Eubanks v. Hansell

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JAMAL EUBANKS, as Administrator of

the Estate of JACE EUBANKS deceased,

J.E., an infant, by his father and MEMORANDUM & ORDER

natural guardian JAMAL EUBANKS, and

JAMAL EUBANKS, in his individual No. 22-cv-6277(KAM)(JRC)

capacity,

Plaintiffs,

- against -

DAVID HANSELL, former commissioner

of the New York City Administration

for Children’s Services,

THE CITY OF NEW YORK, JOHN and JANE

DOES, and JOHN and JANE ROES,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiffs Jamal Eubanks, as administrator of the estate of

Jace Eubanks (the “Decedent”); J.E., a minor, by his father and

guardian, Jamal Eubanks (the “Minor Son” and, together with the

Decedent, the “Children”); and Jamal Eubanks, in his individual

capacity (“Mr. Eubanks”) (all together, “Plaintiffs”) commenced

the instant action on October 18, 2022 in connection with the

tragic death of the Decedent. (ECF No. 1, Complaint, “Compl.”)

Defendants are the City of New York (the “City”); the former

Commissioner of the New York City Administration for Children’s

Services (“ACS”)1, David Hansell (“Hansell”); the individuals

affiliated with and representative of the New York City Police

Department (“NYPD”) who participated in the alleged incidents

(the “Doe Defendants”); and the individuals affiliated with and

representative of ACS who participated in the alleged incidents

(the “Roe Defendants”) (all together, “Defendants”).

In the operative Amended Complaint (ECF No. 10, Amended

Complaint, “AC”), Plaintiffs allege that, after receiving a

report of suspected child abuse from the Children’s daycare

center, Defendants visited the Children’s home where they

resided with their mother, Rickia Duvalle (“Ms. Duvalle”), and

her boyfriend, Jeremiah Johnson (“Mr. Johnson”), on August 26,

2021 and August 29, 2021. Plaintiffs allege that Defendants

observed signs pf physical injuries on the Children’s bodies,

questioned their mother and Mr. Johnson, and permitted the

Children to remain in the care of their mother and Mr. Johnson,

despite learning of Mr. Johnson’s history of child abuse and his

outstanding warrant, and despite observing, from the Children’s

injuries, that they were at serious risk of future abuse. (AC

¶¶ 34-52.) Defendants allegedly promised the Children that they

1 Plaintiffs named ACS as a defendant in their Amended Complaint, but stated

in their opposition brief that they “do not contest the dismissal of ACS as a

named defendant.” (Ptf. Opp. at 22 n.37.) Accordingly, pursuant to Federal

Rule of Civil Procedure 41(a)(2) and pursuant to Plaintiffs’ request, the

Amended Complaint is dismissed as against ACS.

would protect them and, according to Plaintiffs, implicitly

communicated to Mr. Johnson that his abuse of the Children would

not be punished. (AC ¶ 53.) On September 12, 2021, the

Decedent succumbed to severe physical injuries inflicted upon

him by Mr. Johnson. Mr. Johnson was subsequently charged with

the murder of the Decedent. Plaintiffs do not allege that

Defendants were informed, prior to the Decedent’s murder, that

Mr. Johnson or the Children’s mother inflicted injuries on the

Children.

Plaintiffs allege that Defendants’ failure to remove the

Children from their dangerous home environment resulted in the

death of the Decedent. Specifically, Plaintiffs allege that

Defendants’ failure to safeguard the wellbeing of the Decedent

and Minor Son by virtue of Defendants’ inaction and affirmative

conduct deprived Plaintiffs of their constitutional rights,

including Plaintiffs’ Due Process rights under the Fifth and

Fourteenth Amendments, and Plaintiffs’ rights under New York

Social Services Law. Plaintiffs further allege that, because

Defendants acted under color of law and because Defendants’

conduct was purportedly part of the City’s policy of

indifference and inaction in the face of child abuse,

Defendants’ inaction and affirmative conduct constitute

violations of 42 U.S.C. § 1983 by individual municipal employees

and the City. Finally, Plaintiffs also allege claims under New

York state law, including wrongful death and negligence.

Presently before the Court is Defendants’ motion to dismiss

the Amended Complaint (ECF Nos. 13-2, “Def. Mot.”; 15, “Def.

Reply”) pursuant to Federal Rule of Civil Procedure 12(b)(6).

Plaintiffs oppose Defendants’ motion to dismiss the Amended

Complaint. (ECF No. 14, “Ptf. Opp.”) For the reasons set forth

below, Defendants’ motion to dismiss the Amended Complaint is

GRANTED and Plaintiffs’ Amened Complaint is DISMISSED without

prejudice to refile in New York state court.

BACKGROUND

I. Factual Background

Mr. Eubanks is the father of brothers, Jace Eubanks (the

“Decedent”) and J.E. (Mr. Eubanks’s “Minor Son”) (together, the

“Children”). (AC ¶ 33.) In August and September 2021, the

Children lived with their mother, Ms. Duvalle, and her

boyfriend, Mr. Johnson, in Brooklyn, New York. (AC ¶ 34.) At

the time, the Decedent was approximately four years old and J.E.

was approximately six years old. (AC ¶¶ 17-18.)

According to the Amended Complaint, Mr. Johnson had a

history of child abuse, including three reports over the course

of four years charging him with committing acts of domestic

violence and abusing children. (AC ¶ 38.) On August 26, 2021,

Mr. Johnson was subject to an outstanding warrant for violating

the conditions of his supervised release in connection with

charges of domestic violence “involving children.” (AC ¶ 39.)

Plaintiffs allege that Defendants were aware of these reports,

the outstanding warrant, and of Mr. Johnson’s history of

violence towards children. (AC ¶¶ 38-39.)

