Johnson v. New York State Office of Childrens and Family Services

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_______________________________________________

DAVID JOHNSON,

Plaintiff,

v. 6:24-cv-1371

(GTS/TWD)

NEW YORK STATE OFFICE OF CHILDRENS

AND FAMILY SERVICES,

Defendant.

_______________________________________________

APPEARANCES: OF COUNSEL:

David Johnson

Plaintiff, pro se

19-D-0019

Mid-State Correctional Facility

P.O. Box 2500

Marcy, NY 13403

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

REPORT-RECOMMENDATION AND ORDER

I. INTRODUCTION

The Clerk has sent to the Court for review a civil rights complaint filed by pro se plaintiff

David Johnson (“Plaintiff”) pursuant to 42 U.S.C. § 1983 (“Section 1983”), together with an

application to proceed in forma pauperis (“IFP”). Dkt. Nos. 1, 2. Plaintiff, who is currently

incarcerated at Mid-State Correctional Facility, has not paid the filing fee for this action.

Plaintiff claims the defendant, the New York State Office of Childrens (sic) and Family Services

(“OCFS”) violated his constitutional rights. See generally Dkt. No. 1.

II. IFP APPLICATION

“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court

without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No.

1:09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent,

incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently

pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate

accounts.” Id. (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir.

2010)).

Upon review, the Court finds Plaintiff has submitted a completed and signed IFP

application, which demonstrates economic need. Dkt. No. 2. He has also filed the inmate

authorization form required in this District. Dkt. No. 3. Accordingly, Plaintiff’s IFP application

is granted.1

III. BACKGROUND

The following facts are set forth as alleged by Plaintiff in the complaint. Dkt. No. 1.

Between 2016 and 2017, Plaintiff was “in custody of OCFS” after a “family court ruling.” Id. at

1. At the “Goshen Secure Center,” Plaintiff was “sexually assaulted by a YDA named Hogan on

two occasions.” Id. Plaintiff was also “raped by a kid in OCFS custody.” Id. On another

occasion, “[a] YDA put a bottle of diet coke on their desk and lured [Plaintiff] into drinking it.”

Id. Plaintiff became “very sick and had a fever for about a month until [he] was treated.” Id.

Plaintiff “believe[s] they gave [him] HIV or the FLU.” Id. Plaintiff “also was drugged and

raped by an individual while in placement at Fingerlakes limited secure.” Id. at 4.

1 Plaintiff should note that although his IFP application has been granted, he will still be

required to pay fees he may incur in the future regarding this action, including but not limited to

copying and/or witness fees.

Plaintiff was “restrained using too much force.” Id. As he was “running away,” Plaintiff

was “tackled” by a “YDA” and his toe was injured. Id. On another occasion, an x-ray revealed

Plaintiff “had broken ribs and nothing was done to treat it.” Id.

Plaintiff “was not given proper educational opportunities.” Id. “OCFS neglected to see

to [Plaintiff’s] educational need for [his] whole stay in their custody.” Id. Plaintiff “believe[s]

there was a conspiracy to deny [him] from being released back into society.” Id.

Based on the foregoing, Plaintiff claims the “Office of Childrens and Family Services

failed to protect [him] from being raped[,] failed to meet [his] educational needs[,] and failed to

meet [his] medical needs.” Id. He seeks “relief in the form of 1 hundred million United States

Dollars.” Id.

IV. STANDARD OF REVIEW

Section 1915(e) directs that, when a Plaintiff seeks to proceed IFP, a court should dismiss

the case if the court determines that the action is frivolous or malicious, fails to state a claim on

which relief may be granted, or seeks monetary relief against a defendant who is immune from

such relief. 28 U.S.C. § 1915(e)(2)(B). Likewise, under 28 U.S.C. § 1915A, a court must

review any “complaint in a civil action in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity” and must “identify cognizable claims or

dismiss the complaint, or any portion of the compliant, if the complaint . . . is frivolous,

malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief

from a defendant who is immune from such relief.” 28 U.S.C. § 1915A. A complaint “is

frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S.

319, 325 (1989).

In reviewing a pro se complaint, the court has a duty to show liberality toward pro se

litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should exercise

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

party has been served and both parties (but particularly the plaintiff) have had an opportunity to

respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted).

Therefore, a court should not dismiss a complaint if the plaintiff has stated “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

Although a court should construe the factual allegations in the light most favorable to the

plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint

is inapplicable to legal conclusions.” Id. “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S.

at 555). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.

at 555). Thus, a pleading that only “tenders naked assertions devoid of further factual

enhancement” will not suffice. Id. (internal quotation marks and alterations omitted).

