Hagans v. Nassau County Department of Social Services

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SHAHIDAH HAGANS,

Plaintiff,

MEMORANDUM & ORDER

-against- 18-CV-1917(JS)(AYS)

NASSAU COUNTY DEPARMENT OF

SOCIAL SERVICES, CHILD PROTECTIVE

SERVICES OF NASSAU COUNTY, KELLY

MAHER, ROSEANNE GITTENS, CAROLYN

RODRIGUEZ, JEWISH CHILD CARE

ASSOCIATION (JCCA), MADONNA HEIGHTS,

JANE AND JOHN DOES 1-20, whose names

are unknown (in their official

capacities)

Defendants.

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APPEARANCES

For Plaintiff: Shahidah Hagans, pro se

1 Griggs Drive

Greenlawn, New York 11740

For Defendants:

Nassau County Jennean R. Rogers, Esq.

Nassau County Attorney’s Office

One West Street

Mineola, New York 11501

Jewish Child Care

Association (JCCA) Glen Feinberg, Esq.

Wilson, Elser, Moskowitz, Edleman & Dicker LLP

133 Westchester Avenue

White Plains, New York 10604

Madonna Heights Robert Scott Delmond, Esq.

Conway, Farrel, Curtin & Kelly, P.C.

48 Wall Street, 20th Floor

New York, New York 10005

SEYBERT, District Judge:

Pro se plaintiff Shahidah Hagans (“Plaintiff”) initiated

this action asserting violations of 42 U.S.C. §§ 1983 (“Section

1983”), 42 U.S.C. § 1985 (“Section 1985”), the New York State

Constitution, and New York state tort law against defendants Nassau

County Department of Social Services (“DSS”), Child Protective

Services of Nassau County (“CPS”), Kelly Maher (“Maher”), Roseanne

Gittens (“Gittens”), Carolyn Rodriguez (“Rodriguez”)

(collectively, the “Nassau County Defendants”), Jewish Child Care

Association (“JCCA”), and Madonna Heights (“Madonna Heights”)

(collectively, “Defendants”). Currently pending before the Court

are Defendants’ motions to dismiss the amended complaint pursuant

to Federal Rule of Civil Procedure 12(b)(6). (Nassau Cty. Mot.,

D.E. 30; Madonna Hts. Mot., D.E. 28; JCCA Mot., D.E. 33.) For the

reasons that follow, Defendants’ motions to dismiss are GRANTED

and Plaintiff is GRANTED leave to file a Second Amended Complaint.

BACKGROUND1

Plaintiff alleges that on or around July 2014, CPS, in

connection with non-party Nassau County Police Department

(“NCPD”), harassed her “for approximately three months” because

she declined to speak to CPS without an attorney. (Am. Compl.,

1 The allegations in the Amended Complaint are assumed to be true

for purposes of this Memorandum and Order. Dick v. Enhanced

Recovery Co., LLC, No. 15-CV-2631, 2016 WL 5678556, at *2

(E.D.N.Y. Sept. 28, 2016) (citation omitted).

2

D.E. 13, at 2.) According to Plaintiff, the NCPD sent police

officers to her home when there were no reports of “imminent

danger” to her children. (Am. Compl. at 2.)

Plaintiff developed an adverse relationship with the

NCPD resulting in her “illegal arrest.” (Am. Compl. at 2.) The

Amended Complaint does not indicate when this arrest occurred. As

a result, Plaintiff’s children were removed from her care for two

weeks. (Am. Compl. at 2.) An unspecified court granted

Plaintiff’s petition for her children’s return and entered a

temporary order of supervision pending litigation regarding the

removal.2 (Am. Compl. at 2.) According to Plaintiff, her children

were not comfortable speaking with CPS and CPS disturbed her, and

her children at school, by using unreasonable tactics in violation

of their rights. (Am. Compl. at 2.)

On March 19, 2015, Defendant Maher, a CPS caseworker,

spoke with Plaintiff’s five-year-old son (“J.J.H.”) at school.

(Am. Compl. at 2.) J.J.H. allegedly told Maher that there was a

gun in Plaintiff’s home and that Plaintiff hit him. (Am. Compl.

at 2.) Maher attempted to visit Plaintiff’s home and left a note

indicating that she would return the next day. (Am. Compl. at 2.)

2 Plaintiff references “civil litigation pending for the wrongful

arrest.” (Am. Compl. at 2.) The Court assumes Plaintiff is

referring to the separate action pending before this Court at

No. 18-CV-1918.

3

Later that same day, Maher returned and Plaintiff informed her

that she would “not entertain any false allegations.” (Am. Compl.

at. 2.) Maher threatened to return with the police and six hours

later removed J.J.H. from Plaintiff’s home after she became angry

with Plaintiff for not cooperating. (Am. Compl. at 3.) According

to Plaintiff, Maher was not concerned for J.J.H.’s safety because

Maher “allowed 6 hours to elapse before making the decision to

remove” J.J.H. and “acted off personal motives and vendetta.”3 (Am.

