Sun v. Saslovsky, Esq.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

YI SUN,

Plaintiff,

1:19-CV-10858(LTS)

-against-

ORDEROF DISMISSAL

HEATHER J. SASLOVSKY, ESQ., et al.,

Defendants.

LAURA TAYLOR SWAIN, United States District Judge:

Plaintiff Yi Sun(“Plaintiff”), who appears prose,originally brought this action in

the New York Supreme Court, New York Countyagainst 30defendants,allegingthat they

violated her rights under federal and state lawseeking damages and injunctive relief. On

November 22, 2019, counsel for Defendants New York City Administrationfor Children’s

Services (“ACS”) and the New York City Police Department (“NYPD”) filed a notice of

removal and paid the relevant fees to remove the action to this Court. (Docket Entry No. 1.)

This Court has jurisdiction of this action pursuant to 28 U.S.C. section 1331. The

Court has reviewed thoroughly the submissions of the parties, and for the following reasons,

dismisses the complaint.

PROCEDURAL HISTORY

On December 2, 2019, counsel for ACS and the NYPD filed an amended notice

of removal. (Docket Entry No.10.) One day later, Defendant Hamilton College filed its answer.

(Docket Entry No.12.) The same day, Defendants Hugh H. Mo, Esq., the Law Firm of Hugh H.

Mo, P.C., and Tsai Chung Chao, M.D., filed a letter motion,pursuant toRules 8(a)(2) and

12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Plaintiff’s claims against those

defendants (Docket Entry No.13),and counsel for ACSand the NYPD filed a letter requesting

additional time to respond to the amended complaint and for a pre-motion conference. (Docket

Entry No.14.)

On December 5, 2019, Magistrate Judge Netburn issued an order bywhich she

stayedthe time for all of the defendants to respond to Plaintiff’s amended complaint until further

order of the Court. (Docket Entry No.17.) The same day, Plaintiff filed a request for the Chief

Judge of this Court to review this action,and for the Offices of the United States Attorney and of

the Attorney General of the State of New Yorkto investigate the defendants for criminal

wrongdoing. (ECF 18.) On December 6, 2019, Plaintiff filed a document in which she

requestedthat the Chief Judge issue a temporary restraining order to stay the orders of

Magistrate Judge Netburnand this Court, andto remand this action to the state court. (Docket

Entry No.21.) Three days later, Plaintiff repeated those requests. (Docket Entry No.22.)

In a December 18, 2019,letter, Plaintiff described frustration and suffering she

experienced due to this actionandrequested that this Court authorize her “passive

euthanasia/death with dignity.” (Docket Entry No.23, at 6, 13.) The Court denied Plaintiff’s

request, identified available mental health resources, and urged her to seek therapy. (Docket

Entry No. 26.) Three days later, Plaintiff again requestedauthorization for “passive

euthanasia/death with dignity.” (Docket EntryNos.27,28.)

On January 5, 2020, the Court received a letter from Plaintiff in which she

requested that the Court give her “some time for therapy” between December 26, 2019, and

January 12, 2020 due to her “weak physical condition.” (Docket Entry No.30, at 2.)

The Court lifts the previously imposed stay. (Docket Entry No. 17.) For the

reasons set forth below, the Court dismisses this actionbut grants Plaintiff leave to replead

certain of her claims.

BACKGROUND

The following recitation of relevant facts is drawn from the Amended Complaint

(Docket Entry No. 10-2(“Am. Compl.”)), the well-pleaded factual content of which is taken as

true for purposes of this decision.

Plaintiff’s amended complaint catalogues numerous negative experiences that she

has allegedly suffered in her life. Most prominently, Plaintiff alleges incidents of rape and

sexual assault which occurred between 2003and2013(see,e.g., Am. Compl. at 36), as well as a

wide rangeof misconduct allegedly perpetrated by employees of ACS, members of the state

judiciary, and private parties involved in Plaintiff’s child custody case. (Id. at 42-49.)

Plaintiff sues the following 30 defendants: (1) Heather J. Saslovsky, Esq., her

child’s law guardian in Family Court proceedings, (2) the Manhattan Juvenile Rights Office of

the Legal Aid Society, (3) Margaret O’Mara, a witness in Family Court proceedings, (3) Tiffany

Sylvestre, another witness in Family Court proceedings, (4) the “Manhattan Family Court” (the

New York Family Court, New York County), (5) Clark Richardson, a New York County Family

Court Judge, (6) Philip Schiffe, Esq., an attorney who represented Plaintiff in Family Court

proceedings, (7) Ziwei Ram, a witness in Family Court proceedings, (8) Joann Stroman,

Plaintiff’s child’s foster parent, (9) Forestdale, a private foster agency, (10) ACS, (11) Nicole

Richards, an ACS employee, (12) Katrina Guerrero, an ACS employee, (13) Kira Lecznar, Esq.,

an ACSattorney, (14)“Mrs. Foster,” an ACS employee, (15) Jesse Almonte, an ACS employee,

(16) Zulma Montanez, Esq., an ACS attorney, (17) the New York State Central Register of Child

Abuse and Maltreatment (also known as the Statewide Central Register of Child Abuse and

Maltreatment) (“SCR”), (18) Rantideva Singh, an Administrative Law Judge employed by the

