Thomas v. Martin-Gibbons

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

OPINION & ORDER

SUZETTE THOMAS, TIESHA ORTIZ, J.O.,

and JOSE ORTIZ,

Plaintiffs,

– against –

PATRICIA L. MARTIN-GIBBONS, ESQ., 19 Civ. 7695 (ER)

Attorney, DANA J. WILSON-HAYNES, VINOLA

WILSON, CARL JOSEPH HAYNES, ROBERT

D. MULROY, Judge (Family), THE CHILDREN’S

LAW CENTER, Legal Assistance, THE CITY OF

NEW YORK, THE STATE OF NEW YORK, and

MARTHA SCHNEIDERMAN, ESQ.

Defendants.

SHANEQUA S. ORTIZ on behalf of J.B.O.,

Plaintiff,

– against –

DANA J. WILSON-HAYNES, CARL J.

HAYNES, PATRICIA L. MARTIN-GIBBONS,

ESQ., MS. RITTER, MR. MONTGOMERY, THE 19 Civ. 7887 (ER)

DEPARTMENT OF HEALTH, MARTHA

SCHNEIDERMAN, CYNTHIA LEE, DAWN

POST, KAREN SIMMONS, BROOKLYN’S

CHILDREN’S LAW CENTER, JUDGE ROBERT

MULROY, THE CITY OF NEW YORK, THE

STATE OF NEW YORK, and NEW YORK CITY

DEPARTMENT OF CORRECTION,

Defendants.

RAMOS, D.J.:

�is case centers on a young boy, J.O., and the dispute between his father and

mother over who shall have custody over him. In December 2018, a New York court

gave his father, Dana J. Wilson-Haynes, permanent custody and approved of his

relocation to California. Now, his mother, Shanequa Ortiz of New Jersey, and maternal

grandmother, Suzette �omas, maternal grandfather, Jose Ortiz, and maternal aunt, Tiesha

Ortiz — all of New York — sue in this Court to have J.O. placed in their custody and for

relief related to the long-running dispute between them and the family of Wilson-Haynes.

�e plaintiffs sue a collection of individuals and organizations involved with this dispute,

including Wilson-Haynes, himself, his father, Carl J. Haynes of California,1 his

grandmother, Vinola Wilson of New York, his former attorney, Patricia L. Martin-

Gibbons of New York, the New York-based organization that served as the court-

appointed attorneys for J.O. during custody proceedings and its employees, the New York

State judge that awarded custody to Wilson-Haynes, the City of New York, and the State

of New York. Ortiz additionally sues the New York City Department of Health, two of its

employees, and the New York City Department of Correction.

Now, each of the defendants moves to dismiss on a variety of grounds. For the

following reasons, their motions are GRANTED in their entirety.

I. BACKGROUND

Shanequa Ortiz and Wilson-Haynes married in July 2012, while Ortiz was

pregnant with J.O. Am. Compl. (“Ortiz Compl.”) ex. C at 20, 21, Ortiz v. Wilson-Haynes,

19 Civ. 7887 (ER), Doc. 63; Wilson-Haynes Mot. to Dismiss at 4, Ortiz, Doc. 77. �e

couple separated shortly afterwards, in September 2012, and J.O. was born in April 2013.

Id. �ree months after his birth, a New York Family Court judge granted sole legal

custody of J.O. to Ortiz and granted Wilson-Haynes “liberal visitation” rights. Id. at 20.

In September 2014, on a day he was visiting with his son, Wilson-Haynes

allegedly punched J.O.’s maternal grandfather, Jose Ortiz, in the face and cursed at him.

Am. Compl. at 17 (“Thomas Compl.”), Thomas v. Martin-Gibbons, 19 Civ. 7695, Doc.

69-3. Although Ortiz received a temporary order of protection from the Bronx County

1 According to Wilson-Haynes, Carl Haynes passed away in January 2020. 19 Civ. 7695, Doc. 84 at 2.

Family Court sometime later, his petition for a permanent order of protection was

dismissed in November 2014. See id. at 19.

In December 2015, a New Jersey family court granted a divorce between

Shanequa Ortiz and Wilson-Haynes. Ortiz Compl. ex. C at 21. �e court granted

custody to Ortiz in the final judgment of divorce. Id. Custody-related litigation

continued, however, with defendant Judge Robert Mulroy of the Kings County Family

Court being assigned to J.O.’s case in January 2016. Ortiz Opp. (“First Ortiz Opp.”)

¶ 13, Ortiz v. Wilson-Haynes, 19 Civ. 7887 (ER), Doc. 81. �e Children’s Law Center

was assigned by Judge Mulroy to represent J.O. in proceedings before him in February

2016. Notice of Mot. ex. A ¶ 4, Doc. 75.

Shanequa Ortiz alleges that Wilson-Haynes harmed J.O. during visits after the

divorce. In particular, Ortiz alleges that J.O. had bruises and other marks on him after

visiting with his father.2 See First Ortiz Opp. ¶¶ 14–15. In a May 2016 letter to Judge

Mulroy, Ortiz’s lawyer at the time reported that J.O. was upset when Ortiz attempted to

hand him to Wilson-Haynes for a visitation. Ortiz Compl. ex. C at 34–36. �e attorney

further reported that J.O. acted oddly after returning from the visitation and that she and

Ortiz accordingly filed a police report, suspecting child abuse. Id. Ortiz further alleges

that Wilson-Haynes exposed J.O. to foods to which he was allergic, forcing at least one

emergency room visit. First Ortiz Opp. ¶ 38.

Litigation continued into 2017. During this time, the Children’s Law Center acted

as attorneys for J.O., representing his interests during the proceedings. Shanequa Ortiz

alleges that each of the employees of the Law Center that are defendants engaged in

misconduct during the court case. She alleges that attorney Dawn Post made frivolous

applications to hold Ortiz in contempt and was biased in favor of Wilson-Haynes. First

2 Between June 2015 and July 2017, Ortiz attempted to engage New Jersey’s Department of Children and

Families three times for unstated reasons. Ortiz Compl. ex. C at 31–33. �e Department closed her case or

denied services each time. Id.