V. DISCUSSION

A. Nature of Action

Plaintiff brings this action pursuant to Section 1983, which establishes a cause of action

for “the deprivation of any rights, privileges, or immunities secured by the Constitution and

laws” of the United States. 42 U.S.C. § 1983. “Section 1983 itself creates no substantive rights;

it provides only a procedure for redress for the deprivation of rights established elsewhere.”

Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).

The statute of limitations for a Section 1983 action in New York is three years. Murphy

v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995). “[A] cause of action under section 1983 accrues ‘when

the plaintiff knows of or has reason to know of the injury which is the basis of his action.’”

Welch v. Schenectady Cnty., No. 1:22-CV-9 (DNH/DJS), 2022 WL 1018438, at *3 (N.D.N.Y.

Mar. 15, 2022) (other citation omitted).

B. The OCFS

“The Eleventh Amendment bars [P]laintiff’s claims against the OCFS because the OCFS

is an arm of the State.” Iosilevich v. New York City Admin. for Children’s Servs., No. 21-CV-

466, 2021 WL 3472647, at *2 (E.D.N.Y. Aug. 6, 2021). State governments may not be sued in

federal courts by private parties “unless they have waived their Eleventh Amendment immunity

or unless Congress” has abrogated it. Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009)

(internal quotations and citations omitted); see Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S.

247, 253-54 (2011). Sovereign immunity extends to “state instrumentalities” like the OCFS

“that are, effectively, arms of a state.” Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ.,

466 F.3d 232, 236 (2d Cir. 2006) (quoting Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429

(1997)); see Hale v. Mann, 219 F.3d 61, 73 (2d Cir. 2000); see also Davis v. NYS Off. of Child.

& Fam. Servs., No. 20:CV-1480, 2021 WL 1193044, at *5 (E.D.N.Y. Mar. 30, 2021) (“The

“OCFS is an arm of the State of New York and, as such, enjoys Eleventh Amendment

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

Accordingly, it is recommended that Plaintiff’s Section 1983 claims against the OCFS be

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). See, e.g., Davis,

2021 WL 1193044, at *5 (dismissing the plaintiff’s Section 1983 claims against the NYS OCFS

pursuant to 28 U.S.C. § 1915(e)(2)(B) because such claims are barred by Eleventh Amendment

immunity); see also Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (“A complaint will be

dismissed as ‘frivolous’ when ‘it is clear that the defendants are immune from suit.’” (quoting

Neitzke, 490 U.S. at 327)).

C. Leave to Amend

Generally, before the Court dismisses a pro se complaint or any part of the complaint sua

sponte, the Court should afford the plaintiff the opportunity to amend at least once; however,

leave to amend may be denied where any amendment would be futile. Ruffolo v. Oppenheimer

& Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with the

plaintiff’s causes of action is substantive such that better pleading will not cure it. Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted).

Here, Plaintiff’s Section 1983 claims against the OCFS cannot proceed because OCFS is

immune from suit as a state agency under the Eleventh Amendment. There are no possible

amendments to the complaint that will change these facts. Accordingly, it is recommended that

the dismissal against the OCFS be with prejudice.

However, out of an abundance of caution and in light of his pro se status, prior to the

outright dismissal of this action the Court recommends that Plaintiff be given an opportunity to

file an amended complaint that cures the deficiencies identified above. Any amended complaint,

which shall supersede and replace the original complaint in its entirety, must allege claims of

misconduct or wrongdoing against each named defendant that Plaintiff has a legal right to

pursue, and over which jurisdiction may properly be exercised. Any amended complaint filed by

Plaintiff must also comply with the pleading requirements of Rules 8 and 10 of the Federal Rules

of Civil Procedure. If Plaintiff does not know the name of a defendant, he may refer to the that

individual as “John Doe” or “Jane Doe” in the caption, list of parties, and body of the amended

complaint.

