Mulqueen v. Herkimer County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

______________________________________________________________________

WENDY S. MULQUEEN and

BRIAN G. MULQUEEN,

Plaintiffs,

v. 6:22-CV-1301

(TJM/ATB)

HERKIMER COUNTY CHILD PROTECTIVE

SERVICES, et al.,

Defendants.

_____________________________________________________________________

WENDY S. MULQUEEN, Plaintiff, pro se

BRIAN G. MULQUEEN, Plaintiff, pro se

ANDREW T. BAXTER, U.S. Magistrate Judge

ORDER and REPORT-RECOMMENDATION

On December 5, 2022, the plaintiffs filed a complaint pursuant to 42 U.S.C. §

1983. (Dkt. No. 1) (“Compl.”). Plaintiffs also moved to proceed in forma pauperis

(“IFP”) (Dkt. Nos. 2, 3), and for appointment of counsel (Dkt. Nos. 4, 5). On January

13, 2023, I recommended that plaintiffs’ motions to proceed IFP be denied, and the

complaint be dismissed without prejudice to plaintiffs submitting the filing fee, based

on the representations made in plaintiffs’ IFP applications.1 (Dkt. No. 9). In particular,

this court relied on the plaintiffs’ reported income in denying them IFP status, as it

appeared to exceed the federal poverty guidelines and did not suggest that payment of

the filing fee in this matter would impose a “serious hardship” on them. (Id.). Plaintiffs

1 I also ordered that plaintiffs’ motions for appointment of counsel be denied without prejudice. (Dkt.

No. 9).

subsequently filed objections to my recommendation with the district court, and

submitted additional information concerning their financial status. (Dkt. Nos. 10, 11,

12, 13). On June 13, 2023, upon review of my recommendation and in consideration of

the plaintiffs’ objections, U.S. Senior District Court Judge Thomas J. McAvoy

recommitted this matter back to me with instructions to allow plaintiffs to submit

updated, accurate, and complete IFP applications. (Dkt. No. 15). Plaintiffs submitted

their updated IFP applications on June 27, 2023, which are now before me pending

review. (Dkt. Nos. 16, 17).

I. IFP Applications

In order to proceed IFP in federal court, the court must be satisfied by plaintiffs’

affidavits that they are unable to pay the “cost of these proceedings.” (Dkt. Nos. 16 at 1;

17 at 1); 28 U.S.C. § 1915. After reviewing plaintiffs’ updated applications and

supporting documents, this court finds that plaintiffs are financially eligible for IFP

status.

However, in addition to determining whether plaintiffs meet the financial criteria

to proceed IFP, the court must also consider the sufficiency of the allegations set forth

in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall

dismiss the case at any time if the court determines that the action is (i) 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. 28 U.S.C. § 1915

(e)(2)(B)(i)-(iii).

In determining whether an action is frivolous, the court must consider whether

the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S.

319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S.

544 (2007) and 28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to

prevent abuses of court process as well as to discourage the waste of judicial resources.

Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974).

Although the court has a duty to show liberality toward pro se litigants and must use

extreme caution in ordering sua sponte dismissal of a pro se complaint before the

adverse party has been served and has had an opportunity to respond, the court still has

a responsibility to determine that a claim is not frivolous before permitting a plaintiff to

proceed. Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir.

2000) (finding that a district court may dismiss a frivolous complaint sua sponte even

when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain

sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp.,

550 U.S. at 555).

In addition, Fed. R. Civ. P. 8(a)(2) requires that a pleading contain a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Although

Rule 8 does not require detailed factual allegations, it does “demand[] more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Houston v. Collerman,

No. 9:16-CV-1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016)

(quoting Ashcroft, 556 U.S. at 678). A pleading that contains allegations that “‘are so

vague as to fail to give the defendants adequate notice of the claims against them’ is

subject to dismissal.” Id. (citing Sheehy v. Brown, 335 F. App’x 102, 104 (2d Cir.

2009)). The court will now turn to a consideration of the plaintiffs’ complaint under the

above standards.

II. Complaint

Plaintiffs’ allegations stem from the investigation of child abuse claims against

them by defendant Herkimer County Child Protective Services (“CPS”) and its

employees. According to the complaint, on June 16, 2022, defendant Michelle

Coddington, a senior case worker with CPS, came to the plaintiffs’ home to investigate

a “false” claim of abuse made by the plaintiffs’ 16-year-old daughter, I.M. (Compl. at

1). Plaintiffs allege that I.M. had actually started a physical altercation with her mother,

plaintiff Wendy Mulqueen. (Id.). The complaint states that the defendants “searched

plaintiff[s’] home on all levels . . . then questioned . . . I.M. as well as plaintiffs[’] five

other children.” (Id.).

