Butler v. Faraci

UNITED STATES DISTRICT COURT 3:20 pm, Mar   26, 2024

EASTERN DISTRICT OF NEW YORK U.S. DISTRICT COURT

----------------------------------------------------------------------X EASTERN DISTRICT OF NEW YORK

TIMOTHY BUTLER, #309172, L O N G  I S L A N D   O F FICE

Plaintiff,

MEMORANDUM & ORDER

-against- 24-0036(GRB)(ARL)

FARRAH J. FARACI, JENNIFER BASILE,

JAMES EHLERS, JODI THOMLINSON,

Defendants.

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GARY R. BROWN, United States District Judge:

Before the Court are the applications to proceed in forma pauperis (“IFP”) filed by pro se

plaintiff Timothy Butler (“Plaintiff”) while incarcerated at the Suffolk County Correctional

Facility (“Jail”) in relation to his amended complaint against the defendants, each of whom is

alleged to have played a role in an underlying state court child neglect case pending in family

court. (Docket Entry “DE” 2, 9, 11.)1 The defendants are Assistant County Attorney Farrah J.

Faraci, Esq. (“Faraci”), Jennifer Basile, Esq. (“Basile”), who is alleged to be the attorney for the

children, the Director of Suffolk County Child Protective Services (“SCCPS”) James Ehlers

(“Ehlers”), and the Assistant Director of SCCPS Jodi Thomlinson2 (“Tomlinson” and

collectively, “Defendants”). For the reasons that follow, the Court grants Plaintiff’s

applications to proceed IFP and finds that this Court lacks subject matter jurisdiction to

adjudicate the claims alleged in the amended complaint. Thus, the amended complaint is

dismissed without prejudice pursuant to Federal Rule of Civil Procedure 12(h)(3).

1 Plaintiff filed an IFP application (DE 2) together with his original complaint (DE 1) and then filed another IFP

application (DE 11) with his amended complaint (DE 9).

2 Plaintiff has appended exhibits to his amended complaint that reflect that this defendant’s sur name is spelled

“Tomlinson” and Plaintiff also uses this spelling at page 3 of the complaint. See DE 9 at 3, 7, 14, 16. Accordingly,

the Court refers to this defendant as “Tomlinson” hereafter

BACKGROUND

1. Summary of the Amended Complaint3

Plaintiff’s brief amended complaint is submitted on the Court’s general civil complaint

form with an additional ten pages of attachments. See DE 9. Plaintiff has checked the box on

the form to allege that this Court’s diversity subject matter jurisdiction is invoked. Id. ¶ II.

However, Plaintiff has not provided responses to any of the questions on the form that ask where

each of the parties, including himself, is a citizen. Id. ¶ II B.1-2. Rather, he has drawn a

diagonal line across each such space. Id. In the space that asks for the amount in controversy,

Plaintiff alleges that he has “incurred $18,000 in legal fees and $100,000 in punitive damages for

causing an interruption of contact with my 12 & 13 year old daughters.” Id. ¶ II B.3.

Additionally, Plaintiff’s “Relief” section seeks a total award of $118,000. Id. ¶ IV.

In its entirety, Plaintiff’s “Statement of Claim” alleges:

1 – Abuse of Process

2 – Intentional infliction of Emotional Distress

4 – Intentional Conscious Avoidance of Issues4

5 – Conspiracy

Id. ¶ III. However, Plaintiff also wrote “See Attached” and has annexed four handwritten pages

and three pages of exhibits. Id. ¶ III and at pages 7-16. There, Plaintiff elaborates on each of the

items listed in his Statement of Claim:

1) Abuse of Process – Notes dated 6/21/23 by Author Kristen Salcedo states that ACA

Farah Faraci contacted CPS and asked them to amend the neglect petition so it

would not be dismissed. The notes on 6/23/23 authored by Jodi Tomlinson shows

3 Excerpts from the complaint are reproduced here exactly as they appear in the original. Errors in spelling,

punctuation, and grammar have not been corrected or noted.

4 Although Plaintiff included a third item, he has crossed it out and has not renumbered this list. Id. ¶ III.

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notes of a conference with Director James Ehlers. Director Ehlers wished to

withdraw the petition without prejudice but the County Attorney ACA Basile

interfered (Exhibit B).

2) Intentional Infliction of Emotional Distress. The interference described above and

the documents provided show that the County Attorney was interfering to satisfy a

witness in a criminal case (Exhibit A) in order to not have me the Father have direct

communication with my daughters at the witness’s request. This is causing

emotional and physocolgical harm to me and my children.

