Hagans v. Nassau County Department of Social Services

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------X

SHAHIDAH HAGANS,

Plaintiff, MEMORANDUM & ORDER

18-CV-1917(JS)(AYS)

-against-

KELLY MAHER; CAROLYN RODRIGUEZ;

ROSEANNE GITTENS; JOHN & JANE DOES

#1-4 who served as Directors and

Assistant Directors of the Foster

Care Unit from 3/2015 - 11/2016 at

60 Charles Lindbergh Blvd., #160,

Uniondale, NY 11553; NASSAU COUNTY

POLICE OFFICERS JOHN & JANE DOES

#5-10 on 3/19/2015 at 545 Queen

St., Westbury, NY 11590; NYS

DEPARTMENT OF CHILDREN & FAMILY

SERVICES; NASSAU COUNTY FAMILY

COURT ATTORNEY’S OFFICE; COUNTY

ATTORNEY STEPHANIE HUBLEBANK;

JCCA PLEASANTVILLE; CASEY HELBER;

KRISTINA JENNEY; MADONNA HEIGHTS

SCO FAMILY OF SERVICES,

CASEWORKERS AND DIRECTORS MADONNA

HEIGHTS JOHN & JANE DOES #11-13

at 151 Burrs Lane, Dix Hills, NY

11746; NASSAU COUNTY FIRST

DISTRICT COURT ATTORNEY’S OFFICE;

NASSAU COUNTY DISTRICT COURT

ATTORNEYS JANE DOES #14-15 at 99

Main St., Hempstead, NY 11550 on

5/06/2015,

Defendants.

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APPEARANCES

For Plaintiff: Shahidah Hagans, pro se

1 Griggs Drive

Greenlawn, New York 11740

For Nassau County

Defendants: Jennean R. Rogers, Esq.

Nassau County Attorney’s Office

One West Street

Mineola, New York 11501

For JCCA

Defendants: Brandon Michael Berkowski, Esq.

Kaufman Borgeest & Ryan LLP

200 Summit Lake Drive

Valhalla, New York 10595

For Defendant

Madonna Heights: Robert Scott Delmond, Esq.

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

48 Wall Street, 20th Floor

New York, New York 10005

SEYBERT, District Judge:

Pro se plaintiff Shahidah Hagans (“Plaintiff”) commenced

this action based upon Nassau County Child Protective Services’

(“CPS”) removal of her children from her home. (See Compl., ECF

No. 1.) Pending before the Court are motions to dismiss filed by

the JCCA Defendants1 and Nassau County Defendants.2 (JCCA Defs.

Mot., ECF No. 64; Nassau County Defs. Mot., ECF No. 65.) Plaintiff

“concedes” to the dismissal of the JCCA Defendants and only opposes

1 The JCCA Defendants are comprised of: Jewish Child Care

Association Pleasantville (“JCCA”), Social Worker Casey Helber

(“Helber”), and Social Worker Kristina Jenney (“Jenney”).

2 The Nassau County Defendants are comprised of: Kelly Maher

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

(“Gittens”), Nassau County Family Court Attorney’s Office

(“FCAO”), County Attorney Stephanie Hublebank, Nassau County First

District Court District Attorney’s Office (“DAO”), as well as

numerous John Does who served as directors and assistant directors

of the Foster Care Unit (“FCU Does”) and police officers (“PO

Does”), and worked at the DAO (“DAO Does”).

dismissal of the Nassau County Defendants.3 (See Opp’n, ECF No.

68; Dec. 1, 2020 Ltr., ECF No. 68-1.) As such, the JCCA Defendants’

motion is GRANTED, on consent, and the Nassau County Defendants’

motion is GRANTED, for the reasons set forth below.

BACKGROUND

The following facts are taken from the Second Amended

Complaint (“SAC”). See Heras v. Metro. Learning Inst., Inc., No.

19-CV-2694, 2021 WL 66288, at *1 (E.D.N.Y. Jan. 7, 2021) (citing

DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 87 (2d Cir. 2013)).

The SAC is organized into two sections, the first titled “Statement

of Case”4 and the second titled “Causes of Action,” which includes

new factual allegations not contained in the First Amended

Complaint (“FAC”). (See FAC, ECF No. 13; SAC, ECF No. 57,

at 2, 6.)

On or around July 2014, Plaintiff alleges that CPS and

the Nassau County Police Department (“NCPD”) commenced a three-

3 In this letter, Plaintiff also indicates that she does not oppose

dismissal of “Madonna Heights,” which the Court interprets to

include the “Madonna Heights Defendants,” namely, Madonna Heights

SCO Family of Services (“Madonna Heights”) and Caseworkers and

Director of Madonna Heights John & Jane Does #11-13 at 151 Burrs

Lane, Dix Hills, Ny 11746 (“Madonna Heights Does”) (collectively,

the “Madonna Heights Defendants”).