A. The August 26, 2021 Incident

On August 26, 2021, the Children attended Strong Place for

Hope Day Care Center in Brooklyn, New York. (AC ¶ 35.) On that

day, an employee of the Children’s daycare center observed signs

of physical injury on the Children’s bodies and called NYPD and

ACS authorities to report her suspicion that the Children were

being abused in their home. (Id.) The employee was a “Mandated

Reporter” under New York state law and called authorities

pursuant to her obligation to report any suspicions of child

abuse or neglect to the NYPD and/or ACS. (Id.)

In response to the August 26, 2021 call from the Mandated

Reporter, the Doe and/or Roe Defendants visited the home of Ms.

Duvalle and Mr. Johnson to investigate the report of possible

child abuse. (AC ¶ 36.) The Doe and/or Roe Defendants

ultimately brought the Children, Ms. Duvalle, and Mr. Johnson to

the ACS office in Brooklyn, New York where Defendants conducted

interviews of the Children, Ms. Duvalle, and Mr. Johnson in

connection with the report of possible child abuse.

Plaintiffs allege that during the course of their

interviews, the Doe and/or Roe Defendants observed scars,

bruises, and other signs of physical injury on the Children’s

bodies, which indicated that the Children were being abused.

(Id.) Specifically, the Decedent appeared to have a black eye

and numerous marks on his foot, the side of his rib, and on his

chest that the Doe and/or Roe Defendants noted. (Id.) The Doe

and/or Roe Defendants also questioned the Children, as well as

Ms. Duvalle and Mr. Johnson, about the signs of physical injury,

but there are no allegations that Defendants were provided with

information that either Ms. Duvalle or Mr. Johnson had caused

the Children’s injuries. (Id.) During their interviews, the Doe

and/or Roe Defendants also learned that Mr. Johnson was subject

to an outstanding warrant for violating the conditions of his

supervised release in connection with charges of domestic

violence “involving children.” (AC ¶ 39.) While interviewing

the Children, the Doe and/or Roe Defendants purportedly promised

the Children “that they would protect them from harm, [that]

they would be there to prevent any injuries . . . and [that]

they would stop anyone, including Mr. Johnson, from injuring

them in the future.” (AC ¶ 37.) Plaintiff alleges that at the

conclusion of the interviews, the Doe and/or Roe Defendants

determined that the Children were “under suitable care” and

permitted the Children to return to their home with Ms. Duvalle

and Mr. Johnson. (AC ¶ 43.)

B. The August 29, 2021 Incident

Three days after the initial home visit and ACS office

interview, the Doe and/or Roe Defendants returned to the

Children’s residence to check in. (AC ¶ 44.) The Children, Ms.

Duvalle, and Mr. Johnson were all present in the residence for

the follow-up home visit. (Id.) Plaintiffs allege that the Doe

and/or Roe Defendants again concluded that the Children were

under suitable care and left the residence without further

action. (AC ¶ 45.)

C. The Decedent’s Death

Plaintiffs allege that approximately two weeks later, on

September 12, 2021, Mr. Johnson lifted the Decedent into the air

and threw him down to the floor, which caused severe physical

injuries and trauma, and to which the Decedent succumbed a short

time later. (AC ¶ 54.) According to the Amended Complaint, the

Decedent sustained blunt trauma to the torso and his cause of

death was pronounced to be “Battered Child Syndrome.” (Id.)

Mr. Johnson was arrested and subsequently charged with the

murder of the Decedent. (Id.)

D. Applicable ACS Policy

Plaintiff alleges that the Doe and/or Roe Defendants

“concluded that the Children were in no danger” on both August

26, 2021 and August 29, 2021, and that their decision to leave

the Children in the care of Ms. Duvalle and Mr. Johnson

constituted a “violation of their own policies.” (AC ¶ 59.)

First, Plaintiffs allege that Defendants had an obligation

to require that the Children visit a medical doctor to assess

the extent of their observable injuries and to seek medical

clearance before returning them to the care of Ms. Duvalle and

Mr. Johnson. (AC ¶ 65.) Plaintiffs allege that if Defendants

had arranged for the required medical care, X-ray results would

have revealed what the Decedent’s autopsy revealed—that the

Decedent was suffering from fractures of his ribs, skull, and

other parts of his body, and that he was a victim of Battered

Child Syndrome. (AC ¶¶ 66-67.)

Second, Plaintiffs allege that Defendants failed to

interview the Children’s neighbors, which, according to

Plaintiffs, also constitutes a violation of ACS policy, and

which may have revealed that the Decedent was a victim of

Battered Child Syndrome. (AC ¶ 69.)

Finally, Plaintiffs allege that Defendants failed to

follow-up with Mr. Johnson with respect to his outstanding

warrant and other complaints of child abuse. (AC ¶ 73.)

E. Defendants’ Policy and Practice

Notwithstanding the aforementioned policies, with which

Defendants purportedly failed to comply on August 26, 2021 and

August 29, 2021, Plaintiffs also allege that the City and ACS

have a “policy, practice, and/or custom of . . . allowing

vulnerable children to remain under the supervision of known

violent child predators” even when alerted of possible child

abuse and in the face of visible signs of children’s physical

injuries. (AC ¶ 85.) Plaintiffs allege that, pursuant to this

“policy, practice and/or custom,” several other children have

suffered from preventable deaths, including Julissia Batties,

Legacy Beauford, Aisyn Gonzalez, Lisa Steinberg, Elisa

Izguierdo, Daytwon Bennett, Sabrina Green, Marchella Brett-

Prince, Kyron Hamilton, Nixzmary Brown, Sierra Roberts, Quachaun

Brown, Myls Dobson, Sylena Herrenkind, Zymere Perkins, and Jaden

Jordan, among others. (AC ¶¶ 86-95.)

Following the deaths of Zymere Perkins and Jaden Jordan,

the New York City Department of Investigation conducted an

investigation into ACS and concluded that ACS is plagued by

“systemic failures” and that “the City’s response to complaints

of child abuse” is hampered by “poorly trained staff and

inadequate staffing in a unit that receives a high proportion of

critical cases.” (AC ¶¶ 93-95.)

