20-3124-cv

Thomas v. Martin-Gibbons

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 Asummary 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 24th day of May, two thousand twenty-one.

PRESENT:

Robert A. Katzmann,

Barrington D. Parker,

Steven J. Menashi,

 Circuit Judges.

_____________________________________

SUZZETTE THOMAS, TIESHA ORTIZ, JOSE ORTIZ,

Plaintiffs-Appellants,

J.O.,

Plaintiff,

v. No. 20-3124
2

PATRICIA L. MARTIN-GIBBONS, ESQ. 

ATTORNEY, ROBERT D. MULRAY, 

JUDGE (FAMILY), THE CHILDREN’S 

LAW CENTER, LEGAL ASSISTANCE, THE 

CITY OF NEW YORK, THE STATE OF 

NEW YORK, MARTHA 

SCHNEIDERMAN, LEGAL ASSISTANCE,

Defendants-Appellees,

DANA J. WILSON-HAYNES, VINOLA 

WILSON, CARL JOSEPH HAYNES,

Defendants.

_____________________________________

For Plaintiffs-Appellants: Suzzette Thomas, Tiesha Ortiz, Jose 

Ortiz, pro se, Bronx, NY.

For Defendants-Appellees: Wendy B. Shepps, Mount Cotton 

Wollan & Greengrass LLP, New 

York, NY (for Patricia L. MartinGibbons);

Barbara D. Underwood, Solicitor 

General, Steven C. Wu, Deputy 

Solicitor General, David Lawrence 

III, Assistant Solicitor General, for

Letitia James, Attorney General of 

the State of New York, New York, 

NY (for Robert D. Mulray and the 

State of New York);
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Ingrid R. Gustafson, Philip C. 

Young, Assistant Corporation 

Counsel, for James E. Johnson, 

Corporation Counsel of the City of 

New York, New York, NY (for the 

City of New York);

Janet Neustaetter, Children’s Law 

Center, Brooklyn, NY (for Martha 

Schneiderman and the Children’s 

Law Center). 

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. 

Plaintiffs-Appellants Suzzette Thomas, Tiesha Ortiz, and Jose Ortiz, pro se, 

appeal from the district court’s orders vacating the entry of defaults against four 

defendants and dismissing the amended complaint. The plaintiffs-appellants are 

the maternal grandparents and aunt of the minor child, J.O. They sued, pro se, 

numerous defendants (including paternal relatives, a judge, attorneys, and the 

State and City of New York) under 42 U.S.C. § 1983, 18 U.S.C. §§ 241 and 242, and 
4

state law. They alleged that the defendants illegally permitted J.O. to be kidnapped 

by his father, Dana Wilson-Haynes, defamed them by filing false police reports, 

and denied them access to J.O. The district court vacated defaults entered against 

four of the defendants. It subsequently dismissed the amended complaint. While 

the case was on appeal, Jose Ortiz died, and the remaining plaintiffs moved to 

have J.O. released to them so that he could attend the funeral. 

We affirm the lower court’s judgment and deny the motion. We assume the 

parties’ familiarity with the underlying facts, the procedural history of the case, 

and the issues on appeal.

I

The plaintiffs argue that defendants Wilson-Haynes, Carl Haynes, Vinola 

Wilson, and Patricia Martin-Gibbons defaulted and that the district court erred by 

vacating the defaults entered against them. We review decisions on motions to 

vacate entry of a default for abuse of discretion. See Enron Oil Corp. v. Diakuhara, 

10 F.3d 90, 95 (2d Cir. 1993).

The district court did not abuse its discretion by vacating the defaults 

entered against the said defendants. Rule 55(a) permits the entry of default if the 
5

defendant “has failed to plead or otherwise defend” himself. Here, however, the 

district court granted the defendants an extension of time until December 2019 to 

file motions to dismiss, so they were not in default in November 2019 when the 

plaintiffs sought entry of the defaults. Therefore, vacatur of the defaults was 

appropriate. 

II

We also affirm the district court’s dismissal of the amended complaint. “We 

review the grant of a motion to dismiss de novo, accepting as true all factual claims 

in the complaint and drawing all reasonable inferences in the plaintiff’s favor.” 

Fink v. Time Warner Cable, 714 F.3d 739, 740-41 (2d Cir. 2013).1 

The district court properly dismissed the claims against the State of New 

York and Family Court Judge Robert Mulray in his official capacity based on 

Eleventh Amendment immunity. The Eleventh Amendment precludes suits 

against a state unless the state expressly waives its immunity or Congress 

1 The district court properly dismissed the claims against Vinola Wilson and Carl Haynes sua 

sponte, as it has inherent authority to “dismiss a frivolous complaint sua sponte even when the 

plaintiff has paid the required filing fee.” Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 

362, 364 (2d Cir. 2000). Although we have not decided whether such a dismissal is reviewed de 

novo or for abuse of discretion, the district court’s decision to dismiss the plaintiffs’ complaint 

“easily passes muster” under de novo review. Id. at n.2.
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abrogates that immunity. See CSX Transp., Inc. v. N.Y. State Office of Real Prop. 

