DeRocha v. Rachubka, et al.

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________________________________
Matthew DeRocha
Plaintiff,
v. 	5:26-CV-698
(MAD/MJK)
Town of Camillus Police Department
and Police involved
Defendants.
__________________________________________________________________
Matthew DeRocha, Plaintiff pro se
Mitchell J. Katz, U.S. Magistrate Judge
To The Honorable Mae A. D’Agostino, U.S. District Judge
ORDER AND REPORT-RECOMMENDATION
DeRocha commenced this action on April 10, 2026, by filing a
Complaint. (“Compl.,” Dkt. 1). DeRocha also filed a motion for leave to
proceed in forma pauperis (“IFP”). (Dkt. 2). The Clerk sent the
Complaint and IFP application to the Court for review.
I. 	IFP APPLICATION
DeRocha declares in his IFP application that he is unable to pay
the filing fee. (Dkt. 2). After reviewing the IFP application, this Court
finds that DeRocha is financially eligible for IFP status.
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II. 	STANDARD OF REVIEW
In addition to determining whether DeRocha meets the financial
criteria to proceed IFP, courts must consider the sufficiency of the
allegations set forth in the complaint. See 28 U.S.C. § 1915 (e)(2)(B)(i)-
(iii). Courts shall dismiss a case, at any time, if they determine that the
action is (i) 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. Id.
When determining whether an action is frivolous, a court must
consider whether the complaint lacks an arguable basis in law or in
fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on
other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see
also 28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to
prevent abuses of court process and discourage the waste of judicial
resources. See Neitzke, 490 U.S. at 327; see also Harkins v. Eldredge,
505 F.2d 802, 804 (8th Cir. 1974). Courts have a duty to show liberality
toward pro se litigants and must use extreme caution when ordering
sua sponte dismissal of a pro se complaint before the adverse party has
been served and has had an opportunity to respond. See Fitzgerald v.
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First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000).
But courts must still determine that a claim is not frivolous before
permitting a plaintiff to proceed. See Id. (finding that a district court
may dismiss a frivolous complaint sua sponte even when the plaintiff
has paid the filing fee).
To survive dismissal for failure to state a claim, a complaint must
contain sufficient factual matter, accepted as true, to state a claim that
is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp.,
550 U.S. at 555).
Additionally, Fed. R. Civ. P. 8(a)(2) requires pleadings to contain a
“short and plain statement of the claim showing that the pleader is
entitled to relief.” Although Rule 8 does not require detailed factual
allegations, it does “demand[] more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Houston v. Collerman, No. 9:16-CV-
1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016)
(quoting Ashcroft, 556 U.S. at 678). A pleading that contains allegations
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that “‘are so vague as to fail to give the defendants adequate notice of
the claims against them’ is subject to dismissal.” Id. (citing Sheehy v.
Brown, 335 F. App’x 102, 104 (2d Cir. 2009)).
The Court will now consider DeRocha’s Complaint under the
above standards.
III. 	FACTS
DeRocha alleges that “he was arrested on 2/01/2024 for criminal
contempt 3rd by the Camillus police” and that the “charge is still
pending before Judge Matthew Dotzler in the town of Camillus court.”
(Dkt. 1, pg. 2).
IV. 	DISCUSSION
The Court recommends: (1) dismissal of the Complaint with
prejudice and without leave to amend as to the Town of Camillus Police
Department, (2) dismissal of the Complaint without prejudice and with
leave to amend to the extent the Complaint is construed as asserting a
claim against the Town of Camillus, (3) dismissal of the Complaint
under Fed. R. Civ. P. 8 without prejudice and with leave to amend
because the Complaint does not afford the Town of Camillus or the
“police involved” fair notice of the claim being asserted against them.
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A. 	DeRocha’s claim against the Town of Camillus Police
Department should be dismissed.
The Court recommends dismissal of the Complaint against the
Town of Camillus Police Department with prejudice and without leave
to amend because the police department cannot be sued as an entity
separate from the Town of Camillus. “[I]t is well-settled that an
administrative arm of a municipality, such as the Police Department . .
. , cannot sue or be sued because it does not exist separate and apart
from the municipality and does not have its own legal identity.” Riley v.
Taylor, No. 19-CV-1451 (BKS/ATB), 2019 WL 6829046, at *6 (N.D.N.Y.
Dec. 13, 2019) (citing Leland v. Moran, 100 F. Supp. 2d 140, 145
(N.D.N.Y. 2000)). Because DeRocha cannot sue the Town of Camillus
Police Department independently of the Town of Camillus, the Court
recommends dismissal with prejudice and without leave to amend.
To the extent the Court interprets DeRocha’s Complaint as one
against the Town of Camillus, it still fails to state a claim. “[A]
municipality can be held liable under Section 1983 if the deprivation of
the plaintiff’s rights under federal law is caused by a governmental
custom, policy, or usage of the municipality.” Jones v. Town of East
Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell v. Department of
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Social Services, 436 U.S. 658, 690-91 (1978). A plaintiff establishes the
existence of a policy or custom by showing: “(1) a formal policy officially
endorsed by the municipality; (2) actions taken by government officials
responsible for establishing the municipal policies that caused the
particular deprivation in question; (3) a practice so consistent and
widespread that, although not expressly authorized, constitutes a
custom or usage of which a supervising policy-maker must have been
aware; or (4) a failure by policymakers to provide adequate training or
supervision to subordinates to such an extent that it amounts to
deliberate indifference to the rights of those who come into contact with
the municipal employees.” Kurtz v. Hansell, No. 20-CV-3401, 2021 WL
1143619, at *18 (S.D.N.Y. Mar. 24, 2021) (quoting Brandon v. City of
New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010)). Here, the
Complaint lacks any allegations beyond the fact of DeRocha’s February
1, 2024 arrest, so the Court cannot tell whether the Complaint plausibly
alleges that DeRocha has been deprived of a constitutional right.
Similarly, the Court cannot determine whether the Complaint plausibly
alleges that the Town of Camillus has a policy, custom, or practice that
caused the purported deprivation of a constitutional right. The Court
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therefore recommends dismissal of the Complaint against the Town of
Camillus without prejudice and with leave to amend.
B. Fed. R. Civ. P. 8
Even if the District Court rejects this Court’s recommendation as
to the Town of Camillus Police Department and/or the Town of
Camillus, the District Court should still dismiss the Complaint without
prejudice and with leave to amend. Pleadings must contain, among
other things, “a short and plain statement of the claim showing that the
pleader is entitled to relief …” Fed. R. Civ. P. 8(a)(2). “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, prepare
an adequate defense and determine whether the doctrine of res judicata
is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999)
(internal quotations and citations omitted). Rule 8 also requires
pleadings to include “a short and plain statement of the grounds for the
court’s jurisdiction” and “a demand for the relief sought[.]” Fed. R. Civ.
P. 8(a)(1), (3). “Although ‘no technical form is required,’ the Federal
Rules make clear that each allegation contained in the pleading ‘must
be simple, concise, and direct.’” Cole v. Smrtic, No. 1:24-CV-847, 2024
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WL 4870495 (MAD/CFH), at *2 (N.D.N.Y. 2024) (quoting Fed. R. Civ. P.
8(d)). Accordingly, allegations “so vague as to fail to give the defendants
adequate notice of the claims against them” are subject to dismissal.
Sheehy v. Brown, 335 F. App’x 102, 104 (2d Cir. 2009) (summary order).
Although Rule 8 does not require detailed factual allegations, it does
“demand[] more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Houston v. Collerman, No. 9:16-CV-1009 (BKS/ATB),
2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016) (quoting Ashcroft, 556
U.S. at 678). Here the Complaint fails to allege what, if any, harm
DeRocha suffered, what his purported damages are, what relief he is
seeking and against whom. Significantly, the Complaint also fails to
identify who the “police involved are.” In other words, the Complaint
does not afford any potential defendant “fair notice of the claim being
asserted” against them. See Graphtex, 189 F.R.D. at 55. Because the
Complaint violates Fed. R. Civ. P. 8, the Court recommends dismissal
without prejudice and with leave to amend.
C. Opportunity to Amend
The Court recommends that the Complaint be dismissed without
prejudice and with leave to amend except as to DeRocha’s claim against
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the Town of Camillus Police Department which the Court recommends
be dismissed with prejudice and without leave to amend.
Generally, before the court dismisses a pro se complaint or any
part of the complaint sua sponte, the court should afford a plaintiff the
opportunity to amend at least once; however, leave to re-plead may be
denied where any amendment would be futile. See Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present
when the problem with plaintiff’s causes of action is substantive such
that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (citation omitted). Here there is no futility
because DeRocha can allege facts that give rise to a claim.
If the District Court permits this action to proceed and DeRocha
amends his pleading, he is reminded of his obligations under Fed. R.
Civ. P. 8 that his amended complaint contain a short and plain
statement showing that he is entitled to relief. DeRocha is also
reminded of his obligations under Fed. R. Civ. P. 10 to specifically
identify all potential defendants in the caption of the action. While the
amended pleading should contain sufficient facts to provide Defendants
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with notice of the claims against them, it should not contain material
that is irrelevant to DeRocha’s claims.
V. 	CONCLUSION
WHEREFORE, based on the findings above, it is
ORDERED, that DeRocha’s motion to proceed in forma pauperis
(Dkt. 2) is GRANTED, and it is further
RECOMMENDED, that the District Court DISMISS the
Complaint against the Town of Camillus Police Department WITH
PREJUDICE AND WITHOUT LEAVE TO AMEND, and it is further
RECOMMENDED, that the District Court DISMISS the
Complaint against the Town of Camillus WITHOUT PREJUDICE
AND WITHOUT LEAVE TO AMEND, and it is further
RECOMMENDED, that District Court DISMISS the Complaint
under Fed. R. Civ. P. 8 WITHOUT PREJUDICE AND WITH LEAVE
TO AMEND, and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order
and Report-Recommendation on DeRocha by regular mail,1 and it is
further
1 The Clerk shall also provide DeRocha with copies of all unreported decisions cited herein in
accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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ORDERED, that while DeRocha may file objections to this Order
and Report-Recommendation, he should wait for the District Court to
rule on the above Orders and Recommendations before he submits any
amended pleading.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) 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 DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)(citing Small v.
Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: April 21, 2026
_________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Eddie HOUSTON, Plaintiff,
v.
COLLERMAN, et. al., Defendants.
9:16-CV-1009 (BKS/ATB)
|
Signed 10/26/2016
Attorneys and Law Firms
EDDIE HOUSTON, 08-A-3122, Mid-State Correctional
Facility, P.O. Box 2500, Marcy, New York 13403, Plaintiff,
pro se.
AMENDED DECISION AND ORDER 1
1 On October 20, 2016, the Court issued a Decision
and Order upon initial review of plaintiff's
complaint. Dkt. No. 4. This Amended Decision
and Order is issued to correct clerical errors in the
Conclusion of the Order.
BRENDA K. SANNES, United States District Judge
I. Introduction
*1 The Clerk has sent to the Court for review a civil rights
action filed by pro se plaintiff Eddie Houston. Dkt. No. 1
(“Compl.”). Plaintiff has not paid the statutory filing fee for
this action and seeks leave to proceed in forma pauperis. Dkt.
No. 2 (“IFP Application”).
II. IFP Application
“28 U.S.C. § 1915 permits an indigent litigant to commence
an action in a federal court without prepayment of the filing
fee that would ordinarily be charged.” Cash v. Bernstein, No.
09-CV-1922, 2010 W L 5185047, at *1 (S.D.N.Y. Oct. 26,
2010). Upon review of plaintiff's IFP Application, the Court
finds that plaintiff has demonstrated sufficient economic
need and filed the inmate authorization form required in the
Northern District of New York. Plaintiff's IFP application
(Dkt. No. 2) is granted. 2
2 Section 1915(g) prohibits a prisoner from
proceeding in forma pauperis where, absent a
showing of “imminent danger of serious physical
injury,” a prisoner has filed three or more actions
or appeals that were subsequently dismissed as
frivolous, malicious, or failing to state a claim
upon which relief may be granted. See 28
U.S.C. § 1915(g). Based upon the Court's review
of plaintiff's litigation history on the Federal
Judiciary's Public Access to Court Electronic
Records (“PACER”) Service, it does not appear that
plaintiff has accumulated three strikes for purposes
of 28 U.S.C. § 1915(g).
III. Initial Screening
Having found that plaintiff meets the financial criteria for
commencing this action in forma pauperis, and because
plaintiff seeks relief from an officer or employee of a
governmental entity, the Court must consider the sufficiency
of the allegations set forth in the complaint in light of 28
U.S.C. §§ 1915(e) and 1915A. Section 1915(e) of Title 28 of
the United States Code directs that, when a plaintiff seeks to
proceed in forma pauperis, “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). 3
3 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).
Similarly, under 28 U.S.C. § 1915A, a court must review
any “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a
governmental entity” and must “identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the
complaint ... is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or ... seeks monetary relief
from a defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d
Cir. 1999) (per curiam) (noting that Section 1915A applies to
all actions brought by prisoners against government officials
even when plaintiff paid the filing fee).
*2 Additionally, when reviewing a complaint, the Court may
also look to the Federal Rules of Civil Procedure. Rule 8 of
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the Federal Rules of Civil Procedure provides that a pleading
which sets forth a claim for relief shall contain, inter alia, “a
short and plain statement of the claim showing that the pleader
is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). 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, prepare an adequate defense and determine whether
the doctrine of res judicata is applicable.” Hudson v. Artuz,
No. 95 CIV. 4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov.
30, 1998) (quoting Powell v. Marine Midland Bank, No. 95-
CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y. June 23, 1995)
(other citations omitted)).
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). While the 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 Twombly, 550 U.S. at 555). Rule 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Id. Thus, a pleading that contains only
allegations which “are so vague as to fail to give the
defendants adequate notice of the claims against them” is
subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102,
104 (2d Cir. 2009).
IV. Summary of the Complaint 4
4 Plaintiff annexed exhibits to the complaint. Dkt.
No. 1-1. To the extent that the exhibits are relevant
to the incidents described in the complaint, the
Court will consider the complaint as well as any
documents attached as exhibits. See Cortec Indus.,
Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.
1991) (the complaint is deemed to include any
written instrument attached to it as an exhibit or
any statements or documents incorporated in it by
reference).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983,
which establishes a cause of action for “ ‘the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws’ of the United States.” German v.
Fed. Home Loan Mortgage Corp., 885 F. Supp. 537, 573
(S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496
U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote
omitted); see also Myers v. Wollowitz, No. 6:95-CV-0272
(TJM/RWS), 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10,
1995) (stating that Ҥ 1983 is the vehicle by which individuals
may seek redress for alleged violations of their constitutional
rights.” (citation omitted)). “Section 1983 itself creates no
substantive rights, [but] ... only a procedure for redress for the
deprivation of rights established elsewhere.” Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993) (citation omitted). The Court
will construe the allegations in plaintiff's complaint with the
utmost leniency. See, e.g., Haines v. Kerner, 404 U.S. 519,
521 (1972) (holding that a pro se litigant's complaint is to be
held “to less stringent standards than formal pleadings drafted
by lawyers.”).
*3 Plaintiff, an inmate currently being held at Mid-
State Correctional Facility (“Mid-State C.F.”), asserts claims
arising out of his confinement in the custody of the New York
State Department of Corrections and Community Supervision
(“DOCCS”). The incidents that form the foundation for
this complaint occurred while plaintiff was confined at
Elmira Correctional Facility (“Elmira C.F.”). See Compl.,
generally. On July 13, 2013, plaintiff filed a grievance
claiming that defendants Officer Copestick (“Copestick”) and
Officer Schieber (“Schieber”) harassed him, on more than
one occasion, about his medication. See id. at 6; see Dkt.
No. 1-1 at 3-5. On August 5, 2013, after an investigation
into the allegations, the Superintendent of Elmira C.F. denied
plaintiff's grievance. See Dkt. No. 1-1 at 5.
On September 30, 2013, plaintiff was on his way to the
masjid to participate in Ramadan when he was stopped by
Copestick and Schieber and directed to the wall for a pat-
frisk. See Compl. at 5. While plaintiff's hands were on the
wall, Schieber “violently kicked” his legs from underneath
him. See id. Schieber “stomped” on plaintiff's ankles while
Copestick attempted to choke plaintiff. See id. During the
assault, the officers yelled racial slurs. See id. Defendant
Sergeant Collerman (“Collerman”) watched the officers beat
plaintiff. See Compl. at 5. As a result of the attack, plaintiff's
eyeglasses were broken, his ankle was swollen, and he could
not walk. See id. at 5, 9.
At approximately 5:00 p.m., plaintiff received medical
treatment for complaints of pain in his right big toe and
swelling in his right foot. See Dkt. No. 1-1 at 19. Plaintiff
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received Motrin and was advised to follow with sick call
requests, if needed. See id. A “use of force/inmate injury”
report was compiled. 5 See id. At approximately 7:15 p.m.,
plaintiff, a diabetic, told a medical provider that he had not
received his daily “medication.” See id. The provider ordered
various medications to be delivered to plaintiff on a daily
basis. See id.
5 The Use of Force report was not annexed as an
exhibit to the complaint.
On October 1, 2013, plaintiff received a misbehavior report
charging him with assault on staff and with refusing a direct
order and search. 6 See Compl. at 5. On the same day, plaintiff
was placed in confinement in the Special Housing Unit
(“SHU”). See Dkt. No. 1-1 at 19. On October 3, 2013, plaintiff
attended a Hearing regarding the misbehavior report. 7 See
Dkt. No. 1-1 at 10. On November 3, 2013, plaintiff received
a copy of the hearing disposition dismissing all charges. See
Dkt. No. 1-1 at 11; Dkt. No. 1 at 5.
6 The name of the officer who served the
misbehavior report is not clearly legible on the
Hearing Disposition annexed as an exhibit. See
Dkt. No. 1-1 at 10. Plaintiff does not allege
that Copestick, Schieber, or Collerman delivered
the report. The disposition form indicates that
the charges were reported by Schieber. Id. The
misbehavior report was not annexed as an exhibit
to the complaint.
7 The officer who presided over the hearing was a
Captain at Elmira C.F. However, the name of the
hearing officer is not clearly legible. See Dkt. No.
1-1 at 10-11.
On November 3, 2013, plaintiff was released from the SHU.
See Compl. at 5. While plaintiff was in the SHU, he was
unable to participate in Ramadan, denied religious meals,
denied parole, and excluded from mental health programs.
See id.
Construed liberally, the complaint contains the following
claims: (1) Copestick and Schieber violated plaintiff's
Eighth Amendment rights with use of excessive force
(Fifth, Fifteenth, Twentieth, and Twenty-Second Causes of
Action); (2) Collerman failed to protect plaintiff from the
assault in violation of plaintiff's Eighth Amendment rights
(Fifteenth Cause of Action); (3) defendants were deliberately
indifferent to plaintiff's serious medical needs in violation
of the Eighth Amendment (Sixth, Seventh, and Fifteenth
Causes of Action); (4) Copestick and Schieber retaliated
against plaintiff in violation of plaintiff's First Amendment
rights (Twenty-First Cause of Action); (5) plaintiff's First
Amendment rights to religious freedom were violated (Fourth
Cause of Action); (6) plaintiff's Fourteenth Amendment
rights to due process and equal protection were violated
(First, Second, Third, Sixth, Sixteenth, and Eighteenth
Causes of Action); (7) defendants failed to investigate
plaintiff's complaints and follow grievance procedures (Tenth
and Thirteenth Causes of Action); (8) perjury claims
against officers who filed the misbehavior report (Eleventh
and Seventeenth Causes of Action); and (9) supervisory
claims against DOCCS (Eighth, Ninth, Twelfth, Fourteenth,
Nineteenth, Twenty-Third, Twenty-Fourth, Twenty-Fifth, and
Twenty Sixth Causes of Action). See Compl., generally.
Plaintiff seeks compensatory damages, injunctive relief,
and criminal charges against defendants (Eleventh and
Seventeenth Causes of Action). See Compl. at 9-13.
V. Analysis
A. Eleventh Amendment
*4 The Eleventh Amendment has long been construed as
barring a citizen from bringing a suit against his or her own
state in federal court, under the fundamental principle of
“sovereign immunity.” U.S. Const. amend. XI (“The Judicial
power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.”); Hans
v. Louisiana, 134 U.S. 1, 10-21 (1890); Idaho v. Coeur
d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997); Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
Eleventh Amendment immunity is lost only if Congress
unequivocally abrogates states' immunity or a state expressly
consents to suit. Gollomp v. Spitzer, 568 F.3d 355, 365-66 (2d
Cir. 2009). It is well-settled that Congress did not abrogate
states' immunity through 42 U.S.C. § 1983, see Quern v.
Jordan, 440 U.S. 332, 343-45 (1979), and that New York State
has not waived its immunity from suit on the claims asserted
in plaintiff's complaint. See generally Trotman v. Palisades
Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d Cir. 1977);
Dawkins v. State of New York, No. 93-CV-1298 (RSP/GJD),
1996 W L 156764 at *2 (N.D.N.Y. 1996).
Here, insofar as plaintiff seeks an award of money damages
pursuant to Section 1983 against DOCCS, those claims are
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dismissed as plaintiff seeks relief from a defendant immune
from suit under section 1983. See LeGrand v. Evan, 702
F.2d 415, 417 (2d Cir. 1983); see Meehan v. Kenville, 555
Fed.Appx. 116 (2d Cir. 2014); see Simmons v. Gowanda
Corr. Facility, No. 13-CV-0647, 2013 WL 3340646, at *1
(W.D.N.Y. July 1, 2013) (“the New York State Department
of Corrections and [the named correctional facility] enjoy the
same Eleventh Amendment immunity from suit in federal
court as enjoyed by the state itself”) (quoting Posr. v. Court
Officer Shield No. 207, 180 F.3d 409, 411 (2d Cir. 1999)).
B. Eighth Amendment
1. Excessive Force Claims
The Eighth Amendment protects prisoners from “cruel and
unusual punishment” at the hands of prison officials. Wilson
v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble, 429
U.S. 97, 104 (1976). The Eighth Amendment's prohibition
against cruel and unusual punishment encompasses the use
of excessive force against an inmate, who must prove
two components: (1) subjectively, that the defendant acted
wantonly and in bad faith, and (2) objectively, that the
defendant's actions violated “contemporary standards of
decency.” Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d
Cir. 1999) (internal quotations omitted) (citing Hudson v.
McMillian, 503 U.S. 1, 8 (1992)). The key inquiry into a claim
of excessive force is “whether force was applied in a good-
faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Hudson, 503 U.S. at 7 (citing
Whitley v. Albers, 475 U.S. 312, 321-22 (1986)); see also
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973); see also
Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (“[t]he
Supreme Court has emphasized that the nature of the force
applied is the core judicial inquiry in excessive force cases
—not whether a certain quantum of injury was sustained.”).
“Accordingly, when considering the subjective element of the
governing Eighth Amendment test, a court must be mindful
that the absence of serious injury, though relevant, does not
necessarily negate a finding of wantonness.” Wynter v. Ramey,
No. 11-CV-0257 (DNH/DEP), 2013 W L 5465343, at *5
(N.D.N.Y. Sept. 30, 2013) (citations omitted).
Plaintiff has identified the time, location and individuals
involved in the alleged assault. Thus, the Court finds that
plaintiff's Eighth Amendment excessive force claims against
Copestick and Schieber survive sua sponte review and require
a response. In so ruling, the Court expresses no opinion as to
whether these claims can withstand a properly filed motion to
dismiss or for summary judgment.
2. Failure To Intervene
*5 The failure of corrections officers to employ reasonable
measures to protect an inmate from violence by others may
rise to the level of an Eighth Amendment violation. See Ayers
v. Coughlin, 780 F.2d 205, 209 (2d Cir. 1985). Moreover,
allegations that an officer failed to intervene and prevent
assaults are sufficient to state an Eighth Amendment failure
to protect claim. See Rogers v. Artus, No. 13-CV-21, 2013
WL 5175570, at *3 (W.D.N.Y. Sept. 11, 2013). To establish
liability under a failure to intervene theory, a plaintiff must
prove the use of excessive force by someone other than the
individual and that the defendant under consideration: 1)
possessed actual knowledge of the use by another of excessive
force; 2) had a realistic opportunity to intervene and prevent
the harm from occurring; and 3) nonetheless disregarded that
risk by intentionally refusing or failing to take reasonable
measures to end the use of excessive force. Curley v. Vill. of
Suffern, 268 F.3d 65, 72 (2d Cir. 2001). In order to succeed on
a claim of failure to protect, the inmate “must establish both
that a substantial risk to his safety actually existed and that the
offending [defendant] knew of and consciously disregarded
that risk.” See Walsh v. Goord, No. 07-CV-0246, 2007 WL
1572146, at *9 (W.D.N.Y. May 23, 2007) (quoting Farmer
v. Brennan, 511 U.S. 825, 837 (1970)). In addition, a failure-
to-protect claim requires a showing that prison officials acted
with “deliberate indifference” to the inmate's safety. Morales
v. New York State Dep't of Corr., 842 F.2d 27, 30 (2d Cir.
1988).
At this early stage of the proceeding, plaintiff has alleged
enough to require a response from Collerman to plaintiff's
claim that he failed to protect plaintiff from the assault by
Copestick and Schieber. In so ruling, the Court expresses no
opinion as to whether these claims can withstand a properly
filed motion to dismiss or for summary judgment.
3. Deliberate Indifference to Serious Medical Needs
To state an Eighth Amendment claim for medical
indifference, a plaintiff must allege that the defendant
was deliberately indifferent to a serious medical need. See
Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective
component of an Eighth Amendment deliberate indifference
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medical claim “requires that the alleged deprivation must
be sufficiently serious, in the sense that a condition of
urgency, one that may produce death, degeneration, or
extreme pain exists.” Hill v. Curcione, 657 F.3d 116, 122
(2d Cir. 2011) (quoting Hathaway v. Coughlin, 99 F.3d
550, 553 (2d Cir. 1996)) (internal quotation marks omitted).
Under the subjective element, medical mistreatment rises to
the level of deliberate indifference only when it “involves
culpable recklessness, i.e., an act or a failure to act ... that
evinces ‘a conscious disregard of a substantial risk of serious
harm.’ ” Chance v. Armstrong, 143 F. 3d 698, 703 (2d
Cir. 1998) (quoting Hathaway, 99 F.3d at 553). “Deliberate
indifference requires more than negligence but less than
conduct undertaken for the very purpose of causing harm.”
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). To
assert a claim for deliberate indifference, an inmate must
allege that (1) a prison medical care provider was aware
of facts from which the inference could be drawn that the
inmate had a serious medical need; and (2) the medical
care provider actually drew that inference. Farmer, 511 U.S.
at 837; Chance, 143 F.3d at 702. The inmate must also
demonstrate that the provider consciously and intentionally
disregarded or ignored that serious medical need. Farmer,
511 U.S. at 835. An “inadvertent failure to provide adequate
medical care” does not constitute “deliberate indifference.”
Estelle, 429 U.S. at 105-06.
In this instance, even assuming plaintiff's injuries were
sufficiently serious, plaintiff must allege facts to demonstrate
that defendants acted with a sufficiently culpable state of
mind. See Hathaway, 99 F.3d at 553. Plaintiff claims that
his medical treatment was inadequate because his ankle was
not x-rayed until he was transferred to “his next facility,”
two months after the alleged incident. See Compl. at 10.
“When the basis of a prisoner's Eighth Amendment claim
is a temporary delay or interruption in the provision of
otherwise adequate medical treatment, it is appropriate to
focus on the challenged delay or interruption in treatment
rather than the prisoner's underlying medical condition alone
in analyzing whether the alleged deprivation is, in ‘objective
terms, sufficiently serious,’ to support an Eighth Amendment
claim.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir.