Compl. at 3.)

According to Plaintiff, DSS failed to follow proper

protocol to reunite Plaintiff with her children and provided her

with only vague answers regarding the custody process. (Am. Compl.

at 3.) Plaintiff wrote to the Directors of the Foster Care Unit

to alert them that Defendant Gittens was not competent and to ask

for her to be replaced. (Am. Compl. at 3.) Plaintiff never

received a response. (Am. Compl. at 3.)

At an unspecified time, and after her children were in

3 Although not named as Defendants, Plaintiff alleges that

between November 2014 and March “20165,” the principal of

Westbury School District and Dryden Elementary School aided CPS

by disclosing privileged information that “in no way constituted

any neglect or abuse” rather than by official report. (Am.

Compl. at 3.) The school district ignored Plaintiff’s request

to prohibit her children from speaking with CPS without her

authorization. (Am. Compl. at 3.) Plaintiff initiated a

separate action against North Babylon School District and

various school officials at Case No. 18-CV-0464.

4

DSS care for eleven months, Plaintiff received a letter detailing

the process for regaining custody of her children. (Am. Compl. at

4.) Court officers informed Plaintiff that DSS declined her

request for custody due to her “righteously indignant attitude.”

(Am. Compl. at 4.) After Plaintiff substituted counsel, she was

instructed to “refrain from expressing [her] feelings outwardly”

and then regained custody of her children. (Am. Compl. at 4.)

At some point after Plaintiff was criminally charged for

unspecified conduct, orders of protection were entered in favor of

her children against Plaintiff. (Am. Compl. at 4.) The orders of

protection hindered Plaintiff’s “due process rights” to Family

Court hearings pursuant to Section 1028 of the Family Court Act.

(Am. Compl. at 4.) Plaintiff alleges that CPS “sabotaged” her

request for Family Court to retain “exclusive authority” over the

orders of protection. (Am. Compl. at 4.)

Plaintiff further avers that another child (“J.H.”) was

falsely diagnosed and placed on medications that affected her

cognitive function. (Am. Compl. at 4.) Moreover, the Amended

Complaint alleges that JCCA acted fraudulently and conspired with

CPS by maintaining “fraudulent records of [her] children’s mental

status, mental diagnoses, and family history.” (Am. Compl. at 4.)

Plaintiff also alleges that JCCA denied access to her children

and, with CPS, medicated her children “against [her] will,” were

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negligent in allowing her daughter to “engage in drugs, drinking,

and unsupervised absconding,” and subjecting her to “sexual

molestation.” (Am. Compl. at 4.) After Plaintiff’s March 2015

arrest, three of her children were committed to psychiatric wards

and suffered trauma. (Am. Compl. at 5-6.)

PROCEDURAL HISTORY

Plaintiff commenced this action on March 19, 2018.

(Compl., D.E. 1.) After many extensions, Plaintiff filed an

Amended Complaint asserting: (1) a violation of the Child Abuse

Prevention and Treatment Act (“CAPTA”), 42 U.S.C. § 5106(g),

against CPS; (2) violations of Section 1983 against “each and every

CPS caseworker and supervisor who had any involvement in the

illegal seizure and unwarranted prolonged detainment of

[Plaintiff’s] children in CPS custody,” who had knowledge that CPS

policy and procedure were not followed, and who did not intervene;4

(3) violations of Section 1983 against the DSS and CPS for failure

to train, supervise, and discipline employees municipal liability;

(4) violations of Section 1985 and the Fourth, Fifth, and

Fourteenth Amendments against the “defendant officers and

prosecuting attorneys” for conspiracy and against CPS for

attempting to suppress her freedom of speech, for violating the

4 As for the first cause of action, Plaintiff alleges a variety

of claims as the basis for Section 1983 liability. (Am. Compl.

at 5.)

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rights of her children to advocate for themselves, and for

conspiring to keep her children away from and compromising her

rights as a parent; (5) against all Defendants for violations of

the New York State Constitution, Article I, Sections 5, 6, 8, 11,

and 12; and (6) against all Defendants for violations of various

claims sounding in tort. (See Am. Compl. at 5-7.)

Plaintiff seeks $1 million in actual damages, $600,000

in punitive damages, and an order directing the removal of records

in the Department of Children and Families database. (Am. Compl.

at 7.)

DISCUSSION

I. Legal Standard

To withstand a motion to dismiss, a complaint must

contain factual allegations that “‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,

1974, 167 L. Ed. 2d 929 (2007)). This plausibility standard is

not a “probability requirement” and requires “more than a sheer

possibility that a defendant has acted unlawfully.” Id. (internal

quotation marks and citation omitted).

