Burch v. Department of Social Services, Cortland County et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
NATALIE ROSE BURCH, on behalf of minor child J. B.,
Plaintiff,
5:25-CV-1350
v. 	(AMN/DJS)
DEPARTMENT OF SOCIAL SERVICES,
CORTLAND COUNTY, et al.,
Defendants.
APPEARANCES: 	OF COUNSEL:
NATALIE ROSE BURCH
Plaintiff Pro Se
Cortland, New York 13045
DANIEL J. STEWART
United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
The Clerk has forwarded for review the Amended Complaint filed by Plaintiff.
Dkt. No. 24, Am. Compl. 	Plaintiff’s application to proceed in forma pauperis was
previously granted. 	Dkt. No. 23. 	Also pending are several motions filed by Plaintiff.
Dkt. Nos. 25, 27, 36, 38, and 40.
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I. FACTUAL ALLEGATIONS
Plaintiff is a resident of New York and brings this action related to issues
concerning the placement of her child in foster care. 	See generally Am. Compl. The
Amended Complaint names several Defendants, all of whom are identified as residents
of the State of New York.1 Id. at p. 1.
The factual allegations in the Amended Complaint, in total, are:
1. On September 24, 2025, Plaintiff’s son was wrongfully removed by
DSS, 	despite 	being 	healthy, 	due 	to 	falsified 	allegations 	regarding
Plaintiff’s mental health and parenting.
2. Plaintiff voluntarily participated in preventive mental health services and
has consistently taken prescribed medications.
3. Plaintiff has never tested positive for drugs while children were in her
care and has no violent history toward her children.
4. DSS caseworkers ignored Plaintiff’s communications about her child’s
health, including incidents of a busted lip, cuts on the head, and redness
on the genitals and buttocks. Photographic documentation is available
and requested to be sealed.
5. Plaintiff was harassed and terminated by Bill Bros. Store management
(Kathy Sears and Sarah Sears) after raising concerns related to her child
and DSS involvement.
6. Private actors’ interference and DSS actions have caused Plaintiff
physical health more severe emotional distress, physical pain flare-ups
(facet hypertrophy, hemangioma, type 2 dysgenic sclerosis), and PTSD.
7. Deputy Wilson and Sgt. Kurtis participated in DSS’s actions without
following proper protocols, contributing to the unlawful removal and
deprivation of Plaintiff’s parental rights.
8. Plaintiff’s other daughter resides with her mother due to relocation; no
custody was lost, contrary to allegations made by (Kaylyn Carlson) -
DSS.
Id. at p. 2. 	Plaintiff then included a section in the Amended Complaint entitled
“Defendant-Specific 	Allegations.” 	Id. 	at 	pp. 	2-3. 	Those 	allegations 	are 	highly
1 Subsequent to filing the Amended Complaint, Plaintiff filed notices of voluntary discontinuance pursuant to Fed.
R. Civ. P. 41 purporting to dismiss claims against Defendants Sarah Sears and Erica Barhite. Dkt. Nos. 30 & 35.
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generalized in nature. 	Plaintiff alleges, for example, “falsified reports,” “[m]ade false
allegations,” or acted “without proper adherence to procedure.” 	Id. 	In identifying her
causes of action, Plaintiff alleges a violation of civil rights under 42 U.S.C. § 1983,
intentional 	infliction 	of 	emotional 	distress, 	negligence/breach 	of 	duty,
conspiracy/collusion, and interference with parental rights. Id. at p. 3.
II. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to proceed in forma
pauperis, “(2) . . . the court shall dismiss the case at any time if the court determines that
– . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 	28 U.S.C. § 1915(e)(2)(B).2 	Thus, even if a plaintiff meets the
financial criteria to commence an action in forma pauperis, it is the court’s responsibility
to determine whether the plaintiff may properly maintain the complaint that he filed in
this District before the court may permit the plaintiff to proceed with this action in forma
pauperis. See id.
In reviewing a pro se complaint, the court has a duty to show liberality toward pro
se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should
exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and both parties (but particularly the plaintiff)
2 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
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have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.
1983) (internal citations omitted). 	Therefore, a court should not dismiss a complaint if
the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 	“A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
Although a court should construe the factual allegations in the light most favorable
to the plaintiff, “the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” 	Id. 	“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged - but it has not show[n] - that the pleader is entitled to relief.” Id.
at 679 (quoting FED . R. CIV . P. 8(a)(2)). Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555).
