Jae Soog Lee v. Law Office of Kim & Bae, PC

SUMMARY ORDER Jae Soog Lee appeals from the November 6, 2012 judgment of the United States District Court for the Eastern District of New York (Bianco, J.) dismissing her complaint primarily seeking damages under 42 U.S.C. § 1983 for alleged violations of her civil rights. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. Lee sued the Law Office of Kim & Bae, P.C. and its principals, asserting a variety of state and federal claims flowing from a failed employment agreement between the parties. The federal claims were dismissed by the district court, which also declined to exercise supplemental jurisdiction over Lee’s state law claims. On appeal, Lee challenges only the dismissal of her claims, brought pursuant to 42 U.S.C. § 1983, for unlawful arrest and malicious prosecution. Private parties are not proper defendants in a Section 1983 action unless the private parties were acting under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). “[A] private actor acts under color of state law when the private actor is a willful participant in joint activity with the State or its agents.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir.2002) (internal quotation marks omitted). A “conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private entity.” Id. To support a claim against a private party on a § 1983 conspiracy theory, a plaintiff must show “(1) an agreement between a state actor and a private party; *10 (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.” Id. at 324-25. “A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.” Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.1983). Lee alleges that defendants “acted under color of state law” by (1) intentionally filing a false criminal complaint; and (2) conspiring with a judge to keep the criminal proceedings going when there was clearly no merit to the criminal complaint. However, the district court correctly concluded that Lee failed to set forth sufficient allegations to support her claim that defendants were state actors. Absent from Lee’s second amended complaint are allegations, made in a non-conclusory way, setting out the overt acts, and the agreement, that allegedly comprised the conspiracy. There are simply not enough factual allegations to set out an actionable claim that defendants acted under color of state law. We have examined the remainder of Lee’s claims and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. Each side to bear its own costs.