Opinion

McCoy v. Administration for Children Services

Court: District Court, E.D. New York
Filed: Sep 30, 2024
Cited by: 0 cases
Authority: More cited than 31.6%

“[S]tatutes of limitation are not to be disregarded by courts out of a vague sympathy for particular litigants.”

How later courts described this case

“[S]tatutes of limitation are not to be disregarded by courts out of a vague sympathy for particular litigants.”
“[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 . . . .”
“If a defendant has caused . . . monetary injury to the plaintiff, the plaintiff has suffered a concrete injury in fact under Article III.”
“OCFS would be forced to rectify past federal constitutional violations, a result prohibited by the Eleventh Amendment.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

ALISA MCCOY, PATRICK MCCOY, and

JAMES MCCOY, MEMORANDUM & ORDER

23-CV-03019 (HG) (SJB)

Plaintiffs,

ADMINISTRATION FOR CHILDREN’S

SERVICES et al.,

Defendants.

HECTOR GONZALEZ, United States District Judge:

In this action, which primarily concerns alleged constitutional violations under 42 U.S.C.

§ 1983, Magistrate Judge Bulsara has issued a report and recommendation (“R&R”)

recommending that certain of Plaintiffs’ claims be dismissed and others be permitted to proceed

to discovery. All appearing Plaintiffs and Defendants have filed objections. For the reasons

explained herein, the well-reasoned R&R, which thoroughly considers the many claims

presented by pro se Plaintiffs, is adopted with three modifications.

BACKGROUND

The Court assumes familiarity with the case’s factual background. See R&R at 2–6.1 As

relevant here, this case arises from the New York City Administration for Children’s Services’

(“ACS”) investigation and subsequent removals of twin brothers Plaintiffs Patrick and James

McCoy, then minors, from the custody of their mother, Plaintiff Alisa McCoy, in 2017.2 The

three Plaintiffs, all proceeding pro se, initiated this action on April 21, 2023. ECF No. 1. After

Defendants filed pre-motion conference letters in anticipation of motions to dismiss, the Court

1 The Court refers to the pages assigned by the Electronic Case Files system (“ECF”).

2 For ease of reference, the Court refers to Plaintiffs by their first names.

granted Plaintiffs’ request to amend, and an extension of time to do so. See ECF Nos. 23, 27.

Plaintiffs filed the amended complaint (“AC”) on August 23, 2023. ECF No. 28. The “State

Defendants” are the Office of Children and Family Services (“OCFS”), the New York State

Central Registry for Abuse and Neglect of Children (“SCR”), and Cassandra Kelleher-

Donnaruma. R&R at 1. The “City Defendants” are the City of New York, New York City

Policy Department (“NYPD”), New York City Department of Education (“DOE”), ACS, Sueann

Simmons, Victoria Palumbo, and David Hansell. Id. The AC also names as a defendant Alisa’s

former Family Court-appointed lawyer Scott Schwartz. Id. “John Doe” Defendants are

unknown NYPD officers and other “John Doe” and “Jane Doe” Defendants are unknown City or

State employees. AC ¶¶ 16, 18. The State Defendants, City Defendants, and Schwartz all

moved to dismiss. R&R at 2. This Court referred all Defendants’ motions to Judge Bulsara for

an R&R. See Feb. 21, 2024, Text Order; May 20, 2024, Text Order. On August 9, 2024, Judge

Bulsara issued the R&R. The City and State Defendants sought an extension of time to file

objections to the R&R, which the Court partially granted as to all parties. ECF No. 64; Aug. 16,

2024, Text Order. On September 6, 2024, Kelleher-Donnaruma filed her objections to the R&R,

ECF No. 65, and the City Defendants filed their own objections on the same day, ECF No. 66.

On September 7, 2024, Plaintiffs filed their objections, ECF No. 67.3 Schwartz filed a response

to Plaintiffs’ objections to the R&R on September 20, 2024. ECF No. 70. The City Defendants

did the same on September 21, 2024. ECF No. 71.

3 Although the Court reminded the parties to comply with its Individual Practices, see Aug.

16, 2024, Text Order, Plaintiffs filed a sprawling 177 pages of objections with exhibits.

Although the Court is not required to excuse Plaintiffs’ clear noncompliance with its rules, it

does so here in deference to their pro se status and in order to allow them to thoroughly present

their arguments.

LEGAL STANDARD

The Court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).4 For dispositive

matters, the Court must “determine de novo any part of the magistrate judge’s disposition that

has been properly objected to.” Fed. R. Civ. P. 72(b)(3). For those portions of the R&R to

which no proper objection is made, the Court need only satisfy itself that there is no “clear error

on the face of the record.” Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 n.4 (2d Cir. 2022).

When a party has not properly made objections, for instance, by making “objections that are

merely perfunctory responses argued in an attempt to engage th[is Court] in a rehashing of the

same arguments set forth in the original papers, it will not suffice to invoke de novo review.”