Ortiz Opp. ¶¶ 25, 26. Employee Cynthia Lee allegedly met with J.O. in violation of

Ortiz’s custodial rights. Id. ¶ 28. Attorney Sarah Lee allegedly criticized Ortiz in front of

J.O. and distressed him with her questions. Id. ¶ 29. Ortiz makes no specific allegations

against defendant Karen Simmons, an employee of the Children’s Law Center. Ortiz also

accuses Wilson-Haynes’ lawyer, Patricia Martin-Gibbons. of sending a “dangerous”

process server to her home. Id. ¶ 32. Finally, Ortiz accuses Judge Mulroy of misconduct,

alleging that he held ex parte conversations with judges of family courts in New Jersey

when conflicts arose between proceedings in New Jersey and those in New York. Id.

¶¶ 30, 31.

Shanequa Ortiz alleges that J.O. told her in July 2017 that his father planned to

run away with him. First Ortiz Opp. ¶ 20. In an August hearing in Family Court, Ortiz

told Judge Mulroy what J.O. had told her and of marks on J.O.’s arm, to which Judge

Mulroy allegedly responded, “Ms. Ortiz, the father is requesting a whole month with his

son and you WILL NOT have access to him, no phone number, no address, just maybe an

email.” Id. ¶ 21 (emphasis in original). Martin-Gibbons and Martha Schneiderman of

the Children’s Law Center moved to hold Ortiz in contempt for not producing J.O. See

First Ortiz Opp. ¶ 22; Ortiz Compl. ¶ 4. Judge Mulroy granted the motion and remanded

Ortiz to the custody of the New York City Department of Correction at Rikers Island for

24 hours. First Ortiz Opp. ¶ 22. While she was at Rikers, Ortiz alleges, she was injured

by the negligence of correction officers. In particular, she alleges that she strained her leg

while sitting on a “disabled bench” and was ignored when she asked to be moved. Ortiz

Compl. at 14. She alleges that she had difficulty walking after her release and was treated

at an emergency room. Id.

Shanequa Ortiz alleges she was again held in contempt in September 2017 for not

producing J.O. Ortiz Compl. ¶ 4. While being transported to a holding cell, she alleges

that she was handcuffed so tightly her arm turned blue and she felt dizzy. Ortiz Opp.

(“Second Ortiz Opp.”) ¶ 19, Doc. 88. She claims that she told the correction officer of

her discomfort, but that the officer did nothing. Id. ¶ 20. She alleges that her handcuffs

were not loosened until another inmate intervened on her behalf to a captain. Id. She

further alleges she was exposed to verbal sexual harassment from other inmates being

transported, that she saw the other inmates stabbing each other on the bus, and that she

was subjected to a strip-search, where she was “told to lift certain body parts to check for

contraband in front of officers and other female inmates.” Id. ¶¶ 15–17.

Because of Ortiz’s failure to produce J.O., Judge Mulroy awarded Wilson-Haynes

temporary custody of his son. After her release from Rikers, in September 2017,

Shanequa Ortiz went to J.O.’s school and discovered that he had been discharged from

the school by Wilson-Haynes. First Ortiz Opp. ¶ 19. She alleges that Wilson-Haynes

signed J.O. up for health insurance and medical care in October by submitting documents

bearing her signature. Id. ¶ 24.

In late 2017 and early 2018, J.O.’s maternal relatives attempted to secure

visitation rights for themselves. In December 2017, Tiesha Ortiz, the sister of Shanequa,

petitioned for visitation of J.O. Thomas Compl., Doc. 69-2 at 17. Suzette �omas, J.O.’s

maternal grandmother, likewise petitioned for visitation in January 2018. Id. at 13.

Ortiz’s petition was denied for lack of standing in April 2018. Id. at 20. Shortly after her

petition was denied, Tiesha Ortiz confronted Wilson-Haynes’ grandmother, Vinola

Wilson, on the street. Id., Doc. 69-4 at 7. Days after the confrontation, both Wilson-

Haynes and his grandmother were granted orders of protection against Ortiz. Id. at 2, 4,

9–12. �omas’ petition for visitation was dismissed in August 2018 for failure to

prosecute. Id. at 14.

In October 2018, Wilson-Haynes petitioned for full custody of his son and

permission to relocate to California. Ortiz Compl. ¶ 1; Thomas Compl, Doc. 69-3 at 23.

During those proceedings, in November 2018, Shanequa Ortiz became aware of a

September 2017 birth certificate for J.O. allegedly requested by Martin-Gibbons and

issued by the New York City Department of Health that omitted Ortiz’s name as mother

of J.O. Second Ortiz Opp. ¶ 23. She spoke with defendants Ritter and Montgomery at

the Department of Health, both of whom allegedly claimed that Ortiz was not J.O.’s

mother and declined to update their records based on Ortiz’s requests. Id. ¶¶ 24–26. In

December, Judge Mulroy granted Wilson-Haynes full custody of J.O. and approved of his

move to California. Ortiz Compl. ex. C at 28, 29.

Meanwhile, in November 2018, Shanequa Ortiz sued Martin-Gibbons, Wilson-

Haynes, and Carl J. Haynes in New York Supreme Court. Shepps Aff. ex. C, Doc. 76. In

that complaint, Ortiz alleged that Martin-Gibbons committed fraud by filing the

September 2017 birth certificate that did not list her as J.O.’s mother. Id. at 2. She also

alleges that these defendants defamed her and inflicted mental and emotional distress on

her, injuries identical to those she alleges in this case. Compare id. at 2 with Ortiz

Compl. at 6. In a decision and order dated June 26, 2019, Justice Jaffe dismissed the

complaint in its entirety against Martin-Gibbons, finding that the complaint “appears to

be an improper attempt to relitigate or collaterally attack the Family Court decision.”