2003) (citing Chance, 143 F.3d at 702). “Although a delay
in providing necessary medical care may in some cases
constitute deliberate indifference, this Court has reserved
such a classification for cases in which, for example, officials
deliberately delayed care as a form of punishment, ignored
a ‘life-threatening and fast-degenerating’ condition for three
days; or delayed major surgery for over two years.” Demata
v. New York State Corr. Dep't of Health Servs., 198 F.3d 233
(2d Cir. 1999) (internal citations omitted).
*6 Here, the complaint is void of any facts establishing
that any defendant deliberately delayed plaintiff's medical
treatment. On the day of the alleged attack, plaintiff received
medical attention and prescription medication. See Dkt. No.
1-1 at 19. Plaintiff was treated on three other occasions
in October 2013 for foot pain before undergoing x-rays
on November 14, 2013. Dkt. No. 1-1 at 20-21. During
those visits, plaintiff received ice packs, Motrin, and refused
Ibuprofen. See id. Plaintiff does not allege that his condition
deteriorated during that time. See Rodriguez v. City of New
York, 802 F.Supp. 477, 482 (S.D.N.Y. 2011) (finding that the
plaintiff did not establish that his condition worsened as a
result of a delay between his request and receipt of medical
attention). Plaintiff does not allege that he sought and was
refused medical treatment during this two month time period.
See Kee v. Hasty, No. 01 Civ. 2123, 2004 W L 807071, at
*29 (S.D.N.Y. April 14, 2004) (holding that the plaintiff's
Eighth Amendment claims were overly conclusory because
the inmate failed to specify the dates on which he was denied
proper treatment, the nature of his needs on those dates, and
the nature of the treatment that was purportedly denied by
the defendants). The complaint lacks any facts to plausibly
suggest that any defendant knew of the severity of plaintiff's
injury and the risk posed by any delay in his treatment.
Plaintiff, a diabetic, also claims that he was unable to read
or see for over one year because his eye glasses were not
replaced until over a year after the assault. See Compl. at
10. The complaint does not contain any facts suggesting that
plaintiff made any complaints or sick call requests to any
defendant related to his eyeglasses. Plaintiff also failed to
assert facts suggesting that he made any defendant “aware
of the serious harm could occur” if he was not provided
with his glasses. See Myrie v. Calvo/Calvoba, 591 F.Supp.2d
620, 628 (S.D.N.Y. 2008) (holding that the complaint did not
suggest that any defendant was deliberately indifferent to the
plaintiff's vision problems).
Plaintiff's Eighth Amendment allegations are also subject
to dismissal based upon the failure to plead personal
involvement on the part of any defendant. It is well settled
in this Circuit that “personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.” Wright v. Smith, 21 F.3d
496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield,
950 F.2d 880, 885 (2d Cir. 1991)). Thus, “a Section 1983
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plaintiff must ‘allege a tangible connection between the acts
of the defendant and the injuries suffered.’ ” Austin v. Pappas,
No. 04-CV-7263, 2008 W L 857528, at *2 (S.D.N.Y. Mar.
31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d
Cir. 1986)) (other citation omitted). The complaint lacks any
facts suggesting that Copestick, Schieber, or Collerman were
involved in plaintiff's medical treatment or refused to allow
plaintiff to receive medical attention. In the absence of factual
allegations sufficient to plausibly suggest that any defendant
was personally involved, the complaint fails to state a
cognizable claim against him. Consequently, plaintiff's Eighth
Amendment claims for deliberate indifference to plaintiff's
medical needs are dismissed without prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure
to state a claim.
C. First Amendment
1. Retaliation
Plaintiff alleges that Copestick and Schieber assaulted him in
retaliation for plaintiff's grievance against them. See Compl.
at 6,13. To state a claim of retaliation under the First
Amendment, a plaintiff must allege facts plausibly suggesting
the following: (1) the speech or conduct at issue was
“protected;” (2) the defendants took “adverse action” against
the plaintiff – namely, action that would deter a similarly
situated individual of ordinary firmness from exercising his
or her constitutional rights; and (3) there was a causal
connection between the protected speech and the adverse
action – in other words, that the protected conduct was a
“substantial or motivating factor” in the defendant’s decision
to take action against the plaintiff. Mount Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977);
Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (citing
Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)). The
Second Circuit has stated that courts must approach prisoner
retaliation claims “with skepticism and particular care,” since
“virtually any adverse action taken against a prisoner by
a prison official – even those otherwise not rising to the
level of a constitutional violation – can be characterized as a
constitutionally proscribed retaliatory act.” Dawes, 239 F.3d
at 491, overruled on other grounds by Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002) (citing Flaherty v. Coughlin, 713
F.2d 10, 13 (2d Cir. 1983)); Franco v. Kelly, 854 F.2d 584,
590 (2d Cir. 1988).
*7 It is well-settled that filing a grievance is constitutionally
protected conduct. Johnson v. Eggersdorf, 8 Fed.Appx. 140,
144 (2d Cir. 2001); Graham v. R.J. Henderson, 89 F.3d
75, 80 (2d Cir. 1996). A plaintiff can establish a causal
connection that suggests retaliatory intent by showing that
his protected activity was close in time to the complained-
of adverse action. Espinal v. Goord, 558 F.3d 119, 129 (2d
Cir. 2001) (citations omitted). While there is no “bright line”
defining the limits of the temporal relationship, courts in the
Circuit have held that an adverse action taken within three
months after a protected activity can reasonably be perceived
as retaliatory. See Gorman-Bakos v. Cornell Coop. Extn. of
Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001); see also
Ashok v. Barnhart, No. 01-CV-1311, 289 F.Supp.2d 305, 314
(E.D.N.Y. Oct. 30, 2003) (the interval between a protected
activity and an adverse action that results in a finding of
retaliation is generally no more than several months).
At this juncture, the Court finds that plaintiff's retaliation
claims against Copestick and Schieber survive sua sponte
review and require a response. In so ruling, the Court
expresses no opinion as to whether these claims can withstand
a properly filed motion to dismiss or for summary judgment.
2. Religious Claims
Plaintiff alleges that the defendants violated his religious
rights because he was unable to participate in Ramadan and
denied his religious meals as a direct result of the false
misbehavior report. Dkt. No. 1 at 5-6.
Prisoners have long been understood to retain some measure
of the constitutional protection afforded by the First
Amendment's Free Exercise Clause. See Ford v. McGinnis,
352 F.3d 582, 588 (2d Cir. 2003) (citing Pell v. Procunier, 417
U.S. 817, 822 (1974)). “Balanced against the constitutional
protections afforded prison inmates, including the right to
free exercise of religion, [however,] are the interests of
prison officials charged with complex duties arising from
administration of the penal system.” Id. (citing Benjamin
v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990)). To state
a First Amendment Free Exercise claim, a plaintiff must
allege that (1) the practice asserted is religious in the person's
scheme of beliefs, and that the belief is sincerely held;
(2) the challenged practice of the prison officials infringes
upon the religious belief; and (3) the challenged practice
of the prison officials furthers some legitimate penological
objective. Farid v. Smith, 850 F.2d 917, 926 (2d Cir.
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1988) (citations omitted). A prisoner “must show at the
threshold that the disputed conduct substantially burdens his
sincerely held religious beliefs.” Salahuddin v. Goord, 467
F.3d 263, 274–75 (2d Cir. 2006) (citing Ford, 352 F.3d
at 591). 8 A religious belief is “sincerely held” when the
plaintiff subjectively, sincerely holds a particular belief that
is religious in nature. Ford, 352 F.3d at 590. A prisoner's
sincerely held religious belief is “substantially burdened”
where “the state puts substantial pressure on an adherent
to modify his behavior and to violate his beliefs.” Jolly
v. Coughlin, 76 F.3d 468, 476–77 (2d Cir. 1996). Once
a plaintiff establishes that a sincerely held religious belief
has been substantially burdened, “[t]he defendants then bear
the relatively limited burden of identifying the legitimate
penological interests that justify the impinging conduct;
the burden remains with the prisoner to show that these
articulated concerns were irrational.” Salahuddin, 467 F.3d at
275 (quoting Ford, 352 F.3d at 595) (punctuation omitted).
8 The Second Circuit has yet to decide whether the
“substantial burden” test survived the Supreme
Court's decision in Emp't Div. v. Smith, 494 U.S
872, 887 (1990), in which the Court suggested
that application of the test “puts courts in ‘the
unacceptable business of evaluating the relative
merits of differing religious claims.’ ” Ford, 352
F.3d at 592 (quoting Emp't Div., 494 U.S. at
887); see also Williams v. Does, 639 Fed.Appx.
55, 56 (2d Cir. May 6, 2016) (“We have not yet
decided whether a prisoner asserting a free-exercise
claim must, as a threshold requirement, show
that the disputed conduct substantially burdened
his sincerely held religious beliefs.”); Holland
v. Goord, 758 F.3d 215, 220-21 (2d Cir. 2014)
(declining to decide whether a prisoner must show,
as a threshold matter, that the defendants' conduct
substantially burdened his sincerely held religious
beliefs in connection with a First Amendment free
exercise claim). In the absence of any controlling
precedent to the contrary, I have applied the
substantial-burden test in this matter.
*8 In this case, plaintiff has not alleged who issued the
misbehavior report and it is not attached to the complaint.
An inmate “has no general constitutional right to be free
from being falsely accused in a misbehavior report.” Boddie
v. Schneider, 105 F.3d 857, 862 (2d Cir. 1997). While a
false misbehavior report may give rise to a claim under
§ 1983 “when done in retaliation for the exercise of a
constitutional right,” Willey v. Kirkpatrick, 801 F.3d 51, 63
(2d Cir. 2015), here there is no such allegation. While the
deprivation of religious meals in SHU may be sufficient to
state a claim, see Williams v. Does, 639 Fed.Appx. 55, 56
(2d Cir. 2016); Skates v. Shusda, No. 9:14-CV-1092 (TJM/
DEP), 2016 WL 3882530, at **4-5 (N.D.N.Y. May 31,
2016), here there is no indication that the defendants had
any personal involvement in that conduct. The allegations,
without more, fail to plausibly suggest that any defendant
burdened plaintiff's right to freely practice his religion. Thus,
plaintiff's First Amendment claims against are dismissed
without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted.
D. Fourteenth Amendment
1. Equal Protection/Discrimination
Plaintiff claims that the September 30, 2013 assault was
racially motivated. See Compl. at 6, 12. “When verbal
harassment and simultaneous physical abuse ... are considered
together, [courts] have little doubt concluding that plaintiff's
allegations [are] sufficient to state a § 1983 claim for
discrimination on the basis of race. Cole v. Fischer, 379
Fed.Appx. 40, 43 (2d Cir. 2010). “Under the Fourteenth
Amendment's Equal Protection clause, a plaintiff may be able
to recover for a physical assault that would not meet the
objective threshold for Eighth Amendment excessive force
claims, if the defendant's conduct was motivated by racial
or religious discrimination.” Bhuiyan v. Wright, No. 9:06-
CV-409 ATB, 2011 WL 1870235, at *9 (N.D.N.Y. May 13,
2011) (citation omitted).
At this juncture, plaintiff has sufficiently plead a Fourteenth
Amendment equal protection claim to warrant a response
from Copestick and Schieber. In so ruling, the Court expresses
no opinion as to whether these claims can withstand a
properly filed motion to dismiss or for summary judgment.
2. Due Process
Plaintiff claims that defendants violated his due process
rights when they failed to replace plaintiff's eyeglasses.
See Compl. at 10. Plaintiff also asserts that his Fourteenth
Amendment rights were violated because he was improperly
confined to the SHU without a hearing as a result of a
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false misbehavior report. See id. at 10. During his SHU
confinement, was allegedly unable to participate in Ramadan,
denied his religious meals, denied parole, and excluded from
mental health programs. See id.
a. Property Claim
The Supreme Court has held that the negligent or intentional
deprivation of prisoner's property may not be the basis for
constitutional claims if sufficient post deprivation remedies
are available to address the claim. Hudson v. Palmer, 468 U.S.
517, 531 (1984) (citing Parratt v. Taylor, 451 U.S. 527, 541
(1981)); Davis v. New York, 311 Fed.Appx. 397, 400 (2d Cir.
2009) (An alleged loss of property, “whether intentional or
negligent – will not support a due process claim redressable
under § 1983 if ‘adequate state post-deprivation remedies
are available.’ ”) (quoting Hudson, 468 U.S. 533). “New
York in fact affords an adequate post-deprivation remedy in
the form of, inter alia, a Court of Claims action.” Jackson
v. Burke, 256 F.3d 93, 96 (2d Cir. 2001). Because plaintiff
has access to adequate state law remedies, he has not been
deprived of property without due process of law and therefore
cannot state a claim for relief pursuant to Section 1983. See
Love v. Coughlin, 714 F.2d 207, 208-09 (2d Cir. 1983) (per
curiam); see also Aziz Zarif Shabazz v. Pico, 994 F.Supp. 360,
473-74 (S.D.N.Y. 1998) (dismissing the plaintiff's claim that
defendants destroyed his eyeglasses in violation of his due
process rights). Thus, plaintiff's due process claims related to
his eyeglasses are dismissed pursuant to 28 U.S.C. § 1915(e)
(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim
upon which relief may be granted.
b. SHU Confinement
*9 To establish a due process claim, plaintiff must establish:
“(1) that he possessed a liberty interest and (2) that the
defendant(s) deprived him of that interest as a result of
insufficient process.” Giano v. Selsky, 238 F.3d 223, 225 (2d
Cir. 2001) (citation and internal quotation marks omitted).
In this case plaintiff alleges that the false misbehavior report
resulted in a SHU sentence. 9
9 The complaint contains conflicting factual
allegations related to the length of plaintiff's SHU
confinement. Plaintiff claims that after “one month
of being housed in SHU,” he was released. See
Compl. at 5. In the Third Cause of Action, plaintiff
claims that he served “over 60 days in SHU.” See
id. at 9.
A prisoner “has a liberty interest that is implicated by
SHU confinement if it ‘imposes [an] atypical and significant
hardship on the inmate in relation to the ordinary incidents
of prison life.’ ” J.S. v. T'Kach, 714 F.3d 99, 106 (2d
Cir. 2013) (quoting Sandin v. Conner, 515 U.S. 472, 484,
(1995)); see also Palmer v. Richards, 364 F.3d 60, 64
(2d Cir. 2004). In making this determination courts are to
consider, “among other things, the duration and conditions
of confinement.” J.S., 714 F.3d at 106; Davis v. Barrett, 576
F.3d 129, 133 (2d Cir. 2009). The conditions of confinement
are to be considered “in comparison to the hardships endured
by prisoners in general population, as well as prisoners in
administrative and protective confinement, assuming such
confinements are imposed in the ordinary course of prison
administration.” Davis, 576 F.3d at 134; Palmer, 364 F.3d at
66 n.4.
Although the Second Circuit has “explicitly avoided” creating
“a bright line rule that a certain period of SHU confinement
automatically fails to implicate due process rights,” the Court
has established guidelines. Palmer, 364 F.3d at 65. W here the
plaintiff is confined for “an intermediate duration –between
101 and 305 days – ‘development of a detailed record’ of
the conditions of the confinement relative to ordinary prison
conditions is required.’ ” Id. (quoting Colon v. Howard,
215 F.3d 227, 234 (2d Cir. 2000)). While confinements for
less than 101 days “under normal SHU conditions may not
implicate a prisoner's liberty interest,” such confinements
“could constitute atypical and significant hardships if the
conditions were more severe than the normal SHU conditions
of Sealy or a more fully developed record showed that even
relatively brief confinements under normal SHU conditions
were, in fact, atypical.” Palmer, 364 F.3d at 65; see Davis,
576 F.3d at 133. 10
10 The Second Circuit has noted that “[i]n the absence
of a detailed factual record, we have affirmed
dismissal of due process claims only in cases where
the period of time spent in SHU was exceedingly
short –less than the 30 days that the Sandin plaintiff
spent in SHU—and there was no indication that
the plaintiff endured unusual SHU conditions.”
Palmer, 364 F.3d at 65-66; see Davis, 576 F.3d
at 133. Absent allegations in the complaint that
the conditions of confinement were in some way
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atypical, however, many courts in this Circuit have
granted motions to dismiss claims by plaintiffs
with confinement exceeding thirty days when the
plaintiffs failed to allege that the conditions of
confinement were in some way atypical. See, e.g.,
Acevedo v. Fischer, No. 12-CV-6866, 2014 WL
5015470 at *15 (S.D.N.Y. Sept. 29, 2014) (citing
cases involving confinements of between forty and
fifty days which were dismissed for failure to allege
a protected liberty interest because there were no
allegations of unusual confinement).
*10 In this case, the duration of the confinement, 30 to
60 days, “was not long enough to constitute an atypical and
significant deprivation by itself,” and the Court therefore must
“look to the conditions of confinement.” Palmer, 364 F.3d at
66; see also Davis, 576 F.3d at 133. Plaintiff claims that while
he was confined in the SHU, he was unable to participate
in Ramadan, denied his religious meals, denied parole, and
excluded from his mental health program. See Compl. at 5,
10; Dkt. No. 1-1 at 1.
It is well established that prisoners do not have a
constitutional right to parole. Greenholtz v. Inmates of Neb.
Penal & Corr. Complex, 442 U.S. 1, 7 (1979). “Where a state
has created a statutory scheme for parole, the Due Process
Clause protects prisoners insofar as they ‘have a legitimate
expectancy of release that is grounded in the state's statutory
scheme.’ ” Barna v. Travis, 239 F.3d 169, 170–72 (2d Cir.
2001) (per curiam) (citing Greenholtz, 442 U.S. at 11–13).
“New York's parole scheme is not one that creates in any
prisoner a legitimate expectancy of release.” Barna, 239 F.3d
at 171. Plaintiff has also failed to plead that his inability to
participate in mental health programs impacted a protected
liberty interest. See Nieves v. Prack, No. 6:15-CV-6101, 2016
W L 1165820, at *4 (W.D.N.Y. March 24, 2016) (“[Plaintiff's]
claim that his inability ... to participate in various educational,
vocational, rehabilitative or self-help programs might have
hindered his ability to receive an early parole or release
is ... speculative and fails to allege interference with a
protected liberty interest.”) (citations omitted). Here, the
complaint lacks facts establishing when, how many times,
and who deprived plaintiff of the right to attend his mental
health program. With respect to plaintiff's religious claims,
courts have found that the deprivation of communal religious
services does not constitute an atypical and significant
hardship. See Arce v. Walker, 139 F.3d 329, 336 (2d Cir. 1998)
(finding that eighteen days in administrative segregation,
including loss of exercise and access to religious services, did
not constitute atypical and significant hardship); Holland v.
Goord, No. 05-CV-6295, 2006 WL 1983382, at *7 (W.D.N.Y.
July 13, 2006) (holding the inability to attend Muslim services
and celebrate the end of Ramadan while confined in the SHU
for seventy-seven days is not an atypical hardship).
Even assuming that plaintiff had pled facts sufficient to show
that his confinement imposed an atypical and significant
hardship, however, and therefore pled the existence of a valid
liberty interest, the complaint fails to state a claim based upon
the Fourteenth Amendment and due process. It is well settled
that “a prison inmate has no general constitutional right to
be free from being falsely accused in a misbehavior report.”
Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (citing
Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)). In
this case, a hearing regarding the charges was held within two
days of plaintiff's receipt of the misbehavior report. Plaintiff
does not allege that he was denied any procedural due process
during that hearing. Moreover, the complaint lacks facts
suggesting that any named defendant issued the misbehavior
report or presided over the disciplinary hearings. Based upon
the aforementioned, plaintiff's Fourteenth Amendment claims
are dismissed without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state
a claim upon which relief may be granted. See Livingston v.
Kelly, 561 F.Supp.2d 329, 332 (W.D.N.Y. 2008) (dismissing
plaintiff's false-report claims because the plaintiff failed to
allege that the disciplinary hearings on the reports did not
meet constitutional due process standards).
E. Failure to Respond to Grievances and Failure to
Investigate
*11 Plaintiff also claims that his constitutional rights were
violated because the facility grievance program is “never
followed.” See Compl. at 11. There is no constitutional
right of access to the established inmate grievance program.
Davis v. Buffardi, No. 9:01-CV-0285 (PAM/GJD), 2005 WL
1174088, at *3 (N.D.N.Y. May 4, 2005) (“[p]articipation
in an inmate grievance process is not a constitutionally
protected right”); Shell v. Brzezniak, 365 F.Supp.2d 362,
369-70 (W.D.N.Y. 2005) (“[i]nmate grievance programs
created by state law are not required by the Constitution and
consequently allegations that prison officials violated those
procedures does not give rise to a cognizable § 1983 claim”);
Cancel v. Goord, No. 00. Civ. 2042, 2001 WL 303713, at *3
(S.D.N.Y. Mar. 29, 2001) (“inmate grievance procedures are
not required by the Constitution and therefore a violation of
such procedures does not give rise to a claim under § 1983”);
Mimms v. Carr, No. 09-CV-5740, 2011 W L 2360059, at
*10 (E.D.N.Y. June 9, 2011) (“It is well-established that
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prison grievance procedures do not create a due-process-
protected liberty interest.”) (citing cases). Simply stated, there
is no underlying constitutional obligation to afford an inmate
meaningful access to the internal grievance procedure, or to
investigate and properly determine any such grievance.
To the extent that plaintiff attempts to assert a separate
constitutional claim based upon the Inspector General's
failure to investigate, the law is also clear that inmates do
not enjoy a constitutional right to an investigation of any
kind by government officials. Bernstein v. New York, 591
F.Supp.2d 448, 460 (S.D.N.Y. 2008) (collecting cases); Torres
v. Mazzuca, 246 F.Supp.2d 334, 341-42 (S.D.N.Y. 2003)
(Prisoners do not have a due process right to a thorough
investigation of grievances.); DeShaney v. Winnebego Soc.
Servs., 489 U.S. 189, 196 (1989) (The Due Process Clause
confers no right to governmental aid, even where that aid may
be necessary to secure life, liberty, or property interests of
which the government itself may not deprive the individual);
Pine v. Seally, No. 9:09-CV-1198, 2011 W L 856426, at *9
(N.D.N.Y. Feb. 4, 2011) (“the law is ... clear that inmates do
not enjoy a constitutional right to an investigation of any kind
by government officials”) (citing Bernstein, 591 F.Supp.2d at
460).
In this regard, plaintiff's claims do not involve a constitutional
violation and are dismissed pursuant to 28 U.S.C. § 1915(e)
(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim
upon which relief may be granted.
F. Cause of Action for Criminal Charges/Perjury
“New York does not recognize a common law cause of action
for [...] perjury.” Harris v. Summers, No. 5:14-CV-0013
(LEK/DEP), 2014 W L 1340032, at *5 (N.D.N.Y. Apr. 3,
2014) (citing Carvel v. Ross, No. 12-CV-0722, 2011 W L
856283, at *12 (S.D.N.Y. Feb. 16, 2011) (dismissing the
plaintiff's perjury claim because “there [is] no private right
of action” for perjury)). Moreover, plaintiff's claim is not
actionable because it is well-settled that a private citizen
does not have a constitutional right to bring a criminal
complaint against another individual. Harper v. New York
Child Welfare Comm'rs, No. 3:12-CV-0646 (NAM/DEP),
2012 WL 3115975, at *4 (N.D.N.Y. May 14, 2012) (citing
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)).
Consequently, plaintiff's request to charge defendants with
“perjury” is dismissed for failure to state a claim pursuant to
28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
G. Injunctive Relief Against DOCCS
Plaintiff demands injunctive relief directing DOCCS to
require “each officer” to wear body cameras to prevent future
assaults and other related injunctive relief. See Compl. at
10-12. Plaintiff is presently confined at Mid-State C.F. and
therefore, plaintiff's request for injunctive relief involving
changes to the operation of security at Elmira C.F., is
dismissed as moot. See Edwards v. Horn, No. 10 Civ.
6194, 2012 WL 760172, at *23 (S.D.N.Y. March 8, 2012)
(dismissing the plaintiff's claim for injunctive relief because
the plaintiff had been released from prison).
*12 Even assuming plaintiff's request is broader and
intended to encompass all DOCCS facilities, the request is
nonetheless improper and subject to dismissal. The PLRA
provides “[p]rospective relief in any civil action with respect
to prison conditions shall extend no further than necessary
to correct the violation of the Federal right of the particular
plaintiff.” 18 U.S.C. § 3626(a)(1)(A). “[A] proposed order
directing the installation of securities cameras – is beyond the
narrow scope permitted by the PLRA.” Barrington v. New
York, 806 F.Supp.2d 730, 750 (S.D.N.Y. 2011) (dismissing
the plaintiff's request for injunctive relief seeking an order
directing Green Haven to install security cameras as overly
broad and unnecessary to correct the alleged past violations
of his rights). Accordingly, plaintiff's request for injunctive
relief is dismissed.
VI. Conclusion
ORDERED that plaintiff's in forma pauperis application
(Dkt. No. 2) is GRANTED; 11 and it is further
11 Plaintiff should note that, although the Court
has granted his application to proceed in forma
pauperis, he will still be required to pay fees that
he may incur in this action, including copying and/
or witness fees.
ORDERED that the Clerk provide the Superintendent of the
facility, designated by plaintiff as his current location, with a
copy of plaintiff's authorization form, and notify the official
that this action has been filed and that plaintiff is required to
pay the entire statutory filing fee of $350.00 pursuant to 28
U.S.C. § 1915; and it is further
ORDERED that the Clerk of the Court provide a copy of
plaintiff's inmate authorization form to the Financial Deputy
of the Clerk's Office; and it is further
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ORDERED that the following claims are DISMISSED with
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted: (1) plaintiff's § 1983 claims for
monetary damages against DOCCS; (2) constitutional claims
based upon the failure to adhere to the grievance policy and
investigate; and (3) plaintiff's claims related to perjury and
filing criminal charges against defendants; and it is further
ORDERED that the following claims are DISMISSED
without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted: (1) Eighth Amendment claims against
defendants for deliberate indifference to plaintiff's serious
medical needs; (2) First Amendment freedom of religion
claims; (3) Fourteenth Amendment due process claims; and
(4) claims for injunctive relief against DOCCS 12 ; and it is
further
12 If plaintiff wishes to pursue any claim dismissed
without prejudice, he is advised to that, if accepted
for filing, any amended complaint will entirely
replace the original complaint and incorporation of
prior claims is not permitted.
ORDERED that DOCCS is DISMISSED as a defendant
herein; and it is further
ORDERED that the following claims survive the Court's
sua sponte review under 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) and require a response: (1) the Eighth
Amendment use of excessive force claims against defendants
Copestick and Schieber; (2) the Eighth Amendment failure-
to-intervene claim against defendant Collerman; (3) the First
Amendment retaliation claims against defendants Copestick
and Schieber; and (3) the Fourteenth Amendment equal
protection claims against Copestick and Schieber; and it is
further
ORDERED, that the Clerk shall issue summons and forward
them, along with copies of the Complaint, to the United States
Marshal for service upon the remaining defendants. The Clerk
shall forward a copy of the Summons and Complaint to the
Office of the New York State Attorney General, together with
a copy of this Decision and Order; and it is further
*13 ORDERED, that a response to the complaint be filed
by the remaining defendants, or their counsel, as provided for
in the Federal Rules of Civil Procedure;
ORDERED, that all pleadings, motions and other documents
relating to this action must bear the case number assigned to
this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor,
Federal Building, 100 S. Clinton St., Syracuse, New York
13261-7367. Any paper sent by a party to the Court or
the Clerk must be accompanied by a certificate showing
that a true and correct copy of same was served on all
opposing parties or their counsel. Any document received
by the Clerk or the Court which does not include a proper
certificate of service will be stricken from the docket.
Plaintiff must comply with any requests by the Clerk’s Office
for any documents that are necessary to maintain this action.