In deciding a motion to dismiss, the Court is confined

to “the allegations contained within the four corners of [the]

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complaint,” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71

(2d Cir. 1998), but this has been interpreted broadly to include

any document attached to the complaint, any statements or documents

incorporated in the complaint by reference, any document on which

the complaint heavily relies, and anything of which judicial notice

may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147,

152–52 (2d Cir. 2002).

A complaint filed by a pro se litigant is to be construed

liberally and “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.

Ed. 2d 1081 (2007). Nevertheless, a pro se complaint must state

a plausible claim for relief and comply with the minimal pleading

standards set forth in Federal Rule of Civil Procedure 8. Hiller,

2015 WL 4619624, at *7.

II. Claims Against Madonna Heights and JCCA

Plaintiff seeks relief against Madonna Heights although

Madonna Heights is mentioned only once in the prayer for relief.

(See Am. Compl. at 7.) Plaintiff also seeks relief against JCCA

although she refers to JCCA in only one paragraph of the Amended

Complaint and in the prayer for relief. (Am. Compl. at 4, 7.)

Madonna Heights moves to dismiss the Amended Complaint

because, among other reasons, Plaintiff does not allege any facts

8

under Section 1983 to establish Madonna Heights was involved in an

alleged constitutional deprivation. (Madonna Heights Br., D.E.

28-2, at 6-9.) JCCA moves to dismiss the Amended Complaint on the

grounds that (1) Plaintiff does not allege how JCCA violated her

constitutional rights nor that JCCA is a state actor and (2) state

law claims fail as a matter of law. (JCCA Br., D.E. 35, at 3-9.)

In opposition, Plaintiff does not reference or make any

arguments as to Madonna Heights or JCCA. (See generally Pl. Opp.,

D.E. 42.) Thus, Plaintiff’s claims against Madonna Heights and

JCCA are deemed abandoned and are DISMISSED with leave to amend.

Jennings v. Hunt Companies, Inc., 367 F. Supp. 3d 66, 69 (S.D.N.Y.

2019) (collecting cases); Randall v. Dish Network, LLC, No. 17-

CV-5428, 2018 WL 3235543, at *5 (E.D.N.Y. July 2, 2018) (collecting

cases); Verdi v. City of N.Y., 306 F. Supp. 3d 532, 552 (S.D.N.Y.

2018).

III. Claims Against Defendant Rodriguez

Plaintiff names Defendant Rodriguez in the case caption

although the Amended Complaint contains no allegations at all as

to Defendant Rodriguez. (See generally Am. Compl.) “‘It is well-

settled that where the complaint names a defendant in the caption

but contains no allegations indicating how the defendant violated

the law or injured the plaintiff, a motion to dismiss the complaint

in regard to that defendant should be granted.’” Moschetto v.

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Nassau Cty. Sheriff, No. 10-CV-1971, 2011 WL 2457927, at *3

(E.D.N.Y. June 16, 2011) (quoting Dove v. Fordham Univ., 56 F.

Supp. 2d 330, 335 (S.D.N.Y. 1999)); Kalamaras v. Ewald, No. 13-

CV-4274, 2013 WL 6081705, at *3 (E.D.N.Y. Nov. 18, 2013). In

opposition, Plaintiff argues that “Rodriguez showed gross

negligence in [her] duties . . . to withhold my children from me

based on practices that were outside the scope of [her] duties.”

(Pl. Opp. at 8.) However, because Plaintiff may not use “her

opposition to a dispositive motion as a means to amend the

complaint,” claims against Defendant Rodriguez are DISMISSED with

leave to amend. Shah v. Helen Hayes Hosp., 252 F. App’x 364, 366

(2d Cir. 2007).

IV. Claims Pursuant to CAPTA (42 U.S.C. § 5106(g)) against CPS

Plaintiff asserts a violation of CAPTA against CPS. (Am.

Compl. at 5.) However, “none of the ‘provisions of CAPTA

provide[ ] for an independent private right of action, or that an

implied right of action exists pursuant to 42 U.S.C. § 1983 for a

violation of this action.’” Hamrick v. Hamrick, No. 14-CV-0176,

2014 WL 1795163, at *10 (N.D.N.Y. May 6, 2014) (quoting Ingrao v.

Cty. of Albany, No. 01–CV-0730, 2006 WL 2827856, at *6 (N.D.N.Y.

Oct. 2, 2006)) (alterations in original); see also Daniels v.

Murphy, No. 06-CV-5841, 2007 WL 1965303, at *2 n.4 (E.D.N.Y.

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July 2, 2007). Accordingly, Plaintiff’s claims under CAPTA are

DISMISSED with prejudice.

