### 1 17-2459-cv D.S. et al. v. City of New York, et al. 

## 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 FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH 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 St ates Court of Appeals for the Second Circuit, held at the Thurgood Marshall Unit ed States Courthouse, 40 Foley Square, in the City of New York, on the 5 th day of June, two thousand eighteen.

PRESENT: JON O. NEWMAN, PETER W. HALL, SUSAN L. CARNEY, Circuit Judges

.

D.S. AND A NNA S ANADZE , I NDIVIDUALLY , Plaintiffs-Appellants , v. No. 17-2459-cv

T HE C ITY OF N EW Y ORK , L EGAL A ID S OCIETY , NYC A DMINISTRATION FOR C HILDREN ’ S S ERVICES , F REDERIC P RATT , J ILL W ECHSLER , Defendants-Appellees , D OES 1 THROUGH 6, FICTITIOUS NAMES INTENDED TO BE POLICE OFFICERS , DETECTIVES AND / OR ASSISTANTS / TRANSLATORS EACH INDIVIDUALLY , OF THE N EW Y ORK C ITY P OLICE D EPARTMENT , D OES 7 THROUGH 12, FICTITIOUS NAMES INTENDED TO BE EMPLOYEES AND ASSISTANT DISTRICT ATTORNEYS , TO THE O FFICE OF THE D ISTRICT A TTORNEY OF THE C ITY OF N EW Y ORK , C OUNTY OF K INGS , D OES 13 THROUGH 18, FICTITIOUS NAMES INTENDED TO BE EMPLOYEES , GUARDS , HEALTH CARE

### 2 PROVIDERS , EACH INDIVIDUALLY , AT C ROSSROADS S ECURE J UVENILE D ETENTION C ENTER , D OES 19 THROUGH 34, PERSON INTENDED TO BE EMPLOYEES , GUARDS , HEALTH CARE PROVIDERS , EACH INDIVIDUALLY , AT G OSHEN S ECURE C ENTER , B ROOKWOOD S ECURE C ENTER AND R OCKLAND C HILDREN ’ S P SYCHIATRIC C ENTER , Defendants

.

For Plaintiffs-Appellants : V ERA G RETCHYN M ARINO , Great Neck, N.Y.

For Defendants-Appellees City of New York: S USAN P AULSON , Assistant Corporation Counsel (Richard Dearing, Devin Slack, on the brief ), for Zachary W. Carter, Corporation Counsel, New York, N.Y.

For Defendants-Appellees Legal Aid Society: P ETER I. L IVINGSTON (Deborah B. Koplovitz on the brief ), Anderson Kill P.C., New York, N.Y.



### Appeal from a judgment of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment is AFFIRMED

. D.S. and his mother, Anna Sanadze, appe al from a judgment entered by the district court dismissing their complaint ag ainst the City of New York and New York City’s Administration for Children’s Services (collectively “City defendants”) and the Legal Aid Society and two of its employees (collectively “Legal Aid”), and denying the plaintiffs’ motion to amend the complaint. On appeal, plaintiffs assert that the district court erred by misapprehending th e nature of the constitutional arguments in the complaint and by denying leave to fi le the amended complaint. We assume the

### 3 parties’ familiarity with the underlying fact s, the procedural history of the case, and the issues on appeal. “We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim, accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. En g’rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016). The complaint’s allegations, however must be “plausible on [their] face,” a st andard that “asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009); see also Fed. R. Civ. P. 12(b)(6). The pleading standard in Federal Rule of Civil Procedure 8 does not require “detailed factual allegations,” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (citing Papasan v. Allain , 478 U.S. 265, 286 (1986)), but “demands more than an unadorned, the-defendant-unlawfully-harmedme accusation,” Iqbal , 556 U.S. at 678 (citing Papasan , 478 U.S. at 286). As an initial matter, Legal Aid is not a state actor and did not take any state action for which it could be held liable under § 1983. See 42 U.S.C. § 1983; Mitchum

v. Foster , 407 U.S. 225, 242 (1972) (“The very purp ose of [enacting] § 1983 was . . . to protect the people from unconstitutiona l action under color of state law.”); Lefcourt v. Legal Aid Society , 445 F.2d 1150, 1157 (2d Cir. 1971) (concluding that plaintiff “has

not shown State action in the activities of the [Legal Aid] Society” for purposes of a § 1983 claim). Although a non-state actor defe ndant may be held liable as “a willful participant in joint activity” with the state or its agents, see United States v. Price , 383 U.S. 787, 794 (1966), the dist rict court properly found that plaintiffs made no

