914 F. 2d 255 - Borrink Borrink v. Borrink

Before KEITH and MILBURN, Circuit Judges; and THOMAS, Senior District Judge.*

Geraldine Borrink, a Michigan citizen purporting to act on behalf of herself and her five minor children, requests the appointment of counsel on appeal from the dismissal of her cause of action. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Borrink sued her brother-in-law and his attorney seeking monetary and injunctive relief, asserting claims of conversion, negligence, and harassment arising out of the defendant brother-in-law's actions as personal representative of the estate of plaintiff's ex-husband. Defendants moved for dismissal, and plaintiff moved to amend the complaint to assert that the cause of action arose under the fourth and fourteenth amendments. The district court denied the motion to amend due to its futility and dismissed the case. On appeal, defendants have moved for an award of attorney fees and costs.

Upon consideration, we conclude that the motion to amend the complaint was properly denied, and the case correctly dismissed, as no claim was stated under 42 U.S.C. Sec. 1983. Defendants are private citizens whose conduct cannot be ascribed to the state. See Jones v. Duncan, 840 F.2d 359, 361-62 (6th Cir.1988). As no federal claim was stated and the parties are not diverse, the district court lacked jurisdiction over this case. Nevertheless, we decline to award attorney fees, based on Borrink's lack of any record of previous frivolous litigation. Cf. Wrenn v. Gould, 808 F.2d 493, 505 (6th Cir.1987). An award of costs under Fed.R.App.P. 38 is appropriate in this case, however. Accordingly, defendants may submit a bill of costs within fourteen days of this order.

The request for counsel is denied, and the district court's judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.