VI. CONCLUSION

WHEREFORE, it is hereby

ORDERED that Plaintiff’s motion to proceed in forma pauperis, Dkt. No. 2, is

GRANTED, and it is further

ORDERED that the Clerk provide the Superintendent of the facility, designated by

Plaintiff as his current location, with a copy of Plaintiff’s inmate authorization, Dkt. No. 3, and

notify the official that this action has been filed and that Plaintiff is required to pay the Northern

District of New York the statutory filing fee of $350.00 in installments, over time, pursuant to 28

U.S.C. § 1915; and it is further

ORDERED that the Clerk provide a copy of Plaintiff’s inmate authorization, Dkt. No. 3,

to the Financial Deputy of the Clerk’s Office; and it is further

RECOMMENDED that Plaintiff’s Section 1983 claims against the New York State

Office of Children and Family Services be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and

28 U.S.C. § 1915A(b) with prejudice; and it is further

RECOMMENDED that Plaintiff be granted leave to file an amended complaint; and it is

further

ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation

and Order, along with copies of the unpublished decisions cited herein in accordance with the

Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to

file written objections to the foregoing report.” Such objections shall be filed with the Clerk of

the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS

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

(citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C.

§ 636(b)(1); Fed. R. Civ. P. 72.

IT IS SO ORDERED.

Dated: February 18, 2025

Syracuse, New York /

Thérése Wiley Dancks

United States Magistrate Judge

? If you are proceeding pro se and are served with this Report-Recommendation and Order by

mail, three additional days will be added to the fourteen-day period, meaning that you have

seventeen days from the date the Report-Recommendation and Order was mailed to you to serve

and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a

Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day

that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

2010 WL 5185047 York State Department of Correctional Services, commenced

Only the Westlaw citation is currently available. this action on or about January 12, 2009 by submitting his

United States District Court, complaint to the Court's Pro Se office. Plaintiff alleges, in

S.D. New York. pertinent part, that he has “a non-healing ulcer that is gane

green [sic ]” and that defendant Bernstein “did not want

David J. CASH, Plaintiff, to treat the ulcer right” (Complaint, dated March 3, 3009

v. (Docket Item 2) (“Compl.”), at 3).

BERNSTEIN, MD, Defendant.

The action was originally commenced against two defendants

No. 09 Civ.1922(BSJ)(HBP). —Dr. Bernstein and Dr. Finkelstein. The action was dismissed

| as to Dr. Finkelstein because the complaint contained no

Oct. 26, 2010. allegations whatsoever concerning Dr. Finkelstein (Order

dated February 18, 2010 (Docket Item 9)).

REPORT AND RECOMMENDATION1 On March 4, 2010, the sole remaining defendant—Dr.

Bernstein—filed the current motion. Plaintiff failed to submit

1 At the time the action was originally filed, a response. Accordingly, on August 20, 2010, I issued an

Order advising plaintiff that if he wished to oppose the

the Honorable Leonard B. Sand, United States

motion, he must submit his opposition by September 15, 2010

District Judge, granted plaintiff's application for in

and that after that date I would consider the motion fully

forma pauperis status based on plaintiff's ex parte

submitted and ripe for decision (Order dated August 20, 2010

submission (Docket Item 1). Although the present

(Docket Item 15)). The only submission plaintiff has made

application seeking to revoke plaintiff's in forma

in response to my Order is a multi-part form issued by the

pauperis status is non-dispositive, I address it by

New York State Department of Correctional Services entitled

way of a report and recommendation to eliminate

“Disbursement or Refund Request.”2 By this form, plaintiff

any appearance of a conflict between the decision

appears to request that the New York State Department of

of a district judge and that of a magistrate judge.

Correctional Services pay the filing fee for this action. The

form is marked “Denied.”

PITMAN, United States Magistrate Judge.

*1 TO THE HONORABLE BARBARA S. JONES, United 2 Plaintiff sent this form directly to my chambers,

States District Judge, and it has not been docketed by the Clerk of the

Court. The form will be docketed at the time this

Report and Recommendation is issued.

I. Introduction

By notice of motion dated March 4, 2010 (Docket Item 11),

III. Analysis

defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke

28 U.S.C. § 1915 permits an indigent litigant to commence

plaintiff's in forma pauperis (“IFP”) status on the ground that

an action in a federal court without prepayment of the filing

plaintiff has previously had at least three Section 1983 actions

fee that would ordinarily be charged. Although an indigent,

dismissed as frivolous, malicious or failing to state a claim

incarcerated individual need not prepay the filing fee at the

upon which relief could be granted, and has not shown that he

time at the time of filing, he must subsequently pay the fee,

is in imminent danger of serious physical injury. Defendant

to the extent he is able to do so, through periodic withdrawals

further seeks an order directing that the action be dismissed

from his inmate accounts. 28 U.S.C. § 1915(b); Harris v.

unless plaintiff pays the full filing fee within thirty (30) days.