Owusu v. N.Y. State Ins., 655 F. Supp. 2d 308, 313 (S.D.N.Y. 2009). Accordingly, when

considering objections that “merely re-assert arguments already submitted to the Magistrate

Judge, this Court need only review the [R&R] for clear error.” Id.

DISCUSSION

For the sake of clarity, the Court’s analysis proceeds in the same general order as Judge

Bulsara did in his R&R. The Court addresses those portions of the R&R even arguably objected

to or that otherwise inform this Court’s analysis. Because the Court has found no clear error in

the remainder of the R&R, any portion not discussed below is fully adopted.

4 This framework for reviewing the R&R is adapted from Stapleton v. DOE, No. 22-cv-

9351, 2024 WL 4182602, at *1 (S.D.N.Y. Sept. 13, 2024). Unless otherwise indicated, when

quoting cases, all internal quotation marks, alteration marks, emphases, footnotes, and citations

are omitted.

I. State Defendants

A. OCFS and SCR

Judge Bulsara recommends the dismissal of all Plaintiffs’ claims against Defendants

OCFS and SCR on sovereign immunity grounds. R&R at 8–9, 18. In their objections, Plaintiffs

claim that “State Defendants do not have [sovereign] immunity” under the Eleventh Amendment

on the basis that the New York State Social Services Law was “unconstitutional.” See ECF

No. 67 ¶¶ 79–90; see also id. ¶¶ 204–05 (“How can you be immune from something when it[’]s

unconstitutional ?” (emphasis in original)). That is the same argument previously presented to

Judge Bulsara. See ECF No. 35 ¶¶ 102–17. Plaintiffs’ rehashed argument triggers only clear-

error review, but even had the Court applied de novo review, it agrees with Judge Bulsara that

binding precedent precludes Plaintiffs’ claims against state agencies like OCFS and the SCR, as

immunity attaches to their status, not their alleged conduct. See R&R at 8–9. The Court

therefore adopts Judge Bulsara’s recommendation and dismisses these claims. As Judge Bulsara

correctly observed, the sovereign immunity bar deprives the Court of subject-matter jurisdiction

over these claims, requiring their dismissal without prejudice. Id. at 9.

B. Kelleher-Donnaruma

Judge Bulsara recommends that official-capacity claims against Kelleher-Donnaruma, a

former state agent, be dismissed on sovereign immunity grounds for the reasons just described.

Id. Plaintiffs raise no specific objection to Judge Bulsara’s sovereign immunity analysis as

applied to Kelleher-Donnaruma, and whether on clear-error or de novo review, the Court must

dismiss the official-capacity claims against her without prejudice.

However, Judge Bulsara recommends that an individual-capacity claim by Alisa against

Kelleher-Donnaruma be allowed to proceed. Id. at 9–12. As he explained, Alisa alleges that on

November 18, 2021, Kelleher-Donnaruma sent her attorney a letter responding to a request

which sought to have SCR records concerning Alisa expunged. Id. at 10; see also ECF No. 28 at

88–91 (Nov. 18, 2021, Ltr.). After Alisa made a request for an administrative appeal of

indicated reports5 on the SCR, Alisa received a hearing on December 18, 2018. R&R at 10.

That hearing led to the initial determination that the indicated reports were “supported by a fair

preponderance of the evidence” and were to remain indicated, and a decision was later rendered

on May 29, 2019. Id. “The [AC] makes no allegations that Kelleher-Donnaruma was involved

in that hearing or the subsequent decision related to it,” but rather, just that Kelleher-Donnaruma

“denie[d] Alisa’s request for her SCR records to be expunged.” Id. Specifically, Kelleher-

Donnaruma wrote that “I regret to inform you that in accordance with [Social Services Law]

§ 442, your client’s request for expungement nunc pro tunc cannot be granted at this time.” Id.

(citing ECF No. 28 at 88). Because Alisa alleged that she lost employment opportunities—

specifically, a potential job at the district’s attorney’s office—“because of her name’s presence

on the SCR,” Judge Bulsara construed Alisa’s claim as a “stigma-plus” claim under the

Fourteenth Amendment, which “refers to a claim brought for injury to one’s reputation (the

stigma) coupled with the deprivation of some ‘tangible interest’ or property right (the plus),

without adequate process.” Id. at 11 (quoting DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir.

5 For ACS investigations commenced before December 31, 2021, “a report alleging child

abuse or maltreatment is ‘indicated’ if [New York State Child Protective Services (“CPS”)]

determines after an investigation that ‘some credible evidence of the alleged abuse or

maltreatment exists.’” McCaul v. Ardsley Union Free Sch. Dist., 514 F. App’x 1, 4 (2d Cir.

2013) (quoting earlier version of N.Y. Soc. Serv. Law § 412(7)). For investigations started after

that date, CPS must find the allegations supported by a “fair preponderance of the evidence” to

indicate a report. N.Y. Soc. Serv. Law § 412(7)).

