17-1658 Bukowski v. Spinner



## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A SUMMARY 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 19 th day of January, two thousand eighteen.

PRESENT: DENNIS JACOBS, PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges.

_____________________________________

JOYELLE BUKOWSKI,

Plaintiff-Appellant
,

v. 17-1658

JEFFREY ARLEN SPINNER, Family Judge,
Court of State of New York, MARY BETH DANIELS, Law Guardian, JOANNE MERRIHUE, PHILIP J. CASTROVINCI, Attorney for Adam Saylor, DENNIS M. BROWN, Attorney, Suffolk County, LORI TOWNS, KATHLEEN TURNER, ADAM SAYLOR,

Defendants-Appellees

.

_____________________________________

FOR PLAINTIFF-APPELLANT: Joyelle Bukowski, pro se, Coram,

NY.2 FOR DEFENDANTS-APPELLEES:

JEFFEREY A. SPINNER D AVID L AWRENCE III (Barbara D. Underwood, Solicitor General, and Andrew W. Amend, Senior Assistant Solicitor General, on the brief ), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY.

MARY BETH DANIELS M ATTHEW K. F LANAGAN , Catalano Gallardo & Petropoulous, LLP, Jericho, NY.

JOANNE MERRIHUE, DENNIS M. Brian C. Mitchell, Assistant BROWN, LORI TOWNS, KATHLEEN County Attorney, for Dennis

TURNER M. Brown, Suffolk County Attorney, Hauppauge, NY.

PHILLIP J. CASTROVINCI Phillip J. Castrovinci, Esq., pro se, Smithtown, NY.

ADAM SAYLOR Adam Saylor, pro se, Lake Grove,

NY.

Appeal from a judgment of the United States Di strict Court for the Eastern District of New York (Seybert, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED

.

Joyelle Bukowski, pro se, filed an action unde r 42 U.S.C. § 1983 against a state family court judge, her child’s law guardian, an atto rney for New York Child Protective Services (“CPS”), three CPS workers, the father of her ch ild, and the father’s atto rney, arguing that she suffered various constitutional injuries arising fr om temporary state-court orders related to her custody and visitation rights. The district co urt sua sponte dismissed Bukowski’s complaint (without leave to amend) under both the domestic -relations exception to federal subject-matter jurisdiction and the Rooker-Feldman doctrine. See Fed. R. Civ. P. 12(h)(3). Bukowski appeals. We assume the parties’ familiarity with the underlyi ng facts, the procedural history of the case, and the issues presented for review.

1. We review the district court’s dismissa l of Bukowski’s compla int--under both the domestic relations exception and the Rooker-Feldman doctrine--de novo. See Liranzo v. United

States , 690 F.3d 78, 84 (2d Cir. 2012). We may affirm the dismissal on either ground relied on by the district court, but we are also “free to affirm on any ground th at finds support in the record.” Brown Media Corp. v. K&L Gates, LLP , 854 F.3d 150, 160 n.6 (2d Cir. 2017) (quoting Headley v. Tilghman , 53 F.3d 472, 476 (2d Cir. 1995)).3 We affirm the dismissal of Bukowski’s complaint on the ground that federal-court abstention is required under Younger v. Harris , 401 U.S. 37 (1971), insofar as Bukowski seeks declaratory or injunctive relief th at would interfere with a “[s]tate court’s ability to perform its judicial function in . . . [an ongoing] custody proceeding[].” Falco v. Justices of the Matrimonial Parts of Supreme Court of Suffolk Cty. , 805 F.3d 425, 428 (2d Cir. 2015), cert. denied sub nom. Falco v. Justices of the Matrimonial Pa rts of the Supreme Court of Suffolk Cty. , 136 S. Ct. 2469 (2016).

To the extent that Bukowski also seeks moneta ry damages, we decline to stay her federal suit pending resolution of the state proceeding because Bukowski’s claims for damages plainly
fail. See Kirschner v. Klemons , 225 F.3d 227, 238 (2d Cir. 2000). Bukowski failed to raise any allegations against defendants Kath leen Turner and Dennis Brown. See Patterson v. Cnty. of
Oneida , 375 F.3d 206, 229 (2d Cir. 2004) . Absolute immunity defeat s the claims against Jeffrey Tavel (CPS’s prosecutor), Jeffrey Spinner (the fa mily court judge), Lori Towns (a CPS worker who testified against Bukowski), and Joanne Merrihue (another CPS worker who testified). See Cornejo v. Bell , 592 F.3d 121, 127



### — 28 (2d Cir. 2010) (prosecutors); Bliven v. Hunt , 579 F.3d 204, 209 (2d Cir. 2009) (judges); Briscoe v. LaHue , 460 U.S. 325, 345 (1983) (witnesses). To the extent that Bukowski attempts to state agai nst any of those defenda nts a claim that is not barred by absolute immunity, see Dory v. Ryan , 25 F.3d 81, 83 (2d Cir. 1994), she fails, see Zemesky v. City of New York , 821 F.2d 148, 151 (2d Cir. 1987). Finally, th e claims against Adam Saylor (the father of Bukowski’s child), Philip Castrovinci (Saylor’s lawyer), and Mary Beth Daniels (the child’s law guardian)--which Bukowski brought unde r § 1983--must be dismissed because none of those defendants is a state actor, see Milan v. Wertheimer , 808 F.3d 961, 964 (2d Cir. 2015), and Bukowski’s oblique reference to t hose private actors conspiring w ith CPS to deprive her of her child is fatally conclusory or otherwise unsupported, see Ciambriello v. Cnty. of Nassau , 292 F.3d 307, 324 (2d Cir. 2002). Bukowski’s complaint was properly dismissed.

2. We review de novo the district court’s de cision to deny Bukowski leave to amend on the ground that amendment would be futile. See Smith v. Hogan , 794 F.3d 249, 253 (2d Cir. 2015). Notwithstanding the solicitude accorded to pro se plaintiffs, the court’s decision was proper because the complaint, read liberally, “suggests that [Bukowski lacks] a claim” rather than merely “that she has inadequately or inartfully pleaded.” Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. 2000).

We have considered all of Bukowski’s remain ing arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:
Catherine O = Hagan Wolfe, Clerk of Court