City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent

For the reasons set forth below, I respectfully recommend that

abuse of the judicial system by inmates, paragraph (g) of

defendant's motion be granted.

this provision denies incarcerated individuals the right to

proceed without prepayment of the filing fee if they have

II. Facts repeatedly filed meritless actions, unless such an individual

Cir.2004) (“[T]he purpose of the PLRA ... was plainly to 3 It appears that plaintiff uses the names David

curtail what Congress perceived to be inmate abuses of the J. Cash and Dennis Nelson interchangeably. In

judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d his complaint in this matter, plaintiff states that

Cir.1997). Specifically, paragraph (g) provides: the Departmental Identification Number, or DIN,

assigned to him by the New York State Department

of Correctional Services (“DOCS”) is 94–B–0694

*2 In no event shall a prisoner bring (Compl. at 7). DOCS inmate account records

a civil action or appeal a judgment submitted by plaintiff in connection with his

in a civil action or proceeding under application for IFP status indicate that DIN 94–

this section if the prisoner has, on B–0694 is assigned to Dennis Nelson. In addition,

3 or more prior occasions, while the DOCS form described in footnote two bears

incarcerated or detained in any facility, the docket number of this action, but is signed in

brought an action or appeal in a court the name of Dennis Nelson and was sent in an

of the United States that was dismissed envelope identifying the sender as Dennis Nelson.

on the grounds that it is frivolous, A subsequent action has been filed in this Court

malicious, or fails to state a claim upon in which the plaintiff identifies himself as Dennis

which relief may be granted, unless the Nelson but lists his DIN as 94–B–0694, the same

prisoner is under imminent danger of DIN used by plaintiff here. Finally, plaintiff has

serious physical injury. submitted nothing to controvert the assertion in

defendant's papers that David Cash and Dennis

Nelson are the same person. In light of all these

28 U.S.C. § 1915(g). facts, I conclude that David Cash and Dennis

Nelson are both names used by plaintiff.

If an inmate plaintiff seeks to avoid prepayment of the filing

fee by alleging imminent danger of serious physical injury, • In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP),

there must be a nexus between the serious physical injury 2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff

asserted and the claims alleged. Pettus v. Morgenthau, 554 again filed an action concerning the medical care

F.3d 293, 298 (2d Cir.2009). he was receiving for his left leg. The Honorable

Thomas J. McAvoy, United States District Judge,

Section 1915(g) clearly prevents plaintiff from proceeding accepted the Report and Recommendation of Magistrate

in this action without prepayment of the filing fee. Judge Peebles, and revoked plaintiff's IFP status and

The memorandum submitted by defendant establishes that dismissed the action on the ground that plaintiff had

plaintiff has had his IFP status revoked on at least four prior previously commenced at least three actions that had

occasions as a result of his repeatedly filing meritless actions. been dismissed on the merits. 2008 WL 3836387 at *1,

*7.

• In 2005, plaintiff commenced an action in the United

States District Court for the Northern District of New • In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)

York seeking to have his infected leg amputated. (RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008),

Nelson3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007 Judge McAvoy again revoked plaintiff's IFP status

WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter, on the ground that plaintiff had commenced three

the Honorable Norman A. Mordue, Chief United States or more actions that constituted “strikes” under

District Judge, accepted and adopted the Report and Section 1915(g) and had not shown an imminent

Recommendation of the Honorable David E. Peebles, threat of serious physical injury. 2008 WL 268215

United States Magistrate Judge, that plaintiff had at *1–*2.

brought three or more prior actions that had been

• Finally, in Nelson v. Chang, No. 08–CV–1261

dismissed for failure to state a claim and that plaintiff's

(KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10,

IFP status should, therefore, be revoked. 2007 WL

2009), the Honorable Kiyo A. Matsumoto, United

cases discussed above, that plaintiff had exhausted that this vague statement is insufficient to support a finding

the three strikes permitted by Section 1915(g) that plaintiff is in imminent danger of serious physical

and could not proceed IFP in the absence of a injury.5

demonstration of an imminent threat of serious

physical injury. 2009 WL 367576 at *2–*3. 5 Plaintiff has sent me several letters describing his

*3 As defendant candidly admits, there is one case in which

wound and its symptoms in detail, and I have

plaintiff's leg infection was found to support a finding of an

no doubt that the wound is serious. However, in

imminent threat of serious physical injury sufficient to come

granting summary judgment dismissing an action

within the exception to Section 1915(g). Nelson v. Scoggy,

last year based on the same allegations, Judge

No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2

Mordue of the Northern District found that there

(N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment

was no genuine issue of fact that plaintiff's own

was subsequently granted for defendants in that case, and

conduct was responsible for the ineffectiveness of

the complaint was dismissed. Judge Mordue concluded that

the treatment he was provided:

there was no genuine issue of fact that plaintiff had received

Furthermore, to the extent that Nelson's medical

adequate medical care for his leg wound and that the failure

treatment was delayed, much of the delay

of the leg to heal was the result of plaintiff's own acts of

was due to his own refusal to cooperate with

self-mutilation and interference with the treatment provided.

