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September 17, 1986


The opinion of the court was delivered by: SCIRICA


 Lewis duPont Smith has petitioned this court under 42 U.S.C. § 1983 seeking declaratory and injunctive relief against the application of the Pennsylvania guardianship laws, 20 Pa. Cons. Stat. Ann. § 5501(1) and (2) *fn1" (Purdon 1975). Specifically, Smith alleges that a ruling by Judge Lawrence Wood of the Court of Common Pleas of Chester County, declaring Smith incompetent to manage his estate, deprived him of his constitutional rights in violation of the First Amendment freedom of speech and association relating to his expression of political beliefs. This court has jurisdiction pursuant to 28 U.S.C. § 1343(3) and 28 U.S.C. § 1331.

 Members of Smith's family, the defendants in this action, invoked the "guardianship of the estate" provision of section 5501 in the Chester County action. Smith claims that Judge Wood's ruling brings his family members within the purview of § 1983, which protects him from deprivations of federal, constitutional, and statutory rights "under color of" state law. See 42 U.S.C. § 1983.

 The defendant family members, E. Newbold Smith, Margaret duPont Smith, et al., have filed a motion asking me to dismiss Smith's section 1983 claim and/or to abstain from intervening in an ongoing state court proceeding. *fn2" Similarly, defendant, Judge Wood, urges me to abstain and further alleges that he is not a proper party to this suit. In reviewing a motion to dismiss, see Fed. R. Civ. P. 12(b)(6), I am bound to construe the complaint in the light most favorable to the plaintiff, and I may not dismiss unless plaintiff can prove no set of facts that would entitle him to relief. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir.), cert. denied, 474 U.S. 935, 106 S. Ct. 267, 88 L. Ed. 2d 274 (1985).

 Because I hold that the section 1983 action against Smith's family members does not meet the statutory requirement of state action, I grant defendants' motion to dismiss. In addition, I further hold that Judge Wood, sued in his neutral capacity as a trial judge, is not a proper party to this suit. Finally, although not essential to the disposition of this action, I rule that abstention would be proper in a situation such as this, despite plaintiff's First Amendment challenge to the state conservatorship statute.

 Before turning to the legal resolution of this case, I shall briefly review the factual setting in which this case arose.

 Defendant family members instituted state court proceedings before Judge Wood in April, 1985, alleging that under the conservatorship statute, plaintiff, age 28, had a "mental illness" that rendered him unable to manage his property, or "liable to dissipate it or become the victim of designing persons." 20 Pa. Cons. Stat. Ann. § 5501. The family members contended that indications of plaintiff's mental illness coincided with his increased involvement with a political organization headed by Lyndon LaRouche. At the time, Judge Wood found that plaintiff's estate was valued at 1.5 million dollars and he had loaned $212,000 to a LaRouche organization. Smith had received only a $75,000 unsecured promissory note and was prepared to loan LaRouche's group additional sums of money. Judge Wood issued a preliminary injunction barring plaintiff from "making any expenditures of any type where such funds will directly or indirectly benefit any political or charitable organizations" without prior written approval of the court. Judge Wood specifically identified organizations associated with LaRouche as falling within the term "political or charitable organizations."

 In a subsequent ruling issued July 23, 1986, Judge Wood, applying section 5501, heard testimony concerning plaintiff's mental status and concluded that plaintiff was clearly suffering from a mental illness as defined by state law. As a result, Judge Wood named the Wilmington Trust Co. guardian of plaintiff's estate. *fn3" In a subsequent proceeding, Judge Wood rejected the family's request that he impose a guardianship of the person on plaintiff pursuant to section 5501(2). Throughout the state court proceedings, plaintiff maintained that imposition of the conservatorship law was a "blatant interference with his constitutional rights, particularly his First Amendment rights."

 In his § 1983 complaint filed with this court in June 1986, plaintiff alleged that the state law was unconstitutional as applied to him by Judge Wood. Upon receipt of defendants' motion to dismiss, plaintiff attempted to recast his allegation as a facial attack on the Pennsylvania statute. Even assuming that plaintiff has mounted facial challenge, which I find problematic, my holding is the same and I am compelled to dismiss plaintiff's suit.