All parties must comply with Local Rule 7.1 of the Northern
District of New York in filing motions. Plaintiff is also
required to promptly notify the Clerk’s Office and all
parties or their counsel, in writing, of any change in his
address; their failure to do so will result in the dismissal
of his action; and it is further
ORDERED, in accordance with Lebron v. Sanders, 557 F.3d
76 (2d Cir. 2009), the Clerk of the Court is directed to
provide plaintiff with copies of opinions from Westlaw and
the Federal Appendix cited in this Decision and Order; and
it is further
ORDERED that the Clerk of the Court shall serve a copy of
this Decision and Order on plaintiff in accordance with the
Local Rules.
Dated: October 26, 2016.
All Citations
Not Reported in Fed. Supp., 2016 WL 6267968
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Houston v. Collerman
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:16-CV-01009
Houston v. Collman et al
— N.D.N.Y. Aug. 15, 2016 Docket
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Houston v. Collerman
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History
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Houston v. Collerman
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Riley v. Taylor, Not Reported in Fed. Supp. (2019)
2019 WL 6829046
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 6829046
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Tony RILEY, Plaintiff,
v.
Staci Dennis TAYLOR, Asst. District Attorney; and
Onondaga County Sex Offender Office, Defendants.
5:19-CV-1451 (BKS/ATB)
|
Signed 12/13/2019
Attorneys and Law Firms
TONY RILEY, Plaintiff, pro se.
ORDER and REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 The Clerk sent to the court for review a civil rights
complaint, together with a motion to proceed in forma
pauperis (“IFP”), filed by plaintiff Tony Riley. (Complaint
“Compl.”) (Dkt. No. 1, 3). 1 Plaintiff subsequently filed an
amended complaint. (“AC”) (Dkt. No. 5).
1 When plaintiff initially filed this action, he
neglected to include his motion for IFP status.
Thus, the action was administratively closed
pending plaintiff's submission of the appropriate
application. (Dkt. No. 2). Plaintiff has now filed a
proper motion to proceed IFP (Dkt. No. 3), the case
was reopened (Dkt. No. 4), and the court may now
conduct its initial review.
I. IFP Application
As to plaintiff's IFP application, the court finds that plaintiff
has demonstrated sufficient economic need, and he has filed
the appropriate information. Therefore, plaintiff has met the
financial criteria for proceeding IFP.
However, in addition to determining whether plaintiff meets
the financial criteria to proceed IFP, the court must also
consider the sufficiency of the allegations set forth in the
complaint in light of 28 U.S.C. § 1915, which provides that
the court shall dismiss the case at any time if the court
determines that the action is (i) 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)(i)-(iii).
In determining whether an action is frivolous, the court must
consider whether the complaint lacks an arguable basis in
law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Dismissal of frivolous actions is appropriate to prevent abuses
of court process as well as to discourage the waste of judicial
resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505
F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to
show liberality toward pro se litigants, and must use extreme
caution in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and has had an
opportunity to respond, the court still has a responsibility
to determine that a claim is not frivolous before permitting
a plaintiff to proceed. Fitzgerald v. First East Seventh St.
Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that
a district court may dismiss a frivolous complaint sua sponte
even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint
must contain sufficient factual matter, accepted as true, to
state a claim that is “plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Bell Atl.
Corp., 550 U.S. at 555).
II. Complaint and Amended Complaint
Although plaintiff's complaint was confusing, it appeared
that he was challenging his current incarceration, which
appears to be based upon his failure to comply with sex
offender registration requirements. Shortly after filing his
original complaint, plaintiff filed an amended complaint,
which appears to state the same claims in a slightly different
fashion. (AC at pp. 1-5). 2 Plaintiff has also attached a variety
of administrative requests that he has made at the Onondaga
County Justice Center, together with the administrative
responses. (AC at pp. 5-25).
2 Plaintiff has not numbered the pages of the
amended complaint. Thus, when the court refers
to a page number, it is referring to the pagination
assigned by the court's electronic filing system,
CM/ECF.
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*2 Rule 15 of the Federal Rules of Civil Procedure provides
that a party may amend a pleading once as a matter of
course twenty-one (21) days after serving it. Fed. R. Civ.
P. 15(a)(1)(A). This plaintiff is proceeding IFP, and the
court has not yet ordered service, thus, plaintiff may submit
his amended complaint as a matter of course. The court
will, therefore, consider plaintiff's amended pleading as the
operative pleading in this case. However, the court will read
and cite to both complaints in order to determine what plaintiff
might be attempting to claim.
In his amended complaint, plaintiff alleges that on April 17,
1999, he was charged with sex abuse, “no investigation [and]
no evidence,” but he pled guilty to sex abuse and a weapons
charge. (AC ¶ 4 - Facts). Plaintiff states that he was sentenced
to one year for the sex abuse and one year for the “shotgun”
that he had. (Id.) As a result of the sex abuse conviction, he
was required to register as a sex offender for 10 years. (Id.)
Plaintiff states that “before [his] sixteen months was over,” he
was supposed to appear before the sentencing court, but this
did not happen. (Id.) Plaintiff states “that is why they keep
arresting me....” (Id.)
Plaintiff's original complaint contained additional details,
describing his repeated arrests for failure to register which
do not appear in the amended complaint. 3 However, the
amended complaint alleges additional facts that were not in
the original complaint and names additional defendants who
were not in the original complaint.
3 In his original complaint, plaintiff stated that his
defense attorney and the Judge did not give him a
chance to defend himself, and they forced him to
plead guilty to sex abuse and a weapons charge,
upon which he was sentenced to one year on each
charge (Compl. ¶ 4-Facts) (Dkt. No. 1). Plaintiff
states that, as a result of the conviction, he was
required to register as a sex offender for ten years,
beginning January 20, 2000. (Id.)
Plaintiff states that at the end of “those” sixteen
(16) months, he was supposed to go back in
front of the sentencing judge, “which never
happened.” (Compl. ¶ 5, Causes of Action).
Plaintiff claims that although he had “completed”
the sentence imposed by the trial court judge “after
ten years,” on March 27, 2009, he was arrested
again and told that he had to do “20 years of register
[sic].” (Id.) (First Cause of Action). Plaintiff then
states that “now that I have the 20 years done, I
have been arrested again saying I have to do life
of register [sic].” (Id.) (Second Cause of Action).
Plaintiff states that attorney Nikki Platenik “got in
court and stated this case was suppose[ed] to have
been droped [sic] and I was release and it was 2
years later.” (Id.)
Plaintiff states that “I am arrested again on the
same charge failure to register with no sentencing
minutes no transcrip [sic] and they held me for 10
months and release[d] me.” (Id.) (Third Cause of
Action). It appears that plaintiff alleges that three
months later, he was arrested again, held for seven
months and then released again. (Id.) Plaintiff then
states “now here I am 7/25/19 arrested on the same
charge failure to register with a very high bail
waiting trial.” (Id.)
The caption of the amended complaint lists only “defendant”
Onondaga County Sex Offender Officer. (AC at p. 1).
However, in the “Parties” section of the complaint, plaintiff
names new defendant “Sex Offender Officer,” 4 original
defendant Assistant District Attorney Staci Dennis Taylor,
and new defendant Attorney Robert Earl. (AC ¶ 3(a) - 3(c)).
4 The original complaint named the Onondaga
County Sex Offender Office. (Compl. at 1).
*3 The “Causes of Action” in the amended complaint are
not causes of action, but an extension of the Fact section. (AC
¶ 5). Plaintiff alleges that he “tried to tell these people nothing
happen [sic] between this young woman and I [sic].” (AC
¶ 5) (First Cause of Action). Plaintiff essentially explains
that he was not guilty of the sex abuse charge for which
he plead guilty in 1999, and that his attorney 5 “set all
this up because the parents had money.” (Id.) The “Second
Cause of Action” contains more of plaintiff's explanation
and his problems with the 1999 conviction and subsequent
registration requirements. (AC ¶ 5) (Second Cause of Action).
5 Plaintiff's attorney from his 1999 charges, Lisa
Giles, is not named as a defendant in either
complaint.
The “Third Cause of Action” adds new facts which were
not in the original complaint. (AC ¶ 5) (Third Cause of
Action). In this paragraph, plaintiff states that he had an
accident, and now has multiple medical issues, but makes no
claims regarding his medical condition. He ends the amended
complaint by stating that he is “incarcerated for something he
never did.” (Id.) The attachments to the amended complaint
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consist of plaintiff's request for information regarding his
criminal case, including sentencing transcripts and sentencing
minutes from 1-20-2000. (AC - Attachments at p. 13).
In his prayer for relief, he requests that “this sex offender be
remove [sic] because the [sic] sentence me to 10 years 17
years later they told me life statutes of limitations was over on
that in 5 years this happen 4-17-99. 6 (AC ¶ 6). Plaintiff is also
requesting $350 dollars per day for ten years, nine months,
and 27 days. 7
6 Plaintiff's sentences run together without
punctuation, but based on the complaint and
amended complaint, the court has interpreted
this sentence loosely as follows: Plaintiff
wishes his sex offender classification and
registration requirements “removed,” because he
was originally required to register for ten years, but
seventeen years later, he was told that he had to
register for life. Plaintiff claims that the statute of
limitations was “over on that in 5 years.”
7 Plaintiff's original complaint requested that he be
released and that he be awarded $15 million dollars.
(Compl. ¶ 6).
III. Jurisdictional Basis
Plaintiff brings this action on a form reserved for cases
brought under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Investigation, 403 U.S. 388 (1971). Bivens
established a cause of action for monetary damages resulting
from the violation of a constitutional right by federal agents or
employees, acting under color of federal law. Arar v. Ashcroft,
585 F.3d 559, 571-72 (2d Cir. 2009) (discussing history of
Bivens actions).
One of the defendants in this action is an Assistant District
Attorney in Onondaga County, and the other defendant is
a county/state entity or officer. The final defendant appears
to be a court-appointed private attorney. Thus, none of the
defendants acts under color of federal law for purposes
of Bivens. Clearly plaintiff filed both his original and his
amended complains on the wrong forms. Because plaintiff
is pro se, the court will interpret the complaint as raising
claims under whatever basis is appropriate without regard to
the form-complaint. See Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994) (pro se papers are interpreted liberally to raise
the strongest arguments suggested therein).
Section 1983 of Title 42 of the United States Code provides
a cause of action for individuals who have had their
constitutional or federal rights violated by a defendant acting
under color of state law. 42 U.S.C. § 1983. Section 1983
is based upon an underlying violation of a constitutional
right and does not provide a right of action in itself. See
Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir.
2010) (“Section 1983 is only a grant of a right of action; the
substantive right giving rise to the action must come from
another source.”)
*4 To the extent that plaintiff could bring an action for
damages with the facts that he alleges, the only proper basis
for jurisdiction would be under section 1983. 8 The court will
interpret plaintiff's action to have been brought under section
1983 and will proceed to analyze whether the action may
proceed further.
8 Plaintiff appears to be familiar with section 1983
because in one of the documents attached to his
amended complaint, he states that he is filing
a “1983 Bivens.” Plaintiff has confused the two
actions. (AC Attachment at 4).
IV. Release from Confinement
A. Legal Standards
Plaintiff may only bring a request for release from
confinement in a petition for habeas corpus pursuant to 28
U.S.C. § 2254. McFadden v. Pataki, No. 17-CV-1048, 2017
WL 4350591, at *2 (S.D.N.Y. July 7, 2017) (citing Wilkinson
v. Dotson, 544 U.S. 74, 78-82 (2005)) (citing Preiser v.
Rodriguez, 411 U.S. 475 (1973) (noting that writ of habeas
corpus is sole remedy for prisoner seeking to challenge the
fact or duration of his confinement)). Section 2254 requires
that the inmate exhaust his state court remedies prior to
seeking such relief, and plaintiff may not circumvent this
requirement by filing a section 1983 action. Id.
B. Application
In his original complaint, in addition to damages, plaintiff
asked for release from his current confinement. Plaintiff does
not make that specific request in the amended complaint,
but he does ask that the sex “offender” be “removed,”
which could result in the plaintiff's release. 9 Release from
confinement may not be obtained without the exhaustion
of state court remedies under 28 U.S.C. § 2254. In the
original complaint, plaintiff stated that he was currently
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Riley v. Taylor, Not Reported in Fed. Supp. (2019)
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incarcerated and awaiting trial. It, therefore, appears from
the face of his complaint that he has not exhausted his state
court remedies with respect to any challenges that he might
have to his current incarceration. 10 The same is true to the
extent that plaintiff might be attempting to challenge his
1999 conviction and its alleged effect on his current situation.
The amended complaint contains language which appears to
explain plaintiff's innocence of the 1999 sex abuse charges.
To the extent that plaintiff may be requesting release from
confinement, the claim must be dismissed without prejudice
at this time.
9 The court notes that, to the extent that plaintiff
is challenging the registration requirement itself,
relating to the 1999 conviction, separate from his
current incarceration it has been held that sex
offender registration requirements are collateral
consequences of a criminal conviction. Rodriguez
v. Attorney General, No. 10 Civ. 3868, 2011 WL
519591, at *5-8 (S.D.N.Y. Feb. 15, 2011) (citations
omitted). After the sentence has been served, the
collateral consequences alone are insufficient to
satisfy the “in custody” requirement of section
2254. See Fowler v. Fischer, No. 18 Civ. 2551766,
at *2-3 (S.D.N.Y. May 30, 2019) (discussing
cases). The court in Fowler stated that, although the
Second Circuit has not decided this issue, several
circuit courts of appeal have determined that the
registration requirement alone does not satisfy
the “in custody” requirement, making habeas
corpus unavailable to the individual. Id. at *3-4
(citing cases). In this case, plaintiff's sentence of
incarceration ended long ago, and any current
registration requirement would not be sufficient to
satisfy the “in custody” requirement which would
be necessary to challenge the 1999 conviction.
In any event, without engaging in a detailed
discussion, the one-year statute of limitation to
challenge the 1999 conviction would likely have
expired long ago. 28 U.S.C. § 2244(d)(1).
10 Although plaintiff may not be aware, or may
not understand, the Sex Offender Registration Act
(“SORA”) in New York State, N.Y. Correct. Law §
168 et seq., was amended in 2006. The New York
State Legislature amended sections 168-h and 168-
o. Doe v. Cuomo, 755 F.3d 105, 108-109 (2d Cir.
2014). The amendment to section 168-h increased
the registration requirement for level one offenders
from 10 to 20 years. Id. Section 168-o was amended
to remove the language allowing a sex offender
to petition the court for a modification of the
level of notification. Id. at 109. In Doe, the court
rejected constitutional challenges by level one
sex offenders to the amendment increasing their
registration requirement after their convictions
and the imposition of sentence. Id. at 109-115.
The court rejected an ex post facto challenge, a
procedural due process challenge, a substantive
due process challenge, an equal protection and
Fourth Amendment challenge, and a claim that the
increase in registration time violated the plaintiffs’
plea agreements. Id. Plaintiff pled guilty in 1999,
when the registration requirement was 10 years.
However, prior to the expiration of those 10
years, the statute was amended to require 20
years of registration. This amendment may be the
explanation for plaintiff's claim that his registration
requirement was “increased” in 2009, when he
should have been completing his requirements.
Based on Doe, there is no avenue for plaintiff to
challenge that increase.
V. Heck v. Humphrey
A. Legal Standards
*5 Civil lawsuits may not be used to collaterally attack
criminal convictions. Heck v. Humphrey, 512 U.S. 477
(1994). In Heck, the Supreme Court held that a section
1983 action seeking damages is not cognizable if a decision
in favor of the plaintiff would necessarily invalidate a
criminal conviction unless the conviction or sentence had
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal, or called into question by
a federal habeas court. Id. at 486-87.
B. Application
To the extent that plaintiff seeks money damages and not
release from confinement, the amended complaint must also
be dismissed. He states that he is awaiting trial on his current
charges. Thus, he cannot meet the requirement in Heck that
his conviction has been reversed or called into question by a
federal habeas court. The same is true to the extent that he is
somehow attempting to challenge his 1999 conviction or the
effect that it may be having on his current incarceration.
VI. Prosecutorial Immunity
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A. Legal Standards
Prosecutors enjoy absolute immunity from suit under section
1983 in matters associated with their prosecutorial functions,
regardless of motivation. Dory v. Ryan, 25 F.3d 81, 83
(2d Cir. 1994) (prosecutorial immunity covers virtually all
acts associated with the prosecutor's function, including
conspiracies to present false evidence); Bernard v. County
of Suffolk, 356 F.3d 495 (2d Cir. 2004) (absolute immunity
shields prosecutors from suit pursuant to section 1983 for
their alleged malicious or selective prosecution as well as for
any misconduct in the presentation of evidence to the grand
jury).
Absolute immunity is defeated only when the prosecutor is
engaging in investigative functions. Bernard v. County of
Suffolk, 356 F.3d at 502-503 (citation omitted). The initiation
and pursuit of prosecution, regardless of any alleged illegality,
is protected by absolute prosecutorial immunity. Peay v.
Ajello, 470 F.3d 65, 67-68 (2d Cir. 2006). It has also been held
that a prosecutor is entitled to absolute immunity for his or her
decision not to prosecute, regardless of the motivation for that
decision. Scloss v. Bouse, 876 F.2d 287, 292 (2d Cir. 1989).
B. Application
In both complaints plaintiff has named Assistant District
Attorney Staci Dennis as an individual defendant in this
action. Although plaintiff has named defendant Dennis in the
caption of the complaints, he does not mention her at all in
the facts or anywhere else in the body of either complaint.
Personal involvement is a prerequisite to liability in a section
1983 action. Richardson v. Goord, 347 F.3d 431, 435 (2d
Cir. 2003). In addition to the requirement that any defendant
in a section 1983 complaint be “personally involved” in
the alleged constitutional violations, as an assistant district
attorney, defendant Dennis would be absolutely immune from
any damage claim made by plaintiff to the extent that she was
performing a prosecutorial function. Since plaintiff has not
even mentioned this defendant in the body of the complaint or
the amended complaint, the court cannot determine whether
she would be entitled to absolute or qualified immunity, but
the claim would have to be dismissed in any event based on
the lack of alleged personal involvement.
VII. Municipal Liability
A. Legal Standards
A municipality may not liable pursuant to section 1983 under
the theory of respondeat superior, but may be only liable
where its employee acted pursuant to an official policy,
custom, or practice. See Monell v. Dep't of Soc. Serv. of the
City of New York, 436 U.S. 658, 694–95 (1978); Rojas v.
Alexander's Dep't Store, Inc., 924 F.2d 406, 408 (2d Cir.
1990). A policy, custom or practice may “be inferred where
the municipality so failed to train its employees as to display
a deliberate indifference to the constitutional rights of those
within its jurisdiction.” Kern v. City of Rochester, 93 F.3d 38,
44 (2d Cir. 1996) (internal quotation marks omitted).
B. Application
*6 The court notes that in his original complaint, plaintiff
appears to have named the Onondaga County Sex Offender
Office as a defendant. In the amended complaint, he writes
“officer.” To the extent that plaintiff was attempting to sue
the “office,” it is well-settled that an administrative arm of a
municipality, such as the Police Department or the Onondaga
County Sex Offender Office, to the extent that such an
“Office” exists, “cannot sue or be sued because it does not
exist separate and apart from the municipality and does not
have its own legal identity.” Leland v. Moran, 100 F. Supp. 2d
140, 145 (N.D.N.Y. 2000) (internal quotation omitted). See
also Clayton v. City of Kingston, 44 F. Supp. 2d 177, 183
(N.D.N.Y. 1999).
Plaintiff has failed to allege any facts in either complaint
that would remotely state a claim for municipal liability in
this case. 11 Thus, the amended complaint must be dismissed
with prejudice as against the Sex Offender “Office,” and
to the extent that plaintiff's claim may be interpreted as a
claim against Onondaga County, based on plaintiff naming
the Onondaga County Sex Offender Office, the complaint
must be dismissed without prejudice.
11 A municipality may only be named as a defendant
in certain circumstances. In Monell v. Dep't of
Soc. Servs., 436 U.S. 658 (1978), the Supreme
Court outlined the limited circumstances under
which a municipality may be liable under Section
1983. A municipality may not be held liable solely
because it employs a tortfeasor. LaVertu v. Town of
Huntington, No. 13-CV-4378, 2014 WL 2475566,
at *3 (E.D.N.Y. Apr. 4, 2014) (citing inter alia
Los Angeles County, Cal. v. Humphries, 562 U.S.
29, 35 (2010)), (Rep.-Rec.), adopted in relevant
part, 2014 WL 2506217 (E.D.N.Y. June 2, 2014).
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Only when the municipality, through the execution
of its policies, actually deprives an individual of
his constitutional rights, is it liable for the injury.
Monell, 436 U.S. at 694.
To establish municipal liability, the policy must
actually cause the violation of constitutional
rights; it must be the moving force behind the
violation. Id.; Dominguez v. Beame, 603 F.2d 337,
341 (2d Cir. 1979). Official policy includes the
decisions of a government's lawmakers, the acts
of policymaking officials, and practices that are
so widespread as to “practically have the force
of law.” Connick v. Thompson, 563 U.S. 51, 61
(2011). Municipal liability may also be shown by
establishing that a policymaking official ordered
or ratified the employees’ actions either expressly
or tacitly. Finally, municipal liability can, under
certain circumstances, be based upon a failure to
properly train the municipality's employees. See
City of Canton v. Harris, 489 U.S. 378, 387-90
(1989).
To the extent that the plaintiff is now attempting to name an
“officer,” he has not indicated who that “officer” might be
or how the “officer” was personally involved in any of the
conduct alleged by plaintiff. Thus, the amended complaint
would have to be dismissed without prejudice as against an
unidentified “officer,” who is not alleged to have engaged in
any unconstitutional conduct.
VIII. Defense Counsel
A. Legal Standards
It is well-settled that even a court-appointed defense attorney
does not act under color of state law for purposes of section
1983. Sash v. Rosahn, 450 F. App'x 42 (2d Cir. 2011);
Jhagroo v. Santos, No. 19-CV-2037, 2019 WL 1876723, at
*2 (E.D.N.Y. Apr. 26, 2019) (citations omitted).
B. Application
In his amended complaint, plaintiff has named Attorney
Robert Earl, Esq. as a defendant. First, Attorney Earl is not
mentioned anywhere in the body of the complaint, so it is
impossible to know what plaintiff's claims against the attorney
might be. The only reason that the court knows that Attorney
Earl may currently represent the plaintiff is that the first
response to one of the administrative requests attached to
the amended complaint states that “Your attorney is Robert
Earl....” (AC Attachment at 1). Thus, there is no allegation of
the “personal involvement” of Attorney Earl.
*7 In any event, as stated above, plaintiff's criminal attorney
does not act under color of state law, and there is no
jurisdiction under section 1983 to sue him. Thus, the amended
complaint must be dismissed as against Attorney Earl for lack
of jurisdiction.
IX. Opportunity to Amend
A. Legal Standards
Generally, when the court dismisses a pro se complaint sua
sponte, the court should afford the plaintiff the opportunity
to amend at least once, however, leave to re-plead may be
denied where any amendment would be futile. Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
Futility is present when the problem with plaintiff's causes of
action is substantive such that better pleading will not cure it.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation
omitted).
B. Application
While this court is recommending dismissal without
prejudice, plaintiff would not be able to amend at this time
based on Heck and based on the impropriety of requesting
release in a civil rights action. No amendment at this time is
available to plaintiff to cure the deficiencies in his complaint.
Therefore, the court is recommending dismissal of some of
the complaint without prejudice, but without the opportunity
to amend at this time.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's request to proceed IFP (Dkt. No.
3) is GRANTED for purposes of filing only, and it is
RECOMMENDED, that the amended complaint be
DISMISSED IN ITS ENTIRETY WITH PREJUDICE
as against the ONONDAGA COUNTY SEX OFFENDER
OFFICE, based upon 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a claim, and it is
RECOMMENDED, that the amended complaint
be DISMISSED IN ITS ENTIRETY WITHOUT
PREJUDICE as against DEFENDANT ROBERT EARL,
ESQ., based on lack of subject matter jurisdiction, and it is
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RECOMMENDED, that the amended complaint be
DISMISSED WITH PREJUDICE against defendant
DENNIS to the extent that defendant Dennis was acting in her
prosecutorial capacity based upon absolute immunity under
28 U.S.C. § 1915(e)(2) (B)(iii), and it is
RECOMMENDED, that the remainder of the complaint
be DISMISSED IN ITS ENTIRETY WITHOUT
PREJUDICE, based upon 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a claim, but without opportunity to amend at
this time, and it is
ORDERED, that the Clerk serve a copy of this Order and
Report-Recommendation on plaintiff by regular mail.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) 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 DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2019 WL 6829046
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Riley v. Taylor
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 5:19-CV-01451
Riley v. Taylor et al
— N.D.N.Y. Nov. 22, 2019 Docket
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Riley v. Taylor
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History (2)
Direct History (2)
1. Riley v. Taylor
2019 WL 6829046 , N.D.N.Y. , Dec. 13, 2019
Report and Recommendation Adopted by
2. Riley v. Taylor
2020 WL 886128 , N.D.N.Y. , Feb. 24, 2020
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Riley v. Taylor
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Kurtz v. Hansell, Not Reported in Fed. Supp. (2021)
2021 WL 1143619
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 1143619
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Shveta Kakar KURTZ, Daniel L. Kurtz, A.K., a
minor child, and M.K., a minor child, Plaintiffs,
v.
David HANSELL, as the Duly Appointed Commissioner
of the New York City Administration for Children's
Services, Division of Child Protection, New York
Comptroller, City of New York, Yscary Rodriguez,
individually and as a caseworker employed by ACS,
Bhojranie Maygoo, as a caseworker employed by ACS,
Eunice Iwenofu, as a caseworker employed by ACS,
Brenda Lawson, as an ACS case manager/supervisor,
Esperanza Sandoval, as a supervisor in the family support
unit employed by ACS, Dr. Peter Fabricant, as a treating
physician and state actor operating under color of law,
Dr. Marie Lupica, treating physician and state actor
operating under color of law, Dr. Ramzi Marwan Shaykh,
as a treating physician, DR. Shari L. Platt, as a treating
physician and state actor operating under color of law,
Dr. Sheena Ranade, as a treating physician, LSW Karen
Glass, as a state actor, Unnamed ACS Workers and
Employees 1–10, Unnamed Employees and Workers of
New York Presbyterian Hospital/Weill Cornell Medical
Center 1–10, Unnamed Workers and Employees of Mt.
Sinai Hospital 1–10, New York Presbyterian Hospital/
Weill-Cornell Medical Center, Mt. Sinai Hospital,
Administration for Children's Services, Defendants.
20 Civ. 3401 (PAE)
|
Signed 03/24/2021
Attorneys and Law Firms
Robert J. Del Col, Smithtown, NY, for Plaintiffs.
Thais R. Ridgeway, New York City Law Department, New
York, NY, Alejandra Rosa Gil, Heidell, Pittoni, Murphy
& Bach, White Plains, NY, Daniel Scott Ratner, Richard
Michael Sullivan, Jr., Heidell, Pittoni, Murphy & Bach, LLP,
Stamford, CT, for Defendants.
OPINION & ORDER
PAUL A. ENGELMAYER, United States District Judge
*1 This case arises from—and challenges conduct by
doctors and government officials in connection with—
child-removal proceedings carried out by the New York
Administration for Children's Services (“ACS”). Plaintiffs
Shveta Kakar Kurtz (“Kakar”) and Daniel Kurtz (“Kurtz,”
and together with Kakar, the “parents”) are the parents of
twin, infant girls, A.K. and M.K., who were born nearly
two months premature. One night while changing A.K.’s
diaper, Kurtz dropped her on the floor of the family's kitchen,
breaking her femur. After the first doctor who examined
A.K. failed to diagnose that injury, the parents took A.K.
to a second hospital, which correctly diagnosed it. Over the
ensuing weeks, after follow-up visits at multiple hospitals,
several medical workers filed reports of suspected abuse or
neglect to ACS. ACS then launched removal proceedings in
New York family court, starting nine months of litigation.