medical staff and his self-mutilations. Nelson's

Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009

actions to thwart the medical treatment of his

WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009).4

wound cannot be construed as interference or

indifference by anyone else.... [T]he medical

4 Although the form complaint utilized by plaintiff treatment Nelson received complied with

expressly asks about prior actions involving the constitutional guarantees as it was appropriate,

same facts, plaintiff disclosed only the Scoggy timely, and delayed only by Nelson's own

action and expressly denied the existence of any actions.

other actions relating to his imprisonment (Compl. Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.

at 6). Given plaintiff's total failure to respond to the

pending motion and his failure to even deny that

In light of the foregoing, there can be no reasonable dispute

he is actively thwarting treatment of his wound, it

that plaintiff has exceeded the three “strikes” allowed by

would be sheer speculation for me to conclude that

Section 1915(g) and that he cannot, therefore, proceed here

he is in imminent danger of a serious injury as a

without prepaying the filing fee unless he demonstrates

result of defendant's conduct.

an imminent threat of serious physical injury. Plaintiff has

declined to attempt to make this showing in response to

defendant's motion, and the only suggestion in the record IV. Conclusion

of serious physical injury is the bare statement in the Accordingly, for all the foregoing reasons, I find that plaintiff

complaint that plaintiff “need[s] to go back to a wound speci has had three or more prior actions dismissed as being

[a]list before the gane green [sic ] kills [him]” (Compl. at frivolous, malicious or failing to state a claim and that

5). “However, unsupported, vague, self-serving, conclusory plaintiff's in forma pauperis status should, therfore, be

speculation is not sufficient to show that Plaintiff is, in fact, revoked. If your Honor accepts this recommendation, I further

in imminent danger of serious physical harm.” Merriweather recommend that the action be dismissed unless plaintiff pays

v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing the filing fee in full within thirty (30) days of your Honor's

Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and final resolution of this motion.

White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998);

see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003)

V. OBJECTIONS

(imminent danger exception to Section 1915(g) requires

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of

“specific fact allegations of ongoing serious physical injury,

the Federal Rules of Civil Procedure, the parties shall have

or of a pattern of misconduct evidencing the likelihood

fourteen (14) days from receipt of this Report to file written

of imminent serious physical injury”). Given the plaintiff's

with courtesy copies delivered to the Chambers of the Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d

Honorable Barbara S. Jones, United States District Judge, 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298,

500 Pearl Street, Room 1920, and to the Chambers of the 300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–

undersigned, 500 Pearl Street, Room 750, New York, New 59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–

York 10007. Any requests for an extension of time for filing 38 (2d Cir.1983).

objections must be directed to Judge Jones. FAILURE TO

OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT

All Citations

IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE

APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 Not Reported in F.Supp.2d, 2010 WL 5185047

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

2022 WL 1018438 must look to see whether the complaint “lacks an

Only the Westlaw citation is currently available. arguable basis either in law or in fact.” Neitzke v.

United States District Court, N.D. New York. Williams, 490 U.S. 319, 325 (1989).

Aaron WELCH, Sr., Plaintiff, Likewise, under 28 U.S.C. § 1915A, a court must review

any “complaint in a civil action in which a prisoner seeks

v.

redress from a governmental entity or officer or employee of

SCHENECTADY COUNTY, et al., Defendants.

a governmental entity” and must “identify cognizable claims

1:22-CV-9 (DNH/DJS) or dismiss the complaint, or any portion of the complaint,

| if the complaint ... is frivolous, malicious, or fails to state a

Signed 03/15/2022 claim upon which relief may be granted; or ... seeks monetary

relief from a defendant who is immune from such relief.” 28

Attorneys and Law Firms U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116

(2d Cir. 1999) (per curiam); Abbas v. Dixon, 480 F.3d 636,

AARON WELCH, SR., Plaintiff, Pro Se, 14-B-149, Great 639 (2d Cir. 2007) (stating that both sections 1915 and 1915A

Meadow Correctional Facility, Box 51, Comstock, New York are available to evaluate pro se prisoner complaints).

12821.

