Stumpf v. Cooley et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NICHOLAS BATES STUMPF,
Plaintiff,
v.
JEFFREY COOLEY, LINDA
MAYWALT, OLIVIA CHRISTMAN, and
WONISHA GREENLEE,
Defendants.
DECISION AND ORDER
6:21-CV-06248 EAW
INTRODUCTION
Pro se plaintiff Nicholas Bates Stumpf (“Plaintiff”) commenced the instant action
by alleging violations of his civil rights against several individuals, including the
defendants, in connection with child custody proceedings. (Dkt. 1). The Court has entered
two prior Decisions and Orders in this case, granting Plaintiff leave to proceed in forma
pauperis1 and reviewing Plaintiff’s amended complaint (Dkt. 3) and second amended
complaint (Dkt. 7) pursuant to 28 U.S.C. § 1915(e)(2) (Dkt. 6; Dkt. 10).2 In its most recent
Decision and Order, the Court dismissed with prejudice all of Plaintiff’s claims except his
1 	Plaintiff has filed a further motion to proceed in forma pauperis. (Dkt. 12). Because
Plaintiff has already been granted leave to proceed in forma pauperis, this motion is denied
as moot.
2 	Familiarity with the Court’s previous Decisions and Orders is assumed for purposes
of the instant Decision and Order.
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due process claim, which he was afforded a further opportunity to amend. (See Dkt. 10 at
6-13).
Plaintiff 	has 	now 	filed 	a 	third 	amended 	complaint. 	(Dkt. 	11). 	In 	direct
contravention of the Court’s prior Decision and Order, Plaintiff has included in his third
amended complaint his non-due process claims. 	(See id. at 3). 	Because Plaintiff has
offered no reason for the Court to revisit its prior dismissal with prejudice of his non-due
process claims, those claims are again dismissed with prejudice. See, e.g., Syfert v. City of
Rome, No. 6:17-CV-0578 GTSTWD, 2018 WL 3121611, at *3 (N.D.N.Y. Feb. 12, 2018)
(“[T]o the extent the amended complaint repleads Plaintiff’s . . . [claims] which were sua
sponte dismissed with prejudice, such claims are not properly before the Court and will not
be considered upon initial review.”), adopted, 2018 WL 2316681 (N.D.N.Y. May 22,
2018), aff’d, 768 F. App’x 66 (2d Cir. 2019).
As to Plaintiff’s potential due process claim, the Court has reviewed it as required
by § 1915(e)(2) and determines that Plaintiff has stated a procedural due process claim as
to defendants Jeffrey Cooley and Wonisha Greenlee. The Court further finds that Plaintiff
has not stated a procedural due process claim as to defendants Linda Maywalt or Olivia
Christman, and that he has not stated a substantive due process claim as to any of the
defendants.
BACKGROUND
The Court summarizes below the allegations in the third amended complaint
relevant to Plaintiff’s due process claim. 	As is required at this stage of the proceedings,
the Court treats Plaintiff’s factual allegations as true.
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As noted above, Plaintiff’s claims stem from Defendants’ involvement in state court
custody proceedings concerning his son and daughter. 	Plaintiff alleges that on May 11,
2020, defendant Cooley, a CPS Case Supervisor, and defendant Christman, a former CPS
caseworker, “responded to a mandated report inquiry to child protection about a traffic stop
that the plaintiff’s minor daughter was involved in to where a violation of possession of a
controlled substance was present.” 	(Dkt. 11 at 3). 	According to Plaintiff, Cooley and
Christman entered his home in Hamlin, New York, through a closed door and without
permission. (Id.). Plaintiff was cooperative and answered questions about the traffic stop
and the CPS report, and explained that “he had removed the suspected neglectful parent
[i.e. the children’s mother] from the home the night before once he was aware of the traffic
stop.” 	(Id.). 	He further explained that he had allowed the mother to be alone with their
daughter because he believed she was in treatment at a local methadone treatment. (Id.).
Cooley nevertheless performed an “unwarranted and unvoluntary illegal search” of
Plaintiff’s home, and then told Plaintiff that he had to voluntarily bring the children to a
family member’s home, and that if he did not cooperate, the children would be removed
by the police and placed into a foster home. (Id. at 4). Plaintiff then took the children to
their maternal great-grandfather’s home for 24 hours, in his personal vehicle. (Id.).