II. Procedural Background

Plaintiffs initiated this civil rights action, pursuant to

42 U.S.C. §1983, on October 18, 2022 by filing the original

Complaint. In response to Defendants’ motion for a pre-motion

conference in anticipation of Defendants’ motion to dismiss the

original Complaint, Plaintiffs sought leave to file an Amended

Complaint. (ECF No. 9 at 1-2.) The Court granted Plaintiffs’

request for leave to file an Amended Complaint at the February

23, 2023 Pre-Motion Conference. (Feb. 23, 2023 Min. Entry.)

Thereafter, Plaintiffs filed the operative Amended Complaint on

March 17, 2023.

LEGAL STANDARD

I. Motion to Dismiss

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (internal quotation marks omitted). The

Court reviews the operative Amended Complaint, “accept[ing] all

factual allegations as true,” for the purposes of Defendants’

12(b)(6) motion, and “draw[ing] all reasonable inferences in”

Plaintiffs’ favor. Melendez v. City of New York, 16 F.4th 992,

1010 (2d Cir. 2021). To the extent Plaintiffs allege “legal

conclusion[s] couched as factual allegation[s],” however, the

Court is not bound to accept such statements as true. Drimal v.

Tai, 786 F.3d 219, 223 (2d Cir. 2015) (citing Iqbal, 556 U.S. at

678).

The Court must dismiss Plaintiffs’ Amended Complaint if

Plaintiffs have failed to plead “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). “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.

I. Due Process

The Due Process Clause of the Fourteenth Amendment to the

U.S. Constitution dictates that “no State shall . . . deprive

any person of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV, § 1. The Fifth Amendment

provides that “[n]o person shall be . . . deprived of life,

liberty, or property, without due process of law.” U.S. Const.

amend. V. The Fifth Amendment Due Process Clause protects

against the actions of the federal government, whereas the

Fourteenth Amendment Due Process Clause protects against the

actions of state actors. See Darnell v. Pineiro, 849 F.3d 17,

21 n.3 (2d Cir. 2017). Both the Due Process Clause of the Fifth

Amendment and the Due Process Clause of the Fourteenth Amendment

were enacted “to prevent government ‘from abusing its power, or

employing it as an instrument of oppression.’” DeShaney v.

Winnebago County Department of Social Services, 489 U.S. 189,

195 (1989) (citing Davidson v. Cannon, 474 U.S. 344, 348

(1986)).

A plaintiff who alleges he or she has been deprived of the

right against “unjustified intrusions on personal security”

irrespective of any particular “procedural safeguard[]” invokes

the substantive component of the Due Process Clause, rather than

procedural component. DeShaney, 489 U.S. at 195. To state a

substantive Due Process claim, Plaintiffs must allege (1) a

constitutional right that Defendants infringed (2) by virtue of

conduct that “shocks the [contemporary] conscience” or

constitutes “a gross abuse of governmental authority.” Natale

v. Town of Ridgefield, 170 F.3d 258, 262-63 (2d Cir. 1999)

(“Substantive due process standards are violated only by conduct

that is so outrageously arbitrary as to constitute a gross abuse

of governmental authority.”).

The measure of conduct that “shocks the conscience” is “no

calibrated yard stick,” but the Due Process guarantee cannot be

interpreted to “impos[e] liability whenever someone cloaked with

state authority causes harm.” County of Sacramento v. Lewis,

523 U.S. 833, 847-48 (1998). Intentionally inflicted injuries

are the “most likely to rise to the conscience-shocking level”

whereas negligently inflicted harm “is categorically beneath the

threshold of constitutional due process.” Lewis, 523 U.S. at

849. Where defendants are subject to “the pull of competing

obligations,” harm that is inflicted recklessly or with

deliberate indifference likely does not shock the conscience.

Matican v. City of New York, 524 F.3d 151, 159 (2d Cir. 2008)

(citing Lombardi v. Whitman, 485 F.3d 73, 83 (2d Cir. 2007)).

Because the Due Process Clause of the Fourteenth Amendment

explicitly limits the states’ power vis-à-vis individuals, the

United States Supreme Court has repeatedly held that the Due

Process Clause cannot be interpreted to create liability in

connection with acts of violence perpetrated by private, non-

state actors. In DeShaney, the United States Supreme Court

explained the limited applicability of the Due Process Clause to

State actors, as follows:

[N]othing in the language of the Due Process

Clause itself requires the State to protect

the life, liberty, and property of its

citizens against invasion by private actors.

The Clause is phrased as a limitation on the

State’s power to act, not as a guarantee of

certain minimal levels of safety and security.

It forbids the State itself to deprive

individuals of life, liberty, or property

without ‘due process of law,’ but its language

cannot fairly be extended to impose an

affirmative obligation on the State to ensure

that those interests do not come to harm

through other means.

489 U.S. at 195.

The United States Supreme Court has affirmed this same

reasoning time and time again. See Lewis, 523 U.S. at 849 (The

Due Process Clause “does not guarantee due care on the part of

state officials”); Davidson v. Cannon, 474 U.S. 344, 348 (1986)

(“The guarantee of due process has never been understood to mean

that the State must guarantee due care on the part of its

officials.”)

The Second Circuit, however, recognizes limited exceptions

to the general rule that State actors may not be held liable

under the Due Process clause for the acts of private citizens.

The first exception involves circumstances where the government

maintains “a special relationship with an individual” such that

the State has “affirmative duties of care and protection.” Ying

Jing Gan v. City of New York, 996 F.2d 522, 533 (2d Cir. 1993).

The second exception arises out of affirmative conduct by a

State actor that “create[s] or increase[s] the danger to the

individual” victim. Id. “[S]pecial relationship liability

arises from the relationship between the state and a particular

victim, whereas state created danger liability arises from the

relationship between the state and the private assailant.” Pena

v. DePrisco, 432 F.3d 98, 109 (2d Cir. 2005).

