    17-2459-cv
    D.S. et al. v. City of New York, et al.


                       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
ASUMMARY ORDER@). A PARTY CITING TO 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 States Courthouse, 40 Foley Square,
    in the City of New York, on the 5th day of June, two thousand eighteen.

    PRESENT:
                      JON O. NEWMAN,
                      PETER W. HALL,
                      SUSAN L. CARNEY,
                           Circuit Judges.


    D.S. AND ANNA SANADZE, INDIVIDUALLY,

                                Plaintiffs-Appellants,

                      v.                                           No. 17-2459-cv

    THE CITY OF NEW YORK, LEGAL AID SOCIETY, NYC
    ADMINISTRATION FOR CHILDREN’S SERVICES, FREDERIC
    PRATT, JILL WECHSLER,

                                Defendants-Appellees,

    DOES 1 THROUGH 6, FICTITIOUS NAMES INTENDED TO BE
    POLICE OFFICERS, DETECTIVES AND/OR
    ASSISTANTS/TRANSLATORS EACH INDIVIDUALLY, OF THE
    NEW YORK CITY POLICE DEPARTMENT, DOES 7 THROUGH
    12, FICTITIOUS NAMES INTENDED TO BE EMPLOYEES AND
    ASSISTANT DISTRICT ATTORNEYS, TO THE OFFICE OF THE
    DISTRICT ATTORNEY OF THE CITY OF NEW YORK, COUNTY
    OF KINGS, DOES 13 THROUGH 18, FICTITIOUS NAMES
    INTENDED TO BE EMPLOYEES, GUARDS, HEALTH CARE


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PROVIDERS, EACH INDIVIDUALLY, AT CROSSROADS
SECURE JUVENILE DETENTION CENTER, DOES 19
THROUGH 34, PERSON INTENDED TO BE EMPLOYEES,
GUARDS, HEALTH CARE PROVIDERS, EACH INDIVIDUALLY,
AT GOSHEN SECURE CENTER, BROOKWOOD SECURE
CENTER AND ROCKLAND CHILDREN’S PSYCHIATRIC
CENTER,

                     Defendants.


For Plaintiffs-Appellants:                   VERA GRETCHYN MARINO, Great Neck, N.Y.

For Defendants-Appellees City of New York:   SUSAN PAULSON, Assistant Corporation
                                             Counsel (Richard Dearing, Devin Slack, on the
                                             brief), for Zachary W. Carter, Corporation
                                             Counsel, New York, N.Y.

For Defendants-Appellees Legal Aid Society: PETER I. LIVINGSTON (Deborah B. Koplovitz on
                                            the brief), Anderson Kill P.C., New York, N.Y.


       Appeal from a judgment of the United States District Court for the Eastern

District of New York (Sterling Johnson, Jr., J.).

       UPON       DUE        CONSIDERATION,         IT   IS   HEREBY        ORDERED,

ADJUDGED, AND DECREED that the judgment is AFFIRMED.

       D.S. and his mother, Anna Sanadze, appeal from a judgment entered by the

district court dismissing their complaint against the City of New York and New York

City’s Administration for Children’s Services (collectively “City defendants”) and the

Legal Aid Society and two of its employees (collectively “Legal Aid”), and denying the

plaintiffs’ motion to amend the complaint. On appeal, plaintiffs assert that the

district court erred by misapprehending the nature of the constitutional arguments

in the complaint and by denying leave to file the amended complaint. We assume the




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parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

      “We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to

state a claim, accepting all factual allegations as true and drawing all reasonable

inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy

Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). The complaint’s allegations, however

must be “plausible on [their] face,” a standard that “asks for more than a sheer

possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009); see also Fed. R. Civ. P. 12(b)(6). The pleading standard in Federal Rule of

Civil Procedure 8 does not require “detailed factual allegations,” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286

(1986)), but “demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation,” Iqbal, 556 U.S. at 678 (citing Papasan, 478 U.S. at 286).

      As an initial matter, Legal Aid is not a state actor and did not take any state

action for which it could be held liable under § 1983. See 42 U.S.C. § 1983; Mitchum

v. Foster, 407 U.S. 225, 242 (1972) (“The very purpose of [enacting] § 1983 was . . . to

protect the people from unconstitutional action under color of state law.”); Lefcourt v.