New York State Office of Children and Family Services (“OCFS”), (19)Marybeth S. Rochroath,

a Queens County Family Court Judge, (20) “Queens Family Court” (the New York Family

Court, Queens County), (21) Li Da Sun, Plaintiff’s ex-husband, (22) Hugh H. Mo, Esq.,

Plaintiff’s ex-husband’s attorney, (23) The Law Firm of Hugh H. Mo, P.C., Plaintiff’s ex-

husband’s attorney’s law firm,(24) Li Yao Sun, Plaintiff’s ex-husband’s brother, (25) Tsai

Chung Chao, M.D., a physician, (26) Dr. Charles L. Bardes, a witness in Family Court

proceedings, (27) Michael A. Sorkin, Esq., an attorney who may have represented Dr. Chao,

(28) Martin Clearwater & Bell, LLP, a law firm that employs Mr. Sorkin, (29) the NYPD,and

(30) Hamilton College, the college that Plaintiff’s child attends.

STANDARD OF REVIEW

The Court has inherent authority to dismiss an action on the Court’s own motion

(sua sponte), even when a party has paid the fees to bring the action, if the Court determines that

the action is frivolous, see Greathouse v. JHS Sec. Inc., 784 F.3d 105, 119 (2d Cir. 2015)

(“Courts have . . . inherent authority to sua sponte dismiss frivolous suits.”); Vidurek v. Miller,

No. 13-CIV-4476(VB), 2014 WL 901462, at *12 (S.D.N.Y. Feb. 27, 2014) (“[T]he Court has

the inherent authority to dismiss frivolous claims sua sponte,even when the filing fee was paid –

as it was here when the case was removed.”), or finds that the Court lacks subject matter

jurisdiction. See Fed. R. Civ. P. 12(h)(3); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583

(1999). Frivolous suits are those that lack “an arguable basis either in law or in ffact.” Denton v.

Hernandez,504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)).

A court can also dismiss a complaint, or portion thereof, on the court’s own

motion, for failure to state a claim on which relief canbe granted after giving the plaintiff notice

andan opportunity to be heard. See,e.g.,Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d Cir.

1994) (notice and opportunity satisfied where defendants moved to dismiss and Plaintiff was

allowed to respond to the motions); Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir. 1988) (notice and

opportunity to be heard not satisfied where none of the defendants had moved to dismiss prior to

the court’s dismissal). Here, Defendants Chao, Mo, and the Law Offices of Hugh M. Mo have

moved to dismiss the complaint (Docket Entry No. 13), and Plaintiff has not opposed that

motion, despite filing several other letters. Accordingly, Plaintiff had notice the Court was

considering dismissal and had an opportunity to respond to the pending motion.

The Court is obliged to construe prose pleadings liberally,Harris v. Mills, 572

F.3d 66, 72 (2d Cir. 2009), andtointerpret them to raise the “strongest [claims] that they

suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal

quotation marks and citations omitted).

DISCUSSION

Interpreting the amended complaint to raise the strongest claims it suggests,

Plaintiff asserts claims pursuant to42 U.S.C. section1983 that the defendants have violated her

federal constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments, as well

as claims under state law.

The Eleventh Amendment

Plaintiff’s claims under section1983against the New York Family Courts of New

York and Queens Counties andSCR are barred by the doctrine of Eleventh Amendment

immunity. “[A]s a general rule, state governments may not be sued in federal court unless they

have waived their Eleventh Amendment immunity,or unless Congress has abrogate[d] the

states’ Eleventh Amendment immunity . . . .” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir.

2009) (internal quotation marks and citation omitted, second alteration in original). This

immunity shields states from claims for money damages, injunctive relief, and retrospective

declaratory relief. See Green v. Mansour, 474 U.S. 64, 72-74 (1985); Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984). “[T]he immunity recognized by the Eleventh

Amendment extends beyond the states themselves to state agents and state instrumentalities that

are, effectively, arms of a state.” Gollomp,568 F.3d at 366(internal quotation marks and

citation omitted). The New York Family Courts and OCFS – the state agency that maintains

SCR1 –are arms of the State of New York and enjoy Eleventh Amendment immunity. See

Gollomp, 568 F.3d at 368 (the NewYork state court system enjoys Eleventh Amendment

immunity);Estate of M.D. v. New York, 241 F. Supp. 3d 413, 421-22 (S.D.N.Y. 2017) (OCFS

enjoys same); Murray v. Thompson, No. 17-CIV-7004, 2018 WL 5113955 (VB), at *4

(S.D.N.Y. Oct. 19, 2018) (a New York Family Court enjoys same); see alsoFinch v. N.Y.S.

Office of Children & Family Servs., 499 F. Supp. 2d 521, 535-36 (S.D.N.Y. 2007) (holding that

SCR supervisors that were sued in their official capacities enjoy same); Valmonte v. Perales, 788

F. Supp. 745, 755 (S.D.N.Y. 1992) (holding that the County Social Services Commissioners who

supervise SCR enjoy same), rev’d on other grounds sub nom.Valmonte v. Bane, 18 F.3d 992 (2d

Cir. 1994).

Congress has not abrogated the States’ immunity for claims under section1983,

see Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990) (“it is well settled that 42

U.S.C. § 1983 does not constitute an exercise of that authority”), and the State of New York has

1 OCFS “maintains the Statewide Central Register of Child Abuse and Maltreatment . . .

for reports made pursuant to the [New York State] Social Services Law.”

https://ocfs.ny.gov/ main/cps/(OCFS’s website).

not waived its immunity to suit in federal court. See Trotman v. Palisades Interstate Park

Comm’n, 557 F.2d 35, 40 (2d Cir. 1977).