The first exception requires Plaintiffs to allege a

“special relationship” between the victim and State actor

whereby the State’s “affirmative act of restraining the

individual’s freedom to act on his own behalf” triggers the

protections of the Due Process Clause. Deshaney, 489 U.S. at

200. Typically, the “restraint” that gives rise to a “special

relationship” relates to physical restraints on an individual in

a custodial setting where the State’s “affirmative exercise of

power . . . renders [an individual] unable to care for himself

or herself[.]” Id. But courts have also found special

relationships that have given rise to a governmental duty of

protection against third-person attacks in the context of a

“relationship between a social service agency and foster child.”

Ying Jing Gan, 996 F.2d at 532 (internal citations omitted).

Courts within the Second Circuit “focus[] on involuntary custody

as the linchpin of any special relationship exception.”

Matican, 524 F.3d at 156 (citing Lombardi, 485 F.3d at 79 n.3).

The second exception, which is referred to as the “state

created danger” exception, does not depend on the relationship

between the victim and the State actors. See Pena, 432 F.3d at

113 n.22 (Under the “state created danger” exception, the fact

that the victims were not in state custody at the time of

[alleged incidents] is irrelevant.”)2 Instead, under the “state

created danger” exception, the government is liable for a Due

Process violation where a State actor “affirmatively create[s]

or enhance[s] the danger of private violence.” Okin v. Village

of Cornwall-On-Hudson Police Dept., 577 F.3d 415, 433 (2d Cir.

2009). State created danger cannot be demonstrated by virtue of

an “allegation simply that [] officers [] failed to act upon

reports of past violence.” Id. Rather, the state actors must

have “in some way assisted in creating or increasing the danger

to the victim” in order to implicate the Due Process Clause.

Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993). In

2 Unlike other Circuit courts, the Second Circuit “treats the ‘state created

danger’ exception as distinct from the ‘special relationship’ exception.’”

Pena, 432 F.3d at 113 n.22.

defining affirmative conduct, the Second Circuit has also held

that “repeated, sustained inaction by government officials, in

the face of potential acts of violence, might . . . ris[e] to

the level of an affirmative condoning of private violence, even

if there is no explicit approval.” Pena, 432 F.3d at 111.

II. 42 U.S.C. § 1983

In 42 U.S.C. § 1983, “Congress [] created a federal cause

of action for ‘the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,’” by state

actors. Town of Castle Rock, Colorado v. Gonzales, 545 U.S.

748, 755 (2005) (citing 42 U.S.C. § 1983). In order to state a

claim under 42 U.S.C. § 1983, Plaintiffs must allege that they

were (1) deprived of a constitutional right (2) by a person

acting under the color of state law. See 42 U.S.C. § 1983.

While the factors necessary to establish a § 1983 claim will

vary depending on the constitutional provision at issue,

Plaintiffs “must plead that each Government-official defendant,

through the official's own individual actions, has violated the

Constitution.” Iqbal, 556 U.S. at 676. It is long established

law within the Second Circuit that “personal involvement of

defendants in alleged constitutional deprivations is a

prerequisite to an award of damages under § 1983.” Farid v.

Ellen, 593 F.3d 233, 249 (2d Cir. 2010).

A. Qualified Immunity

State actors are “shielded from liability for civil damages

[where] their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). The threshold inquiry that a Court must determine when

assessing a qualified immunity defense to an alleged violation

of 42 U.S.C. § 1983 “is whether a plaintiff sufficiently alleges

a deprivation of any right secured by the constitution.” Id. If

the Court finds that Plaintiffs have alleged a violation of a

constitutional right, the Court must then “determine if the

right was clearly established at the time of the defendants’

behavior in issue.” Saucier v. Katz, 533 U.S. 194, 201 (2001).

In other words, the Court asks whether it would have been clear

to a reasonable [official] that his [or her] conduct was

unlawful in the situation.” Pena, 432 F.3d at 114. “This

inquiry ‘must be undertaken in light of the specific context of

the case, not as a broad general proposition.’” Id. at 114

(internal citation omitted).

Typically, a qualified immunity defense cannot support

dismissal of a case pursuant to Fed. R. Civ. P. 12(b)(6) unless

“the facts supporting the defense appear on the face of the

complaint.” McKenna v. Wright, 386 F.3d 432, 435-36 (2d Cir.

2004). At the motion to dismiss stage, “a defendant presenting

an immunity defense . . . must accept the more stringent

standard applicable to this procedural route” whereby “the

motion may be granted only where it appears beyond doubt that

the plaintiff can prove no set of facts in support of [the]

claim.” Id. at 436 (internal quotation marks and citation

omitted).

B. Monell Liability

Pursuant to the United States Supreme Court’s decision in

Monell v. Department of Social Services, 436 U.S. 658 (1978), a

municipality is liable for a violation of 42 U.S.C. § 1983 where

an “official municipal policy of some nature cause[s] a

constitutional tort.” Monell, 436 U.S. at 691. However, “a

municipality cannot be held liable under 1983 on a respondeat

superior theory.” Id. at 691. The elements of a Monell claim

for municipal liability are (1) an official policy or custom

that (2) causes the plaintiff to be subjected to (3) the

deprivation of a constitutional right.” Batista v. Rodriguez,

702 F.2d 393, 397 (2d Cir. 1983). An official municipal policy

may be evidenced by “the decision[s] of . . . lawmakers, the

acts of [] policymaking officials, and practices so persistent

and widespread as to practically have the force of law.”

Connick v. Thompson, 563 U.S. 51, 61 (2011).

DISCUSSION

I. Plaintiffs’ Constitutional Claims

As set forth previously, in order to state a substantive

Due Process claim, Plaintiffs must allege (1) a fundamental

right that (2) Defendants infringed by virtue of conduct that

“shocks the [contemporary] conscience” or constitutes “a gross

abuse of governmental authority.” Natale, 170 F.3d at 262-63.