4 The “Statement of Case” in the SAC appears virtually identical

to the corresponding section in the First Amended Complaint

(“FAC”), which the Court dismissed by Memorandum & Order dated

March 31, 2020 (“3/31/20 M&O”). (FAC, ECF No. 13; 3/31/20 M&O,

ECF No. 54.)

month long harassment campaign against her because she declined to

speak to CPS without an attorney. (SAC at 2.) During this time,

officers were sent to Plaintiff’s home despite there being no

reports of “imminent danger” to her children. (Id.)

Due to the ongoing “harassment,” Plaintiff “developed an

adverse relationship” with the NCPD which resulted in her “illegal

arrest” and the subsequent removal of her children for two weeks.

(Id.) On March 19, 2015 at approximately 9:00 a.m., Defendant

Maher, a CPS caseworker, spoke with Plaintiff’s five-year old son

(“J.J.H.”) at school. (Id.) J.J.H. told Maher that Plaintiff hit

him and had a gun in the home. (Id.) That same morning, Maher

attempted to visit Plaintiff’s home, but nobody was there so Maher

left a notice indicating she would come back on a later date. (Id.

at 3.) After Plaintiff returned home and discovered the note,

Maher came back with two officers at 2:30 p.m. (Id.) Plaintiff

informed Maher that she would “not entertain any false

allegations.” (Id.) Maher, who perceived Plaintiff as

uncooperative, threated to return with the police. According to

Plaintiff, Maher did not decide to remove her children immediately

after speaking with J.J.H., but instead waited nearly six more

hours to do so in a decision that was based on “personal motives

and vendetta.” (Id.) It is not clear from the SAC if this decision

was made during the 2:30 p.m. visit, or during a third potential

visit at approximately 4:00 p.m. (-Se-e- -id-.- at 7.) Notwithstanding,

Plaintiff claims the purported six-hour decision-making delay,

coupled with the fact that the removal could have been effectuated

while the children were at school without parental intervention,

demonstrates Maher’s lack of concern for her children’s imminent

safety. (Id. at 3, 5.)

That same day, Plaintiff alleges she was arrested and

detained in a police car while officers searched her home for a

gun. (Id. at 10.) Although an officer advised Plaintiff that a

firearm was not discovered and that she would be released, the

officer changed his purported course of action after speaking with

Maher, who offered to give a statement. (Id.) The officer further

advised Plaintiff that he would arrest her based on an affidavit

Maher was in the process of completing. (Id.) Plaintiff further

alleges that she was not afforded a hearing before the children

were removed, nor after the children were removed, at which point

Plaintiff was incarcerated. (See id. at 8-9.)5

5 On March 18, 2015, the day prior to Maher visiting Plaintiff’s

home after speaking with J.J.H., it appears a hearing before Judge

Edmund Dane was conducted during which Judge Dane of the Nassau

County Family Court ordered “an interim period of CPS

supervision.” (Id. at 7.) During the hearing, Plaintiff allegedly

explained to Judge Dane “the need for CPS to decipher their routine

visits with the investigative visits, and that [she] was under the

obligation to comply with the service visits but not the

investigative visits.” (Id.) Plaintiff alleges that Judge Dane

was “unclear on procedural policy concerning that discrepancy and

would advise both parties at a later date on the proper governance

of the scenario.” (Id.)

In April 2015, Plaintiff alleges that her criminal

lawyer requested a hearing concerning the permanency of an

unspecified order of protection issued by the criminal court, which

apparently prevented her from utilizing available procedural

options to regain custody of her children. (Id. at 11.) A hearing

was held on May 6, 2015, during which two members of the DAO stated

they would not be willing to lift the order of protection “as per

the CPS workers [sic] request.” (Id.) Plaintiff alleges the DAO

failed to provide any justification to continue to enforce the

order that was “independent of CPS influence,” and that Defendants

Rodriguez and Gittens, a foster care caseworker and supervisor

respectively, “continue[d] to obstruct [her] legal retrieval of

custody” as per the Family Court Act and the Child Abuse Prevention

and Treatment Act (“CAPTA”). (Id.) Plaintiff then alleges that

Gittens and Rodriguez conspired with the “County Attorney” to

maliciously prosecute her, compromise her right to due process in

post-removal proceedings, and have Plaintiff’s children

permanently removed from her custody. (Id. at 12.) The criminal

charges against Plaintiff were apparently dismissed in May 2015.

(Id. at 10.)

Once Plaintiff’s children were in the custody of the

Nassau County Department of Social Services (“DSS”),6 she alleges

DSS “failed to follow the proper mandates and protocol to reunify

the family as the Family Court Act so adamantly states.” (Id.

at 4.) In response to Plaintiff’s inquiries regarding the process

to regain custody of her children, DSS gave her vague answers.

(Id.) Plaintiff also wrote to the Directors of the FCU to raise

concerns about Defendant Gittens, whom Plaintiff alleges to have

been acting incompetently; however, Plaintiff never received a

response. (Id.) Plaintiff alleges she told the Director and

Assistant Directors of the FCU about the “caseworkers [sic] refusal

to make the efforts to reunify [her] family.” (Id. at 13.)