Shepps Aff. ex. D at 3.3

In their lawsuit filed before this Court on August 16, 2019, Tiesha Ortiz, Suzette

�omas, and Jose Ortiz allege violations of their First, Fifth, Seventh, and Eleventh

Amendment rights, as well as their human and civil rights. �ey additionally allege

counts of “conspiracy, malicious behavior, slander of name, alleged criminal charges,

alienation of the minor child J.O., illegal relocation of . . . J.O., illegal custody, transfer,

Parental Kidnapping,” and violations of 18 U.S.C. §§ 241, 242. For relief, they ask for

$190 million in damages and “declaratory relief for plaintiff J.O.”

3 It is unclear whether this order applied to Wilson-Haynes and Haynes, as well. Justice Jaffe wrote,

“Accordingly, it is hereby ORDERED, that defendant Martin-Gibbons’s motion to dismiss is granted, and

the complaint is severed and dismissed against her in its entirety.” Shepps Aff. ex. D at 3. A review of the

case’s docket, however, lists the case as disposed on the same day as Justice Jaffe’s order. See Docket,

Ortiz v. Martin-Gibbons, No. 101742/2018 (N.Y. Sup. Ct. filed Mar. 14, 2019). Neither the defendants in

this case nor the Supreme Court docket suggest any further motions were filed.

In her lawsuit filed on August 22, 2019 and originally assigned to Judge

Engelmayer,4 Shanequa Ortiz alleges violations of her First, Fourth, Fifth, Sixth, Eighth,

Eleventh, and Fourteenth Amendment rights, as well as her “civil and constitutional

rights to motherhood and human rights.” She additionally alleges that the defendants’

actions “eras[ed] [a] mother’s existences from her child,” caused “mental and emotional

distress,” “defamed her character,” and amounted to “torture” and “wrongful

incarceration.” She asks for J.O. to be returned to her, for millions of dollars in damages

from each of the defendants, and miscellaneous declaratory and injunctive relief.

All defendants in both cases have been served with the plaintiffs’ complaints

except for Mr. Montgomery in the Ortiz case. �e Court held a pre-motion conference in

both cases on October 21, 2019, at which attorneys for all defendants except for

Montgomery, Wilson-Haynes, Wilson, and Haynes appeared. At that conference, it

granted all defendants leave to file motions to dismiss. Since then, all defendants except

for Haynes, Wilson, and Montgomery have moved to dismiss their respective cases for

lack of subject matter jurisdiction and for failure to state a claim under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). See Docs. 73 (Mulroy and State of New York

moving under Rule 12(b)(1) only), 74 (Children’s Law Center and employees), 75

(Martin-Gibbons), 76 (Wilson-Haynes, pro se), and 82 (City of New York) in Thomas, 19

Civ. 7695; Docs. 74 (Mulroy & State of New York moving under Rule 12(b)(1) only), 75

(Children’s Law Center and employees), 76 (Martin-Gibbons), 77 (Wilson-Haynes, pro

se), and 82 (City of New York, New York Department of Health, New York Department

of Correction, and Ritter) in Ortiz, 19 Civ. 7887.

In November 2019, Shanequa Ortiz made a motion for the Court to order Wilson-

Haynes to allow J.O. to attend a funeral in New Jersey, which the Court denied. Doc. 70.

In April 2020, Ortiz moved for an order of protection against Wilson-Haynes and

4 �e case was reassigned to this Court as related to the Thomas case on September 10, 2019.

employees of the Children’s Law Center based on conduct by the Law Center during a

proceeding related to J.O. in New Jersey. Doc. 98.

II. STANDARD

Federal Rule of Civil Procedure 12(b)(1) requires that an action be dismissed for

lack of subject matter jurisdiction when the district court lacks the statutory or

constitutional power to adjudicate the case. Fed. R. Civ. P. 12(b)(1). �e party asserting

subject matter jurisdiction carries the burden of establishing, by a preponderance of the

evidence, that jurisdiction exists. Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167,

170 (2d Cir. 2008) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).

“On a Rule 12(b)(1) motion challenging the district court’s subject matter jurisdiction, the

court may resolve the disputed jurisdictional fact issues by referring to evidence outside

of the pleadings, such as affidavits . . . .” Zappia Middle East Constr. Co. v. Emirate of

Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); see also Morrison, 547 F.3d at 170 (citing

Makarova, 201 F.3d at 113). When evaluating a motion to dismiss for lack of subject

matter jurisdiction, the court accepts all material factual allegations in the complaint as

true but does not draw inferences from the complaint favorable to the plaintiff. J.S. ex

rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004) (citing Shipping Fin. Servs.

Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)).

Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When ruling on a motion to

dismiss pursuant to Rule 12(b)(6), the Court must accept all factual allegations in the

complaint as true and draw all reasonable inferences in the plaintiff’s favor. Koch v.

Chrisite’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012). �e Court is not required,

however, to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements

of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible “when the plaintiff

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

defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

Finally, special considerations counsel in favor of relaxed pleading standards for

pro se plaintiffs. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.

2008) (noting that pro se complaints, “however inartfully pleaded, must be held to less

stringent standards” (internal quotation marks omitted)). Accordingly, in adjudicating the

motions to dismiss, the Court looks beyond the complaints, considers the factual

allegations contained in the plaintiffs’ opposition papers, see Long v. Lafko, 254 F. Supp.

2d 444, 446 (S.D.N.Y. 2003), and interprets the totality of allegations in their papers to

raise the strongest claims they suggest, see Triestman v. Fed. Bureau of Prisons, 470 F.3d

471, 474–75 (2d Cir. 2006). As the Second Circuit has observed, a liberal construction of

pro se pleadings is especially important when dealing with civil rights complaints, like

these. See Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001). “However, even pro

se plaintiffs asserting civil rights claims cannot withstand a motion to dismiss unless their

pleadings contain factual allegations sufficient to raise a right to relief above the

speculative level.” Jackson v. N.Y. State Dep’t of Labor, 709 F. Supp. 2d 218, 224

(S.D.N.Y. 2010) (internal quotation marks and emphasis omitted).

