United States District Court, W.D. North Carolina, Charlotte Division
ORDER
Frank
D. Whitney Chief United States District
THIS
MATTER is before the Court on initial review of
Plaintiff's Complaint, filed under 42 U.S.C. § 1983
[Doc. 1] and on Plaintiff's Motion to Proceed in Forma
Pauperis [Doc. 2].
I.
BACKGROUND
Pro se
Plaintiff Veronica Gibson (“Plaintiff”) purports
to file suit under 42 U.S.C. § 1983. Plaintiff resides
in Charlotte, North Carolina. [Doc. 1 at 1]. She names two
attorneys, Noell Tin and Matthew Pruden, as Defendants in
this matter. Defendants are alleged to reside in Charlotte as
well. [Id. at 1-2]. Plaintiff further alleges that
Defendants are licensed attorneys, “approved to
practice law through North Carolina Bar Assoc. in conjunction
under Oath under relevant State laws N.C. G.S. § 84-1
(Oath Taken in Open Court).” [Id. at 2].
Plaintiff
contends that she retained Defendants in October of 2012 to
perform legal services for “her brother (Marty Gaston)
concerning a criminal appeal of a 2nd Degree Murder.”
[Id. at 3]. Plaintiff alleges that Defendants
breached a retainer agreement, which caused Plaintiff to
suffer “financially and emotionally.”
[Id. at 2]. Plaintiff further contends that because
“Defendants' authority to practice law in the State
of North Carolina is enacted through the State Bar
Association's Rule of Professional Conduct in conjunction
with N.C. G.S. § 84-1 (Oaths Taken in Open Court),
” “Defendants' constitutional deprivations
against Plaintiff under federal standards, meet the legal
standards of acting under color of state law requirements per
28 U.S.C. §§ 1343(a)(3) and 1331, as well as 42
U.S.C. § 1983.” [Id. at 5].
Plaintiff
seeks $13, 000 and costs from Defendants. [Id. at
7].
II.
MOTION TO PROCEED IN FORMA PAUPERIS
The
Court first addresses Plaintiff's motion to proceed in
forma pauperis. Plaintiff's affidavit shows that she has
had a total monthly income of $1, 600.00 for the past twelve
months and expects to receive $0.00 in income next month.
[Doc. 2 at 1-2]. It appears Plaintiff's report of $0.00
income next month may be in error as she also states,
“I'm retired and live on a monthly check.”
[Id. at 4]. Plaintiff reports having a total of
$470.00 in her bank accounts. [Id. at 5]. Plaintiff
reports that she has total monthly expenses of $1, 594.00 and
that her two sons, both age 21, and her mother rely on her
for support. [Id. at 2, 5]. The Court is satisfied
that Plaintiff does not have sufficient funds to pay the
filing fee. The Court will, therefore, allow the motion and
permit Plaintiff to proceed in forma pauperis.
III.
STANDARD OF REVIEW
Because
Plaintiff is proceeding in forma pauperis, the Court must
review the Complaint to determine whether it is subject to
dismissal on the grounds that it is “frivolous or
malicious [or] fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2). In its frivolity
review, this Court must determine whether the Complaint
raises an indisputably meritless legal theory or is founded
upon clearly baseless factual contentions, such as fantastic
or delusional scenarios. Neitzke v. Williams, 490
U.S. 319, 327-28 (1989). Furthermore, a pro se complaint must
be construed liberally. Haines v. Kerner, 404 U.S.
519, 520 (1972). However, the liberal construction
requirement will not permit a district court to ignore a
clear failure to allege facts in her Complaint which set
forth a claim that is cognizable under federal law.
Weller v. Dep't of Soc. Servs., 901 F.2d 387
(4th Cir. 1990).
To
state a claim under § 1983, a plaintiff must allege that
she was “deprived of a right secured by the
Constitution or laws of the United States, and that the
alleged deprivation was committed under color of state
law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 49-50 (1999). The color of law requirement
“excludes from its reach merely private conduct, no
matter how discriminatory or wrongful.” Id. at
50 (internal quotations omitted). In rare cases, the state
can “so dominate[ ] [private] activity as to convert it
to state action.” Philips v. Pitt County Mem'l
Hosp., 572 F.3d 176, 181 (4th Cir. 2009). To satisfy the
state action requirement, a plaintiff must demonstrate that
the conduct at issue is “fairly attributable to the
State.” Lugar v. Edmondson Oil Co., 457 U.S.
922, 937 (1982). Conduct is fairly attributable to the state
where: (1) it is “caused by the exercise of some right
or privilege created by the State or by a rule of conduct
imposed by the State or by a person for whom the State is
responsible;” and (2) where the party charged with the
deprivation is a person who may “fairly be said to be a
state actor.” Sullivan, 526 U.S. at 50.
“Without state action, [plaintiff] has no § 1983
claim.” Thomas v. Salvation Army Southern
Territory, 841 F.3d 632, 637 (4th Cir. 2016) (affirming
dismissal pursuant to § 1915(e)(2)(B)(ii) where
plaintiff did not allege any facts that even remotely
suggested that defendants' actions were attributable to
the state).
IV.
DISCUSSION
Plaintiff's
claim does not lie under 42 U.S.C. § 1983. Attorneys are
not state actors merely because they take an oath relative to
their practice of law pursuant to a State statute. Plaintiff
is alleging, at most, a state law claim for breach of
contract. She has, therefore, not asserted federal question
jurisdiction under 28 U.S.C. § 1331, nor does federal
subject matter jurisdiction exist based on diversity
jurisdiction under 28 U.S.C. § 1332, because the parties
are all citizens of the same state and the amount in
controversy is less than $75, 000. As such, the Court finds
that Plaintiffs Complaint fails to state a claim on which
relief may be granted. The Court will, therefore, dismiss
Plaintiff s Complaint without prejudice. The Court also notes
that any State law claim Plaintiff might have likely would be
barred by the statute of limitations.
V.
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