Accordingly,the Court dismisses Plaintiff’s section 1983 claims againstthe

defendants the New York Family Courts and SCR, a registry that is maintained by OCFS, a New

York State agency,under the doctrine of Eleventh Amendment immunity and because the claims

against these defendants are frivolous. See Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999)

(“Acomplaint will be dismissed as ‘frivolous’ when ‘it is clear that the defendants are immune

from suit.’” (quoting Neitzke, 490 U.S. at 327)).2

Judicial immunity

Plaintiff’s section1983claims against New York Family Court Judges

Richardson and Rochroath, and Administrative Law Judge Singh,are barred under the doctrine

of judicial immunity. Judges, including administrative law judges,are absolutely immune from

suit for claims for damages for any actions taken within the scope of their judicial

responsibilities. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (recognizing judicial immunity);

Cleavinger v. Saxner, 474 U.S. 193, 200 (1985)(noting that administrative law judges “have

been afforded absolute immunity”);Rivera v. Mattingly, 604 F. Supp. 2d 634, 638 (S.D.N.Y.

2009) (noting that judicial immunity protects OCFS administrative law judges from suit under

section1983).

Generally, “acts arising out of, or related to, individual cases before [a] judge are

considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “[E]ven

2 See alsoZuckerman v. Appellate Div., Second Dep’t, Supreme Court, 421 F.2d 625, 626

(2d Cir. 1970) (holding that a state court is not a “person” for the purpose of section 1983

liability); see generallyWill v. Mich. Dep’t of State Police, 491 U.S. 58 (1989) (holding

that a state agency is not a “person” for the purpose of section1983liability).

allegations of bad faith or malice cannot overcome judicial immunity.” Id.at 209. This is

because “[w]ithout insulation from liability, judges would be subject to harassment and

intimidation . . . .” Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994). And,as amended in 1996,

section1983 provides that “in any action brought against a judicial officer for an act or omission

taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory

decree was violated or declaratory relief was unavailable.” 42 U.S.C.S.§ 1983(LexisNexis

2018).

Judicial immunity does not apply when a judge takes action outside his or her

judicial capacity, or when a judge takes an action that, although judicial in nature, is taken “in the

complete absence ofall jurisdiction.” Mireles, 502 U.S. at 11-12; see alsoBliven,579 F.3d at

209-10(describing actions that are judicial in nature). But “the scope of [a] judge’s jurisdiction

must be construed broadly where the issue is the immunity of the judge.” Stump v. Sparkman,

435 U.S. 349, 356 (1978).

Plaintiff’s claims against Family Court Judges Richardson and Rochroathand

OCFS Administrative Law Judge Singh arise from those defendants’ decisions in what appear to

be New York Family Court and OCFS proceedings concerning Plaintiff’s child.3 This conduct is

well within the scope of a judge’s duties. Family Court Judges Richardson and Rochroathand

3 Plaintiff alleges that Judge Richardson “refused to give [her a] chan[ce] to show [her]

evidence(s) to the family Court, and took [her] daughter to Forester Care by his Order”

(Docket Entry No. 1-2, at 22, 24), “always stands up [for the] other party” (id. at 43), and

“always used his power to seek personal gains… showing no remorse.” (Id. at 56.)

Regarding Judge Rochroath, Plaintiff alleges bias arising from a close relationship to the

defendant’s attorney in that case, Hugh Mo (id. at 43), that Rochroath“told [her] in the

courtroom: “I do not believe you” (id. at 48), made an “unfair decision” (id. at 49), and

“rejected [her] request once again” to “give [her] and [her] daughter an order of

protection.” (Id. at 48.) With regard to Administrative Law Judge Singh, plaintiff alleges

“I felt that the Administrative Law Judge do/did not treat my right(s) and he don’t

understand my all situation in the ACS case(s).” (Id. at 25.)

OCFS Administrative Law Judge Singhare therefore immune from suit under the doctrine of

judicial immunity. Accordingly, the Court dismisses Plaintiff’s section 1983 claims against

these defendants under the doctrine of judicial immunity and because these claims are frivolous.

See Montero, 171 F.3d at 760.4

Government-attorney immunity

The Court must also dismiss Plaintiff’s section1983 claims for damages against

ACS attorneys Kira Lecznar, Esq., and Zulma Montanez, Esq. Plaintiff’s claims arise from these

attorneys’ advocacyfor ACS in the New York Family Courts and before OCFS Administrative

Law Judge Singh. Government attorneys are immune from suit under section1983 for damages

4 The amendment to section 1983, allowing for injunctive relief against a judge only if a

state-court declaratory decree was violated or state-court declaratory relief is unavailable,

precludes Plaintiff from seeking injunctive and declaratory relief against these

defendants. This is so because she can appeal a Family Court Judge’s decision in the

state appellate courts, see N.Y. Family Court Act §1112, and she can seek state-court

judicial review of a final decision of OCFS under Article 78 of the New YorkCivil

Practice Law and Rules (“Art. 78”). See Rivera v. Mattingly, No. 06-CIV-7077 (LAP),

2015 WL 13679496, at *3 (S.D.N.Y. Mar. 30, 2015) (describing OCFS fair-hearing

procedure, including state-court judicial review under Art. 78); see generallyHowardv.