At an unspecified time, but after Plaintiff’s children

were allegedly in DSS care for eleven months, Plaintiff received

a letter detailing the process for regaining custody. (Id. at

4, 12.) Plaintiff alleges she fulfilled the necessary

requirements, but “the agency continued to act arbitrary and

capricious in their unwillingness to consent to the return of [her]

children. [She] was told by several officers of the court that it

was the disdain toward [her] righteously indignant attitude that

was causing them not to consent.” (Id. at 4.) After substituting

6 DSS was previously a named defendant in the FAC; however, the

Court dismissed Plaintiff’s claims against DSS with prejudice.

(See 3/31/2020 M&O at 20-21.)

counsel during these proceedings, Plaintiff was instructed to

“refrain from expressing [her] feelings outwardly.” (Id. at 4-5.)

Plaintiff ultimately regained custody of her children. (Id. at 5.)

Plaintiff also alleges that two of JCCA’s social

workers, Defendants Casey and Jenney, conspired with CPS to prevent

Plaintiff from visiting and speaking with her children. (Id. at

13.) She further alleges that the conspiracy between JCCA and CPS

involved their maintenance of fraudulent records of her children’s

mental health, diagnoses, and family history. (Id. at 5.) She

avers that CPS medicated her children against her will, denied her

visitation, and was negligent as their caretakers. (Id.)

According to the SAC, Plaintiff’s daughter, J.H., engaged in drugs,

drinking and unsupervised absconding, and was sexually molested.

(Id.) According to Plaintiff, medication that J.H. began to take

impaired her cognitive function and caused her to become obese and

at risk for diabetes. (Id.)

Following Plaintiff’s arrest in March 2015, three of her

children were committed to psychiatric wards and suffered trauma.

(Id. at 6.) At an unspecified time, J.H. was discharged from JCCA

and sent to a residential facility called Madonna Heights, where

she remained for eleven months. (Id. at 14.) During this time,

Plaintiff alleges that J.H.’s caseworkers and certain Madonna

Heights Does prevented Plaintiff from visiting or calling J.H.

(Id.)

Last, Plaintiff alleges that Defendant NYS Department of

Children and Family Services (“NYS DCFS”) fails to properly train

and supervise their caseworkers to correct illegal practices in,

inter alia, investigations, the detainment of children, the

prosecution of innocent persons, and the reunion of families. (Id.

at 15.)

PROCEDURAL HISTORY

Plaintiff alleges she filed a notice of claim with Nassau

County on June 2, 2015. (See Notice of Claim, ECF No. 57 at 21.)

The instant case was commenced nearly three years later, on March

19, 2018. After many extensions of time, Plaintiff filed an

Amended Complaint asserting: (1) a violation of CAPTA against

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

caseworker and supervisor who had an 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;

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

to train, supervise, and discipline employees; (4) violations of

Section 1985 and the Fourth, Fifth, and Fourteenth Amendments

against the “defendants and prosecuting attorneys” for conspiracy

and against CPS for attempting to suppress her freedom of speech,

for violating the 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 FAC at 5-7.)

By Memorandum & Order, the Court dismissed with

prejudice Plaintiff’s CAPTA claims against CPS, Fourth Amendment

claims based upon the “seizure” of her children, and claims for

municipal liability against DSS and CPS. The Court also dismissed

without prejudice Plaintiff’s claims against Madonna Heights, JCCA

and Rodriguez; Section 1983 claims for violations of due process,

false arrest, malicious prosecution, unlawful search and municipal

liability against Nassau County; and conspiracy claims pursuant to

Section 1985. The Court then granted Plaintiff leave to file the

SAC, which was filed on June 15, 2020. The SAC eliminated Nassau

County DSS and CPS as defendants, but added the following new

defendants: the DAO, FCAO, Hublebank, FCU Does, PO Does, DAO Does,

Helber, Jenney, and the Madonna Heights Does. Unchanged, however,

were Plaintiff’s individual causes of action. The instant motions

to dismiss by the JCCA and Nassau County Defendants followed.

In addition, it appears to the Court that Madonna Heights

also served a motion to dismiss upon Plaintiff, but neglected to

file the motion on ECF. (See Madonna Heights Reply, ECF No. 69.)

Notwithstanding, Plaintiff concedes to the dismissal of Madonna

Heights (see ECF No. 68-1); therefore, the Court will terminate it

as a defendant in this action.7

ANALYSIS

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

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(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]

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

7 The Court construes the parties’ dismissal of “Madonna Heights”

to encompass Plaintiff’s claims against the Madonna Heights Does.

To the extent Plaintiff has not abandoned those claims as well,

the Court dismisses them sua sponte because, for purposes of

Section 1983, Plaintiff has not plausibly alleged that the Madonna

Heights Does are state actors nor, for the reasons set forth below,

does Plaintiff plead any cognizable constitutional violations.