At the outset, Plaintiffs’ Amended Complaint purports to

allege constitutional claims against state actors. Thus, the

Court considers Plaintiffs claims only under the Fourteenth

Amended Due Process Clause, which restricts the actions of state

governments and officials. See Darnell v. Pineiro, 849 F.3d 17,

21 n.3 (2d Cir. 2017) (“[A] case implicates the Due Process

Clause of the Fourteenth Amendment [where] it involves state []

detainees” whereas “claims brought by federal [] detainees [are

brought] pursuant to the Due Process Clause of the Fifth

Amendment.”). In any event, the due process analysis under both

Amendments is the same. See Malinski v. New York, 324 U.S. 401,

415 (1945) (“To suppose that ‘due process of law’ meant one

thing in the Fifth Amendment and another in the Fourteenth is

too frivolous to require elaborate rejection.”)

A. Constitutional Right

Plaintiffs first allege a constitutional right to “familial

relationship and companionship” as between Mr. Eubanks and his

sons, the Decedent and his Minor Son, and between the Decedent

and the Minor Son, who are brothers. (AC ¶¶ 98-108.)

Plaintiffs also allege a “right to life and liberty” (AC ¶¶ 109-

120), which corresponds to the Children’s “right to safety and

security . . . and [their] physical well-being.” (AC ¶ 61.)

Both the right to life, as well as the right to maintain

familial relationships, are recognized as constitutional rights

protected under the Due Process Clause. See Patel v. Searles,

305 F.3d 130, 137 (2d Cir. 2002) (“[C]onstitutional protections

for associational interests are at their apogee when close

family relationships are at issue.”)

Plaintiffs, however, fail to allege that their

constitutional rights were infringed upon by Defendants.

Plaintiffs allege that Defendants deprived them of their

constitutional rights by virtue of Defendants’ failure to

intervene by removing the Children from the custody of their

mother and Mr. Johnson on August 26, 2021 and August 29, 2021,

notwithstanding several indications that the Children were being

abused, including a call from the Mandated Reporter, visible

signs of physical injury, and information regarding Mr.

Johnson’s history of abuse.

As noted previously, however, “[a] State's failure to

protect an individual against private violence generally does

not constitute a violation of the Due Process Clause, because

the Clause imposes no duty on the State to provide members of

the general public with adequate protective services.”

DeShaney, 489 U.S. at 189. Acts of violence perpetrated by a

private actor, such as Mr. Johnson’s infliction of physical

abuse on the Children, can only form the basis of a substantive

Due Process claim where (1) “the state had a special

relationship with the victim” or (2) the state actors “assisted

in creating or increasing the danger to the victim.” Matican,

524 F.3d at 155. Even then, Plaintiffs must allege that

Defendants’ actions, as distinct from Mr. Johnson’s actions,

“shock the contemporary conscience.” Lewis, 5235 U.S. at 847

n.8 (explaining that “in a due process challenge, . . . the

[court must consider] whether the behavior of the governmental

officer is so egregious, so outrageous, that it may fairly be

said to shock the contemporary conscience.”) For the reasons

set forth below, Plaintiffs fail to allege sufficient facts to

state a Due Process claim under either exception.

1. Special Relationship

In the Amended Complaint, Plaintiffs allege that Defendants

“created a special duty to the Children.” (AC ¶¶ 100, 102, 112,

114, 124, 126 152.) Plaintiffs contend that Defendants formed a

special relationship with the Children by virtue of the Roe and

Doe Defendants’ interactions with the Children, Ms. Duvalle, and

Mr. Johnson on August 26, 2021 and August 29, 2021, and

specifically because of Defendants’ promise to safeguard the

Children from harm. See (Ptf. Opp. at 19) (“[T]he Roe and Doe

Defendants made explicit promises that they would protect the

Children”).

The United States Supreme Court has explicitly rejected

this exact argument. See DeShaney, 489 U.S. at 194 (the court

“reject[s] the position . . . that once the State learns that a

particular child is in danger of abuse from third parties and []

undertakes to protect [the child], a ‘special relationship’

arises between it and the child which imposes an affirmative

constitutional duty to provide adequate protection.”) A special

relationship only exists in circumstances of “incarceration,

institutionalization,” or where an individual is subject to

“other similar restraint on [his or her] personal liberty.” Id.

Neither “the State’s knowledge of the [victim’s] predicament or

. . . its expressions of intent to help [the victim]” create a

special relationship. Jones v. Nickens, 961 F. Supp. 2d 475,

487 (E.D.N.Y. 2013) (citing DeShaney 489 U.S. at 199-200)

(Defendants’ “pledge[] to help correct the danger of abuse that

the decedent faced” does not constitute a “special

relationship”). Though the Amended Complaint makes repeated

reference to the creation of “a special duty,” Plaintiffs do not

allege facts that Defendants imposed any restraint on the

Children’s personal liberty or otherwise created a special

relationship. Nor do Plaintiffs allege that the Children were

ever in State custody during any of the instances of abuse. To

the contrary, Plaintiffs allege that the Children were in the

care of Ms. Duvalle and Mr. Johnson at the time that they

sustained grievous bodily injuries. See Nickens, 961 F. Supp.

2d at 487 (“Because the harms the child suffered occurred while

he was in [a private actor’s] custody, rather than in the

custody of the State, there was no such ‘deprivation of liberty’

triggering the protections of the Due Process Clause.”) (citing

DeShaney, 489 U.S. at 201).

Accordingly, Plaintiffs fail to assert sufficient factual

allegations that the Children and Defendants shared in a special

relationship that triggered an affirmative duty to intervene.

2. State-Created Danger

Plaintiffs also allege that Defendants engaged in

affirmative conduct, which “creat[ed] and/or increas[ed] the

danger to the Children.” (AC ¶¶ 60, 78, 99, 110, 111, 122, 123,

141.) In support of this allegation, Plaintiffs point out that

Defendants (1) brought the Children, Ms. Duvalle, and Mr.

