Davis v. Baldwin , 594 F. App'x 49 ( 2015 )

14-753
Davis v. Baldwin
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@).
A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 25th day of February, two thousand fifteen.
PRESENT:
BARRINGTON D. PARKER,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
Tyreek Davis, on behalf of N. Brown, S.
Brown, I. Brown and A. Davis,
Plaintiff-Appellant,
v. 14-753
Chini Baldwin, Caseworker, in her
individual and official capacity, and John
Mattingly, in his individual and official capacity
as Commissioner of ACS,
Defendants-Appellees,
Amanda E. White, in her individual and
official capacity as Justice of the Superior
Court of Kings County,
Defendant.
1
_____________________________________
FOR PLAINTIFF-APPELLANT: Tyreek Davis, pro se, Richmond, VA
FOR DEFENDANTS-APPELLEES: Marta Soja Ross, for Zachary W. Carter,
Corporation Counsel of the City of New
York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Ramos, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Tyreek Davis, proceeding pro se, appeals from the district court’s December 31,
2013 judgment granting the defendants’ motion to dismiss his 42 U.S.C. § 1983 complaint and
denying his 28 U.S.C. § 2254 petition. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
As a preliminary matter, Davis seeks to appeal the denial of his petition for writ of habeas
corpus. Because a petitioner must obtain a certificate of appealability (“COA”) prior to appealing
“a final order in a habeas corpus proceeding in which the detention complained of arises out of
process issued by state court,” 28 U.S.C. § 2253(c), we construe his brief as also requesting a
COA. As the district court observed, however, Davis cannot challenge a child-custody
determination pursuant to a habeas corpus petition. See Middleton v. Attorneys Gen. of States of
N.Y. & Penn., 396 F.3d 207, 209 (2d Cir. 2005). Accordingly, we decline to grant a COA and
dismiss the appeal from the denial of Davis’s habeas corpus petition for lack of jurisdiction.
“A plaintiff asserting subject matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113 (2d
2
Cir. 2000). When determining whether subject matter jurisdiction exists, the district court may
examine evidence outside the pleadings. Id. When, as here, it has done so, we review the district
court’s factual findings for clear error and its legal conclusions de novo. Id.
Regardless of the status of Davis’s state court appeal, see Gabriele v. Am. Home Mort.
Servicing, 503 F. App’x 89, 92 (2d Cir. 2012) (assuming, without deciding, that Rooker-Feldman
applied even though state appeal pending), the Rooker-Feldman doctrine does not apply here
because Davis does not invite review and rejection of a “final state-court judgment,” Lance v.
Dennis, 546 U.S. 459, 463 (2006). Davis challenged the Family Court’s temporary orders of
removal and protection rather than a final order of disposition. Indeed, Davis did not dispute that
a final custody order had not yet been entered when he filed his complaint, and his exhibits
demonstrate that an interlocutory appeal from temporary orders entered in those proceedings was
taken well after the filing of his federal complaint. Like the plaintiff in Green v. Mattingly, Davis
sought review and rejection of temporary orders rather than a final order of disposition of the
custody of his child. See 585 F.3d 97, 100 (2d Cir 2009). Thus, Davis cannot be deemed to be
seeking review and rejection of a final state court judgment because the family court proceedings
were ongoing: that court could have superseded its temporary rulings and rendered a final
disposition different from the challenged orders. See id. at 102-03 (holding that plaintiff did not
invite review and rejection of a state court judgment because Family Court issued order
superseding its prior temporary order).
The district court nonetheless properly dismissed the action. See Cephas v. Nash, 328
F.3d 98, 100 (2d Cir. 2003) (Court of Appeals may affirm on any basis supported by the record).
Under the abstention doctrine set out by the Supreme Court in Younger v. Harris, 401 U.S. 37,
3
43-45 (1971), a district court must dismiss the federal action if it involves ongoing: (1) “state
criminal prosecutions”; (2) “civil proceedings that are akin to criminal prosecutions”; or (3) civil
proceedings that “implicate a State’s interest in enforcing the orders and judgments of its courts.”
Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 588 (2013). As the Supreme Court observed, a
“state-initiated proceeding to gain custody of children allegedly abused by their parents” falls
within the second category. Id. at 592 (citing Moore v. Sims, 442 U.S. 415, 419-20 (1979)).
Because Davis does not dispute that the federal action here involved an ongoing, state-initiated
custody proceeding, the proper basis for the district court’s dismissal was the Younger abstention
doctrine.
We have considered Davis’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
4