DiCrescenzo v. O'Donnell

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS AMANDA DICRESCENZO, Plaintiff, v. CIVIL ACTION NO. 23-11934-TSH THOMAS O’DONNELL, Defendant. ORDER HILLMAN, J. September 5, 2023 1. Plaintiff Amanda DiCrescenzo’s (“DiCrescenzo”) motion to proceed in forma pauperis (ECF No. 3) is ALLOWED. Because DiCrescenzo is proceeding in forma pauperis, the complaint is subject to screening under 28 U.S.C. § 1915(e)(2). Section 1915 authorizes the federal courts to dismiss an action in which a plaintiff seeks to proceed without prepayment of the filing fee if the action fails to state a claim on 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); Neitzke v. Williams, 490 U.S. at 325; Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Gonzalez- Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001). In conducting this review, the Court liberally construes DiCrescenzo’s complaint because she is proceeding pro se. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972); Instituto de Educacion Universal Corp. v. U.S. Dept. of Education, 209 F.3d 18, 23 (1st Cir. 2000). 2. This action is DISMISSED for failure to state a claim upon which relief can be granted. DiCrescenzo claims her civil rights are being violated by the defendant, an attorney apparently representing a private litigant, relating to representations made by the attorney in state court proceedings.! To the extent that DiCrescenzo’s claim might be characterized as a civil rights action pursuant to 28 U.S.C. § 1983, that federal statute “allows individuals to sue certain persons for depriving them of federally assured rights under color of state law.” Fincher v. Town of Brookline, 26 F Ath 479, 485 (1st Cir. 2022) (citation and quotation omitted). Here, there are no plausibly pleaded allegations of state action by the defendant. Aldrich v. Ruano, 952 F. Supp. 2d 295, 301 (D. Mass. 2013) (‘It is well-settled that a lawyer (even a court-appointed one) does not act under the color of state law in performing a lawyer's traditional function as counsel to a party.”). Accordingly, as pleaded the complaint fails to set forth a plausible federal claim. Because it is crystal clear that the claims in this civil action cannot be repleaded to state a claim, the action is dismissed sua sponte. With the federal claim dismissed, the Court declines to exercise supplemental jurisdiction over any state-law claims. See 28 U.S.C. 1367(c)(3). 3. Plaintiffs motion to file electronically, ECF No. 2 is ALLOWED. Pro se litigants must have an individual PACER account to electronically file in the District of Massachusetts. To register for a PACER account, go the Pacer website at https://pacer-uscourts.gov/register-account. Pro se e-filing account Instructions https://www.mad.uscourts.gov/caseinfo/nextgen-pro-se.htm. If DiCrescenzo already has a PACER account with E-Filing access as a pro se litigant, you do not need to register again. Please email tracy_mclaughlin@mad.uscourts. gov. 4. Plainitff's Motion for Appointment of Counsel (ECF No. 4) is DENIED as moot. 1 The Court observes that this appears to relate to state custody proceedings or other family court proceedings with the father of her children. See DiCrescenzo v. Salem MA Probate & Family Court et al, Civ. No. 1:23-cv-11268-DJC. 5. The Clerk is directed to enter a separate order of dismissal and close the case. SO ORDERED. _/s/ Timothy S. Hillman____________ UNITED STATES DISTRICT JUDGE