On June 18, 2022, defendant Ashley DiFlillippo, a CPS case worker, placed I.M.

and her son, G.J., plaintiffs’ grandson, out of the home with a friend of I.M.’s “against

plaintiff[s’] consent under false claims of a verbal altercation.” (Id.). Ms. DiFlillippo

informed plaintiffs that I.M. and G.J. would be returning home two days later, on June

20th. (Id.). However, neither I.M. nor G.J. returned home on that date. Instead,

plaintiffs state that the defendants “authorized I.M. and G.J. to leave the county without

plaintiffs’ consent and placed them “in an inappropriate home that contained an

individual who exhibits sexually explicit behavior.” (Id.). Plaintiffs allege that there

was no “emergency hearing, no warrant, no court order without due process,” and that

the defendants “seized without . . . compelling circumstances.” (Id.).

Plaintiffs allege that defendants failed their duty to provide services or offer

service to assist with I.M.’s behavior. (Compl. at 2). In addition, plaintiffs allege the

following “failures” on the part of defendants: failure to inform plaintiffs of I.M. and

G.J.’s whereabouts for an extended period; failure to provide medical information “with

I.M. being pregnant at the time[;]” failure to return or answer numerous phone calls;

interference with plaintiffs’ ability to file police reports concerning I.M.’s status; and

preventing plaintiffs from filing a statutory rape charge against I.M.’s adult boyfriend.

(Id.). Plaintiffs allege that the defendants “falsified documentation and information to

the court . . . . [and] exaggerated falsified information.” (Id.). They claim that they did

not see I.M. or G.J. from June 18, 2022, up until, at least, the time they filed their

complaint on December 5, 2022. (Id.).

Plaintiffs allege violations of their First, Fourth, and Fourteenth Amendment

rights by the defendants. (Compl. at 4-6). In their prayer for relief, plaintiffs request an

“investigation into the defendants . . . for violating the civil rights of parents in

Herkimer County to prevent this from happening to other families.” (Compl. at 6).

Plaintiffs ask the court to “hold the defendants . . . accountable for their actions[,]” and

“prevent defendants . . . from falsifying information/documentation and illegally

detaining or taking children from their families.” (Id.). Plaintiffs additionally seek

$500,000.00 in damages. (Id.).

DISCUSSION

III. Subject Matter Jurisdiction

A. Legal Standards

1. Younger Abstention

Under the Younger abstention doctrine, initially articulated in Younger v. Harris,

401 U.S. 37 (1971), federal courts are forbidden from enjoining ongoing state

proceedings. Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 100 (2d Cir. 2004);

Spargo v. N.Y. State Comm’n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003). The

Supreme Court has clarified the three circumstances in which courts should abstain

under Younger: (1) state criminal prosecutions; (2) civil enforcement proceedings; and

(3) civil proceedings that implicate a state’s interest in enforcing the orders and

judgments of its courts. Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72-7 (2013);

Schorr v. DoPico, 686 F. App’x 34, 36 (2d Cir. 2017) (summary order). A “state-

initiated proceeding to gain custody of children allegedly abused by their parents” falls

within the second category. Sprint, 571 U.S. at 79 (citing Moore v. Sims, 442 U.S. 415,

419-420 (1979)).

The Court considers three additional factors before applying Younger abstention:

whether, “(1) there is a pending state proceeding, (2) that implicates an important state

interest, and (3) the state proceeding affords the federal plaintiff an adequate

opportunity for judicial review of his or her federal constitutional claims.” Spargo, 351

F.3d at 75; Falco v. Justices of Matrimonial Parts of Supreme Ct. of Suffolk Cnty., 805

F. 3d 425, 427 (2d Cir. 2015); see Lowell v. Vermont Dep’t of Child. & Fams., 835 F.

App’x 637, 639 (2d Cir. 2020), as amended (Dec. 15, 2020) (summary order) (“after

applying the categorical Sprint approach, this court will consider three additional, non-

dispositive factors to determine whether abstention is appropriate”).

2. Rooker-Feldman Doctrine

“The Rooker-Feldman doctrine bars ‘federal courts from exercising jurisdiction

over claims brought by state-court losers complaining of injuries caused by state-court

judgments rendered before the district court proceedings commenced and inviting

district court review and rejection of those judgments.’ ” Walker v. Fam. Ct. Judge

Catherine Cholakis, No. 1:19-CV-1288(LEK/CFH), 2020 WL 3503158, at *3

(N.D.N.Y. June 29, 2020) (quoting Sykes v. Mel S. Harris and Assoc. LLC, 780 F.3d 70,

94 (2d Cir. 2015)). “[T]he Rooker-Feldman doctrine has four requirements: (1) the

plaintiff must have lost in state court; (2) the loss must have occurred before the district

court proceedings commenced; (3) the plaintiff must complain of injuries caused by a

state court judgment; and (4) the plaintiff must invite district court review and rejection

of that judgment.” Id. (citing Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 84

(2d Cir. 2005)).

The Second Circuit recently addressed the “‘narrow ground occupied by Rooker-

Feldman,’” and emphasized the doctrine’s application to “‘limited circumstances.’”