2003)). Finding Alisa’s allegations adequate, Judge Bulsara recommends that that claim

proceed. Id. at 11–12.6

Kelleher-Donnaruma raises four objections: (1) Alisa “did not sustain any independent

injury from the . . . [l]etter” she sent; (2) that letter “is not an independent denial of Plaintiff’s

request” to amend the SCR; (3) Alisa was “not subject to a tangible burden on her employment

prospects” due to the letter or Keller-Donnaruma; and (4) Plaintiff’s claims “stem[] directly from

OCFS’ actions and decision making, not Kelleher-Donnaruma’s,” and so sovereign immunity

attaches. ECF No. 65 at 7. Because the first and last arguments implicate subject-matter

jurisdiction, the Court begins with these gating issues.

As to the first argument, Kelleher-Donnaruma says that Alisa lacks “standing to bring her

claim” because the letter was “not an independent denial of Plaintiff’s request” concerning the

SCR records and is “not traceable to any injury.” ECF No. 65 at 14. That is the same argument

6 Judge Bulsara concluded that Alisa could not sue Kelleher-Donnaruma in her official

capacity under Ex parte Young, 209 U.S. 123 (1908), which permits a plaintiff to seek injunctive

relief against a state official on the basis that “prospective injunctive relief” against Kelleher-

Donnaruma is “impossible” as she is a former state official. R&R at 9 n.2. Alisa does not object

to that specific analysis, and as Judge Bulsara made clear, the sovereign immunity bar does not

affect Alisa’s ability at this juncture to maintain suit against Kelleher-Donnaruma in her personal

capacity. Further, Alisa states that she “is asking for injunctive relief by this [C]ourt to Order the

State Defendants OCFS/SCR to remove her name off the SCR.” ECF No. 67 ¶¶ 85–86.

Notwithstanding that the Court also cannot issue injunctive relief against those Defendants, Alisa

has a more basic problem under Ex parte Young, which is that it requires “an ongoing violation

of federal law.” See Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645–46

(2002). Here, though, Alisa has just alleged a “single act that continues to have negative

consequences for [her].” Brown v. New York, 975 F. Supp. 2d 209, 223 (N.D.N.Y. 2013). Ex

parte Young does not permit forward-looking relief based on “federal law ha[ving] been violated

at one time or another . . . in the past.” Id.; see Van Oss v. New York, 783 F. Supp. 2d 681, 693

(S.D.N.Y. 2011) (“OCFS would be forced to rectify past federal constitutional violations, a result

prohibited by the Eleventh Amendment.”); cf. Finch v. OCFS, 499 F. Supp. 2d 521, 533, 538

(S.D.N.Y. 2007) (allowing injunctive relief claim to proceed where the plaintiffs alleged

“inordinate delays in the scheduling of administrative hearings” to clear their names from the

SCR, which impinged upon their interest in “pursu[ing] one’s employment of choice and . . .

foster care licensure”). Accordingly, Judge Bulsara’s sovereign immunity analysis stands as is.

she previously presented, albeit explicitly in terms of Article III standing, to Judge Bulsara. ECF

No. 58 at 3 (Kelleher-Donnaruma’s Motion to Dismiss). But in the R&R, Judge Bulsara rejected

that challenge, writing that “the November 2021 Letter constituted an independent denial of

Alisa’s request to expunge her SCR records, and thus, that denial caused her an independent

injury that was traceable to Kelleher-Donnaruma.” R&R at 11–12. Although not required, the

Court applies de novo review and agrees with Judge Bulsara that the denial of the expungement

request caused Plaintiff an injury in the form of a lost employment opportunity. That is

sufficient for Article III purposes. See TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021)

(“If a defendant has caused . . . monetary injury to the plaintiff, the plaintiff has suffered a

concrete injury in fact under Article III.”).

On the other hand, the Court agrees with Judge Bulsara that Patrick’s and James’s

monetary claims against Kelleher-Donnaruma must be dismissed for lack of Article III injury, as

“[a]ny injury suffered from [Kelleher-Donnaruma’s] decision on the SCR placement was

suffered by Alisa, not Patrick or James, whose names were not on the registry.” R&R at 19. No

Plaintiff objects to this recommendation. Thus, finding no clear error, the Court’s dismisses

without prejudice Patrick’s and James’s monetary claims against Kelleher-Donnaruma for lack

of subject-matter jurisdiction.

Similarly, Kelleher-Donnaruma claims that the letter sent to Alisa’s lawyer “simply

restate[d] OCFS’s 2019 decision to uphold the indicated SCR reports” and did not constitute

“any independent action or inaction specific to Kelleher-Donnaruma.” ECF No. 65 at 24. As

such, according to Defendant, the real party in interest is the state agency, which enjoys

sovereign immunity. Id. Judge Bulsara rejected the exact argument Kelleher-Donnaruma now

advances, see ECF No. 58 at 2, concluding the monetary claim against Kelleher-Donnaruma in

her individual capacity could proceed, R&R at 9–10. To be clear, the Court is sympathetic to the

potential fairness concerns implicated by subjecting Kelleher-Donnaruma to suit for performing

what appears to have been a largely ministerial act. However, even applying de novo review, the

Court finds that Judge Bulsara correctly applied binding Second Circuit precedent, which makes

clear that “[w]here a complaint specifically seeks damages from defendants in their individual

capacities,” as here, “the mere fact that the state may reimburse them does not make the state the

real party in interest.” State Emps. Bargaining Agent Coal. v. Rowland, 718 F.3d 126, 137 (2d

Cir. 2013); see also Clark v. Schroeder, 847 F. App’x 92, 94 (2d Cir. 2021) (“[T]he Eleventh

Amendment does not shield defendants sued for money damages in their individual capacities.”).