Further, to the extent Plaintiff asserts any state law claims

against the Madonna Heights Does, the Court declines to exercise

supplemental jurisdiction over them because all federal claims in

this action are dismissed with prejudice.

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 (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 v. Farmington Police Dep’t, No. 12-CV-

1139, 2015 WL 4619624, at *7 (D. Conn. July 31, 2015).

II. Discussion

As noted above, Plaintiff concedes to the dismissal of

the JCCA Defendants. (See Dec. 1, 2020 Ltr.) Therefore, the Court

will only consider the merits of the Nassau County Defendants’

motion to dismiss.

A. CAPTA

In its prior decision, the Court dismissed Plaintiff’s

CAPTA claim against CPS with prejudice. (See 3/31/20 M&O at 10-

11.) Notwithstanding, in the SAC, Plaintiff reasserted this very

same claim. (See SAC at 16.) The Court’s prior dismissal of the

CAPTA claim against CPS constitutes law of the case, and is a

determination that the Court will not revisit or reconsider.

Chiari v. New York Racing Ass’n Inc., 972 F. Supp. 2d 346, 362

(E.D.N.Y. 2013) (“[T]he law of the case doctrine . . . counsels a

court against revisiting its prior rulings in subsequent stages of

the same case absent cogent and compelling reasons such as an

intervening change of controlling law, the availability of new

evidence, or the need to correct a clear error or prevent manifest

injustice.” (quoting ATSI Commc’ns, Inc. v. The Shaar Fund, Ltd.,

547 F.3d 109, 112 n.3 (2d Cir. 2008))). Accordingly, this claim

is DISMISSED WITH PREJUDICE.

B. Section 1983

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.

Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011). Although the SAC

implies more than a dozen different bases for Section 1983 claims,

in actuality, the Court construes the SAC to allege claims for

violations of due process, false arrest, false imprisonment,

malicious prosecution, and unreasonable search and seizure, and

will address each of those claims in turn.8

8 Plaintiff alleges a one paragraph Section 1983 cause of action

but names a litany of potential bases for such a claim within that

singular cause of action. In addition to the claims described

above for violations of due process, false arrest and imprisonment,

malicious prosecution, and unreasonable search and seizure,

Plaintiff also identifies claims for “malicious abuse of power,”

failure to intervene, “abuse of authority,” “pattern of

harassment, conspiracy, discrimination, selective enforcement,

1. 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 v.

City of New York, 680 F.3d 127, 142 (2d Cir 2012) (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 New York, 92 F. Supp. 2d

257, 266–67 (S.D.N.Y. 2000)) (alteration omitted). 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 New York, No. 15-CV-7186, 2018 WL 1605982, at *14 (S.D.N.Y.

fabrication of evidence, denial of equal protection of the laws,

[and] denial of right to fair trial.” (See SAC at 16.) Plaintiff

does not clearly identify, nor is the Court able to distill,

factual allegations to support the corresponding elements for this

second subset of purported Section 1983 claims. As such, to the

extent the SAC can be construed to raise claims for “malicious

abuse of power,” failure to intervene, “abuse of authority,”

“pattern of harassment, conspiracy, discrimination, elective

enforcement, fabrication of evidence, denial of equal protection

of the laws, [and] denial of right to fair trial,” those claims

are DISMISSED WITH PREJUDICE pursuant to Rules 8 and 12(b)(6).

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

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. Significantly, 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).

As the Court previously observed, “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.” (See 3/31/20 M&O at 14-15.)

Although Plaintiff alleges such a proceeding was “never held”

(see SAC at 8), that allegation is plainly contradicted by the

record and need not be accepted as true. See Cohen v. Capital One

Funding, LLC, 489 F. Supp. 3d 33, 44 (E.D.N.Y. 2020). The day

after Plaintiff’s children were removed, on March 20, 2015, CPS

filed a petition in Nassau County Family Court regarding the

temporary removal. (See Petition, ECF No. 65-3.) Thereafter, on

March 23, 2015, Judge Dane of the Nassau County Family Court held

a preliminary hearing pursuant to Section 1027 of the Family Court

Act, and issued an “Order on Application for Temporary Removal”

(“OATR”) that same day.9 (See OATR, ECF No. 65-4.) Although the

OATR indicates that Plaintiff was incarcerated at the time of the

hearing and “not produced,” she was nevertheless “served” with the

removal petition and an attorney appeared on her behalf before

Judge Dane. (Id. at 2.)

Based upon the OATR, which demonstrates that there was

a post-deprivation hearing, coupled with the information obtained

by Maher throughout her investigation, the Court finds that there

was “a reasonable basis for thinking that [Plaintiff’s] child[ren]

[were] abused or neglected,” such that Plaintiff cannot viably

claim a violation of her substantive due process rights.

Southerland, 680 F.3d at 152. Accordingly, Plaintiff’s

substantive due process claims are DISMISSED WITH PREJUDICE.

