12-2300-cv
McCaul v. Ardsley Union Free School District

                     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.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
StatesthCourthouse, 40 Foley Square, in the City of New York, on
the 26 day of February, two thousand thirteen.
PRESENT:    RALPH K. WINTER,
            DENNY CHIN,
            CHRISTOPHER F. DRONEY,
                     Circuit Judges,

- - - - - - - - - - - - - - - - - - - - - -x

MARGUARITA McCAUL,
                       Plaintiff-Appellant,

                        -v.-                                  12-2300-cv

ARDSLEY UNION FREE SCHOOL DISTRICT, DR.
PAMELA MASON, INDIVIDUALLY AND AS SCHOOL
PSYCHOLOGIST OF ARDSLEY UNION FREE SCHOOL
DISTRICT, JEANNE FARRUGGIO, INDIVIDUALLY
AND AS DIRECTOR OF PUPIL SERVICES FOR
ARDSLEY UNION FREE SCHOOL DISTRICT,      *
                   Defendants-Appellees.
- - - - - - - - - - - - - - - - - - - - - -x

FOR PLAINTIFF-APPELLANT:             STEWART LEE KARLIN, Law Offices of
                                     Stewart Lee Karlin, P.C., New York,
                                     New York.

FOR DEFENDANTS-APPELLEES:            MARK A. RADI (Adam I. Kleinberg, on
                                     the brief), Sokoloff Stern LLP,
                                     Westbury, New York.


      *
          The Clerk of the Court is directed to amend the
official caption to conform with the above.
          Appeal from the United States District Court for the

Southern District of New York (Briccetti, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

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

          Plaintiff-appellant Marguarita McCaul appeals from a

May 4, 2012 judgment of the United States District Court for the

Southern District of New York (Bricetti, J.) dismissing her
complaint against Ardsley Union Free School District (the

"District"), Dr. Pamela Mason, and Jeanne Farruggio

(collectively, "defendants") for violation of her substantive due

process rights under the Fourteenth Amendment, malicious

prosecution, and intentional infliction of emotional distress.

McCaul's complaint alleged that, in retaliation for a dispute

between McCaul and the District over the education being provided

to McCaul's son, District employees Mason and Farruggio submitted

a false report to the New York State Child Protective Services

("CPS"), resulting in the initiation of a neglect proceeding

against McCaul.1   The neglect proceeding was subsequently

withdrawn, and a CPS case worker apologized to McCaul for having

commenced the proceeding, stating that the agency had relied on

bad information.

          We review de novo the district court's grant of a

motion to dismiss under Rule 12(b)(6), accepting all factual

allegations in the complaint as true, and drawing all reasonable
inferences in plaintiff's favor.   Forest Park Pictures v.

     1
          Although the complaint does not identify the agency to
which the purportedly false report was submitted, the parties'
briefs clarify that the report was submitted to CPS.

                               - 2 -
Universal Television Network, Inc., 683 F.3d 424, 429 (2d Cir.

2012).    "To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face."     Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citation and internal quotation marks

omitted).   We assume the parties' familiarity with the underlying

facts, the procedural history of the case, and the issues

presented for review.

1.   Substantive Due Process
            McCaul alleges that defendants violated her right to

substantive due process under the Fourteenth Amendment by making

a false report about her to CPS.   To plead a substantive due

process claim, a plaintiff must assert that:      (1) a

"constitutionally cognizable property [or liberty] interest is at

stake," and (2) defendants' "alleged acts . . . were arbitrary,

conscience-shocking, or oppressive in the constitutional sense,

not merely incorrect or ill-advised."     Ferran v. Town of Nassau,

471 F.3d 363, 369-70 (2d. Cir. 2006) (citations and internal
quotation marks omitted).

     A.     Care, Custody, and Management of Child

            It is well settled that parents have "a

constitutionally protected liberty interest in the care, custody

and management of their children."      Southerland v. City of N.Y.,

680 F.3d 127, 142 (2d Cir. 2011) (quoting Tenenbaum v. Williams,
193 F.3d 581, 593 (2d Cir. 1999)).      This interest, however, is