V. Claims Asserted on Behalf of Plaintiff’s Children

It appears that Plaintiff may assert claims on behalf of

her children. (See, e.g., Am. Compl. at 7.) Federal Rule of Civil

Procedure 17(c)(1)(A) permits a guardian to bring suit on behalf

of a minor. “However, it is well established that ‘[a] person who

has not been admitted to the practice of law may not represent

anybody other than himself.’” Bullock v. DSS, No. 17-CV-1302,

2018 WL 1115218, at *4 (N.D.N.Y. Jan. 18, 2018), R&R adopted, 2018

WL 1111059 (N.D.N.Y. Feb. 26, 2018) (quoting Guest v. Hansen, 603

F.3d 15, 20 (2d Cir. 2010)). This rule extends to parents: “[A]

parent not admitted to the bar cannot bring an action pro se in

federal court on behalf of his or her child.” Tindall v. Pultney

High Sch. Dist., 414 F.3d 281, 284-85 (2d Cir. 2005).

Plaintiff does not sufficiently state on whose behalf

many of her claims are made. Therefore, if Plaintiff files a

Second Amended Complaint and proceeds pro se, as described below,

she should not include any claims on behalf of her minor children.

VI. Plaintiff’s Section 1983 Claims

To state a claim under Section 1983, Plaintiff must plead

that Defendants deprived her of a federal or constitutional right

while acting under color of state law. Cox v. Warwick Valley Cent.

11

Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011). As a preliminary

matter, Plaintiff alleges that CPS workers were “negligent in their

duties” in violation of Section 1983. (Am. Compl. at 5, 7.)

“Allegations of negligence are insufficient to state a claim under

§ 1983.” Butler v. N.Y. State Corr. Dep’t, No. 94-CV-5054, 1996

WL 438128, at *3 (S.D.N.Y. Aug. 2, 1996) (citing Daniels v.

Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665, 88 L. Ed. 2d 662

(1986)). On this basis, claims against the individual named CPS

caseworker Defendants, and “each and every CPS caseworker and

supervisory who had any involvement” (Am. Compl. at 5), in the

removal of Plaintiff’s children, are DISMISSED with leave to amend.

Nonetheless, after a liberal reading of the Complaint,

the Court construes the Amended Complaint as asserting Section

1983 claims arising out of due process violations for: (1) CPS’s

decision to remove her children from her home; (2) CPS’s failure

to follow proper procedure in removing her children from her home;

and (3) the decision to pursue an order of protection causing

Plaintiff’s separation from her children. (See Am. Compl. at 3-

4; Pl Opp. at 3-4.) “The state’s removal of a child from his or

her parent may [ } give rise to a variety of cognizable

constitutional claims.” Southerland v. City of N.Y., 680 F.3d

127, 142 (2d Cir 2012) (explaining that parents may assert a claim

12

for violation of right to substantive due process and due process).

The Court addresses each in turn.

A. Substantive Due Process

“Parents have a ‘substantive right under the Due Process

Clause to remain together with their children without the coercive

interference of the awesome power of the state.’” Southerland,

680 F.3d at 142 (quoting Tenenbaum v. Williams, 193 F.3d 581, 600

(2d Cir. 1999)) (alterations omitted). “‘While a procedural due

process claim challenges the procedure by which a removal is

effected, a substantive due process claim challenges the ‘fact of

the removal’ itself.” Id. (quoting Bruker v. City of N.Y., 92 F.

Supp. 2d 257, 266–67 (S.D.N.Y. 2000)) (alteration in original).

To establish a substantive due process violation based on the

removal of children from the home, “‘a plaintiff must demonstrate

that the state action was so egregious, so outrageous, that it may

fairly be said to shock the contemporary conscience.’” Mortimer

v. City of N.Y., No. 15-CV-7186, 2018 WL 1605982, at *14 (S.D.N.Y.

Mar. 29, 2018) (quoting Southerland, 680 F.3d at 151) (internal

quotation marks omitted).

There is no violation of a parent’s constitutionally

protected interests where a caseworker “has a reasonable basis for

thinking that the child is abused or neglected.” Southerland, 680

F.3d at 152. The reasonable basis standard reflects the “need for

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unusual deference” to those who investigate allegations of child

abuse or neglect. Id. A temporary removal for several days does

not affect a substantive due process violation where the purpose

is to keep the child safe. Id. at 152-53. Of critical

significance, once a “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.” Id. at 153 (internal

quotation marks and citations omitted).

Accepting all allegations as true, Plaintiff asserts a

plausible substantive due process claim if a post-removal judicial

proceeding was not “promptly held to confirm that there exists a

reasonable basis for the removal. Id., 680 F.3d at 153. However,

Plaintiff fails to allege sufficient facts for the Court to

ascertain the period of time for which her claim is based. Indeed,

it is not entirely clear to the Court whether Plaintiff’s claim is

based on a removal that occurred in 2014 or 2015, or beyond.