9 The OATR is a document that the Court takes judicial notice of

and may properly consider in adjudicating the instant motion to

dismiss. See LeClair v. Vinson, No. 19-CV-0028, 2019 WL 1300547,

at *1 (N.D.N.Y. Mar. 21, 2019) (“The Court takes judicial notice

of the Family Court orders.”), report and recommendation adopted,

2019 WL 2723478 (N.D.N.Y. July 1, 2019); see also Trombley v.

O’Neill, 929 F. Supp. 2d 81, 103-05 (N.D.N.Y. 2013)(taking judicial

notice of family court orders).

2. 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).

Here, it is not disputed that Plaintiff’s children were

initially removed without a court order or parental consent. The

issue is whether, as a matter of law, sufficient emergency

circumstances existed to justify the lack of pre-removal hearing.

The Court answers that question in the affirmative.

Plaintiff alleges no such emergency circumstances

existed for two reasons: (1) the note Maher left after her first

visit on March 19, 2015 did not indicate she would return that

same day, but that she would return on March 23, 2015; and

(2) there was a nearly six-hour period between J.H.H.’s complaint

to Maher, and the subsequent removal of Plaintiff’s children when

they returned from school later that day. In response, the Nassau

County Defendants argue that it is evident from Maher’s note that

she was “attempting to conduct a routine court ordered ‘once per

month visit’” and not visiting based upon J.H.H.’s statements.

(Nassau County Defs. Reply at 3-4.) The Nassau County Defendants

further contend that the removal was promptly effectuated after

the child’s complaint to Maher, and emergency circumstances

existed due to not only the child’s statements of physical abuse

and presence of a gun, but because Plaintiff was arrested and

incarcerated that day. (Nassau County Defs. Support Memo

at 15-16.)

The Court need not resolve the issue of fact concerning

the reason for Maher’s first visit to Plaintiff’s home on March 19,

2015 for purposes of resolving the instant motion. While it is

true courts have found procedural due process violations in cases

such as this where there is a “lag of time between the end of the

investigator’s interview and the removal of the children,”

Hollenbeck v. Boivert, 330 F. Supp. 2d 324, 332 (S.D.N.Y. 2004),

such cases illustrate why Plaintiff’s allegations here fall short.

For example, in Hollenbeck, after receiving a report of suspected

abuse towards the plaintiffs’ son, an investigator for the New

York City Administrator for Children’s Services (“ACS”) visited

the plaintiff’s home. Id. at 327. During the visit, the

investigator interviewed the plaintiffs’ family members and

allegedly determined the son’s injury was caused by an accident.

Id. at 333. Thereafter, the investigator left the home, went back

to the ACS to consult with supervisors, and then ordered the child

removed. Id. The present case is distinguishable from Hollenbeck,

because the decision to remove Plaintiff’s children coincided with

Maher’s attempt to interview Plaintiff and the NCPD’s search of

Plaintiff’s home. As such, Plaintiff’s arguments concerning a

delay are unpersuasive.

Moreover, the Court agrees with the Nassau County

Defendants that sufficient emergency circumstances existed to

obviate the need for a pre-removal hearing. Significantly,

Plaintiff was arrested and incarcerated the same day her children

were removed. Regardless of what transpired that morning between

J.H.H. and Maher, or what was discovered in the home, Plaintiff’s

arrest and incarceration would have left the children without care

and supervision. See Mortimer, 2018 WL 1605982, at *16 (quoting

Southerland, 680 F.3d at 149).10 Accordingly, Plaintiff’s

procedural due process claim based upon the lack of a pre-removal

hearing is DISMISSED WITH PREJUDICE.

10 The OATR also indicates that “[t]here is no non-respondent

parent, relative or suitable person with whom the child[ren] may

reside.” (See OATR at 7.)

To the extent Plaintiff asserts additional procedural

due process claims based upon the adequacy of post-removal

proceedings or other grounds, any such claims are also DISMISSED

WITH PREJUDICE. See Goonewardena v. N. Shore Long Island Jewish

Health Sys., No. 11-CV-2456, 2012 WL 7802351, at *14 (E.D.N.Y.

Nov. 5, 2012), report and recommendation adopted, 2013 WL 1211496

(E.D.N.Y. Mar. 25, 2013), aff’d, 597 F. App’x 19 (2d Cir. 2015).

Despite the Court’s previous grant of leave to amend for Plaintiff

to clarify the scope of her due process claims and provide

additional details concerning the substance of the post-removal

hearing (or hearings) and orders of protection, the SAC sheds no

such light.

For example, Plaintiff appears to assert a procedural

due process violation based upon actions taken by two District

Attorneys at a May 6, 2015 hearing. (See SAC at 11.) More

specifically, Plaintiff alleges the DAO Does: (1) would not agree

to lift a “criminal order of protection” that Plaintiff claims

“obstruct[ed] all the procedural options [she] had for a judicial

proceeding that could have allowed [her] to regain custody,” and

(2) “failed to give any justification of the enforcement of the

temporary order of protection that was independent of CPS

influence.” (See SAC at 11.) Through this, Plaintiff alleges

efforts were made by the DAO Does to deny her procedural due

process. (Id.) Even if these allegations can be construed as a

procedural due process claim, the DAO Does would nonetheless be

entitled to absolute prosecutorial immunity. See Player v. Sini,

No. 21-CV-5613, 2021 WL 5084172, at *3 (E.D.N.Y. Nov. 1, 2021);

see also Buckley v. Fitzsimmons, 509 U.S. 259, 281 (1993)

(concluding absolute prosecutorial immunity shields prosecutors

from any Section 1983 liability for acts occurring within their

roles as advocates for the state).

