22

- 2040

- cv White v. Renzi


### 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 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 1 Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 2 Foley Square, in the City of New York, on the 2 5 t h d a y of S e p t e m b e r , two 3 thousand twenty

- t hree

. 4 5 PRESENT: 6 DEBRA ANN LIVINGSTON, 7 Chief Judge, 8 JOSÉ A. CABRANES, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11

_____________________________________ 12 13 Dyanna M. White , 14 15 Plaintiff

-

Appellant , 16 17

v. 22

- 2040 18 19 Judge Eugene Renzi, i n his individual and 20 official capacity, Judge Peter 21 Schwerzmann, i n his individual and 222 official capacity, Attorney Michael Young, 1 i n his individual and official capacity, 2 Attorney (Retired) Arthur Stever, III, i n his 3 individual and official capacity, Police 4 Officer Michael Maney, i n his individual 5 and official capacity, 6 7 Defendants

- Appellees

. 8 9

_____________________________________ 10 11 FOR PLAINTIFF

- APPELLANT: Dyanna M. White , pro 12
se , Providence , RI

. 13 14 FOR DEFENDANT

- APPELLEE YOUNG : Arthur J. Liederman, 15 Erin Cain, Morrison 16 Mahoney LLP, New 17 York, NY

. 18 19 FOR OTHER DEFENDANTS

- APPELLEES: Jonathan B. Fellows, 20 Bond, Schoeneck & 21 King, PLLC, Syracuse, 22 NY. 23 24
Appeal from a judgment of the United States District Court for the Northern 25

District of New York ( Hurd , J

. ). 26

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 27
ADJUDGED, AND DECREED that the judgment of the district court is 283 AFFIRMED

. 1
Appellant Dyanna M. White , proceeding pro se , appeals the district court ’ s 2

dismiss al of her 42 U.S.C. § 1983 civil rights complaint . White sued the 3

defendants

— two surrogate court judges, two lawyers, and a police officer

— for 4
violating her rights by conspiring against her in legal proceedings to resolve her 5

father’s estate

. The district court dismissed her amended complaint because the 6
judges were entitled to judicial immunity, the lawyers were not acting under color 7

of state law , and the officer was not constitutionally required to pursue an 8
investigation on White’s behalf, and denied further leave to amend as futile

. See 9

White v. Renzi , No. 5:22

- CV

- 370, 2022 WL 3646825 , at *6

– 10 , 12 (N.D.N.Y. Aug. 24, 10
2022)

. We assume the parties ’ familiarity with the underlying facts, the 11
procedural history, and the issues on appeal. 12

We review a dismissal for failure to state a claim de novo. See Vengalattore 13

v. Cornell Univ. , 36 F.4th 87, 101 (2d Cir. 2022). In conducting this review, we 14

assume all well

- pleaded allegations in the operative complaint are true and draw 15
every reasonable inference in the plaintiff’s favor. N.Y. Pet Welfare Ass’n, Inc. v. 164 City of New York , 850 F.3d 79, 86 (2d Cir. 2017)

. While pro se filings “must be 1
construed liberally and interpreted to raise the strongest arguments that they 2
suggest,” a pro se complaint must still state a “plausible claim for relief” to survive 3
a Rule 12(b)(6) motion to dismiss. Meadows v. United Servs., Inc. , 963 F.3d 240, 243 4
(2d Cir. 2020) (per curiam) (internal quotation marks and citations omitted)

. 5

I. State Action and Private Attorneys 6
Regarding White’s claims against the attorney defendants, w e agree with 7

the district court that White’s complaint failed to demonstrate that they were 8
acting under color of state law. See 42 U.S.C. § 1983; Meadows , 963 F.3d at 243. A 9
private entity acts under color of state law for purposes of § 1983 when “(1) the 10
State compelled the conduct [the ‘compulsion test’], (2) there is a sufficiently close 11
nexus between the State and the private conduct [the ‘close nexus test’ or ‘joint 12
action test’], or (3) the private conduct consisted of activity that has traditionally 13
been the exclusive prerogative of the State [the ‘public function test’].” McGugan 14

v. Aldana

- Barrier , 752 F.3d 224, 229 (2d Cir. 2014) (quoting Hogan v. A.O. Fox 15
Memorial Hosp. , 346 Fed. App ’ x. 627, 629 (2d Cir. 2009) ) (alteration s in original)

