08-5977-cv
Finnan v. Ryan

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders
filed after January 1, 2007, is permitted and is governed by this court’s Local Rule 32.1 and
Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a
summary order, in each paragraph in which a citation appears, at least one citation must either
be to the Federal Appendix or be accompanied by the notation: “(summary order).” A party
citing a summary order must serve a copy of that summary order together with the paper in
which the summary order is cited on any party not represented by counsel unless the summary
order is available in an electronic database which is publicly accessible without payment of fee
(such as the database available at http://www.ca2.uscourts.gov/). If no copy is served by
reason of the availability of the order on such a database, the citation must include reference to
that database and the docket number of the case in which the order was entered.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the seventeenth day of December, two thousand and nine.

PRESENT:

          GUIDO CALABRESI,
          JOSÉ A. CABRANES,
          BARRINGTON D. PARKER,
                               Circuit Judges.
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TERRENCE FINNAN ,

                     Plaintiff-Appellant,

                     -v.-                                                                  No. 08-5977-cv


KEVIN K. RYAN , MARSHA KAMERON FINNAN , ARA
ASADOURIAN , ESSEX COUNTY , DARLA BREKENRIDGE ,
J. DOES, VITO CARUSO ,

                     Defendants-Appellees.


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ANN KENNEDY ,

                     Defendant.
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FOR PLAINTIFF-APPELLANT:                                                                   Terrence Finnan, Keene, NY, pro
                                                                                           se.

FOR DEFENDANTS-APPELLEES:                                                                  Andrew M. Cuomo, Attorney
                                                                                           General of the State of New York,
                                                                                           Albany, NY (Barbara D.
                                                                                           Underwood, Solicitor General,
                                                                                           Andrew D. Bing, Deputy Solicitor
                                                                                           General, Owen Demuth, Assistant
                                                                                           Solicitor General, of counsel) for
                                                                                           defendants-appellees Ryan and Caruso.

                                                                                           Scott W. Bush, Corrigan, McCoy
                                                                                           & Bush, PLLC, Rensselaer, NY for
                                                                                           defendant-appellee Asadourian.

                                                                                           John F. Moore, Towne, Ryan &
                                                                                           Partners, PC, Albany, NY, for
                                                                                           defendant-appellee Essex County.

                                                                                           Timothy S. Brennan, Phelan,
                                                                                           Phelan & Danek, LLP, Albany,
                                                                                           NY, for defendant-appellee
                                                                                           Breckenridge.

                                                                                           Marsha Kameron Finnan, Lake
                                                                                           Placid, NY, pro se.

                                                                                           Ann Kennedy, Elizabethtown,
                                                                                           NY, pro se.


        Appeal from a November 7, 2008 order of the United States District Court for the Northern
District of New York (Gary L. Sharpe, Judge).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court be AFFIRMED.

         Plaintiff-appellant Terrence Finnan (“plaintiff”), pro se, appeals from the District Court’s order
dismissing his complaint alleging claims under 42 U.S.C. §§ 1981, 1983, 1985(2) & (3), and 1986, in a
civil rights action arising out of a series of judicial proceedings to which plaintiff was a party. The
District Court ordered that (1) plaintiff’s claims against defendant Darla Breckenridge be dismissed
under Rule 56 of the Federal Rules of Civil Procedure pursuant to the doctrine of res judicata, (2)
plaintiff’s claims against Justice Kevin K. Ryan (“Ryan”) and Judge Vito Caruso (“Caruso”) be dismissed
under Rule 12(b)(1) of the Federal Rules of Civil Procedure pursuant to the Rooker-Feldman doctrine, and
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(3) plaintiff’s remaining claims against defendants Ann Kennedy, Marsha Kameron Finnan, Ara
Asadourian, and Essex County be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failure to state a claim upon which relief can be granted. All of the defendants except for Ann
Kennedy are appellees in the present action. We assume the parties’ familiarity with the remaining facts,
procedural history, and issues on appeal.

          We review de novo the District Court’s decision dismissing a complaint pursuant to Rule
12(b)(1), see Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006), and Rule 12(b)(6), see
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). “To survive dismissal, [a] plaintiff must
provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to
relief above the speculative level.’” ATSI Comms., Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). When a plaintiff proceeds pro se, as here,
we are “obliged to construe his pleadings liberally, particularly when they allege civil rights violations.”
McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).

          We also review de novo the District Court’s decision to grant summary judgment and, in the
course of that review, we resolve ambiguities and draw all permissible factual inferences in favor of the
non-moving party. See, e.g., Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008); Nationwide Life Ins.
Co. v. Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir. 1999). We will affirm the grant of summary
judgment by the District Court if the record indicates “that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Pilgrim v. Luther, 571 F.3d 201, 204
(2d Cir. 2009) (internal quotation marks omitted).

           Substantially for the reasons stated in the District Court’s thorough order of November 7, 2008
we affirm the dismissal of plaintiff’s claims under 42 U.S.C. §§ 1981, 1985(2) & (3), and 1986. See Finnan
v. Ryan, No. 08-cv-259, 2008 WL 4891162 (N.D.N.Y. 2008). Plaintiff’s §1983 claims were also properly
dismissed against Marsha Finnan, Ara Asadourian, and Darla Breckenridge because they are not state
actors and plaintiff made only conclusory allegations that these appellees acted in concert with state
officials, which “does not suffice to state a § 1983 claim against [a] private entity.” Ciambriello v. County of
Nassau, 292 F.3d 307, 324 (2d Cir. 2002). As to Essex County, plaintiff has not made allegations of a
governmental custom or policy that would make the County liable under § 1983 and we therefore
conclude that the District Court properly dismissed plaintiff’s claims against the County. See Pearl v. City
of Long Beach, 296 F.3d 76, 87 (2d Cir. 2002).

           The District Court dismissed plaintiff’s claims against defendants-appellees Ryan and Caruso
under Rule 12(b)(1) pursuant to the Rooker-Feldman doctrine after being advised mistakenly that
plaintiff’s divorce proceedings had ended and a final judgment had been entered. On appeal, Ryan and
Caruso correct this mistake and on this basis we conclude that the Rooker-Feldman doctrine does not bar
plaintiff’s claims against Ryan and Caruso. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284 (2005) (stating that the Rooker-Feldman doctrine only applies to “cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district court proceedings
commenced” (emphasis added)).



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          Plaintiff’s claims against Ryan and Caruso nonetheless must be dismissed pursuant to Younger v.
Harris, 401 U.S. 37, 43-44 (1971), which requires federal courts to abstain from taking jurisdiction over
federal constitutional claims that involve or call into question state proceedings. The requirements of
Younger abstention have been met in this case because (1) state proceedings are pending; (2) New York
state has an important interest in administering family law; and (3) plaintiff is able to raise his claims in
those state court proceedings. Because we are “free to affirm an appealed decision on any ground which
finds support in the record,” In re Certain Underwriter, 294 F.3d 297, 302 (2d Cir. 2002), on the basis of
Younger abstention we affirm the District Court’s dismissal of plaintiff’s claims against Ryan and Caruso.

         We have considered plaintiffs other arguments and find them to be without merit.

                                                  CONCLUSION

                Accordingly, we AFFIRM the judgment of the District Court.


                                                FOR THE COURT,

                                                Catherine O’Hagan Wolfe, Clerk of Court



                                                By _______________________________




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