Plaintiff contacted his personal attorney, who advised him to “politely pick the
children back up . . . after still receiving no court orders[.]” (Id.). After Plaintiff retrieved
his children from their great-grandfather’s house, he was contacted by Monroe County
Sheriff’s Deputies, who stated that the children were in the emergency custody of their
great-grandfather and were not supposed to be removed. 	(Id.). 	Plaintiff “explained that
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there was no legal documentation produced as of that time and that the removal was
voluntary, and that the children were safe with him at his business eating pizza and
watching television.” (Id.).
Cooley then ordered the police to remove the children from Plaintiff’s place of
business, despite there being “no reason or imminent danger present” and “lacking a
judge[’]s order to do so.” (Id.). The police came to Plaintiff’s business and “forced” him
to “sign a voluntary turn over of the children,” who were “taken into an undisclosed
location into NYS foster care for the next 48 hours[.]” (Id.). The police were accompanied
by defendant Greenlee. (Id. at 5). According to Plaintiff, the children were removed from
his custody for “72 hours until court decision . . . had the children removed from foster care
and returned to the temporary residency of the great grandfather and his girlfriend.” (Id.).
With respect to defendant Maywalt, Plaintiff’s factual allegations are unrelated to
any due process claim. (Id.).
“After a year of court dates and once a week visits with the children, the plaintiff
was given his children immediately back by Family court Judge James Vazzana after a
short 15 minute trial[.]” (Id. at 4).
DISCUSSION
I. 	Legal Standards
A. 	Screening Order
“Section 1915 requires the Court to conduct an initial screening of complaints filed
by civil litigants proceeding in forma pauperis, to ensure that the case goes forward only
if it meets certain requirements.” Guess v. Jahromi, No. 6:17-CV-06121(MAT), 2017 WL
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1063474, at *2 (W.D.N.Y. Mar. 21, 2017), reconsideration denied, No. 6:17-CV-
06121(MAT), 2017 WL 1489142 (W.D.N.Y. Apr. 26, 2017). In evaluating the complaint,
a court must accept as true all of the plaintiff’s factual allegations and must draw all
inferences in the plaintiff’s favor. See, e.g., Larkin v. Savage, 318 F.3d 138, 139 (2d Cir.
2003). 	Upon conducting this initial screening, a court must dismiss the case pursuant to
§ 1915(e)(2)(B) “if the [c]ourt determines that the action (i) is frivolous or malicious; (ii)
fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” Eckert v. Schroeder, Joseph & Assocs., 364
F. Supp. 2d 326, 327 (W.D.N.Y. 2005).
B. 	Section 1983 Claims
“To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the
challenged conduct (1) was attributable to a person acting under color of state law, and (2)
deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws
of the United States.” Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing
Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). “Section 1983 itself creates no
substantive rights; it provides only a procedure for redress for the deprivation of rights
established elsewhere.” 	Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of
Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
II. 	Analysis
As set forth above, the only claim that Plaintiff has been permitted to include in the
third amended complaint is a due process claim. 	The Court accordingly must consider
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whether Plaintiff’s factual allegations are sufficient to state a claim for violation of either
procedural or substantive due process.
A procedural due process claim has two elements: “(1) the existence of a property
or liberty interest that was deprived; and (2) deprivation of that interest without due
process.” Bryant v. N.Y. State Educ. Dept., 692 F.3d 202, 218 (2d Cir. 2012). “Parents . . .
have a constitutionally protected liberty interest in the care, custody and management of
their children.” Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999). “As a general
rule, therefore, before parents may be deprived of the care, custody or management of their
children without their consent, due process—ordinarily a court proceeding resulting in an
order permitting removal—must be accorded to them.” 	Id. 	However, in emergency
circumstances, “a child may be taken into custody by a responsible State official without
court authorization or parental consent.” Id. In this context, “[e]mergency circumstances
mean circumstances in which the child is immediately threatened with harm[.]” 	Id.
(citation omitted).
Accepting Plaintiff’s allegations as true, the Court finds that he has stated a claim
for violation of his right to procedural due process as to defendants Cooley and Greenlee.