Legal Aid Society, 445 F.2d 1150, 1157 (2d Cir. 1971) (concluding that plaintiff “has

not shown State action in the activities of the [Legal Aid] Society” for purposes of a

§ 1983 claim). Although a non-state actor defendant may be held liable as “a willful

participant in joint activity” with the state or its agents, see United States v. Price,

383 U.S. 787, 794 (1966), the district court properly found that plaintiffs made no



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showing that Legal Aid was a willful participant in the state activity, see Spear v.

Town of W. Hartford, 954 F.2d 63, 68 (2d Cir. 1992). The district court did not err in

dismissing the complaint against Legal Aid.

      As to the City defendants, plaintiffs fail to show that they are responsible for

the injuries and constitutional violations D.S. is alleged to have suffered. Although

having a translator for a non-English speaker undoubtedly implicates important

rights associated with fair judicial proceedings for D.S., plaintiffs do not allege how

the City of New York denied him a translator and how the absence of a translator

violated his First Amendment rights. See Iqbal, 556 U.S. at 678; Ashcroft v. Am. Civil

Liberties Union, 535 U.S. 564, 573 (2002) (“[A]s a general matter, ‘the First

Amendment means that government has no power to restrict expression because of

its message, its ideas, its subject matter, or its content.’” (quoting Bolger v. Youngs

Drug Prods. Corp., 463 U.S. 60, 65 (1983))).

      With respect to his Eighth and Fourteenth Amendment claims, City

defendants could only be held liable for time in which D.S. was in the custody of the

Crossroads secure detention facility as that was the only City run institution.

Plaintiffs’ complaint fails to allege, however, that any City employee of Crossroads

knew about and deliberately disregarded an excessive risk to D.S.’s safety or need for

medical attention in violation of the Eighth Amendment. See Farmer v. Brennan, 511

U.S. 825, 844 (1994); Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). Nor have

plaintiffs shown that D.S. was treated differently than other similarly situated

juvenile offenders in violation of the Fourteenth Amendment’s equal protection or



                                          4
 
due process clause. See Allegheny Pittsburgh Coal Co. v. Cty. Comm’n of Webster Cty.,

488 U.S. 336 (1989); Church of Am. Knights of Ku Klux Klan v. Kerik, 356 F.3d 197,

210 (2d Cir. 2004).

      The Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477, 486–87

(1994), forecloses the argument that plaintiffs are entitled to relief on their Fourth,

Fifth, and Sixth Amendment claims. The Supreme Court held that “when a state

prisoner seeks damages in a § 1983 suit, the district court must consider whether a

judgment in favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence; if it would, the complaint must be dismissed.” Id. at 487; see

also Poventud v. City of New York, 750 F.3d 121, 132 (2d Cir. 2014) (en banc).

Plaintiffs assert that City defendants violated D.S.’s Fourth, Fifth, and Sixth

Amendment rights by submitting him to unreasonable search and seizure,

deprivation or ineffectiveness of legal counsel, fraud and coercion in obtaining his

confession, and depriving his mother of her parental rights. These claims asserting

violations of D.S.’s personal constitutional rights, however, all implicate the validity

of his conviction on his assault charge. That is, asserting that D.S. was unlawfully

seized, or coerced into confessing, or denied effective counsel in violation of

constitutional rights advanced under § 1983 necessarily implies that his assault

conviction was unlawfully obtained. As a result, these claims are all barred by Heck,

and the district court, as it was required to do, properly dismissed them. See Heck,

512 U.S. at 486–87; Poventud, 750 F.3d at 132.




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      Municipal liability under 42 U.S.C. § 1983 arises when the challenged action

was taken pursuant to a municipal policy or custom. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 691–95 (1978). Plaintiffs have not alleged such a policy, nor have they

alleged the required “direct causal link between a municipal policy or custom and the

alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989).

      The proposed amended complaint failed to address the original’s shortcomings

and assert a viable federal claim against City defendants or Legal Aid. The court thus

did not err in finding that the amended complaint would be futile. See Foman v.

Davis, 371 U.S. 178, 182 (1962) (finding reasons to deny a motion to amend to include,

inter alia, “repeated failure to cure deficiencies by amendments previously allowed

. . . futility of amendment, etc.” (emphasis added)). Additionally, the district court

properly concluded that because it dismissed all of the claims against City defendants

and Legal Aid, it would not exercise supplemental jurisdiction over the state law

claims. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise

supplemental jurisdiction over a claim under subsection (a) if . . . the district court

has dismissed all claims over which it has original jurisdiction.”).

      We have considered plaintiffs’ remaining arguments and conclude that they

are without merit. The judgment of the district court is AFFIRMED.

                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court
 




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