14‐3527‐cv Milan v. Wertheimer

In the United States Court of Appeals For the Second Circuit ________

AUGUST TERM, 2015

SUBMITTED: OCTOBER 23, 2015 DECIDED: DECEMBER 22, 2015

No. 14‐3527‐cv

CRYSTAL M. MILAN, Plaintiff‐Appellant,

v.

FRED WERTHEIMER, DENISE COSTANZA, ZENOBIA PARKER, NEFREDIA COVINGTON, and MARY DAVIS, Defendants‐Appellees.1 ________

Appeal from the United States District Court for the Eastern District of New York. No. 14 Civ. 2448 – Sandra L. Townes, Judge. ________

Before: KEARSE, WALKER, and CABRANES, Circuit Judges. ________

1The Clerk of the Court is directed to amend the caption as set forth above.

2 No. 14‐3527‐cv

In 2004, the New York City Administration for Children’s

Services (“ACS”) removed Crystal Milan’s children from her

custody and placed them with her mother. Milan then brought suit

for constitutional violations against her mother, two New York law

guardians, a New York ACS employee, and a Pennsylvania

caseworker. The United States District Court for the Eastern District

of New York (Sandra L. Townes, J.) dismissed the suit sua sponte,

concluding that the claims against the ACS employee and the

caseworker are barred by the statute of limitations and that Milan’s

mother and the law guardians are not state actors for the purposes

of

. We AFFIRM.

________

CRYSTAL M. MILAN, Plaintiff‐Appellant, pro se, Brooklyn, NY.

NO APPEARANCE for Defendants‐Appellees.

________

PER CURIAM:

In 2004, the New York City Administration for Children’s

Services (“ACS”) removed Crystal Milan’s children from her

custody and placed them with her mother. Milan then brought suit

for constitutional violations against her mother, two New York law

guardians, a New York ACS employee, and a Pennsylvania

caseworker. The United States District Court for the Eastern District 3 No. 14‐3527‐cv

of New York (Sandra L. Townes, J.) dismissed the suit sua sponte,

concluding that the claims against the ACS employee and the

caseworker are barred by the statute of limitations and that Milan’s

mother and the law guardians are not state actors for the purposes

of

. We AFFIRM.

BACKGROUND

On March 19, 2014, Crystal M. Milan filed a complaint pro se,

on behalf of herself and her children, against her mother, Mary Lee

Davis; New York law guardians Fred Wertheimer and Denise

Costanza; New York ACS employee Nefredia Covington; and

Pennsylvania caseworker Zenobia Parker. She alleged that the

defendants had violated her constitutional rights through actions

they took in connection with the 2004 removal of her children from

her custody and the subsequent placement of the children with

Davis. On July 3, 2014, the district court dismissed the complaint

but granted Milan leave to amend. On August 14, 2014, Milan filed

an amended complaint, elaborating on the allegations she made in

the initial complaint but dropping the claims brought on behalf of

her children.

Milan alleges that ACS removed her children from her

custody after an investigation instigated by Davis and conducted by

Covington. ACS placed the children with Davis in Pennsylvania.

While the children remained with Davis, Milan alleges, the 4 No. 14‐3527‐cv

defendants interfered in numerous ways with her relationship with

her children. For example, Milan claims that Davis, Costanza, and

Parker lied about Milan in court and in written reports, with the

result that she was prevented from visiting and regaining custody of

her children. Milan does not describe Wertheimer’s misconduct,

although the complaint suggests he was at one point involved in

stopping Milan’s visits with her children. The final event described

in the complaint occurred in 2012, but Covington’s involvement

concluded in 2004 and Parker’s in 2009.

On September 2, 2014, the district court construed Milan’s

claims as having been brought under

and dismissed

the complaint sua sponte, pursuant to

(e)(2)(B), for

failing to state a claim on which relief may be granted. Milan v.

Wertheimer, No. 14‐CV‐2448 SLT,

, at *5 (E.D.N.Y.