The Court also distills a procedural due process claim

against Gittens and Rodriguez based upon Plaintiff’s allegations

that they “conspired with [the] County Attorney” to violate her

procedural due process rights in post-removal proceedings because

they provided “repeatedly obscure and vague responses” to

Plaintiff’s “numerous inquiries as to what steps [she] should take

to have [her] children returned.” (See SAC at 12.) Despite

liberally construing these allegations, the Court is unable to

distill a constitutional violation. Regardless of the adequacy of

Gittens’ and Rodriguez’s responses to Plaintiff’s inquiries, at

most, these allegations can be construed to state that they may

have negligently carried out their job functions. But it is well

settled that “[a]llegations of negligence are insufficient to

state a claim under § 1983”; therefore, these claims are DISMISSED

WITH PREJUDICE. 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 (1986)).

3. False Arrest, False Imprisonment, and Malicious

Prosecution

The Court will consider Plaintiff’s claims for false

arrest, false imprisonment, and malicious prosecution

collectively. See Jackson ex rel. Jackson v. Suffolk County, 87

F. Supp. 3d 386, 403 (E.D.N.Y. 2015).

To succeed on a Section 1983 claim for false arrest, the

plaintiff must show “(1) the defendant intended to confine the

plaintiff, (2) the plaintiff was conscious of the confinement,

(3) the plaintiff did not consent to the confinement, and (4) the

confinement was not otherwise privileged.” Avant v. Miranda, No.

21-CV-0974, 2021 WL 1979077, at *4 (E.D.N.Y. May 18, 2021) (quoting

Wheeler v. Kolek, No. 16-CV-7441, 2020 WL 6726947, at *4 (S.D.N.Y.

Nov. 16, 2020)). Moreover, “[u]nder New York law, false arrest

and false imprisonment are one and the same, and the elements for

both are the same as for a false arrest claim under § 1983.”

Hershey v. Goldstein, 938 F. Supp. 2d 491, 515 (S.D.N.Y. 2013).

The existence of probable cause is a complete defense to these

claims. See Hatcher v. City of New York, No. 15-CV-7500, 2018 WL

1583036, at *3 (S.D.N.Y. Mar. 27, 2018).

The Second Circuit has described probable cause as

“knowledge or reasonably trustworthy information of facts and

circumstances that are sufficient to warrant a person of reasonable

caution in the belief that the person to be arrested has

committed . . . a crime.” Stansbury v. Wertman, 721 F.3d 84, 89

(2d Cir. 2013) (quoting Jaegly v. Couch, 439 F.3d 149, 152 (2d

Cir. 2006)). “To assess probable cause, a court considers only

the facts ‘available to the officer at the time of the arrest and

immediately before it.’” Ashley v. City of New York, 992 F.3d

128, 136 (2d Cir. 2021) (quoting Stansbury, 721 F.3d at 89).

“‘[S]ubjective intentions’ of the arresting officer ‘play no role

in ordinary, probable cause Fourth Amendment analysis.’”

Selvaggio v. Patterson, 93 F. Supp. 3d 54, 67 (E.D.N.Y. 2015)

(quoting Whren v. United States, 517 U.S. 806, 813 (1996)).

Here, Plaintiff was arrested for endangering the welfare

of a minor based upon statements made to Maher by Plaintiff’s five-

year-old child which indicated that Plaintiff physically harmed

him. However, Plaintiff contends that the NCPD did not possess

any direct knowledge of this information, and consequently, lacked

probable cause to arrest her. (See Opp’n at 2.) The Court

disagrees.

“It is well-settled that a law enforcement official has

probable cause to undertake an arrest where he has received the

pertinent information from some individual -- typically, the

alleged victim or an eyewitness.” Daniels v. D’Aurizo, 564 F.

Supp. 2d 194, 198 (W.D.N.Y. 2008) (citing Donovan v. Briggs, 250

F. Supp. 2d 242, 251 (W.D.N.Y. 2003)). Moreover, pursuant to the

“collective or imputed knowledge doctrine, an arrest or search is

permissible where the actual arresting or searching officer lacks

the specific information to form the basis for probable cause or

reasonable suspicion but sufficient information to justify the

arrest was known by other law enforcement officials initiating or

involved with the investigation.” United States v. Colon, 250

F.3d 130, 135 (2d Cir. 2001) (citing United States v. Hensley, 469

U.S. 221, 230-33 (1985)). “The rule exists because, in light of

the complexity of modern police work, the arresting officer cannot

always be aware of every aspect of an investigation; sometimes his

authority to arrest a suspect is based on facts known only to his

superiors or associates.” United States v. Valez, 796 F.2d 24, 28

(2d Cir. 1986); see also United States v. Fleming, No. 18-CR-0197,

2019 WL 486073, at *7 (E.D.N.Y. Feb. 6, 2019) (“Under [the

collective knowledge] doctrine, a police officer may act

reasonably in relying on information from other law enforcement

officers, even if he is not personally aware of the facts that

provided the probable cause underlying the information he

received.” (citing Colon, 250 F.3d at 135)).