Hunter v. McMahon, __ F. 4th __, No. 21-1473, 2023 WL 4671281, at *3 (2d Cir. July

21, 2023) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284

(2005)). Specifically, the Court reiterated that Rooker-Feldman applies “only after

state-court proceedings have ‘ended[,]’” and that the doctrine “ ‘does not otherwise

override or supplant preclusion doctrine or augment the circumscribed doctrines that

allow federal courts to stay or dismiss proceedings in deference to state-court actions.’ ”

Id. (quoting Exxon Mobil, 544 U.S. at 284 & 291); see also Lance v. Dennis, 546 U.S.

459, 466, (2006) (“Rooker-Feldman is not simply preclusion by another name” but

“applies only in limited circumstances where a party in effect seeks to take an appeal of

an unfavorable state-court decision to a lower federal court.”) (internal quotation marks

and citation omitted). Despite the Supreme Court’s “efforts to return Rooker-Feldman

to its modest roots,” “ ‘lawyers continue to invoke the rule and judges continue to

dismiss federal actions under it’ beyond the modest circumstances in which it applies.”

Id. (quoting Vanderkodde v. Mary Jane M. Elliott, P.C., 951 F.3d 397, 405 (6th Cir.

2020)).

3. Domestic Relations Abstention

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); see Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004)

(while rare instances arise in which it is necessary to answer a substantial federal

question that transcends or exists apart from the family law issue, “in general it is

appropriate for the federal courts to leave delicate issues of domestic relations to the

state courts” (internal citation omitted)); see also Am. Airlines, Inc. v. Block, 905 F.2d

12, 14 (2d Cir. 1990) (“federal courts may properly abstain from adjudicating such

actions in view of the greater interest and expertise of state courts in this field”). Federal

district courts’ consistent refusal to intervene in child custody cases “is supported by the

Supreme Court’s longstanding recognition — in a non-diversity case involving a child

custody dispute — that ‘[t]he whole subject of the domestic relations of husband and

wife, parent and child, belongs to the laws of the states, and not to the laws of the

United States.’ ” Deem v. DiMella-Deem, 941 F.3d 618, 624 (2d Cir. 2019) (quoting In

re Burrus, 136 U.S. 586, 593-94 (1890)). “Accordingly, to the extent that [a] Plaintiff

challenges the child custody results of the Family Court proceedings, this Court is

without jurisdiction to review such matters.” 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).

B. Analysis

It is unclear from the complaint to what extent the issue of plaintiffs’ custody

over I.M. (and, perhaps, G.J.) was eventually brought and adjudicated before family

court or any other relevant state tribunal. The crux of plaintiffs’ complaint appears to

be that their child and grandchild were removed from their custody “without . . . an

emergency hearing or court order,” and that the defendants prevented plaintiffs from

filing police reports pertaining to their daughter. (Compl. at 5-6). However, plaintiffs

also generally allege that the defendants have “falsified documentation and information

to the court.” (Compl. at 6). To the extent that the plaintiffs’ complaint contains

allegations that are aimed at changing or challenging the results of an ongoing domestic

proceeding or final custody decree, these claims are subject to dismissal for lack of

subject matter jurisdiction based on the aforementioned doctrines. Federal courts must

“abstain from taking jurisdiction over federal constitutional claims that involve or call

into question ongoing state proceedings,” Diamond “D” Const. Corp. v. McGowan,

282 F.3d 191, 198 (2d Cir. 2002), and “only the U.S. Supreme Court—and not lower

federal courts—may review and reject state-court decisions under 28 U.S.C. § 1257.”

Green v. Mattingly, 585 F.3d 97, 102-03 (2d Cir. 2009) (internal quotations omitted). In

challenging the results of any custody proceedings concerning I.M. and/or G.J.,

plaintiffs are asking this court to intercede in “a matter rightfully reserved for state

courts,” McKnight v. Middleton, 699 F. Supp. 2d 507, 520 (E.D.N.Y. Mar. 29, 2010),

when there is nothing apparent which would preclude plaintiffs from appealing the

decisions they challenge in state court. Accordingly, plaintiffs’ claims seeking

injunctive and/or declaratory relief should be dismissed without prejudice, but without

leave to amend in this court.

Plaintiffs’ complaint also contains allegations seeking compensation for injuries

plaintiffs allege they sustained due to unconstitutional actions taken by defendants

during the removal of their child and grandchild. Because “[f]ederal courts do have

jurisdiction to decide tort, contract or civil rights questions in cases arising out of a

domestic relations context when the underlying domestic relations issues are not in

dispute[,]” plaintiffs’ claims for damages are not barred for lack of subject matter

jurisdiction under Younger or Rooker-Feldman. McArthur v. Bell, 788 F. Supp. 706,

708 (E.D.N.Y. Apr. 6, 1992); see also McNeil v. HCDSS, No. 6:18-CV-631

(MAD/TWD), 2018 WL 6173983, at *4 (N.D.N.Y. Aug. 17, 2018) (“[B]ecause the

Younger abstention does not apply to claims for monetary damages . . . the Court will

proceed to consider Plaintiffs’ claims for damages under § 1983.”); Hunter v.

