wife’s parents set
up trusts for him and his ex-wife. He claims that after
his ex-wife’s parents passed away, he spoke with the
attorney Defendant on the phone regarding probate of
the will and was told he would receive proceeds from
the will. He claims that at his divorce proceedings, the
same attorney stated that [Mr. Le Schack] was not
entitled to any trust money. He claims that he was
ordered to pay sanctions and contempt money in
connection with his divorce trial and that his ex-
brother in law bribed the presiding judges to do so.
[Mr. Le Schack] claims that the Defendant attorney,
Defendant real estate agent, ex-wife and ex-brother-
in-law conspired to force [him] to sell the marital
home. [Mr. Le Schack] claims that this conduct
constitutes a violation of his “civil rights by
intimidation, bribery, perjury and extortion.” Compl.
at ¶ 28. [Mr. Le Schack] also seeks the court to
“uncover evidence, interview, [sic] witnesses, examine
paper trails and prosecute those responsible for
criminal acts[.]” Id. at ¶ 29.
[ECF 2, p. 4].
Based on these allegations, the Magistrate Judge found Mr. Le Schack’s
claims to be legally frivolous for two reasons. First, she explained that “the
federal judiciary does not function as an investigative arm of the federal
government and it does not investigate or prosecute matters[.]” [Id.]. Second,
she held that Mr. Le Schack had not alleged any plausible violation of his civil
rights “because all of the Defendants … are private individuals,” and “[p]urely
private acts which are not furthered by any actual or purported state authority
are not acts under color of state law.” [Id. (quoting Barna v. City of Perth
Amboy, 42 F.3d 809, 816 (3d Cir. 1994)].
In response, Mr. Le Schack objects that the Magistrate Judge’s
conclusions are “extremely harsh and unwarranted.” [ECF 3, p. 1]. More
specifically, he argues: (1) that “[t]he attorneys and the Judges” named in the
complaint “are public individuals as they are officers of the court and need to
be held accountable”; and (2) that while it is “generally true” that “the Court
does not investigate criminal acts” a “federal judge has the responsibility to
make sure that justice is served” and “to make sure that evidence of corruption
is investigated by the United States Attorney.” [Id.].
Only the first of these arguments presents a substantial challenge to the
Magistrate Judge’s holding.1 On that point, the Magistrate Judge was correct
that Mr. Le Schack’s claims against “[t]he attorneys and the Judges” named in
the complaint do not, as pled, plausibly allege unlawful conduct by a “state
actor.” [Id.]. But the Court respectfully disagrees with the Magistrate Judge’s
determination that granting Mr. Le Schack leave to amend would necessarily
be futile.
To be sure, “a private attorney is not a state officer so as to bring his
actions within the purview of [Section] 1983.” Brown v. Joseph, 463 F.2d 1046,
1048 (3d Cir. 1972). But there are circumstances in which a private party can
be held liable under Section 1983, and Mr. Le Schack’s complaint alludes to
1 Mr. Le Schack’s second argument does not directly bear on the question of
whether Mr. Le Schack has stated a claim for relief. And, in any event, the
Magistrate Judge was correct to note that Courts do not operate as an
investigative or prosecutorial arm of the federal government. “Article III of the
Constitution limits the jurisdiction of federal courts to ‘Cases’ and
‘Controversies.’” Lance v. Coffman, 549 U.S. 437, 439 (2007). In other words,
“courts are not inquisitors of justice but arbiters of adversarial claims.”
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 181 (1989) (Scalia, J.
dissenting). Here, before embarking on discovery of any kind, Mr. Le Schack
must articulate a viable claim for relief against a state actor under Section
1983. As will be discussed, he has not yet done so.
one of them—albeit without enough specificity to survive dismissal for now.
That is, “a private party acting in a conspiracy with state officials may be liable
as a state actor.” Smith v. Wambaugh, 29 F. Supp. 2d 222, 226 (M.D. Pa. 1998)
(citation omitted); see also Melo v. Hafer, 912 F.2d 628, 638 (3d Cir. 1990)
(“[P]rivate parties acting in a conspiracy with a state official to deprive others
of constitutional rights are also acting ‘under color’ of state law.”); Dennis v.
Sparks, 449 U.S. 24, 27–28 (1980) (“Private persons, jointly engaged with state
officials in the challenged action, are acting see [sic] ‘under color’ of law for
purposes of § 1983 actions.”).
Here, Mr. Le Schack alleges that his brother-in-law bribed the judges
presiding over his divorce proceedings. [ECF 1-2, § I, II, ¶ 14]. If plausibly
supported by alleged facts, such a bribery scheme could support a Section 1983
claim against Mr. Le Schack’s brother-in-law. Cf. Dennis, 449 U.S. at 28
(“[H]ere the allegations were that an official act of the defendant judge was the
product of a corrupt conspiracy involving bribery of the judge. Under these
allegations, the private parties conspiring with the judge were acting under
color of state law . . . Private parties who corruptly conspire with a judge in
connection with such conduct are thus acting under color of state law within
the meaning of § 1983 as it has been construed in our prior cases.”).
As currently pled, however, Mr. Le Schack offers only conspiratorial
assumptions to support his allegations of bribery. For example, he suggests
that because the evidence he presented during his divorce proceedings was
“unassailable,” only “a judge who sought and received bribery money would
have entered” the sanctions order Mr. Le Schack complains of. [ECF 1-2, ¶ 14].
Thus, he argues, “[i]t can be reasonably assumed that John Devereux through
the auspices of the law firm Lisa Marie Vari Associates bribed both judges.”
[Id.]. This speculative assumption is insufficient to survive dismissal, absent
specific alleged facts that plausibly suggest Defendants engaged in a corrupt
bribery scheme of this kind. See Harmon v. Delaware Sec’y of State, 154 F.
App’x 283, 285 (3d Cir. 2005) (“[A] plaintiff must allege specific facts showing
an agreement and concerted action amongst the defendants. Conclusory
allegations of conspiracy are insufficient to state a valid § 1983 claim.”);
Himchak v. Dye, 684 F. App’x 249, 253 (3d Cir. 2017) (“Himchak’s conclusory
allegations of conspiracy are not sufficient to plead a claim that these attorneys
conspired with any state actors.”).
For these reasons, the Court will adopt the Magistrate Judge’s
recommendation that it dismiss the complaint at this time. However, because
Mr. Le Schack’s complaint alludes to a legally viable theory, and because pro
se complaints must be construed liberally, the Court will depart from the
Magistrate Judge’s recommendation that the Court deny leave to amend.
Instead, the Court will provide Mr. Le Schack an opportunity to amend his
complaint, if he so desires, to articulate any facts that support his claim that
some or all of the defendants were involved in a scheme to bribe the judges
presiding over his divorce trial. He must do so by November 27, 2020.
The Court cautions Mr. Le Schack that he should amend his complaint
only if he can do so consistent with Federal Rule of Civil Procedure 11(b), which
prohibits a party from pleading facts without a good faith, evidentiary basis for
believing them to be true. See Fed. R. Civ. P. 11(b)(1), (b)(3). If no amended
complaint is filed by November 27, 2020, the Court will convert this dismissal
into one with prejudice.
DATED: November 17, 2020 BY THE COURT:
/s/ J. Nicholas Ranjan
United States District Judge