Thus, sovereign immunity does not bar Alisa’s money damages claim.

On the merits, Kelleher-Donnaruma’s remaining arguments are persuasive. Specifically,

she claims that Plaintiff has failed to plausibly allege the “plus” part of a stigma-plus claim. ECF

No. 65 at 15–16. In particular, she notes that Kelleher-Donnaruma’s letter acknowledged the

difficulty in finding employment at the district attorney’s office, meaning that the letter itself

could not have caused that alleged injury. Id. More generally, Kelleher-Donnaruma says that

Alisa “provided no indication of an interest or attempt to work in an industry that requires SCR

searches for hiring.” Id. at 23. These arguments, and others presented by Kelleher-Donnaruma

on the merits, are weighty, but they are procedurally improper. As Judge Bulsara correctly

observed, Kelleher-Donnaruma asserted before him just that Alisa failed to state a claim but

“d[id] not make any arguments disputing the merits of Alisa’s stigma-plus claim.” R&R at 11.

And it is well established that “new arguments and factual assertions cannot properly be raised

for the first time in objections to the report and recommendation, and indeed may not be deemed

objections at all.” Piligian v. Icahn Sch. of Med., 490 F. Supp. 3d 707, 716 (S.D.N.Y. 2020); see

also Kruger v. Virgin Atl. Airways, Ltd., 976 F. Supp. 2d 290, 305 (E.D.N.Y. 2013) (“[Parties]

cannot use their objections to add a claim that was not properly before the Magistrate Judge.

This type of ambush defeats the goals of the Magistrate Judge’s statute . . . .”). Kelleher-

Donnaruma’s arguments on the stigma-plus claim may very well succeed on summary judgment,

particularly after she has had the chance to take discovery from Alisa concerning her

employment, but the Court may not entertain them for the first time now.7

II. City Defendants

A. Alisa’s Claims

Judge Bulsara recommends the dismissal of all of Alisa’s claims against the City

Defendants as time-barred. R&R at 12. Applying the three-year statute of limitations for

Section 1983 actions, he concluded that Alisa’s Section 1983 claims based on the two removals

of Patrick and James in March and July 20178 are time-barred because this suit was not filed

7 In her objections, Kelleher-Donnaruma suggests that Judge Bulsara granted her

insufficient page limits for her letter motion joining OCFS’ and the SCR’s motion to dismiss,

stating that she “summarized” the argument that Alisa failed to state a claim in her letter motion.

ECF No. 65 at 10. The Court disagrees. The original motion to dismiss never addressed the

merits of a stigma-plus claim in any form. See ECF No. 32 at 28–32.

8 In her objection, Alisa states that no removal took place on July 7. ECF No. 67 ¶ 109.

Rather, it was a “[d]irect child placement,” which she says was “NOT a child removal.” Id.

Patrick and James later make the same argument. Id. ¶ 186. As Judge Bulsara noted, on that

date, Patrick and James were removed from Alisa’s custody and placed with their father pursuant

to a Family Court order. R&R at 4. Thus, Plaintiffs’ distinction is at most a semantic one, but it

also appears to be incorrect as a factual matter, as the Family Court explicitly issued “Removal

Order[s].” See ECF No. 39-3 at 4, 7; see also Fowler v. Robinson, No. 94-cv-836, 1996 WL

67994, at *11 (N.D.N.Y. Feb. 15, 1996) (“Read in context, the word ‘removal’ in [the Social

Services Law] refers to removals from parental custody, not to all ‘removals’ of children from

wherever they happen to be, to some other place . . . .”). If anything, adopting Plaintiffs’

argument that no removal occurred in July would potentially limit the scope of liability for

Defendants because it suggests less wrongful conduct took place than alleged on the face of the

AC. Judge Bulsara, correctly interpreting pro se Plaintiffs’ claims liberally, declined to narrow

the claims in that way. Nor will this Court. In the end, this point is immaterial because it has no

effect on the timeliness analysis, nor on the viability of any of the pleaded causes of action.

until April 21, 2023. Id. at 13. In addition, Judge Bulsara rejected Alisa’s argument that her

claims did not accrue until the Family Court vacated the prior orders against her in April 2021,

assuming that such vacatur could be used to state a malicious prosecution claim so as to invoke

Heck v. Humphrey’s, 512 U.S. 477, 489–90 (1994), exception to the standard accrual rule. R&R

at 14. He concluded that any malicious prosecution claim would fail because there was probable

cause underlying the removal orders. Id. at 14–17.