McMahon, 2023 WL 4671281 at *6 (emphasizing the “causal-relationship” requirement

necessary to invoke the Rooker-Feldman doctrine, and explaining that it “does not bar

claims based on an opponent’s misconduct that precedes a state court proceeding, if the

plaintiffs’ alleged injuries were merely ratified by the state-court judgments rather than

caused by them.”) (quoting Dorce v. City of New York, 2 F.4th 82, 104 (2d Cir. 2021)

(emphasis in original). However, the domestic relations abstention doctrine may bar

plaintiff’s claims for damages, to the extent those claims challenge the results of

custody proceedings in family court, so long as there was no obstacle to the full and fair

determination of the custody issue in the state court. See Santos v. Syracuse Police

Dep’t, No. 5:22-CV-1102 (MAD/ATB), 2022 WL 16949542, at *7, 9 (N.D.N.Y. Nov.

15, 2022) (“any claim of plaintiff predicated on the Family Court proceedings relating

to the order of protection against him and the custody of his daughter would be subject

to dismissal under the domestic relations abstention doctrine, as articulated in the

Second Circuit’s Deem cases.”),2 report and recommendation adopted, 2023 WL

3612842 (N.D.N.Y. May 24, 2023); cf. Cegalis v. Trauma Institute, No. 2:19-CV-153,

2021 WL 825405, at *4 (D. Vt. Mar. 4, 2021) (“Plaintiff’s abuse of process claim does

not fall under the narrow domestic relations exception where plaintiff has not asked to

change the results of the child custody proceedings.”)

2 Error! Main Document Only.Deem v. DiMella-Deem, 941 F.3d at 623-25 (“Deem I”) re-affirmed

the vitality of domestic relations abstention doctrine articulated in American Airlines. In Deem I the

plaintiff sued his estranged wife and others under Section 1983, for damages and injunctive relief,

alleging that they conspired to maliciously prosecute him and violate his right to intimate association

with his children by seeking and obtaining a temporary order of protection prohibiting him from

contacting his children. Deem I, 941 F.3d at 620. The Second Circuit concluded that the district court

properly abstained under American Airlines because Deem’s claims were, “at a minimum, on the

verge of being matrimonial in nature” and that there was “no obstacle to their full and fair

determination in state courts.” Id. at 623. In a second lawsuit, the same plaintiff again sued his

estranged wife and others, for damages and injunctive relief, for obtaining an extension of the

temporary order of protection from the family court, which allegedly deprived plaintiff of his due

process rights by preventing him from seeing his children and gaining access to his guns. Deem v.

DiMella-Deem, 800 F. App’x 62, 62-63 (2d Cir.), cert. denied, U.S. , 141 S. Ct. 244 (2020)

(“Deem II”). The Second Circuit in Deem II affirmed the dismissal of this action, again applying the

domestic relations abstention doctrine. Id. See also See Cleary v. Macvicar, 813 F. App’x 12, 14 (2d

Cir. 2020) (dismissal was appropriate on the basis of the domestic relations abstention because

plaintiff's claims, which were rooted in his disagreement with the Connecticut Superior Court's order

regarding child custody and visitation, were, at a minimum, ‘on the verge of being matrimonial in

nature’); Thomas v. Martin-Gibbons, 857 F. App’x 36, 39 (2d Cir. 2021) (affirming district court’s

abstention from exercising jurisdiction over complaint alleging that judge improperly awarded custody

to child’s father).

IV. Personal Involvement

A. Legal Standards

It has long been established that “personal involvement of defendants in alleged

constitutional deprivations is a prerequisite to an award of damages under § 1983[,]”

and supervisory officials may not be held liable merely because they held a position of

authority. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citations omitted);

Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). In Colon v. Coughlin, 58 F.3d 865

(2d Cir. 1995), the Second Circuit articulated standards for courts to use when

determining personal involvement or supervisory liability.3

However, after the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662

(2009), the factors articulated in Colon were called into question. Recently, pursuant to

Iqbal, and in the context of the appeal of a qualified immunity issue, the Second Circuit

3 These factors were:

(1) the defendant participated directly in the alleged constitutional

violation;

(2) the defendant, after being informed of the violation through a report

or appeal, failed to remedy the wrong;

(3) the defendant created a policy or custom under which

unconstitutional practices occurred, or allowed the continuance of such a

policy or custom;

(4) the defendant was grossly negligent in supervising subordinates who

committed the wrongful acts; or

(5) the defendant exhibited deliberate indifference to the rights of

inmates by failing to act on information indicating that unconstitutional

acts were occurring.

Colon, 58 F.3d at 873.

has specifically revised its standard for determining personal involvement or

supervisory liability, finding that the Colon factors are no longer controlling and

articulating the proper standard for the courts in this circuit to utilize. Tangreti v.

Bachmann, 983 F.3d 609, 614-19 (2d Cir. 2020).

Joining other circuits, the Second Circuit held that, after Iqbal, there is no

“special” rule for supervisory liability. Id. at 618.