Further, Defendants argue, on information and belief,

that “the Nassau County Family Court issued some form of a ruling

that substantiated the findings of neglect and removal of her

children.” (Nass. Co. Br., D.E. 32, at 15.) If true, “any

liability for the continuation of the allegedly wrongful

separation of parent and child can no longer be attributed to the

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officer who removed the child.” Southerland, 680 F.3d at 153

(citations omitted). Yet, the Court cannot determine the

“viability of such a substantive due process cause of action on

the facts . . . because the record is not entirely clear as to

whether such a post-removal judicial proceeding occurred, and if

so, the nature of it.” Id. at 154. Accordingly, Plaintiff’s

substantive due process claim arising out of the removal of her

children is DISMISSED with leave to amend.

B. Procedural Due Process

Both “parents and the children may have a cause of action

for violation of the Fourteenth Amendment under a theory of denial

of procedural due process.” Southerland, 680 F.3d at 142. In the

Second Circuit, “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. at 149

(internal quotation marks and citation omitted). However,

“children may be removed without a court order or parental consent

in emergency circumstances where there is objectively reasonable

evidence that the ‘children will be left bereft of care and

supervision’ and that the risk of harm to the children is

imminent.” Mortimer, 2018 WL 1605982, at *16 (quoting Southerland,

680 F. 3d at 149).

15

Plaintiff argues a violation of procedural due process

with respect to J.J.H.’s removal because Defendant Maher had no

“factual basis to believe there was imminent danger” and instead

acted on personal motives. (Pl. Opp. at 4; Am.. Compl. at 3.)

The Court construes this as asserting a violation of procedural

due process based on inadequate pre-removal proceedings. At this

stage in the proceedings, Plaintiff’s “allegation--that there was

no emergency that warranted the children’s removal without a court

order--is sufficient,” and Plaintiff states a claim that J.J.H.

was not in imminent danger, and there was “reasonably sufficient

time to seek prior judicial authorization.” Sulaymu-Bey v. City

of N.Y., No. 17-CV-3563, 2019 WL 1434597, at *5 (E.D.N.Y. Mar. 29,

2019); Southerland, 680 F.3d at 149 (citations omitted).

However, like Plaintiff’s substantive due process claim,

the Court cannot decipher the basis for Plaintiff’s remaining

claims for violations of procedural due process, if any. Plaintiff

alleges that unspecified orders of protection hindered her right

to due process pursuant to Family Court Act § 1028.5 Yet, the

5 To the extent Plaintiff asserts claims regarding the adequacy

of the Family Court proceedings, the court lacks subject matter

jurisdiction. Under the Rooker-Feldman doctrine, the Court is

barred from reviewing issues that have been adjudicated in state

court. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544

U.S. 280, 283-84, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005).

The Court also cannot decide issues “inextricably intertwined”

with state court decisions. See e.g., Exxon Mobil Corp., 544

U.S. at 286 n.1 (citation omitted). There are no allegations

16

Court cannot determine (1) the date(s) on which any other removals

occurred and whether it is limited to all or some of her children;

(2) whether Plaintiff’s due process claims are limited to pre-

removal procedures or post-removal procedures; (3) details

regarding the time, place or substance of any post-removal hearings

or orders of protection. Accordingly, any procedural due process

claim based on inadequate pre-removal proceedings (other than the

removal of J.J.H. described above) and post-removal proceedings

are DISMISSED with leave to amend. See Charles v. ACS Kings, No.

16-CV-6589, 2017 WL 384323, at *4 (E.D.N.Y. Jan. 25, 2017).

C. False Arrest and Malicious Prosecution

The Court also construes the Amended Complaint to allege

Section 1983 claims for false arrest and false imprisonment against

the individually-named CPS Defendants on the basis that they

provided false or misleading evidence that resulted in her arrest.

(Am. Compl. 2.)

In the context of Section 1983 false arrest and malicious

prosecution claims, “‘[a] civilian complainant, by merely seeking

police assistance or furnishing information to law enforcement

regarding proceedings in the underlying Family Court case.

Nonetheless, “whether ongoing or final, the court lacks subject

matter jurisdiction to address issues dealing with child

custody, neglect and visitation.” Johnson v. N.Y., No. 04-CV-

1070, 2007 WL 764514, at *5 n.2 (E.D.N.Y. Mar. 9, 2007), aff’d,

283 F. App’x 877 (2d Cir. 2008) (citing Phifer v. City of N.Y.,

289 F.3d 49, 57 (2d Cir. 2002)).

17

authorities who are then free to exercise their own judgment as to

whether an arrest should be made and criminal charged filed, will

not be held liable for false arrest or malicious prosecution.’”

