09-4514-cv (L), 09-4817-cv (Con),
Desmoulins v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY 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 SUM M ARY ORDER IN A
DOCUMENT FILED W ITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM MARY ORDER”). A PARTY CITING A SUM MARY ORDER
M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
3 on the 30th day of September, two thousand ten.
4
5 PRESENT:
6 ROSEMARY S. POOLER,
7 PETER W. HALL,
8 Circuit Judges,
9 MARK R. KRAVITZ,*
10 District Judge.
11 ________________________________________
12
13 Lavaud Desmoulins, et al.,
14
15 Plaintiffs-Appellants,
16
17 v.
18 09-4514-cv (L), 09-4817-cv
19 (Con)
20 City of New York, et al.,
21
22 Defendants-Appellees,
23
24 “John” Carolty, et al.,
25
26 Defendants.
27 _______________________________________
28
*
The Honorable Mark R. Kravitz, of the United States District Court for the District
of Connecticut, sitting by designation.
1 FOR PLAINTIFF-APPELLANT: Lavaud Desmoulins, pro se, Brooklyn, NY.
2
3 FOR DEFENDANTS-APPELLEES: Ellen S. Ravitch, Assistant Corporation
4 Counsel, for Michael A. Cardozo,
5 Corporation Counsel of the City of New
6 York, New York, NY.
7
8 Appeal from the judgment of the United States District Court for the Eastern District of New
9 York (Reyes, M.J.).**
10
11
12 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
13 DECREED that the judgment of said District Court be and hereby is AFFIRMED.
14
15 Appellant Lavaud Desmoulins appeals from the district court’s judgment approving a
16 settlement agreement entered into between Defendants-Appellees and a guardian ad litem acting
17 on behalf of Plaintiffs-Appellants. We assume the parties’ familiarity with the facts, proceedings
18 below, and specification of appellate issues and hold as follows.
19 We review for abuse of discretion a district court’s decision to appoint a guardian ad
20 litem, to approve a settlement agreement, and to deny leave to amend a complaint. Ferrelli v.
21 River Manor Health Care Center, 323 F.3d 196, 200 (2d Cir. 2003) (appointment of a guardian
22 ad litem); Neilson v. Colgate-Palmolive Co., 199 F.3d 642, 654 (2d Cir. 1999) (approval of a
23 settlement agreement); Jin v. Metropolitan Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002) (denial
24 of leave to amend). Pursuant to Fed. R. Civ. P. 17(c)(2), “[t]he court must appoint a guardian ad
25 litem—or issue another appropriate order—to protect a minor or incompetent person who is
26 unrepresented in an action.” In approving a settlement agreement, the district court should
27 “determine whether a proposed settlement is fair, reasonable, and adequate, by comparing the
**
The parties consented to the exercise of jurisdiction by a magistrate judge, pursuant
to 28 U.S.C. § 636(c).
2
1 terms of the compromise with the likely rewards of litigation.” Neilson, 199 F.3d at 654
2 (internal quotations and alterations omitted).
3 Here, in appointing a guardian ad litem, the magistrate judge carefully considered
4 Desmoulins’s ability to prosecute his rights and make rational decisions in light of numerous
5 factors, including subpoenaed medical records documenting his mental health issues.
6 Additionally, in proposing a settlement agreement, Desmoulins’s guardian ad litem thoroughly
7 considered the fairness and adequacy of the agreement in light of the risks of continued
8 litigation. Under these circumstances, the conclusory assertions in Desmoulins’s brief provide no
9 basis for determining that the magistrate judge abused his discretion in appointing a guardian ad
10 litem or approving the settlement agreement. Additionally, the magistrate judge did not abuse
11 his discretion in denying Desmoulins’s pro se motion to file a second amended complaint,
12 because, at the time that the motion was terminated, a settlement agreement had already been
13 entered into by Defendants-Appellees and Plaintiffs-Appellants, represented by their guardian ad
14 litem.
15 Finally, contrary to the assertions in Desmoulins’s brief, there is no indication that his
16 subpoenaed medical records were tampered with or improperly distributed. Accordingly, the
17 judgment of the district court is hereby AFFIRMED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
SAO-ARW 3