Johnson to the ACS office in Brooklyn, New York for interviews;

(2) questioned the Children, Ms. Duvalle, and Mr. Johnson; (3)

observed physical injuries sustained by the Children; (4)

learned and knew of Mr. Johnson’s history of child abuse,

including an outstanding warrant; and (5) made two home visits,

at which Ms. Duvalle, Mr. Johnson, and the Children were

present, and after which they discharged the Children into the

care and supervision of Ms. Duvalle and Mr. Johnson. (AC ¶ 51.)

Plaintiffs do not allege that Defendants had information that

Ms. Duvalle and/or Mr. Johnson caused injuries to the Children.

Plaintiffs contend that by failing to intervene on August 26,

2021 and August 29, 2021, the Doe and Roe Defendants “implicitly

– and/or explicitly – communicated to Mr. Johnson that

Defendants [would] not interfere, arrest, or punish him for his

abuse . . . and/or [that] he [could] continue to attack, injure,

and abuse the Children with impunity.” (AC ¶ 50.)

However, Plaintiffs allegations do not rise to the level of

state created danger alleged in any case where a Due Process

violation was recognized by the Second Circuit under the state

created danger exception. Plaintiffs do not allege that

Defendants ever told Mr. Johnson that he could act with impunity

or assured Mr. Johnson that he would “not be impeded or

arrested.” Dwares, 985 F.2d at 99; see also Snider v. Dylag,

188 F.3d 51, 55 (2d Cir. 1999) (Defendants told the private

actor that it was “open season” on the victim, whereupon the

private actor proceeded to assault the victim). Nor do

Plaintiffs allege that Defendants declined to arrest Mr.

Johnson, nor that Mr. Johnson or Ms. Duvalle explicitly admitted

that Mr. Johnson was abusing the Children, nor that Defendants

“openly expressed camaraderie with [Mr. Johnson] and contempt

for [the Children]” in the face of such an admission. Okin, 577

F.3d at 430 (finding that defendants “actually contributed to

the vulnerability of [the victim]” such that the victim was

“safer before the state action than . . . after it.”) (citing

Koulta v. Merciez, 477 F.3d 442, 446 (6th Cir. 2000)). Neither

do Plaintiffs allege that Defendants provided Mr. Johnson with

the physical means to abuse the Children as in Hemphill v.

Schott, 141 F.3d 412, 419 (2d Cir. 1998) (“Officers conspired .

. . with [the private actor] by giving a 9 mm Glock handgun to

[the private actor] who shot [Plaintiff] several times.”)

Plaintiffs also do not allege that Defendants “participated in

or condoned [Mr. Johnson’s] behavior” by “routinely” engaging in

the abusive conduct alongside Mr. Johnson or by repeatedly

“condoning the misconduct” over the course of several months.

Pena, 432 F.3d at 110-11 (“several of the defendants . . .

[engaged in misconduct] with [the private actor]” on a

“routine[]” basis, and facilitated the misconduct on the day of

the alleged incident, including by “asking [the private actor]

to” engage in knowingly unlawful conduct).

Finally, Plaintiffs allegations are not in any way similar

to the facts alleged in Matican, a case upon which Plaintiffs

rely, wherein the Second Circuit found that the “plaintiff’s

allegation that the officers planned [a] sting in a manner that

would lead [the private actor] to learn about [the plaintiff’s

involvement [was] sufficiently affirmative to qualify as a

state-created danger.” Matican, 524 F.3d at 158.

Instead, Plaintiffs argue that Defendants’ office interview

and two home visits with the Children, their mother, and Mr.

Johnson amounted to “do[ing] nothing” to intervene on August 26,

2021 and August 29, 2021 and that by allowing the Children to

continue living with their mother and Mr. Johnson, Defendants

communicated to Mr. Johnson that his conduct was permissible.

“There is no plausible allegation that Defendants somehow

conveyed [] implicit encouragement of child abuse” under these

circumstances. Hendricks v. City of New York, No. 13-cv-2787,

2014 WL 3819296, at *4 (S.D.N.Y. Aug. 4, 3014). Though

Defendants had knowledge that Mr. Johnson had a prior record of

child abuse, Plaintiffs do not allege that Defendants had gained

knowledge that Mr. Johnson had physically harmed the Children.

Instead, Plaintiffs argue that “a failure to interfere when

[evidence of past] misconduct” is apparent is itself an implicit

encouragement of that misconduct. This argument collapses the

distinction between a state-created danger, which may constitute

a basis for a Due Process claim, and a failure to intervene,

which does not. Matican, 524 F.3d at 157 (the Second Circuit

has “sought to tread a fine line between conduct that is passive

(and therefore outside the exception) and that which is

affirmative (and therefore covered by the exception).”)

(internal quotation marks and citation omitted). Moreover,

Plaintiffs’ position has been explicitly rejected by the United

States Supreme Court and the Second Circuit. Id. at 157 (“while

the State may have been aware of the dangers that [plaintiff]

faced in the free world, it played no part in their creation,

nor did it do anything to render him any more vulnerable to

them.”) (citing DeShaney, 489 U.S. at 201). The factual

allegations in the Amended Complaint, construed “as favorably as

possible for Plaintiff[s],” are insufficient to establish the

state created danger exception and amount to no more than an

assertion that “[Defendants] stood by and did nothing despite

assuring [the Children] that they would protect [them] from a

known danger.” Tufaro v. City of New York, No. 12-cv-7505

(AJN), 2014 WL 4290631, at *4 (S.D.N.Y. Aug. 28, 2014) (finding

such conduct “passive” and “insufficient to state a claim under

Section 1983.”) (citing Matican, 524 F.3d at 157-58).

Accordingly, Plaintiffs fail to assert sufficient factual

allegations that Defendants’ conduct posed a state-created

danger to the Children, such that Defendants had an affirmative

duty to intervene.