Gonzalez v. Delaware Cty., No. 17-CV-0373, 2017 WL 6001823, at *8

(N.D.N.Y. Dec. 4, 2017) (quoting Carmellino v. District 20 of

N.Y.C. Dep’t of Educ., No. 03-CV-5942, 2006 WL 2583019, at *61

(S.D.N.Y. Sept. 6, 2006)). “An officer’s independent decision to

arrest a suspect normally ‘severs the causal connection’ between

the informant and the arrestee.” Id. (quoting Soto v. City of

N.Y., 132 F. Supp. 3d 424, 443 (E.D.N.Y. July 22, 2011)). An

informant may be held responsible, however, “if she ‘takes an

active role in the arrest of the plaintiff, such as giving advice

and encouragement or importuning the authorities to act, with the

intent to confine plaintiff.’” Id. (quoting TADCO Constr. Corp.

v. Dormitory Auth. of State of N.Y., 700 F. Supp. 2d 253, 269

(E.D.N.Y. Mar. 19, 2010)) (internal quotation marks and citation

omitted). “Such an active role includes the provision of false

information leading to an arrest, where the defendants ‘lacked

reasonable cause for their belief in the plaintiff’s

culpability.’” Id. (internal quotation marks and citations

omitted).

Here, under a liberal review of the Amended Complaint,

Plaintiff does not allege any facts surrounding the allegation

18

that the CPS Defendants insisted or even recommended that officers

arrest Plaintiff or that prosecutors criminally prosecute

Plaintiff. On that basis, these claims are DISMISSED with leave

to amend.6

VII. Fourth Amendment

To the extent Plaintiff alleges that Defendants violated

her Fourth Amendment right to be free from illegal searches and

seizures as a parent related to the “seizure” of her children,

those claims are DISMISSED with prejudice. “‘Fourth Amendment

rights are personal rights’ that ‘may not be vicariously asserted,’

such that only the allegedly seized children–-not their parents–-

may assert a violation of the Fourth Amendment related to seizure

of a child by a governmental entity.” Smith v. Tkach, No. 17-CV-

0286, 2019 WL 3975440, at *12–13 (N.D.N.Y. Aug. 22, 2019) (quoting

6 Plaintiff argues in opposition that an unspecified person used

“her authority to encite [sic] and influence the invasion into

my home and property.” (Pl. Opp. at 4.) However, for the

reasons stated above, Plaintiff’s claim, to the extent alleged,

for unlawful search against the individually-named CPS

Defendants on the basis that they provided false or misleading

evidence resulting in a search of Plaintiff’s home, is

DISMISSED. See Cook v. City of N.Y., 243 F. Supp. 3d 332, 345

(E.D.N.Y. 2017) (“A plaintiff can demonstrate that her right not

to be searched without a warrant ‘was violated where the officer

submitting the probable cause affidavit ‘knowingly and

intentionally, or with reckless disregard for the truth, made a

false statement in his affidavit’ or omitted material

information, and that such false or omitted information was

‘necessary to the finding of probable cause.’”) (quoting

McColley v. Cty. of Rensselaer, 740 F.3d 817, 823 (2d Cir.

2014)) (additional citation omitted).

19

Uwadiegwu v. Dep’t of Soc. Servs. of the Cty. of Suffolk, 91 F.

Supp. 3d 391, 395 (E.D.N.Y. 2015)) (additional citation omitted).

Here, Plaintiff seeks to vindicate only her personal Fourth

Amendment rights and not those of her children. Therefore, such

a claim necessarily fails. Southerland, 680 F.3d at 143.

VIII. Municipal Liability Claim Against DSS and CPS

Plaintiff argues that DSS and CPS “failed to properly

train their caseworkers, or supervise and discipline their case

workers to correct illegal practices in investigations, abuse of

power, illegal detainment of children, obligation not to promote

or condone perjury and/or assist prosecution of innocent persons,

and failure to reunify the family.” (Am. Compl. at 5-6.)

Plaintiff’s request for relief against DSS and CPS is

DISMISSED with prejudice because they are administrative arms of

Nassau County and lack the capacity to be sued as separate

entities. See, e.g., Bullock v. DSS, CPS, Comm’r, No. 17-CV-1302,

2018 WL 1115218, at *5 (N.D.N.Y. Jan. 18, 2018), R&R adopted, 2018

WL 1111059 (N.D.N.Y. Feb. 26, 2018) (citing Rose v. Cty. of Nassau,

904 F. Supp. 2d 244, 247 (E.D.N.Y. 2012)); Schweitzer v. Crofton,

935 F. Supp. 2d 527, 551 (E.D.N.Y. 2013) (“Plaintiffs’ claim

against the Suffolk County Department of Social Services must be

dismissed because it is not a sueable entity.”); Bey v. State of

N.Y., No. 11-CV-3296, 2013 WL 3282277, at *5 (E.D.N.Y. June 25,

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2013) (dismissing claims against Nassau County Child Protective

Services because it “is an administrative arm of the County, and

not an independent legal entity, it lacks the capacity to be

sued”).

Given Plaintiff’s pro se status and affording the

Amended Complaint a liberal construction, the Court considers

whether Plaintiff has alleged a plausible Section 1983 claim

against Nassau County and finds that she has not. Beyond the facts

alleged in this particular case, Plaintiff has not articulated

facts regarding the existence of a custom or policy in Nassau

County. See Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir.