New York State Div. of Parole, No. 15-CIV-5317 (DLI) (SJB), 2018 WL 4636951, at *3

(E.D.N.Y. Sept. 26, 2018) (holding that a party could not seek, under section 1983,

injunctive relief against a state administrative law judge); Berlin v. Meijia, No. 15-CIV-

5308(JMA), 2017 WL 4402457, at *4 (E.D.N.Y. Sept. 30, 2017) (“Here, no declaratory

decree was violated and declaratory relief is available to plaintiffs through an appeal of

the state court judges’ decisions in state court.”), appeal dismissed, No. 17-3589 (2d Cir.

Apr. 18, 2018) (effective May 18, 2018).

Plaintiff alleges that Singh failed to provide her with a “full time hearing” but still issued

an unspecified decision on February 7, 2019. (Docket Entry 1-2, at 24-25, 58.) To the

extent that Plaintiff asserts that Singh violated her right to procedural due process, such a

claim also would fail because Plaintiff has not alleged any facts showing that she sought

judicial review of Singh’s decision in an Art. 78 proceeding. See Rivera, 2015 WL

13679496, at *3; Vialez v. N.Y.C. Hous. Auth., 783 F. Supp. 109, 114 (S.D.N.Y. 1991)

(“[I]f a plaintiff had an opportunity to contest a defendant’s actions [in state court] but

failed to do so, there can be no claim for violation of his or her procedural due process

rights under 42 U.S.C. § 1983.”).

“when functioning as an advocate of the state in a way that is intimately associated with the

judicial process.” Mangiafico v. Blumenthal, 471 F.3d 391, 396 (2d Cir. 2006). This immunity

applies to government attorneys who perform functions “‘that can fairly be characterized as

closely associated with the conduct of litigation or potential litigation’ in civil suits,” id.(quoting

Barrett v. United States, 798 F.2d 565, 572 (2d Cir. 1986)), and has been specifically extended to

an ACS attorney forclaims against her that “relate to [her] acts . . . within the scope of her job

representing the City of New York in a familycourt proceeding.” Bey v. Antoine, No. 19-CIV-

1877(PKC) (RER), 2019 WL 3081458, at *5(E.D.N.Y. July 15, 2019); see Cornejo v. Bell, 592

F.3d 121, 128 (2d Cir. 2010) (“[A]n attorney for a county Department of Social Services who

‘initiates and prosecutes child protective orders and represents the interests of the Department

and the County in Family Court’ is entitled to absolute immunity.”) (citation omitted).

Moreover, “the common law precedents also extend absolute immunity to

[government attorneys] participating in the administrative process.” Bloom v. New York State

Comm’r of Health, 573 F. Supp. 2d 732, 740 (E.D.N.Y. 2004) (citing Butz v. Economou, 438

U.S. 478, 509-10 (1978)); see Butz, 438 U.S at 517 (“[A]n agency attorney who arranges for the

presentation of evidence on the record in [the] course of an [administrative] adjudicationis

absolutely immune from suits based on the introduction of such evidence.”).

Plaintiff asserts section1983 claims against Lecznar and Montanez that arise from

Lecznar’s advocacy on behalf of ACS in Family Court proceedings and Montanez’sadvocacy on

behalf of ACS before OCFS Administrative Law Judge Singh.5 Accordingly, the Court

5 Plaintiff alleges that “the ACS attorney Ms. Zulma Montanez… made a

misrepresentation” when she “showed a paper to ‘Hon. Mr. Tantideva Singh.’” (Am.

Comp. at 24.) As to Ms. Lecznar, Plaintiff alleges that she was an attorney for ACS and

showed the Family Court a clinical report in which there were “many mistakes” and

which contained an assertion of “mental illness.” (Id.at 42, 46).

dismisses Plaintiff’s section1983claims for damages against these defendants under the doctrine

of government-attorney immunity and because these claims are frivolous. See Montero, 171

F.3d at 760.

Witness immunity

The Court must also dismiss all of Plaintiff’s section1983 claims for damages

that arise from any of the defendants’ testimony in Family Court proceedings. Grand jury and

trial court witnesses are absolutely immune from liability under section1983for damages arising

fromtheir testimony, even if that testimony was false. See Rehberg v. Paulk,566 U.S. 356,366-

69(2012); Briscoe v. LaHue, 460 U.S. 325 (1983); see alsoJovanovic v. City of New York, 486

Fed. App’x 149, 152 (2d Cir. 2012) (when the “only avenue by which the [fabricated evidence

can] reach the jury [is] through [a witness’s] testimony,” claims of fabricatedevidence are

precluded by witness immunity). This immunity has been extended to witnesses in Family Court

proceedings. See Buchanan v. Ford, 638 F. Supp. 168, 171 (N.D.N.Y. 1986).

Plaintiff asserts section1983 claims for damages against Margaret O’Mara,

Tiffany Sylvestre, Ziwei Ram, Nicole Richards, and Dr. Charles L. Bardes that are based on

their testimony in Family Court proceedings.6 The Court dismisses these claims under the

doctrine of witness immunity and because they are frivolous. See Montero, 171 F.3dat 760.