Alisa objects and argues that she can take advantage of Heck because “there was never

any probable cause to the fabricated neglect allegations.” ECF No. 67 ¶ 91. Over many pages,

Alisa provides a detailed chronology of events. See id. ¶¶ 91–155.9 However, she fails to

meaningfully engage with Judge Bulsara’s probable cause analysis and instead seeks to relitigate

wholesale the State’s and City’s practices and the merits of her state court proceedings.10 Her

primary argument is that Simmons fabricated evidence to obtain the removal orders, id. ¶ 93, the

exact claim she previously presented to Judge Bulsara, e.g., ECF No. 43 ¶ 54 (Plaintiffs’

Opposition to Motions to Dismiss). Fully appreciating Alisa’s argument, Judge Bulsara

concluded that “there was nevertheless probable cause, independent of those allegedly false

statements” because of the presence of other allegations of child neglect not alleged to have been

fabricated and, indeed, supported by the AC. See R&R at 15–16. Specifically, those other

allegations are a tip from the brothers’ school concerning Alisa’s “delusional” behavior and an

anonymous tip that Alisa had been psychiatrically hospitalized in Washington, D.C., just one

9 Some paragraphs in this range are out of order. The Court refers to the full range.

10 See, e.g., ECF No. 67 ¶ 96 (complaining of allegedly deficient service of process in

March 2017); id. ¶¶ 120–21 (arguing that because ACS instructed the children’s father to stop

making child support payments in July 2017, Plaintiffs went into foreclosure); id. ¶¶ 139–41

(contesting family court jurisdiction and the sufficiency of ACS’ productions in Family Court).

week before Simmons visited the McCoy home. Id.11 Against this backdrop, Judge Bulsara

correctly applied binding Second Circuit precedent holding that where there is an independent

source of probable cause, the presence of alleged fabricated evidence will not vitiate it. Id. at 16

(citing Frost v. NYPD, 980 F.3d 231, 242 (2d Cir. 2020)). Alisa’s assertions to the contrary,

albeit forceful, do nothing to sway the Court. Even if the Court were to apply de novo review,

for the reasons explained above, it would agree with Judge Bulsara’s conclusion that because

Alisa cannot state a malicious prosecution claim, she also cannot invoke Heck, the sole basis to

revive her otherwise untimely claims against the City Defendants. Accordingly, Alisa’s claims

against them are dismissed with prejudice.

B. Patrick’s and James’s Claims

i. Proper Defendants

Judge Bulsara recommends the dismissal of ACS and the NYPD on the basis that they

are non-suable entities. Id. at 20. Plaintiffs do not object, and finding no clear error, the Court

agrees. These claims are dismissed with prejudice.12 Judge Bulsara also recommends the

dismissal of Patrick’s and James’s claims against Hansell, the former ACS commissioner, on the

basis that they have failed to allege Hansell’s personal involvement in their cases, as required to

11 Alisa repeatedly emphasizes that she was hospitalized following a car accident. E.g.,

ECF No. 67-5 at 1. However, the Court agrees with Judge Bulsara that she never disputes the

allegations regarding her psychiatric treatment at the hospital, as described by Simmons in the

neglect petitions. See R&R at 16; AC ¶ 82; ECF No. 39-1 at 6.

12 This also applies to the DOE. See, e.g., Bonilla v. City of New York, No. 22-cv-7113,

2023 WL 8372859, at *3 n.4 (S.D.N.Y. Dec. 4, 2023). The Court need not dismiss the DOE on

this basis, though, because as discussed infra, the DOE will be dismissed because no claims

survive against it.

state a claim under Section 1983. R&R at 20–21.13 Plaintiffs do not object, and again finding no

clear error, the Court agrees here, too. The claims against him are dismissed with prejudice. As

to the remaining Defendants (the City, Simmons, Palumbo, and the DOE), Judge Bulsara

analyzed Patrick’s and James’s claims, construed them to raise the strongest arguments they

suggested, and placed them into four groups. The Court discusses each in turn.

ii. Unreasonable Searches and Seizures

Judge Bulsara analyzed Patrick’s and James’s claims based on their removals under the

framework of a Fourth Amendment search and seizure claim. Id. at 22. He recommends the

dismissal of the illegal search and seizure claim because, for the reasons already explained, the

two removals were supported by probable cause. Id. at 22–23. In their objections, Patrick and

James assert that there was no probable cause for any removal. E.g., ECF No. 67 ¶ 185. But as

with Alisa, their blunt assertions speak past Judge Bulsara’s careful probable cause analysis

described above. Applying de novo review, the Court agrees with Judge Bulsara, and Patrick’s

and James’s search and seizure claims based on their removals are dismissed with prejudice.