2011). “It is well-established that ‘a single incident in a

complaint, especially if it involved only actors below the policy-

making level, does not suffice to show a municipal policy.’”

Raphael v. Cty. of Nassau, 387 F. Supp. 2d 127, 131 (E.D.N.Y. 2005)

(quoting Ricciuti v. N.Y. City Transit Auth., 941 F.2d 119, 123

(2d Cir. 1991)). Plaintiff has not alleged, nor has she argued,

the existence of similar incidents and her “reliance on the facts

alleged in this single incident fail to rise to the level of custom

or policy required for municipal liability.” Id. Therefore, to

the extent alleged, Plaintiff’s municipal liability claim against

Nassau County is DISMISSED with leave to amend.

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IX. Conspiracy under Sections 1983 and 1985

Plaintiff argues that CPS (1) conspired with the County

Attorney for Nassau County Family Court to keep her children from

her custody and (2) conspired with the police department during

her arrest. (Pl. Opp. at 10-11; Am. Compl. at 5-6.) The Nassau

County Defendants argue that the intra-corporate conspiracy

doctrine bars Plaintiff’s conspiracy claims. (Nass. Co. Br.

at 23.)

To state a claim for conspiracy in violation of an

individual’s constitutional rights, a plaintiff must show: “(1) a

conspiracy (2) for the purpose of depriving a person of the equal

protection of the laws, or the equal privileges and immunities

under the laws; (3) an overt act in furtherance of the conspiracy;

and (4) an injury to the plaintiff’s person or property, or a

deprivation of a right or privilege of a citizen of the United

States.” Salgado v. City of N.Y., 00-CV-3667, 2001 WL 290051, at

*8 (S.D.N.Y. Mar. 26, 2001) (citations omitted).

The intra-corporate conspiracy doctrine “posits that the

officers, agents, and employees of a single corporate or municipal

entity, each acting within the scope of his or her employment, are

legally incapable of conspiring with each other.” Daniel v. Long

Island Hous. P’ship, Inc., No. 08–CV–1455, 2009 WL 702209, at *9

(E.D.N.Y. Mar. 13, 2009 (collecting cases); see also Herrmann v.

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Moore, 576 F.2d 453, 459 (2d Cir. 1978) (“[T]here is no conspiracy

[under Section 1985] if the conspiratorial conduct challenged is

essentially a single act by a single corporation acting exclusively

through its own . . . officers [ ] and employees, each acting

within the scope of his employment.”); Rini v. Zwirn, 886 F. Supp.

270, 292 (E.D.N.Y. 1995). “An exception to the intra-corporate

conspiracy doctrine applies to individuals within a single entity

when they are pursuing personal interests wholly separate and apart

from the entity.” Tardd v. Brookhaven Nat’l Lab., 407 F. Supp. 2d

404, 414 (E.D.N.Y. 2006) (quoting Bond v. Bd. of Educ., No. 97-

CV-1337, 1999 WL 151702, *1 (E.D.N.Y. Mar.17, 1999)).

Plaintiff alleges that Defendant Maher was acting “off

of personal motives and vendetta” when removing her children from

her home. (Am. Compl. at 3.) However, “personal bias or prejudice

alone, does not support application of the exception; rather there

must be some other personal interest or stake alleged on the part

of the individual defendants.” Broich v. Inc. Vill. of

Southampton, 650 F. Supp. 2d 234, 247 (E.D.N.Y. 2009) (citations

omitted). Having carefully reviewed the allegations in the Amended

Complaint, Plaintiff has not alleged facts from which it could be

inferred that Defendant Maher, in connection with other unnamed

Nassau County Police Officers and County Attorneys, was motivated

by some “personal stake” rather than carrying out CPS policy. See

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Dunlop v. City of N.Y., No. 06-CV-0433, 2008 WL 1970002, at *10

(S.D.N.Y. May 6, 2008); cf. Ali v. Connick, 136 F. Supp. 3d 270,

282-83 (E.D.N.Y. 2015).

Moreover, although the Amended Complaint does not name

the County Attorney, NCPD, nor the individual Nassau County Police

Officers as defendants, Plaintiff’s vague and conclusory

allegations that Defendants have engaged in a conspiracy to violate

her constitutional rights are insufficient to state a claim.

Salgado, 2001 WL 290051, at *8-9; Ciambriello v. Cty. of Nassau,

292 F.3d 307, 325 (2d Cir. 2002) (dismissing conspiracy allegations

where they were found “strictly conclusory”); Walker v.

Jastremski, 430 F.3d 560, 564 n.5 (2d Cir. 2005) (“[C]onclusory or

general allegations are insufficient to state a claim for

conspiracy under § 1983.” (citing Ciambriello, 292 F.3d at 325));

Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983). Therefore,

Plaintiff’s conspiracy claims are DISMISSED with leave to amend.

Salgado, 2001 WL 290051, at *9.