Sept. 2, 2014), reconsideration denied, No. 14‐CV‐2448 SLT,

(E.D.N.Y. Dec. 30, 2014). The district court held that the

claims against Covington and Parker were barred by the three‐year

statute of limitations applicable to § 1983 suits in New York and that

the claims against Costanza, Davis, and Wertheimer must be

dismissed because they are not state actors. Id. at *5‐*6. On

September 15, 2014, Milan filed a motion for reconsideration,

reiterating the arguments from her complaint, and a notice of 5 No. 14‐3527‐cv

appeal. On December 30, 2014, the district court denied the motion

for reconsideration.

DISCUSSION

We review de novo a district court’s dismissal of a complaint

pursuant to

(e)(2)(B). McEachin v. McGuinnis,

(2d Cir. 2004). We accept as true all facts described in

the complaint but need not accept “conclusory allegations or legal

conclusions couched as factual [] allegations.” Nielsen v. Rabin,

(2d Cir. 2014) (internal quotation marks omitted).

I. The Claims against Covington and Parker

Section 1983 actions in New York are subject to a three‐year

statute of limitations, Murphy v. Lynn,

(2d Cir. 1995),

running from the time a “plaintiff knows or has reason to know of

the injury” giving rise to the claim, Cornwell v. Robinson,

(2d Cir. 1994) (internal quotation marks omitted).

Covington’s involvement in the events giving rise to the suit

ended in 2004, when Milan’s children were removed from her

custody, and the final specific factual allegation against Parker is

dated to 2009. The complaint makes clear that Milan knew of the

alleged injuries when they occurred. Although Milan claims that

Parker has been trying to sabotage her visits with one of her children

since September 2009, this is the sort of conclusory, unsupported

allegation that we need not accept when reviewing the dismissal of 6 No. 14‐3527‐cv

the complaint. See Nielsen,

. Because the properly

alleged events giving rise to claims against Covington and Parker

were completed more than three years before the complaint was

filed in 2014, these claims are barred by the statute of limitations.

II. The Claims against Costanza, Davis, and Wertheimer

To avoid sua sponte dismissal of a § 1983 claim, a plaintiff must

allege that (1) the defendant was a state actor, i.e., acting under color

of state law, when he committed the violation and (2) the defendant

deprived the plaintiff of “rights, privileges or immunities secured by

the Constitution or laws of the United States.” Hayut v. State Univ. of

N.Y.,

, 743‐44 (2d Cir. 2003) (internal quotation marks

omitted).

Even if Covington and Parker were state actors against whom

a timely § 1983 action could be brought, the other defendants were

not. Costanza and Wertheimer were law guardians, also known as

“attorney[s] for the child,” appointed by New York’s family court to

represent the interests of Milan’s children in the custody

proceedings. N.Y. Ct. R. 7.2(a). As law guardians, Costanza and

Wertheimer were required to “zealously advocate the child[ren]’s

position” after consulting with them. Id. at 7.2(d). The question of

whether law guardians so appointed are state actors has not

previously been addressed by this Court. 7 No. 14‐3527‐cv

Other circuits, in determining that law guardians are not state

actors for the purpose of § 1983, have relied largely on Polk County v.

Dodson,

(1981). See, e.g., Kirtley v. Rainey,

(9th Cir. 2003); Meeker v. Kercher,

(10th Cir.

1986) (per curiam). In Polk County, the Supreme Court held that

public defenders “do[] not act under color of state law when

performing a lawyer’s traditional functions as counsel to a

defendant in a criminal proceeding,” notwithstanding the fact that

the state pays for the services they provide.

. We

believe that the analogy of a law guardian to a public defender is

apt. Although both are supplied and funded by the state, each acts

according to the best interests of the client with “no ‘obligation to

the mission of the state.’” Meeker,

(quoting Polk Cty.,

). Accordingly, we hold that law guardians who act

as “attorney[s] for the child” are not state actors for the purposes of

suits filed pursuant to § 1983. We thus agree with the district court

that dismissal of the claims against law guardians Costanza and

Wertheimer was appropriate.

We also affirm the district court’s dismissal of the claims

against Davis, Milan’s mother. The allegations in the complaint

indicate that Davis was acting as a private individual and that she

was in no sense a state actor. Accordingly, the claims against her

were properly dismissed on that basis. 8 No. 14‐3527‐cv

CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the

district court.