In view of these principles, the Court finds that

probable cause existed for Plaintiff’s arrest. The arresting NCPD

officers were entitled to rely upon the information provided to

them by Maher, which she obtained directly from Plaintiff’s son.

In addition, Plaintiff has failed to proffer any cogent allegations

or reasoning as to why it was unreasonable for the officers to

rely upon the information provided to them by Maher. Although

Plaintiff appears to argue that Maher or the NCPD had illicit

motives or a vendetta to arrest her, “it is well settled that the

officers’ subjective motivation for the arrest is irrelevant to

the probable cause determination.” See Jackson, 87 F. Supp. 3d at

406 (citing Arkansas v. Sullivan, 532 U.S. 769, 771-72 (2001)).

Accordingly, Plaintiff’s claims for false arrest and for false

imprisonment are DISMISSED WITH PREJUDICE.

The existence of probable cause is also a complete

defense to a claim for malicious prosecution. Ramirez v. Port

Auth. of N.Y. & N.J., No. 15-CV-3225, 2015 WL 9463185, at *5

(S.D.N.Y. Dec. 28, 2015) (citing Torraco v. Port Auth. of N.Y. &

N.J., 615 F.3d 129, 139 (2d Cir. 2010)). In the malicious

prosecution context, the probable cause standard is slightly

higher than the standard applicable in false arrest cases and false

imprisonment cases. To wit, “probable cause . . . has been

described as such facts and circumstances as would lead a

reasonably prudent person to believe the plaintiff guilty.”

Stansbury, 721 F.3d at 95.

For reasons similar to those which support the Court’s

finding that probable cause existed for Plaintiff’s arrest and

imprisonment, the Court also holds that probable cause warranted

Plaintiff’s prosecution. See Ramirez, 2015 WL 9463185, at *5

(“[T]here was sufficient information such that the DA’s office

could reasonably believe [Plaintiff] was guilty of the offense[]

at the early stage of h[er] prosecution.”). Accordingly,

Plaintiff’s claim for malicious prosecution is DISMISSED WITH

PREJUDICE.

4. Unreasonable Search and Seizure

The Court construes the SAC to allege Fourth Amendment

claims based upon the warrantless search of Plaintiff’s home and

the seizure of Plaintiff’s children. The Court will only consider

the search claim here because the Court previously dismissed

Plaintiff’s seizure claim with prejudice, and will not revisit

that determination here. (See 3/31/20 M&O at 19-20.)

Pursuant to the Fourth Amendment, warrantless searches

inside of a home are illegal unless an exception to the warrant

requirement exists. One exception to the warrant requirement is

the existence of exigent circumstances. Thompson v. Clark, 364 F.

Supp. 3d 178, 190 (E.D.N.Y. 2019). “[T]he essential question in

determining whether exigent circumstances justified a warrantless

entry is whether law enforcement agents were confronted by an

urgent need to render aid or take action.” Loria v. Gorman, 306

F.3d 1271, 1284 (2d Cir. 2002) (citation and quotations omitted).

“[P]olice officers may enter a dwelling without a warrant to render

emergency aid to a person whom they reasonably believe to be in

distress and in need of that assistance.” Tierney v. Davidson,

133 F.3d 189, 196 (2d Cir. 1998). “They may do this if, based on

the totality of the circumstances known to the investigating

officers at the time of entry, it was ‘objectively reasonable’ for

them to do so.” Thompson, 364 F. Supp. 3d at 190 (citing Tierney,

133 F.3d at 196).

The Court has already determined that emergency

circumstances existed to justify the lack of a pre-deprivation

hearing prior to the removal of Plaintiff’s children. “[T]here is

no practical difference between emergency circumstances -- the

standard used to evaluate plaintiff[’s] Fourteenth Amendment claim

on [his] children’s removal -- and probable cause/exigent

circumstances -- the standard used to evaluate the plaintiff[’s]

Fourth Amendment claim.” Southerland v. Woo, 44 F. Supp. 3d 264,

276 (E.D.N.Y. 2014). Therefore, in light of the Court’s finding

that emergency circumstances justified the taking of Plaintiff’s

children without a pre-deprivation hearing, the Court also finds

that exigent circumstances existed to justify the warrantless

search of Plaintiff’s home. See Callahan v. City of New York, 90

F. Supp. 3d 60, 73 (E.D.N.Y. 2015) (“Therefore, the Court having

found that there were probable cause and exigent circumstances to

justify the officers’ taking of the children to ACS, the Court

must now also find that there were emergency circumstances in this

case.”). Accordingly, Plaintiff’s claim for unreasonable search

is DISMISSED WITH PREJUDICE.