X. Remaining State Law Claims

Having dismissed Plaintiff’s federal claims, the Court

declines to retain jurisdiction to address Plaintiff’s remaining

state law claims. One Commc’ns Corp. v. J.P. Morgan SBIC LLC, 381

F. App’x 75, 82 (2d Cir. 2010) (“If all of a plaintiff’s federal

claims are dismissed, a district court is well within its

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discretion to decline to assert supplemental jurisdiction over any

state law claims.”).

However, the Nassau County Defendants argue that

Plaintiff’s state law claims must be dismissed for failure to

comply with New York General Municipal law § 50 et seq. (Nassau

Cty. Br. at 20-21.) Plaintiff argues she filed a “Notice of Claim

with the Nassau County Clerk to notify the Defendant[s] of my

intent to sue within the 3-month period.” (Pl. Opp. at 1.)

Plaintiff does not allege the date on which she filed a Notice of

Claim. Any Amended Complaint should state the date on which

Plaintiff filed her Notice of Claim and to whom.

XI. Leave to Amend

Given the Second Circuit’s guidance that a pro se

complaint should not be dismissed without leave to amend unless

amendment would be futile, Cuoco v. Moritsugu, 222 F.3d 99, 112

(2d Cir. 2000), the Court has carefully considered whether leave

to amend is warranted and GRANTS Plaintiff a second opportunity to

amend the Complaint to allege her claims in accordance with Federal

Rule of Civil Procedure 8 and Federal Rule of Civil Procedure 10

and the guidance set forth above. If needed, Plaintiff shall

contact the Hofstra Pro Se Legal Clinic (631-297-2575) or the Pro

Se Office (631-712-6060) should she have any questions about

obtaining legal assistance. Plaintiff is advised that due to

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current health concerns, the Hofstra Pro Se Legal Clinic is CLOSED

until further notice. However, where appropriate, it will conduct

appointments via telephone until it reopens. If Plaintiff wishes

to schedule a phone appointment with the Clinic, she should email

PSLAP@Hofstra.edu or leave a message at 631-297-2575 and the Clinic

will respond and schedule a phone conference appointment.

Any Amended Complaint shall be clearly labeled “Second

Amended Complaint,” shall bear docket number 18-CV-1917, and shall

be filed within thirty (30) days from the date of this Memorandum

and Order. Plaintiff shall also parse out her factual allegations

into numbered paragraphs, each limited to a single set of

circumstances pursuant to Federal Rule of Civil Procedure 10. If

there are individuals that Plaintiff seeks to name as Defendants

in her Second Amended Complaint and she cannot identify the

individuals personally involved in the constitutional deprivations

within the time allowed in this Order, she may designate those

Defendants as “John/Jane Doe, working at (location) on (date)” in

the caption and provide descriptive information of those

individuals in the body of the Second Amended Complaint to allow

for their subsequent identification. Plaintiff should not include

any claims on behalf of her minor children if she proceeds pro se.

Plaintiff is cautioned that the Second Amended Complaint

COMPLETELY replaces the original Complaint and the Amended

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Complaint. Therefore, all claims and allegations Plaintiff wishes

to pursue must be included in the Second Amended Complaint. If

Plaintiff does not timely file a Second Amended Complaint, judgment

shall enter and this case will be marked closed.

CONCLUSION

For the reasons stated, Defendants’ motions to dismiss

(Nassau Cty. Mot., D.E. 30; Madonna Heights Mot., D.E. 28; JCCA

Mot., D.E. 33) are GRANTED. Plaintiff’s claims under CAPTA, for

municipal liability against DSS and CPS, for violations of the

Fourth Amendment, and on behalf of her minor children (to the

extent she proceeds pro se) are DISMISSED WITH PREJUDICE.

Plaintiff’s claims against Maddona Heights, JCCA, and Rodriguez as

well as Plaintiff’s Section 1983 claims for violations of

substantive and procedural due process, false arrest, malicious

prosecution, unlawful search, municipal liability against Nassau

County, and Section 1983 and 1985 conspiracy claims are DISMISSED

WITHOUT PREJUDICE. The Court declines to exercise supplemental

jurisdiction over Plaintiff’s state law claims.

Plaintiff is GRANTED leave to file a Second Amended

Complaint in accordance with this Memorandum and Order. Any Second

Amended Complaint shall be clearly labeled “Second Amended

Complaint,” bearing docket number 18-CV-1917, and shall be filed

within thirty (30) days from the date of this Memorandum and Order.

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If Plaintiff does not timely file a Second Amended Complaint,

judgment shall enter and this case will be marked closed.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)

that any appeal would not be taken in good faith and therefore in

forma pauperis status is denied for purpose of an appeal. Coppedge

v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920-21, 8

L. Ed. 2d 21 (1962). The Clerk of the Court is directed to mail

a copy of this Memorandum and Order to the pro se Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT _____

JOANNA SEYBERT, U.S.D.J.

Dated: March 31 , 2020

Central Islip, New York

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