III. J.O.’S LACK OF REPRESENTATION

�e Court first dismisses any claims made on J.O.’s behalf. In a federal lawsuit,

“parties may plead and conduct their own cases personally or by counsel.” 28 U.S.C.

§ 1654. �is right to proceed personally — or pro se — does not extend to the case

where a litigant seeks to represent the interest of another. See Cheung v. Youth Orchestra

Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990). “�e choice to appear pro se is

not a true choice for minors who under state law cannot determine their own legal

actions.” Id. (internal citation removed). As J.O. was born in 2013 and is indisputably a

minor, all claims brought on his behalf are dismissed without prejudice until such time as

they are brought by an attorney. Id. at 62.

IV. INJUNCTIVE RELIEF

REQUESTING CUSTODY OF J.O.

�e Court construes Ortiz’s complaint as seeking the return of J.O. through one of

two avenues: (1) by reversing Judge Mulroy’s December 2018 order granting Wilson-

Haynes full custody of J.O. and approving of the relocation of the pair to California or (2)

by having this Court award custody of J.O. to Ortiz as part of separate actions between

them and one or more of the defendants. �is Court, however, has no jurisdiction to issue

either decree.

First, the Rooker-Feldman doctrine bars this Court’s review of Judge Mulroy’s

state court decision. See Rooker v. Fidelity Tr. Co., 263 U.S. 413 (1923); D.C. Court of

Appeals v. Feldman, 460 U.S. 462 (1983). “Together, those cases established the clear

principle that federal district courts lack jurisdiction over suits that are, in substance,

appeals from state-court judgments.” Sung Cho v. City of New York, 910 F.3d 639, 644

(2d Cir. 2018) (internal quotation omitted). To bar a suit under this doctrine, the Court

must find four requirements to have been met: “(1) the federal-court plaintiff must have

lost in state court; (2) the plaintiff must complain of injuries caused by a state-court

judgment; (3) the plaintiff must invite district court review and rejection of that judgment;

and (4) the state-court judgment must have been rendered before the district court

proceedings commenced.” Id.

Each of these requirements are met here. Ortiz lost in state court when Judge

Mulroy awarded full custody of J.O. to Wilson-Haynes. �e injury she complains of —

the loss of the custody of J.O. — is directly caused by Judge Mulroy’s order. By

complaining of the behavior of Judge Mulroy, alleged injustices in his court’s procedures,

and errors in his judgment by awarding custody to Wilson-Haynes, Ortiz is asking this

Court to review and reject Judge Mulroy’s judgment. Finally, Judge Mulroy’s judgment,

being made eight months before the filing of Ortiz’s federal complaint in this Court, was

rendered before the proceedings in this Court commenced. Accordingly, the Court is

without jurisdiction to consider and reverse Judge Mulroy’s decision.5

Second, the domestic relations exception to federal jurisdiction bars the Court

from issuing any independent decree concerning the custody of J.O. In Ankenbrandt v.

Richards, the Supreme Court reaffirmed that an implicit exception to the diversity

jurisdiction statute, 28 U.S.C. § 1332, has “divested the federal courts of power to issue

divorce, alimony, and child custody decrees.” 504 U.S. 689, 703 (1992); accord Deem v.

DiMella-Deem, 941 F.3d 618, 622 (2d Cir. 2019), cert. denied, No. 19-1111, 2020 WL

2515571 (U.S. May 18, 2020). �e Second Circuit has articulated a related domestic

relations abstention doctrine, where a court may abstain from exercising jurisdiction over

cases raising questions of federal law that present “matrimonial issues or issues on the

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

determination in state courts.” Am. Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d Cir. 1990);

accord Deem, 941 F.3d at 625.

Because Ortiz asks for this Court to issue a custody decree regarding J.O., her

claims, to the extent they are based on state law and invoke the Court’s diversity

jurisdiction, are barred by the domestic relations exception. See Ankenbrandt, 504 U.S.

at 703; Deem, 941 F.3d at 622. To the extent her claims are based on federal law, the

Court declines under the domestic relations abstention doctrine to exercise federal

question jurisdiction because, as the long record of custody proceedings before Judge

Mulroy shows, “there is no obstacle to [her claims’] full and fair determination in state

courts.” Am. Airlines, 905 F.2d at 14.6

5 To the extent the Thomas plaintiffs seek a review of Judge Mulroy’s decisions denying Tiesha Ortiz and

�omas visitation rights, the Court dismisses their claims under the Rooker-Feldman doctrine, as well.

6 �e Court does not construe the Thomas complaint to make any requests for a child custody order on

behalf of �omas, Tiesha Ortiz, or Jose Ortiz. To the extent, however, that there may be a request for a

child custody order based on federal law not otherwise dismissed through the dismissal of J.O. as a

plaintiff, the Court declines jurisdiction to hear it under the domestic relations abstention doctrine. And to

V. CLAIMS SEEKING DAMAGES

Having dismissed all claims for injunctive relief in both lawsuits, the Court now

turns to claims for damages.

A. Immunity

�e State of New York, Judge Mulroy, the Children’s Law Center, and the Law

Center’s employees all enjoy some form of immunity from the claims of damages

brought by the plaintiffs.

First, the State of New York and Judge Mulroy acting in his official capacity

enjoy sovereign immunity. “�e Eleventh Amendment bars a damages action in federal

court against a state and its officials when acting in their official capacity unless the state

has waived its sovereign immunity or Congress has abrogated it.” Dean v. Univ. at

Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 193 (2d Cir. 2015). �e State of

New York has not waived its sovereign immunity in cases like these; nor has Congress

abrogated that immunity. See Chris H. v. New York, 764 F. App’x 53, 55 (2d Cir. 2019).

