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Smith v. Smith

United States District Court, D. Maine

June 14, 2016

ELIZABETH SMITH, Plaintiff
v.
ROBERT P. SMITH and CYNTHIA W. SMITH, Defendants ELIZABETH SMITH, Plaintiff
v.
HUNTINGTON COMMON, Defendant

          RECOMMENDED DISMISSAL OF THE CASES IN THEIR ENTIRETY

          John H. Rich, III United States Magistrate Judge

         As Judge Hornby noted earlier in his order on the plaintiff’s Requests for Emergency Injunctions, these two cases, one against the plaintiff’s siblings and the other against a nursing home in Kennebunk, Maine, apparently arise out of a family conflict over the care and assets of an elderly, ailing mother. The plaintiff’s requests for leave to proceed in forma pauperis have previously been granted. ECF No. 9 (in both cases). Because the plaintiff is proceeding pro se, I must consider the possibility of dismissing the actions before service of process upon the defendants, pursuant to 28 U.S.C. § 1915(e)(2)(B). Having done so, I recommend that the court dismiss both cases.

         That statute provides, in relevant part:

[T]he court shall dismiss the case at any time if the court determines that
(B) the action or appeal --
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B).

         “Dismissals [under 28 U.S.C. § 1915] are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints.” Nietzke v. Williams, 490 U.S. 319, 324 (1989); see also Mallard v. U.S. Dist. Ct. S. D. Iowa, 490 U.S. 296, 307-08 (1989) (“[28 U.S.C. § 1915], for example, authorizes courts to dismiss a ‘frivolous or malicious’ action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”).

         In other words, the plaintiff’s complaint must be dismissed if the court finds it to be frivolous or malicious, seeks monetary relief from a defendant who is immune from such relief, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). In this regard, a pro se plaintiff’s complaint must be read liberally. Donovan v. Maine, 276 F.3d 87, 94 (1st Cir. 2002).

         So read, the plaintiff’s complaints, which are identical in each case, allege that the plaintiff’s religious beliefs, and other federal and state constitutional rights, and those of her mother, who is a resident of a nursing home in Kennebunk, Maine, have been violated by the defendants, her siblings and the nursing home. [Complaint] (ECF No. 1) (in both cases). Her requests for an emergency injunction have been denied by Judge Hornby of this court, who recommended that she contact on or more of the agencies that he listed for assistance. Order on Requests for Emergency Injunctions (ECF No. 8) at 4 (in both cases).

         Assuming without deciding, as did Judge Hornby, id. at 2, that the plaintiff, who does not appear to be a lawyer and in any event is not a member of the bar of this court, has standing to assert claims on behalf of her mother, and that diversity of citizenship could be established so that this court could exercise jurisdiction over the parties, [1] the complaints still fail to state a claim upon which relief may be granted. That is because private parties may not sue other private parties for deprivation of constitutional rights. Private parties, like the defendants here, do not act under color of state law when dealing with other private parties. Only individuals who act under color of state law, that is, people who are performing some government function, can be sued for violating another individual’s constitutional rights. In addition, if the rights are those granted by the United States ...


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