Thompson v. Administration for Children Services

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DAVINA L. THOMPSON,

Plaintiff, MEMORANDUM & ORDER

23-CV-1167(EK)(MMH)

-against-

ADMINISTRATION FOR CHILDREN

SERVICES and CHILDREN AID SOCIETY,

Defendants.

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ERIC KOMITEE, United States District Judge:

Plaintiff Davina Thompson, proceeding pro se, filed

this action against the Administration for Children’s Services

(“ACS”), a city agency,1 and the “Children Aid Society”

(“Children’s Aid”), a nonprofit organization.2 She alleges that

her two children were “abused while in the care of” ACS. Compl.

4, ECF No. 1. She seeks “compensation for pain and suffering”

on behalf of her and her children. Id. at 6. Thompson’s

1 ACS is not a suable entity. Under New York City Charter, Ch. 17,

§ 396, “New York City departments” — like ACS — “lack the capacity to be

sued.” Ximines v. George Wingate High Sch., 516 F.3d 156, 160 (2d Cir.

2008); see, e.g., Friedman v. N.Y.C. Admin. For Child.’s Servs., 502 F. App’x

23, 27 n.3 (2d Cir. 2012); Emerson v. City of New York, 740 F. Supp. 2d 385,

396 (S.D.N.Y. 2010). Given Thompson’s pro se status, the Court construes

this case as brought against the City of New York.

Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

2 The Children’s Aid Society, now known as Children’s Aid, has a foster

care program. See Children’s Aid, Family and Community, https://www.

childrensaidnyc.org/programs/family-community (last visited Oct. 30, 2023).

application to proceed in forma pauperis (“IFP”) is granted, but

her complaint is dismissed without prejudice, as set forth

below.

I. Legal Standard

Under 28 U.S.C. § 1915(e)(2)(B), a court may dismiss

an IFP case if the action: “(i) is frivolous or malicious; (ii)

fails to state a claim on which relief may be granted; or (iii)

seeks monetary relief against a defendant who is immune from

such relief.”

Documents “filed pro se [are] to be liberally

construed, and a pro se complaint, 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). At the same time, a pro se plaintiff is not exempt from

“compliance with relevant rules of procedural and substantive

law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Thus, a

court must dismiss a case if it lacks subject-matter

jurisdiction to hear it. Fed. R. Civ. P. 12(h)(3); see Arbaugh

v. Y&H Corp., 546 U.S. 500, 514 (2006). A complaint must also

contain “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

That statement must include “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007).

II. Discussion

Thompson’s complaint does not allege any clear basis

for federal jurisdiction. See Compl. 4 (omitting to check

either of the boxes labeled “Federal question” or “Diversity of

citizenship”). Federal courts have “jurisdiction over two

general types of cases: cases that arise under federal law, [28

U.S.C.] § 1331, and cases in which the amount in controversy

exceeds $75,000 and there is diversity of citizenship among the

parties, [28 U.S.C.] § 1332(a).” Home Depot U.S.A., Inc. v.

Jackson, 139 S. Ct. 1743, 1746 (2019). Thompson does not plead

facts to suggest either federal question or diversity

jurisdiction. She does not allege the violation of any federal

laws or constitutional provisions, nor does it appear that there

is any diversity of citizenship. See Compl. 2 (providing New

York addresses for all parties). Because Thompson has not

established that subject-matter jurisdiction exists here, the

complaint must be dismissed.

The complaint suffers from several additional pleading

deficiencies. Thompson appears to assert claims for harms

suffered by her children. Generally, a non-attorney parent

cannot bring claims on behalf of her child. See Tindall v.

Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005) (“[A]

well-established general rule in this Circuit [is] that a parent

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

court on behalf of his or her child.”); see also Iannaccone v.

Law, 142 F.3d 553, 558 (2d Cir. 1998) (“[B]ecause pro se means

to appear for one’s self, a person may not appear on another

person’s behalf.”). And to the extent that she asserts claims

on her own behalf, Thompson does not allege how any abuse her

children suffered infringed on her rights or entitle her to

relief. See, e.g., T.P. ex rel. Patterson v. Elmsford Union

Free Sch. Dist., No. 11-CV-5133, 2012 WL 860367, at *3 (S.D.N.Y.

Feb. 27, 2012) (“Section 1983 [the vehicle for vindicating

violations of federal rights] does not recognize a claim on

behalf of one person arising from a violation of another

person’s rights.”); Wrobleski v. City of New York, No. 18-CV-

8208, 2018 WL 10604749, at *3 (S.D.N.Y. Nov. 5, 2018) (“Where

parents assert no harm other than emotional distress from injury

to their child, . . . courts have held that parents lack

standing to bring their own claims.”).

The allegations here also do not satisfy Rule 8’s fair

notice requirement. “[A]t a minimum,” a complaint must “give

each defendant fair notice of what the plaintiff’s claim is and

the ground upon which it rests.” Atuahene v. City of Hartford,

10 F. App’x 33, 34 (2d Cir. 2001); Salahuddin v. Cuomo, 861 F.2d

40, 42 (2d Cir. 1988) (“[T]he principal function of pleadings

under the Federal Rules is to give the adverse party fair notice

of the claim asserted so as to enable him to answer and prepare

for trial.”). The complaint fails to do so. While Thompson

alleges that her children suffered abuse while in ACS’s care,

she includes no details regarding where, when, how, and by whom

that harm occurred. Nor does she allege any facts specifically

against Children’s Aid. The complaint therefore fails to

“disclose sufficient information to permit [each] defendant to

have a fair understanding of what [Plaintiff] is complaining

about and to know whether there is a legal basis for recovery.”

Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000).

III. Leave to Amend

The Second Circuit has held that leave to replead

should be liberally granted to pro se litigants. See Grullon v.

City of New Haven, 720 F.3d 133, 140 (2d Cir. 2013) (“[A] pro se

complaint generally should not be dismissed without granting the

plaintiff leave to amend at least once.”); see also Chavis v.

Chappius, 618 F.3d 162, 170 (2d Cir. 2010).

Thompson may file an amended complaint within thirty

days of this Order. Any amended complaint must comply with Rule

8 of the Federal Rules of Civil Procedure. Thompson should

explain what federal laws or constitutional provisions were

violated. She must clearly identify the individual(s) who were

personally involved in the events giving rise to her claims,

explain what each one did to cause her harm, and set forth some

factual content regarding where, when, and how that harm

occurred. She should also state clearly what relief she is

asking for. If Thompson intends to bring claims on behalf of

her children, she must also obtain legal counsel to represent

them within thirty days of this Order.

Thompson is reminded that an amended complaint

completely replaces all previous complaints filed in that

action. If she chooses to file an amended complaint, it must be

submitted to the Court within thirty days from the date of this

Order, be captioned as an “Amended Complaint,” and bear the same

docket number as this Order.

IV. Conclusion

For the reasons set forth above, the complaint is

dismissed. In light of Thompson’s pro se status, the Court

grants her leave to file an amended complaint and to obtain

counsel for her children within thirty days from the entry of

this Order as set forth above. If Thompson fails to comply with

this Order within the time allowed, she will not have another

opportunity to replead, the case will be dismissed, and judgment

shall enter.

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

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

IFP status is denied for the purpose of any appeal. Coppedge v.

United States, 369 U.S. 438, 444–45 (1962).

The Clerk is requested to mail this Order to the

plaintiff, along with forms for filing a civil rights action,

and to note the mailing on the docket.

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: October 30, 2023

Brooklyn, New York