During that time, the parents were either separated from M.K.
and A.K. or had restrictions placed on their contact with them.
Ultimately, after the family moved for summary judgment
in family court, ACS withdrew its removal petition and the
family court dismissed the action with prejudice.
Plaintiffs allege that the removal proceedings resulted from an
unlawful conspiracy between the medical staff who initially
failed to diagnose A.K.’s broken femur, other doctors and
medical institutions, and ACS, aimed at covering up the
first hospital's failure to diagnose A.K.’s femur fracture and
retaliating against the family for its litigiousness. They sue the
City of New York, ACS, two hospitals, and many employees
of each institution under 42 U.S.C. §§ 1983 and 1985, alleging
malicious prosecution, abuse of process, conspiracy, false
imprisonment, and violation of their constitutional rights to
family integrity and freedom of association. They also bring
claims under state law for, inter alia, intentional infliction
of emotional distress (“IIED”), medical malpractice, loss of
consortium and companionship, and defamation.
Before the Court now are four motions to dismiss: three
by groups of private medical professionals (“Medical
Defendants”) and the fourth by the City of New York on
behalf of all municipal employees and entities sued and
served thus far (“Municipal Defendants”). For the reasons that
follow, the Court grants those motions in part and denies them
in part.
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I. Background
A. Factual Background 1
1 This factual account draws from the amended
complaint, Dkt. 55 (“Am. Compl.”). See DiFolco
v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir.
2010) (“In considering a motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6), a
district court may consider the facts alleged in the
complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference
in the complaint.”). For the purpose of resolving the
motion to dismiss under Rule 12(b)(6), the Court
presumes all well-pled facts to be true and draws
all reasonable inferences in favor of plaintiff. See
Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d
Cir. 2012). The Court has also considered publicly
filed documents from the underlying family-court
proceedings, although not for the truth of the
matters asserted in those documents. See Glob.
Network Commc'ns, Inc. v. City of New York, 458
F.3d 150, 157 (2d Cir. 2006) (“A court may take
judicial notice of a document filed in another court
not for the truth of the matters asserted in the
other litigation, but rather to establish the fact
of such litigation and related filings.” (citation
omitted)); Davis v. Whillheim, No. 17 Civ. 5793
(KPF), 2019 WL 935214, at *6 (S.D.N.Y. Feb. 26,
2019) (taking judicial notice of “publicly available
filings, orders, and appeals in the Family Court
system”); Lamont v. Farucci, No. 16 Civ. 7746
(KMK), 2017 WL 6502239, at *1 n.4 (S.D.N.Y.
Dec. 18, 2017) (same). Those include the removal
petition, order of dismissal, and similar documents
submitted by the defendants in connection with the
motions to dismiss.
1. Parties
a. Plaintiffs
*2 Kakar and Kurtz are the biological parents of A.K. and
M.K. Am. Compl. ¶¶ 8–9. A.K. and M.K. are fraternal twins
who were born nearly two months premature, on June 4, 2018.
Id. ¶ 10. Between August 2018 and May 2019, the parents
were named as respondents in child-removal proceedings in
New York family court, in which ACS alleged that they had
abused A.K. and derivatively neglected M.K. Id. ¶¶ 8–10.
b. Defendants
Plaintiffs have sued many people and entities. For clarity, the
Court groups them as they have grouped themselves in filing
motions to dismiss.
i. Municipal Defendants
Plaintiffs have sued ACS employees, ACS itself, the City
of New York (“the City”), and others. 2 David Hansell is
the Commissioner of ACS. Id. ¶ 12. Brenda Lawson is a
director of field operations for ACS and is alleged to have
“made the determination to commence an emergency removal
proceeding” in order to “teach [the parents] a lesson.” Id.
¶ 15. Yscary Rodriguez, Bhojranie Maygoo, and Eunice
Iwenofu are ACS caseworkers. Id. ¶¶ 13–14, 17. Rodriguez
was the primary point of contact between plaintiffs and
ACS, and worked with Maygoo. Id. ¶¶ 13–14. Iwenofu took
over Rodriguez's responsibilities in October 2018. Id. ¶ 17.
Plaintiffs allege that both Rodriguez and Iwenofu disagreed
with ACS's decision to commence removal proceedings. Id.
Lawson supervised Rodriguez. Id. ¶ 15. Esperanza Sandoval
supervised Iwenofu. Id. ¶ 18.
2 Plaintiffs also name the New York Comptroller and
Division of Child Protection as defendants, but do
not allege any facts about them. In any event, as
discussed below, these are not proper parties to this
lawsuit.
ii. Medical Defendants
Weill Cornell Defendants: New York Presbyterian Hospital/
Weill Cornell Medical Center (“Weill Cornell”) is a hospital
on the Upper East Side of Manhattan, where the parents first
took A.K. on the night of her injury because of its proximity
to their home. Id. ¶ 33. Dr. Marie Lupica is an attending
physician there who treated A.K. that night. Id. ¶ 34. Plaintiffs
allege that she negligently failed to diagnose A.K.’s femur
fracture, improperly discharged A.K., and later sought to
cover up that error by reporting the parents to ACS. Id. ¶¶ 34–
35. Dr. Ramzi Marwan Shaykh is a resident at Weill Cornell
who also treated A.K. the same night. Id. ¶ 36. Dr. Shari Platt
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is the director of emergency medicine at Weill Cornell. Id. ¶
37. Although she never saw or treated A.K., she supervises
Dr. Lupica and, after being notified of Dr. Lupica's alleged
misdiagnosis, allegedly conspired with others to cover up that
error. Id.
Mt. Sinai Defendants: A.K. and M.K. were born at Mt. Sinai
Hospital (“Mt. Sinai”), where they remained in the neonatal
intensive care unit (“NICU”) for nearly two months after their
birth. Id. ¶ 49. On the night of A.K.’s injury, the parents took
her to Mt. Sinai after Dr. Lupica discharged her from Weill
Cornell but A.K. continued to be in pain. Id. There, A.K. was
diagnosed with a femur fracture. Id. ¶ 20. Several days later,
after the parents brought A.K. back to Mt. Sinai for a follow-
up visit, she was examined by Dr. Sheena Ranade, a pediatric
orthopedist, who administered additional x-rays to assess a
potential clavicle fracture. Id. ¶¶ 22–24. Dr. Ranade is the co-
author of an article published in the Journal of the American
Academy of Orthopedic Surgeons titled “The Role of the
Orthopedic Surgeon in the Identification and Management of
Non-Accidental Trauma”; plaintiffs allege that Dr. Ranade
was “predisposed” to perceive abuse where there was, in fact,
none. Id. ¶ 58. Dr. Ranade reported the parents to ACS for
suspected abuse or neglect after the August 13, 2018 visit. Id.
¶ 57.
*3 HSS Defendants: Weeks later, the parents took A.K. for
a single follow-up examination at the Hospital for Special
Surgery (“HSS”). Id. ¶ 38. There, she was seen by Dr. Peter
Fabricant. Id. Karen Glass is a social worker at HSS who also
had contact with the parents and A.K. that day. Id. ¶ 41. Dr.
Fabricant later contacted Dr. Platt at Weill Cornell, an alleged
“affiliate” of HSS, to notify her about Weill Cornell's failure
to diagnose A.K.’s femur fracture. Id. ¶¶ 38–39. Glass later
filed a report of suspected abuse to ACS and Dr. Fabricant met
with ACS, Dr. Lupica, and Dr. Ranade on the morning that
ACS ultimately commenced removal proceedings. Id. ¶ 83.
2. The August 8, 2018 Injury
On August 8, 2018, while changing A.K.’s diaper, Kurtz
dropped her onto the kitchen floor. Id. ¶ 47. He and Kakar
then walked her to the emergency room (“E.R.”) at Weill
Cornell, two blocks from their home. Id. They arrived at about
7 p.m.; A.K. spent the several hours in the ER. Id. ¶ 48. There,
Dr. Lupica treated her for “no more than five minutes.” Id.
Weill Cornell conducted a CT scan of A.K.’s head, but not
a full body exam “despite obvious discomfort to her lower
extremities.” Id. Kurtz also “had to urge the resident” to mind
A.K.’s neck, which “was still in obvious pain.” Id. Dr. Lupica
discharged A.K. around midnight. Id.
Once home, the parents noticed that A.K. was in continued
pain and not moving her left leg. Id. ¶ 49. Concerned, they
took her to Mt. Sinai later that night. Id. There, she was
diagnosed with a femur fracture, as well as “healing” and
“calcified” rib fractures, which plaintiffs allege occurred in
the NICU after her premature birth. Id. ¶ 50. She was also
examined by, among others, non-defendant Dr. Katherine
Grimm, a pediatric-abuse specialist, who concluded there was
no evidence of abuse and, on August 9, 2018, discharged
A.K. Id. ¶ 51. On August 10, 2018, the parents took A.K. to
their pediatrician, Dr. Laura Popper, who expressed concern
at Weill Cornell's failure to diagnose A.K.’s broken femur. Id.
¶ 52.
3. August 13, 2018 Follow-Up at
Mt. Sinai and First ACS Report
On August 13, 2018, the parents took A.K. to Mt. Sinai for a
follow-up examination. Id. ¶ 53. There, she was examined by
Dr. Ranade. Id. Dr. Ranade expressed concern that, in addition
to the femur fracture, A.K. might have suffered a clavicle
fracture. Id. ¶¶ 54–55. She also told the parents that she
suspected A.K. might have brittle-bone disease, and advised
them to have A.K. admitted to the E.R. for genetic testing.
Id. ¶¶ 55–56. The parents heeded that recommendation; A.K.
was admitted to the Mt. Sinai E.R. Id. ¶ 56.
However, the parents soon learned that Dr. Ranade had
contacted ACS and that A.K. would not be able to leave the
hospital that day. Id. ¶¶ 56–57. 3 Soon, two detectives and
two ACS caseworkers—Rodriguez and Maygoo—arrived at
Mt. Sinai to speak with the parents. Id. ¶ 61. While A.K.
remained in the hospital, the detectives and caseworkers,
along with the parents, went back to the family's home to
perform an inspection. Id. ¶ 62. There, they spoke with the
family's 24-hour live-in baby nurse, who corroborated Kurtz's
account of how A.K.’s injury had occurred on August 8,
2018. Id. The detectives left, and never contacted the family
again. Id. ¶ 63. ACS's Rodriguez stated that, although she
had few concerns, the matter would have to remain open
for 60 days, during which time she would periodically visit
the home. Id. Between August 14 and 30, 2018, she did so,
without event. Id. ¶ 65. On August 14, 2018, Dr. Grimm
interviewed the parents, conducted further tests, and was left
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with no suspicion of abuse or neglect. Id. ¶ 64. A.K. was then
discharged from Mt. Sinai. Id.
3 Plaintiffs allege that those x-rays did not show
additional fractures or injuries, including to A.K.’s
clavicle, but elsewhere state that the results were
“inconclusive.” Id. ¶¶ 25, 59, 105.
4. August 23, 2018 Follow-Up at HSS
*4 On August 23, 2018, the parents took A.K. for a second
follow-up examination, this time at HSS, where she was
examined by Dr. Fabricant. Id. ¶ 68. He took an x-ray and
concluded that A.K.’s femur was healing well. Id. He also
informed the parents that he was a mandatory reporter and
would have to report the injury to ACS. Id. ¶ 69. After the
parents told him that ACS had already been contacted, Dr.
Fabricant responded that, in that case, he would need only to
access Mt. Sinai's medical records. Id. The parents agreed to
authorize such access, and met with Glass, a social worker at
HSS, to sign a medical release. Id.
5. August 27-29, 2018 Email
Chain and Second ACS Report
On August 27, 2018, Dr. Fabricant wrote Dr. Platt at Weill
Cornell to give her a “heads up” that Weill Cornell had
apparently failed to diagnose A.K.’s injury. Id. ¶ 70. He
asked whether, in fact, the treating doctor had solely focused
on “head trauma,” rather than the broken femur and, if
so, whether it was “perhaps a systems issue that could be
addressed?” Id. Dr. Platt responded, confirming that it was “a
definite miss” and that she had “educated her attending,” i.e.,
Dr. Lupica. Id. ¶ 71.
However, Dr. Platt soon emailed again. In that follow-up,
she forwarded Dr. Lupica's response to her. Dr. Lupica there
claimed that, having reviewed the Mt. Sinai records that
Dr. Platt had apparently sent her, “there was no way that
the baby had that injury when [I] saw him,” given that “I
watched him for 4 hours.” Id. ¶¶ 73–74. 4 Dr. Lupica also
stated that the femur break seemed “as though it required
brute force of pressure to break,” and that “child abuse
seems to be the diagnosis now.” Id. ¶ 75. In response,
HSS social worker Glass emailed back that she “HIGHLY
recommend[ed] for [Weill] Cornell to contact the ACS worker
and share [Dr. Lupica's story].” Id. ¶ 77. Dr. Fabricant agreed,
recommending that Dr. Lupica “talk with the ACS worker.”
Id. ¶ 78.
4 Plaintiffs note that Dr. Lupica, in this email,
misidentified A.K.’s gender. They also allege that
Dr. Lupica's claim to have spent four hours with
A.K. in the E.R. was a lie. Am. Compl. ¶ 74.
On August 28, 2018, Glass contacted Rodriguez and the ACS-
mandated reporter line, filing a report of suspected child abuse
based on the August 8, 2018 injury. Id. ¶ 79. On August
29, 2018, Dr. Platt responded on the email chain, describing
the parents as “dangerous,” thanking Glass and Dr. Fabricant
for “partnering” with Weill Cornell, and asking them to let
her know if they needed to “collaborate” further. Id. ¶ 80.
On August 30, 2018, Dr. Lupica wrote to the email chain,
confirming that she had spoken with an ACS caseworker. Id.
¶ 81.
6. ACS's Investigation and
Commencement of Removal Proceedings
On August 28, 2018, after Glass made her report to ACS,
two ACS caseworkers arrived at the hotel where the parents
were staying while their apartment underwent repairs. Id.
¶ 92. They informed the parents that they were there as a
result of a separate report by Dr. Fabricant. Id. ¶¶ 93–94.
The parents reacted with astonishment, anger, and outrage,
admonishing the caseworkers for announcing themselves as
child-protective services at the hotel reception. Id. ¶ 95.
On August 29, 2018, Rodriguez visited the parents again,
informing them that a family support conference (“FSC”) had
been scheduled for the next morning at 10:30 a.m. 5
5 Plaintiffs allege that FSCs are expected to seek to
maintain intact families and pursue solutions other
than removal. Am. Compl. ¶ 98.
On August 30, 2018, ACS held an FSC, at which the parents,
their family, and many friends testified in support of the
parents. Id. ¶¶ 99–100. It was cut short, however, when
Brenda Lawson, representing ACS, stated that ACS was
recommending removal and intended to take the matter to
family court that afternoon. Id. ¶ 101. Kakar alleges that,
the same morning, she learned from an unidentified source
that Lawson had been “livid” about the parents’ treatment of
ACS's caseworkers at the hotel on August 28, 2018, and had
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been overheard stating, “Who do they think they are? ... Just
because they are rich lawyers.... I will show them.” Id. ¶ 102.
*5 The same day, ACS filed, in New York family court,
a petition to terminate parental rights. 6 The Petition's
addendum, which set forth the Petition's factual basis, stated
that Dr. Ranade had reported that A.K. “presented with
injuries to her collarbone,” and that the x-rays she took “came
back inclusive.” 7 Id. ¶ 105. It also cited Dr. Lupica's claim
that, when she examined A.K. on August 8, 2018, “there
[was] no way that the baby had a leg fracture,” given that
she “was moving her arms and legs,” and that her medical
opinion was that A.K.’s injuries did not occur as Kurtz had
reported. Petition at 6–7. It did not disclose Dr. Grimm's
prior assessment that “this was an unfortunate accident for a
premature baby,” that “both clavicles looked the same” from
the x-rays, and that “no one can testify at this time that this
infant was abused,” despite evidence that Lawson had spoken
with Dr. Grimm twice on August 14, 2018. Am. Compl. ¶ 109;
see id. ¶ 108 (Dr. Grimm reporting that a “clavicle fracture
has not been confirmed by radiology and when I saw the baby,
she lifted both arms spontaneously”).
6 The Amended Complaint characterizes the petition
as an “emergency petition,” but the petition
is not styled as such. The protective order
issued that day, citing “exigent circumstances and
allegations in the petition” and entitled “ORDER
(Directing Temporary Removal of Child-After
Petition Filed),” was issued by a court, after a
preliminary hearing, pursuant to N.Y. Fam. Ct. Act.
§ 1027, which does not provide for emergency
removal. See Dkt. 100 (“Ridgeway Decl.”), Exs. A
(“Petition”), C (“Removal Order”); cf. N.Y. Fam.
Ct. Act § 1024 (“Emergency Removal Without
Court Order”).
7 The Amended Complaint notes that the results
of the August 13, 2018 x-rays were, in fact,
“inconclusive,” not “inclusive.” Am. Compl. ¶¶ 25,
105.
Also on August 30, 2018, the family court, with Judge
Frias-Colon presiding, held a preliminary hearing on the
ACS Petition. Id. ¶ 106. ACS's attorney represented at the
hearing that A.K. “does have a collarbone fracture,” which
had been confirmed by x-rays, despite the above evidence,
allegedly in ACS's possession, to the contrary. Am. Compl.
¶ 106. According to the hearing transcript, doctors Lupica,
Fabricant, and Ranade had met with ACS that morning to,
as plaintiffs characterize it, “press the case” for removal. Id.
¶ 83. After the hearing, the family court issued an order
directing A.K.’s temporary removal from the family home,
because she “has presented with injuries and allegations of
physical abuse were made with no plausible explanation
given.” Removal Order at 1. The court directed that A.K. and
M.K. be temporarily placed with Rahul Kakar, their maternal
uncle, pending the removal proceeding. Id.; Am. Compl. ¶
117.
7. Post-Removal Events
Between August 30 and October 2, 2018, A.K. and M.K.
resided with their uncle on Long Island. Am. Compl. ¶ 117.
The family court then modified its order to allow Kakar's
mother, who moved from India to New York City “on a
moment's notice,” to assume custody of the children while
living in plaintiffs’ home and sleeping on their floor. Id. At
no point were the parents permitted to be alone with either
daughter. Id. ¶ 118.
On September 10, 2018, the parents took A.K. for a follow-
up appointment with Dr. Ranade, accompanied by their live-
in baby nurse. Id. ¶¶ 120, 124. There, they confronted Dr.
Ranade about her “misleading” ACS report; Dr. Ranade
recommended that they see another doctor, but the parents
stated that, given the ACS proceeding, they had no choice
but to remain with her. Id. ¶ 122. After the appointment, Dr.
Ranade reported to ACS that the parents had brought A.K. to
the appointment unsupervised. Id. ¶ 123. The plaintiffs allege
this was wrong, and that the baby nurse waited in the reception
area while the parents met with Dr. Ranade. Id. ¶ 124. On
October 4, 2018, at another follow-up visit with Dr. Ranade,
she ordered x-rays of A.K.’s clavicle to look for “healing
fractures,” which the parents did not authorize Id. ¶ 125.
*6 On October 30, 2018, ACS's Rodriguez and Iwenofu
visited the parents and A.K., and told the parents they did not
agree with their supervisors and “did not believe this was an
abuse case.” Id. ¶¶ 127–28. Yet Iwenofu stated, if the parents
wanted to see the case resolved, they would likely have to
admit to some neglect. Id. ¶ 129. She also stated that she “had
never seen a case discharged without ‘someone taking the
blame.’ ” Id.
On December 4, 2018, the parents gave ACS and the family
court four affidavits—one from Dr. Grimm, one from the
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family's pediatrician, and two from doctors with whom ACS
had consulted “for over a decade”—each concluding that (1)
the femur fracture was consistent with an accidental fall, not
abuse; (2) any rib fractures were consistent with bone fragility
due to premature birth; and (3) there was no “conclusive”
evidence of a clavicle fracture on August 13, 2018. Id. ¶¶ 136–
40. After reviewing these reports, the family court judge's
clerk counseled ACS that it “may want to reconsider its
position.” Id. ¶ 141.
On January 9, 2019, ACS stated that it was seeking to retain
a neutral expert, and if the expert agreed there was no abuse,
they would withdraw the petition. Id. ¶ 155. At a February 4,
2018 hearing, ACS represented that its expert, Dr. Hoffman-
Rosenfeld, had reviewed all of Mt. Sinai's and HSS's medical
records. Id. ¶ 158. But it soon became clear that that statement
was untrue, as ACS had instead sent her the August 27–30,
2018 email chain between the HSS Defendants, Dr. Platt, and
Dr. Lupica, and not other actual medical records. Id. ¶¶ 159–
62.
At a February 6, 2018 hearing, ACS's position began
to soften. It stated that Dr. Hoffman-Rosenfeld “cannot
state physically what happened at this time,” and that she
would need to interview the parents and conduct physical
examinations of A.K. and M.K. Id. ¶ 163. In response, Judge
Frias-Colon remarked that this substantial reversal gave her
“some concern about the decision to have filed this as an
abuse case as opposed to being truly what everyone said from
the beginning which was a tragic accident.” Id. ¶ 167.
On April 10, 2019, the parents moved for summary judgment
in the removal proceeding. Id. ¶ 172. On May 2, 2019,
Dr. Hoffman-Rosenfeld concluded that A.K.’s femur break
“could have resulted from a fall,” that the “rib fractures are
consistent with fractures related to metabolic bone disease of
prematurity,” that the healing timeline comported with their
occurrence before discharge from the NICU, and that, after
“review of the radiology, no clavicle fracture was identified.”
Id. ¶ 175.
On May 7, 2019, ACS withdrew its Petition. Id. ¶ 176. The
same day, the family court dismissed it with prejudice. Id.
B. Procedural History
On May 1, 2020, plaintiffs filed the Complaint, Dkt. 1, and on
May 5, 2020, the Amended Complaint. Dkt. 55. On August
14, 2020, the Mt. Sinai Defendants filed a motion to dismiss,
Dkt. 89, and a memorandum of law in support, Dkt. 89-1
(“Mt. Sinai Mem.”). The same day, the HSS Defendants filed
a motion to dismiss, Dkt. 93, and a memorandum of law in
support, Dkt. 97 (“HSS Mem.”). On August 18, 2020, the
Municipal Defendants filed a motion to dismiss, Dkt. 99,
along with a memorandum of law in support, Dkt. 101 (“City
Mem.”), and the declaration of Thais. R. Ridgeway, Esq., with
supporting exhibits.
On August 19, 2020, the Court issued an order directing
plaintiffs either to amend their complaint or oppose the
pending motions to dismiss, and noting that no further
opportunities to amend would be given. Dkt. 102. On
September 16, 2020, the Court granted the Municipal
Defendants’ request that their motion also apply to the claims
against Commissioner Hansell, who had not been served at
the time they filed their motion. Dkt. 110. On September
23, 2020, the Weill Cornell defendants filed a motion to
dismiss, Dkt. 112, and a memorandum of law in support, Dkt.
114 (“Weill Cornell Mem.”). The same day, the Court again
notified plaintiffs of their right to amend and stated that no
further opportunities to do so would ordinarily be granted.
Dkt. 115.
*7 On November 13, 2020, plaintiffs opposed the motions
to dismiss. Dkt. 123 (“Pl. Opp'n”), and filed the declaration of
Robert Del Col, Dkt. 123-1 (“Del Col Decl.”), and exhibits.
On December 10, 2020, the HSS Defendants and Weill
Cornell Defendants replied. Dkts. 126 (“HSS Reply”), 129
(“Weill Cornell Reply”). On December 29, 2020, the Mt.
Sinai defendants replied. Dkt. 133 (“Mt. Sinai Reply”). On
January 13, 2020, the Municipal Defendants replied, Dkt. 136
(“City Reply”).
II. Applicable Legal Standards
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must plead “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 is facially plausible “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). A complaint is properly dismissed where, as a
matter of law, “the allegations in a complaint, however true,
could not raise a claim of entitlement to relief.” Twombly, 550
U.S. at 558. When resolving a motion to dismiss, the Court
must assume all well-pleaded facts to be true, “drawing all
reasonable inferences in favor of the plaintiff.” Koch, 699
F.3d at 145. That tenet, however, does not apply to legal
conclusions. See Iqbal, 556 U.S. at 678. Pleadings that offer
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only “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S.
at 555.
III. Discussion
Plaintiffs—the parents and their minor daughters—claim
here that ACS's child-removal action, and the reports of
child abuse by the Medical Defendants that prompted it,
resulted from an elaborate conspiracy between all named
defendants to deprive plaintiffs of their constitutional rights.
The Medical Defendants, they allege, sought to cover up
Weill Cornell's failure to diagnose A.K.’s femur fracture by
concocting spurious reports of child abuse that shifted blame
away from Weill Cornell. And ACS, they allege, relying
on those false reports and lacking probable cause, launched
removal proceedings that it was ultimately forced to abandon,
in retaliation for the parents’ litigiousness and hostility toward
ACS's caseworkers. The result, they allege, was a nine-month
ordeal in which the parents were forcibly separated from
their newborn twin daughters and, once reunited, subjected to
unjustified restrictions on their association with them.
Based on this version of events, plaintiffs bring three sets
of federal claims: under § 1983, for malicious prosecution,
abuse of process, conspiracy, intentional deprivation of
constitutional rights, and false imprisonment, against all
defendants; under § 1985, for conspiracy, against all
defendants; and for the deprivation of constitutional rights
against the City of New York, based on, inter alia, an
alleged custom and practice of commencing child-removal
proceedings without probable cause, actionable under Monell
v. Department of Social Services of City of New York, 436
U.S. 658 (1978). 8 Plaintiffs also bring state-law claims for
malicious prosecution, abuse of process, loss of consortium
and companionship, and IIED, against all defendants; for
medical malpractice against the Weill Cornell Defendants and
Dr. Ranade; and for defamation against Dr. Platt, Dr. Ranade,
and Glass.
8 Confusingly, plaintiffs purport to bring a Monell
claim against all defendants. The Monell doctrine,
however, relates uniquely to § 1983 claims against
municipal entities.
*8 In response, the Medical Defendants, across three
separate motions to dismiss, argue that the Amended
Complaint does not plausibly allege either that they are
state actors or that they conspired with any state actor, and
so they cannot be sued under § 1983. They also argue
that, even if state actors, they are immune to liability for
reporting suspected child abuse in their roles as mandatory
reporters of such abuse. Finally, they contend that plaintiffs
fail to plausibly allege the elements of any of their causes of
action. The Municipal Defendants, too, urge dismissal of all
claims against them. 9 First, they assert that several defendant
entities are not proper parties to this action. Second, they
argue that none of plaintiffs’ causes of action states a claim.
9 With a narrow exception, these defendants do not
argue that they are entitled to qualified immunity.
Their opening brief cursorily referenced such a
defense, solely as to plaintiffs’ conspiracy claims,
but this argument was not developed until their
reply—and, even then, only in a single paragraph.
See City Mem. at 19; City Reply at 6. “It is well
established, of course, that arguments first raised
in reply briefs are forfeited or waived.” Chevron
Corp. v. Donziger, 325 F. Supp. 3d 371, 379
(S.D.N.Y. 2018). And qualified immunity provides
an affirmative defense, as to which defendants have
the burden of proof. Se McKenna v. Wright, 386
F.3d 432, 434 (2d Cir. 2004). The Court thus will
not consider these arguments on the present motion
to dismiss.
The Court first addresses whether plaintiffs have improperly
sued certain non-suable entities. Then, the Court considers
plaintiffs’ federal claims under §§ 1983 and 1985. Finally, the
Court addresses plaintiffs’ state-law claims.