In reviewing a pro se complaint, the court has a duty to show

liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d

REPORT-RECOMMENDATION and ORDER 605, 606 (2d Cir. 1990) (per curiam), and should exercise

“extreme caution ... in ordering sua sponte dismissal of a

DANIEL J. STEWART, United States Magistrate Judge pro se complaint before the adverse party has been served

and both parties (but particularly the plaintiff) have had an

*1 Plaintiff filed this action seeking to assert claims under

opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37,

the federal civil rights statutes. Dkt. No. 1. Plaintiff has not

41 (2d Cir. 1983) (internal citations omitted). Therefore, a

paid the filing fee but has submitted an application to proceed

court should not dismiss a complaint if the plaintiff has stated

in forma pauperis (“IFP”), Dkt. No. 5, which the Court has

“enough facts to state a claim to relief that is plausible on its

granted.

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable

I. SUFFICIENCY OF THE COMPLAINT inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Bell Atl. Corp. v. Twombly, 550 U.S. at 556).

A. Governing Legal Standard

28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to Although a court should construe the factual allegations in

proceed in forma pauperis, “(2) ... the court shall dismiss the light most favorable to the plaintiff, “the tenet that a

the case at any time if the court determines that – ... (B) court must accept as true all of the allegations contained

the action ... (i) is frivolous or malicious; (ii) fails to state a in a complaint is inapplicable to legal conclusions.” Id.

claim on which relief may be granted; or (iii) seeks monetary “Threadbare recitals of the elements of a cause of action,

relief against a defendant who is immune from such relief.” 28 supported by mere conclusory statements, do not suffice.” Id.

U.S.C. § 1915(e)(2)(B).1 Thus, even if a plaintiff meets the (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here

financial criteria to commence an action in forma pauperis, it the well-pleaded facts do not permit the court to infer more

is the court's responsibility to determine whether the plaintiff than the mere possibility of misconduct, the complaint has

may properly maintain the complaint that he filed in this alleged - but it has not show[n] - that the pleader is entitled

District before the court may permit the plaintiff to proceed to relief.” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).

with this action in forma pauperis. See id. Rule 8 of the Federal Rules of Civil Procedure “demands

more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell

enhancement” will not suffice. Id. (internal quotation marks (1) a short and plain statement of the grounds for the court's

and alterations omitted). jurisdiction ...;

(2) a short and plain statement of the claim showing that

the pleader is entitled to relief; and

B. Summary of the Complaint

(3) a demand for the relief sought, which may include relief

*2 The Complaint in this case relates to proceedings in New in the alternative or different types of relief.

York state court regarding Plaintiff's children. See generally

Compl. Those proceedings are alleged to have begun in May FED. R. CIV. P. 8(a). The purpose of Rule 8 “is to give fair

2013 with the commencement of child abuse proceedings notice of the claim being asserted so as to permit the adverse

against the mother of Plaintiff's children. Id. at p. 4. Plaintiff party the opportunity to file a responsive answer [and] prepare

alleges that he first became aware of these proceedings in an adequate defense.” Hudson v. Artuz, 1998 WL 832708,

September 2015. Id. at p. 5. Plaintiff claims he attempted at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine

to discuss the matter with Defendants Fitzgerald and Hurley Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)).

who refused to respond to his requests and that they ultimately

withdrew the abuse allegations over his objection. Id. A complaint that fails to comply with basic pleading

requirements presents too heavy a burden for defendants to

Plaintiff also appears to allege that Fitzgerald and Hurley craft a defense “and provides no meaningful basis for the

interfered with proceedings filed on Plaintiff's behalf Court to assess the sufficiency of [the plaintiff's] claims,”

regarding visitation with his children between 2016 and 2019. and may properly be dismissed by the court. Gonzales v.

Id. at pp. 5-6. Further abuse and visitation proceedings are Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). Here, while

alleged to have taken place between 2019 and 2021 at which Plaintiff has stated relevant facts with some specificity the

Defendant Gardener is alleged to have represented the mother Complaint fails to connect those facts with specific legal

of Plaintiff's children. Id. at pp. 7-8. causes of action. Instead, the Complaint alleges violations

of his rights in generally conclusory terms. To the extent

The Complaint asserts nine causes of action alleging the Plaintiff attempts to plead a Monell theory of liability against

violation of various constitutional and state law rights. Id. Schenectady County, he does so in an entirely conclusory

at pp. 9-14. It seeks monetary damages in excess of twenty manner. Additionally, the Complaint names at least one

million dollars. Id. at p. 14-15. Defendant, Letitia James, against whom no factual allegations

are made.