3) Intentional Conscious Avoidance of Issues On 6/23/23 Director James Ehlers

directed that the Agency (CPS) should dismiss the petition without prejudice. The

decision for CPS regarding wether or not to dismiss a petition comes solely from

the case workers and the Director. Director Ehlers allowed the County Attorney

Jennifer Basile to change the decision of his agency. (Exhibit B)

4) Conspiracy- A motion to dismiss a neglect petition was denied because the County

Attorney had an agreement with their witness in the criminal charges (Danae Butler

– my wife). Th used there influence to change the decision of a secondary agency

(CPS) in order to satisfy a third party. (Exhibit C)

Id. at 7-8. Plaintiff next alleges, in its entirety:

My name is Timothy Butler. I am currently incarcerated at the Yaphank

Correctional Facility in Yaphank, NY. Prior to incarceration, I lived at 9 Peri

Avenue in Holbrook, NY 11741.

I was arrested Nov. 13, 2022 for multiple crimes. They all revolve around an

allegation of Domestic Violence by my wife Danae Butler. The domestic violence

charge generated a neglect charge by family court (CPS) although our children were

not home at the time of the alleged incident.

I hired a Family Court attorney by the name of Karyn Villor. I had to let her go

after receiving a bill for $18,000 without anything being accomplished.

I was notified of the Neglect Petition by Senior Case worker Robyn Reyes in a

letter dated December 6, 2022. We had multiple conferences. On 6/14/23 my

attorney Karyn had filed a motion to dismiss. The Case Notes essentially had

enough information to contradict the entire petition.

The Case Notes also showed clearly that for months the petitioning agency CPS

had wanted to dismiss the petition without prejudice but another agency the County

Attorneys asked them to come up with something else so the petition would not be

dismissed. This is because they had an agreement with the sole witness in my

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criminal charges my wife Danae Butler. You will see that she was having a

conversation with case workers and the case workers informed Danae that Judge

Iliou had granted me permission to mail letters through the childrens attorney and

Danae clearly states shes supposed to be consulted with prior to any changes in any

contact I have with my children.

Id. at 9-10. Finally, Plaintiff has annexed three typed pages as Exhibits A-C that appear to be

excerpts from case worker reports. Exhibit A is numbered as page 19, Exhibit B is numbered as

page 36 and Exhibit C is numbered as page 32 and each exhibit is entitled “Family Service

Progress Notes.” Id. at 12, 14, 16.

LEGAL STANDARDS

The Second Circuit has established a two-step procedure wherein the district court first

considers whether plaintiff qualifies for in forma pauperis status, and then considers the merits of

the complaint under 28 U.S.C. § 1915(e)(2). Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d

Cir. 1983).

I. In Forma Pauperis

Upon review of the IFP applications, the Court finds that Plaintiff is qualified by his

financial status to commence these actions without the prepayment of the filing fees. Therefore,

the applications to proceed IFP (DE 2, 9) are granted.

II. Sufficiency of the Pleadings

As Judge Bianco summarized,

A district court is required to dismiss an in forma pauperis complaint if the action

is frivolous or malicious, fails to state a claim on which relief may be granted, or

seeks monetary relief against a defendant who is immune from such relief. See 28

U.S.C. §§ 1915(e)(2)(B)(i)-(iii). The Court is required to dismiss the action as

soon as it makes such a determination. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii).

It is axiomatic that district courts are required to read pro se complaints liberally,

see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429

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U.S. 97, 106 (1976)); Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010), and to

construe them “‘to raise the strongest arguments that [they] suggest [ ].’” Chavis,

618 F.3d at 170 (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir.

2010)). Moreover, at the pleadings stage of the proceeding, the Court must assume

the truth of “all well-pleaded, nonconclusory factual allegations” in the complaint.

Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010), aff’d, ---

U.S. ----, 133 S. Ct. 1659, 185 L. Ed. 2d 671 (2013) (citing Ashcroft v. Iqbal, 556

U.S. 662 (2009)). However, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements . . . are not entitled to the

assumption of truth.” Iqbal, 556 U.S. at 678 (citation omitted).

Notwithstanding a plaintiff’s pro se status, a complaint must plead sufficient facts

to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The

plausibility standard requires “more than a sheer possibility that a defendant has

acted unlawfully.” Id.; accord Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128

(2d Cir. 2011). While “detailed factual allegations” are not required, “[a] pleading

that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a

cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

555). Plaintiff’s factual allegations must also be sufficient to give the defendant

“fair notice of what the . . . claim is and the grounds upon which it rests,” Twombly,

550 U.S. at 555 (internal quotation marks and citation omitted).

Patrick v. Bronx Care, No. 14-CV-7392 (JFB)(AKT), 2014 WL 7476972, at *1-2 (E.D.N.Y. Dec.