Thus, 	a 	pleading 	that 	only 	“tenders 	naked 	assertions 	devoid 	of 	further 	factual
enhancement” will not suffice. Id. (internal quotation marks and alterations omitted).
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B. Analysis
1. General Pleading Requirements
Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must
contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction . .
. ;
(2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and
(3) a demand for the relief sought, which may include relief in the
alternative or different types of relief.
F ED . R. CIV . P. 8(a). 	The purpose of Rule 8 “is to give fair notice of the claim being
asserted so as to permit the adverse party the opportunity to file a responsive answer [and]
prepare an adequate defense.” Hudson v. Artuz, 1998 WL 832708, at *1 (S.D.N.Y. Nov.
30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)).
A complaint that fails to comply with basic pleading requirements presents too heavy a
burden for defendants to craft a defense “and provides no meaningful basis for the Court
to assess the sufficiency of [the plaintiff’s] claims,” and may properly be dismissed.
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). Plaintiff’s Complaint fails to
meet these requirements or provide the notice to Defendants that Rule 8 requires. 	As
recounted above, it offers limited specific factual pleading. It also only generally states
causes of action without identifying which claims are asserted against which Defendants
and what facts are relevant to each claim.
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2. Section 1983
The first stated cause of action is for a violation of civil rights under section 1983.
Am. Compl. at p. 3. However, “42 U.S.C. Section 1983 itself creates no rights; rather it
provides ‘a method for vindicating federal rights elsewhere conferred.’ Albright v. Oliver,
510 U.S. 266, 271 (1994) (citation omitted). Thus, to state a claim under Section 1983, a
plaintiff must allege the violation of a right preserved by another federal law or by the
Constitution.” Stone v. McGowan, 308 F. Supp. 2d 79, 87 (N.D.N.Y. 2004); see also In
re NYAHSA Litig., 318 F. Supp. 2d 30, 38 (N.D.N.Y. 2004), aff’d sub nom. New York
Ass’n of Homes & Servs. for the Aging, Inc. v. DeBuono, 444 F.3d 147 (2d Cir. 2006)
(“Section 1983 itself creates no substantive rights”).
Though Plaintiff has not specifically articulated the legal basis of her claims, the
Court, affording deference to the Plaintiff’s pro se status, recognizes that “[p]arents have
a substantive right under the Due Process Clause to remain together with their children
without the coercive interference of the awesome power of the state.” Southerland v. City
of New York, 680 F.3d 127, 142 (2d Cir. 2012) (internal quotation, citation, and alteration
omitted). 	That there may be a constitutional right relevant to the nature of Plaintiff’s
claims is not, however, sufficient to permit it to proceed at this point. 	The Amended
Complaint offers scant factual allegations. 	Plaintiff broadly alleges that Defendants
employed by the Department of Social Services “[f]alsified reports” or “[m]ade false
allegations.” 	Am. Compl. at p. 2. 	She further makes conclusory claims that the law
enforcement Defendants acted “without proper adherence to procedure,” without further
explanation. Id. at p. 3. These allegations “are generally conclusory and not particularly
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descriptive, and fail to permit meaningful analysis of whether plaintiff[’s] claims are
potentially meritorious.” 	Leeks v. Amberge, 2015 WL 13744416, at *1 (N.D.N.Y. Oct.
6, 2015), report and recommendation adopted, 2016 WL 184431 (N.D.N.Y. Jan. 15,
2016); see also Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) (“A complaint
containing only conclusory, vague, or general allegations of conspiracy to deprive a
person of constitutional rights cannot withstand a motion to dismiss.”).
Plaintiff’s section 1983 claim is subject to dismissal for an additional reason to the
extent it is asserted against private parties, namely Bill Bros. Store and Kathy and Sarah
Sears. 	Section 1983 claims against these Defendants should be dismissed based on the
lack of state action. 	“Because the United States Constitution regulates only the
Government, not private parties, a litigant claiming that his constitutional rights have been
violated must first establish that the challenged conduct constitutes state action.” Flagg
v. Yonkers Sav. & Loan Ass’n, FA, 396 F.3d 178, 186 (2d Cir. 2005) (internal quotation
marks omitted). 	“A plaintiff pressing a claim of violation of his constitutional rights
under § 1983 is thus required to show state action.” Tancredi v. Metro. Life Ins. Co., 316
F.3d 308, 312 (2d Cir. 2003) (citations omitted). “State action requires both the exercise
of some right or privilege created by the State and the involvement of a person who may
fairly be said to be a state actor.” Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d
Cir. 2020) (quoting Flagg v. Yonkers Sav. & Loan Ass’n, FA, 396 F.3d at 186) (internal
quotations and alterations omitted).