A. Proper Parties
The Municipal Defendants first argue that plaintiffs’ claims
against ACS, the New York Comptroller, and the Division of
Child Protection must be dismissed because, by statute, they
are not suable entities. That is correct. See N.Y. City Charter,
Ch. 17 § 396 (“All actions and proceedings for the recovery
of penalties for the violation of any law shall be brought in the
name of the city of New York and not in that of any agency,
except where otherwise provided by law.”); Graham v. City of
New York, 869 F. Supp. 2d 337, 348 (E.D.N.Y. 2012) (“ACS
is an agency of the City of New York and cannot be sued
independently.”); Emerson v. City of New York, 740 F. Supp.
2d 385, 395–96 (S.D.N.Y. 2010) (same). Plaintiffs are silent
in the face of this motion. See Romeo & Juliette Laser Hair
Removal, Inc. v. Assara I LLC, No. 08 Civ. 442 (TPG), 2014
WL 4723299, at *7 (S.D.N.Y. Sept. 23, 2014) (“At the motion
to dismiss stage, where review is limited to the pleadings, a
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plaintiff abandons a claim by failing to address the defendant's
arguments in support of dismissing that claim.”).
Accordingly, the Court dismisses ACS, the New York
Comptroller, and the Division of Child Protection. 10
10 The latter entity, the Division of Child Protection,
is named (although not discussed) in the Amended
Complaint. Plaintiffs appear not to have served
that entity, despite the Court's having several
times extended the deadline to effect service,
see Dkts. 106, 119, which has now passed. This
independently warrants its dismissal. See Fed. R.
Civ. P. 4(m); Zapata v. City of New York, 502
F.3d 192, 197 (2d Cir. 2007) (dismissal under
Rule 4(m) appropriate even where plaintiff would
be time-barred from bringing renewed action).
Contemporaneous with this decision, the Court is
issuing an order as to plaintiffs’ claims against
other non-served defendants.
B. Federal Claims
1. State Action
At the threshold, each group of Medical Defendants argues
that they cannot be liable under § 1983 because they are
not state actors. See Mt. Sinai Mem. at 5–9; HSS Mem. at
11–15; Weill Cornell Mem. at 8–12. Plaintiffs concede that,
as a matter of law, the mere reporting of a crime or child
abuse to the authorities does not typically rise to the level of
state action. But, they argue, the Medical Defendants went
beyond reporting, and became active participants in ACS's
child-removal proceedings, so as to make them state actors
subject to liability under § 1983. On this issue, the Court holds
with the Medical Defendants.
*9 “An essential element of a § 1983 claim is that the
defendant act under color of state law.” Mortimer v. City of
New York, No. 15 Civ. 7186 (KPF), 2018 WL 1605982, at
*12 (S.D.N.Y. Mar. 29, 2018). Section 1983 thus generally
applies to public officers, not private citizens. However, in
certain circumstances, private actors can be considered to
have acted “under color of state law.” See Ciambriello v.
County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002). For
purposes of § 1983,
the actions of a nominally private entity are attributable
to the state when: (1) the entity acts pursuant to the
“coercive power” of the state or is “controlled” by the
state (“the compulsion test”); (2) when the state provides
“significant encouragement” to the entity, the entity is a
“willful participant in joint activity with the [s]tate,” or
the entity's functions are “entwined” with state policies
(“the joint action test” or “close nexus test”); or (3) when
the entity “has been delegated a public function by the
[s]tate” (“the public function test”).
Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d
255, 257 (2d Cir. 2008) (quoting Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001));
see Ciambriello, 292 F.3d at 324 (“[A] private actor acts
under color of state law when the private actor ‘is a willful
participant in joint activity with the state or its agents.’
” (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 152
(1970))).
With near uniformity, courts in this Circuit have applied these
principles to hold that “reporting suspected child abuse alone
does not constitute state action.” J.C. v. Mark Country Day
Sch., No. 03 Civ. 1414 (DLI) (WDW), 2007 WL 201163, at
*3 (E.D.N.Y. Jan. 23, 2007) (collecting cases); Topolski v.
Wrobleski, No. 13 Civ. 872 (LEK), 2013 WL 5652724, at *1–
3 (N.D.N.Y. Oct. 16, 2013) (allegations that private actors
falsely reported child abuse in effort to commence child-
removal proceedings insufficient to plead state-actor status);
Ogunbayo v. Montego Med. Consulting P.C., No. 11 Civ. 4047
(NGG) (CLP), 2012 WL 6621290, at *12 (E.D.N.Y. Sept.
18, 2012) (report of suspected child abuse not state action
where no allegation that “ACS influenced the substance of the
medical defendants’ evaluation”), adopted as modified, 2012
WL 6625921 (E.D.N.Y. Dec. 19, 2012); Mione v. McGrath,
435 F. Supp. 2d 266, 272 (S.D.N.Y. 2006) (hotel employees
who reported suspected child abuse to authorities, leading
to initiation of neglect proceedings, not state actors under §
1983); Storck v. Suffolk Cnty. Dep't of Soc. Servs., 62 F. Supp.
2d 927, 941 (E.D.N.Y. 1999) (doctors who “reported their
suspicions of child abuse pursuant to a state statute” not state
actors); Deckon v. Chidebere, No. 93 Civ. 7965 (LMM), 1995
WL 555684, at *4 (S.D.N.Y. Sept. 19, 1995), aff'd, 101 F.3d
1393 (2d Cir. 1996); cf. Est. of Keenan v. Hoffman-Rosenfeld,
No. 16 Civ. 0149 (SFJ) (AYS), 2019 WL 3410006, at *19
(E.D.N.Y. July 29, 2019) (holding, at summary judgment, that
hospital defendants were not state actors where they allegedly
“ ‘conspired with each other to advance a false narrative and
took advantage of the plainly incompetent [Child Protective
Services] workers’ to cause the Protective Proceedings to be
brought against the Parents”), aff'd, 833 F. App'x 489 (2d Cir.
2020); Estiverne v. Esternio-Jenssen (“Estiverne III”), 910 F.
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Supp. 2d 434, 444 (E.D.N.Y. 2012) (holding, after trial, doctor
not state actor where she did not “play[ ] any role—other
than to provide her medical opinion—in the decision to file
a petition for removal”).
*10 The Medical Defendants argue that they similarly were
private actors who simply reported suspected abuse to ACS.
Plaintiffs respond that the facts alleged show the Medical
Defendants to have gone beyond their role as mandatory
reporters and “exert[ed] undue influence to obtain a desired
outcome.” Pl. Opp'n at 24. They rely on the following
allegations. First, Dr. Ranade had x-rays of A.K.’s clavicle
taken on August 13, 2018, at the follow-up visit during which
she contacted ACS, after admitting A.K. to the E.R. for the
ostensible purpose of taking genetic tests. Am. Compl. ¶
59. Second, Glass, Dr. Fabricant, Dr. Lupica, and Dr. Platt
engaged in discussions over email that ostensibly reflect a
conspiracy to falsely report child abuse to ACS. In that thread,
Dr. Fabricant first wrote to Dr. Platt to notify her that Weill
Cornell appeared to have failed to diagnose A.K.’s broken
femur and to ask if that failing was indicative of any “systems
issue” that could be remedied. Id. ¶ 70. Dr. Platt responded
that “it was a definite miss” and that she had “educated” Dr.
Lupica. Id. ¶ 71. Then, however, Dr. Lupica responded to Dr.
Platt (in a response that Dr. Platt forwarded to Dr. Fabricant
and Glass) that she did not believe A.K. had had those injuries
when she saw “him,” and that she now suspected abuse. Id.
¶¶ 72–75. Apparently believing Dr. Lupica's story, the others
then agreed that she should report to ACS; then, she and others
did so. Id. ¶¶ 77–81. Third, without supporting allegations,
plaintiffs contend that Dr. Fabricant, Dr. Ranade, and Dr.
Lupica met with ACS on August 30, 2018, to “press the case
for [A.K.] and [M.K.] to be removed from their parents’ care,”
and that ACS filed its removal petition the same day. Id. ¶
83. Last, they state that on September 10, 2018, Dr. Ranade
falsely reported the parents for bringing A.K. to see her alone,
and on October 4, 2018, took unauthorized investigatory x-
rays. Id. ¶¶ 120–25.
These allegations do not make any of the Medical Defendants
state actors.
As to Dr. Fabricant, Dr. Platt, and Glass, the Amended
Complaint does not allege more than that they, apparently
believing Dr. Lupica's story, decided it was appropriate to
report the suspected abuse to ACS, as required under N.Y.
Soc. Serv. Law § 413. In fact, the Amended Complaint largely
depicts Dr. Fabricant and Dr. Platt as open to recognizing,
and addressing, Weill Cornell's lapse in failing to diagnose
A.K.’s fracture. See, e.g., Am. Compl. ¶¶ 70–71. Glass merely
reported to ACS, see id. ¶ 79, and Dr. Platt does not even
appear to have done that much. And Fabricant's meeting with
ACS—along with Dr. Lupica and Dr. Ranade—on August 30,
2018, which is described only in vague terms in the Amended
Complaint, as alleged did not entail more than furnishing ACS
with a medical assessment based on his observations of A.K.
and the parents. See id. ¶ 83. Fabricant is not alleged to have
urged ACS to take specific action. The Amended Complaint
states that, at that meeting, Fabricant “press[ed] the case” for
removal, but that conclusory allegation is unsupported by any
concrete facts. It cannot be relied upon for purposes of this
motion. Id.
The allegations about Dr. Lupica, taken as true, are of a
different character. She is alleged to have lied about A.K.’s
condition at the time she examined A.K. on August 8, 2018,
with the goal of shifting attention from her errant diagnosis,
and the consequence of giving the false diagnosis of a later
act of child abuse. According to the Amended Complaint,
Dr. Lupica's statement that A.K. could not possibly have had
a femur fracture when she saw her on August 8, 2018, was
deliberately false. See id. ¶ 75. Although some allegations as
to this act are conclusory, see, e.g., id. (“This was a slanderous
fiction made up by Defendant Lupica”), the overall facts
alleged as to this point are concrete enough to make the
parents’ claim of such a falsehood plausible. For example,
the Amended Complaint alleges that, despite only seeing
A.K. for five minutes on August 8, 2018, Dr. Lupica later
falsely reported spending four hours with her. Id. ¶ 74. And
although A.K. is female, Dr. Lupica stated that she watched
“him” for that entire four-hour period, calling into doubt her
claim of such a long, or of an attentive, observation. Id.
Moreover, the circumstances of the email exchange—that Dr.
Lupica's superior, Dr. Platt, had emailed her to “educate” her
as to her significant “miss”—provides a plausible motive for
Dr. Lupica to dissemble: to cover up her own malpractice.
Claiming that A.K.’s femur had not been broken when she
examined the child deflected blame and changed the narrative
from a faulty diagnosis to a later act of child abuse. See, e.g.,
id. ¶ 75. The Amended Complaint's allegation is thus well-
pled that Dr. Lupica falsely claimed that A.K.’s injuries were
not present when she examined her on August 8, 2018, and
that the parents’ account of how such injuries occurred was
inconsistent with her diagnosis.
*11 But this falsehood, while exposing Dr. Lupica to
potential liability under state law, see infra pp. 46–47,
does not make her a state actor under § 1983. See, e.g.,
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Moreno v. Town of Greenburgh, No. 13 Civ. 7101 (VB),
2014 WL 3887210, at *3 (S.D.N.Y. June 9, 2014) (no
state action where defendant provides “false and misleading”
information to prosecutors “even if the information provided
is deliberately false”); Rodriguez v. Winski, 973 F. Supp. 2d
411, 429 (S.D.N.Y. 2013) (“[E]ven assuming that [defendant]
had deliberately provided false information to police, such
provision alone is not sufficient” to make him a state actor);
Vazquez v. Combs, No. 04 Civ. 4189 (GEL), 2004 WL
2404224, at *4 (S.D.N.Y. Oct. 22, 2004) (“But merely filing
a complaint with the police, reporting a crime, requesting
criminal investigation of a person, or seeking a restraining
order, even if the complaint or report is deliberately false,
does not give rise to a claim against the complainant for
a civil rights violation.” (emphasis added)). Rather, “one's
motivation is irrelevant to the determination of whether one is
a state actor.” Shapiro v. Goldman, No. 14 Civ. 10119 (NRB),
2016 WL 4371741, at *11 (S.D.N.Y. Aug. 15, 2016) (quoting
Young v. Suffolk County, 705 F. Supp. 2d 183, 196 (E.D.N.Y.
2010)). Indeed, in a similar context, a court in this District
has held that doctor not a state actor under § 1983 even
though he had been hired by ACS in connection with a neglect
proceeding and “knowingly provided false information to
ACS.” Emanuel v. Griffin (“Emanuel I”), No. 13 Civ. 1806
(JMF), 2013 WL 5477505, at *5–6, 7 (S.D.N.Y. Oct. 2, 2013).
Thus, even taking as true plaintiffs’ allegation that Dr. Lupica
scurrilously lied about A.K.’s injuries to cover up her failure
to diagnose A.K.’s broken femur, that does not show that she
acted under color of state law.
Finally, as to Dr. Ranade, plaintiffs argue that her reporting
of suspected abuse or neglect, taking of x-rays, and follow-
up reports to ACS make her a state actor because she
became “part of the reporting and enforcement machinery”
of the state. See Pl. Opp'n at 24 (quoting Estiverne v.
Esternio-Jenssen (“Estiverne II”), 833 F. Supp. 2d 356,
367–68 (E.D.N.Y. 2011)). For the reasons above, Dr.
Ranade's reporting, both before and after August 13, 2018,
does not make her a state actor. That is so even though
she had multiple contacts with ACS. See, e.g., Est. of
Keenan, 2019 WL 3410006, at *19 (“Additional input and
updates from the Northwell Defendants as CPS's source for
medical information regarding Lana's case, which presented a
dynamic situation, does not morph the Northwell Defendants
from private actors into persons or entities acting under color
of state law[.]”). As to Dr. Ranade's admission of A.K. to the
E.R. on August 13, 2018, courts have recognized that private
medical entities’ detention of children, for the purposes of
conducting abuse investigations, can sometimes amount to
state action. See, e.g., Kia P. v. McIntyre, 235 F.3d 749, 756–
57 (2d Cir. 2000) (finding state action based on hospital's
“discrete and distinguishable role in the complex relationship
among the State, the parent and the child in determining the
safety and propriety of releasing [a child] to the care of her
mother”); J.C., 2007 WL 201163, at *2–3 (discussing Kia P.
and finding no state action where school reported suspected
abuse, but did not detain child). But plaintiffs’ § 1983 claims
do not focus on A.K.’s brief, August 13, 2018 stay at Mt. Sinai
pending ACS's investigation. And even were Dr. Ranade
considered a state actor with respect to that isolated incident,
that would not convert her other actions—including making
reports to ACS—into state action. See Kia P., 235 F.3d at 757
(hospital was state actor only as to period where it lacked
medical reason for detaining child). Finally, that Dr. Ranade
took unauthorized x-rays on October 4, 2018, allegedly to
check for “healing fractures,” does not make her a state actor.
See Am. Compl. ¶ 125. Plaintiffs do not plead that Dr. Ranade
ever reported the results of those x-rays to ACS, or that they
had anything to do with the removal proceedings that, by then,
had been pending for several months.
Nor does the Amended Complaint plausibly allege that the
Medical Defendants participated in a § 1983 conspiracy with
ACS. See Ciambriello, 292 F.3d at 324–25 (private actors
may be liable under § 1983 where plaintiffs show “(1) an
agreement between a state actor and a private party; (2) to
act in concert to inflict an unconstitutional injury; and (3) an
overt act done in furtherance of that goal causing damages”).
Plaintiffs rely on the email thread between Glass and Drs.
Fabricant, Platt, and Lupica to establish this conspiracy.
See Pl. Opp'n at 12–14 (discussing Am. Compl. ¶¶ 69–
82). But even assuming those communications established
an agreement between those individuals to act unlawfully—
rather than a conversation in which others were persuaded
in good faith by Dr. Lupica's allegedly false claim that her
original diagnosis had been correct—plaintiffs do not allege
that ACS participated in that discussion. The principal alleged
communications between ACS and the Medical Defendants
were: (1) the reports of suspected child abuse reviewed above;
and (2) the August 30, 2018 meeting between Lawson at ACS
and Drs. Ranade, Fabricant, and Lupica. As to the former,
such reporting cannot establish a § 1983 conspiracy, even if
the reporting were false. See, e.g., Rodriguez, 973 F. Supp. 2d
at 429 (“[E]ven assuming that Mr. Morrissey had deliberately
provided false information to police, such provision alone is
not sufficient to form the basis of a conspiracy claim.”). As to
the latter, the Amended Complaint lacks concrete allegations,
beyond the fact of this meeting, to show an agreement
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between those defendants at any point. Its allegations on
this point are conclusory. See Am. Compl. ¶ 114 (“Plaintiffs
allege that Defendant Lawson was complicit in the ‘Weill
Cornell/Ranade/HSS conspiracy’ ” (emphasis removed)). In
fact, the only concretely pled communication from ACS to
any private defendant is ACS's report to Glass that “there was
no reason to remove [A.K.] ... as the [Parents’] story was
consistent with injuries as reported by Mt. Sinai.” Id. ¶ 77.
Instead, the Amended Complaint alleges that, after receiving
additional reports of suspected child abuse, and meeting
with the reporting doctors, ACS independently decided to
commence removal proceedings. 11 That ACS did so after
receiving those reports, even if those reports were false, does
not plausibly suggest any conspiracy.
11 In opposition, plaintiffs rely on a single case. See
Pl. Opp'n at 17–19 (discussing Estiverne II, 833
F. Supp. 2d at 356–57). But it is far afield. There,
plaintiffs sought to hold a single doctor—the head
of a hospital's “child protective services team”—
liable under § 1983 because she had been “the
driving force behind ACS's decision to initiate
removal proceedings.” Estiverne II, 833 F. Supp.
2d at 369–70. The supporting evidence was that
the doctor had “recommended removal of [the
child], that she diagnosed [the child's] injuries as
consistent with being ‘grabbed and shaken,’ that if
she had not made such a diagnosis, Infant Plaintiffs
would not have been removed from their home, that
ACS always follows the recommendations of [this
doctor], and, perhaps most importantly, that ACS
made the decision to file a petition ‘in unison’ with
[the doctor] and the [hospital's] Child Protection
Team.” Id. at 369. Here, plaintiffs do not allege,
except conclusorily, that any Medical Defendant
recommended removal, that ACS “always,” or
has ever, followed any of their recommendations,
or that—aside from the meeting on August 30,
2018—ACS decided to file a removal petition “in
unison” with them. In fact, the Amended Complaint
alleges that ACS, far from being driven by any
Medical Defendant, had a preexisting motive to
seek the children's removal. See Am. Compl. ¶¶
110–15. And the removal petition belies that any
Medical Defendant urged removal. See Petition at
6–7 (basing removal petition solely on medical
assessments by Medical Defendants); see also
Estiverne III, 910 F. Supp. 2d at 444 (finding, after
trial, doctor not a state actor because ACS, not she,
decided to petition for removal and doctor provided
only medical opinion). Estiverne is thus inapposite.
*12 Accordingly, the Amended Complaint does not
plausibly allege any Medical Defendant to have been a state
actor. The Court thus dismisses the § 1983 claims against
these defendants. 12 The Court next turns to plaintiffs’ federal
claims against persons and entities which undisputedly were
state actors.
12 Inexplicably, the Amended Complaint also names
Dr. Shaykh as a defendant in all six federal
claims, even though its only allegation is that
he, like Dr. Lupica, failed to diagnose A.K.’s
femur fracture. See Am. Compl. ¶¶ 36, 287–
301. There is no allegation that Dr. Shaykh ever
spoke with anyone at ACS, had any contact
with any government official, or took any action
conceivably supporting § 1983 liability of any kind.
The § 1983 claims against him are also therefore
dismissed. The Amended Complaint's grapeshot
approach—casting wide claims of illegality well
beyond what the facts could remotely bear, as
exemplified by the senseless inclusion of Dr.
Shaykh as a § 1983 defendant—is regrettable. The
Court expects more responsible lawyering as the
case moves forward.
2. Malicious Prosecution
To prevail on a § 1983 claim for malicious prosecution, “a
plaintiff must show a violation of his rights under the Fourth
Amendment, and must establish the elements of a malicious
prosecution claim under state law.” Manganiello v. City of
New York, 612 F.3d 149, 160–61 (2d Cir. 2010) (citations
omitted). “To establish a malicious prosecution claim under
New York law, a plaintiff must prove (1) the initiation or
continuation of a criminal proceeding against plaintiff; (2)
termination of the proceeding in plaintiff's favor; (3) lack
of probable cause for commencing the proceeding; and (4)
actual malice as a motivation for defendant's actions.” Stampf
v. Long Island R.R., 761 F.3d 192, 198 (2d Cir. 2014) (quoting
Manganiello, 612 F.3d at 161). Under § 1983, state “tort
law serves only as a source of persuasive authority rather
than binding precedent in defining these elements.” Lanning
v. City of Glens Falls, 908 F.3d 19, 25 (2d Cir. 2018). A
plaintiff must also show “a seizure or other perversion of
proper legal procedures implicating [his] personal liberty and
privacy interests under the Fourth Amendment.” Id. at 24
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(quoting Washington v. County of Rockland, 373 F.3d 310,
316 (2d Cir. 2004)).
a. Civil vs. Criminal Proceedings
Most commonly, a claim for malicious prosecution arises
from a criminal proceeding. The HSS Defendants thus argue
that plaintiffs do not state a claim, because the family court
proceeding was civil and plaintiffs have not pled “special
damages.” See HSS Mem. at 19. The Second Circuit has
stated, however, that “our case law does not forbid a §
1983 malicious prosecution claim premised on a civil or
administrative proceeding.” Washington, 373 F.3d at 317.
To bring a malicious prosecution claim arising from a civil
action in general, a plaintiff must make “a showing of some
interference with plaintiff's person or property ... by the use of
such provisional remedies as arrest, attachment, replevin or
injunction, ... or other burden imposed on plaintiff beyond the
ordinary burden of defending a law suit.” McCaul v. Ardsley
Union Free Sch. Dist., No. 11 Civ. 5586 (VB), 2012 WL
1898897, at *3 (S.D.N.Y. May 3, 2012), aff'd, 514 F. App'x 1,
4 (2d Cir. 2013) (summary order). Relevant here, the Circuit
has noted “that the law in our Circuit is unsettled as to whether
child removal proceedings can give rise to a federal claim
for malicious prosecution of a parent.” Walker v. City of New
York, 621 F. App'x 74, 76 (2d Cir. 2015) (summary order);
see also McCaul, 514 F. App'x at 4–5 (discussing without
resolving whether neglect proceeding could give rise to a
malicious prosecution claim).
*13 Absent definitive Circuit guidance, the weight of
authority suggests that the removal of a child from her parents,
via civil family court proceedings, implicates sufficient
constitutional interests to support a malicious prosecution
claim. See, e.g., Cornejo v. Bell, No. 04 Civ. 341 (BMC),
2008 WL 5743934, at *12 (E.D.N.Y. May 19, 2008)
(“[T]he removal of Cornejo's son is sufficient to meet that
threshold.”), aff'd, 592 F.3d 121 (2d Cir. 2010); Providencia
V. v. Schutlze, No. 02 Civ. 9616 (LTS), 2007 WL 1582996, at
*5 n.3 (S.D.N.Y. May 31, 2007) (“[T]he removal of Plaintiffs’
son is sufficient to meet the threshold for applicability
of this doctrine.”) (collecting cases); Yuan v. Rivera, 48
F. Supp. 2d 335, 349 (S.D.N.Y. 1999) (“[D]epriving Ms.
Chi of the custody of her children for several months
reaches this threshold.”). But see Walker v. City of New
York, 63 F. Supp. 3d 301, 317 n.12 (E.D.N.Y. 2014) (“It
is likely that no plaintiff in this action can even state a
claim for a malicious prosecution as the ‘Adult Plaintiffs
have not been seized, and Infant Plaintiffs have not been
prosecuted.’ ” (quoting Estiverne II, 833 F. Supp. 2d at
380)). Here, A.K. and M.K. were removed from their parents’
custody for more than a month, and the parents’ access to
their children was highly restricted for eight more months.
That impingement is substantial enough to support a claim
for malicious prosecution. Accordingly, the Court will not
dismiss plaintiffs’ § 1983 malicious prosecution claim solely
because it arises from a civil proceeding.
b. Initiation of Proceedings
The Municipal Defendants do not dispute that they initiated
proceedings against the parents. They briefly contend that
the Amended Complaint erroneously attributes prosecutorial
decision-making to Brenda Lawson. City Mem. at 12;
City Reply at 9–10. But “individuals other than the agent
who actually prosecutes the action can be held liable for
malicious prosecution.” Emanuel I, 2013 WL 5477505, at *7.
Such liability can exist when the non-prosecuting individual
“played an active role in the prosecution, such as giving
advice and encouragement or importuning the authorities to
act.” Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 217 (2d
Cir. 2000) (citation omitted). Here, the Amended Complaint
plausibly alleges that Lawson recommended removal and
caused the removal action to be commenced. See, e.g., Am.
Compl. ¶¶ 101–02, 110–14. Thus, plaintiffs have plausibly
pled that she, and potentially other ACS caseworkers, were
among those who initiated the proceedings.
c. Favorable Termination
Under § 1983, unlike New York law, “[p]roceedings are
‘terminated in favor of the accused’ only when their final
disposition is such as to indicate the accused is not guilty.”
Lanning, 908 F.3d at 26 (quoting Singleton v. City of New
York, 632 F.2d 185, 193 (2d Cir. 1980)). “A termination is
not favorable to the accused ... if the charge is withdrawn or
the prosecution abandoned pursuant to a compromise with the
accused.” Rothstein v. Carriere, 373 F.3d 275, 286 (2d Cir.
2004) (citation omitted).
The Municipal Defendants argue that, because ACS withdrew
its petition and the parents consented to that withdrawal, the
action was “abandoned pursuant to a compromise,” leaving
the guilt or innocence undetermined. City Mem. at 9 (citing
Rothstein, 373 F.3d at 286). In their reply, they also argue
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that ACS's withdrawal was in the “interest of justice,” and
so cannot qualify as favorable termination. See Lanning, 908
F.3d at 28–29 (“[W]here a dismissal in the interest of justice
‘leaves the question of guilt or innocence unanswered[,] ...
it cannot provide the favorable termination required as the
basis for [that] claim.” (quoting Hygh v. Jacobs, 961 F.2d 359,
367–68 (2d Cir. 1992)); see Singer v. Fulton Cnty. Sheriff, 63
F.3d 110, 118 (2d Cir. 1995). Plaintiffs respond that, as pled,
there was no compromise, and that ACS withdrew its petition
because it lacked evidence of liability. The Court holds with
plaintiffs.
First, neither the Amended Complaint nor the cognizable
records of the family court proceedings reflect any
compromise on plaintiffs’ part. Rather, as pled, after plaintiffs
produced evidence of their innocence of child abuse, see
Am. Compl. ¶¶ 136–41, and moved for summary judgment,
id. ¶ 172, and after ACS's own expert concluded that the
facts on which the removal petition had been based could
not be confirmed, id. ¶¶ 174–75, ACS moved to withdraw its
case against the parents, with prejudice, id. ¶ 176; see Del
Col Decl., Ex. 2 (“Withdrawal Tr.”) at 2–3. In that context,
plaintiffs’ consent to ACS's dismissal does not bespeak a
lack of favorable termination. As pled, plaintiffs could not
have received a more favorable resolution. In fact, at the
hearing on ACS's petition to withdraw its removal action,
its lawyer embraced ACS's experts’ conclusion as meriting
dismissal. Withdrawal Tr. at 3 (“When we filed this petition
we do believe that we had a basis to file, but based on the
medical report that was provided to counsel and Your Honor's
Court Attorney yesterday, we were able to speak with our
independent expert. And after she reviewed all documents
we, at this time, do believe that it would be—[t]hat we are
asking to withdraw the petition.”). These statements show, “in
so many words,” that plaintiffs were entitled to a dismissal on
the merits—not that the withdrawal reflected a compromise
or settlement. McKenzie v. City of New York, No. 17 Civ. 4899
(PAE), 2019 WL 3288267, at *14 (S.D.N.Y. July 22, 2019);
see Mortimer v. Wilson, No. 15 Civ. 7186 (KPF), 2020 WL
3791892, at *11 (S.D.N.Y. July 7, 2020) (denying summary
judgment to defense where “the dismissal was because the
prosecution determined that it would not be able to prove that
C.S. was guilty of the charged crimes”).
