Wilson v. Wilson-Polson , 446 F. App'x 330 ( 2011 )


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  • 10-4582-cv
    Wilson v. Wilson-Polson
    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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
    York, on the 28th day of October, two thousand eleven.
    PRESENT:
    JOSÉ A. CABRANES,
    DEBRA ANN LIVINGSTON,
    SUSAN L. CARNEY,
    Circuit Judges.
    _________________________________________
    DWAYNE L. WILSON,
    Plaintiff-Appellant,
    v.                                            10-4582-cv
    MAYELA ALISSA WILSON-POLSON, ELISA BARNES, IN HER
    INDIVIDUAL AND OFFICIAL CAPACITIES AS COURT APPOINTED
    GUARDIAN AD LITEM, CAROL J. GOLDSTEIN, IN HER INDIVIDUAL
    AND OFFICIAL CAPACITIES AS COURT ATTORNEY REFEREE FOR
    FAMILY COURT OF THE STATE OF NEW YORK, OFFICE OF THE
    ATTORNEY GENERAL STATE OF NEW YORK,
    Defendants-Appellees.
    _________________________________________
    FOR APPELLANT:                           Dwayne L. Wilson, pro se, New York, NY.
    FOR APPELLEES:                           Barbara D. Underwood, Solicitor General (Michael S.
    Belohlavek, Senior Counsel, and Richard O. Jackson,
    Assistant Solicitor General, on the brief), on behalf of Eric T.
    Schneiderman, Attorney General of the State of New York,
    New York, NY, for Appellees Carol J. Goldstein and Office
    of the Attorney General of the State of New York. Elisa
    Barnes, pro se, New York, NY. Mayela Alissa Wilson-Polson,
    pro se, Brooklyn, NY.
    Appeal from a judgment of the United States District Court for the Southern District of
    New York (Paul G. Gardephe, Judge).
    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
    AND DECREED that the judgment of the district court is AFFIRMED.
    Plaintiff-appellant Dwayne L. Wilson, pro se, appeals an order of the District Court
    dismissing his 
    42 U.S.C. § 1983
     complaint alleging that the New York State Office of the Attorney
    General, a New York Family Court referee, a court-appointed guardian ad litem, and his ex-wife
    conspired to deprive him of his constitutional rights to a relationship with his daughter. We assume
    the parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal.
    We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(1) and (6),
    accepting all well-pleaded factual allegations in the complaint as true and drawing all inferences in
    favor of the plaintiff. See, e.g., Bell Atlantic Corp. v. Twombly, 
    550 U.S. 544
    , 555-56 (2007) (Rule
    12(b)(6)); Chambers v. Time Warner, Inc., 
    282 F.3d 147
    , 152 (2d Cir. 2002) (same); see also Triestman v.
    Fed. Bureau of Prisons, 
    470 F.3d 471
    , 474 (2d Cir. 2006) (per curiam) (Rule 12(b)(1)).
    Additionally, we review a district court’s decision denying leave to amend under an abuse of
    discretion standard. Although a pro se complaint is entitled to a particularly liberal reading, see, e.g.,
    Estelle v. Gamble, 
    429 U.S. 97
    , 106 (1976), “leave to amend a complaint need not be granted when
    amendment would be futile,” Ellis v. Chao, 
    336 F.3d 114
    , 127 (2d Cir. 2003).
    Initially, we note that Wilson’s claim for declaratory relief is moot, as the order entered by
    the Family Court referee was set to expire on June 1, 2011, and we are apprised of no facts
    indicating its extension. Upon review of his additional claims, we conclude that Wilson’s arguments
    on appeal are without merit, substantially for the reasons stated by the District Court in its
    well-reasoned decision. See Wilson v. Wilson-Polson, 09-cv-9810, 
    2010 WL 3733935
     (S.D.N.Y. Sept.
    22, 2010).
    2
    Wilson’s reliance on Thomas v. New York City, 
    814 F. Supp. 1139
     (E.D.N.Y. 1993), is
    misplaced. Wilson’s allegation that the Family Court referee violated his procedural due process
    rights fails in light of the referee’s absolute immunity to suit. See Stump v. Sparkman, 
    435 U.S. 349
    ,
    359 (1978) (“A judge is absolutely immune from liability for [her] judicial acts even if [her] exercise
    of authority is flawed by the commission of grave procedural errors.”); Bliven v. Hunt, 
    579 F.3d 204
    ,
    210 (2d Cir. 2009) (“The fact that a proceeding is informal and ex parte . . . has not been thought to
    imply that an act otherwise within a judge’s lawful jurisdiction was deprived of its judicial character.”
    (citation and internal quotation marks omitted) (omission in original)); Tucker v. Outwater, 
    118 F.3d 930
    , 937–38 (2d Cir. 1997).
    Moreover, we reject Wilson’s contention that the referee was without jurisdiction to
    adjudicate the Family Court dispute and, thus, not entitled to immunity on the theory that she
    allegedly failed to file an oath of office. Even assuming that the filing of such an oath is required of
    someone serving as a referee, the alleged failure to do so does not deprive her of immunity or
    jurisdiction. See 
    N.Y. Pub. Off. Law § 15
     (“If a public officer . . . shall hereafter enter on the
    performance of the duties of his or her office, without taking or filing an official oath, or executing
    or filing an official undertaking, . . . his or her acts as such officer, so performed, shall be as valid
    and of as full force and effect as if such oath had been duly taken and filed . . . .”).
    CONCLUSION
    We have considered Wilson’s remaining contentions on appeal and find them to be without
    merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
    3