In their objections, Plaintiffs point to two sets of additional allegations that potentially

state Fourth Amendment claims against Simmons and the City. First, they say they alleged that

Simmons made regular visits at the brothers’ school to interview them as part of her

investigation, and that the DOE and school staff “facilitated” these interviews. ECF No. 67

¶ 188; AC ¶¶ 89–90, 229–32, 322–23. In their Opposition, they also suggest that Palumbo

participated in these interviews. ECF No. 43 ¶ 40. Second, they highlight that after the March

13 Similarly, there are just a few allegations related to Palumbo, another ACS caseworker,

but Palumbo did not move to dismiss based on lack of personal involvement in any allegedly

illegal conduct. Nevertheless, as discussed infra, no claims survive against her, so she is

ultimately also dismissed.

removal, they were subject to medical examinations at the hospital, which did not turn up

evidence of abuse or neglect. ECF No. 67 ¶ 190; AC ¶¶ 103, 116, 326–28. Judge Bulsara

grouped this conduct together with the removals. See R&R at 22 & n.8. And although the City

Defendants did not analyze Plaintiffs’ claims at this level of granularity in their motion to

dismiss, the Court is cognizant that in a pro se case, its “imagination should be limited only by

[Plaintiffs’] factual allegations, not by the legal claims set out in [their] pleadings,” especially at

this preliminary juncture. Phillips v. Girdich, 408 F.3d 124, 130 (2d Cir. 2005). Thus, because

these allegations may form the bases for standalone Fourth Amendment claims separate from the

removals, the Court now examines them separately. See Tenenbaum v. Williams, 193 F.3d 581,

601–06 (2d Cir. 1999) (examining child’s removal from school and subsequent medical

examination as distinct acts giving rise to liability under the Fourth Amendment).

As it relates to the in-school interviews by Simmons (and possibly Palumbo), the Court

must first determine if there was a seizure, and if so, evaluate whether that seizure was

reasonable under the Fourth Amendment. Phillips v. Cnty. of Orange, 894 F. Supp. 2d 345,

359–60 (S.D.N.Y. 2012). At the first step, “a seizure occurs where, ‘in view of all of the

circumstances surrounding the incident, a reasonable person would have believed that he was not

free to leave.’” Id. at 360 (quoting Kia P. v. McIntyre, 235 F.3d 749, 762 (2d Cir. 2000)). In this

context, many courts “have held or assumed that an in-school interview of a child to investigate

allegations of parental abuse can constitute a seizure.” Id. at 362–63. Here, taking the AC’s

well-pleaded allegations as true, as the Court must, the Court finds that Patrick and James have

adequately alleged that they were seized during the in-school interviews by Simmons. On these

facts, where the brothers allege that Simmons removed them from their classes approximately

seven times between February 20, 2017, and March 8, 2017, and with the facilitation of school

personnel and without parental consent, placed them into a private room for Simmons to conduct

the interviews, the Court has no trouble concluding that a reasonable thirteen-year-old “would

not have thought []he was free to leave or decline the adult[’]s questioning.” Id. at 363; AC

¶¶ 229–31; ECF No. 43 ¶¶ 39, 41, 47.14 Thus, Patrick and James have adequately alleged

seizures by Simmons, Palumbo, and the DOE.

At the second step of the Fourth Amendment analysis, the Court must determine whether

those seizures were reasonable. Phillips, 894 F. Supp. 2d at 363. As several district courts have

recognized, the Second Circuit has not definitively held whether the traditional probable cause

standard or “a lesser, reasonable person standard,” announced by the Supreme Court in New

Jersey v. T.L.O., 469 U.S. 325 (1985), applies in this setting. Estiverne v. Esernio-Jenssen, 833

F. Supp. 2d 356, 376 (E.D.N.Y. 2011); Phillips, 894 F. Supp. 2d at 364–65; see also Guan N. v.

DOE, No. 11-cv-4299, 2014 WL 1275487, at *21 (S.D.N.Y. Mar. 24, 2014).15 The Court

assumes arguendo that the more demanding probable cause standard applies. See Phillips, 894

F. Supp. 2d at 366. In applying that standard, the Second Circuit has drawn from the warrantless

arrest context. See Tenenbaum, 193 F.3d at 603 (“In general, probable cause to arrest exists

when the officers have knowledge or reasonably trustworthy information of facts and

14 To allow them to present their strongest case, the Court treats the additional facts

included in pro se Plaintiffs’ opposition to the motions to dismiss, as well as their objections to

the R&R, as if they were included in a formal second amended complaint. See Bledsoe v. Delta

Air Lines, No. 23-cv-03146, 2024 WL 1142321, at *1 n.2 (E.D.N.Y. Mar. 15, 2024).