*14 Second, the Municipal Defendants rely on Lanning
to suggest that a “dismissal in the interest of justice ...
preclude[s] a finding that the neglect proceeding was
‘terminated in Plaintiffs’ favor.’ ” City Reply at 3. But that
case is distinct. It involved a procedural dismissal “in the
interest of justice” under N.Y. Crim. Proc. Law § 170.40,
which does not apply here. See Lanning, 908 F.3d at 23.
And although the Municipal Defendants depict plaintiffs as
claiming the family court action was dismissed in the “interest
of justice,” City Reply at 2–3, plaintiffs have not so stated,
here or in the cognizable family court records. See Withdrawal
Tr.; Dkt. 100-21 (“Order of Dismissal”). More fundamentally,
Lanning declined to find a favorable termination not only
because the dismissal arose under section 170.40, but also
because, as to some claims, jurisdiction lacked, and as to
others, the state court stated that the dismissals were “
‘neither an acquittal of the charges nor any determination
of the merits,’ but rather ‘le[ft] a question of guilt or
innocence unanswered.’ ” 908 F.3d at 28. Here, in contrast,
the circumstances of ACS's withdrawal reflect plaintiffs’
innocence.
d. Probable Cause
The Municipal Defendants next argue that the existence of
probable cause to commence the removal proceeding, and the
family court's initial grant of a temporary order of protection
removing A.K. and M.K. from the parents’ custody, defeats
plaintiffs’ malicious-prosecution claim. Plaintiffs counter that
both decisions—ACS's to begin removal proceedings, and
the family court's to grant an order of protection—rested
on falsehoods, without which there was not probable cause.
Although the question is close, plaintiffs are correct that, on
the standards governing a motion to dismiss, the facts do not
establish probable cause.
“[T]he existence of probable cause is a complete defense to a
claim of malicious prosecution in New York.” Savino v. City
of New York, 331 F.3d 63, 72 (2d Cir. 2003). “In the context
of a malicious prosecution claim, probable cause under New
York law is ‘the knowledge of facts, actual or apparent, strong
enough to justify a reasonable man in the belief that he has
lawful grounds for prosecuting the defendant in the manner
complained of.’ ” Rounseville v. Zahl, 13 F.3d 625, 629 (2d
Cir. 1994) (citation omitted). “It is a more exacting standard
than the standard required to support an arrest.” Emanuel
v. Griffin (“Emanuel II”), No. 13 Civ. 1806 (JMF), 2015
WL 1379007, at *8 (S.D.N.Y. Mar. 25, 2015). However,
“[b]ecause obviously less in the way of grounds for belief
will be required to justify a reasonable [person] in bringing a
civil rather than a criminal suit, when the underlying action
is civil in nature[,] the want of probable cause must be
patent.” Emanuel I, 2013 WL5477505, at *8 (quoting Fink
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v. Shawangunk Conservancy, Inc., 15 A.D.3d 754, 790 (3d
Dep't 2005)).
“[T]he issuance of a temporary injunction or similar judicial
recognition of the merit of the underlying case creates a
presumption of probable cause and places upon the plaintiff
the burden of pleading facts sufficient to overcome it.”
Emanuel II, 2015 WL 1379007, at *9 (quoting Butler v.
Ratner, 210 A.D.2d 691, 693–94 (3d Dep't 1994)); see also
Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003)
(presumption of probable cause created in criminal case by
grand jury indictment). That presumption “is rebuttable, and
may be overcome by evidence establishing that the police
witnesses ‘have not made a complete and full statement
of facts ... [,] that they have misrepresented or falsified
evidence[,] ... or otherwise acted in bad faith.’ ” Boyd, 336
F.3d at 76 (quoting Colon v. City of New York, 60 N.Y.2d
78, 82–83 (1983)). But to succeed on a malicious prosecution
claim after an indictment or other judicial imprimatur, a
plaintiff “must establish that the indictment was produced by
fraud, perjury, the suppression of evidence or other police
conduct undertaken in bad faith.” Id. (quoting Colon, 60
N.Y.2d at 83). In the context of child-removal proceedings
specifically, one court has held that the presumption of
probable cause arising from a removal order may be rebutted
where the petition for removal “was either intentionally
or recklessly false, as the result of defendants’ conduct.”
Estiverne II, 833 F. Supp. 2d at 379. In assessing probable
cause, courts “must consider those facts available to the
officer at the time of” her actions. Panetta v. Crowley, 460
F.3d 388, 395 (2d Cir. 2006).
*15 The facts pled and otherwise cognizable here give the
Municipal Defendants a solid basis to argue that probable
cause existed. As of August 30, 2018, when ACS commenced
removal proceedings in family court, it had received two
reports of potential child abuse about A.K. As reflected in
the Petition, on August 13, 2018, Dr. Ranade had reported
that, along with a broken femur, A.K. “presented with injuries
to her collarbone,” which contradicted the parents’ account
of how A.K.’s injuries had occurred. Am. Compl. ¶ 105. In
addition, around August 30, 2018, Dr. Lupica reported to ACS
that, when she had seen A.K. on August 8, 2018, A.K. did
not have the femur fracture with which she was ultimately
diagnosed, and that, based on the Mt. Sinai and HSS x-rays,
she did not believe the injuries occurred in the manner or at
the time the parents had claimed. According to the Amended
Complaint, Glass and Dr. Fabricant had also contacted ACS
caseworkers with similar concerns. Id. ¶ 79. After receiving
these reports, on August 30, 2018, ACS commenced removal
proceedings. See Removal Order at 1–2. That ACS's petition
was granted by a family court judge after a hearing also gives
rise to a rebuttable presumption of probable cause. See, e.g.,
Boyd, 336 F.3d at 76; Emanuel II, 2015 WL 1379007, at *9.
Plaintiffs, however, have pled sufficient facts, at this
preliminary stage of the litigation, to rebut that presumption.
To do so, plaintiffs must show that the relevant government
officials have not made a complete statement of facts, have
misrepresented or falsified evidence, or have otherwise acted
in bad faith. Boyd, 336 F.3d at 76. A showing that defendants’
submissions to the family court were “intentionally or
recklessly false, as the result of defendants’ conduct,” can
meet this standard. Estiverne II, 833 F. Supp. 2d at 379.
Here, although the contrary outcome is entirely possible,
plaintiffs have plausibly pled that the Municipal Defendants,
in seeking the infants’ removal, included materially false
statements and were reckless in presenting information to
the family court. As plaintiffs emphasize, before August 30,
2018, although ACS did not reveal this to the court, no doctor
had diagnosed A.K. with a clavicle fracture. Dr. Ranade
had affirmatively disavowed a conclusive diagnosis of such
a fracture, and Dr. Grimm appears to have concluded that
A.K. did not even have a clavicle injury. See Am. Compl.
¶¶ 105 (Dr. Ranade told ACS that x-rays from August 13,
2018 were “inconclusive.”), ¶¶ 108–09 (Dr. Grimm stated
on August 14, 2018, that “[a] clavicle fracture has not been
confirmed by radiology and when I saw the baby, she lifted
both arms spontaneously,” and informed ACS's Lawson that
she reviewed the x-rays “and saw that both clavicles looked
the same.”). ACS's notes from August 14, 2018 confirm that
a positive diagnosis had not been made. See id. ¶ 105. Yet,
when ACS filed its removal petition on August 30, 2018, it
affirmatively claimed that the August 13, 2018 x-rays had
been “inclusive” of clavicle injuries. Id.; see also Petition at
7. Conceivably, that awkward locution as to this key point
could stem from a mere error in typing “inconclusive,” but
the Court cannot assume this on a motion to dismiss. In any
event, plaintiffs plead that, at the hearing on the petition, ACS
doubled down on this false claim and represented that A.K.
“does have a collarbone fracture,” that x-rays had “confirmed
the collarbone fracture,” and that “[m]ost medical doctor staff
were able to take x-rays and were able to see that there
was also a collarbone fracture.” Am. Compl. ¶ 106. Those
statements, as pled, were recklessly false, and had no basis in
the records or reports before ACS at the time.
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These falsehoods, as pled, were consequential. The Removal
Order expressly relied on that aspect of the Petition, citing
the presence of multiple unexplained injuries as the family
court's basis for granting the application. See Removal Order
at 1. And ACS's own expert, reviewing the same radiological
evidence nine months later, ultimately concluded that “no
clavicle fracture was identified,” proximately leading ACS
to withdraw its petition, with prejudice. Id. ¶¶ 175–76. To
be sure, discovery may well reveal that these were errors
made in good faith, or that evidence not now cognizable or
apparent buttressed ACS's claim, at the time, of a clavicle
fracture. 13 But on a motion to dismiss, the Court must draw
all inferences in plaintiffs’ favor. See Koch, 699 F.3d at
145. Given that standard, the Court cannot find as a matter
of law that the Municipal Defendants’ decision to initiate
removal proceedings, based in significant part on evidence
of a clavicle fracture impeached by the medical facts before
them, was supported by probable cause and in good faith. 14
13 It is possible, too, that, after discovery, the
Municipal Defendants will prove entitled to
qualified immunity. See, e.g., Cornejo v. Bell, 592
F.3d 121, 129 (2d Cir. 2010) (affirming grant
of qualified immunity to ACS caseworkers at
summary judgment); Walker, 621 F. App'x at 76.
They did not, however, move to dismiss on this
ground. And bad faith, if established, can offset
facts that might otherwise warrant a finding of
qualified immunity. See, e.g., Carossia v. City of
New York, 39 A.D.3d 429, 430 (1st Dep't 2007).
The Court accordingly does not consider this
question at the pleading stage.
14 Other challenges plaintiffs make to probable cause
fare less well. Most significant, they fault the
Municipal Defendants for bringing the removal
action in the face of Dr. Grimm's assessment that
there had not been child abuse. But Dr. Grimm's
assessment pre-dated reports of abuse to ACS,
including by Dr. Lupica and others, suggesting
the parents concealed the true nature and timing
of A.K.’s injury. Am. Compl. ¶¶ 64, 79–81, 105.
These later reports gave ACS sound reason to
reassess its (and Dr. Grimm's) conclusion. See Id.
¶¶ 61–67, 77 (noting that, before such reports, ACS
had concluded that “there was no reason to remove
[A.K.] ... as the [Parents’] story was consistent with
injuries as reported by Mt. Sinai”). And contrary to
the parents’ claim, ACS's decision not to cite Dr.
Grimm's opinion before the family court does not
mean that it “suppressed” exculpatory evidence.
Plaintiffs do not cite authority that, at any stage of
removal proceedings, ACS had a duty to set out for
the court all contrary opinions. On the contrary, the
Second Circuit has specifically rejected any duty of
ACS caseworkers to present exculpatory evidence
in family-court proceedings. See Cornejo v. Bell,
592 F.3d 121, 129 (2d Cir. 2010) (no constitutional
violation where “the heart of the complaint ... is
that [ACS] failed to adequately apprise the Family
Court of exculpatory information”). Plaintiffs also
overreach in claiming that ACS was wrong to rely
on Dr. Lupica's assessment, because it, as alleged,
was untrue. Unless the Municipal Defendants had
a basis to appreciate that Dr. Lupica's account
was false, they could consider it in determining
whether probable cause supported commencing
removal proceedings. See Simpson v. Town of
Warick Police Dep't, 159 F. Supp. 3d 419, 436–
37 (S.D.N.Y. 2016) (collecting cases); see also
Berry v. Marchinkowski, 137 F. Supp. 3d 495, 527
(S.D.N.Y. 2015) (“Even assuming the version of
facts set forth by Plaintiff, that Rose felt coerced
and gave false information, this alone does not
defeat probable cause to arrest.”).
e. Actual Malice
*16 Last, plaintiffs must allege that the defendants acted
with “actual malice.” Stampf, 761 F.3d at 198. That burden
is easily satisfied because, at the pleadings stage, “lack of
probable cause generally raises an inference of malice.”
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 131 (2d Cir.
1997); see Emanuel I, 2013 WL 5477505, at *7. Accordingly,
plaintiffs have pled each element of their claim for malicious
prosecution. 15
15 The Municipal Defendants have not moved
specifically as to any individual ACS employees,
instead arguing that plaintiffs’ claims fail across
the board. Thus, although it appears that plaintiffs
have pled this claim as to only some subset of those
defendants, the Court will not sua sponte dismiss
this claim as to the others.
3. Abuse of Process
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Plaintiffs also allege abuse of process. “In order to state a [§
1983] claim for abuse of process, a plaintiff must establish
that the defendants had an improper purpose in instigating
the action ... [and] that they aimed to achieve a collateral
purpose beyond or in addition to his criminal prosecution.”
Morales v. City of New York, 752 F.3d 234, 238 (2d Cir.
2014) (quoting Savino, 331 F.3d at 77). Thus, plaintiffs must
show that defendants: “(1) employ[ed] regularly issued legal
process to compel performance or forbearance of some act
(2) with intent to do harm without excuse of justification,
and (3) in order to obtain a collateral objective that is outside
the legitimate ends of the process.” Savino, 331 F.3d at 76
(citation omitted).
As with malicious prosecution, the existence of probable
cause is a complete defense to an abuse-of-process claim. See
Irish v. City of New York, No. 09 Civ. 5568 (RMB), 2010 WL
5065896, at *6 (S.D.N.Y. Dec. 6, 2010) (“[T]he presence of
probable cause negates a claim for abuse of process.” (quoting
Sforza v. City of New York, No. 07 Civ. 6122 (DLC), 2009
WL 857496, at *17 (S.D.N.Y. Mar. 31, 2009))). And the mere
presence of an improper motive in commencing or continuing
legal proceedings is insufficient to state a claim for abuse of
process; instead, plaintiffs must allege that defendants used
legal process to achieve a “collateral objective” outside the
aims of that process. See Savino, 331 F.3d at 77. Thus, “it is
not sufficient for a plaintiff to allege that the defendants were
seeking to retaliate against him by pursuing [a legal action].
Instead, he must claim that they aimed to achieve a collateral
purpose beyond or in addition to his criminal prosecution.”
Id.; see Brandon v. City of New York, 705 F. Supp. 2d 261, 275
(S.D.N.Y. 2010) (citing “extortion, blackmail, retribution, or
similar extraneous harmful goal” as examples of improper
collateral purposes).
In moving to dismiss, the Municipal Defendants argue
that they had probable cause to commence the removal
proceedings, that abuse-of-process claims cannot arise from
civil proceedings, and that plaintiffs have not alleged any
collateral objective on their part outside the legitimate ends
of the process. The first two arguments largely overlap with
arguments the Court has found unavailing in the context of
plaintiffs’ malicious prosecution claims. But the last, the lack
of a collateral objective, is unique to the abuse of process
claim. And plaintiffs have not responded to that argument. 16
By failing to do so, plaintiffs have abandoned that claim.
Romeo & Juliette, 2014 WL 4723299, at *7.
16 The only references to abuse of process in
plaintiffs’ opposition are in two footnotes, in
which plaintiffs state that this claim “implicate[s]
rights that [are] clearly established under the
Constitution” and that it is one of their state-law
claims. Pl. Opp'n at 16 n.6, 43 n.15.
*17 In any event, defendants are right that the Amended
Complaint pleads insufficient facts as to a collateral objective
on their part. The Amended Complaint alleges that all
defendants commenced the family court proceeding “to
insulate [defendants] from various levels of civil liability,”
to “deprive Plaintiffs of their fundamental constitutional
protections,” and to “financially harm them by draining
a substantial part of their personal resources, in order
to leverage and otherwise extract a plea/admission and
shield themselves from liability.” Am. Compl. ¶¶ 229–30.
The first of the theories does not sensibly apply to the
Municipal Defendants, who, far from deflecting civil liability,
exposed themselves to such liability (viz, this lawsuit)
by commencing proceedings. And none reach “beyond
and in addition to” the removal proceedings themselves.
See, e.g., Moritz v. Town of Warwick, No. 15 Civ. 5424
(NSR), 2016 WL 3248494, at*5 (S.D.N.Y. June 9, 2016)
(“Deprivation of liberty, embarrassment, inconvenience, and
legal expenses are direct, rather than collateral, consequences
of arrest that are insufficient to support a malicious abuse
of process claim.”). At best, plaintiffs insinuate improper
motives on the part of these defendants (e.g., retaliation
for the parents’ litigiousness). But “neither retaliation nor a
malicious motive ... is a sufficient collateral objective” to state
a claim for abuse of process. Peter L. Hoffman, Lotte, LLC v.
Town of Southampton, 523 F. App'x 770, 771 (2d Cir. 2013)
(summary order). Accordingly, the Court dismisses plaintiffs’
claim for abuse of process.
4. Conspiracy Under §§ 1983 and § 1985
a. Section 1983
To succeed on a § 1983 claim for conspiracy, a plaintiff must
allege: “(1) an agreement between two or more state actors or
between a state actor and a private entity; (2) to act in concert
to inflict an unconstitutional injury; and (3) an overt act done
in furtherance of that goal causing damages.” Pangburn v.
Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). A “plaintiff must
provide some factual basis supporting a meeting of the minds,
such that defendants entered into an agreement, express or
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tacit, to achieve the unlawful end.” Webb v. Goord, 340 F.3d
105, 110 (2d Cir. 2003) (citation omitted). “Allegations of
‘joint conduct’ are not sufficient.” Schoolcraft v. City of New
York, 103 F. Supp. 3d 465, 520 (S.D.N.Y. 2015). Further, a
“plaintiff alleging a § 1983 conspiracy must allege a predicate
violation of constitutional rights.” Norales v. Acevedo, No. 20
Civ. 2044 (DLC), 2021 WL 739111, at *10 (S.D.N.Y. Feb.
24, 2021). And “there is no conspiracy if the conspiratorial
conduct challenged is essentially a single act by a single
corporation acting exclusively through its own directors,
officers, and employees, each acting within the scope of his
employment.” Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir.
1978).
As discussed above, plaintiffs have failed to plausibly allege
a conspiracy between any Medical Defendant and ACS. See
supra pp. 23–24. Nor, beyond conclusory allegations, do
plaintiffs plead a conspiracy within ACS, or with any other
state actors. The only alleged state participant in the supposed
conspiracy was Lawson, who could not have conspired with
herself. And, as stated, even had Lawson agreed with other
ACS employees, such could not support a § 1983 conspiracy.
See Herrmann, 576 F.2d at 459. Accordingly, the Court
dismisses plaintiffs’ claims of a § 1983 conspiracy against all
defendants.
b. Section 1985
To prevail on a conspiracy claim under § 1985, Plaintiffs must
show:
(1) a conspiracy; (2) for the purpose of
depriving, either directly or indirectly,
any person or class of persons of the
equal protection of the laws, or of
equal privileges and immunities under
the laws; (3) an act in furtherance of
the conspiracy; (4) whereby a person is
either injured in his person or property
or deprived of any right or privilege of
a citizen of the United States.
Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d
Cir. 2007). It also requires a showing that the conspiracy was
“motivated by some racial or perhaps otherwise class-based,
invidious discriminatory animus.” Id. (citation omitted).
For the reasons above, the Court agrees with the Municipal
Defendants that plaintiffs have failed to plausibly allege
a conspiracy at all. That alone requires dismissal of this
claim. See, e.g., id. at 792. Further, as the Municipal
Defendants note, plaintiffs have also not alleged that any of
the defendants’ actions were motivated by a discriminatory
animus. Rather, they allege that defendants acted either out of
a desire for self-preservation or retaliation. Again, plaintiffs
offer no counter to these points. Accordingly, the Court
dismisses plaintiffs’ § 1985 claim, both because plaintiffs
have abandoned it and because it is deficient on the merits.
See Romeo & Juliette, 2014 WL 4723299, at *7.
5. Intentional Deprivation of Constitutional Rights
*18 Plaintiffs broadly assert a separate cause of action for
“intentional violation of federally protected constitutional
rights” against all defendants, accusing all of attempting
to interfere with their “rights to effectively and without
unnecessary governmental intrusion, parent and otherwise
associate with their children.” Am. Compl. ¶ 258. Although
the Medical Defendants moved to dismiss this claim, the
Municipal Defendants appear to have overlooked it. See
generally City Mem. (seeking dismissal of entire Amended
Complaint but failing to address Count Four); City Reply.
Without arguments directed to this claim, the Court will
not dismiss it sua sponte, and, in any event, this claim
appears to track (seemingly completely) plaintiffs’ claim
—which the Court has allowed to proceed against the
Municipal Defendants—of malicious prosecution. The Court
accordingly does not yet have occasion or cause to dismiss
this claim.
6. False Imprisonment
Plaintiffs also assert false imprisonment under § 1983. To
prevail on that claim, they must plead that: “(1) the defendant
intended to confine [the plaintiff], (2) the plaintiff was
conscious of the confinement, (3) the plaintiff did not consent
to the confinement and (4) the confinement was not otherwise
privileged.” McGowan v. United States, 825 F.3d 118, 126 (2d
Cir. 2016).
In the Amended Complaint, plaintiffs allege that the
“restrictions upon [their] collective liberty to associate with
one another constitutes ‘confinement’ as a matter of New York
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State and Constitutional law.” Am. Compl. ¶ 283. They do
not cite any authority in support of this broad conception
of “confinement,” and do not otherwise allege any actual
confinement, let alone that A.K. or any other plaintiff was
aware of it. See id. ¶¶ 281–86. And after defendants each
moved to dismiss because of these failures, plaintiffs again
did not respond. 17 This claim is therefore also abandoned,
and the Court dismisses it. See Romeo & Juliette, 2014 WL
4723299, at *7.
17 Plaintiffs mention this claim twice in their
opposition, but only to state that it “implicate[s]
rights that [are] clearly established under the
Constitution,” and that it is among their state-law
claims. See Pl. Opp'n at 16 n.6, 43 n.15.
7. Monell Liability
Finally, plaintiffs pursue liability on all the above counts
against the City of New York under Monell, 436 U.S. 658.
Municipal liability in a § 1983 action may not rest on
respondeat superior or vicarious liability. Id. at 691. Instead,
to hold a municipality liable under § 1983 for unconstitutional
actions of its employees, a plaintiff must prove that there was
a municipal policy or custom that directly subjected her to
a constitutional violation. See Amnesty Am. v. Town of West
Hartford, 361 F.3d 113, 125 (2d Cir. 2004) (“[C]onstitutional
torts committed by city employees without official sanction
or authority do not typically implicate the municipality in
the deprivation of constitutional rights, and therefore the
employer-employee relationship is in itself insufficient to
establish the necessary causation.” (citation omitted)).
A plaintiff can establish the existence of a policy or custom
by showing:
(1) a formal policy officially endorsed
by the municipality; (2) actions taken
by government officials responsible
for establishing the municipal policies
that caused the particular deprivation
in question; (3) a practice so consistent
and widespread that, although not
expressly authorized, constitutes a
custom or usage of which a
supervising policy-maker must have
been aware; or (4) a failure by
policymakers to provide adequate
training or supervision to subordinates
to such an extent that it amounts to
deliberate indifference to the rights of
those who come into contact with the
municipal employees.
Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77
(S.D.N.Y. 2010) (citations omitted) (collecting cases).
Absent an underlying constitutional violation, the Court need
not address municipal liability. See, e.g., Segal v. City of
New York, 459 F.3d 207, 219 (2d Cir. 2006). Accordingly,
at the threshold, Monell liability cannot obtain for plaintiffs’
claims for abuse of process, conspiracy under §§ 1983
and 1985, or false imprisonment. Further, plaintiffs largely
base their Monell claim on the City's alleged “widespread
policy and custom of having doctors and social workers
act under the color of law ... and bring the coercive and
overwhelming forces of governmental authority to bear on
individuals and families without accountability.” Am. Compl.
¶ 262. However, the Court has already held that, here, the
medical doctors of whom plaintiffs complain are not state
actors, and so cannot have been party to any constitutional
violations. Plaintiffs’ notion that a City policy relating to
these professionals—whose reporting is, in fact, required by
state law, see N.Y. Soc. Serv. Law § 413—could support
liability on the part of the City thus fails at the threshold.
See Segal, 459 F.3d at 219. In any event, plaintiffs do not
plausibly allege any such policy. Instead, they merely recite
the facts of their own experience with ACS, and conclusorily
declare it representative of a broader policy or custom. See
Am. Compl. ¶¶ 266–71; e.g., Aragon v. New York, No. 14
Civ. 9797 (ER), 2017 WL 2703562, at *6 (S.D.N.Y. June 22,
2017) (dismissing Monell claim where plaintiffs “allege[d]
the existence of a practice adopted by the City solely based
on Plaintiff's alleged experience”).
*19 As to plaintiffs’ surviving § 1983 claims, the Amended
Complaint alleges only the third basis for Monell liability:
a consistent and widespread practice, custom, or usage of
the City. 18 Where this theory is adequately pled, “an act
performed pursuant to a ‘custom’ that has not been formally
approved by an appropriate decisionmaker may fairly subject
a municipality to liability on the theory that the relevant
practice is so widespread as to have the force of law.” Bd. of
Cnty. Comm'rs of Bryant Cnty. v. Brown, 520 U.S. 397, 404
(1997).
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18 Plaintiffs’ opposition brief also suggests the City
may be liable based on a “failure by policymakers
to provide adequate training or supervision to
subordinates to such an extent that it amounts to
deliberate indifference.” Pl. Opp'n at 41 (quoting
Brandon, 705 F. Supp. 2d at 276–77). But
the Amended Complaint does not allege facts
supporting this theory of municipal liability. See
Am. Compl. ¶¶ 261–80; Cruz v. City of New York,
No. 15 Civ. 2265 (PAE), 2016 WL 234853, at *6
(S.D.N.Y. Jan. 19, 2016) (holding that plaintiffs
“cannot add [new theories of Monell liability] in an
opposition brief” and collecting cases). Similarly,
plaintiffs cite cases discussing instances in which
“a municipality may be liable for a single incident
under proper circumstances,” Pl. Opp'n at 40–41
(citing Pembaur v. Cincinnati, 475 U.S. 469, 480
(1986)), but do not explain why such circumstances
are present here, let alone identify allegations that
support that theory. These theories, too, cannot
survive.
Here, plaintiffs allege that it is a “custom and practice” of the
City to
initiate[ ] a removal proceeding on
less than probable cause knowing
and relying on the fact that for
an overwhelming percentage of
parents the financial and emotional
wherewithal to stand their ground to
the bitter end is not possible and that
they accept a negotiated plea which, in
turn, insulates ACS from liability.
Am. Compl. ¶ 278. Plaintiffs provide one factual datum in
support: Iwenofu's statement that, in her 16 years working
for ACS, she had never seen a case discharged without
“someone taking the blame.” Id. ¶¶ 129, 279. But that
stray observation does not speak to any broader policy of
maliciously prosecuting individuals. It says nothing about
whether the actions she described were commenced with or
without probable cause or malice. And if all those actions,
in fact, concluded in a compromise, as Iwenofu's statement
implies, none would have terminated in favor of the accused.
See, e.g., Rothstein, 373 F.3d at 286.
