23-1156-cv

Dasler v. Washburn

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 “SUMMARY ORDER”). A PARTY CITING 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 April, two thousand 

twenty-four. 

PRESENT: 

JOHN M. WALKER, JR.,

STEVEN J. MENASHI, 

Circuit Judges, 

ORELIA E. MERCHANT,

District Judge. ∗

_____________________________________ 

Timothy P. Dasler, for himself and on 

behalf of T. D., 

Plaintiff-Appellant, 

v. 23-1156 

Dalene Washburn, 

Defendant-Appellee. 

_____________________________________ 

∗ Judge Orelia E. Merchant of the United States District Court for the Eastern District of New 

York, sitting by designation. 
FOR PLAINTIFF-APPELLANT: TIMOTHY P. DASLER, pro se, Orford, 

NH. 

FOR DEFENDANT-APPELLEE: JENNIFER E. MCDONALD, Downs 

Rachlin Martin PLLC, Burlington, 

VT.

Appeal from a judgment of the United States District Court for the District 

of Vermont (Reiss, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is 

AFFIRMED. 

Plaintiff-Appellant Timothy Dasler, pro se on his own behalf and seeking 

to act on behalf of his minor child, T.D., sued Dalene Washburn, the therapist his 

ex-wife selected for T.D., claiming that Washburn was not acting in T.D.’s best 

interest. He asserted claims under 42 U.S.C. § 1985 and Vermont state law. The 

district court dismissed the lawsuit for failure to state a claim but permitted 

Dasler to move to amend his complaint. Dasler did not initially amend in time; 

instead, he moved after judgment was entered to file an amended complaint that 

raised additional claims under 42 U.S.C. § 1983 and state law. The district court 

denied leave to amend as futile, reasoning that Dasler failed to state a § 1983 

claim and that the domestic relations exception to diversity jurisdiction applied.1

We assume the parties’ familiarity with the facts, the procedural history, and the 

issues on appeal. 

1 We conclude that we have jurisdiction to review both the dismissal of the original 

complaint and the denial of leave to amend because we may liberally construe Dasler’s 

district court submissions as seeking vacatur of the judgment and leave to amend his 

complaint, tolling his time to appeal. See Fed. R. App. P. 4(a)(4)(A)(iv)-(v); see also Ruotolo 

v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (“A party seeking to file an amended 

complaint postjudgment must first have the judgment vacated or set aside pursuant to 

Fed. R. Civ. P. 59(e) or 60(b).”). 
We review de novo the denial of leave to amend based on futility, applying 

the same standard used to evaluate a dismissal under Rule 12(b)(6). See Nielsen 

v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). We construe the complaint liberally, accept 

all of its well-pleaded factual allegations as true, and draw all reasonable 

inferences in the plaintiff’s favor in order to determine whether the complaint 

states a plausible claim for relief. See id. On a judgment dismissing a complaint 

for lack of subject matter jurisdiction, we review factual findings for clear error 

and legal conclusions de novo. Maloney v. Soc. Sec. Admin., 517 F.3d 70, 74 (2d Cir. 

2008). 

I. Dismissal of the Original Complaint 

The district court properly dismissed the claims that Dasler brought on 

behalf of his child. A non-attorney may not bring claims on his child’s behalf. 

Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990). 

While Dasler argues that the district court should have granted his requests to 

appoint counsel for T.D., there is no right to counsel in civil cases except when 

facing the prospect of imprisonment. See Guggenheim Cap., LLC v. Birnbaum, 722 

F.3d 444, 453 (2d Cir. 2013). The discretionary denial of counsel was not an abuse 

of discretion because, as discussed below, Dasler’s claims were not “likely to be 

of substance.” Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (quoting 

Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)). 

Dasler’s claims were otherwise properly dismissed. He failed to plead 

race- or class-based animus, as required to state a § 1985 claim. Mian v. Donaldson, 

Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993). Vermont commonlaw breach of patient confidentiality requires a doctor-patient relationship. 

Lawson v. Halpern-Reiss, 210 Vt. 224, 232-33 (2019). But Washburn was his child’s 

doctor, not Dasler’s. 

Dasler did not otherwise meet Vermont’s “high” bar of pleading 

“outrageous conduct” sufficient to support an intentional infliction of emotional 

distress claim. Dalmer v. State, 174 Vt. 157, 171 (2002). He alleged that Washburn 
obstructed access to her practice by requiring Dasler to include his ex-wife on 

emails and by prohibiting him from bringing his child to sessions, amounting to 

an abuse of power. But, especially in the context of a divorce proceeding between 

Dasler and his ex-wife, Washburn’s requests to have both parents copied on 

email communications about their child and to have the ex-wife bring the child 

to sessions were not outrageous. 