Instead, a plaintiff must plead and prove “that each Government-

official defendant, through the official’s own individual actions, has

violated the Constitution.” Iqbal, 556 U.S. at 676 . . . . “The factors

necessary to establish a [§ 1983] violation will vary with the

constitutional provision at issue” because the elements of different

constitutional violations vary. Id. The violation must be established

against the supervisory official directly.

Id. (quoting Iqbal, 556 U.S. at 676). The supervisor must have committed the violation

him or herself, not by the supervision of others who committed the violation. Id.

Likewise, the supervisor must personally display the requisite state of mind, depending

on the violation at issue. Id.

B. Analysis

Plaintiffs have identified Lisa Burdock as a defendant in the instant action, who

they describe to be a “Supervisor” with Herkimer County Child Protective Services.

(Compl. at 1, 3). There are, however, no allegations describing conduct by Ms.

Burdock giving rise to plaintiffs’ alleged constitutional injuries. In fact, Ms. Burdock is

not referenced anywhere throughout the plaintiff’s factual assertions. (Id. at 1-2). As

Tangreti and Iqbal made clear, a supervisor cannot be found liable alone by reason of

her supervision of others who committed a violation. Accordingly, plaintiffs have

failed to allege this defendant’s personal involvement for purposes of § 1983, and the

complaint should be dismissed as against her.

V. Municipal Liability

A. Legal Standards

A municipality may only be named as a defendant in certain circumstances. In

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), the Supreme Court outlined the

limited circumstances under which a municipality may be liable under Section 1983. A

municipality may not be held liable solely because it employs a tortfeasor. LaVertu v.

Town of Huntington, No. 13-CV-4378, 2014 WL 2475566, at *3 (E.D.N.Y. Apr. 4,

2014) (citing inter alia Los Angeles County, Cal. v. Humphries, 562 U.S. 29, (2010)),

report recommendation adopted in relevant part, 2014 WL 2506217 (E.D.N.Y. June 2,

2014). Only when the municipality, through the execution of its policies, actually

deprives an individual of his constitutional rights, is it liable for the injury. Monell, 436

U.S. at 694.

“The existence of a municipal policy that gives rise to Monell liability can be

established in four ways: (1) a formal policy endorsed by the municipality; (2) actions

directed by the government’s ‘authorized decisionmakers’ or ‘those who establish

governmental policy;’ (3) a persistent and widespread practice that amounts to a custom

of which policymakers must have been aware; or (4) a constitutional violation resulting

from policymakers’ failure to train municipal employees[.]” Deferio v. City of

Syracuse, 770 F. App’x 587, 590 (2d Cir. 2019)(cleaned up). “Once a plaintiff has

demonstrated the existence of a municipal policy, a plaintiff must then establish a

causal connection, or an ‘affirmative link,’ between the policy and the deprivation of his

constitutional rights. Id. (citing Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir.

1985)); see also Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997) (holding

that plaintiff must “demonstrate that, through its deliberate conduct, the municipality

was the ‘moving force’ behind the injury alleged”).

A municipality’s culpability for a deprivation of rights is at its most tenuous

where a claim turns on a failure to train. Connick v. Thompson, 563 U.S. 51, 61 (2011)

(citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-823 (1985)) (“[A] ‘policy’ of

‘inadequate training’ ” is “far more nebulous, and a good deal further removed from the

constitutional violation, than was the policy in Monell ”). To satisfy the statute, the

municipality’s “failure to train its employees in a relevant respect must amount to

“‘deliberate indifference to the rights of persons with whom the [untrained employees]

come into contact.’” Id. (quoting Canton v. Harris, 489 U.S. 378, 388 (1989)). “Only

then ‘can such a shortcoming be properly thought of as a city ‘policy or custom’ that is

actionable under § 1983.’” Id. (quoting Canton, 489 U.S. at 389).

B. Analysis

Plaintiffs have named Herkimer County Child Protective Services as a defendant

in their complaint, which the court will construe liberally to constitute a cause of action

against Herkimer County.4 Plaintiffs have not, however, alleged any formal policy,

widespread practice, or failure to provide adequate training that would satisfy the

pleading requirement articulated above. Instead, plaintiffs generally assert that this

defendant should be held liable for the distinct injuries allegedly imposed on plaintiffs

by county employees. As discussed, a municipality may not be held liable under § 1983

“solely because it employs a tortfeasor.” Cowan v. City of Mt. Vernon, 95 F. Supp. 3d

624, 643 (S.D.N.Y. 2015) (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403

(1997)). Moreover, “a custom or policy cannot be shown by pointing to a single

instance of unconstitutional conduct by a mere employee of the [municipality.]” Newton

v. City of New York, 566 F. Supp. 2d 256, 271 (S.D.N.Y. July 16, 2008); see also City

of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (“Proof of a single incident of

unconstitutional activity is not sufficient to impose liability under Monell, unless proof

of the incident includes proof that it was caused by an existing, unconstitutional

4 Plaintiffs’ claims against this defendant would be further subject to dismissal because a § 1983

action against an agency of a municipality, such as a county child protective services unit, is not a

viable claim as it has no separate legal identity apart of the municipality itself. See Friedman v. N.Y.C.