. 165 White has not satisfied any of these tests. Because White did not allege that 1

any state actors compelled the attorney defendants to act , or that working as an 2
attorney is an activity traditionally within the exclusive prerogative of the State , 3
her allegations did not suffice under either the compulsion or public function tests. 4

White otherwise failed to allege the “meeting of the minds” element of a 5
conspiracy claim because her allegations of such an agreement are not sufficiently 6

detailed or plausible , thereby falling short under the joint action test

. See 7

Beechwood Restorative Care Ctr. v. Leeds , 436 F.3d 147, 154

– 55 (2d Cir. 2006) ; see also 8

Tower v. Glover , 467 U.S. 914, 920 (1984) ; Ciambriello v. County of Nassau , 292 F.3d 9

307, 324

– 25 (2d Cir. 2002)

. For attorney Stever, s he alleges that because both he 10
and Officer Maney misstated the same person’s name in the same way they must 11

have met

. However, “ a n allegation of parallel conduct and a bare assertion of 12
conspiracy will not suffice. Without more, parallel conduct does not suggest 13
conspiracy, and a conclusory allegation of agreement at some unidentified point 14
does not supply facts adequate to show illegality.” Bell Atl. Corp. v. Twombly , 550 15

U.S. 544, 556

– 57 (2007). And e ven if they did meet, White has not alleged that 166 they agreed to act in concert to violate White’s constitutional rights. 1
For attorney Young, she alleges that he conspired with defendant Judge 2
Renzi at a court hearing White was unaware of. B ut she does not plausibly allege 3

that Young and Renzi discussed violating White ’s constitutional rights; rather, she 4
alleges the hearing resolved discovery disputes. 5
White argues the district court was bound to find state action based on its 6

decision in La L umia v. Sutton , No. 1:13

- CV

- 1012, 2013 WL 6566064 (N.D.N.Y. Dec. 7
13, 2013), in which it found a different plaintiff had stated a § 1983 claim against a 8
private actor. But La L umia is distinguishable. There, the plaintiff alleged joint 9
action between the defendant and state actors because the defendant was a police 10

officer’s wife who told both her husband and another officer to arrest the plaintiff 11
and repeated that request in a deposition. See id. at *3

– 4. Here, White has made 12
no such direct allegations of conspiracy between Young or Stever and any state 13
actors; instead, she suggests Young had an opportunity to conspire with Renzi and 14
that Stever and Maney’s similar mis

- recollection of a witness’ name suggests they 15
conspired. Unlike in La L umia , the allegations in White’s complaint do not satisfy 167 the “ meeting of the minds ” or the overt act requirements. 1

II. Judicial Immunity 2

T he district court correctly dismissed claims against the judge defendants 3

sua sponte on grounds of absolute judicial immunity

. See Deem v. DiMella

- Deem , 4
941 F.3d 618, 621 (2d Cir. 2019) (observing that immunity can be invoked sua 5

sponte ). “I t is well settled that judges generally have absolute immunity from 6
suits for money damages for their judicial actions.” Bliven v. Hunt , 579 F.3d 204, 7
209 (2d Cir. 2009). And t o the extent White sought injunctive relief, § 1983 itself 8
bars suits for injunctive relief against judicial officers “unless a declaratory decree 9
was violated or declaratory relief was unavailable , ” neither of which is alleged 10

here. 42 U.S.C. § 1983. 11

III. Police Officer 12

T he district court properly dismissed claims against the defendant police 13

officer because the Due Process C lause does not provide individuals with a 14
protected interest in police carrying out investigations on their behalf. See 15
Harrington v. County of Suffolk , 607 F.3d 31, 35 (2d Cir. 2010); see also DeShaney v. 168 Winnebago Cnty. Dep’t of Soc. Servs. , 489 U.S. 189, 196 (1989) (“[O]ur cases have 1
recognized that the Due Process Clauses generally confer no affirmative right to 2
governmental aid.”)

. 3

IV. Leave to Amend 4
Finally, the district court permissibly denied further leave to amend. White 5
had already amended once and the district court did not err in deciding that 6

further amendment would be futile. See Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d 7
Cir. 2000)

. 8

We have considered all of White’s remaining arguments and find them to 9
be without merit. Accordingly, we AFFIRM the judgment of the district court. 10
White’s pending motions are DENIED

. 11

12 FOR THE COURT: 13 Catherine O ’ Hagan Wolfe, Clerk of Court 14