Accordingly, all claims for damages against the State of New York and Judge Mulroy

acting in his official capacity are dismissed. See id.

Second, claims against Judge Mulroy in his individual capacity are dismissed

because he enjoys absolute judicial immunity. “It is well settled that judges generally

have absolute immunity from suits for money damages for their judicial actions.” Bliven

v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009) (citing Mireles v. Waco, 502 U.S. 9, 9–10

(1991); Forrester v. White, 484 U.S. 219, 225–26, (1988)). “[T]he factors determining

whether an act by a judge is a ‘judicial’ one relate to the nature of the act itself, i.e.,

whether it is a function normally performed by a judge, and to the expectations of the

the extent these plaintiffs seek to bring a claim under state law through the Court’s supplemental

jurisdiction, the Court declines jurisdiction because the Court has dismissed all of the Thomas plaintiffs’

federal claims. 28 U.S.C. § 1367(c)(3). As discussed below, the Thomas plaintiffs may not invoke the

Court’s diversity jurisdiction.

parties, i.e., whether they dealt with the judge in his judicial capacity.” Id. at 210

(quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978)).

�e claims against Judge Mulroy clearly meet this bar. All allegations against the

judge are related to actions he took in his courtroom, including how he addressed the

litigants before him, the rulings he made, and how he made them. He was acting in his

judicial capacity at all relevant times and so is immune from the lawsuits brought against

him by both Ortiz and her relatives. Cf. Deem v. DiMella-Deem, 941 F.3d 618, 621 (2d

Cir. 2019), cert. denied, No. 19-1111, 2020 WL 2515571 (U.S. May 18, 2020) (finding

that judge that issued temporary orders of protection in a child custody suit was acting in

her judicial capacity).

Third, the Children’s Law Center and its employees enjoy quasi-judicial

immunity. “Absolute immunity may attach to a non-judicial officer where that individual

serves as an ‘arm of the court,’ or acts as an ‘integral part[ ] of the judicial process.’”

Holland v. Morgenstern, No. 12 Civ. 4870 (ARR) (VVP), 2013 WL 2237550, at *4

(E.D.N.Y. May 20, 2013) (quoting Scotto v. Almenas, 143 F.3d 105, 111 (2d Cir. 1998);

Briscoe v. LaHue, 460 U.S. 325, 335 (1983)). In New York, courts have regularly found

that attorneys for children in custody proceedings (called “law guardians” until 2010,

N.Y. Fam. Ct. Act § 242) enjoy quasi-judicial immunity. See Bey v. New York, No. 11

Civ. 3296 (JS) (WDW), 2012 WL 4370272, at *9 (E.D.N.Y. Sept. 21, 2012) (collecting

cases).

All of the plaintiffs’ allegations against the Children’s Law Center arise out of

their court-appointed representation of J.O. during family court proceedings.

Accordingly, all claims against them are dismissed. See, e.g., Yapi v. Kondratyeva, 340 F.

App’x 683, 685 (2d Cir. 2009) (finding that the Children’s Law Center and its employees

are entitled to quasi-judicial immunity).

B. Federal Claims

�e plaintiffs’ primary federal claims are brought under 42 U.S.C. § 1983. �e

Thomas plaintiffs attempt to bring claims under 18 U.S.C. §§ 241, 242, which criminalize

the deprivation of constitutional rights by any person under the color of law, and the

Parental Kidnaping Prevention Act of 1980, 28 U.S.C. § 1738A. �ese statutes, however,

do not provide private rights of action. See Bender v. Gen. Servs. Admin., No. 05 Civ.

6459 (GEL), 2006 WL 988241, at *1 (S.D.N.Y. Apr. 14, 2006) (addressing 18 U.S.C.

§§ 241, 242); Thompson v. Thompson, 484 U.S. 174, 187 (1988) (addressing the Parental

Kidnaping Act). Accordingly, these claims are dismissed.

�e Court will proceed in its analysis of the § 1983 claims by defendant, first

starting with the individual private defendants —Wilson-Haynes, Wilson, Haynes, and

Martin-Gibbons — then moving to the individual governmental defendants — Ritter and

Montgomery — and concluding with the claims alleged against the City of New York.7

As discussed above, the other defendants enjoy immunity from suit.

Claims Against the Individual Private Defendants

“Because the United States Constitution regulates only the Government, not

private parties, a litigant claiming that his constitutional rights have been violated must

first establish that the challenged conduct constitutes ‘state action.’” Ciambriello v. Cty.

of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (internal quotations omitted). “�e Supreme

Court has explained that ‘merely resorting to the courts and being on the winning side of

a lawsuit does not make a party a co-conspirator or a joint actor with the judge.’” Yapi v.

Kondratyeva, 340 F. App’x 683, 684 (2d Cir. 2009) (quoting Dennis v. Sparks, 449 U.S.

24, 28 (1980)).

7 As both the New York City Departments of Health and Corrections are New York City agencies, they are

non-suable entities and all claims against them are dismissed. See Johnson v. Dobry, 660 F. App’x 69, 72

(2d Cir. 2016) (citing N.Y. City Charter ch. 17, § 396 and Jenkins v. City of New York, 478 F.3d 76, 93 n.19

(2d Cir. 2007) (“�e district court correctly noted that the NYPD is a non-suable agency of the City.”)).

At best, the complaints in this case allege that the non-governmental defendants

— Wilson-Haynes, his father, his grandmother, and his attorney, Martin-Gibbons —

violated the plaintiffs’ constitutional rights by appearing and winning in New York family

court or on their own initiative. Neither theory is sufficient to show state action on their

part, and, accordingly, all claims brought under § 1983 are dismissed against these

defendants.

Claims Against the Individual Governmental Defendants

As the Court interprets her complaint, Ortiz alleges that she confronted Ritter and

Montgomery, employees of the New York City Department of Health, with a copy of her

son’s allegedly fraudulent birth certificate. �ey asked Ortiz if J.O. was adopted and

allegedly said that Ortiz was not J.O.’s mother. �ey then were allegedly rude to her and

refused to provide any help to her in further investigating the birth certificate.