"counterbalanced by the compelling governmental interest in the

protection of minor children, particularly in circumstances where


                                - 3 -
the protection is considered necessary as against the parents

themselves."    Id. at 152 (citation and internal quotation marks

omitted).    Thus, "[t]o state a claim for a violation of this

substantive due process right of custody, a plaintiff must

demonstrate that the state action depriving him of custody was

'so shocking, arbitrary, and egregious that the Due Process

Clause would not countenance it even were it accompanied by full

procedural protection.'"    Cox v. Warwick Valley Cent. Sch. Dist.,

654 F.3d 267, 275 (2d Cir. 2011) (quoting Tenenbaum, 193 F.3d at
600).

             "Where there is no actual loss of custody, no

substantive due process claim can lie."    Id. at 276; see, e.g.,

Phillips v. Cnty. of Orange, No. 10-CV-239, 2012 U.S. Dist. LEXIS

133293, at *101 (S.D.N.Y. Sept. 11, 2012) ("Plaintiffs have

failed to state a viable claim that any of the actions taken by

Defendants violated their substantive due process rights, for the

simple reason that Plaintiffs never lost custody of [their

child].").

             Here, McCaul's complaint does not allege that her

parental custody was ever interrupted, and she admits in her

brief that she never lost custody of her son.    Thus, the district

court properly dismissed her substantive due process claim on

this ground.

        B.   Listing on Central Register
             McCaul also argues that the purported act of listing

her on the Statewide Central Register of Child Abuse and

Maltreatment ("SCR") as someone against whom a report of child


                                 - 4 -
neglect was filed violated her substantive due process rights

under the Fourteenth Amendment by, among other things, impeding

her ability to pursue a career around children and senior

citizens, to become a foster parent, and to adopt a child.

Although McCaul's complaint does not specifically allege this

theory of her substantive due process claim, the complaint does

allege that she was "stigmatize[d]," and McCaul did raise this

theory in her opposition papers below.    Accordingly, we will

consider it.

            Although "damage to one's reputation is not by itself

sufficient to invoke the procedural protection of the Due Process
Clause," McCaul can demonstrate infringement of a protected

liberty interest by showing that inclusion of her name on the SCR

resulted in "stigma plus."   Valmonte v. Bane, 18 F.3d 992, 999,

1000-02 (2d Cir. 1994) (citation and internal quotation marks

omitted).   To constitute "stigma plus," the "'stigma' resulting

from the defamatory character of the posting" must be combined

with some other state-imposed alteration in McCaul's legal
status.   Paul v. Davis, 424 U.S. 693, 708-09 (1976); see also

Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010).   In Valmonte v.

Bane, for example, this Court held that the plaintiff was subject

to "stigma plus" where the SCR did not simply defame her but also

"place[d] a tangible burden on her employment prospects."

Valmonte, 18 F.3d at 1001.   Under the New York statutory scheme

then in effect, child care providers were required to consult the

SCR before hiring prospective employees, and thus, "by operation

of law, [the plaintiff's] potential employers [would] be informed


                                - 5 -
specifically about her inclusion on the [SCR] and [would]

therefore choose not to hire her."     Id.

          Here, the allegations in the complaint are insufficient

to allege a plausible substantive due process claim based on

McCaul's purported listing in the SCR because McCaul makes no

allegation that she was ever subject to a tangible burden.    Even

assuming, as McCaul alleges in her reply brief, that a report

alleging she engaged in child abuse or maltreatment was

"indicated" during the time the neglect proceeding was pending

against her, she does not allege that she applied for employment

or sought to foster or adopt a child during the time her report

was "indicated."   See N.Y. Soc. Serv. Law § 412(7) (a report
alleging child abuse or maltreatment is "indicated" if CPS

determines after an investigation that "some credible evidence of

the alleged abuse or maltreatment exists").   Nor does she allege

that she would have looked for a job involving children and

senior citizens, or would have sought to foster or adopt a child

but for her being listed on the SCR.    Cf. Valmonte, 18 F.3d at
999 (finding plaintiff's claim ripe because "[w]e must accept as

true Valmonte's assertions that she would look for a position in

the child care field but for her presence on the [SCR]"); Finch

v. N.Y.S. Office of Children & Family Servs., 499 F. Supp. 2d

521, 529 (S.D.N.Y. 2007) (plaintiff applied for a position at a

homeless shelter while the report was "indicated").

