Finn v. State of New York

23-126-cv
Finn v. State of New York
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 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
25th day of October, two thousand twenty-three.
Present:
PIERRE N. LEVAL
SUSAN L. CARNEY
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
George H. Finn,
Plaintiff-Appellant,
v. 23-126
State of New York, Hinman, Howard & Kattell,
LLC, Harvey Shapiro, Esq., Katherine A. Fitzgerald,
Esq., Nelson F. Migdal, Esq., Ronald Schiess, LLS,
Bruce W. Snyder, Director of LS, Delta Engineers,
Architects, & Land Surveyors, PC, Jenee
Rasmussen-Green, LLS, Ronald Green, LLS,
Rasmussen Land Survey PLLC,
Defendants-Appellees.
_____________________________________
For Plaintiff-Appellant: GEORGE H. FINN, pro se, Windsor, NY.
For Defendants-Appellees: Barbara D. Underwood, Solicitor General, Victor
Paladino, Senior Assistant Solicitor General, Sean P.
Mix, Assistant Solicitor General, for Letitia James,
Attorney General of the State of New York, Albany, NY
(for State of New York)
Philip A. Davolos, III, Cipriani & Werner, P.C., Port
Jervis, NY (for Katherine A Fitzgerald; Nelson Migdal;
and Hinman, Howard & Kattell, LLC).
Alfred Paniccia, Jr., The Law Office of Alfred Paniccia,
Jr., Binghamton, NY (for Bruce W. Snyder and Delta
Engineers, Architects, & Land Surveyors, PC).
Daniel R. Rose, Costello, Cooney & Fearon, PLLC,
Syracuse, NY (for Jenee Rasmussen-Green, Ronald
Green, and Rasmussen Land Survey PLLC).
Appeal from a judgment of the United States District Court for the Northern District of
New York (David N. Hurd, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant George Finn, proceeding pro se, appeals from a judgment of the United States
District Court for the Northern District of New York (David N. Hurd, Judge) dismissing his claims
due to lack of subject matter jurisdiction. Finn alleged that the defendants conspired to steal a
portion of land from his family and brought suit under 42 U.S.C. §§ 1983 and 1985. The district
court dismissed his complaint, for lack of subject matter jurisdiction. Finn appealed. We assume
the parties’ familiarity with the case.
I. Forfeiture of Issues on Appeal
We “liberally construe pleadings and briefs submitted by pro se litigants, reading such
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submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind,
864 F.3d 154, 156 (2d Cir. 2017). 1 Pro se appellants, however, must still comply with Federal
Rule of Appellate Procedure 28(a), which “requires appellants in their briefs to provide the court
with a clear statement of the issues on appeal.” Moates v. Barkley, 147 F.3d 207, 209 (2d Cir.
1998). We generally will not “manufacture claims of error” for a pro se party, decide issues that a
party fails to raise or reach issues discussed only “in passing.” LoSacco v. City of Middletown, 71
F.3d 88, 93 (2d Cir. 1995); Gerstenbluth v. Credit Suisse Secs. (USA) LLC, 728 F.3d 139, 142 n.4
(2d Cir. 2013).
Here, Finn’s brief fails to meaningfully address the district court’s decision dismissing his
amended complaint. Aside from an in-passing mention of federal question jurisdiction, he does
not challenge the district court’s reasoning and argues only that he should not have been subject
to the defendants’ alleged actions. Any challenges to the underlying merits of the district court’s
ruling are thus forfeited. See LoSacco, 71 F.3d at 93; Gerstenbluth, 728 F.3d at 142 n.4. And
although Finn briefly addresses the issue of diversity jurisdiction in his reply brief and raises issues
in response to the defendants’ merits briefs, we do not consider these issues because he did not
raise them in his opening brief. See Conn. Bar. Ass’n v. United States, 620 F.3d 81, 91 n.13 (2d.
Cir. 2010).
II. Merits
Even if Finn had not forfeited his challenge to the district court’s ruling on appeal, we
1 Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes, and
citations.
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would affirm. We note that while the district court reasoned that it lacked subject matter
jurisdiction over the action, its analysis was more akin to a dismissal on the merits. Cf. Monsky
v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997) (“Though some courts have considered a deficient
allegation of the color-of-law element of section 1983 as a jurisdictional deficiency . . . , we have
ruled that the sufficiency of a color-of-law allegation is to be tested under Rule 12(b)(6).”).
Because we can affirm on any basis supported by the record, we therefore affirm on the alternative
ground that Finn failed to state a claim. See Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993).
Finn has not shown that the conduct of any of the defendants—with the exception of the
State of New York—constitutes state action, a requirement under § 1983. See Ciambriello v.
Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). Here, the private defendants consisted of a
law firm, attorneys, and land surveyors hired to address the property boundary issue. Finn did
not allege any facts showing that they acted pursuant to the compulsive power of the state,
participated in joint action with the state, or were delegated a public function by the state. See
Sybalski v. Independent Grp. Home Living Prog., Inc., 546 F.3d 255, 257 (2d Cir. 2008). As for
his naming the State of New York as a defendant, sovereign immunity bars Finn’s claims. See
Woods v. Rondout Valley Cent. School Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006).
As the district court reasoned, the closest any of the private defendants came to acting under
color of state law were acts taken by the two defendants, Nelson Migdal and Harvey Shapiro, who
were appointed as commissioners by the New York state court in the 1980s. But even assuming
that their conduct could be considered state action, Finn’s claim was untimely. Claims arising
under § 1983 in New York have a statute of limitations of three years. See Lucente v. Cnty. of
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Suffolk, 980 F.3d 284, 308 (2d Cir. 2020). The alleged transmission and filing of the
commissioner’s deed occurred in 1984, 38 years before this 2022 lawsuit. Nor is the claim subject
to equitable tolling. See Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007) (“The plaintiff bears
the burden of showing that the action was brought within a reasonable period of time after the facts
giving rise to the equitable tolling. . . claim have ceased to be operational.”). Finn became aware
of the alleged discrepancies in 2016 at the latest, six years before he filed his lawsuit. Given that
the statute of limitations on § 1983 claims is three years, a six-year delay in filing suit was not
reasonable.
The complaint does not state a § 1985 conspiracy claim. A conspiracy under § 1985 must
be “motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus.”
Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015). Finn did not allege any facts suggesting that
the defendants were motivated by his race or his membership in another class. Accordingly, he
failed to state a claim for relief.
We have considered Finn’s remaining arguments and find them to be unpersuasive.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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