6 Plaintiff alleges that O’Mara, Ram, and Bardes were “perjured witness[es].” (Am.

Compl. at 26, 33.) Plaintiff alleges Richards “made a statement she knows to be false”

“to the Court on 4/16/2015.” (Id. at 44.) Plaintiff alleges that Sylvestre prepared a

clinical psychiatric report pursuant to an order of the Family Court whichcontained

“many mistakes.” (Id. at 45-46.)

Claims against NYPD & ACS

Some of Plaintiff’s claims againstthe NYPD and ACS are duplicative of her

claims in another pending action before this Court. SeeYi Sun v. N.Y.C. Police Dep’t,No.1:18-

CV-11002(LTS) (SN) (S.D.N.Y.). The Court dismisses theoverlappingclaims without prejudice

to litigation of those claims against the NYPD and ACS in Yi Sun,No1:18-CV-11002(LTS)

(SN) (S.D.N.Y.).

As agenciesof the City of New York, the NYPD and ACSare not entities that can

be sued. N.Y. City Charter ch. 17, § 396 (“All actions and proceedings for the recovery of

penalties for the violation of any law shall be brought in the name of the city of New York and

not in that of any agency, except where otherwise provided by law.”); Friedmanv. N.Y.C. Admin.

For Children’s Servs.,502 F. App’x 23, 27 n.3 (2d Cir. 2012) (ACS is not a suable entity);

Jenkins v. City of New York, 478 F.3d 76,93 n.19(2d Cir. 2007) (the NYPD is not a suable

entity);see alsoEmerson v. City of New York, 740 F. Supp. 2d 385, 395 (S.D.N.Y. 2010) (“[A]

plaintiff is generally prohibited from suing a municipal agency.”). The Court therefore construes

any remaining claims against these defendants as brought against the City of New York. Harris,

572 F.3d at 72.

To state a claim under section1983against a municipalitysuch as the City of

New York, Plaintiff must allege that the municipality itselfcaused the violation of the plaintiff’s

rights. SeeConnick v. Thompson,563 U.S. 51, 60 (2011) (“A municipality or other local

government may be liable under [section 1983] if the governmental body itself ‘subjects’ a

person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such deprivation.”)

(quoting Monell v. Dep’t of Soc. Servs. of City of New York,436 U.S. 658, 692 (1978)). In

other words, to state a section1983 claim against a municipality, the plaintiff must allege facts

showing (1)the existence of a municipal policy, custom, or practice, and (2) that the policy,

custom, or practice caused the violation of the plaintiff’s constitutional rights. Jones v. Town of

East Haven, 691 F.3d 72, 80 (2d Cir. 2012); see Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown,

520 U.S. 397, 403 (1997) (internal citations omitted).

Plaintiff has alleged no facts which could showthat a policy, custom, or practice

of the City of New York has caused violations of her federal constitutional rights.7 The Court

therefore dismisses Plaintiff’s remaining section1983 claims against the NYPD and ACS (and

thus, the City of New York) for failure to state a claim on which relief canbe granted. Because

the Court is dismissing these claims on its own motion and Plaintiff did not have an opportunity

to offer additional facts, the Court grants Plaintiff leave to replead the following claims in a

second amended complaint: (1) NYPD officers retaliatedagasint Plaintiff because of her

complaints of alleged sexual assault, in violation of the First Amendment (Am. Compl. at 13);

(2) ACS caused Plaintiff to be subjected to involuntary psychiatric treatment, in violation of the

Fourteenth Amendment (Am. Compl. at 20, 53-54); (3) NYPD officers falsely arrested and

detained Plaintiff at the 13th precinct in the summer of 2010, in violation of the Fourth

Amendment (Am. Compl. at 29, 31). The second amended complaint must include facts

7 Plaintiff alleges that six officers of the NYPD working in five different precincts between

the years of 2003-2013 raped her and “extorted sex and money from [her] in order for

[her] to stay out of jail andkeep [her] child,” but offers no facts from which the Court can

properly infer that these acts done were pursuant to an NYPD or Citypolicy, custom, or

practice. (Am. Compl. at 35-36.) Relatedly, Plaintiff offers only a general allegation that

“[i]t is common for police officers to shield each other from punishment” (Am. Compl. at

40), citing unrelated events over the course of decades in which her complaints to

detectives and supervisors were not answered satisfactorily. See,e.g.,id. at 33, 38.

Plaintiff similarly makes conclusory allegations that employees of ACS worked together

to deprive her of custody of her child through the use of false testimony, but alleges no

facts from which the Court can properly infer that such conduct was the product of a

practice or custom attributable to the City of New York. See,e.g.,id. at 42-46, 51-53.)

demonstrating thatthe alleged violations of Plaintiff’s constitutional rights were caused by a

policy, custom, or practice of the City.

Plaintiff’s Section 1983 claims against private entities

To state a claim under section1983, a plaintiff must allege both that (1) a right

secured by the Constitution or laws of the United States was violated, and (2) the right was

violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487

U.S. 42, 48-49 (1988). Private parties generallyarenot state actors and therefore are not usually

liable under section1983. Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013) (quoting

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)); see also

Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States

Constitution regulates only the Government, not private parties.”).