�ese allegations do not come close to stating a claim for relief. It is true that

parents “have a constitutionally protected liberty interest in the care, custody and

management of their children,” under the Fourteenth Amendment. Tenenbaum v.

Williams, 193 F.3d 581, 593 (2d Cir. 1999).8 “As a general rule, therefore, 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

8 �e plaintiffs additionally allege violations of their rights under several other amendments to the

Constitution, but none can support a valid claim. �e First Amendment claims must be dismissed because

allegations concerning the “right to intimate association vis-à-vis parent–child relationship [are analyzed]

under the principles of substantive due process rather than the First Amendment.” Licorish-Davis v.

Mitchell, No. 12 Civ. 601 (ER), 2013 WL 2217491, at *6 (S.D.N.Y. May 20, 2013). As no federal entity is

implicated in the plaintiffs’ complaints, neither the Fifth nor the Seventh Amendments support a claim. See

Phillips v. City of New York, 453 F. Supp. 2d 690, 721 (S.D.N.Y. 2006). Fourth Amendment claims

alleging improper removal from a parent’s care may only be brought by a child. Southerland v. City of New

York, 680 F.3d 127, 143 (2d Cir. 2011) (“A Fourth Amendment child-seizure claim belongs only to the

child, not to the parent.”), reh’g en banc denied, 681 F.3d 122, cert. denied, 568 U.S. 1150 (2013). Given

that J.O. has been dismissed as a plaintiff, all related Fourth Amendment claims are dismissed, as well. �e

Sixth Amendment, by its terms, is only implicated in criminal matters, not civil matters like this one. See

U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial . . . .”) (emphasis added). �e Eleventh Amendment applies only to states, not municipalities

like the City of New York, and so does not support a claim here. See Mt. Healthy City Board of Education

v. Doyle, 429 U.S. 274, 280 (1977).

removal—must be accorded to them.” Id. Furthermore, families “have, in general terms,

a substantive right under the Due Process Clause to remain together without the coercive

interference of the awesome power of the state.” Id. at 600 (internal quotation marks and

citation removed).

Even assuming for the sake of argument that an improper change to a child’s birth

certificate could implicate rights guaranteed under the Fourteenth Amendment, nothing

Ritter and Montgomery are alleged to have done implicate those interests. �ey are not

alleged to have wrongfully changed the birth certificate at all; rather, they declined to

help Ortiz fully investigate what had happened. And, even if the complaint could be

construed to implicate Ritter and Montgomery in the changing of the birth certificate,

Ortiz does not allege how the changed birth certificate impacted her ability to raise, care

for, or be with J.O.; Ortiz’s complaint squarely lays the blame for her loss of J.O. at the

feet of Wilson-Haynes and Judge Mulroy. Accordingly, the claims against Ritter and

Montgomery are dismissed for failure to state a claim.9

Claims Against the City of New York

�e Court now turns to Ortiz’s claims of violations of her Fourth and Eighth or

Fourteenth Amendment rights while held at a facility on Rikers Island.10 Although the

Court concludes that Oritz fails to state a claim related to these allegations, it will give

her an opportunity to amend her complaint as to these claims.

�e City of New York may not be held liable for the actions of its employees

solely because it employed them. See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691

9 Furthermore, the plaintiffs in both cases fail to plead a case that either defendant should be liable due to a

conspiracy to deprive the plaintiffs of any right. �e complaints do not allege any factual basis for an

agreement among the co-defendants or specifics regarding the contours of any conspiracy. See Dwares v.

City of New York, 985 F.2d 94, 100 (2d Cir. 1993) (“[C]omplaints containing only conclusory, vague or

general allegations that defendants have engaged in a conspiracy to deprive Plaintiff of constitutional rights

are properly dismissed.”).

10 For the reasons described above, there is no underlying constitutional deprivation related to the actions of

Ritter or Montgomery — preventing liability from lying with the City, see Hardy v. City of New York, 732

F. Supp. 2d 112, 145 (E.D.N.Y. 2010), nor is there any proper claim of conspiracy to deprive either set of

plaintiffs of their rights.

(1978). Rather, “[i]n order to establish municipal liability, a plaintiff must show that the

violation of his constitutional rights resulted from a municipal custom or policy.”

DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (internal quotation omitted). Although a

plaintiff may use circumstantial proof of such a custom, “a single incident alleged in a

complaint, especially if it involved only actors below the policy-making level, does not

suffice to show a municipal policy.” Id. (internal quotation omitted).

First, any claims alleged under the Fourth Amendment based on Ortiz’s strip-

search must be dismissed. �e Supreme Court has held that jails may require all inmates

entering a correctional institution to undergo a strip search requiring them to expose their

body and lift parts of their anatomy during the search — irrespective of the severity of

their alleged offense. See Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 339

(2012). Furthermore, the presence of others during the search creates no independent

constitutional violation. See, e.g., Vaughn v. Strickland, No. 12 Civ. 2696 (JPO), 2013

WL 3481413, at *5 (S.D.N.Y. July 11, 2013) (collecting cases and observing “that strip

searches of prisoners in the presence of other inmates and staff is not constitutionally

defective, especially in light of legitimate security concerns” (internal quotation

omitted)). �is is exactly the procedure Ortiz alleges she underwent. Accordingly, her

claims on this point are dismissed.

Second, Ortiz’s claims arising from her first period in custody — where she

alleged she was injured by an uncomfortable bench that strained her leg — must also be

dismissed. It is unclear whether Ortiz was held in civil or criminal contempt, and

therefore whether she was protected by the Eighth Amendment’s bar against cruel and

unusual punishment or the Fourteenth Amendment’s guarantee to due process. See, e.g.,

Qader v. New York, 396 F. Supp. 2d 466, 470 (S.D.N.Y. 2005) (analyzing conditions of

confinement claim for criminal contemptor under Eighth Amendment); Fusco v. Cty. of

Putnam, New York, No. 15 Civ. 8132 (NSR), 2018 WL 1889070, at *5 n.3 (S.D.N.Y. Apr.

