22-642-cv

Cherner v. Westchester Jewish Cmty. Servs., Inc.

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 A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 20th 3 day of December, two thousand twenty-two.

4

5 PRESENT:

6 ROBERT D. SACK,

7 BARRINGTON D. PARKER,

8 MICHAEL H. PARK,

9 Circuit Judges.

10 ____________________________________________

11

12 Dan Cherner, on his own behalf and on behalf 

13 of all others similarly situated,

14

15 Plaintiff-Appellant,

16

17 v. 22-642

18

19 Westchester Jewish Community Services, Inc., 

20 Kathleen McKay,

21

22 Defendants-Appellees.

23

24 ____________________________________________

25

26 FOR PLAINTIFF-APPELLANT: DAN CHERNER, pro se, The Cherner Firm, 

27 Rye, NY.

28

29 FOR DEFENDANT-APPELLEE DANIEL W. MILSTEIN, Aaronson Rappaport

30 WESTCHESTER JEWISH Feinstein & Deutsch, LLP, New York, NY.

31 COMMUNITY SERVICES, INC.:

32
33 FOR DEFENDANT-APPELLEE BARBARA D. GOLDBERG, Martin Clearwater

34 KATHLEEN MCKAY: & Bell LLP, New York, NY.

35

36 Appeal from a judgment of the United States District Court for the Southern District of 

37 New York (Seibel, J.).

38 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

39 DECREED that the judgment of the district court is AFFIRMED. 

40 Appellant Dan Cherner, an attorney proceeding pro se, appeals the district court’s dismissal 

41 of his 42 U.S.C. § 1983 complaint for failure to state a claim under Federal Rule of Civil Procedure 

12(b)(6).

1 42 Cherner sued Kathleen McKay, the court-appointed forensic evaluator in Cherner’s 

43 child custody dispute, and Westchester Jewish Community Services, Inc. (“WJCS”), McKay’s 

44 employer, under 42 U.S.C. § 1983 for alleged constitutional violations and under New York state 

45 law for fraud and negligent infliction of emotional distress. Cherner primarily argues that (1) 

46 Defendants are state actors, and (2) they are not entitled to quasi-judicial immunity. We assume 

47 the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.

48 “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), 

49 construing the complaint liberally, accepting all factual allegations in the complaint as true, and 

50 drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 

51 F.3d 147, 152 (2d Cir. 2002). To survive a motion to dismiss under Rule 12(b)(6), the complaint 

52 must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. 

53 v. Twombly, 550 U.S. 544, 570 (2007). A claim will have “facial plausibility when the plaintiff 

54 pleads factual content that allows the court to draw the reasonable inference that the defendant is 

55 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

1 The special solicitude typically afforded to pro se litigants does not apply here because Cherner 

is an attorney. See Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010). 
3

56 Cherner’s claims fail because Defendants are shielded from liability by quasi-judicial 

57 immunity, even assuming they were state actors. Private actors may be entitled to quasi-judicial 

58 immunity “if [their] role is ‘functionally comparable’ to the roles of . . . judges, or [their] acts are 

59 integrally related to an ongoing judicial proceeding.” Bliven v. Hunt, 579 F.3d 204, 209–10 (2d 

60 Cir. 2009) (internal citations omitted). Here, the family court ordered Defendants to conduct an 

61 evaluation and to prepare a report to aid that court’s decision in a child custody suit. These acts 

62 are “integrally related to an ongoing judicial proceeding.” Id.; see McKnight v. Middleton, 699 

63 F. Supp. 2d 507, 528 (E.D.N.Y. 2010) (concluding that court-appointed forensic evaluators in a 

64 custody dispute were entitled to quasi-judicial immunity), aff’d, 434 F. App’x 32 (2d Cir. 2011). 

65 “[E]ngag[ing] in neutral fact-finding and advis[ing] the court . . . are intimately related and 

66 essential to the judicial process because they aid and inform the court in its discretionary duties.” 

67 Hughes v. Long, 242 F.3d 121, 127 (3d Cir. 2001); see also Brown v. Newberger, 291 F.3d 89, 94 

68 (1st Cir. 2002) (holding court-appointed evaluator was entitled to quasi-judicial immunity); 

69 Hodgson v. Waters, 958 F.2d 377 (9th Cir. 1992) (mem.) (same for a court-appointed 

70 psychologist). We thus agree with the district court that Defendants were entitled to quasi71 judicial immunity.

72 We also conclude that the district court did not abuse its discretion by declining to exercise 

73 supplemental jurisdiction over Cherner’s state-law claims. 28 U.S.C. § 1367(c)(3); see 

74 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (explaining that once only state-law 

75 claims remain, it is well within a district court’s discretion to decline to exercise supplemental 

76 jurisdiction).
4

77 We have considered all of Cherner’s remaining arguments and find them to be without 

78 merit. Accordingly, we AFFIRM the judgment of the district court.

79

80 FOR THE COURT: 

81 Catherine O’Hagan Wolfe, Clerk of Court

82