Milan v. Wertheimer
2015 U.S. App. LEXIS 22730
| 2d Cir. | 2015Background
- In 2004 NYC Administration for Children’s Services (ACS) removed Crystal M. Milan’s children and placed them with Milan’s mother, Mary Lee Davis, in Pennsylvania. Milan alleges defendants interfered with her custody and visitation rights thereafter.
- Milan sued pro se in 2014 under 42 U.S.C. § 1983 against: Davis (mother), two New York law guardians (Fred Wertheimer and Denise Costanza), a New York ACS employee (Nefredia Covington), and a Pennsylvania caseworker (Zen-obia Parker).
- The district court dismissed the complaint sua sponte under 28 U.S.C. § 1915(e)(2)(B), allowed amendment, then dismissed the amended complaint and denied reconsideration.
- The district court held claims against Covington and Parker time-barred by the three-year § 1983 statute of limitations; dismissed claims against Costanza and Wertheimer because they were not state actors; dismissed claims against Davis as a private actor.
- Milan’s operative factual allegations show Covington’s involvement ended in 2004 and the last specific act by Parker was in 2009; the complaint’s final described event was in 2012.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claims against Covington and Parker are time-barred | Milan alleges continuing interference (esp. Parker after 2009) so claims are timely | Defendants contend the alleged acts occurred more than three years before filing | Held: Claims against Covington and Parker are barred by § 1983’s three-year statute of limitations |
| When statute of limitations accrues for § 1983 claims | Milan contends she did not discover full injury until later (continuing violation) | Defendants: accrual when plaintiff knew or should have known of injury | Held: Accrual rule applies; properly alleged events occurred in 2004 (Covington) and by 2009 (Parker), so untimely |
| Whether law guardians (Costanza, Wertheimer) are state actors under § 1983 | Milan treats their court roles as state action supporting § 1983 claims | Defendants: law guardians are attorneys for the child, act as advocates, not state actors | Held: Law guardians are not state actors; § 1983 claims dismissed |
| Whether Milan’s mother (Davis) acted under color of state law | Milan alleges Davis instigated the investigation and lied in reports/court | Davis: actions were private, not state action | Held: Davis was a private actor; not a state actor under § 1983, claims dismissed |
Key Cases Cited
- McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004) (standard of review for dismissals under § 1915(e)(2)(B))
- Nielsen v. Rabin, 746 F.3d 58 (2d Cir. 2014) (courts need not accept conclusory legal allegations as facts)
- Murphy v. Lynn, 53 F.3d 547 (2d Cir. 1995) (§ 1983 claims in New York are governed by a three-year statute of limitations)
- Cornwell v. Robinson, 23 F.3d 694 (2d Cir. 1994) (accrual: limitations runs when plaintiff knows or has reason to know of the injury)
- Hayut v. State Univ. of N.Y., 352 F.3d 733 (2d Cir. 2003) (elements required to avoid sua sponte dismissal of a § 1983 claim)
- Polk County v. Dodson, 454 U.S. 312 (1981) (public defenders do not act under color of state law when performing traditional functions)
- Kirtley v. Rainey, 326 F.3d 1088 (9th Cir. 2003) (law guardians/attorneys for children are not state actors under § 1983)
- Meeker v. Kercher, 782 F.2d 153 (10th Cir. 1986) (same conclusion regarding law guardians)