Otherwise, plaintiffs do not cite any facts in support of the
existence of this alleged policy. Nor do they allege any prior
legal actions involving the same or similar issues, or even any
specific family-court proceedings, even if they did not lead
to a § 1983 action, that fit the pattern alleged here. See, e.g.,
Cruz, 2016 WL 234853, at *5 (allegations of eight previously
settled civil rights actions “fall far short of establishing a
custom sufficient to support a Monell claim”); Calderon
v. City of New York, 138 F. Supp. 3d 593, 613 (S.D.N.Y.
2015) (dismissing Monell claims where plaintiff “does not
cite any civil cases that implicated the unlawful practice she
challenges”); Tieman v. City of Newburgh, No. 13 Civ. 4178
(KMK), 2015 WL 1379652, at *17 (S.D.N.Y. Mar. 26, 2015)
(same where plaintiff cited 13 prior cases involving similar
allegations, but none had “result[ed] in an adjudication of
liability”). Devoid of any concrete factual allegations from
which the existence of an unconstitutional municipal policy,
custom, or usage that caused plaintiffs’ injuries could be
inferred, the Amended Complaint fails to state a claim for
municipal liability under § 1983. The Court thus dismisses
plaintiffs’ Monell claim against the City. 19
19 Plaintiffs also name Hansell, ACS's Commissioner,
as a defendant, but only in his official capacity
and insofar as he is “the government official
whose edicts and acts represent the official policy,
practices, customs and regulations of ACS.” See
Am. Compl. ¶ 12. They do not allege his personal
involvement in any unconstitutional acts. His
dismissal may well be warranted under the same
principles discussed above. See, e.g., D'Alessandro
v. City of New York, 713 F. App'x 1, 10 (2d Cir.
2017). Defendants, however, have not moved to
dismiss him from this action based on his lack of
personal involvement, and the Court will not do so
sua sponte.
*20 Accordingly, the Court will dismiss all federal claims
against the Medical Defendants, because plaintiffs have not
plausibly alleged that they were state actors or conspired
with state actors in any relevant way. The Court also
dismisses plaintiffs’ claims against the Municipal Defendants
under § 1983 for abuse of process, false imprisonment, and
conspiracy, and under § 1985 for conspiracy. However, the
Court denies the Municipal Defendants’ motion to dismiss
plaintiffs’ § 1983 claim for malicious prosecution and a
violation of their substantive due process rights. As to the
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City of New York, however, the Court dismisses those latter
claims, as well.
C. State Claims
1. Supplemental Jurisdiction
Federal district courts have discretion to exercise
supplemental jurisdiction over state-law claims “that are so
related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under
Article III of the United States Constitution.” 28 U.S.C. §
1367(a). Federal and state law claims are part of the same case
or controversy if they share “a common nucleus of operative
fact.” City of Chicago v. Int'l Coll. of Surgeons, 522 U.S.
156, 165 (1997). Claims share such a nucleus if “the facts
underlying the federal and state claims substantially overlap
or the federal claim necessarily brings the facts underlying the
state claim before the court.” Achtman v. Kirby, McInerney &
Squire, LLP, 464 F.3d 328, 335 (2d Cir. 2006) (cleaned up).
Here, plaintiffs bring many state-law claims, some of which
overlap nearly entirely with their federal claims, and others
of which arise from a common nucleus of operative facts.
Accordingly, with one exception discussed below, the Court
exercises its supplemental jurisdiction over plaintiffs’ state-
law claims.
2. Malicious Prosecution
As to the Municipal Defendants, the elements of malicious
prosecution under New York law are largely the same as
under § 1983, save for the requirement of a constitutional
violation. See Stampf, 761 F.3d at 198; see also Lanning, 908
F.3d at 24–25 (noting that New York law requires a lesser
“favorable termination” showing than § 1983 does, as New
York law requires only that the termination of the action
is “not inconsistent with the Plaintiff's innocence” (citation
omitted)). The Court thus denies the Municipal Defendants’
motion to dismiss plaintiffs’ state-law claim for malicious
prosecution for the reasons given above.
Plaintiffs have also named the City of New York in this count.
Although § 1983 claims may not be asserted based on a
theory of respondeat superior, New York law does provide
for vicarious liability in some circumstances. See, e.g., Velez
v. City of New York, 730 F.3d 128, 136–37 (2d Cir. 2013);
Biswas v. City of New York, 973 F. Supp. 2d 504, 539–40
(S.D.N.Y. 2013); Swierczynski v. O'Neill, 41 A.D.3d 1145,
1146 (4th Dep't 2007). The Municipal Defendants have not
addressed this point. The Court accordingly leaves standing
the state-law claim for malicious prosecution against the City.
As to the Medical Defendants, the question is more complex.
To state a claim for malicious prosecution under New York
law, a plaintiff must allege “(1) the initiation or continuation
of a criminal proceeding against plaintiff; (2) termination of
the proceeding in plaintiff's favor; (3) lack of probable cause
for commencing the proceeding; and (4) actual malice as a
motivation for defendant's actions.” Stampf, 761 F.3d at 198.
As under § 1983, such claims, under New York law, can
arise out of civil proceedings. See, e.g., Perryman v. Village
of Saranac Lake, 41 A.D.3d 1080, 1081 (3d Dep't 2007).
Unlike under § 1983, however, New York law authorizes
claims for malicious prosecution against private individuals,
even if not state actors, where they “played an active role in
the prosecution, such as giving advice and encouragement or
importuning the authorities to act.” Rohman, 215 F.3d at 217
(quoting DeFilippo v. County of Nassau, 183 A.D.2d 695, 696
(2d Dep't 1992)).
*21 The Medical Defendants argue, inter alia, that
plaintiffs’ state-law claim for malicious prosecution against
them fails because ACS, not they, initiated the removal
proceeding. As to most such defendants, the Court agrees.
Under New York law, “[t]he mere reporting of a crime to
police and giving testimony are insufficient” to establish
liability for malicious prosecution. Estiverne v. Esernio-
Jenssen (“Estiverne I”), 581 F. Supp. 2d 335, 348 (E.D.N.Y.
2008) (quoting Present v. Avon Prods., Inc., 253 A.D.2d 183,
189 (1st Dep't 1999)). That applies even if a defendant gave
“false information to the authorities.” Id. (quoting Lupski v.
County of Nassau, 32 A.D.3d 997, 998 (2d Dep't 2006)). A
private individual who falsely reports to the authorities can
be held responsible for initiating a prosecution only upon a
“showing that, at the time the information was provided, the
defendant knew it to be false.” Id.
Largely for the reasons given above in explaining why such
private reporters are not state actors, the Court holds that
plaintiffs have not plausibly alleged that Dr. Ranade, Dr.
Fabricant, Dr. Platt, Dr. Shaykh, or Glass played an active role
in the removal proceedings, either by encouraging or advising
ACS to act. Rather, setting aside the Amended Complaint's
speculative and conclusory allegations, plaintiffs allege only
that these defendants reported suspected child abuse to ACS,
as they were required to do by N.Y. Soc. Serv. Law § 413.
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Dr. Ranade had examined A.K. and observed both a femur
fracture and potentially injured clavicle, and reported such
observations to ACS—tempering her assessment by noting
that she could not confirm a clavicle fracture. See Am.
Compl. ¶ 105. Dr. Fabricant and Glass may have repeated
Dr. Lupica's story to ACS but, even assuming that story
was false, plaintiffs have not plausibly alleged that these
defendants knew it to be so at the time. And Dr. Platt and
Dr. Shaykh are not alleged to have ever contacted ACS.
Accordingly, plaintiffs have not plausibly alleged that any
of these defendants initiated the removal proceedings. The
Court grants their motions to dismiss the state-law claims for
malicious prosecution against them. 20
20 Although the above reasoning independently
requires dismissal, these defendants are also
protected by N.Y. Soc. Serv. Law § 419, which
confers immunity against state-law liability for
the mandatory reporting of suspected child abuse
or neglect, absent “willful misconduct or gross
negligence.” Isabelle V. v. City of New York,
150 A.D.2d 312, 313 (1st Dep't 1989). Thus,
“[m]andated reporters need not await conclusive
evidence of abuse or maltreatment but must act on
their reasonable suspicions[,] and the law allows
them a degree of latitude to err on the side of
protecting children who may be suffering from
abuse.” Id. Because plaintiffs have not plausibly
alleged willful misconduct or gross negligence by
these doctors, and have pled that A.K. presented
with severe injuries, these defendants, even taking
plaintiffs’ non-conclusory allegations as true, acted
reasonably in the situation, triggering immunity
under section 419.
As to Dr. Lupica, however, the analysis differs. The Amended
Complaint plausibly alleges that her reports, both to the
other private individuals on the August 27–30, 2018 email
chain and to an ACS caseworker, were deliberately false.
See supra pp. 20–21. It alleges that, once confronted with
her failure to diagnose A.K.’s broken femur, she declared
that there was “no way” that A.K. had that injury at the
time of her initial examination. See Am. Compl. ¶¶ 74–75.
And it alleges that Dr. Lupica, apparently to enhance the
credibility of her false statement, further falsely claimed to
have examined—or at least been in the presence of—A.K.
for four hours, rather than the five minutes that she actually
spent with A.K. The Amended Complaint further alleges that
Dr. Lupica, in an error that exposed her unfamiliarity with
A.K., misidentified A.K. as male. Id. Such allegations are
enough to push plaintiffs’ claim of Dr. Lupica's deliberate
lying from merely conceivable to plausible. See Iqbal, 556
U.S. at 678. 21
21 In their reply, the Weill Cornell defendants argue
that Dr. Lupica was correct in late-August 2018,
and that A.K. did not, in fact, have the alleged
femur fracture when she appeared at Weill Cornell
on August 8, 2018. See Weill Cornell Reply at 8–
9. That is of course possible. And the discovery
that will now commence will, of necessity, give
the surviving defendants a fulsome opportunity to
test whether Dr. Lupica's or the parents’ version of
events on August 8–9, 2018, is true, and whether
Dr. Lupica had a good-faith basis to make the
claims that she did. But at this stage of the litigation,
where the Court's review is limited to the pleadings,
the Court must credit the well-pled allegations in
the Amended Complaint.
*22 Accepting that allegation as true, plaintiffs have
plausibly asserted a claim under New York law for malicious
prosecution against Dr. Lupica. A private defendant can
“initiate” a prosecution by giving false information to the
authorities if “at the time the information was provided, the
defendant knew it to be false.” Lupski, 32 A.D.3d at 998;
see Emanuel I, 2013 WL 5477505, at *7; Estiverne I, 581
F. Supp. 2d at 347–49. Here, the Amended Complaint so
alleges as to Dr. Lupica. It alleges that, on the day that
ACS commenced removal proceedings against plaintiffs, Dr.
Lupica contacted ACS to falsely report child abuse, knowing
her report was false. See Am. Compl. ¶¶ 75, 81. Those
facts plausibly assign her an “active role” in the initiation
of the removal proceedings. Rohman, 215 F.3d at 217. The
Amended Complaint also pleads the other elements of this
tort as to Dr. Lupica. The removal proceedings terminated in
the parents’ favor. See supra pp. 28–29. And assuming that
the content of Dr. Lupica's report to ACS was false, plaintiffs
have pled a lack of probable cause to so report. See, e.g.,
Emanuel I, 2013 WL 5477505, at *7. Last, because the “lack
of probable cause generally raises an inference of malice,”
Ricciuti, 124 F.3d at 131, plaintiffs have also plausibly alleged
malice. 22
22 Dr. Lupica argues that she is immune under N.Y.
Soc. Serv. Law § 419. See Weill Cornell Mem. at
13–14. But section 419 does not apply to instances
of “willful misconduct” or “gross negligence,” as
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is plausibly alleged here. Isabelle V., 150 A.D.2d at
313.
Accordingly, the Court denies Dr. Lupica's motion to dismiss
this claim. Because New York law, unlike § 1983, recognizes
vicarious liability for employers in some circumstances, see
Velez, 730 F.3d at 136–37, and the Weill Cornell Defendants
have not offered any counter on this point, the Court also
denies the motion to dismiss the claim against Weill Cornell.
As to all other Medical Defendants, this claim is dismissed.
3. Abuse of Process
Plaintiffs’ claim for abuse of process under New York law
is governed by the same standards as their claim under §
1983. See Savino, 331 F.3d at 76. For the same reasons given
above in connection with the § 1983 abuse-of-process claim
—that plaintiffs have abandoned this claim and also failed
to plausibly allege a collateral objective by any defendant—
the Court dismisses this claim. As to the latter point, insofar
as plaintiffs allege false reporting by Medical Defendants
such as Dr. Lupica, “courts have dismissed abuse of process
claims for [lack of an ulterior motive] where” individuals
“allegedly filed false allegations of abuse and harassment to
obtain a protective order” against an individual, where the
“ulterior and illegitimate” purpose identified was to harass
a family member. Silver v. Kuehbeck, 217 F. App'x 18, 21
(2d Cir. 2007) (summary order). Even there, “the falsity of
the allegations and defendant's malicious motive in making
them do not, of themselves, give rise to a cause of action for
abuse of process.” Id. (quoting Butler v. Ratner, 210 A.D.2d
691, 692 (3d Dep't 1994)). Plaintiffs thus have not plausibly
alleged abuse of process against any defendants under state
law.
4. False Imprisonment
Plaintiffs’ claim for false imprisonment under state law
similarly tracks their § 1983 claim for false imprisonment. See
Am. Compl. ¶¶ 281–86. For the reasons above, the Amended
Complaint does not state a claim for false imprisonment based
on the removal of A.K. and M.K. from the parents’ custody;
and plaintiffs, in any event, have abandoned this claim. The
Court dismisses the state-law claim for false imprisonment.
5. Intentional Infliction of Emotional Distress
“Under New York law, a claim for intentional infliction of
emotional distress must satisfy an ‘exceedingly high legal
standard.’ ” DiRuzza v. Lanza, 685 F. App'x 34, 36 (2d
Cir. 2017) (summary order) (quoting Chanko v. Am. Broad.
Cos. Inc., 27 N.Y.3d 46, 57 (2016)). First, the tort “may
be invoked only as a last resort, to provide relief in those
circumstances where traditional theories of recovery do not.”
Salmon v. Blesser, 802 F.3d 249, 256 (2d Cir. 2015) (citation
omitted). Second, a party alleging IIED must plead conduct
“so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.”
Chanko, 27 N.Y.3d at 56 (citation omitted). The time to bring
a claim for IIED, as with most other intentional torts, is one
year from the alleged actions giving rise to the claim. See, e.g.,
Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 491 (2007)
(citing N.Y. C.P.L.R. § 215).
*23 Here, plaintiffs argue that the Medical Defendants’ false
reporting, and ACS's malicious prosecution of the removal
proceeding, constitutes IIED. The Medical Defendants all
argue that plaintiffs’ IIED claim is time-barred because
plaintiffs filed this action more than one year after the last
of their alleged actions or communications with ACS took
place. They are correct. Plaintiffs filed this action on May 1,
2020. See Dkt. 1. A timely claim for IIED thus must arise
from actions on or after May 1, 2019. But the last alleged
action by any Medical Defendant was Dr. Ranade's October
4, 2018 unauthorized x-rays of A.K. Am. Compl. ¶ 125; see
also id. ¶ 29 (describing September 10, 2018 report to ACS
that parents brought A.K. to see Dr. Ranade unaccompanied).
And the last alleged acts by Dr. Lupica, Dr. Fabricant, Dr.
Platt, Dr. Shaykh, and Glass occurred earlier, in August 2018.
See, e.g., id. ¶¶ 72–83. New York courts have specifically held
that, for IIED claims based on false reporting to ACS, such
claims accrue on the date of the false report, even where the
resulting removal of a child takes place later on. See, e.g.,
Williams v. Georgopoulos, 184 A.D.3d 608, 609 (2d Dep't
2020) (collecting cases). Accordingly, no acts on which the
IIED claim against the Medical Defendants is based took
place within the one-year statute of limitations set by N.Y.
C.P.L.R. § 215. That forecloses plaintiffs’ IIED claim against
the Medical Defendants. 23
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23 Plaintiffs argue, summarily in a footnote, that the
Medical Defendants’ conspiracy with ACS makes
their claim timely. See Pl. Opp'n at 46 n.16. They
do not cite authority for that notion. And, as held
above, the Amended Complaint does not plausibly
allege any such conspiracy.
As to the Municipal Defendants, their actions arguably
continued into May 2019, when they ultimately withdrew the
removal Petition. Perhaps for this reason, they do not move
on the basis of the statute of limitations. But dismissal of
this claim against the Municipal Defendants is required for
an independent reason. As defendants rightly argue, a “cause
of action alleging intentional infliction of emotional distress
should [be] dismissed as duplicative of [a] cause[ ] of action
alleging malicious prosecution.” Leonard v. Reinhardt, 20
A.D.3d 510, 510 (2d Dep't 2005) (collecting cases). Because
IIED “may be invoked only as a last resort,” where alleged
conduct “falls well within the ambit of other traditional
tort liability,” IIED claims generally are to be dismissed.
Salmon, 802 F.3d at 256; see id. at 257 (“[B]ecause other tort
remedies were available to Salmon, the district court correctly
dismissed his intentional infliction claim.”); see also Shaheed
v. City of New York, 287 F. Supp. 3d 438, 455 (S.D.N.Y. 2018)
(citing malicious prosecution as one such tort, and dismissing
IIED claim because injuries were not “irremediable through
traditional tort remedies”), aff'd sub nom. Shaheed v. Kroski,
833 F. App'x 868 (2d Cir. 2020); Leonard, 20 A.D.3d at
510 (same). Here, as the Court has held, ACS's decision
to pursue removal proceedings, to the extent it may be
found outrageous or intolerable, is redressable within the
framework of the familiar tort of malicious prosecution.
Indeed, the facts that the Amended Complaint relies on
in claiming IIED almost entirely repeat those offered in
support of their malicious prosecution claim. See Pl. Opp'n
at 46 (“ACS, therefore, acting in concert with the members
of the Weil Cornell/Ranade/HSS Conspiracy both ignored
significant exculpatory evidence and manufactured a false
or reckless diagnosis.” (footnote omitted)). Compare Am.
Compl. ¶¶ 191–226 (malicious prosecution), with id. ¶¶ 322–
30 (IIED). Accordingly, the Court dismisses plaintiffs’ IIED
claim against the Municipal Defendants, as duplicative of
their malicious prosecution claim against those defendants.
6. Loss of Consortium and Companionship
All defendants have moved to dismiss plaintiffs’ claims
for loss of consortium and loss of companionship, on
several grounds. Plaintiffs have not responded. This claim is
abandoned, and the Court dismisses it. See Romeo & Juliette,
2014 WL 4723299, at *7.
7. Medical Malpractice
Plaintiffs bring two claims for medical malpractice: (1)
against Dr. Lupica, Dr. Shaykh, and Weill Cornell for
allegedly failing to diagnose A.K.’s broken femur on August
8, 2018; and (2) against Dr. Ranade, for allegedly taking
unauthorized x-rays of A.K., without informed consent,
on October 4, 2018. See Am. Compl. ¶¶ 287–315. Those
defendants each move to dismiss those claims against them.
*24 The Court denies the Weill Cornell Defendants’ motion.
They first argue that, because A.K. promptly received proper
treatment for her fracture at Mt. Sinai, “any claim for
purported malpractice is limited to treatment over the course
of less than 24 hours.” Weill Cornell Mem. at 22. Although
that fact bears on the damages available to plaintiffs, it does
not defeat the claim that defendants “deviat[ed] from accepted
medical standards” in examining A.K. at the outset of her
care. E.g., Gold v. Hershey, 90 A.D.2d 704, 705 (1st Dep't
1982). Second, they argue that the Court should exercise
its discretion to decline supplemental jurisdiction over this
claim. But Weill Cornell's August 8, 2018 examination of
A.K. is interwoven with other issues in this case—including
whether Dr. Lupica truthfully reported her assessment that
night. And other claims implicating these events, against
both Dr. Lupica and others, are proceeding to discovery.
Absent “exceptional circumstances” or “other compelling
reasons for declining jurisdiction,” the Court will not decline
supplemental jurisdiction over this claim. 28 U.S.C. § 1367(c)
(4).
As to the claim against Dr. Ranade, however, the Court
declines to exercise such jurisdiction. See Mt. Sinai Mem.
at 19. The Court has dismissed all other claims against Dr.
Ranade. And Dr. Ranade's October 4, 2018 x-rays, which she
took months after the removal proceedings commenced and
never allegedly relayed to ACS or anyone else, are unrelated
to any of plaintiffs’ surviving claims against any remaining
defendants. The Court dismisses this claim, without prejudice
to plaintiffs’ right to pursue it in state court.
8. Defamation
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Last, plaintiffs bring a claim for defamation, solely against
Dr. Ranade, Dr. Platt, and Glass. In support, they cite (1) Dr.
Platt's emailed statements, on August 27–30, 2018, that the
parents were “dangerous” and that she could not “imagine
how ACS released this vulnerable infant to the family,”
Am. Compl. ¶¶ 376–78; (2) Dr. Ranade's reports to ACS
of suspected child abuse or neglect, id. ¶¶ 379–81; and that
Glass “reiterated and repeated” the claim that the parents were
“dangerous,” id. ¶ 382.
Defendants argue that these claims are time-barred. Plaintiffs
have not responded. The Court holds with defendants. Under
New York law, an action for defamation or slander must “be
commenced within one year of the publication or utterance of
the defamatory statement,” and “[d]iscovery does not extend
the one-year period.” Frederick v. Fried, 10 A.D.3d 444, 445
(2d Dep't 2004) (collecting cases). Plaintiffs filed this action
on May 1, 2020, meaning that only statements on or after May
1, 2019 may be actionable. See id. All of Glass's, Dr. Platt's,
and Dr. Ranade's allegedly defamatory statements occurred
between August and October 2018. Accordingly, plaintiffs’
claim for defamation is dismissed as untimely.
CONCLUSION
For the foregoing reasons, the Court rules as follows on the
motions to dismiss.
The Court grants in full the motions to dismiss by the HSS
Defendants and the Mt. Sinai Defendants.
The Court grants in part and denies in part the motion by the
Municipal Defendants. The Court dismisses all claims against
the Division of Child Protection, ACS, and the New York
Comptroller, and all federal claims against the City of New
York. The Court also dismisses plaintiffs’ claims for abuse
of process under federal and state law, false imprisonment
under federal and state law, conspiracy under §§ 1983 and
1985, loss of companionship and consortium under state law,
and IIED under state law, against all Municipal Defendants.
However, the Court denies the Municipal Defendants’ motion
as to plaintiffs’ claims (1) for malicious prosecution, under
federal and state law, as alleged against the individual
Municipal Defendants; (2) for violation of plaintiffs’ right to
family integrity under 42 U.S.C. § 1983, as alleged against
the individual Municipal Defendants; and (3) for malicious
prosecution, only under state law, as alleged against the City
of New York.
Finally, the Court grants in part and denies in part the
motion by the Weill Cornell Defendants. The Court dismisses
all federal claims against those defendants, as well as the
state-law claims against them for false imprisonment, abuse
of process, loss of consortium and companionship, IIED,
and defamation. The Court also dismisses all other claims
against Dr. Platt, and the state-law malicious prosecution
claim against Dr. Shaykh. The Court, however, denies the
motion to dismiss plaintiffs’ claims (1) against Dr. Lupica
and Weill Cornell for malicious prosecution under state law;
and (2) against Dr. Lupica, Dr. Shaykh, and Weill Cornell for
failure to diagnose.
*25 Accordingly, this case will proceed solely as to the
following claims: (1) malicious prosecution under § 1983
against the individual Municipal Defendants; (2) violation
of the family's substantive due process rights under § 1983
against the individual Municipal Defendants; (3) malicious
prosecution under state law against the individual Municipal
Defendants, the City of New York, Dr. Lupica, and Weill
Cornell; and (4) failure to diagnose against Dr. Lupica, Dr.
Shaykh, and Weill Cornell.
The Clerk of Court is respectfully directed to terminate as
parties to this case defendants Dr. Sheena Ranade, Mt. Sinai
Hospital, Dr. Peter Fabricant, LSW Karen Glass, the Division
of Child Protection, the New York Comptroller, and the
Administration for Children's Services. The Clerk of Court is
further directed to terminate the motions pending at dockets
89, 93, 99, and 112.
An order scheduling an initial conference in this case will
issue shortly.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 1143619
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Kurtz v. Hansell
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (6)
Title PDF Court Date Type
1. Verified Complaint and Jury Demand
Shveta Kakar KURTZ, Daniel L. Kurtz, Amna Kakar
Kurtz (A Minor Child), Mia Kakar Kurtz (A Minor Child),
Plaintiffs, v. David HANSELL, as the Duly Appointed
Commissioner of the New York City Administration for
Children's Services, The Division of Child Protection,
The City of New York, Yscary Rodriguez, Individually
and as a Caseworker employed by ACS, "Ms. Bhojranie
Maygoo," Individually and as a Caseworker employed by
Acs, Eunice Iwenofu, Individually and as a Caseworker
employed by Acs, Brenda Lawson, Individually and as an
ACS Case Manager/Supervisor, Esperanza Sandoval,
Individually and as a Supervisor in the Family Support
Unit employed by ACS, Dr. Peter Fabricant, Individually
and as a Treating Physician and State Actor Operating
Under Color of Law, Dr. Marie Lupica, as an Individual,
Treating Physician and State Actor Operating Under Color
of Law, Dr. Ramzi Marwan Shaykh, Individually and as a
Treating Physician, Dr. Shari L. Platt, as an Individual and
as a Treating Physician and State Actor Operating Under
Color of Law, Dr. Sheena Ranade, as an Individual, as
a Treating Physician, and as an Individual Acting Under
Color of Law, LSW Karen Glass, as an Individual and as
a State Actor, Unnamed ACS Workers and Employees
1-10, Unnamed Employees and Workers of New York-
Presbyterian Hospital/Weill Cornell Medical Center 1-10,
Unnamed Workers and Employees of Mt. Sinai Hospital
1-10, and New York-Presbyterian Hospital/Weill-Cornell
Medical Center., Defendants.
2020 WL 13856900
— S.D.N.Y. May 01, 2020 Pleading
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Kurtz v. Hansell
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Title PDF Court Date Type
2. Medical Defendants' Reply Memorandum of Law
in Further Support of Their Motion for Summary
Judgment
Shveta Kakar KURTZ, Daniel L. Kurtz, Amna Kakar Kurtz
(A Minor Child), Mia Kakar Kurtz (A Minor Child), Plaintiffs,
v. David HANSELL, as the Duly Appointed Commissioner
of the New York Administration for Children's Services,
The Division of Child Protection, Administration for
Children's Services, Mt. Sinai Hospital, New York
Comptroller, The City of New York, Yscary Rodriguez,
Individually and as a Caseworker employed by ACS, "Ms.
Bhojranie Maygoo", Individually and as a Caseworker
employed by ACS, Eunice Iwenofu, Individually and
as a Caseworker employed by ACS, Brenda Lawson,
Individually and as an ACS Case Manager/Supervisor,
Esperanza Sandoval, Individually and as a Supervisor
in the Family Support Unit employed by ACS, Dr. Peter
Fabricant, Individually and as a Treating Physician and
State Actor Operating Under Color of Law, Dr. Marie
Lupica, as an Individual, Treating Physician and State
Actor Operating Under Color of Law, Dr. Ramzi Marwan
Shaykh, Individually and as a Treating Physician, Dr. Shari
L. Platt, as an Individual and as a Treating Physician and
State Actor Operating Under Color of Law, Dr. Sheena
Ranade, as an Individual, as a Treating Physician, and
as an Individual Acting Under Color of Law, LSW Karen
Glass, as an Individual and as a State Actor, Unnamed
ACS Workers and Employees 1-10, Unnamed Employees
and Workers of New York-Presbyterian Hospital/ Weill
Cornell Medical Center 1-10, Unnamed Workers and
Employees of Mt. Sinai Hospital 1-10, and New York-
Presbyterian Hospital/Weill-Cornell Medical Center,
Defendants.