15 “Under T.L.O., an in-school search is permissible if there are ‘reasonable grounds for

suspecting that the search will turn up evidence that the student has violated or is violating either

the law or the rules of the school,’ and if ‘the measures adopted are reasonably related to the

objectives of the search and not excessively intrusive in light of the age and sex of the student

and the nature of the infraction.’” Guan N., 2014 WL 1275487, at *21 (quoting T.L.O., 469 U.S.

at 341–42)). As Judge Nathan explained in Guan N., that test was really developed for the

school discipline context, and so “it is doubtful whether it extends to in-school seizures unrelated

to that interest.” Id.

circumstances that are sufficient to warrant a person of reasonable caution in the belief that the

person to be arrested has committed or is committing a crime.”). As applied here, if the

information possessed by Simmons (or Palumbo) “would have warranted a person of reasonable

caution” to believe that the brothers were “subject to the danger of [neglect]” if not interviewed

at school before court authorization could reasonably have been obtained, then Simmons had

probable cause to conduct the interviews. Id. at 604; see also Phillips, 894 F. Supp. 2d at 366

(asking if there was “probable cause . . . to suspect abuse at the time [the child] was

interviewed”).

On this point, the Court easily concludes that there was probable cause for Simmons (or

Palumbo) to conduct the in-school interviews for substantially the same reasons that Judge

Bulsara described in his probable cause analysis previously discussed. See R&R at 15–16.

Specifically, Plaintiffs allege that on February 20, 2017, Simmons informed Plaintiffs that “ACS

received an anonymous complaint alleging that Alisa had been hospitalized in Washington D.C.

the prior week.” AC ¶ 82. Furthermore, at the time Simmons took over the case, ACS had

already received the report about Alisa’s concerning behavior at the boys’ school. Id. ¶¶ 71, 81.

That is enough for Simmons to have believed that the boys were neglected when she conducted

the interviews. Cf. Schulkers v. Kammer, 955 F.3d 520, 538 (6th Cir. 2020) (finding

constitutional violation where the plaintiffs alleged the “[d]efendants did not have any plausible

suspicion that the . . . children were subjected to abuse or neglect at the time they conducted the

interviews” (emphasis in original)). In addition, the Court’s conclusion is bolstered by the fact

that, unlike in Phillips, 894 F. Supp. 2d at 366, this case involved only allegations of neglect,

which imposes liability for a broad swathe of action and inaction,16 as opposed to the more

demanding and narrowly defined abuse statute. See generally Gonzalez v. City of Schenectady,

728 F.3d 149, 155 (2d Cir. 2013) (“To ascertain the existence of probable cause, we look at the

facts as the officers knew them in light of the specific elements of each crime.”).17 Any Fourth

Amendment claim based on the in-school interviews by Simmons is therefore dismissed with

prejudice.

The second category of conduct implicating the Fourth Amendment relates to the medical

examinations, and Patrick’s and James’s allegations on this front compel a different conclusion

on dismissal. For context, Plaintiffs allege that after the March removal, “Patrick and James

were brought to a Hospital Emergency Room for a physical examination.” AC ¶ 103. At

Simmons’s direction, doctors “physically examined [them] and confirmed the fact that they were

not abused or neglected,” even though there had been no allegation of child abuse. Id. ¶¶ 116,

327–28. Plaintiffs describe these examinations as “strip searches.” ECF No. 43 ¶ 51. As an

initial matter, Plaintiffs adequately allege that because the searches were “undertaken at the

initiative of a state official and served primarily an investigative function[,] . . . Fourth

Amendment and bodily integrity interests of the child[ren] are implicated.” Tenenbaum, 193

16 Like most child neglect statutes, New York’s version at the time employed a capacious

definition. Specifically, it defined a neglected child as one “whose physical, mental or emotional

condition has been impaired or is in imminent danger of becoming impaired as a result of the

failure of his parent or other person legally responsible for his care to exercise a minimum degree

of care,” including “in providing the child with proper supervision.” See N.Y. Soc. Serv. Law

§ 371(4-a)(i)(B) (effective Sept. 18, 2012, to Sept. 30, 2019).

17 For the same reason, Patrick and James’s claim that their Fourth Amendment rights were

violated when Simmons interviewed them at home must be dismissed because of the presence of

probable cause. See AC ¶ 324. It also fails for the independent reason that Alisa consented to

the at-home interviews because she believed she “had nothing to hide,” ECF No. 67-4 at 5,

which makes it doctrinally impossible for Simmons to have violated Patrick’s and James’s

Fourth Amendment rights. Tenenbaum, 193 F.3d at 602 (discussing parental consent).

F.3d at 606.18 As such, Patrick and James have adequately pleaded that they were subject to a

Fourth Amendment search. See id. at 605–06 (affirming district court’s determination that

child’s medical examination was a warrantless search).

As above, the question again is whether such medical examinations of Patrick and James

were reasonable. Assuming again that the probable cause standard applies, but even if a lower,

reasonable person standard applies, the Court, construing Plaintiffs’ allegations in their favor,

cannot conclude that the medical examinations were reasonable as a matter of law. First, just

because Simmons may have had probable cause to conduct interviews of the boys or a court

order to remove them does not lead to the conclusion that there was also probable cause to direct

the medical examinations. See Estiverne, 833 F. Supp. 2d at 375–379 (evaluating separately the

reasonableness of the child’s detention at the hospital, medical testing at the hospital, and

removal from parents’ custody). Notably, the March removal order from the Family Court did

not direct or authorize medical examinations of the brothers. See ECF No. 39-2. And based on

what Plaintiffs claim Simmons knew at the time, Patrick and James have adequately alleged that

there was “insufficient justification for performing the examination[s]” without Family Court

authorization. Tenenbaum, 193 F.3d at 606. Specifically, the Court cannot say that in these

circumstances, “strip searches” were reasonable, especially where the petition Simmons filed

with the Family Court alleged only neglect, not abuse, and did not contain any allegations of

18 This is arguably a close call because Patrick and James state that the medical

examinations were “for purely procedural/clearance to be brought [to a] foster care facility.”

