                 Not for Publication in West's Federal Reporter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


                                           -2-
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).

                                -3-
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.

                                        -4-
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.




                               -5-