In particular, Plaintiff has plausibly alleged that Cooley and Greenlee deprived him of the
custody of his children without due process on May 12, 2020, by causing the police to
remove his children and place them into foster care for 72 hours, despite having no court
order and the children not being in any immediate danger. Further, while Plaintiff alleges
that he signed a “voluntary turn over” of his children on this date, he claims to have been
forced to sign this document against his will. Accepting this allegation as true and drawing
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all inferences in Plaintiff’s favor, these facts are sufficient to allow Plaintiff’s procedural
due process claim against Cooley and Greenlee to proceed.
However, Plaintiff has not stated a viable procedural due process claim against
defendants Christman and Maywalt. 	As to Christman, Plaintiff has not alleged that his
children were removed from his custody on May 11, 2020, the only date on which
Christman is alleged to have been involved in the relevant events. Instead, he alleges that
he voluntarily took the children to their great-grandfather’s house in his personal vehicle
on that date. And the factual allegations against Maywalt occurred after the children had
been removed from his custody and are unrelated to a potential due process claim.
Plaintiff’s procedural due process claim against Christman and Maywalt is accordingly
dismissed.
With respect to a substantive due process claim, to prevail on such a claim, Plaintiff
must allege that his separation from his children was “so shocking, arbitrary, and egregious
that the Due Process Clause would not countenance it even were it accompanied by full
procedural protection.” 	Anthony v. City of New York, 339 F.3d 129, 143 (2d Cir. 2003)
(citation omitted). 	“Absent truly extraordinary circumstances, a brief deprivation of
custody is insufficient to state a substantive due process custody claim.” Cox v. Warwick
Valley Cent. Sch. Dist., 654 F.3d 267, 275 (2d Cir. 2011). 	Plaintiff has alleged that his
children were placed into foster care for 72 hours, before a court hearing occurred. He has
not alleged the “truly extraordinary circumstances,” id., that would be necessary for this
brief deprivation of custody to amount to a substantive due process violation. 	See
Southerland v. City of New York, 680 F.3d 127, 154 (2d Cir. 2012) (four-day removal of
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children prior to court hearing “was not so long as to constitute a denial of substantive due
process to” the plaintiff).
Further, while Plaintiff alleges that the children were thereafter returned to the
custody of their great-grandfather for a year pursuant to a court order, he has alleged no
basis for attributing that separation to the named defendants. See id. at 153 (“[O]nce . . .
court confirmation of the basis for removal is obtained, any liability for the continuation of
the allegedly wrongful separation of parent and child can no longer be attributed to the
officer who removed the child[.]” (quotation and citation omitted)). Plaintiff cannot pursue
a substantive due process claim against Defendants on this basis.
In sum, Plaintiff will be permitted to proceed to service with respect to his
procedural due process claim against Cooley and Greenlee. All other claims contained in
the third amended complaint (Dkt. 11) are dismissed with prejudice.
CONCLUSION
For the foregoing reasons, Plaintiff’s procedural due process claim against Cooley
and Greenlee may proceed to service. 	All other claims set forth in the third amended
complaint are dismissed with prejudice.
ORDER
IT HEREBY IS ORDERED that Plaintiff’s motion to proceed in forma pauperis
(Dkt. 12) is denied as moot, because Plaintiff has already been granted leave to proceed in
forma pauperis (Dkt. 6); and it is further
ORDERED that Plaintiff’s procedural due process claim against defendants Cooley
and Greenlee may proceed to service;
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ORDERED that all other claims in Plaintiff’s third amended complaint are
dismissed with prejudice;
ORDERED that the Clerk of Court shall terminate defendants Christman and
Maywalt as parties to this action;
ORDERED that the Clerk of Court is directed to issue summonses and to cause the
United States Marshals Service to serve copies of the summons, complaint, and this Order
on defendants Cooley and Greenlee without Plaintiff’s payment therefor, unpaid fees to be
recoverable if this action terminates by monetary award in Plaintiff’s favor.
SO ORDERED.
_________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated: 	April 3, 2024
Rochester, New York
___________________________	__ 	_________________	__
ELIZ	ZA	A	AB	B	BE	E	ETH A. W	W	W	WO	O	O	OL	L	LF	FORD
Chief Juuddddge
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