14-753
Davis v. Baldwin


                        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 25th day of February, two thousand fifteen.

PRESENT:
            BARRINGTON D. PARKER,
            PETER W. HALL,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
_____________________________________

Tyreek Davis, on behalf of N. Brown, S.
Brown, I. Brown and A. Davis,

                         Plaintiff-Appellant,
                   v.                                          14-753

Chini Baldwin, Caseworker, in her
individual and official capacity, and John
Mattingly, in his individual and official capacity
as Commissioner of ACS,

                         Defendants-Appellees,

Amanda E. White, in her individual and
official capacity as Justice of the Superior
Court of Kings County,

                         Defendant.

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_____________________________________

FOR PLAINTIFF-APPELLANT:                              Tyreek Davis, pro se, Richmond, VA

FOR DEFENDANTS-APPELLEES:                             Marta Soja Ross, for Zachary W. Carter,
                                                      Corporation Counsel of the City of New
                                                      York, New York, NY.


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

New York (Ramos, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Tyreek Davis, proceeding pro se, appeals from the district court’s December 31,

2013 judgment granting the defendants’ motion to dismiss his 42 U.S.C. § 1983 complaint and

denying his 28 U.S.C. § 2254 petition. We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

       As a preliminary matter, Davis seeks to appeal the denial of his petition for writ of habeas

corpus. Because a petitioner must obtain a certificate of appealability (“COA”) prior to appealing

“a final order in a habeas corpus proceeding in which the detention complained of arises out of

process issued by state court,” 28 U.S.C. § 2253(c), we construe his brief as also requesting a

COA.     As the district court observed, however, Davis cannot challenge a child-custody

determination pursuant to a habeas corpus petition. See Middleton v. Attorneys Gen. of States of

N.Y. & Penn., 

, 209 (2d Cir. 2005). Accordingly, we decline to grant a COA and

dismiss the appeal from the denial of Davis’s habeas corpus petition for lack of jurisdiction.

       “A plaintiff asserting subject matter jurisdiction has the burden of proving by a

preponderance of the evidence that it exists.” Makarova v. United States, 

, 113 (2d

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Cir. 2000). When determining whether subject matter jurisdiction exists, the district court may

examine evidence outside the pleadings. 

here, it has done so, we review the district

court’s factual findings for clear error and its legal conclusions de novo. 

the status of Davis’s state court appeal, see Gabriele v. Am. Home Mort.

Servicing, 503 F. App’x 89, 92 (2d Cir. 2012) (assuming, without deciding, that Rooker-Feldman

applied even though state appeal pending), the Rooker-Feldman doctrine does not apply here

because Davis does not invite review and rejection of a “final state-court judgment,” Lance v.

Dennis, 

, 463 (2006). Davis challenged the Family Court’s temporary orders of

removal and protection rather than a final order of disposition. Indeed, Davis did not dispute that

a final custody order had not yet been entered when he filed his complaint, and his exhibits

demonstrate that an interlocutory appeal from temporary orders entered in those proceedings was

taken well after the filing of his federal complaint. Like the plaintiff in Green v. Mattingly, Davis

sought review and rejection of temporary orders rather than a final order of disposition of the

custody of his child. See 

, 100 (2d Cir 2009). Thus, Davis cannot be deemed to be

seeking review and rejection of a final state court judgment because the family court proceedings

were ongoing: that court could have superseded its temporary rulings and rendered a final

disposition different from the challenged orders. See 

(holding that plaintiff did not

invite review and rejection of a state court judgment because Family Court issued order

superseding its prior temporary order).

       The district court nonetheless properly dismissed the action. See Cephas v. Nash, 

, 100 (2d Cir. 2003) (Court of Appeals may affirm on any basis supported by the record).

Under the abstention doctrine set out by the Supreme Court in Younger v. Harris, 

,



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43-45 (1971), a district court must dismiss the federal action if it involves ongoing: (1) “state

criminal prosecutions”; (2) “civil proceedings that are akin to criminal prosecutions”; or (3) civil

proceedings that “implicate a State’s interest in enforcing the orders and judgments of its courts.”

Sprint Commc’ns, Inc. v. Jacobs, 

, 588 (2013). As the Supreme Court observed, a

“state-initiated proceeding to gain custody of children allegedly abused by their parents” falls

within the second category. 

(citing Moore v. Sims, 

, 419-20 (1979)).

Because Davis does not dispute that the federal action here involved an ongoing, state-initiated

custody proceeding, the proper basis for the district court’s dismissal was the Younger abstention

doctrine.

       We have considered Davis’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the order of the district court.


                                              FOR THE COURT:
                                              Catherine O=Hagan Wolfe, Clerk




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