Not for Publication in West's Federal Reporter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
-2-

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 (1 Cir. 2005), and related cases, the st

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
 Rhode Island law provides that a subpoena may be issued by 1

"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-

any allegation that state officials were used to enforce the

process. See, e.g., Hahn v. Star Bank, 190 F.3d 708, 717 (6 Cir. th

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

(10 Cir. 1983) ("If an attorney does not become a state actor th

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. Had the subpoena been obtained from the clerk of court, 1

the above-cited cases demonstrate that state action would be
 In Pennsylvania, for example, only a clerk of court (called 2

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-

absent. The outcome cannot differ just because a notary public is 2

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

(1 Cir. 1993) ("something more than mere resort to a state court st

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 (1 Cir. 2008). We also st
-5-

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.