1 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 PE RMITTED 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 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 25 th 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 Ju stice of the Superior Court of Kings County, Defendant .2 _____________________________________ 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, a ppeals 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 certifi cate of appealability (“C OA”) prior to appealing “a final order in a habeas corpus proceeding in wh ich 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, how ever, 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 decl ine to grant a COA and dismiss the appeal from the denial of Davis’s ha beas corpus petition for lack of jurisdiction. “A plaintiff asserting subj ect matter jurisdiction has the burden of proving by a preponderance of the eviden ce that it exists.” Makarova v. United States , 201 F.3d 110, 113 (2d3 Cir. 2000). When determining whether subject ma tter 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 erro r 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 re jection of a “final state-court judgment,” Lance v.

Dennis , 546 U.S. 459, 463 (2006). Davis challenged th e Family Court’s temporary orders of removal and protection rather than a final order of disposition. I ndeed, Davis did not dispute that a final custody order had not yet been entered wh en he filed his compla int, and his exhibits

demonstrate that an interlocutor y appeal from temporary orders entered in those proceedings was taken well after the filing of his federa l 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 rejec tion of a final state court judgment b ecause the family court proceedings were ongoing: that court could ha ve 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 cour t judgment because Family Court issued order superseding its prior temporary order). The district court nonetheless pr operly dismissed the action. See Cephas v. Nash , 328 F.3d 98, 100 (2d Cir. 2003) (Court of Appeals may a ffirm on any basis suppor ted by the record).

Under the abstention doctrine se t out by the Supreme Court in Younger v. Harris , 401 U.S. 37,4 43-45 (1971), a district court mu st 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 ch ildren 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 federa l action here involved an ongoing, state-initiated custody proceeding, the proper basis for th e district court’s dismissal was the Younger abstention

doctrine. We have considered Davis’s remaining argumen ts and find them to be without merit. Accordingly, we AFFIRM the order of the district court.

FOR THE COURT: Catherine O = Hagan Wolfe, Clerk