# Hagans v. Nassau County Department of Social Services

> District Court, E.D. New York · March 31, 2020

URL: https://www.frixlaw.com/law-library/cases/10304059

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 31, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10304059

## How later opinions describe it (automated extraction)

- explaining that parents may assert a claim 12 for violation of right to substantive due process and due process

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
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.
------------------------------------X
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
5
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.)
6
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]
7
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.
9
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.

10
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
13
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
14
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,
20
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
24
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
26
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304059. Public record. Not legal advice.