          Further, McCaul makes no allegation that SCR ever

disclosed to anyone the fact that she was listed on the SCR or

that SCR failed to offer her an administrative hearing to


                               - 6 -
challenge the purported finding of "indicated."      See Finch v.

City of N.Y., 591 F. Supp. 2d 349, 355, 360 (S.D.N.Y. 2008)

("[SCR] does not respond to any inquiries about a subject's

indicated report status" before an administrative hearing is held

"at which an administrative law judge determines whether a fair

preponderance of the evidence supports the allegations"); N.Y.

Soc. Serv. Law § 422(8).    Finally, she does not allege that the

report against her is still "indicated"; on the contrary, the

complaint alleges that the neglect proceeding against plaintiff

was withdrawn and an apology was issued.     See N.Y. Soc. Serv. Law
§ 422(5)(a) (reports ultimately deemed "unfounded" are legally

sealed).   Without any supportive factual allegations, McCaul has

failed to state a plausible claim that she was subjected to

"stigma plus."

             Accordingly, the district court properly dismissed

McCaul's substantive due process claim.

2.   Malicious Civil Prosecution

             McCaul also challenges the district court's dismissal

of her malicious prosecution claim.      In particular, McCaul argues

that the district court improperly analyzed her malicious

prosecution claim under federal law rather than state law.     She

also argues that the district court abused its discretion in

exercising supplemental jurisdiction to decide this claim under

state law.    We affirm for the following reasons.

             First, to the extent the district court decided

McCaul's malicious prosecution claim under federal law, we affirm

for substantially the reasons stated by the district court.       See

                                 - 7 -
McCaul v. Ardsley Union Free Sch. Dist., No. 11 CV 5586, 2012

U.S. Dist. LEXIS 80888, at *8-11 (S.D.N.Y. May 3, 2012).

          Second, to the extent McCaul brought her malicious

prosecution claim under state law, we also affirm.   As a

threshold matter, the court did not abuse its discretion in

exercising supplemental jurisdiction to decide this claim.

Federal district courts have supplemental jurisdiction over state

law claims "that are so related to claims in the action within

such original jurisdiction that they form part of the same case
or controversy under Article III of the United States

Constitution."   28 U.S.C. § 1367(a).   Nevertheless, a district

court "may decline to exercise supplemental jurisdiction" if it

"has dismissed all claims over which it has original

jurisdiction."   Id. § 1367(c)(3).   "Once a district court's

discretion is triggered under § 1367(c)(3), it balances the

traditional 'values of judicial economy, convenience, fairness,

and comity,' in deciding whether to exercise jurisdiction."

Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.
2006) (quoting City of Chicago v. Int'l Coll. of Surgeons, 522

U.S. 156, 173 (1997)).    We review for abuse of discretion the

district court's exercise of supplemental jurisdiction over

McCaul's state law claims notwithstanding its decision to dismiss

her federal law claims.   See id.

          It is not clear whether there are any differences in
the elements of a state malicious prosecution claim and a federal

malicious prosecution claim in the context presented here.

Although McCaul argues that the two claims are different, she


                                - 8 -
only identifies an additional requirement under federal law that

the plaintiff show a violation of her rights under the Fourth

Amendment.   See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.

2002) ("In order to prevail on a § 1983 claim against a state

actor for malicious prosecution, a plaintiff must show a

violation of his rights under the Fourth Amendment and establish

the elements of a malicious prosecution claim under state law."