31, 2014).

DISCUSSION

I. Subject Matter Jurisdiction

Notwithstanding the liberal pleading standard afforded pro se litigants, federal courts are

courts of limited jurisdiction and may not preside over cases if they lack subject matter

jurisdiction. Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 01 (2d Cir.

2000). A plaintiff seeking to bring a lawsuit in federal court must establish that the court has

subject matter jurisdiction over the action. See Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir.

2009) (citing Sharkey v. Quarantillo, 541 F.3d 75, 82 (2d Cir. 2008)). If a district court lacks

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subject matter jurisdiction, it must dismiss the action. See FED. R. CIV. P. 12(h)(3); see also

Lussie-r, 211 F.3d at 701. This Court has an obligation to examine its subject matter jurisdiction

sua sponte. See Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006).

Plaintiff seeks to invoke diversity subject matter jurisdiction pursuant to 28 U.S.C. §

1332 which requires both diversity of citizenship and an amount in controversy exceeding

$75,000. See 28 U.S.C. § 1332; Emiabata v. Farmers Ins. Corp., 848 F. App’x 27, 29 (2d Cir. 2021)

(summary order); Perry v. Robles, 23-CV-7492(LTS), 2023 WL 6881993, at *2 (S.D.N.Y. Oct.

16, 2023) (“To establish the court’s diversity jurisdiction, a plaintiff must first show that he and

the defendants are citizens of different States. . . . The plaintiff must also allege to a ‘reasonable

probability’ that his or her claims are in excess of the sum or value of $75,000, the statutory

jurisdictional amount.” (citing Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221

(2d Cir. 2006) (cleaned up) (additional citation omitted).

To establish diversity jurisdiction, there must be complete diversity of citizenship

between the plaintiffs and the defendants. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545

U.S. 546, 553 (2005); Emiabata, 848 F. App’x at 29. This means that a plaintiff cannot be a

citizen of the same state as any of the defendants. Emiabata, 848 F. App’x at 29 (citing Pa. Pub.

Sch. Emps.’ Retirement Sys. v. Morgan Stanley & Co., 772 F.3d 111, 117-18 (2d Cir. 2014) (“Section

1332 requires that all plaintiffs must be citizens of states diverse from those of all defendants.”) (internal

quotation marks omitted); see also St. Paul Fire and Marine Ins. Co. v. Universal Builders Supply,

409 F.3d 73, 80 (2d Cir. 2005) (“Diversity is not complete if any plaintiff is a citizen of the same

state as any defendant.”). Courts evaluate diversity “by examining citizenship as of the time

suit is commenced,” Housand v. Heiman, 594 F.2d 923, 926 n. 6 (2d Cir. 1979), and “[a]n

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individual’s citizenship, within the meaning of the diversity statute, is determined by his

domicile.” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000). In this context,

domicile “is defined as the place where a person ‘has his true fixed home . . . and to which,

whenever he is absent, he has the intention of returning.” Corio, 232 F.3d at 42 (internal

quotation marks and citation omitted). In addition, a prisoner “retains his pre-incarceration

domicile,” and the Court must therefore look to that state when evaluating whether diversity

exists between the parties. Poucher v. Intercounty Appliance Corp., 336 F. Supp. 2d 251, 253

(E.D.N.Y. 2004); Blumatte v. Quinn, 521 F. Supp. 2d 308, 312 n.3 (S.D.N.Y. 2007) (explaining

that there is a rebuttable presumption that a prisoner retains his or her pre-incarceration

domicile).

Here, Plaintiff alleges that, pre-incarceration he resided in Holbrook, New York. DE 11

at 9. As for the Defendants, Plaintiff alleges only that they each work in Suffolk County, New

York. DE 11 at 2-3, 7-8, 10. These allegations do not establish that the diversity requirement is

met because “residence alone is insufficient to establish domicile for jurisdictional purposes.” Van

Buskirk v. United Grp. of Cos., 935 F.3d 49, 54 (2d Cir. 2019) (citing Leveraged Leasing Admin.

Corp. v. PacifiCorp Cap., Inc., 87 F.3d 44, 47 (2d Cir. 1996)); accord Canedy v. Liberty Mut. Ins.

Co., 126 F.3d 100, 103 (2d Cir. 1997) (“[I]t is well-established that allegations of residency alone

cannot establish citizenship . . . .”).