18, 2018) (analyzing conditions of confinement of civil contemptor under Fourteenth

Amendment). In either case, there is both an “objective” and a “subjective” prong to the

analysis of whether an inmate’s conditions of confinement are unconstitutional. See

Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).

�e objective prong asks whether the conditions of which the inmates complain,

“either alone or in combination, pose an unreasonable risk of serious damage to [their]

health, which includes the risk of serious damage to physical and mental

soundness.” Darnell, 849 F.3d at 30 (quotation and internal citation omitted). �is prong

is identically analyzed under the Eighth and Fourteenth Amendments. See id. �e

subjective prong, however, differs slightly between the two Amendments. Under the

Eighth Amendment, the inmates must show that “the official knows of and disregards an

excessive risk to inmate health or safety; the official must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Id. at 32 (quoting Farmer v. Brennan, 511 U.S. 825, 837

(1994)). �e Fourteenth Amendment requires a less stringent showing — only that the

official “knew, or should have known, that the condition posed an excessive risk to health

or safety.” Id. at 35 (emphasis added).

Even under the looser standard of the Fourteenth Amendment, Ortiz fails to state a

claim for unconstitutional conditions of confinement. Under the objective prong of this

analysis, Ortiz fails to allege that the strain to her leg, even though it allegedly caused her

to walk in crutches for a time, violated “contemporary standards of decency.” Blissett v.

Coughlin, 66 F.3d 531, 537 (2d Cir. 1995). Indeed, Ortiz does not allege how the bench

— through its construction, for example, or how she was secured to it — harmed her leg

at all. Furthermore, she does not allege that any correction officer, much less the City

itself, knew or should have known of the danger the bench posed to her. Darnell, 849

F.3d at 35. Although she alleges that she “kept informing [correction officers] about the

disabled bench,” she does not allege that she told them of the risk to her health that the

bench posed, assuming it posed one at all.

Furthermore, even if Ortiz had properly alleged a constitutional violation by the

correction officers, she has failed to allege a violation by the City, the defendant here.

She has not alleged that the danger of the bench was the result of any policy or practice of

the City. Absent any such allegation, this claim against the City must be dismissed.

Third, Ortiz fails to allege that the tightness of her handcuffs in September rises to

the level of excessive force. Under both the Eighth and Fourteenth Amendment, a

plaintiff must show that the force used against her by a correction officer was “objectively

unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 397, 2473 (2015).11 “�ere is a

consensus among courts in [the Second Circuit] that tight handcuffing does not constitute

excessive force unless it causes some injury beyond temporary discomfort.” Lynch ex

rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 468 (S.D.N.Y. 2008) (collecting

cases); see also Campbell v. Hanson, No. 17 Civ. 1024 (ALC), 2019 WL 2717691, at *4

(S.D.N.Y. June 28, 2019) (stating that “an alleged injury more severe than temporary

bruising or discomfort” is needed to constitute excessive force).

In this case, Ortiz does not allege that she suffered any injury beyond her “arm

turning blue and feeling dizzy.” She does not allege for how long she was handcuffed or

that she suffered lasting damage from the handcuffs after they were removed. Without

more detail of the severity of her injuries, her excessive force claim cannot survive. Cf.

Simpson v. Saroff, 741 F. Supp. 1073, 1078 (S.D.N.Y. 1990) (finding allegations of

“swollen and bleeding wrists from the tight handcuffs, as well as a faintly detectable scar

on her left wrist” sufficient to support a claim of excessive force).

Additionally, as with her other claims, her failure to allege any policy or practice

on the part of the City is fatal to this claim, even if she had properly alleged an

underlying constitutional deprivation. Although, she does cite in her opposition papers to

11 �e Eighth Amendment contains a subjective prong to this analysis, as well. See Wright v. Goord, 554

F.3d 255, 268 (2d Cir. 2009). Because the Court finds that Ortiz fails to meet the objective prong, however,

it need not address whether she has met the subjective prong in the event that her claims are properly

governed by the Eighth Amendment, rather than the Fourteenth.

a number of lawsuits filed against the City and news reports detailing claims of excessive

force, they are insufficient to properly allege a policy or practice that caused her injuries

as “none resulted in an adjudication of liability.” Walker v. City of New York, No. 14 Civ.

808 (ER), 2015 WL 4254026, at *9 (S.D.N.Y. July 14, 2015).

For these reasons, Ortiz’s claims against the City related to her detention at Rikers

Island are dismissed.12 �e Court does not, however, dismiss them with prejudice.

“Where a district court cannot rule out any possibility, however unlikely it might be, that

an amended complaint would succeed in stating a claim, a pro se complaint should not be

dismissed without granting leave to amend at least once.” Elder v. McCarthy, 967 F.3d

113 (2d Cir. 2020). �e Court will give Ortiz one more opportunity to flesh out her

claims of being injured by a bench in August 2017 and of being improperly strip-searched

and injured by handcuffs in September 2017 in light of the deficiencies noted in this

Opinion.

C. State Claims

The �omas Complaint

With all of the federal claims in the Thomas complaint being dismissed, the

“traditional ‘values of judicial economy, convenience, fairness, and comity’” weigh in

favor of declining supplemental jurisdiction over the state law claims. Kolari v. N.Y.-

Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 350 (1988)). Further, the Court is unable to exercise its diversity

jurisdiction over these claims because there is at least one citizen of New York on both

sides of the case — the plaintiffs on one side and all defendants except for Wilson-

Haynes and Haynes on the other. See, e.g., St. Paul Fire & Marine Ins. Co. v. Universal

12 Additionally, the Court dismisses Ortiz’s claims related to being verbally harassed on the bus to Rikers

Island. See Williams v. Dubray, 557 F. App’x 84, 86 (2d Cir. 2014) (summary order) (“[V]erbal

harassment, without more, is not actionable under § 1983.”) (citing Purcell v. Coughlin, 790 F.2d 263, 265

(2d Cir. 1986)).