 I. State Action Requirement of Section 1983.

 Section 1983, *fn4" enacted in the wake of blatant civil rights violations during the post-Civil War years, altered the landscape of federalism in this country. Congress enacted the provisions "to interpose the federal courts between the States and the people, as guardians of the people's federal rights -- to protect the people from unconstitutional action under color of state law . . . ." Mitchum v. Foster, 407 U.S. 225, 242, 32 L. Ed. 2d 705, 92 S. Ct. 2151 (1972) (quoting Ex parte Virginia, 100 U.S. 339, 346, 25 L. Ed. 676 (1879)). Thus, as the statute provides, plaintiff must meet the threshold requirement of acting under the color of state law -- or as the requirement is often stated, of being a state actor. See U.S. v. Price, 383 U.S. 787, 797, 16 L. Ed. 2d 267, 86 S. Ct. 1152 n.7 (1966) ("under color of state law" and "state action" requirements identical).

 The defendant family members, who initiated the state proceedings resulting in this action, are private citizens -- not state officials. Thus, standing alone, they clearly fall outside the coverage of § 1983. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974) (private conduct, however wrongful, unprotected by Fourteenth Amendment). There are however, other considerations.

 Action by a private party will satisfy the mandate of section 1983 if the deprivation of a federal right is "fairly attributable to the state". Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982).

First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible . . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Without a limit such as this, private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.


 Both parties agree that Lugar is controlling on this issue.

 Because the defendants invoked the state statutory provision granting a private right to seek imposition of a guardianship on plaintiff's estate, plaintiff meets the first prong of the Lugar test. See 20 Pa. Cons. Stat. Ann. § 5511 (grants private citizen power to petition state court to make competency determination and to appoint guardian of estate). Defendants contend however, that plaintiff fails the "state action" second prong because instituting state court proceedings and receiving the relief sought is insufficient to "alchemize" private conduct into state action under section 1983.

 Plaintiff, meanwhile, reads Lugar as granting a cause of action under the Fourteenth Amendment whenever a private party invokes a seemingly valid statute coupled with the aid of a state official. Lugar, supra at 933 n.16. Not only is this a misstatement of Lugar's holding, see Cruz v. Donnelly, 727 F.2d 79, 81-82 (3d Cir. 1984), but I find no case law to support such an expansive reading. To the contrary, nothing in Lugar indicates that a private party may invoke the jurisdiction of a federal court merely because a state judge, carrying out his constitutionally mandated duties, has applied a valid state law.

 Lugar involved a prejudgment attachment statute that permitted the defendant to obtain an ex parte writ from the clerk of the state court and have the writ executed by a county sheriff. Id. at 924-25. In determining whether plaintiff had satisfied the state action requirement of the Fourteenth Amendment in his § 1983 lawsuit against the defendant oil company, the Supreme Court concluded that a private party who invoked the state's prejudgment attachment procedure acted jointly with the state. Id. at 942. As the court makes clear, the plaintiff in Lugar challenged the procedures followed by defendants in obtaining the prejudgment attachment. Id. at 940, 941 (emphasis added). In this action, Smith raises no such claim. Instead, plaintiff seeks to enjoin any further state court proceedings concerning the conservatorship of his estate and further seeks a declaration that section 5501(1), as applied to him, is unconstitutionally void for vagueness and overbreadth in violation of the First and Fourteenth Amendments. See Complaint at 14.

 Plaintiff's reliance on footnote 16 of the Lugar opinion fails to persuade me that the Supreme Court intended its decision to extend beyond the context of prejudgment attachment proceedings. In fact, the Court's discussion in footnote 16 is merely dicta, responding to criticism in Justice Powell's dissent. See Lugar, supra, at 933 n.16. The Court did, in fact, refer to a "private decision to invoke a presumptively valid state legal process." Id. Nevertheless, a careful reading of the footnote indicates that the Court explained that such conduct satisfies the state action requirement only in the context of a "valid prejudgment remedy statute." Id. Such situations arise only when a private individual acts jointly with the aid of a state official, such as a court clerk or a sheriff. See id.

 My reading of Lugar is also supported by the context in which the Court discussed presumptively valid state law. All the cases cited in Justice White's majority discussion of this issue and Justice Powell's dissent involve attachment proceedings. Compare id. at 932-36 with id. at 952-54 (Powell, J. dissenting). More importantly however, the Court expressly limited its holding to the particular context of prejudgment attachment proceedings. Id. at 939 n.21, in which the court noted:

We do not hold today that "a private party's mere invocation of state legal procedures constitutes 'joint participation' or 'conspiracy' with state officials satisfying the § 1983 requirement of action under color of law." (citation omitted) The holding today, as the above analysis ...

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