Given that Plaintiff has not provided facts regarding his or any of the Defendants’ domicile,

and because allegations of residency alone are insufficient to establish diversity jurisdiction,

Plaintiff has not properly invoked this Court’s diversity subject matter jurisdiction. SBL

Enterprises LLC v. Keystone Cap. Corp., No. 21-CV-4459, 2021 WL 2000365, at *3 (S.D.N.Y.

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May 19, 2021) (collecting cases) (Jacobs v. Patent Enforcement Fund, Inc., 230 F.3d 565, 567 (2d

Cir. 2000) (finding that plaintiffs failed to allege diversity in complaint because “they had alleged

only the residence, and not the citizenship (or domicile), of the parties”); Sekiguchi v. Long, No.

3:13-cv-01223 (CSH), 2013 WL 5357147, at *2 (D. Conn. Sept. 25, 2013) (“[W]hile Plaintiff as

alleged each party’s residency, Plaintiff has not established any party’s citizenship . . . .”); Jordan

v. Verizon Corp., No. 08 Civ. 6414(GEL), 2008 WL 5209989, at *4 (S.D.N.Y. Dec. 10, 2008)

(finding that plaintiff did not properly allege diversity of citizenship where she “d[id] not make a

proper allegation as to her own citizenship” and “allege[d] only residency - not citizenship”);

Fagan v. Deutsche Bundesbanki, No. 05 CV 10114 (CSH), 2005 WL 3534764, at *1 (S.D.N.Y.

Dec. 22, 2005) (alteration omitted) (“Allegations of residence are insufficient to establish diversity

jurisdiction. It is well-established that when the parties allege residence but not citizenship, the

court must dismiss the suit.” (quoting Held v. Held, 137 F.3d 998, 1000 (7th Cir. 1996))).

Further, although Plaintiff alleges that the amount in controversy is $118,000, (DE 9, ¶ II.

B.3), there are no facts alleged in support of that amount. See DE 9, generally. Rather, Plaintiff

alleges that he spent $18, 000 in “legal fees” in the underlying state proceedings and the balance

sought is for punitive damages. (Id., ¶ II.B.3.) “‘[E]ven where [the] allegations leave grave

doubt about the likelihood of a recovery of the requisite amount, dismissal is not warranted.’” GW

Holdings Grp., LLC v. U.S. Highland, Inc., 794 F. App’x 49, 51 (2d Cir. 2019) (summary order)

(quoting Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir. 1982); also citing

Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 785 (2d Cir. 1994) (“Where the

damages sought are uncertain, the doubt should be resolved in favor of the plaintiff’s pleadings.”)).

However, as the Second Circuit recently reiterated, the allegations must establish a “reasonable

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probability that the amount-in-controversy requirement is satisfied.” Agoliati v. Block 865 Lot 300

LLC, No. 22-51, 2023 WL 405769, at *2 (2d Cir. Jan. 26, 2023) (quoting Pyskaty v. Wide World

of Cars, LLC, 856 F.3d 216, 223 (2d Cir. 2017) (internal quotation marks and additional citation

omitted)). Given that Plaintiff has not satisfied the diversity of citizenship requirement, the Court

need not reach the amount in controversy question at this time. Thus, subject matter jurisdiction

does not lie in this Court.5

A. Domestic Relations Exception to Subject Matter Jurisdiction

Even if Plaintiff had properly invoked this Court’s subject matter jurisdiction, this Court

would be divested of such jurisdiction under the domestic relations exception. Demuth v.

Chenango Cnty. Dept. of Soc. Servs., No. 18-CV-0767, 2018 WL 5114175, at *3 (N.D.N.Y.

Aug. 30, 2018), report and recommendation adopted sub nom., Demuth v. Chenango Cnty. Dept.

of Soc. Servs., No. 18-CV-0767, 2018 WL 5113132 (N.D.N.Y. Oct. 19, 2018) (“There exists,

however, a judicially recognized exception to federal subject matter jurisdiction in matters

involving domestic relations.”) (citing Ankenbrandt v. Richards, 504 U.S. 689, 701-04 (1992)

(add’l citation omitted)). “Domestic relations is “an area of law that federal courts and Congress

leave almost exclusively to state law and state courts.” Khalid v. Sessions, 904 F.3d 129, 133

(2d Cir. 2018). “Federal district courts must abstain from exercising federal question

jurisdiction of claims involving domestic relations issues, so long as those claims may be fully

and fairly determined in the state courts.” Dixon v. Hahn, No. 1:23-CV-5424 (LTS), 2023 WL

5 Given Plaintiff’s pro se status and in an abundance of caution, the Court has considered whether the complaint

plausibly alleges a federal question such that subject matter jurisdiction pursuant to 28 U.S.C. § 1331 could be

invoked. Even upon a liberal construction, the Court discerns no such claim. Further, even if the Court construed

such a claim (which it does not), the Court is divested of subject matter jurisdiction by the domestic relations

exception.