“[A] court should not dismiss a complaint filed by a pro se

C. Analysis of the Complaint litigant without granting leave to amend at least once ‘when

a liberal reading of the complaint gives any indication that a

The scope of review here is limited to whether Plaintiff

valid claim might be stated.’ ” Bruce v. Tompkins Cty. Dep't of

has alleged an arguable claim, not whether Plaintiff can

Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4 (N.D.N.Y.

ultimately prevail. The Complaint, at least in some measure,

Jan. 7, 2015) (quoting Branum v. Clark, 927 F.2d 698, 704-05

alleges arguable claims insofar as it asserts the denial of due

(2d Cir. 1991)). Accordingly, the Court recommends that the

process rights related to visitation with Plaintiff's children.

Complaint be dismissed, but that Plaintiff be afforded an

See generally Troxel v. Granville, 530 U.S. 57, 65 (2000) (“the

opportunity to amend. If granted leave to do so, Plaintiff's

interest of parents in the care, custody, and control of their

Amended Complaint should state with particularity the causes

children - is perhaps the oldest of the fundamental liberty

of action asserted, specifically identify the factual basis for

interests recognized by this Court.”). As pled, however, the

each claim, and identify against which Defendant(s) each

Complaint presently is insufficient to withstand initial review.

cause of action is asserted.

A court's initial review of a complaint under § 1915(e) must

*3 Where, however, the grounds for dismissal offer no

encompass the applicable standards of the Federal Rules

basis for curing the defects in the pleading, dismissal with

of Civil Procedure. Rule 8 of the Federal Rules of Civil

prejudice is appropriate. Kunz v. Brazill, 2015 WL 792096,

Complaint, the Court recommends that dismissal be with predating 2019 be dismissed with prejudice, but that the

prejudice and that any amended complaint that Plaintiff be remainder of the Complaint be dismissed without prejudice

permitted to file should not include these claims. to the filing of an amended complaint.

First, certain claims are barred by the applicable statute of

limitations. The statute of limitations for a section 1983 action II. CONCLUSION

in New York is three years. Murphy v. Lynn, 53 F.3d 547,

548 (2d Cir. 1995). “[A] cause of action under section 1983 For the reasons stated herein, it is hereby

accrues ‘when the plaintiff knows of or has reason to know of

the injury which is the basis of his action.’ ” Walker v. Cuomo, RECOMMENDED, that Plaintiff's Complaint be

2012 WL 4490760, at *2 (E.D.N.Y. Sept. 27, 2012) (quoting DISMISSED with leave to amend; and it is

Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002)).

Many of the factual allegations and certain of the specifically ORDERED, that the Clerk of the Court serve a copy of this

identified causes of action relate to state court proceedings Report-Recommendation and Order upon the parties to this

dating back to 2013 and going through 2017. Compl. at pp. action.

4-7. Claims related to those events are clearly barred by the

statute of limitations and must be dismissed. Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen

(14)2 days within which to file written objections to the

In addition, Plaintiff has named New York's Office of foregoing report. Such objections shall be filed with the Clerk

Children and Family Services (OCFS) as a Defendant. Under of the Court. FAILURE TO OBJECT TO THIS REPORT

clearly established law, the Eleventh Amendment provides WITHIN FOURTEEN (14) DAYS WILL PRECLUDE

states immunity in federal court. Woods v. Rondout Valley APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89

Cent. Sch. Dist. Bd of Educ., 466 F.3d 232, 236 (2d Cir. (2d Cir. 1993) (citing Small v. Sec'y of Health and Human

2006). The immunity applies both to the State itself and state Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §

agencies. Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 636(b)(1); FED. R. CIV. P. 72 & 6(a).

2004); Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009);

McGinty v. New York, 251 F.3d 84, 95 (2d Cir. 2001). “As a 2

If you are proceeding pro se and are served with

general rule, state governments and their agencies may not be

this Order by mail, three additional days will be

sued in federal court unless they have waived their Eleventh

added to the fourteen-day period, meaning that you

Amendment immunity or there has been a valid abrogation of

have seventeen days from the date the order was

that immunity by Congress.” Jackson v. Battaglia, 63 F. Supp.

mailed to you to serve and file objections. FED. R.