Admin. For Children’s Servs., 502 F. App’x 23, 27 n. 3 (2d Cir. 2012) (municipal agencies are not

suable entities); Mulvihill v. New York, 956 F. Supp. 2d 425, 427 (W.D.N.Y. 2013) (dismissing § 1983

claim against Ontario County Department of Social Services because it is not a suable entity).

municipal policy, which policy can be attributed to a municipal policymaker.”);

Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A single

incident by itself is generally insufficient to establish the affirmative link between the

municipal policy or custom and the alleged unconstitutional violation.”). Accordingly,

plaintiff has failed to state a viable Monell claim.

VI. Fourth Amendment

Liberally construed, plaintiffs’ complaint alleges that in removing I.M. and G.J.

from their home, defendants violated their Fourth Amendment right to be free from

illegal searches and seizures. It is, however, well-settled that “Fourth Amendment

rights are personal rights, which, like some other constitutional rights, may not be

vicariously asserted.” Tenenbaum v. Williams, 193 F.3d 581, 593 n. 13 (2d Cir. 1999)

(quoting Alderman v. United States, 394 U.S. 165, 174 (1969)). In this case, it is clear

that any alleged seizure occurred as to the minor children I.M. and G.J. See Kia P. v.

McIntyre, 235 F.3d 749, 762 (2d Cir. 2000) (“[T]he Fourth Amendment applies in the

context of the seizure of a child by a government-agency official during a civil child-

abuse or maltreatment investigation.”). Accordingly, only the children—not the

plaintiffs—may assert a violation of this right. See Southerland v. City of New York, 667

F.3d 87, 103 (2d Cir. 2012) (“A Fourth Amendment child-seizure claim belongs only to

the child, not to the parent.”), amended by, 681 F.3d 122 (2d Cir. 2012); Graham v. City

of New York, 869 F. Supp. 2d 337, 355 (E.D.N.Y. 2012) (“While a Fourth Amendment

claim may be brought by a parent on behalf of a child, parents do not have their own

Fourth Amendment right to be free from a child's court-approved removal.”).

Moreover, it is a “well-established general rule in this Circuit that a parent not

admitted to the bar cannot bring an action pro se in federal court on behalf of his or her

child[.]” Johnson v. City of New York, No. 22-2096, 2023 WL 3607219, at *2 (2d Cir.

May 24, 2023) (quoting Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir.

2005)). Therefore, to the extent plaintiffs have pleaded a Fourth Amendment claim on

their own behalf, or attempt to plead such a claim on behalf of I.M. and/or G.J., this

claim should be dismissed.

VII. First Amendment

1. Legal Standards

The right to intimate association “guarantees an individual the choice of entering

into an intimate relationship free from undue intrusion by the state.” Sanitation &

Recycling Indus. v. City of New York, 107 F.3d 985, 996 (2d Cir.1997) (citing Roberts

v. United States Jaycees, 468 U.S. 609, 617-18 (1984)). This right has been extended to

relationships that “attend the creation and sustenance of a family-marriage, childbirth,

the raising and education of children and cohabitation with one’s relatives.” Sanitation

& Recycling Indus., 107 F.3d at 996 (quoting Roberts, 468 U.S. at 619).

“The Supreme Court has recognized a right of association with two distinct

components—an individual’s right to associate with others in intimate relationships and

a right to associate with others for purposes of engaging in activities traditionally

protected by the First Amendment, such as speech and other expressive conduct.” Id.

(citing Roberts, 468 U.S. at 617-18). Accordingly, the right of intimate association

appears to “derive[ ] from both the First and Fourteenth Amendments.” Lowery v.

Carter, No. 07 Civ. 7684, 2010 WL 4449370, at *2 (S.D.N.Y. Oct. 21, 2010) (citing

Roberts, 468 U.S. at 617-19) (additional citation omitted). “Where a plaintiff is

allegedly retaliated against for the First Amendment activities of a family member and

asserts a claim based on intimate association, the courts in this Circuit have considered

the claim as deriving from the First Amendment.” Agostino v. Simpson, No. 08-CV-

5760, 2008 WL 4906140, at *9 (S.D.N.Y. Nov. 14, 2008) (citing cases); see also

Licorish-Davis v. Mitchell, No. 12-CV-601, 2013 WL 2217491, at *6 (S.D.N.Y. May

20, 2013) (noting that courts have “at times analyzed the right to intimate association as

one emanating from the First Amendment”); Garten v. Hochman, No. 08 Civ. 9425,

2010 WL 2465479, at *3 (S.D.N.Y. June 16, 2010) (“Courts in this circuit have

acknowledged that a First Amendment right to intimate association is implicated where

a plaintiff is allegedly retaliated against for the First Amendment activities of a family

member.”).