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5103162, at *3 (S.D.N.Y. Aug. 7, 2023). “Although the domestic relation exception is narrow,

“‘it applies generally to issues relating to the custody of minors.” Varricchio v. Cnty. of Nassau,

702 F. Supp. 2d 40, 67 (E.D.N.Y. 2010) (Bianco, D.J.) (quoting Mitchell-Angel v. Cronin, No.

95-7937, 1996 WL 107300, at *2 (2d Cir. Mar. 8, 1996)); see also Washington v. Williams, No.

19-CV-00289, 2019 WL 1876787, at *2 (E.D.N.Y. Apr. 26, 2019) (the Court lacks subject

matter jurisdiction over plaintiff’s claims that the state court judge violated her rights during

custody and neglect proceedings). The Second Circuit instructs that, where, like here, tort

claims “begin and end in a domestic dispute,” state courts are better suited to adjudicate the

claims. See Schottel v. Kutyba, No. 06-1577, 2009 WL 230106, at *1 (2d Cir. Feb. 2, 2009)

(affirming, based on the domestic relations exception, the district court’s dismissal of a

complaint alleging, inter alia, that the defendants “fraudulently misrepresented to the court the

former couple’s residence in order to file divorce proceedings in New York,” and, as a result,

plaintiff was “deprived of custody and visitation rights”).

Here, as is readily apparent, Plaintiff’s tort claims are inextricably entwined with his on-

going state family court proceedings involving access to his children. Given that the state cases

cited by Plaintiff in his complaint are on-going, Plaintiff can pursue such claims there. Indeed,

Plaintiff has not alleged that these issues cannot be fully and fairly determined in the state court.

Accordingly, for this additional reason, the Court lacks subject matter jurisdiction to adjudicate

this complaint. “It is axiomatic that federal courts must ‘verify the existence of subject-matter

jurisdiction before proceeding to the merits.’” Emiabata v. Farmers Ins. Corp., 848 F. App’x 27, 29 (2d

Cir. 2021) (summary order) (quoting Singh v. U.S. Citizenship & Immigr. Servs., 878 F.3d 441, 445 (2d

Cir. 2017)). In the absence of subject matter jurisdiction for the reasons set forth above, the Court does

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not reach the merits of Plaintiff’s claims and the complaint is dismissed without prejudice pursuant to

Federal Rule of Civil Procedure 12(h)(3). Humphrey v. Syracuse Police Dep’t, 758 F. App’x 205,

206-07 (2d Cir. 2019) (summary order) (explaining, where a court dismisses a complaint for lack

of subject matter jurisdiction, the court does “not have the power to reach the merits and dismiss

the claims against the defendants for failure to state a claim . . . .”) (citing Carter v. HealthPort

Technologies, LLC, 822 F.3d 47, 54-55 (2d Cir. 2016)).

III. Leave to Amend

A pro se plaintiff should ordinarily be given the opportunity “to amend at least once when

a liberal reading of the complaint gives any indication that a valid claim might be stated.” Shomo

v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation marks and citation

omitted). However, leave to amend is not required where it would be futile. See Hill v. Curcione,

657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).

Here, for the reasons set forth above, this Court lacks subject matter jurisdiction to

adjudicate Plaintiff’s claims and such circumstance could not be cured with better pleading.

Accordingly, leave to amend the complaint would be futile and is thus denied. However, Plaintiff

may pursue any valid claims he has against the Defendants in state court.

CONCLUSION

Based on the foregoing, Plaintiff’s applications to proceed IFP (DE 2, 9) are granted.

However, complaint is dismissed without prejudice pursuant to Federal Rule of Civil Procedure

12(h)(3). The Clerk of the Court shall enter judgment accordingly and close this case. The Clerk

of the Court shall also mail a copy of this Order and the judgment to the pro se Plaintiff at his

address of record with “Legal Mail” noted on the envelope and shall record such mailing on the

docket.

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The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order

would not be taken in good faith and therefore in forma pauperis status is denied for the purpose

of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

/s/ Gary R. Brown

_______________________

Hon. Gary R. Brown

United States District Judge

Dated: March 26, 2024

Central Islip, New York

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