Plaintiffs did not have an affirmative right to government

protection under the Due Process Clause because Plaintiffs

failed to adequately allege either that the Children had a

special relationship with Defendants or that the Children faced

a state-created danger. In this circumstance, Defendants’

failure to remove the Children from the custody of their mother

and Mr. Johnson resulted in tragic circumstances, but did not

violate the Due Process Clause. See DeShaney, 489 U.S. at 196

(“[T]he Due Process Clauses generally confer no affirmative

right to government aid, even where such aid may be necessary to

secure life, liberty or property.”)

B. Shocks the Conscience

Having determined that Plaintiffs failed to adequately

allege that Defendants violated Plaintiffs’ constitutional

rights, the Court need not examine whether Defendants’ conduct

was “so egregious [and] so outrageous, that it may fairly be

said to shock the contemporary conscience.” Okin, 577 F.3d at

431 (citing Lewis, 523 U.S. at 847 n.8.) In any event,

Plaintiff fails to allege conduct by Defendants, as opposed to

Mr. Johnson, that rises “to the conscience-shocking level.”

Matican, 524 U.S. at 159.

Plaintiff alleges that Defendants engaged in “gross

negligence, reckless conduct, and deliberate indifference.” (AC

¶ 64.) Plaintiffs, however, do not identify or explain what

conduct is allegedly shocking to the conscience. Plaintiffs

only state that “the Court . . . must find that a reasonable,

contemporary factfinder would conclude that Defendants’ conduct

offends ‘decencies of civilized conduct.’” (Ptf. Opp. at 14)

(citing Rochin v. California, 342 U.S. 165, 1173 (1952)).

Putting aside Plaintiffs’ misstatement of the applicable

standard of review, the Amended Complaint does not allege facts

from which the Court can infer that Defendants engaged in

conduct which shocks the contemporary conscience.3 This

requirement that an alleged violation of a plaintiff’s Due

Process rights must shock the conscience “preserve[s] the

constitutional proportions of constitutional claims, lest the

Constitution be demoted to . . . a font of tort law.” Lewis,

523 U.S. at 847 n.8. Plaintiffs do not contend that Defendants’

conduct “was arbitrary or irrational or motivated by bad faith.”

Rosa v. Connelly, 889 F.2d 435, 439 (2d Cir. 1989). Indeed,

Plaintiffs repeatedly allege that Defendants “negligently failed

to provide for the safety, security and protection of the

Children.” See (AC ¶¶ 6, 43, 45, 72 103, 104, 106, 115, 116,

118, 127, 128, 130, 153-156.) Plaintiffs also assert a tort law

claim sounding in negligence under New York state law. (AC ¶¶

151-61.) However, “negligently inflicted harm is categorically

beneath the threshold of constitutional due process.” Lewis,

523 U.S. at 849.

Plaintiffs’ allegations of deliberate indifference also

cannot fairly be said to shock the contemporary conscience.” It

3 As set forth previously, in considering a motion to dismiss under Fed. R.

Civ. P. 12(b)(6), the Court “accepts all factual allegations as true,” and

“draws all reasonable inferences in” Plaintiffs’ favor. Melendez, 16 F.4th

at 1010. Plaintiffs’ statement regarding what “a reasonable, contemporary

factfinder would conclude” relates to the standard of review for a summary

judgment motion under Fed. R. Civ. P. 56.

is “[Defendants’] actions themselves [that] must ‘shock the

contemporary conscience’; it is not enough that [Mr. Johnson’s]

actions would meet that standard.” Zubko-Valva v. County of

Suffolk, 607 F. Supp. 3d 301, 310 (E.D.N.Y. 2022) (reiterating

that “a State's failure to protect an individual against private

violence simply does not constitute a violation of the Due

Process Clause even if state actors may have been aware of the

dangers that the individual faced from specific private

actors.”) (citing DeShaney, 489 U.S. at 197). Defendants’

failure to intervene in the course of interviewing and

questioning the Children, Ms. Duvalle, and Mr. Johnson,

Defendants’ promises to protect the Children, Defendants’

failure to act on evidence of Mr. Johnson’s past criminal

history, including his outstanding warrant, and Defendants’

failure to respond to visible signs of abuse resulted in tragic

consequences for the Children. The Decedent’s death and the

abuse sustained by the Children is heartbreaking. Nevertheless,

“the Fourteenth Amendment is not a font of tort law to be

superimposed upon whatever systems may already be administered

by the States,” and Plaintiffs do not state plausible facts that

Defendants’ conduct rises to the level of “constitutional

proportions.” Lewis, 523 U.S. at 848 (citing Paul v. Davis, 424

U.S. 693, 701 (1976)). Moreover, as in Matican, this Court is

“loathe to dictate to the police [or to ACS] how best to protect

. . . the public.” Matican, 524 U.S. at 159. Accordingly,

Plaintiffs fail to allege conduct that shocks the contemporary

conscience.

II. 42 U.S.C. § 1983 Liability

If a court concludes, as this Court does here, that

Plaintiffs have failed to state a claim that they were deprived

of a constitutional right by Defendants, “the Court [has] no

occasion to consider whether the individual [Defendants] might

be entitled to a qualified immunity defense, or whether the

allegations in the complaint are sufficient to support a § 1983

claim against the [municipality] under Monell . . . and its

progeny.” DeShaney, 489 U.S. at 202 n.10 (internal citations

omitted). Indeed, under the qualified immunity test, if

Plaintiffs fail to allege facts demonstrating a constitutional

violation under the first prong, the Court certainly cannot find

that the alleged “right was clearly established at the time of

the alleged conduct” under the second prong. Harlow v.

Fitzgerald, 457 U.S. 800, 817 (1982) (“[G]overnment officials

performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known.”).

In any event, “[i]t is well settled that child protective

services workers are entitled to qualified immunity for their

conduct during the course of abuse investigations.” Wilkinson

v. Russell, 182 F.3d 89, 99 (2d Cir. 1999) (internal citations

omitted). This is because the “decision to remove a child from

parental custody . . . obliges protective services caseworks to

choose between difficult alternatives in the context of

suspected child abuse.” Van Emrik v. Chemung County Department

of Social Services, 911 F.2d 863, 866 (2d Cir. 1990). In one

scenario, state actors “may be accused of infringing the

parents’ constitutional rights” and in the other scenario, state

actors may be accused of “infringing the child’s rights. . . .

