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Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1342
EDMUND F. BROADLEY III,
Plaintiff, Appellant,
v.
WILLIAM A. HARDMAN III,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lipez, Selya and Howard,
Circuit Judges.
Edmund F. Broadley III on brief pro se.
William A. Hardman III on brief pro se.
December 10, 2008
Per Curiam. We affirm the judgment substantially for the
reasons enumerated in the magistrate-judge's Report and
Recommendation dated February 25, 2008, which the district judge
adopted in a March 10, 2008 Memorandum and Order. We add only the
following comments.
This pro se appeal involves a 42 U.S.C. § 1983 action
prompted by events occurring in state court. A company owned by
plaintiff Broadley brought suit there against an individual
represented by defendant Hardman, a Rhode Island attorney.
Plaintiff subsequently filed this federal action against the
attorney directly, complaining of interference with plaintiff's
legal representation and abuse of the deposition process. To set
forth a § 1983 claim, one must allege "interference with a
constitutionally-protected right" by someone "acting under color of
state law." Malachowski v. City of Keene, 787 F.2d 704, 710 (1st
Cir. 1986) (per curiam). Applying Estades-Negroni v. CPC Hosp. San
Juan Capestrano, 412 F.3d 1 (1st Cir. 2005), and related cases, the
district court dismissed on the ground that state action had not
been established.
In disputing this finding, plaintiff points to the fact
that defendant issued a subpoena in the name of the state of Rhode
Island commanding him to appear at a pretrial deposition. We agree
with the district court that defendant's use of this procedural
device did not transform him into a state actor, at least absent
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any allegation that state officials were used to enforce the
process. See, e.g., Hahn v. Star Bank, 190 F.3d 708, 717 (6th Cir.
1999) (disavowing contrary holding in Timson v. Weiner, 395 F.
Supp. 1344 (S.D. Ohio 1975)); Angelico v. Lehigh Valley Hosp.,
Inc., 184 F.3d 268, 278 (3d Cir. 1999) (holding that "an attorney
does not become a state actor simply by employing the state's
subpoena laws"; distinguishing between "resorting to an available
state procedure and actually using state officials to enforce or
carry out that procedure"); Barnard v. Young, 720 F.2d 1188, 1189
(10th Cir. 1983) ("If an attorney does not become a state actor
merely by virtue of instigating state court litigation, [citing
Lugar v. Edmonson Oil Co., 457 U.S. 922, 939 n.21 (1982)], then the
attorney does not become a state actor merely by employing state
authorized subpoena power."). Plaintiff has offered no meaningful
rebuttal to this line of authority.
The fact that defendant signed and issued the subpoena in
his capacity as a notary public does not call for a different
result.1 Had the subpoena been obtained from the clerk of court,
the above-cited cases demonstrate that state action would be
1
Rhode Island law provides that a subpoena may be issued by
"the clerk of court or a notary public or other officer authorized
by statute." Super. Ct. R. Civ. P. 45(a)(1)(A); see also R.I. Gen.
Laws § 9-17-3. Notaries public are appointed by the governor for
four-year terms, see id. § 42-30-3, and members of the Rhode Island
bar automatically qualify for appointment upon application, see id.
§ 42-30-5(c). We take judicial notice of these provisions. Lamar
v. Micou, 114 U.S. 218, 223 (1885).
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absent.2 The outcome cannot differ just because a notary public is
instead used. By itself, the issuance of a subpoena, whether by a
court clerk or a notary public, lacks "consequences significant
enough" to amount to state action. Jordan v. Fox, Rothschild,
O'Brien & Frankel, 20 F.3d 1250, 1255 (3d Cir. 1994). It "does not
rise to the level of a significant contribution of the state," but
rather is "one step removed." Bochetto v. Labrum & Doak, L.L.P.,
1997 WL 560191, at *5 (E.D. Pa. 1997). Indeed, it is noteworthy
that the "mere invocation of state legal procedures" is
insufficient to create state action, Lugar, 457 U.S. at 939 n.21;
accord, e.g., Casa Marie, Inc. v. Superior Court, 988 F.2d 252, 259
(1st Cir. 1993) ("something more than mere resort to a state court
is required"), even though such "invocation" normally entails the
involvement of state court personnel.
Plaintiff's remaining arguments can be summarily
dispatched. The fact that defendant was not serving as plaintiff's
counsel has no particular relevance to the state action inquiry.
Plaintiff's reliance on Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971), is misplaced, since Bivens actions can only be
brought against "federal agent[s] acting under color of federal
law." DeMayo v. Nugent, 517 F.3d 11, 14 (1st Cir. 2008). We also
2
In Pennsylvania, for example, only a clerk of court (called
a "prothonotary") can issue a subpoena. See Pa. R. Civ. P.
234.2(a). Yet the Third Circuit in Angelico found that such
process entailed no state action.
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note that, contrary to plaintiff's assertion, the district court
made no finding that he had alleged sufficient facts to establish
the deprivation of a federal right; the court simply did not
address that prong of the § 1983 inquiry. Dismissal likely could
have been predicated on this alternative ground as well--it is
difficult to detect any constitutional violation based on the facts
alleged--but that matter need not be explored since the lack of
state action provides an adequate basis for decision.
Affirmed.
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