While private parties generally are not state actors, their conduct can be attributed
to the state for section 1983 purposes if “(1) the State compelled the conduct, (2) there is
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a sufficiently close nexus between the State and the private conduct, or (3) the private
conduct consisted of activity that has traditionally been the exclusive prerogative of the
State.” Hogan v. A.O. Fox Mem’l Hosp., 346 F. App’x 627, 629 (2d Cir. 2009) (citations
omitted). 	“Since it is the duty of the plaintiff to allege state action on the part of the
defendant named in a complaint, a court may dismiss an action under 28 U.S.C. § 1915(e)
where a plaintiff fails to plead such a nexus.” 	Denes v. Glens Falls Hosp., 2005 WL
2033489, at *2 (N.D.N.Y. Aug. 17, 2005). 	The allegations made against these
Defendants, though again rather sparse, appear to relate to Plaintiff’s employment and do
not directly allege any violation of constitutional rights by these Defendants.
For these reasons, the Court recommends that Plaintiff’s section 1983 claims be
dismissed with leave to amend.
3. State Law Claims
Federal courts are courts of limited jurisdiction. Home Depot U. S. A., Inc. v.
Jackson, 139 S. Ct. 1743, 1746 (2019). Jurisdiction exists when the matter at issue arises
“under the Constitution, laws or treaties of the United States.” 28 U.S.C. § 1331.
Conversion is a “pure state law claim[].” 	Greenidge v. Mundo Shipping Corp., 41 F.
Supp. 2d 354, 358 (E.D.N.Y. 1999). As a result, no federal “arising under” jurisdiction
exists for such a claim.
Jurisdiction also exists when diversity of citizenship is present. 28 U.S.C. § 1332.
“Diversity jurisdiction exists where the parties are citizens of different states and the
amount in controversy exceeds $75,000.” 	Ceglia v. Zuckerberg, 772 F. Supp. 2d 453,
455 (W.D.N.Y. 2011). “A case falls within the federal district court’s original diversity
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jurisdiction only if diversity of citizenship among the parties is complete, i.e., only if there
is no plaintiff and no defendant who are citizens of the same State.” Wisconsin Dep’t of
Corr. v. Schacht, 524 U.S. 381, 388 (1998) (internal quotations omitted). 	Complete
diversity is required – meaning if any Defendant is a resident of the same state as the
Plaintiff, diversity jurisdiction does not exist. 	Seemann v. Maxwell, 178 F.R.D. 23, 24
(N.D.N.Y. 1998). 	The Complaint specifically alleges that Plaintiff and Defendants are
residents of New York. Am. Compl. at p. 1. As a result, there is no complete diversity
jurisdiction in this case and no independent jurisdictional basis for entertaining these
claims.
A district court may decline to exercise supplemental jurisdiction over state law
claims when it “has dismissed all claims over which it has original jurisdiction.” 	28
U.S.C. § 1367(c)(3). 	Generally, “when the federal-law claims have dropped out of the
lawsuit in its early stages and only state-law claims remain, the federal court should
decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
(1988). Having recommended dismissal of the federal claims over which the Court has
original jurisdiction, the Court also recommends that the District Court decline to exercise
its supplemental jurisdiction over any state law claims Plaintiff may be asserting.
4. Leave to Amend
“Ordinarily, a court should not dismiss a complaint filed by a pro se litigant
without granting leave to amend at least once ‘when a liberal reading of the complaint
gives any indication that a valid claim might be stated.’” Bruce v. Tompkins Cnty. Dep’t
of Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting
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Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)). “However, where the grounds
for dismissal offer no basis for curing the defects in the pleading, dismissal with prejudice
is appropriate.” 	Norwood v. Albany City Police Dep’t, 2019 WL 7593292, at *2
(N.D.N.Y. Aug. 12, 2019), report and recommendation adopted, 2019 WL 5415873
(N.D.N.Y. Oct. 23, 2019). 	Here, much of the basis for recommending dismissal is
Plaintiff’s failure to specifically articulate the nature of the claims and thus leave to amend
is appropriate to permit Plaintiff the opportunity to remedy her pleading deficiencies.