Servs., 306 F.3d 87, 95 (2d Cir. 2002). This includes suits against state officials in 

their official capacities. See Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002). New 

York has not waived its immunity for damages claims brought under 42 U.S.C. 

§ 1983, see Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 38-40 (2d Cir. 

1977), nor has Congress abrogated it in enacting § 1983, see Dube v. State Univ. of 

N.Y., 900 F.2d 587, 594 (2d Cir. 1990). 

The district court properly dismissed the claims against Judge Mulray in his 

individual capacity based on absolute judicial immunity. “It is well settled that 

judges generally have absolute immunity from suits for money damages for their 

judicial actions,” and “even allegations of bad faith or malice cannot overcome 

judicial immunity.” Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). Judicial 

immunity is overcome in only two circumstances: (1) “a judge is not immune from 

liability for nonjudicial actions, i.e., actions not taken in the judge's judicial 

capacity”; and (2) “a judge is not immune for actions [that], [al]though judicial in 

nature, [were] taken in the complete absence of all jurisdiction.” Mireles v. Waco, 

502 U.S. 9, 11-12 (1991) (per curiam). “[T]he Supreme Court has generally 
7

concluded that acts arising out of, or related to, individual cases before the judge 

are considered judicial in nature.” Bliven, 579 F.3d at 210.

As a family court judge, Judge Mulray had jurisdiction to decide issues of 

child custody and visitation. See N.Y. Family Ct. Act § 651. He was acting in his 

judicial capacity when presiding over J.O.’s custody case and issuing orders 

concerning custody and visitation. See Bliven, 579 F.3d at 210. In their reply brief, 

the plaintiffs argue that Judge Mulray lacked jurisdiction because he illegally 

awarded custody of J.O. to Wilson-Haynes. But “allegations of bad faith or malice 

cannot overcome judicial immunity.” Id. at 209. Even if Judge Mulray’s decisions 

were incorrect, he was not acting without jurisdiction and is therefore entitled to 

judicial immunity. 

III

In the plaintiffs’ amended complaint, they also request custody of J.O. 

through a reversal of Judge Mulray’s orders (i) granting Wilson-Haynes full 

custody, (ii) approving of Wilson-Haynes and J.O.’s relocation to California, and 

(iii) issuing protective orders against the plaintiffs. The plaintiffs additionally

challenge Judge Mulray’s decisions denying visitation rights to Thomas and 
8

Tiesha Ortiz. The district court dismissed these claims pursuant to the RookerFeldman doctrine and the domestic relations exception to federal jurisdiction. We 

affirm that decision.

The Rooker-Feldman doctrine prevents courts from reviewing “cases brought 

by state-court losers complaining of injuries caused by state-court judgments 

rendered before the district court proceedings commenced.” Exxon Mobil Corp. v. 

Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005). This court has clarified that the 

Rooker-Feldman doctrine bars an action when the federal plaintiff: (i) lost in state 

court; (ii) commenced his federal action after suffering the state-court loss; 

(iii) complains of injuries caused by the unfavorable state-court ruling; and 

(iv) asks the federal court to reject the state court’s ruling. See Holbock v. Albany 

Cnty. Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005). 

Here, these elements are met. First, the plaintiffs lost custody of J.O. in 

family court. Second, the plaintiffs filed the present action eight months after the

family court’s decisions were entered, alleging that the family court deprived them 
9

of their constitutional right to associate with J.O. 2 Third, the alleged injury—

violation of “Plaintiffs Human, Civil and Constitutional rights” because 

“[c]ustody was illegally TAKEN from Plaintiff Shanequa Ortiz”—resulted directly 

from the adverse custody ruling. Appellants’ Br. at 14-16. Fourth, the plaintiffs ask 

this court to reverse the family court’s decision. See id. at 15-17. Accordingly, the 

Rooker-Feldman doctrine precludes the plaintiffs’ claims for injunctive relief.