2022 WL 20717162
— S.D.N.Y. Aug. 19, 2022 Motion
3. 2023 WL 7544216
A.K. v. Lupica et al.
2023 WL 7544216
— S.D.N.Y. July 13, 2023 Jury Verdict
4. Judgment
Shveta Kakar KURTZ, et al., Plaintiffs, v. Dr. Marie
LUPICA, et al., Defendants.
2023 WL 6367915
— S.D.N.Y. Sep. 27, 2023 Jury Verdict
5. Verdict Form
Shveta Kakar KURTZ, Daniel L. Kurtz, solely in their roles
as parent-guardians, and Amna Kakar Kurtz, Plaintiffs, v.
Dr. Marie LUPICA and New York Presbyterian Hospital/
Weill-Cornell Medical Center, Defendants.
2023 WL 6367912
— S.D.N.Y. July 13, 2023 Jury Verdict
6. Docket 1:20-CV-03401
Kakar Kurtz et al v. Hansell et al
— S.D.N.Y. May 01, 2020 Docket
Case 5:26-cv-00698-MAD-MJK Document 5 Filed 04/21/26 Page 61 of 72

Kurtz v. Hansell
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (4)
Direct History (1)
1. Kurtz v. Hansell
2021 WL 1143619 , S.D.N.Y. , Mar. 24, 2021
Related References (3)
2. Kurtz v. Hansell
664 F.Supp.3d 438 , S.D.N.Y. , Mar. 27, 2023
Affirmed by
3. Kakar Kurtz v. Lawson
2025 WL 39860 , 2nd Cir.(N.Y.) , Jan. 07, 2025
4. Kurtz v. Lupica
2023 WL 3510646 , S.D.N.Y. , Apr. 26, 2023
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Kurtz v. Hansell
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:26-cv-00698-MAD-MJK Document 5 Filed 04/21/26 Page 63 of 72

Cole v. Smrtic, Not Reported in Fed. Supp. (2024)
2024 WL 4870495
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 4870495
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Matthew H. COLE, Plaintiff,
v.
Honorable Michael W. SMRTIC, et al. Defendants.
No. 1:24-CV-00847 (MAD/CFH)
|
Signed November 21, 2024
Attorneys and Law Firms
MATTHEW H. COLE, 271 Market Street, Amsterdam, New
York 12010, Plaintiff pro se.
REPORT-RECOMMENDATION & ORDER
CHRISTIAN F. HUMMEL, United States Magistrate Judge
I. In Forma Pauperis
*1 Plaintiff pro se Matthew H. Cole (“plaintiff”)
commenced this action (No. 1:24-CV-00623) on May 6,
2024, by filing a complaint. See Dkt. No. 1 (“Compl.”).
On September 26, 2024, plaintiff submitted what the Court
construes to be a supplement to the complaint. 1 See Dkt. No.
7. In lieu of paying this Court's filing fees, he submitted an
application for leave to proceed in forma pauperis (“IFP”).
See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP
application and determines that he financially qualifies to
proceed IFP. 2 Thus, the Court proceeds to its review of the
complaint pursuant to 28 U.S.C. § 1915. Plaintiff has also
submitted for the Court's review a Pro Se Application for
Permission to File Electronically and a Motion to Appoint
Counsel. See Dkt. Nos. 4, 5.
1 The submission includes a letter addressed to
District Judge D'Agostino, titled, “Requirements
for Cases Removed From State Court,” Dkt. No.
7; a receipt from Montgomery County Clerk dated
December 8, 2022; and a “Notice of Claim” with
the caption of Cole v. County of Montgomery,
dated December 7, 2022. See Dkt. No. 7. The
undersigned has reviewed this submission in
connection with the initial review of plaintiff's
complaint. See Sira v. Morton, 380 F. 3d 57, 67 (2d
Cir. 2004).
2 Plaintiff is advised that, although he has been
granted IFP status, he is still required to pay all fees
and costs he may incur in this action, including,
but not limited to, copying fees, transcript fees, and
witness fees.
II. Initial Review
A. Legal Standards
Section 1915 of Title 28 of the United States Code directs
that, when a plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time if the court determines that ... the
action or appeal (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). Thus, it is a court's responsibility to
determine that a plaintiff may properly maintain his complaint
before permitting him to proceed with his action.
Where, as here, the plaintiff proceeds pro se, “the court
must construe his submissions liberally and interpret them
to raise the strongest arguments that they suggest.” Kirkland
v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014)
(per curiam) (internal quotation marks omitted); see also
Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). As
the Second Circuit stated,
There are many cases in which we have said that a pro
se litigant is entitled to “special solicitude,” that a pro se
litigant's submissions must be construed “liberally,” and
that such submissions must be read to raise the strongest
arguments that they “suggest[.]” At the same time, our
cases have also indicated that we cannot read into pro se
submissions claims that are not “consistent” with the pro
se litigant's allegations, or arguments that the submissions
themselves do not “suggest,” that we should not “excuse
frivolous or vexatious filings by pro se litigants,” and that
pro se status “does not exempt a party from compliance
with relevant rules of procedural and substantive law[.]”
*2 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
477 (2d Cir. 2006) (citations and footnote omitted); see also
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92
(2d Cir. 2008).
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Cole v. Smrtic, Not Reported in Fed. Supp. (2024)
2024 WL 4870495
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
“The [Second Circuit]’s ‘special solicitude’ for pro se
pleadings has its limits, because pro se pleadings still must
comply with ... the Federal Rules of Civil Procedure [(‘Fed.
R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668
(CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019)
(quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).
Pleading guidelines are provided in the Federal Rules of
Civil Procedure. Specifically, Rule 8 requires the pleading to
include:
(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...
FED. R. CIV. P. 8(a). Although “[n]o technical form is
required,” the Federal Rules make clear that each allegation
contained in the pleading “must be simple, concise, and
direct.” Id. at 8(d). “The purpose ... is to give fair notice
of the claim being asserted so as to permit the adverse
party the opportunity to file a responsive answer, prepare an
adequate defense and determine whether the doctrine of res
judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54,
54 (N.D.N.Y. 1999) (internal quotation marks and citations
omitted). Allegations that “are so vague as to fail to give the
defendants adequate notice of the claims against them” are
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104
(2d Cir. 2009) (summary order).
Further, Fed. R. Civ. P. 10 provides:
[a] party must state its claims or
defenses in numbered paragraphs,
each limited as far as practicable to
a single set of circumstances. A later
pleading may refer by number to
a paragraph in an earlier pleading.
If doing so would promote clarity,
each claim founded on a separate
transaction or occurrence – and each
defense other than a denial – must be
stated in a separate count or defense.
FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing]
an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54
(internal quotation marks and citations omitted). A complaint
that fails to comply with the pleading requirements “presents
far too a heavy burden in terms of a defendant's duty to
shape a comprehensive defense and provides no meaningful
basis for the Court to assess the sufficiency of their claims.”
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As
the Second Circuit has held, “[w]hen a complaint does not
comply with the requirement that it be short and plain, the
court has the power, on its own initiative ... to dismiss the
complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (citations omitted). However, “[d]ismissal ... is usually
reserved for those cases in which the complaint is so confused,
ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.” Id. (citations omitted).
*3 This Court also has an overarching obligation to
determine that a claim is not legally frivolous before
permitting a pro se plaintiff's complaint to proceed. See, e.g.,
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d
362, 363 (2d Cir. 2000). “Legal frivolity ... occurs where
‘the claim is based on an indisputably meritless legal theory
[such as] when either the claim lacks an arguable basis in
law, or a dispositive defense clearly exists on the face of the
complaint.’ ” Aguilar v. United States, Nos. 99-MC-0304, 99-
MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) 3
(quoting Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490
U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal
theory ... or factual contentions lack an arguable basis.”).
3 Any unpublished cases cited within this Report-
Recommendation & Order have been provided to
plaintiff.
B. Complaint
Plaintiff's civil cover sheet indicates that he seeks to bring this
action pursuant to “Title U.S.C. 18 Section 241, Conspiracy
Against Rights & Title U.S.C. 18 Section 242 Deprivation
of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil
cover sheet further provides that his cause of action involves,
“Violation of Due process, Speedy Trial Rights, Ineffective
Assistance of Counsel. I feel I am being targeted for being
black and gay.” Id.
Plaintiff's form complaint checks the box indicating that
he seeks to bring this case pursuant to 42 U.S.C. § 1983.
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See Compl. at 3. In response to the question in the form
complaint asking in “what federal constitutional or statutory
right(s) do you claim is/are being violated by state or local
officials,” plaintiff responds, “Due Process, 30.30 Speedy
Trial Violation, Ineffective Assistance of counsel.” 4 Id. In
response to a question asking him to explain “how each
defendant acted under color of state or local law,” plaintiff
states “Each judge deliberately denied me due process, and
refused to look into the paperwork to see that i was improperly
denied my speedy trial rights. It was a tean [sic] effort.
The ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me. All mentioned
actions were done and upheld even after I showed federal law
with supportive case law as a pro se litigant.” Id.
4 Although plaintiff generally references ineffective
assistance of counsel, Compl. at 4, he does not
name any attorney who may have represented
him. Any claims against the prosecutor would
not be considered ineffective assistance of counsel
because Mr. Maxwell, as the prosecutor, was not
plaintiff's attorney.
Plaintiff provides that his “case is still on appeakl [sic] in
Appellate Court Third Department. I feel they are guilty,
or part of what I call a scandal. I went to them from the
very start with a complaint to the grievance committee,
where they denied any wrongdoing. It must be ok to violate
Constitutional rights there. This is from March 2019 to
present” Id.
In response to a question that asks plaintiff to state the facts
underlying his claims, plaintiff states, “Please see attached
Article 78 that is attached. It was dismissed being in the wrong
court, but is on point.” Id. at 4. Plaintiff did not provide the
Court with any such attachment and has not submitted any
Article 78 materials. See Compl., Dkt. No. 7.
In response to the form complaint's question asking about
any injuries suffered as a result of the conduct he complains
of, plaintiff states, “Sever [sic] depression over 20 years,
irreperable [sic] harm, defamation of charcter [sic] by
arguments not legally allowed to give. Loss of income,
inability to gain and keep employment, mental trauma,
instilled disbelief in justice in the legal system, familial
traumam [sic] due to my legal battles.” Id. Indicating the relief
sought, plaintiff states
*4 Petitioner seeks reinstatement
of driving priveldges [sic], and 10
million dollars for damages caused by
conflict of interest, deliberate violation
of Due Process, Speedy Trial rights,
Ineffective assistance of counsel,
malice, Brady Violation, Petitioner
claims deliberate misconduct and
malice in Montgomery County Court,
the Saratoga Disrict Attorney's Office,
and the Supreme Court Appellate
Division Third department. ** This is
subject to change if an attorney agrees
to represent.
Compl. at 5. Although he typed his name, plaintiff does not
sign the complaint where a signature is indicated. See id. at 8.
Plaintiff provides in his supplement that he “removed this
action to district court asserting jurisdiction pursuant to 42
U.S.C. 1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff states
that he removed this case from Montgomery County Supreme
Court. See id. He states that he seeks or sought the removal
because he was told he was “not guarantee counsel” at the
state, but that “[i]n Federal Court, there is that option, pending
qualification, and I am told, if a lawyer agrees to take it, then
I really have something. I am in dire need of counsel.” Id.
Plaintiff states, “[t]he ineffective assistance of counsel and
The County Court are a matter already mentioned in the
appeal.” Dkt. No. 7 at 2. Plaintiff states that “[t]o get my
conviction, I allege judicial and prosecutorial misconduct,
and ineffective assistance of counsel × 4. That is why I am
pro se. I had to protect myself when appointed counsel did
not. It also went through a couple judges which is why they
are mentioned in the preliminary complaint/paperwork, and
why I mention bias.” Id. Plaintiff states he can “prove each
thing I saw not just with my words, but with transcripts 5 from
the County Court, and the Adult Drug Court.” Id. Plaintiff
refers to being drug free for four and a half years and having
academic success in college. Id. at 3. He states that he wishes
this Court to hear his case because he believes he will not
“see bias” in federal court “like I saw in others.” Id. Plaintiff
states that he “also put in a Notice of Removal in the Federal
Court for those criminal charges that led to the Complaint. I
do not trust the assigned appellate attorney. That case too has
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Constitutional violations. That case number is 1:24-CR-301
(AMN).” Id.
5 Plaintiff did not provide any transcripts.
C. Discussion 6
6 As a courtesy, the Court has provided plaintiff with
copies of any unpublished cases cited within this
Report-Recommendation & Order.
1. Rule 8
As a threshold issue, plaintiff's complaint fails to meet the
requirements of Rule 8. See FED. R. CIV. P. 8(a)(2). He
does not provide a short and plain statement of the claim
demonstrating why he is entitled to relief. Although he
makes general references to both an Article 78 proceeding
and a criminal proceeding and unexplained references to
“Due Process, 30.30 Speedy Trial Violation, Ineffective of
Counsel,” he does not provide factual support or context.
Thus, his complaint does not provide “fair notice” to
defendants of the claims against them. See FED. R. CIV. P.
8(a)(2).
2. Heck v. Humphrey
However, there are several substantive concerns that further
lead the undersigned to recommend dismissal. First, in
referencing to “Due Process, 30.30 Speedy Trial Violation,
Ineffective of Counsel” and explicitly referencing a criminal
conviction, it is clear that plaintiff is attempting to seek
some kind of review of a criminal proceeding or conviction.
See Compl. at 3. Plaintiff also accuses all named judges
of denying him due process and contends that an unnamed
“ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me.” Compl. at 4.
Plaintiff also references a conviction. See Dkt. No. 7 at 4.
Such claims would be barred by Heck v. Humphrey.
*5 As this Court, citing the District of Connecticut, has set
forth:
In Heck, the Supreme Court held that in order for a
plaintiff “to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that
the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ
of habeas corpus.” Id. at 486-87. The court further held
that “[a] claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated
is not cognizable under § 1983.” Id. at 487 (emphasis in
original).
[ ]
Thus, under Heck and its progeny, if a conviction has not
been invalidated previously, a Ҥ 1983 action is barred ...
no matter the target of the prisoner's suit ... if success in
that action would necessarily demonstrate the invalidity
of confinement or its duration.” Wilkinson v. Dotson, 544
U.S. 74, 81-82 (2005) (emphasis in original).
Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024
WL 2747619, at *3 (N.D.N.Y. May 29, 2024), report-
recommendation adopted sub nom. Ali v. Dow, No. 8:24-
CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024)
(quoting Zografidis v. Richards, No. 3:22-CV-00631 (AVC),
2022 WL 21756775, at *7 (D. Conn. July 6, 2022), report and
recommendation adopted (Oct. 7, 2022), aff'd, No. 22-3197,
2023 WL 7538211 (2d Cir. Nov. 14, 2023)).
Plaintiff has failed to demonstrate that any criminal charge(s),
conviction, or sentence has been “reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas
corpus.” Zografidis, 2022 WL 21756775, at *7. Although
plaintiff's complaint wants for detail, the undersigned can
clearly determine that plaintiff seeks review of his criminal
proceedings, conviction, and/or sentence. The claims plaintiff
seeks to pursue relate to allegations that he was denied
due process, denied speedy trial rights, and experienced
ineffective assistance of counsel. Accordingly, plaintiff's
claims are barred by Heck unless and until he can demonstrate
favorable termination of his criminal conviction. 7
7 The undersigned recognizes that claims that are
determined to be barred by Heck are dismissed
without prejudice. However, the undersigned has
recommended dismissal with prejudice because
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plaintiff has only named defendants who are
immune from relief. Accordingly, the undersigned
is recommending dismissal of the claims based on
these immunities, rather than a Heck dismissal. The
undersigned has included the Heck review for sake
of completeness.
3. Immunities
Plaintiff names as defendants several defendants who are
immune from suit. Insofar as plaintiff names Hon. Michael
W. Smrtic, Interim Montgomery County Judge and Tatiana N.
Coffinger, “County/Family/Surrogate's Court Judge” 8 such
claims would be barred by judicial immunity.
8 Although plaintiff provides no facts regarding
any family court proceedings, that he named a
family court judge and makes general reference
to that he seeks review over actions taken by
a family court judge. Even if plaintiff were to
amend his complaint to provide facts about any
possible family court proceedings and details
about any alleged violations of his rights that he
believes he faced in that Court, if plaintiff seeks
this Court's review of an order of the family
court, such review would be barred by Rooker-
Feldman, and if plaintiff seeks this Court's review
or intervention of a currently pending/ongoing
Family Court proceeding, such review would be
barred by Younger. See Porter v. Nasci, No. 5:24-
CV-0033 (GTS/TWD), 2024 WL 1142144, at
*4 (N.D.N.Y. Mar. 15, 2024) (citations omitted),
report and recommendation adopted, 2024 WL
3158645 (N.D.N.Y. June 25, 2024) (“Under the
Rooker-Feldman doctrine, a federal district court
lacks authority to review a final state court order
or judgment where a litigant seeks relief that
invites the federal district court to reject or overturn
such a final state court order or judgment.”); see
also Diamond “D” Constr. Corp. v. McGowan,
282 F.3d 191, 198 (2d Cir. 2002) (“[F]ederal
courts [must] abstain from taking jurisdiction over
federal constitutional claims that involve or call
into question ongoing state proceedings.”).
*6 “With minor exceptions, judges are entitled to absolute
immunity for actions relating to the exercise of their judicial
functions.” Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/
ATB), 2017 WL 8777370, at *8 (N.D.N.Y. July 7, 2017)
(citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per
curiam)). “Judicial immunity has been created for the public
interest in having judges who are ‘at liberty to exercise
their functions with independence and without fear of
consequences.’ ” Id. (quoting Huminski v. Corsones, 396
F.3d 53, 74 (2d Cir. 2004)). “Judicial immunity applies even
when the judge is accused of acting maliciously or corruptly.”
Id. (citation omitted); see Positano v. New York, No. 12-
CV-2288 (ADS/AKT), 2013 WL 880329, at *4 (E.D.N.Y.
Mar. 7, 2013) (explaining that the plaintiff may not bring
action against a judge for actions taken in his judicial capacity,
even when the actions violated the ADA).
“Judicial immunity is immunity from suit, not just immunity
from the assessment of damages.” Zavalidroga, 2017 WL
8777370, at *8 (citing Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)). “The only two circumstances in which judicial
immunity does not apply is when he or she takes action
‘outside’ his or her judicial capacity and when the judge takes
action that, although judicial in nature, is taken ‘in absence
of jurisdiction.’ ” Id. (quoting Mireles, 502 U.S. at 11-12).
“In determining whether or not a judge acted in the clear
absence of all jurisdiction, the judge's jurisdiction is ‘to be
construed broadly, and the asserted immunity will only be
overcome when the judge clearly lacks jurisdiction over the
subject matter.’ ” Pacherille v. Burns, 30 F. Supp. 3d 159,
163 (N.D.N.Y. 2014) (quoting Ceparano v. Southampton Just.
Ct., 404 F. App'x 537, 539 (2d Cir. 2011) (summary order)).
“Whether a judge acted in a judicial capacity depends on
the nature of the act [complained of] itself, i.e., whether it
is a function normally performed by a judge, and [on] the
expectations of the parties, i.e., whether they dealt with the
judge in his judicial capacity.” Ceparano, 404 F. App'x at 539
(internal quotation marks and citation omitted). “Further, if
the judge is performing in his judicial capacity,” he “ ‘will not
be deprived of immunity because the action he took was in
error, was done maliciously, or was in excess of his authority;
rather, he will be subject to liability only when he has acted
in the clear absence of all jurisdiction.’ ” Ceparano, 404 F.
App'x at 539 (quoting Stump v. Sparkman, 435 U.S. 349, 362
(1978)). “Judges are not, however, absolutely ‘immune from
liability for nonjudicial actions, i.e., actions not taken in the
judge's judicial capacity.’ ” Bliven v. Hunt, 579 F.3d 204, 209
(2d Cir. 2009) (quoting Mireles, 502 U.S. at 11).
Thus, as plaintiff names the judicial defendants in relation to
actions or omissions that they took in their roles as judges,
their actions are protected by absolute judicial immunity.
To the extent plaintiff names Hon. Felix Catena, “Retired
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Administrative Law Judge,” Judge Catena is also protected
by absolute judicial immunity as a judge's retirement, “does
not impact [his or] her immunity for acts taken in [his or]
her official capacity before her retirement.” McCray v. Lewis,
No. 16-CV-3855 (WFK/VMS), 2016 WL 4579081, at *2
(E.D.N.Y. Aug. 31, 2016). To the extent plaintiff may seek to
sue the judges their official capacities, the suit is barred by the
Eleventh Amendment. See Pacherille v. Burns, 30 F. Supp.
3d 159, 163 n.5 (N.D.N.Y. 2014) (“The Eleventh Amendment
shields judges from suit to the extent that they are sued in their
official capacities.”).
*7 In addition, plaintiff also references, exclusively in his
“relief” section of the form complaint, “the Supreme Court
Appellate Division, Third Department” when stating that he
experienced “deliberate misconduct and malice.” Compl. at
7. He does not name this Court as a defendant anywhere in
the complaint. However, even if plaintiff were to have named
the Appellate Division, Third Department as a defendant,
such defendant would also need to be dismissed based on
Eleventh Amendment immunity as the Appellate Division “is
merely an agency or arm of New York State.” Benyi v. New
York, No. 3:20-CV-1463 (DNH/ML), 2021 WL 1406649, at
*5 (N.D.N.Y. Mar. 23, 2021), report and recommendation
adopted, No. 3:20-CV-1463, 2021 WL 1404555 (N.D.N.Y.
Apr. 13, 2021) (citation omitted). Accordingly, to the extent
a liberal reading of the complaint may suggest that plaintiff
seeks to name the Appellate Division as a defendant, such
claims are barred by Eleventh Amendment immunity. See
Compl.
Finally, insofar as plaintiff seeks to sue Prosecutor Samuel V.
Maxwell, Esq., Assistant District Attorney, in addition to the
Heck issues noted above, he would be protected by absolute
prosecutorial immunity. As this Court has recently reiterated,
Prosecutors enjoy “absolute immunity from § 1983 liability
for those prosecutorial activities ‘intimately associated
with the judicial phase of the criminal process.’ ” Barr v.
Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler
v. Pachtman, 424 U.S. 409, 430 (1976)). This immunity
encompasses “virtually all acts, regardless of motivation,
associated with [the prosecutor's] function as an advocate.”
Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.
1995) (internal quotations and citation omitted). Absolute
immunity applies when a prosecutor's conduct, acting as an
advocate during the judicial phase of the criminal process,
“involves the exercise of discretion.” Flagler v. Trainor,
663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher,
522 U.S. 118, 127 (1997)).
Accordingly, absolute immunity extends to functions such
as “deciding whether to bring charges and presenting a case
to a grand jury or a court, along with the tasks generally
considered adjunct to those functions, such as witness
preparation, witness selection, and issuing subpoenas.”
Simon v. City of New York, 727 F.3d 167, 171 (2d
Cir. 2013) (citing Imbler, 424 U.S. at 431 n.33); see
also Flagler, 663 F.3d at 547 (explaining, “the Supreme
Court has found prosecutors absolutely immune from
suit for alleged misconduct during a probable cause
hearing, in initiating a prosecution, and in presenting
the State's case ... [but] withheld absolute immunity for
conduct unrelated to advocacy, such as giving legal advice,
holding a press conference, or acting as a complaining
witness.”). “[O]nce a court determines that challenged
conduct involves a function covered by absolute immunity,
the actor is shielded from liability for damages regardless
of the wrongfulness of his motive or the degree of injury
caused ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503
(2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193,
199-200 (1985)).
Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024
WL 3649849, at *5 (N.D.N.Y. June 11, 2024), report
and recommendation adopted, No. 5:24-CV-573, 2024 WL
3548760 (N.D.N.Y. July 26, 2024).
Plaintiff appears to suggest that Mr. Maxwell “withheld
potentially exculpatory material” that was used against
him. Compl. at 4. Beyond the Heck barriers already
discussed, even if plaintiff could amend to provide greater
detail, absolute immunity would extent to even this alleged
misconduct as such allegations clearly fall within the scope of
prosecutorial immunity. Accordingly, it is recommended that
any claims against ADA Samuel V. Maxwell be dismissed
for absolute prosecutorial immunity. “Furthermore, because
the District Attorney's prosecutorial immunity is substantive
and not something that can be corrected by a better pleading,
I recommend that the dismissal be with prejudice.” Phillips
v. New York, No. 5:13-CV-927, 2013 WL 5703629, at *5
(N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222
F.3d 99, 223 (2d Cir. 2000)). 9
9 Plaintiff appears to characterize his submissions as
a purported removal to federal court or suggests
that he seeks to remove his case from Montgomery
County Court to this Court. See Dkt. No. 7
(citing 28 U.S.C. § 1441). However, in addition
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to the infirmities mentioned above, plaintiff has
not demonstrated that any proceeding related to
this complaint has been properly removed to, or
is subject to removal to, this Court. See, e.g.,
28 U.S.C. § 1446. Indeed, plaintiff's submissions
appear to indicate that plaintiff is the plaintiff in the
County Court action. See id. § 1446(a).
III. Conclusion
*8 It is ORDERED, that plaintiff's in forma pauperis
application (dkt. no. 2) be GRANTED; and it is
RECOMMENDED, that plaintiff's section 1983 claims
against Honorable Michael W. Smrtic; Tatiana N. Coffinger,
County/Family/Surrogate's Court Judge; and Felix Catena,
Retired Administrative Law Judge (Dkt. Nos. 1, 7) be
DISMISSED WITH PREJUDICE as follows: (1) claims
brought against them in their personal/individual capacities
for judicial immunity, and (2) claims brought against them in
their official capacities for Eleventh Amendment immunity;
and it is further
RECOMMENDED, that plaintiff's section 1983 claims
against Assistant District Attorney Samuel V. Maxwell (Dkt.
Nos. 1, 7) be DISMISSED WITH PREJUDICE due to
absolute prosecutorial immunity; and it is further
RECOMMENDED, that, to the extent a liberal reading
of the complaint may suggest that plaintiff seeks to name
the Appellate Division, Third Department, as a defendant
(Dkt. Nos. 1, 7), such claims be DISMISSED WITH
PREJUDICE as barred by Eleventh Amendment immunity,
and it is
RECOMMENDED, that plaintiff's pro se motion for
permission to file electronically (dkt. no. 4) and motion to
appoint counsel 10 (dkt. no. 5) be DISMISSED AS MOOT
based on the above recommendations, and it is
10 The undersigned also notes that plaintiff did
not contend that he made any efforts to obtain
counsel on his own, show proof of any attorneys
he contacted. See Terminate Control Corp v.
Horowitz, 28 F.3d 1335 (2d Cir. 1994). See Dkt.
No. 5.
ORDERED, that the Clerk serve this Report-
Recommendation & Order on plaintiff in accordance with the
Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), parties have
FOURTEEN (14) 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); FED. R. CIV. P. 6(a), 72. 11
11 If you are proceeding pro se and are served with
this Report-Recommendation and Order by mail,
three (3) additional days will be added to the
fourteen (14) day period, meaning that you have
seventeen (17) days from the date the Report-
Recommendation and Order was mailed to you to
serve and file objections. FED. 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. Id.
§ 6(a)(1)(c).
All Citations
Not Reported in Fed. Supp., 2024 WL 4870495
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Cole v. Smrtic
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Filings (1)
Title PDF Court Date Type
1. Docket 1:24-CV-00847
Cole v. Smrtic et al
— N.D.N.Y. July 08, 2024 Docket
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Cole v. Smrtic
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History (2)
Direct History (2)
1. Cole v. Smrtic
2024 WL 4870495 , N.D.N.Y. , Nov. 21, 2024
Report and Recommendation Adopted by
2. Cole v. Smrtic
2025 WL 247901 , N.D.N.Y. , Jan. 21, 2025
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