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 42 U.S.C. § 1983. We AFFIRM.
________
CRYSTAL M. MILAN, Plaintiff‐Appellant, pro se, Brooklyn, NY.
NO APPEARANCE for Defendants‐Appellees.
PER CURIAM:
custody and placed them with her mother. Milan then brought suit
for constitutional violations against her mother, two New York law
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,
caseworker are barred by the statute of limitations and that Milan’s
mother and the law guardians are not state actors for the purposes
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 42 U.S.C. § 1983 and dismissed
the complaint sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B), for
failing to state a claim on which relief may be granted. Milan v.
Wertheimer, No. 14‐CV‐2448 SLT, 2014 WL 4370647, at *5 (E.D.N.Y.
Sept. 2, 2014), reconsideration denied, No. 14‐CV‐2448 SLT, 2014 WL
7399305 (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 28 U.S.C. § 1915(e)(2)(B). McEachin v. McGuinnis, 357
F.3d 197, 200 (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, 746
F.3d 58, 62 (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, 53 F.3d 547, 548 (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, 23 F.3d 694,
703 (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, 746 F.3d at 62. 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., 352 F.3d 733, 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.
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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 42 U.S.C. § 1983. We AFFIRM.
________
CRYSTAL M. MILAN, Plaintiff‐Appellant, pro se, Brooklyn, NY.
NO APPEARANCE for Defendants‐Appellees.
PER CURIAM:
custody and placed them with her mother. Milan then brought suit
for constitutional violations against her mother, two New York law
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,
caseworker are barred by the statute of limitations and that Milan’s
mother and the law guardians are not state actors for the purposes
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 42 U.S.C. § 1983 and dismissed
the complaint sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B), for
failing to state a claim on which relief may be granted. Milan v.
Wertheimer, No. 14‐CV‐2448 SLT, 2014 WL 4370647, at *5 (E.D.N.Y.
Sept. 2, 2014), reconsideration denied, No. 14‐CV‐2448 SLT, 2014 WL
7399305 (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 28 U.S.C. § 1915(e)(2)(B). McEachin v. McGuinnis, 357
F.3d 197, 200 (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, 746
F.3d 58, 62 (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, 53 F.3d 547, 548 (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, 23 F.3d 694,
703 (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, 746 F.3d at 62. 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., 352 F.3d 733, 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, 454 U.S. 312 (1981). See, e.g., Kirtley v. Rainey, 326 F.3d 1088,
1093 (9th Cir. 2003); Meeker v. Kercher, 782 F.2d 153, 155 (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. 454 U.S. at 325. 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, 782 F.2d at 155 (quoting Polk Cty.,
454 U.S. at 320). 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.