Builders Supply, 409 F.3d 73, 80 (2d Cir. 2005) (citing Strawbridge v. Curtiss, 7 U.S. 267

(1806)).

The Ortiz Complaint

Although Ortiz, being a citizen of New Jersey, is able to invoke the Court’s

diversity jurisdiction against the defendants — citizens of New York and California —

any remaining state law claims must still be dismissed.

First, Ortiz’s claims of defamation and fraud against Martin-Gibbons must be

dismissed under the principle of res judicata. Under the doctrine of res judicata, or claim

preclusion, “a final judgment on the merits of an action precludes the parties or their

privies from relitigating issues that were or could have been raised in that action.” Allen

v. McCurry, 449 U.S. 90, 94 (1980). A defendant asserting res judicata must show that

(1) the previous action involved an adjudication on the merits;

(2) the previous action involved [the same adverse parties] or

those in privity with them; and

(3) the claims asserted in the subsequent action were, or could

have been, raised in the prior action.

Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102, 108 (2d Cir.

2015) (internal quotation marks and citation omitted). “A court may consider a res

judicata defense on a Rule 12(b)(6) motion to dismiss when the court’s inquiry is limited

to the plaintiff’s complaint, documents attached or incorporated therein, and materials

appropriate for judicial notice.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 498

(2d Cir. 2014).

�e November 2018 order by Justice Jaffe dismissing Ortiz’s state court

complaint against Martin-Gibbons, which alleged defamation and fraud through the filing

of the September 2017 birth certificate that did not list Ortiz as J.O.’s mother, precludes

Ortiz from bringing those same claims here. In that matter, Justice Jaffe’s order was on

the merits, finding that “[Ortiz] has no valid claim against [Martin-Gibbons].” Shepps

Aff. ex. D at 2. �e case indisputably involved both Ortiz and Martin-Gibbons. And the

claims raised in Ortiz’s state court complaint are virtually identical to those raised in her

complaint before this Court. All state law claims against Martin-Gibbons are dismissed.

Second, a review of her complaint and briefing indicates that Ortiz makes no state

law claims against any other defendant aside from those related to the custody of J.O.

dismissed in Part IV above. To the extent she does make any state law claims, they are

alleged in a conclusory fashion and must be dismissed. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

VI. CONCLUSION

�e Thomas complaint, 19 Civ. 7695, is dismissed in its entirety. �e Thomas

plaintiffs’ state law claims are dismissed without prejudice subject to refiling in state

court. All claims asserted on J.O.’s behalf are dismissed without prejudice to them being

brought again if and when he is represented by counsel. All federal claims are dismissed

with prejudice.

�e Ortiz complaint, 19 Civ. 7887, is similarly dismissed in its entirety. �e

Court’s dismissal of Ortiz’s claims regarding the custody of J.O. is without prejudice

because the Court has dismissed those claims for lack of jurisdiction. See, e.g., Charles

v. Levitt, 716 F. App’x 18, 22 (2d Cir. 2017). Her federal claims against all defendants

except for the City of New York are dismissed with prejudice. Her federal claims against

the City of New York for conduct occurring while detained at and being transported to

Rikers Island are dismissed without prejudice. All other claims against the City are

dismissed with prejudice. Finally, all state law claims are dismissed with prejudice.

In summary, all defendants’ motions to dismiss are GRANTED in their entirety.13

�e Thomas plaintiffs may not file an amended complaint on these facts in this Court.

13 Even though neither Montgomery, Wilson, nor Haynes have moved for dismissal in either case, the Court

finds that dismissing the claims against them sua sponte is appropriate. �e Court may always dismiss

claims sua sponte for lack of subject matter jurisdiction, and it may dismiss actions for failure to state a

claim when “the claim clearly is frivolous in law and fact and [the] plaintiff has been given an opportunity

to be heard.” Klyumel v. United Nations, No. 92 Civ. 4231 (PKL), 1993 WL 42708, at *2 n.1 (S.D.N.Y.

Ortiz may file a second amended complaint, but only regarding her claims against the

City or other defendants for events related to her detention at Rikers. Should Ortiz wish

to pursue those claims — and only those claims — she 1s directed to file a second

amended complaint by October 1, 2020. The City is directed to answer or otherwise

respond to any such complaint within 21 days of service. The Clerk of Court is

respectfully directed to termination the motions: Docs. 73, 74, 75, 76, and 82 in 19 Civ.

7695 and Docs. 74, 75, 76, 77, 82, and 101!* in 19 Civ. 7887. The Clerk is further

directed to close 19 Civ. 7695 and terminate all defendants in 19 Civ. 7887 except for the

City of New York. The Clerk is further directed to note on the docket service of this

Opinion and Order on the plaintiffs and Wilson-Haynes via mail sent by Chambers.

It is SO ORDERED.

Dated: August 25, 2020 vt a

New York, New York FE “ Yo

EDGARDO RAMOS, U.S.D.J.

Feb. 17, 1993) (citing Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir. 1988) and Hughes v. Patrolmen’s Benev.

Ass’n of City of New York, Inc., 850 F.2d 876 (2d Cir. 1988)). As the claims against Wilson and Haynes are

dismissed for identically the same reasons as those against Wilson-Haynes, the Court finds the plaintiffs

have had sufficient opportunities to be heard on these points. The same holds true for Ortiz’s claim against

Montgomery given the arguments raised by Ritter.

'4 The Court declines to exercise jurisdiction over Ortiz’s petition for an injunction that interferes with

ongoing custody proceedings before the New Jersey courts and so grants the Children Law Center’s motion

to dismiss that petition. See Younger v. Harris, 401 U.S. 37 (1971).

23