Angello v. Mack et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LILIA ANGELLO,
Plaintiff,
v.
BARRETT D. MACK, ESQ., et al.,
Defendants.
1:26-cv-089
(ECC/DJS)
Lilia Angello, Plaintiff, pro se
Hon. Elizabeth C. Coombe, United States District Judge:
MEMORANDUM-DECISION AND ORDER
On December 31, 2025, Plaintiff Lilia Angello commenced this pro se action by filing a
Complaint in the Southern District of New York. 	Dkt. No. 1. 	Plaintiff simultaneously filed a
motion for temporary restraining order and preliminary injunction. 	Id. 	After Plaintiff paid the
filing fee, this action was transferred to the Northern District of New York by U.S. District Court
Judge Kenneth M. Karas on January 12, 2026. Dkt. No. 4. Currently pending before this Court is
Plaintiff’s renewed emergency motion for temporary restraining order. 	Dkt. No. 10. 	Upon sua
sponte review, the Complaint is dismissed, and Plaintiff’s request for preliminary injunctive relief
is denied as moot.
I. 	Complaint
This action arises from Plaintiff’s state-court matrimonial proceedings. Dkt. No. 1 ¶ 12.
Defendants Mach, Replansky, Weaver, Haskin, Cochrane, and Wellner represented Plaintiff in the
trial-level proceedings. Id. at ¶ 3. Defendant Mack represented Plaintiff in her appeal. Id. at ¶ 20.
Plaintiff alleges that, in conjunction with her state-court matrimonial action, she filed
detailed counterclaims “alleging cruel and inhuman treatment and proposing a comprehensive
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division of marital and business assets[.]” Dkt. No. 1 ¶ 12. Plaintiff further alleges that no reply
to the counterclaims was ever “filed, docketed, or file-stamped in the trial court.” Id. ¶ 14. Plaintiff
claims that, “[r]ather than seeking resolution based on the operative pleadings, . . . Defendants
Mack, Replansky, Weaver, Haskin, Cochrane, and Wellner proceeded in a manner that ignored
the unresponded-to counterclaims, prolonged litigation for approximately nine years, and
ultimately foreclosed review through a compromised appellate process.” Id. at ¶ 15.
Plaintiff alleges that “a document purporting to be a ‘reply to counterclaims’ appeared for
the first time in the record on appeal” assembled and submitted by Defendant Mack. Dkt. No. 1
¶¶ 16, 18. 	Plaintiff claims that this document “was never part of the trial-court record and was
never lawfully filed,” however Defendant Mack “proceeded with the appeal notwithstanding the
inclusion of this unfiled document.” Id. at ¶¶ 17-18. Plaintiff further alleges that Defendant Mack
discouraged Plaintiff from pursuing oral argument on her appeal, and “conveyed that further action
would not change the outcome of the appeal.” Id. at ¶¶ 20-26.
Plaintiff alleges that as a result of the state-court matrimonial action, foreclosure
proceedings have commenced, and she has been “ordered” to sell her residence. Dkt. No. 1 ¶¶ 35,
37. 	Plaintiff also alleges that she is “at imminent risk of losing her largest asset, . . . property
owned by the family business and recognized as a marital asset.” Id. at ¶ 36.
Liberally construed, Plaintiff’s Complaint asserts Fourteenth Amendment due process and
civil conspiracy claims pursuant to 42 U.S.C. § 1983. 	Dkt. No. 1 ¶¶ 38-39. Plaintiff seeks
injunctive relief preserving the status quo, unspecified declaratory relief, and “compensatory and
punitive damages and costs, as the Court deems just and proper.” Id. at ¶ 41.
II. 	Legal Standard
“District courts have the inherent authority to dismiss a complaint sua sponte as frivolous
even where, as here, the plaintiff has paid the required filing fee, if the claims ‘lack[ ] an arguable
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basis either in law or in fact.’” Tewari v. Sattler, No. 23-36-cv, 2024 WL 177445, at *1 (2d Cir.
Jan. 17, 2024) (quoting Pillay v. INS, 45 F.3d 14, 16 (2d Cir. 1995)). Although the Second Circuit
has “repeatedly warned against dismissing a complaint sua sponte without providing notice and an
opportunity to be heard,” it has “nevertheless articulated several exceptions where sua sponte
dismissal of a fee-paid complaint may be appropriate.” 	Id. (citations omitted). 	“Most
significantly, dismissal without notice is permissible when it is ‘unmistakably clear’ that the
underlying case is frivolous or the court lacks jurisdiction.” Id. (citations omitted).
Pro se submissions are reviewed with “special solicitude,” and “must be construed liberally
and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474–75 (2d Cir. 2006) (cleaned up).