Plaintiff has named the following private individuals andentities as defendants:

Heather J. Saslovsky, Esq., Philip Schiffe, Esq., the Manhattan Juvenile Rights Office of the

Legal Aid Society, Li Da Sun, Li Yao Sun, Hugh H. Mo, Esq., The Law Firm of Hugh H. Mo,

P.C., Tsai Chung Chao, M.D., Michael A. Sonkin,Esq., Martin Clearwater & Bell, LLP, Joan

Stroman, and Hamilton College. Plaintiff has alleged no facts showing that any of these

defendants has acted as astate actor in any relevant respect.8 The Court therefore dismisses

8 This includes: (1) Saslovsky in her capacity as Plaintiff’s child’s Family Court-appointed

law guardian, Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015) (Family Court-

appointed law guardians are not state actors for the purpose of section 1983); (2) any of

the defendants who are private attorneys or law firms or legal aid organizations, such as

Saslovsky, the Manhattan Juvenile Rights Office of the Legal Aid Society, Mo, Schiffe,

The Law Firm of Hugh H. Mo, P.C., Sonkin, and Martin Clearwater & Bell, LLP, see

Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (a legal aid organization is not a

state actor);Hayes v. Law Firm of Aiello & Cannick, No. 10-CIV-5511 (KMK), 2013 WL

1187439, at *4 (S.D.N.Y. Mar. 21, 2013) (“Defendants, Plaintiff’s privately retained

former attorney and that attorney’s lawfirm, are clearly not stateactors.”) (citing Polk

Cnty. v. Dodson, 454 U.S. 312, 324 (1981)), appeal dismissed, No. 13-1584 (2d Cir. July

Plaintiff’s section1983 claims against these defendants for failure to state a claim on which relief

canbe granted. Because the Court is dismissing these claims on its own motion and Plaintiff did

not have an opportunity tooffer additional facts, the Court grants Plaintiff leave to replead these

claims in a second amended complaint, which must include facts demonstrating that any private

individuals or entities against which Plaintiff intends to continue to pursue claims took the action

complained of pursuant to state authority rather than in a private capacity.

Claims of conspiracy

Plaintiff alleges that many of the defendants conspired with each other to violate

her federal constitutional rights. The Court understands these allegations as attempting to state a

claim under section 1983, as well as 42 U.S.C. section 1985(3) (“section 1985”), which applies

specifically to conspiracies. To state a claim pursuant to section 1985, Plaintiff “must provide

some factual basis supporting a meeting of the minds, such that defendants entered into an

agreement, express or tacit, to achieve the unlawful end.” Webb v. Goord, 340 F.3d 105, 110-11

(2d Cir. 2003). Because Plaintiff’s allegations are vague and lacksupporting facts,9 they fail to

state a claim of conspiracy under either 42 U.S.C. section1983 or 42 U.S.C. section1985(3).

See Wang v. Miller, 356 F. App’ x 516, 517 (2d Cir. 2009); Sommer v. Dixon,709 F.2d 173,

175 (2d Cir.1983) (noting that section1985 claims must be dismissed where they contain “only

conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional

rights”). The Court therefore dismisses these claims for failure to state a claim on which relief

26, 2013); and (3) Stroman, Plaintiff’s child’s foster parent, see, e.g.,Smith v. Gristina,

No. 11-CIV-2371 (VB), 2012 WL 247017, at *3 (S.D.N.Y. Jan. 6, 2012) (“Courts of

Appeals that have examined whether foster parents are state actors under Section 1983

have resoundingly answered in the negative.”)

9 Plaintiff alleges in conclusory fashionthat witnesses colluded and received unspecified

awards for being “member[s] of [the] syndicate.” (Am. Compl. at 51.)

canbe granted. The Court grants Plaintiff leave to repleadthese claims in a second amended

complaint,which must include facts demonstrating that any private individuals or entities against

which Plaintiff intends to continue to pursue claims took the action complained of pursuant to

state authority rather than in a private capacity.

Plaintiff’s remaining Section 1983 claims

Plaintiff’s remaining section1983 claims are against ACS employees (Guerrero,

Foster, and Almonte) as well as Forestdale, a private foster agency. Plaintiff alleges either very

little or nothing at all about these defendants. She asserts that on January 18, 2017, at her

request, Guerrero, an ACS caseworker,gave her a copy of a clinical report prepared by

Sylvestre. (Am. Compl.at 45-46.) She also states that Guerrero is a member of a “syndicate,”

along with some of the other individual defendants. (Id.at 51.) She alleges nothing about

Almonte or Foster. And she seems to allege simplythat Forestdale is the foster agency that

placed her child with a foster parent and gave the childeducational opportunities. (Id. at 43, 51,

56.)

To state a claim under section 1983against an individual state-actor defendant, a

plaintiff must allege facts showing the individual’s direct and personal involvement in the alleged

constitutional deprivation. See Spavone v. N.Y. State Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d

Cir. 2013) (quotingColon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). An individual

defendant may not be held liable under section1983 solely because that defendant employs or

supervises a person who violated the plaintiff’s rights. See Ashcroft v. Iqbal, 556 U.S. 662,676

(2009) (“Government officials may not be held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior.”). An individual can be personally involved

in a section1983 violation if:

(1) the defendant participated directlyin 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 [the plaintiff] by failing to act on

information indicating that unconstitutional acts were occurring.