C. Section 1985

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 New York, No. 00-CV-3667, 2001 WL

290051, at *8 (S.D.N.Y. Mar. 26, 2001) (citations omitted).

Although Plaintiff alleges a claim pursuant to Section 1985, such

a claim fails as a matter of law for two reasons. First, the SAC

contains only “conclusory, vague, or general allegations that the

defendants have engaged in a conspiracy to deprive the plaintiff

of [her] constitutional rights.” See Walker v. O’Connor, No. 22-

CV-0581, 2022 WL 2341420, at *4 (N.D.N.Y. June 29, 2022) (quoting

DeRouseau v. Fam. Ct., Westchester County, No. 21-CV-8716, 2022 WL

1747859, at *3 (S.D.N.Y. May 31, 2022)), report and recommendation

adopted, 2022 WL 2805462 (N.D.N.Y. July 18, 2022). And second,

the Court has already determined there are no underlying

constitutional violations which could serve as a predicate for a

Section 1985 claim. See Oliver v. Penny, No. 21-CV-0111, 2022 WL

2165814, at *3 (2d Cir. June 16, 2022) (affirming dismissal of

Section 1983 and Section 1985 claims for conspiracy where plaintiff

“did not plausibly allege an underlying constitutional

violation”). Accordingly, Plaintiff’s claims pursuant to

42 U.S.C. § 1985 are DISMISSED WITH PREJUDICE.

D. Municipal Liability

Plaintiff also alleges that Nassau County and the NYS

DCFS “had facto policies, failed to properly train their

caseworkers, or supervise and discipline their caseworkers 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.” (SAC at 17.) As an initial matter, any

claims against the NYS DCFS are sua sponte DISMISSED WITH PREJUDICE

because NYS DCFS is an agency of the State of New York, and states

and their agencies are protected by sovereign immunity as

guaranteed by the Eleventh Amendment. Panarello v. Suffolk County

Police, No. 20-CV-3281, 2020 WL 4819496, at *1 (E.D.N.Y. Aug. 19,

2020) (citing Pennhurst State School & Hosp. v. Halderman, 465

U.S. 89, 100 (1984)).

With respect to Plaintiff’s municipal liability claims

against Nassau County, the Court previously dismissed without

prejudice such claims in the FAC because Plaintiff did not

plausibly allege the existence of any customs or policies in Nassau

County. (See 3/31/20 M&O at 21.) Plaintiff’s SAC is deficient

for the same reasons because the entirety of Plaintiff’s municipal

liability claim, which is set forth above, does not give rise to

the level of custom or policy required for municipal liability.

Further, Plaintiff cannot prevail on her Monell claim as a matter

of law. “It is well-settled that a Monell claim cannot succeed

without an underlying constitutional violation, and here there is

no constitutional violation.” Oquendo v. City of New York, 492 F.

Supp. 3d 20, 32 (E.D.N.Y. 2020) (quoting Mastromonaco v. Cty. Of

Westchester, 779 F. App’x 49, 51 (2d Cir. 2019)). Accordingly,

Plaintiff’s municipal liability claims against Nassau County are

also DISMISSED WITH PREJUDICE.

E. Remaining State Law Claims

Having dismissed Plaintiff’s federal claims, the Court

declines to retain jurisdiction to address Plaintiff’s remaining

state law claims, which arise under the New York State Constitution

and sound in tort. 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

discretion to decline to assert supplemental jurisdiction over any

state law claims.”). Accordingly, Plaintiff’s state law claims

are also DISMISSED.

CONCLUSION

For the stated reasons, IT IS HEREBY ORDERED that the

motions to dismiss by the JCCA Defendants (ECF No. 64) and the

County Defendants (ECF No. 65) are GRANTED;

IT IS FURTHER ORDERED that the Madonna Heights

Defendants are DISMISSED from this action, on consent (see ECF

Nos. 68 & 69);

IT IS FURTHER ORDERED that Plaintiff’s claims against

the remaining Defendants are also DISMISSED;

IT IS FURTHER ORDERED that the dismissal of Plaintiff’s

federal claims is WITH PREJUDICE and the dismissal of Plaintiff’s

state law claims is WITHOUT PREJUDICE. In light of the fact that

Plaintiff has already been afforded two opportunities to amend her

complaint, Plaintiff will not be granted any further leave to

amend, especially here where there are no viable federal claims;

and

IT IS FURTHER ORDERED that the Clerk of Court is directed

to mark this case CLOSED.11

SO ORDERED.

/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: September 28, 2022

Central Islip, New York

11 In light of Plaintiff’s consent to receive electronic

notification (ECF No. 71), the Court is not requiring Defendants

to serve a copy of this Memorandum & Order upon Plaintiff.