II. Denial of Leave to Amend 

Dasler challenges the district court’s denial of leave to amend the 

complaint, but the denial was not erroneous. As discussed above, claims brought 

on behalf of the child were properly dismissed. Furthermore, Dasler did not add 

facts to his proposed amended complaint that would have cured the deficiencies 

identified in the district court’s first order. 

A. Section 1983 Claim 

The district court properly concluded that Dasler failed to state a § 1983 

claim. A § 1983 claim requires the violation of a federal right by a defendant 

acting under the color of state law. 42 U.S.C § 1983. But Washburn is a private 

individual, and a private individual acts under color of state law only when 

(1) the state compelled the individual’s conduct, (2) the individual acted jointly 

with the state, or (3) the individual fulfilled a role that is traditionally a public 

function performed by the state. Sybalski v. Indep. Grp. Home Living Program, Inc., 

546 F.3d 255, 257 (2d Cir. 2008). 

Dasler did not allege facts demonstrating that Washburn, a private 

therapist, was compelled to act by the state, that she acted jointly with the state, 

or that she fulfilled a traditional public function. While he contends that 

Washburn was a state actor by virtue of being selected as the child’s therapist by 

his ex-wife, who was authorized to do so by court order, the order did not 

appoint Washburn as the child’s therapist. Instead, it merely authorized Dasler’s 

ex-wife to select a private provider; she chose Washburn. 
B. State Law Claims 

We conclude that Dasler’s proposed state law claims fail on the merits. See

Wells Fargo Advisors, LLC v. Sappington, 884 F.3d 392, 396 n.2 (2d Cir. 2018)

(observing that we may affirm on any ground with support in the record).2 In 

his proposed amended complaint, Dasler asserted state law claims for 

defamation, breach of contract, negligent infliction of emotional distress, and 

abuse of process.3 

In Vermont, the elements of defamation—including libel and slander—are 

“(1) a false and defamatory statement concerning another; (2) some negligence, 

or greater fault, in publishing the statement; (3) publication to at least one third 

person; (4) lack of privilege in the publication; (5) special damages, unless 

actionable per se; and (6) some actual harm so as to warrant compensatory 

damages.” Russin v. Wesson, 183 Vt. 301, 303 (2008) (quoting Lent v. Huntoon, 143 

Vt. 539, 546-47 (1983)). Dasler alleged that Washburn’s clinical appointment 

notes contained a number of statements about his relationship with his child. But 

the notes recorded statements the child made during therapy, not statements 

made by Washburn about Dasler. Dasler also alleged that Washburn spread 

unspecified false allegations to childcare providers and other mutual contacts. 

But because Dasler failed to allege actual statements that were false and 

defamatory, Dasler’s claim that Washburn made “false” statements about him to 

others must fail. 

Dasler also failed to state a claim for breach of contract based on 

2 We have subject matter jurisdiction because “the domestic relations exception 

encompasses only cases involving the issuance of a divorce, alimony, or child custody 

decree,” and this case does not involve those matters. Ankenbrandt v. Richards, 504 U.S. 

689, 704 (1992). 

3 Dasler also asserted a claim styled “Duty of Care.” It appears that Dasler is asserting 

that Washburn had a duty of care toward him as part of a negligence claim. Dasler did 

not assert any of the other elements of a negligence claim, so he fails to state a claim for 

negligence. 
Washburn’s failure to comply with a subpoena and the Vermont state court’s 

failure to enforce it. “To prove breach of contract, [a] plaintiff must show 

damages.” Smith v. Country Vill. Int’l, Inc., 183 Vt. 535, 537 (2007). Dasler did not 

allege what damages he suffered from Washburn’s failure to produce the 

documents. He stated that he was deprived of discovery before the Vermont 

court entered a final divorce decree. But he did not allege that the documents 

would have been essential to an element of his claims in state court. 

The remaining state claims also fail. Negligent infliction of emotional 

distress requires physical peril or fear of injury, see Brueckner v. Norwich Univ., 

169 Vt. 118, 125 (1999), but Dasler pleaded neither. And abuse of process fails 

because Dasler did not plead facts suggesting an improper use of a court. See 

Weinstein v. Leonard, 200 Vt. 615, 625 (2015). 

III. Unredacted Material 

Finally, we note that Dasler’s opening brief, reply brief, and appendix 

contain the full first name of his minor child, and the appendix recites the child’s 

date of birth. Federal Rule of Appellate Procedure 25(a)(5), which incorporates 

Federal Rule of Civil Procedure 5.2, requires redaction of this information. 

Accordingly, the Clerk of the Court is directed to SEAL from public view 

documents 30, 31, and 70 on this court’s docket. While we do not remand, the 

district court may wish to seal similar filings. 

* * * 

We have considered Dasler’s remaining arguments, which we conclude 

are without merit. Accordingly, we AFFIRM the judgment of the district court. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court