The Court advises Plaintiff that should she be permitted to amend her Complaint,
any amended pleading she submits must comply with Rules 8 and 10 of the Federal Rules
of Civil Procedure. Any such amended complaint, which shall supersede and replace
in its entirety the previous Complaint filed by Plaintiff, must contain sequentially
numbered paragraphs containing only one act of misconduct per paragraph. Thus,
if Plaintiff claims that her civil and/or constitutional rights were violated by more than
one defendant, or on more than one occasion, she should include a corresponding number
of paragraphs in the amended complaint for each such allegation, with each paragraph
specifying (i) the alleged act of misconduct; (ii) the date, including the year, on which
such misconduct occurred; (iii) the names of each and every individual who participated
in such misconduct; (iv) where appropriate, the location where the alleged misconduct
occurred; and, (v) the nexus between such misconduct and Plaintiff’s civil and/or
constitutional rights.
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III. OTHER MOTIONS
Also pending is a Motion for the Appointment of Counsel. Dkt. No. 27. “A party
has no constitutionally guaranteed right to the assistance of counsel in a civil case.”
Leftridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d 62, 68 (2d Cir. 2011)
(citations omitted). 	As a threshold matter, the court should ascertain whether the
indigent’s claims seem likely to be of substance. 	A motion for appointment of counsel
may be properly denied if the court concludes that the plaintiff’s “chances of success are
highly dubious.” Id. at 69. In the present matter, the case is at a very early stage. Indeed,
only allegations have been made at this point; no evidence has yet been submitted relating
to Plaintiff’s claims. Defendants have not yet responded to the Complaint and the Court
has recommended that the Amended Complaint be dismissed. As such, at this juncture,
Plaintiff has not met the threshold requirement of demonstrating that her claims seem
likely to be of substance. 	See Brown v. Utica Police Dep’t, 2017 WL 5514518, at *5
(N.D.N.Y. Nov. 16, 2017) (“Where there are merely unsupported allegations, the moving
party does not meet the first requirement imposed by the Second Circuit for appointment
of pro bono counsel.”) (citation omitted)). 	The Motion for Appointment of Counsel,
therefore, is denied.
Plaintiff’s Motion for an extension of time to file exhibits, Dkt. No. 25, is denied
as moot since Plaintiff subsequently filed numerous exhibits on the docket. 	Plaintiff’s
request regarding sealing, Dkt. No. 40, should also be denied as moot at this juncture
since those records are presently restricted on the Court’s docket.
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Plaintiff has also made a Motion for a Protective Order which in substance is a
request for an order that Plaintiff’s child be returned to her custody. Dkt. No. 36 at ¶ 8.
This Court, however, does not have jurisdiction to issue an order determining custody,
Stumpf v. Cooley, 678 F. Supp. 3d 395, 401 (W.D.N.Y. 2023), and so it is recommended
that this Motion be denied.
Given the recommended dismissal of the Amended Complaint, the Court also
recommends denial of the Emergency Motion for Temporary Restraining Order, Dkt. No.
38.3
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiff’s Amended Complaint be DISMISSED as set
forth above; and it is further
RECOMMENDED, that Plaintiff’s motions related to emergency relief (Dkt.
Nos. 36, 38, & 40) be DENIED; and it is
ORDERED, that Plaintiff’s applications for appointment of counsel and other
relief (Dkt. No. 25 and 27) are DENIED; and
ORDERED, 	that 	the 	Clerk 	of 	the 	Court 	serve 	a 	copy 	of 	this 	Report-
Recommendation and Order upon the parties to this action.
3 The nature of the relief sought in that Motion is unclear.
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Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)4 days within
which to file written objections to the foregoing report. 	Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. 	Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs.,
892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); F ED . R. CIV . P. 72 & 6(a).
Dated: 	December 23, 2025
Albany, New York
4 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and
file objections. F ED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal
holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
FED. R. C IV. P. 6(a)(1)(C).
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