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 D ATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on th e 20 th da y of December , two thousand twenty

- two

. 3 4 PRESENT: 5 ROBERT D. SACK , 6 BARRINGTON D. PARKER , 7 MICHAEL H. PARK , 8 Circuit Judges. 9

_______ _____________________________________ 10 11 Dan Cherner, on his own behalf and on behalf 12 of all others similarly situated , 13 14 Plaintiff

- Appellant , 15 16

v. 22

- 642 17 18 Westchester Jewish Community Services, Inc., 19 Kathleen McKay , 20 21 Defendants

- Appellees

. 22 23

_______ _____________________________________ 24 25 FOR PLAINTIFF

- APPELLANT: D AN C HERNER , pro se , The Cherner Firm, 26 Rye, NY. 27 28 FOR DEFENDANT

- APPELLEE D ANIEL W. M ILSTEIN , Aaron son Rappaport 29 WESTCHESTER JEWISH Feinstein & Deutsch , LLP, New York, NY. 30 COMMUNITY SERVICES, INC

. : 31 32FOR DEFENDANT

- APPELLEE B ARBARA D. G OLDBERG , Martin Clearwater 33 KATHLEEN MCKAY: & Bell LLP, New York, NY

. 34 35
Appeal from a judgment of the United States District Court for the Southern District of 36

New York (Seibel
, J

. ). 37

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

DECREED that the judgment of the district court is AFFIRMED

. 39

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

of his 42 U.S.C. § 1983 complaint for failure to state a claim under Federal Rule of Civil Procedure 41
12(b)(6)

. 1 Cherner sued Kathleen McKay, the court

- appointed forensic evaluator in Cherner’s 42
child custody dispute, and Westchester Jewish Community Services, Inc. (“WJCS”), McKay’s 43
employer, under 42 U.S.C. § 1983 for alleged constitutional violations and under New Y ork state 44
law for fraud and negligent infliction of emotional distress. Cherner primarily argues that (1) 45

Defendants are state actors , and (2) they are not entitled to quasi

- judicial immunit y. We assume 46

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

“ We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), 48
construing the complaint liberally, accepting all factual allegations in the complaint as true, and 49
drawing all rea sonable inferences in the plaintiff’s favor

. ” Chambers v. Time Warner, Inc.
, 282 50
F.3d 147, 152 (2d Cir. 2002). To survive a motion to dismiss under Rule 12(b)(6), the complaint 51
must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. 52

v. Twombly , 550 U.S. 544, 570 (2007). A claim will have “facial plausibility when the plaintiff 53
pleads factual content that allows the court to draw the reasonable inference that the defendant is 54

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

. 55

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

- judicial 56
immunity , even assuming they were state actors

. Private actors may be entitled to q uasi

- judicial 57
immunity “if [their] role is ‘functionally comparable’ to the roles of .

. . judges, or [their] acts are 58
integrally related to an ongoing judicial proceeding.” Bliven v. Hunt , 579 F.3d 204, 209

– 10 (2d 59

Cir. 2009) (internal citations omitted)

. Here, the family court orde red Defendants to conduct an 60

evaluation and to prepare a report to aid that court’s decision in a child custody suit . These acts 61
are “integrally related to an ongoing judicial proceeding

. ” I d. ; see McKnight v. Middleton , 699 62

F. Supp. 2d 507 , 528 (E.D.N.Y. 2010) (concluding that court

- appointed forensic evaluators in a 63
custody dispute were entitled to quasi

- judicial immunity), aff’d , 434 F. App’x 32 (2d Cir. 2011). 64

“ [ E ] ngag[ing] in neutral fact

- finding and advis[ing] the court .

. . are intimatel y related and 65
essential to the judicial process because they aid and inform the court in its discretionary duties.” 66
Hughes v. Long , 242 F.3d 121, 127 (3d Cir. 2001); see also Brown v. Newberger , 291 F.3d 89, 94 67

(1st Cir. 2002) (holding court

- appointed eva luator was entitled to quasi

- judicial immunity); 68
Hodgson v. Waters , 958 F.2d 377 (9th Cir. 1992) (mem.) (same for a court

- appointed 69
psychologist). We thus agree with the district court that Defendants were entitled to quasi

70
judicial immunity

. 71

We also conc lude that the district court did not abuse its discretion by declin ing to exercise 72
supplemental jurisdiction over Cherner’s state

- law claims. 28 U.S.C. § 1367(c)(3) ; see 73

Carnegie

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

- law 74

claims remain, it is well within a district court’s discretion to decline to exercise supplemental 75
jurisdiction). 764 We have considered all of Cherner’s remaining arguments and find them to be without 77
merit. Accordingly, we AFFIRM the judgment of the district court. 78

79 FOR THE COURT: 80 Catherine O ’ Hagan Wolfe, Clerk of Court 81 82