“Where the intimate association right at issue is tied to familial relationships and

is independent of First Amendment retaliation concerns, however, the Second Circuit

has employed an analysis under the framework of the Fourteenth Amendment right to

substantive due process.” Garten, 2010 WL 2465479, at *4 (citing cases); see also

Patel v. Searles, 305 F.3d 130, 135 (2d Cir. 2002) (stating that the right to intimate

association receives protection as “a fundamental element of personal liberty” grounded

in substantive due process under the Fourteenth Amendment); Lowery, 2010 WL

4449370, at *2 (“When the right of intimate association does not implicate any First

Amendment speech or retaliation concerns . . . the court must analyze the case

exclusively as a Fourteenth Amendment substantive due process claim.”).

2. Analysis

Plaintiffs allege, generally, that the defendants violated their First Amendment

rights. Although the plaintiffs have not provided significant detail in conjunction with

their First Amendment claim, their claim, as currently stated, does not implicate any

speech or retaliation concerns. Because the plaintiffs’ claim, at its core, concerns their

familial relationship with their children, it is appropriately analyzed under the

framework of Fourteenth Amendment substantive due process, as discussed below.

VIII. Fourteenth Amendment

A. Legal Standards5

5 This discussion of the applicable law is taken from U.S. Magistrate Judge Thérèse Wiley Dancks’

cogent summary in McNeil v. HCDSS, No. 6:18-CV-0631(MAD/TWD), 2018 WL 6173983

(N.D.N.Y. Aug. 17, 2018), which report-recommendation was adopted in its entirety by U.S. District

Judge Mae A. D’Agostino in McNeil v. Riente, No. 6:18-CV-0631(MAD/TWD), 2018 WL 4895848

(N.D.N.Y. Oct. 9, 2018).

1. Procedural Due Process

“A procedural due process claim is composed of two elements: (1) the existence

of a property or liberty interest that was deprived and (2) deprivation of that interest

without due process.” Bryant v. New York State Educ. Dep’t, 692 F.3d 202, 218 (2d Cir.

2012) (citation omitted). Parents have a fundamental liberty interest in the “care,

custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65 (2000); Kia

P. v. McIntyre, 235 F.3d 749, 759 (2d Cir. 2000); Tenenbaum v. Williams, 193 F.3d

581, 593 (2d Cir. 1999). However, the government has a compelling interest in the

welfare of children, and the relationship between parent and child may be investigated

and terminated by the state provided constitutionally adequate procedures are followed.

Santosky v. Kramer, 455 U.S. 745, 766 (1982). “Notwithstanding the existence of this

constitutional right, the right to family integrity does not include a constitutional right to

be free from child abuse investigations.” Roach v. Clark, No. 5:15-CV-408

(LEK/ATB), 2015 WL 4067504, at *10 (N.D.N.Y. July 2, 2015) (quotation marks and

citation omitted).

Accordingly, as “a general rule . . . 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.” Nicholson v. Scoppetta, 344 F.3d 154, 171 (2d Cir. 2003) (quotation marks and

citation omitted). The failure to afford parents pre-removal due process may give rise to

a Fourteenth Amendment procedural due process claim. See Tenenbaum, 193 F.3d at

593.

2. Substantive Due Process

Parents also 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) (quotation

marks, citation, and alterations omitted). “Substantive due process rights safeguard

persons against the government's exercise of power without any reasonable justification

in the service of a legitimate governmental objective.” Southerland, 680 F.3d at 151

(quotation marks and citation omitted).

To state a claim for a violation of this substantive due process right of custody, a

plaintiff must demonstrate that the state action depriving him or her of custody was “so

shocking, arbitrary, and egregious that the Due Process Clause would not countenance

it even were it accompanied by full procedural protection.” Tenenbaum, 193 F.3d at

600. It is not enough that the government act be “incorrect or ill-advised”; it must be

“conscience-shocking.” Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir.

1995). “Only the most egregious official conduct can be said to be arbitrary in the

constitutional sense and therefore unconstitutional.” Tenenbaum, 193 F.3d at 600

(quotation marks omitted).

Absent truly extraordinary circumstances, a brief deprivation of custody is

insufficient to state a substantive due process custody claim. Nicholson v. Scoppetta,

344 F.3d 154, 172 (2d Cir. 2003). Such temporary deprivations do “not result in the

parents’ wholesale relinquishment of their right to rear their children,” so they are not

constitutionally outrageous or conscience-shocking. Id. (alternations omitted). Thus,

“while a procedural due process claim challenges the procedure by which removal is

effected, a substantive due process claim challenges the fact of [the] removal itself.”

Bruker v. City of New York, 92 F. Supp. 2d 257, 266-67 (S.D.N.Y. 2000).

Like a procedural due process claim, a plaintiff must establish loss or an

interruption of custody to state a substantive due process claim. See Oglesby v. Eikszta,

499 F. App’x 57, 60-61 (2d Cir. 2012) (finding no substantive due process violation

where “plaintiffs admit that they never lost custody of any of their children”); Cox v.

Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 276 (2d Cir. 2011) (“Where there is no

actual loss of custody, no substantive due process claim can lie.”) (citations omitted).