As a general matter, the domestic relations exception provides that federal 

courts will not exercise subject matter jurisdiction “where a federal court is asked 

to grant a divorce or annulment, determine support payments, or award custody 

of a child.” Am. Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d Cir. 1990); see also 

Ankenbrandt v. Richards, 504 U.S. 689, 699-704 (1992). This court has articulated a 

related domestic relations abstention doctrine, holding that “even if subject matter 

jurisdiction lies,” a “federal court presented with matrimonial issues or issues ‘on 

the verge’ of being matrimonial in nature should abstain from exercising 

2 See Fraser v. Fraser, 128 N.Y.S.3d 713, 714 (App. Div. 2020) (noting that an appeal from a decision 

of the family court must be taken no later than thirty-five days after an order is issued). The record 

does not indicate that the plaintiffs timely appealed the family court decision, and therefore it 

appears that the state-court proceedings had ended.
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jurisdiction so long as there is no obstacle to their full and fair determination in 

state courts.” Am. Airlines, 905 F.2d at 14; see also Deem v. DiMella-Deem, 941 F.3d 

618, 623-25 (2d Cir. 2019). 

The plaintiffs’ claims for injunctive relief address the awarding of custody 

of J.O., and therefore those claims are barred by the domestic relations exception

doctrine to the extent the claims are based on state law and invoke federal diversity 

jurisdiction. To the extent the claims are based on federal law, the district court did 

not err in abstaining from exercising jurisdiction. See Am. Airlines, 905 F.2d at 14.

The claims “begin and end in a domestic dispute,” and “[s]tates are better suited 

to that adjudication.” Schottel v. Kutyba, No. 06-1577, 2009 WL 230106, at *1 (2d Cir. 

Feb. 2, 2009) (summary order).

IV

In addition to injunctive relief, the plaintiffs seek damages for an alleged 

conspiracy among the Children’s Law Center and its employees, Judge Mulray,

and the State of New York to take away custody of J.O. The district court did not 

rely on the Rooker-Feldman doctrine or on the domestic relations exception and 

abstention doctrines to dismiss the plaintiffs’ damages claims. But a court may 
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dismiss “claims for monetary damages under the Rooker-Feldman doctrine” if those 

claims “seek damages in conjunction with the orders ... entered against them in 

state court.” Lawson v. City of Buffalo, 52 F. App’x 562, 563 (2d Cir. 2002) (summary 

order); see also Hachamovitch v. DeBuono, 159 F.3d 687, 694 (2d Cir. 1998) (“[A] 

federal court lacks jurisdiction over any claims that are ‘inextricably intertwined’ 

with a state court’s determinations in a judicial proceeding.”). With respect to 

domestic relations, moreover, “a plaintiff cannot obtain federal jurisdiction merely 

by rewriting a domestic dispute as a tort claim for monetary damages.” Schottel, 

2009 WL 230106, at *1.

Because the damages claims also challenge the state family court’s 

determinations in the custody proceedings, we affirm the dismissal of these claims 

on the threshold grounds of the Rooker-Feldman doctrine and the domestic relations 

exception and abstention doctrines.

V

Additionally, the plaintiffs allege that Wilson-Haynes, Wilson, and MartinGibbons filed a false police report against them that ultimately led to the loss of 

custody of J.O. To the extent that the plaintiffs bring this claim under 42 U.S.C. 
12

§ 1983, it fails because the defendants against whom the claim was brought are not 

state actors, see Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999), and 

because it is not adequately alleged that the private defendants acted in concert 

with a state actor to deprive the plaintiffs of their rights, see Pangburn v. Culbertson, 

200 F.3d 65, 72 (2d Cir. 1999). The plaintiffs, instead, allege only that the private 

defendants made false statements to the police, which is not sufficient to show that 

“the conduct allegedly causing the deprivation of a federal right can be fairly 

attributable to the State.” Spear v. Town of W. Hartford, 954 F.2d 63, 68 (2d Cir. 1992) 

(alteration omitted).

To the extent that the plaintiffs might be understood to state a claim under 

state law for defamation or fraud, we hold that the district court did not abuse its 

discretion by declining to exercise supplemental jurisdiction over such a claim. See

Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006).

Ordinarily, a district court should not dismiss a pro se plaintiff’s complaint 

without granting leave to amend “when a liberal reading of the complaint gives 

any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 

112 (2d Cir. 2000). But, as discussed above, two of the defendants were immune 
13

from suit and there is no indication that the complaint’s pleading deficiencies 

could be cured through amendment. The district court properly dismissed the 

complaint without leave to amend. 

VI

We deny the plaintiffs’ motion to have J.O. released to them to attend Jose 

Ortiz’s funeral as moot. The funeral was to have occurred in the first or second 

week of March and there is no reason to grant the motion after the funeral has

occurred. Even if it were not moot, we would deny the motion on the grounds of 

the Rooker-Feldman doctrine and the domestic relations exception and abstention 

doctrines, for substantially the same reasons as discussed above.

* * *

We have considered the plaintiffs’ remaining arguments, which we 

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

court and DENY as moot the motion to have J.O. released to the plaintiffs’ custody.

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk of Court