
USCA1 Opinion

	




          February 26, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                For The First Circuit                                 ___________________          No. 92-2244                                          BERENICE MARY GORCZAKOSKI,                                Plaintiff, Appellant,                                          v.                               JOHN B. DEROSA, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ___________________               Berenice Mary Gorczakoski on brief pro se.               _________________________               Robert C. Ware and  Freedman, DeRosa & Rondeau on  brief for               ______________      __________________________          appellees.                                  __________________                                  February 26, 1993                                  __________________                 Per Curiam.  Plaintiff Berenice  Gorczakoski appeals pro                 __________                                           ___            se from a district court judgment dismissing her complaint as            __            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.                                         -2-                 After  granting plaintiff's  application  for  in  forma                                                                _________            pauperis  (IFP)  status,  the  district  court construed  her            ________            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.                                            _______    ________            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,                                           ___  ____  _______     ______            451  U.S.   527,  535  (1981).    The  case  was  accordingly            dismissed.                 We   find  no  abuse  of  discretion.    See  Denton  v.                                                          ___  ______            Hernandez,  112  S.  Ct.  1728,  1734  (1992)  ("Because  the            _________            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                                         -3-            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,                                                    ___ ______     _____            ___ 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.                                    ___ ______                                         -4-                 Affirmed.  The motion to dismiss is denied as moot.                 ___________________________________________________                                         -5-