Colon, 58 F.3d at 873.10

A private foster agencyis a state actor,see Perez v. Sugarman, 499 F.2d 761 (2d

Cir. 1974),and canbe liable under section1983 if Plaintiff’s constitutional rights were violated

as a result of the agency’s policy. See Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408

(2d Cir. 1990) (discussing section1983 liability of private organizations that employ state actors)

(quoting Monell, 436 U.S. at 691); P.A. v. City of New York,44 F. Supp. 3d 287, 306 (E.D.N.Y.

2014) (“Courts have extended Monell’s limitations on respondeat superior liability to private

organizations acting under color of state law.”), appeal dismissed sub nom.,Rodriguez v.

Anderson,633F. App’x 7 (2d Cir. 2015).

Plaintiff has, however,provided insufficient facts to suggest that Guerrero, Foster,

or Almonte were personally involvedin any violation of her federal constitutional rights, or that

a policy of Forestdale resulted in such a violation. The Court therefore dismisses Plaintiff’s

claims against these defendants for failure to state a claim on which relief canbe granted. The

Court grants Plaintiff leave to replead these claims in a second amended complaint. To state a

claim of conspiracy to violate Plaintiff’s constitutional rights under section 1983, the second

amended complaint must include facts demonstrating that Guerrero, Foster, and Almonte,either

10 “Although the Supreme Court’s decision in [Iqbal, 556 U.S. 662] may have heightened

the requirements for showing a supervisor’s personal involvement with respect to certain

constitutional violations,” the Second Circuit has not yet examined that issue. Grullon v.

City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).

as state actors or along with a state actor, agreed to act in concert to inflict an unconstitutional

injury upon Plaintiff and performed an overt act in furtherance of that goal causing damage. See

Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). As to Forestdale, the second amended

complaint must include facts showing that the foster agency had a policy, custom, or practice of

making agreements to act in concert to inflict unconstitutional injuries pursuant to which its

agents performed over acts in furthernance of that goal causing damage. See Jones, 691 F.3d at

80.

Claims under state law

A district court may decline to exercise supplemental jurisdiction over claims

under state law when it “has dismissed all claims over which it has original jurisdiction.” 28

U.S.C.S.§1367(c)(3) (LexisNexis 2012). Generally, “when the federal-law claims have

dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court

should decline the exercise of jurisdiction . . . .” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,

350 (1988) (footnote omitted). Having dismissed all of the claims of which the Court has

original jurisdiction, the Court declines to exercise its supplemental jurisdiction over any claims

under state law Plaintiff may be asserting. See Kolari v. New York-Presbyterian Hosp., 455 F.3d

118, 122 (2d Cir. 2006) (“Subsection (c) of §1367 ‘confirms the discretionary nature of

supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its

exercise.’”)(quoting City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997)).

CONCLUSION

The Court lifts the previously imposed stay.

For the foregoing reasons, the Court dismisses this action. The Court dismisses

all of Plaintiff’s claims under federal law as frivolous, except Plaintiff’s claims against the

NYPD, ACS, Heather J. Saslovsky, Esq., Philip Schiffe, Esq., the Manhattan Juvenile Rights

Office of the Legal Aid Society, Li Da Sun, Li Yao Sun, Hugh H. Mo, Esq., the Law Firm of

Hugh H. Mo, P.C., Tsai Chung Chao, M.D., Michael A. Sonkin,Esq.,Martin Clearwater & Bell,

LLP, Joan Stroman, Hamilton College, KatrinaGuerrero, Mrs. Foster, Jesse Almonte, and

Forestdale. As explained below, the federal claims against these remaining defendants are

dismissed without prejudice to the extent they duplicate her federal claims against the NYPD and

ACS that have been asserted in Yi Sun v. N.Y.C. Police Dep’t, No. 1:18-CV-11002 (LTS) (SN)

(S.D.N.Y.),andthe Court dismisses the remaining claims for failure to state a claim upon which

relief may be granted and permits Plaintiff to file a Second Amended Complaint repleading those

claims with additional facts.

The Court dismisses for failure to state a claim on which relief canbe granted

Plaintiff’s claims under federal law against Heather J. Saslovsky, Esq., Philip Schiffe, Esq., the

Manhattan Juvenile Rights Office of the Legal Aid Society, Li Da Sun, Li Yao Sun, Hugh H.

Mo, Esq., the Law Firm of Hugh H. Mo, P.C., Tsai Chung Chao, M.D., Michael A. Sonkin, Esq.,

Martin Clearwater & Bell, LLP, Joan Stroman, Hamilton College, Katrina Guerrero, Mrs. Foster,

Jesse Almonte, and Forestdale, as well as her remaining claims under federal law against the

NYPD and ACS. Because the Court dismisses these claims sua spontefor failure to state a claim

on which relief may be granted, the Court grants Plaintiff leave to replead these claims in a

Second Amended Complaint,which must be filed by September 21, 2020. This opinion

specifies the types of additional facts that must be included in the Second Amended Complaint

(see pages 13, 15, 16, 17, 18above, concerning claims against the City of New York, Heather J.

Saslovsky, Esq., Philip Schiffe, Esq., the Manhattan Juvenile Rights Office of the Legal Aid

Society, Li Da Sun, Li Yao Sun, Hugh H. Mo, Esq., The Law Firm of Hugh H.Mo, P.C., Tsai

Chung Chao, M.D., Michael A. Sonkin, Esq., Martin Clearwater & Bell, LLP, Joan Stroman,

Hamilton College, Katrina Guerrero, Mrs. Foster, Jesse Almonte, Forestdale). See,e.g.,

Wachtler, 35 F.3d at 82.