(internal citations omitted)); see also Graham v. City of N.Y.,

869 F. Supp. 2d 337, 356 (E.D.N.Y. 2012) ("While New York
recognizes the tort of civil malicious prosecution, a claim for

malicious prosecution under § 1983 may only arise where there has

been a violation of the plaintiff's Fourth Amendment rights.").

In any event, even assuming the elements of a malicious

prosecution claim under state and federal law are different,

there is certainly substantial overlap.   See Boyd v. City

of N.Y., 336 F.3d 72, 75 (2d Cir. 2003) ("The elements of    . .

. malicious prosecution under § 1983 are substantially the same

as the elements under New York law.    Therefore, the analysis of
the state and the federal claims is identical." (citation and

internal quotation marks omitted)).    Indeed, both state and

federal malicious prosecution claims based on a civil action

require a "special injury," as discussed below.   See, e.g., Engel

v. CBS, Inc., 145 F.3d 499, 502 (2d Cir. 1998) (malicious

prosecution claim under New York law must allege "special
injury"); Yuan v. Rivera, 48 F. Supp. 2d 335, 349 (S.D.N.Y.)

(malicious prosecution claim under 42 U.S.C. § 1983 must allege

"special injury").


                               - 9 -
          We conclude that the district court did not abuse its

discretion in exercising supplemental jurisdiction to decide one

but not all of McCaul's state law claims,2 particularly where, as

here, that cause of action was "substantially the same" as the

federal claim, Boyd, 336 F.3d at 75, and did not "require the

district court to resolve any novel or unsettled issues of state

law," Mauro v. Southern New Eng. Telcomms., Inc., 208 F.3d 384,

388 (2d Cir. 2000).

          On the merits, we conclude that the district court did

not err in dismissing McCaul's malicious prosecution claim.    To

prevail in an action for malicious prosecution under New York
law, McCaul must show:   "1) the initiation of an action by the

defendant against [her], 2) begun with malice, 3) without

probable cause to believe it can succeed, 4) that ends in failure

or, in other words, terminates in favor of the plaintiff."

Engel, 145 F.3d at 502 (quoting O'Brien v. Alexander, 101 F.3d

1479, 1484 (2d Cir. 1996)).   In addition, where the alleged

malicious prosecution was a civil action, McCaul must also
demonstrate a "special injury," i.e., "some interference with

[the] plaintiff's person or property . . . beyond the ordinary

burden of defending a lawsuit."   Engel, 145 F.3d at 502 (quoting

O'Brien, 101 F.3d at 1484); see also Engel v. CBS, Inc., 93

N.Y.2d 195, 205 (1999) ("What is 'special' about special injury

is that the defendant must abide some concrete harm that is

     2
          In its discretion, the district court declined to
exercise supplementary jurisdiction over McCaul's state law claim
for intentional infliction of emotional distress. See McCaul v.
Ardsley Union Free Sch. Dist., No. 11 CV 5586, 2012 U.S. Dist.
LEXIS 80888, at *13 (S.D.N.Y. May 3, 2012).

                              - 10 -
considerably more cumbersome than the physical, psychological or

financial demands of defending a lawsuit."); Campion Funeral

Home, Inc. v. State of N.Y., 569 N.Y.S.2d 518, 521 (3d Dep't

1991) (holding that claimants' legal expenses in defending the

charges and injury to claimants' reputation "do not constitute

special damages not normally attendant upon being sued").

          Here, McCaul alleges that as a result of the neglect

proceeding initiated on the basis of "bad information," she spent

thousands of dollars to retain an attorney and suffered distress

and anxiety.   She does not, however, allege any special injury

beyond the ordinary physical, psychological, or financial demands

of defending herself in the civil neglect proceeding.    Thus, the

district court properly dismissed her malicious prosecution

claim.

          We have considered McCaul's remaining arguments and
conclude that they lack merit.    Accordingly, we AFFIRM the

judgment of the district court.

                                 FOR THE COURT:
                                 Catherine O'Hagan Wolfe, Clerk




                              - 11 -