B. Analysis

Mindful of the Second Circuit’s direction that a pro se plaintiff’s pleadings must

be liberally construed, the court finds that plaintiffs’ Fourteenth Amendment procedural

and substantive due process claims against defendants Michelle Coddington and Ashley

DiFlillippo, as alleged in the complaint and accompanying exhibits,6 survive sua sponte

review and require a response. In making this recommendation, the court expresses no

opinion as to whether these claims can withstand a properly filed dispositive motion.7

IX. Opportunity to Amend

Generally, when the court dismisses a pro se complaint sua sponte, the court

should afford the plaintiff the opportunity to amend at least once; however, leave to re-

plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer &

Co., 987 F.2d 129, 131 (2d Cir. 1993). The court is recommending that plaintiffs’

Fourteenth Amendment due process claims against defendants Michelle Coddington

and Ashley DiFlillippo survive initial review. For the reasons previously set forth

plaintiffs’ claims for injunctive and/or declaratory relief should be dismissed without

prejudice, but without the opportunity to amend. Plaintiffs’ Fourth Amendment claim

should be dismissed with prejudice because it is personal to I.M. and G.J., who cannot

appear without counsel. Otherwise, the remainder of plaintiffs’ complaint should be

dismissed without prejudice against the named defendants. Although dubious, the court

6 After filing their original complaint, the plaintiffs filed various documents, namely police reports,

which they have requested be considered as exhibits to their complaint. The Clerk of the court is

directed to attach these separate filings (Dkt. Nos. 11, 12, 13) to the complaint (Dkt. No. 1) as exhibits.

The Clerk of the court is further directed to strike from the docket the letter purportedly written by

I.M., a minor child, which was filed with the court on April 26, 2023. (Dkt. No. 14). Only the parties

or their representative counsel may submit filings on their behalf.

7 As discussed above, to the extent plaintiff’s claims challenge the results of custody proceedings in

family court, the domestic relations abstention doctrine may bar those claims, so long as there was no

obstacle to the full and fair determination of the custody issue in the state court.

cannot conclude as a matter of law that plaintiffs could not sufficiently amend their

complaint to plausibly state a claim against Herkimer County and/or Lisa Burdock.

PLAINTIFFS ARE ADVISED THAT THEY SHOULD NOT SEEK TO FILE A

MOTION TO AMEND THEIR COMPLAINT UNTIL DISTRICT JUDGE McAVOY

RULES ON THIS COURT’S RECOMMENDATIONS WITH RESPECT TO

PLAINTIFFS’ ORIGINAL CLAIMS. ANY MOTION TO AMEND FILED BEFORE

JUDGE McAVOY’S DECISION WITH RESPECT TO THIS COURT’S

RECOMMENDATIONS WILL BE STRICKEN AS PREMATURE AND WILL NOT

BE CONSIDERED BY THE COURT. As noted below, however, the plaintiffs may

file objections to this court’s recommendations.

WHEREFORE, based on the findings above, it is

ORDERED, that plaintiffs’ IFP Applications (Dkt. Nos. 16, 17) are

GRANTED,8 and it is further

RECOMMENDED, that plaintiffs’ Fourteenth Amendment due process claims

proceed as against defendants Michelle Coddington and Ashley DiFlillippo, and it is

further

8 Although their IFP Application has been granted, plaintiffs will still be required to pay fees that they

may incur in this action, including copying and/or witness fees.

RECOMMENDED, that plaintiffs’ claims for injunctive and/or declaratory

relief be DISMISSED WITHOUT PREJUDICE, BUT WITHOUT LEAVE TO

AMEND, and it is further

RECOMMENDED, that plaintiffs’ Fourth Amendment claims be DISMISSED

WITH PREJUDICE, and it is

RECOMMENDED, that the remainder of the complaint be DISMISSED

WITHOUT PREJUDICE, and it is further

RECOMMENDED, that if the District Court approves this recommendation, the

court afford plaintiffs forty-five (45) days from the date of its order within which to file

a proposed amended complaint for the court’s review or ask for a reasonable extension

of time to do so, and it is

RECOMMENDED, that if plaintiffs fail to file a proposed amended complaint

by the assigned date or by any date extended by the court, the case be returned to me to

prepare service orders on the remaining defendants, and it is

RECOMMENDED, that if plaintiffs file9 a proposed amended complaint within

the applicable deadline, the court send it back to me for my review, and it is

ORDERED, that the Clerk serve a copy of this Order on the pro se plaintiffs.

9 If the court approves this recommendation and allows plaintiffs to submit a proposed amended

complaint, plaintiffs should be warned that any amended complaint must be a complete and separate

pleading. Plaintiffs must state all of their claims in the new pleading and may not incorporate by

reference any part of their original complaint. Plaintiffs are reminded that claims which the district

court dismisses with prejudice should not be raised in any subsequently amended complaint.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have

fourteen (14) days within which to file written objections to the foregoing report.

Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT

TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE

APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing

Small □□ Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636

(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.

Dated: August 2, 2023 th how i Bake

Andrew T. Baxter

U.S. Magistrate Judge

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