III. 	Discussion
A claim for relief under 42 U.S.C. § 1983 must allege facts showing that the defendant
acted under the color of a state “statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983.
Thus, to state a claim under § 1983, a plaintiff must allege both that: (1) a right secured by the
Constitution or laws of the United States was violated, and (2) the right was violated by a person
acting under the color of state law, or a “state actor.” See West v. Atkins, 487 U.S. 42, 48-49 (1988).
Private parties are generally not state actors, and are therefore not usually liable under Section
1983. Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013) (quoting Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau,
292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States Constitution regulates only the
Government, not private parties . . . .”) (internal quotation marks and citation omitted). “Although
the under-color-of-state-law requirement can be applied to private individuals in certain limited
circumstances, such as where the private individual is engaged in a ‘public function’ or performs
conduct that is ‘fairly attributable to the state,’ these exceptions are narrow.” Masters v. Mack,
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No. 22-cv-6582, 2022 WL 17961211, at *5 (E.D.N.Y. Dec. 27, 2022) (citing Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 51–52, 55–58 (1999)).
Here, Plaintiff has failed to allege that any of the defendants acted under color of state law.
The Defendants were all Plaintiff’s attorneys in her matrimonial proceedings. However, private
parties’ “mere use, and even misuse, of the state courts does not turn [them] into state actors.”
Koziol v. King, No. 14-cv-946 (GLS/TWD), 2015 WL 2453481, at *11 (N.D.N.Y. May 22, 2015)
(citation omitted). Furthermore, “[i]t is well-settled that private attorneys and law firms . . . do not
act under color of state law and are not state actors for purposes of Section 1983 simply by virtue
of their state-issued licenses to practice law.” Manko v. Steinhardt, No. 11-cv-5430, 2012 WL
213715, at *4 (E.D.N.Y. Jan. 24, 2012) (collecting cases). The same is true for court-appointed
attorneys. See Malek v. New York Unified Ct. Sys., No. 22-cv-5416, 2023 WL 2429528, at *17
(E.D.N.Y. Mar. 9, 2023) (“it is well-established that court-appointed attorneys performing a
lawyer’s traditional functions . . . do not act under color of state law and therefore are not subject
to suit under 42 U.S.C. § 1983.”) (quoting Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997)).
Private parties can be liable under Section 1983 if they “willfully collaborated with an
official state actor in the deprivation of the federal right[.]” Yapi v. Kondratyeva, 340 F. App’x
683, 684 (2d Cir. 2009) (quoting Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993),
overruled on other grounds by Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit,
507 U.S. 163, 164 (1993)). To succeed on a Section 1983 conspiracy claim, a plaintiff must prove:
“(1) an agreement between a state actor and a private party; (2) to act in concert to inflict an
unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”
Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324–25 (2d Cir. 2002) (citing Pangburn v.
Culbertson, 200 F.3d 65, 72 (2d Cir. 1999)). Conclusory allegations that a private person acted in
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concert with a state actor are insufficient to maintain a conspiracy claim under Section 1983. See
id.
Here, Plaintiff asserts that the Defendants “acted jointly and under color of state law to
deprive Plaintiff of meaningful access to the courts.” Dkt. No. 1 ¶ 38. However, despite Plaintiff’s
reference to “judicial reliance” on the “falsified appellate record,” Plaintiff asserts no facts
showing that any of the Defendants agreed to act in concert with a state actor to inflict an
unconstitutional injury on Plaintiff. Accordingly, Plaintiff’s Section 1983 claims are sua sponte
dismissed as frivolous. Errato v. Seder, No. 23-638, 2024 WL 726880, at *2 (2d Cir. Feb. 22,
2024) (“State action is an essential element of a § 1983 claim that a plaintiff ‘must allege.’”)
(quoting Buon v. Spindler, 65 F.4th 64, 78 (2d Cir. 2023)).
IV. 	Leave to Amend
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to
cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione,
657 F.3d 116, 123–24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). In
light of the Court’s duty to liberally construe pro se complaints, Plaintiff is granted thirty (30) days
to file an amended complaint.
V. 	Conclusion
For these reasons, it is hereby
ORDERED that Plaintiff’s Complaint, Dkt. No. 1, is DISMISSED sua sponte without
prejudice; and it is further
ORDERED that Plaintiff’s motion for a temporary restraining order, Dkt. No. 10, is
DENIED as moot; and it is further
ORDERED that Plaintiff is granted leave to file an amended complaint, and it is further
ORDERED that any amended complaint must be filed within thirty days of the date of this
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Memorandum-Decision and Order, and it is further
ORDERED that, if Plaintiff fails to file an amended complaint within the thirty-day
deadline, the Clerk of the Court is respectfully directed to close this case without further order
from the Court.
IT IS SO ORDERED.
Dated: February 2, 2026
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