USCA1 Opinion
February 26, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
For The First Circuit
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No. 92-2244
BERENICE MARY GORCZAKOSKI,
Plaintiff, Appellant,
v.
JOHN B. DEROSA, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Cyr, Circuit Judges.
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Berenice Mary Gorczakoski on brief pro se.
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Robert C. Ware and Freedman, DeRosa & Rondeau on brief for
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appellees.
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February 26, 1993
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Per Curiam. Plaintiff Berenice Gorczakoski appeals pro
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se from a district court judgment dismissing her complaint as
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frivolous under 28 U.S.C. 1915(d). Having carefully
reviewed the record and the parties' briefs, we conclude that
"no substantial question is presented" and that summary
affirmance is therefore warranted under Loc. R. 27.1.
Plaintiff's suit involves a dispute over an inheritance.
Her complaint alleges that, upon the death of her mother in
May 1991, plaintiff inherited a fifty percent interest in a
house and property located in North Adams, Massachusetts.
Although her mother's will specified that all real estate was
to "be sold as soon as practicable," plaintiff expressed a
desire to acquire full ownership of the house by buying out
the interests of her sisters (the other beneficiaries). In
December 1991, at the behest of the executrix, the attorney
representing the estate obtained a restraining order from the
Pittsfield Probate and Family Court which barred plaintiff
from entering the house and directed that the house be
padlocked. Plaintiff filed the instant suit against the
attorney (and his partners), complaining both of her ouster
from the property and of the ongoing plans to sell the house.
Charging that defendants had operated deceitfully, she
requested that the property be returned to her, that various
repairs be performed, and that damages be awarded.
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After granting plaintiff's application for in forma
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pauperis (IFP) status, the district court construed her
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complaint as one under 42 U.S.C. 1983 alleging a
deprivation of property without due process. The court then
reviewed the complaint under 28 U.S.C. 1915(d), which
permits the dismissal of IFP complaints that are "frivolous."
A complaint is frivolous when it "lacks an arguable basis
either in law or fact"--i.e., when it is "based on an
indisputably meritless legal theory" or makes "clearly
baseless" factual allegations. Neitzke v. Williams, 490 U.S.
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319, 325, 327 (1989). The district court determined that the
complaint, even when liberally construed, suffered in this
regard as to each of the two essential elements of a 1983
claim: (1) that the conduct complained of was committed by a
person under color of state law, and (2) that it deprived a
person of rights, privileges, or immunities secured by the
Constitution or federal law. See, e.g., Parratt v. Taylor,
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451 U.S. 527, 535 (1981). The case was accordingly
dismissed.
We find no abuse of discretion. See Denton v.
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Hernandez, 112 S. Ct. 1728, 1734 (1992) ("Because the
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frivolousness determination is a discretionary one, ... a
1915(d) dismissal is properly reviewed for an abuse of ...
discretion."). We need not examine whether defendants might
properly be deemed state actors for purposes of 1983, as it
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is clear that plaintiff has failed to allege even an arguable
due process violation. Nowhere below or on appeal has
plaintiff adverted to any procedural irregularity surrounding
the events in question. In particular, she does not suggest
(1) that the procedures attending the issuance of the
restraining order were in any way deficient, (2) that the
attorney somehow exceeded the scope of that order in removing
her from the house and padlocking it, or (3) that his pursuit
of plans to sell the house was contrary to the directives of
the court or the executrix. Rather, her complaint is
directed solely at the substance of decisions reached by the
court and the executrix--decisions which are routinely made
in the course of probate proceedings. Any disagreement with
those decisions must be pursued through the state courts.
Plaintiff has alleged no facts which even begin to
approach a constitutional violation. See Watson v. Caton,
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___ F.2d ___, No. 92-1269, slip op. at 6 (1st Cir. 1993) (per
curiam) ("The difference between failing to state a claim and
making a frivolous claim is in some situations a question of
degree."). As no substantial question has been presented, we
summarily affirm the dismissal of her complaint under Loc. R.
27.1. We note that such dismissal does not bar plaintiff
from repleading her claim by means of a paid complaint
(which, according to her financial affidavit, she may well be
capable of affording). See Denton, 112 S. Ct. at 1734.
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Affirmed. The motion to dismiss is denied as moot.
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