### 4 showing that Legal Aid was a willful participant in the state activity, see Spear v. Town of W. Hartford , 954 F.2d 63, 68 (2d Ci r. 1992). The district court did not err in dismissing the complaint against Legal Aid. As to the City defendants, plaintiffs fail to show that they are responsible for the injuries and constitutional violations D.S. is alleged to have suffered. Although having a translator for a non-English sp eaker undoubtedly implicates important rights associated with fair judicial proceedings for D.S., plaintiffs do not allege how the City of New York denied him a transl ator and how the absence of a translator violated his First Amendment rights. See Iqbal , 556 U.S. at 678; Ashcroft v. Am. Civil

Liberties Union , 535 U.S. 564, 573 (2002) (“[A]s a general matter, ‘the First Amendment means that government has no po wer to restrict expression because of its message, its ideas, its subject matter, or its content.’” (quoting Bolger v. Youngs Drug Prods. Corp. , 463 U.S. 60, 65 (1983))). With respect to his Eighth and Fourteenth Amendment claims, City defendants could only be held liable for time in which D.S. was in the custody of the Crossroads secure detention facility as th at was the only City run institution. Plaintiffs’ complaint fails to allege, howeve r, that any City employee of Crossroads knew about and deliberately disregarded an ex cessive risk to D.S.’s safety or need for medical attention in violation of the Eighth Amendment. See Farmer v. Brennan , 511 U.S. 825, 844 (1994); Salahuddin v. Goord , 467 F.3d 263, 280 (2d Cir. 2006). Nor have plaintiffs shown that D.S. was treated di fferently than other similarly situated juvenile offenders in violation of the Fourteenth Amendment’s equal protection or

### 5 due process clause. See Allegheny Pittsburgh Coal Co. v. Cty. Comm’n of Webster Cty. , 488 U.S. 336 (1989); Church of Am. Knights of Ku Klux Klan v. Kerik , 356 F.3d 197, 210 (2d Cir. 2004). The Supreme Court’s decision in Heck v. Humphrey , 512 U.S. 477, 486–87 (1994), forecloses the argument that plainti ffs are entitled to relief on their Fourth, Fifth, and Sixth Amendment claims. The Supreme Court held that “when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed.” Id. at 487; see also Poventud v. City of New York , 750 F.3d 121, 132 (2d Cir. 2014) (en banc). Plaintiffs assert that City defendants violated D.S.’s Fourth, Fifth, and Sixth Amendment rights by submitting him to unreasonable search and seizure, deprivation or ineffectiveness of legal co unsel, fraud and coercion in obtaining his confession, and depriving his mother of her parental rights. These claims asserting violations of D.S.’s personal constitutional rights, however, all implicate the validity of his conviction on his assault charge. Th at is, asserting that D.S. was unlawfully seized, or coerced into confessing, or de nied effective counsel in violation of constitutional rights advanced under § 1983 necessarily implies that his assault conviction was unlawfully obtained. As a result, these claims are all barred by Heck , and the district court, as it was requ ired to do, properly dismissed them. See Heck , 512 U.S. at 486–87; Poventud , 750 F.3d at 132.

### 6 Municipal liability under 42 U.S.C. § 1983 arises when the challenged action was taken pursuant to a municipal policy or custom. See Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 691–95 (1978). Plaintiffs have no t alleged such a policy, nor have they alleged the required “direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” City of Canton v. Harris , 489 U.S. 378, 385 (1989). The proposed amended complaint failed to address the original’s shortcomings and assert a viable federal claim against City defendants or Legal Aid. The court thus did not err in finding that the amended complaint would be futile. See Foman v.

Davis , 371 U.S. 178, 182 (1962) (finding reasons to deny a motion to amend to include,

inter alia , “repeated failure to cure deficienci es by amendments previously allowed

. . . futility of amendment , etc.” (emphasis added)). Additionally, the district court properly concluded that because it dismissed all of the claims against City defendants and Legal Aid, it would not exercise suppl emental jurisdiction over the state law claims. See 28 U.S.C. § 1367(c )(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court

has dismissed all claims over which it has original jurisdiction.”). We have considered plaintiffs’ remain ing arguments and conclude that they are without merit. The judgment of the district court is AFFIRMED

. FOR THE COURT: CATHERINE O’HAGAN WOLFE, Clerk of Court