It is precisely the function of qualified immunity to protect

state officials in choosing between such alternatives[.]” Id.

at 866 (finding that defendants’ conduct was not “objectively

[un]reasonable” even in the face of visible injury and an

“attending physician’s . . . suspicion[n] of child abuse.”)

Accordingly, Plaintiffs fail to allege a violation of a

constitutional right and, by extension, that any alleged right

was clearly established at the time of Defendants’ alleged

inaction or affirmative conduct.

Similarly, where a plaintiff’s “due process claims fails,”

the Court need not “reach [the plaintiff’s] Monell” claim.

Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (If

“the district court properly [finds] no underlying

constitutional violation, its decision not to address the

municipal defendants’ liability under Monell [is] entirely

correct.”) This is because “a Monell claim cannot succeed

without an independent constitutional violation.” Anilao v.

Spota, 27 F.4th 855, 874 (2d Cir. 2022) (Monell does not provide

a separate cause of action for the failure by the government to

train its employees; it extends liability . . . where that

organizations’ failure to train, or the policies or customs that

it has sanctioned, led to an independent constitutional

violation.”) (emphasis in original) (internal citation omitted).

As discussed, the Amended Complaint fails to allege a

constitutional violation.

Moreover, Plaintiffs’ allegation that the City maintains a

policy, practice, and custom of endangering vulnerable children

by ignoring complaints of child abuse as a result of inadequate

training is insufficient to state a claim for Monell liability.

The United States Supreme Court has recognized limited

circumstances where a municipality’s “policy of inaction in

light of notice that its program will cause constitutional

violations is the functional equivalent of a decision by itself

to violate the Constitution.” Connick, 563 U.S. at 61.

However, Plaintiffs do not allege such notice. See id. at 61.

(“Without notice” that a municipality is engaged in a pattern or

practice of violating individuals’ constitutional rights,

“decisionmakers can hardly be said to have deliberately chosen .

. . [to] violat[e] [individuals’] constitutional rights.”)

Neither have Plaintiffs alleged that the City’s inadequate

structure, including personnel, rises to the level of a

“practice[] so persistent and widespread as to practically have

the force of law.” Id. “[T]he Due Process Clause . . . is not

a guarantee against incorrect or ill-advised personnel

decisions” and this Court “is not the appropriate forum in which

to review the multitude of personnel decisions that are made

daily by public agencies.” Bishop v. Wood, 426 U.S. 341, 350

(1976).

Accordingly, Plaintiffs’ failure to allege an underlying

individual constitutional violation or to allege a practice of

constitutional violations is fatal to Plaintiffs’ Monell claim.

III. Plaintiffs’ Remaining State Law Claims

“If [Plaintiffs] ha[ve] no valid claim under [42 U.S.C. §]

1983 against any defendant, it is within the district court’s

discretion to decline to exercise supplemental jurisdiction over

the pendent state-law claims.” Matican, 524 F.3d at 155.

Indeed, because Plaintiffs have failed to allege a viable

federal claim, it would “exceed [the] allowable discretion” of

the Court to assert supplemental jurisdiction. Id. at 159.

Here, Plaintiffs’ federal claims will have been dismissed

well in advance of any trial, discovery has not proceeded, and

the parties have not articulated any federal interest in

resolving Plaintiffs’ state law claims. Accordingly, the Court

finds that this is “the usual case” where the balance of

factors, including “judicial economy, convenience, fairness, and

comity . . . point toward declining to exercise jurisdiction

over the remaining state law claims.” Carnegie-Mellon

University v. Cohill, 484 U.S. 343, 350 n.7 (1988); see also

United Mine Workers of America v. Gibbs, 383 U.S. 715, 726

(1966) (“[n]eedless decisions of state law should be avoided

both as a matter of comity and to promote justice between the

parties, by procuring for them a surer-footed reading of

applicable law.”)

The Court declines to exercise supplemental jurisdiction in

light of its decision to dismiss Plaintiffs’ federal claims.

Plaintiffs’ state law claims are hereby dismissed without

prejudice and with leave to refile in New York state court.

CONCLUSION

For the reasons set forth in this Memorandum and Order,

Defendants’ motion to dismiss Plaintiffs’ Amended Complaint is

hereby GRANTED. The Amended Complaint is DISMISSED without

prejudice and with leave to refile Plaintiffs’ state law claims

in New York state court.

Federal Rule of Civil Procedure 15(a) dictates that leave

to amend a complaint shall be freely given “when justice so

requires.” Although the Second Circuit has advised that “the

usual practice upon granting a motion to dismiss [is] to allow

leave to replead,” Cortec Indus., Inc. v. Sum Holding L.P., 949

F.2d 42, 48 (2d Cir. 1991), Plaintiffs have already been granted

leave to amend the Complaint. See Ruotolo v. City of New York,

514 F.3d 184, 191 (2d Cir. 2008) (“leave to amend, though

liberally granted, may properly be denied for .. . failure to

cure deficiencies by amendments previously allowed”) (internal

citations omitted). Moreover, Plaintiffs “can plead no facts

that would overcome the legal [and factual] deficiencies

discussed above,” as it relates to Plaintiffs’ Due Process

claim. Johnson v. Maximus Services LLC, No. 22-cv-2935 (AMD),

2023 WL 5612826, at *6 (E.D.N.Y. Aug. 30, 2023). As such, the

Court will not grant further leave to amend Plaintiffs’ federal

claims.

The Clerk of Court is respectfully requested to enter

judgement and close this case.

SO ORDERED.

Dated: March 26, 2024

Brooklyn, New York we

et ter

red A. MATSUMOTO

United States District Judge

Eastern District of New York

36