Plaintiff must not assert in her second amended complaint anyof the claims that

the Court has dismissed as frivolous in this order.

If Plaintiff fails to file asecond amended complaint within the time allowed, the

Court will enter a judgment dismissingthis actionwith prejudice except to the extent Plaintiffs’

claims against the NYPD and ACS overlap those asserted in Yi Sun v. N.Y.C. Police Dep’t, No.

1:18-CV-11002 (LTS) (SN).

The Court declines to exercise supplemental jurisdiction of any of Plaintiff’s

claims under state law. 28 U.S.C. § 1367(c)(3).

The Court denies as moot all motions and requests for relief not previously

addressedby the Court.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order

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

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

The Court directs the Clerk of Court to mail a copy of this order to Plaintiff and

note service on the docket. In light of the current global health crisis, Plaintiff isencouraged to

submit all filings by email toTemporary_Pro_Se_Filing@nysd.uscourts.gov. Plaintiff isalso

encouraged to consent to receive all court documents electronically. Aconsent to electronic

service formis attached to this order and is available on the Court’s website. If email is

unavailable, Plaintiff maysubmit documents by regular mail or in person at the drop box located

at the U.S. Courthouse in Manhattan,500 Pearl Street, New York, NY, 10007. For more

information, including instructions on this new email service for prose parties, please visit the

Court’s website at nysd.uscourts.gov.

SO ORDERED.

Dated: August 6, 2020

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

United States District Judge

Copy Mailed To: Yi Sun

10 E. 116th St, Apt. 3A

New York, NY 10029

“apres Disrp,

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“(Que \*\ United States District Court

WSF Southern District of New York

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Pro Se (Nonprisoner) Consent to Receive Documents Electronically

Parties who are not represented by an attorney and are not currently incarcerated may

choose to receive documents in their cases electronically (by e-mail) instead of by regular

mail. Receiving documents by regular mail is still an option, but if you would rather receive

them only electronically, you must do the following:

1. Sign up for a PACER login and password by contacting PACER! at

www.pacer.uscourts.gov or 1-800-676-6856;

2. Complete and sign this form.

If you consent to receive documents electronically, you will receive a Notice of Electronic

Filing by e-mail each time a document is filed in your case. After receiving the notice, you

are permitted one “free look” at the document by clicking on the hyperlinked document

number in the e-mail.* Once you click the hyperlink and access the document, you may not

be able to access the document for free again. After 15 days, the hyperlink will no longer

provide free access. Any time that the hyperlink is accessed after the first “free look” or the

15 days, you will be asked for a PACER login and may be charged to view the document. For

this reason, you should print or save the document during the “free look” to avoid future

charges.

IMPORTANT NOTICE

Under Rule 5 of the Federal Rules of Civil Procedure, Local Civil Rule 5.2, and the Court’s

Electronic Case Filing Rules & Instructions, documents may be served by electronic means.

If you register for electronic service:

1. You will no longer receive documents in the mail;

2. Ifyou do not view and download your documents during your “free look” and

within 15 days of when the court sends the e-mail notice, you will be charged for

looking at the documents;

3. This service does not allow you to electronically file your documents;

4. It will be your duty to regularly review the docket sheet of the case.

1 Public Access to Court Electronic Records (PACER) (www.pacer.uscourts.gov) is an electronic public access service that

allows users to obtain case and docket information from federal appellate, district, and bankruptcy courts, and the PACER

Case Locator over the internet.

2 You must review the Court's actual order, decree, or judgment and not rely on the description in the email notice alone.

See ECF Rule 4.3

3 The docket sheet is the official record of all filings in a case. You can view the docket sheet, including images of

electronically filed documents, using PACER or you can use one of the public access computers available in the Clerk’s

Office at the Court.

500 PEARL STREET | NEW YORK, NY 10007

300 QUARROPAS STREET | WHITE PLAINS, NY 10601

CONSENT TO ELECTRONIC SERVICE

I hereby consent to receive electronic service of notices and documents in my case(s) listed below. I

affirm that:

1. I have regular access to my e-mail account and to the internet and will check regularly for

Notices of Electronic Filing;

2. I have established a PACER account;

3. I understand that electronic service is service under Rule 5 of the Federal Rules of Civil

Procedure and Rule 5.2 of the Local Civil Rules, and that I will no longer receive paper

copies of case filings, including motions, decisions, orders, and other documents;

4. I will promptly notify the Court if there is any change in my personal data, such as name,

address, or e-mail address, or if I wish to cancel this consent to electronic service;

5. I understand that I must regularly review the docket sheet of my case so that I do not miss a

filing; and

6. I understand that this consent applies only to the cases listed below and that if I file

additional cases in which I would like to receive electronic service of notices of documents, I

must file consent forms for those cases.

Civil case(s) filed in the Southern District of New York:

Note: This consent will apply to all cases that you have filed in this court, so please list all of

your pending and terminated cases. For each case, include the case name and docket number

(for example, John Doe v. New City, 10-CV-01234).

Name (Last, First, MI)

Address City State Zip Code

Telephone Number E-mail Address

Date Signature

Return completed form to:

Pro Se Intake Unit (Room 200)

500 Pearl Street

New York, NY 10007