ECF No. 67 ¶ 36. Nevertheless, construing their allegations in their favor, they sufficiently

allege that even such a clearance examination served a “primarily” investigative purpose, rather

than, for example, a purely medical one. Van Emrik v. Chemung Cnty. Dep’t of Soc. Servs., 911

F.2d 863, 867 (2d Cir. 1990).

physical injury to the brothers. See ECF No. 39-1 at 12–13.19 Accordingly, this claim should

proceed against Simmons. However, it should not proceed as a Monell claim against the City

because Plaintiffs never allege that the medical examinations were carried out as a matter of

municipal custom or policy. Nor do their factual allegations suggest as much. Cf. Guan N.,

2014 WL 1275487, at *22 (“Because it lacks any . . . allegations concerning DOE policy with

respect to unconsented student interviews, the [third amended complaint] does not sufficiently

allege that [the child’s] interview was the result of a municipal policy.”).

iii. Substantive Due Process

The Court also agrees with Judge Bulsara that Patrick’s and James’s substantive due

process claims must be dismissed because they are properly evaluated as search and seizure

claims, and binding authority requires the Court to apply the more specific constitutional

provision in this setup. R&R at 23 (citing Southerland v. City of New York, 680 F.3d 127, 142–

43 (2d Cir. 2012)).20 Patrick and James object on the basis that their “Fourth Amendment claim

should not be dismissed simply since it was stated as a substantive due process claim.” ECF

No. 67 ¶¶ 187, 191. That misinterprets the R&R, which recommends dismissal of the

19 Here, the Court notes that in the motion to dismiss posture, it has only one side of the

factual story, and factual development may very well indicate, for example, that upon removal,

Simmons discovered “exigent circumstances” requiring immediate medical intervention. See

Tenenbaum, 193 F.3d at 606. In that situation, the searches would of course survive scrutiny

under the Fourth Amendment. Id. Additionally, Simmons may be entitled to qualified immunity

for her conduct. See id. (finding qualified immunity to apply after concluding that a medical

examination of a child violated the Fourth Amendment).

20 Although Southerland related to removals, as the prior analysis demonstrates, and as

other courts have found, the additional alleged conduct (in-school interviews and medical

examinations) are properly categorized as Fourth Amendment claims. “Because [Patrick and

James] can maintain . . . Fourth Amendment claim[s], [they] cannot assert . . . additional

substantive due process claim[s] and any such claim[s] [are] dismissed.” Schweitzer v. Crofton,

935 F. Supp. 2d 527, 549 n.17 (E.D.N.Y. 2013).

substantive due process claim because of the availability of the search and seizure claim, and

separately recommends the dismissal of the search and seizure claim based on the presence of

probable cause. See R&R at 22–23. In other words, Judge Bulsara does not recommend that

dismissal of the search and seizure claim simply because Plaintiffs also included a substantive

due process claim. There being no actual objection to Judge Bulsara’s recommendation as to the

substantive due process claim, under any standard of review, the Court agrees that it is

unavailable to Patrick and James. It is therefore dismissed with prejudice.

iv. Procedural Due Process

Judge Bulsara recommends the dismissal of Patrick’s and James’s procedural due process

claims based on their removals. R&R at 24–25. He correctly identifies the two-part test for such

a claim: “(1) the existence of a property or liberty interest that was deprived and (2) deprivation

of that interest without due process.” Id. at 24 (quoting Radwan v. Manuel, 55 F.4th 101, 123

(2d Cir. 2022)). As it concerns the removals, after finding that Patrick and James satisfied the

first step, Judge Bulsara concluded that they “cannot plausibly allege a procedural due process

violation, in a case where their removal was effected pursuant to an ex parte court order

supported by probable cause, and they had a post-deprivation hearing pursuant to which they

were returned to their mother’s custody.” Id. at 24–25. Patrick and James object, arguing that

“City Defendants do not deny the failure to properly serve Alisa a Summons and/or Notice of

Hearing notifying Alisa that a court proceeding existed.” ECF No. 67 ¶ 153. This appears to

refer to the allegations in the AC that during the initial removal of Patrick and James in March

2017, “Simmons handed [to Alisa] a Neglect Petition without a Notice for Hearing and an ex

parte Temporary Restraining Order filed by ACS” and that “Alisa did not get any notice or

service of the Notice of Hearing for March 14, 2017 or the Neglect Petitions.” AC ¶¶ 101, 113;