3d 214, 219-20 (N.D.N.Y. 2014) (citation omitted); see also

CIV. P. 6(d). If the last day of that prescribed period

Slominski v. NYS Office of Mental Health, 2018 WL 6977339,

falls on a Saturday, Sunday, or legal holiday, then

at *3 (N.D.N.Y. Dec. 6, 2018); Phillips v. New York, 2013

the deadline is extended until the end of the next

WL 5703629, at *3 (N.D.N.Y. Oct. 17, 2013) (“New York

day that is not a Saturday, Sunday, or legal holiday.

has not waived its sovereign immunity in § 1983 lawsuits,

FED. R. CIV. P. 6(a)(1)(C).

nor has Congress abrogated the State's immunity.”) (citing

Vincent v. Yelich, 718 F.3d 157, 177 (2d Cir. 2013)). Plaintiff's

All Citations

claim against the agency, therefore, is barred by Eleventh

Amendment immunity. Not Reported in Fed. Supp., 2022 WL 1018438

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

2021 WL 3472647 then contacted plaintiff to let him know that ACS caseworkers

Only the Westlaw citation is currently available. had arrived. Ibid. Plaintiff instructed his wife not to let the

United States District Court, E.D. New York. caseworkers enter the house. Ibid. Plaintiff also told her that

no one from his family should speak with ACS caseworkers

Ilya Feliksovich IOSILEVICH, Plaintiff, without a lawyer present. Id. at 6-7.

v.

NEW YORK CITY ADMINISTRATION FOR * Citations follow the pagination assigned by the

CHILDREN'S SERVICES, Ms. Collar, ACS Caseworker, Electronic Court Filing (“ECF”) system rather than

Ms. Altice, Caseworker, New York State Office the documents’ internal pagination.

of Children and Family Services, Defendants. When plaintiff returned home, ACS caseworkers were inside

the house. Id. at 8. The caseworkers informed plaintiff that

21-CV-466 (RPK) (LB)

his wife had permitted them to enter and speak with her. Ibid.

|

Plaintiff replied that he revoked any permission granted to the

Signed 08/06/2021

caseworkers to be in his home or to question his family. Ibid.

Although ACS caseworkers told plaintiff that he could not

Attorneys and Law Firms

film them, plaintiff videotaped the encounter on his iPhone.

Ilya Feliksovich Iosilevich, Brooklyn, NY, Pro Se. Id. at 8-9.

Plaintiff is now suing the defendants for violating his rights

MEMORANDUM AND ORDER under the federal and New York State Constitutions. Id. at

4, 9-14. Plaintiff alleges that ACS caseworkers violated his

RACHEL P. KOVNER, United States District Judge: rights under the Fourth, Fifth, and Fourteenth Amendments

and his rights under article I of the New York State

*1 Pro se plaintiff Ilya Feliksovich Iosilevich brings an Constitution by searching his home without a warrant and

action under 42 U.S.C. § 1983 against the New York City by refusing to leave after he revoked his wife's consent to

Administration for Children's Services (“ACS”), the New the caseworkers’ entry. Id. at 4, 9-10. Plaintiff also alleges

York State Office of Children and Family Services (“OCFS”), that the caseworkers “tried to violate” his First Amendment

and two ACS caseworkers. He also challenges New York and state constitutional rights by telling him that he could not

Social Services Law § 422 under the federal and New York film the investigation. Id. at 4, 8. In addition, plaintiff appears

State Constitutions. Plaintiff's request to proceed in forma to allege that ACS caseworkers violated the Fourth, Fifth,

pauperis is granted. Plaintiff's claims against the ACS and and Fourteenth Amendment rights and state constitutional

the OCFS are dismissed, as are his First Amendment claim rights of his wife and stepson by (1) conducting a warrantless

against ACS caseworkers and his constitutional challenge search of the home without valid consent, id. at 4, 9-10; (2)

to Section 422. Plaintiff's Fourth Amendment claims and failing to provide them with “mini-Miranda” warnings, id.

corresponding claims under the New York State Constitution at 4, 10-11; and (3) failing to provide them with counsel,

may proceed against ACS caseworkers, once they are ibid. Finally, plaintiff challenges the constitutionality of New

identified. York Social Services Law § 422(7), which authorizes OCFS

Commissioner to withhold the identity of a person who

reports child abuse. Compl. at 11-12. Plaintiff seeks damages,

BACKGROUND as well as injunctive and declaratory relief. Id. at 20-27.

The following facts are drawn from the complaint and

assumed to be true for the purposes of this order.

STANDARD OF REVIEW

Plaintiff lives with his wife and two children at a house in *2 When a litigant files a lawsuit in forma pauperis, the

Brooklyn. Compl. (Dkt. #1) at 5.* Two ACS caseworkers district court must dismiss the case if it determines that the

visited plaintiff's house on January 22, 2021. Ibid. Plaintiff complaint “is frivolous or malicious,” that it “fails to state

monetary relief against a defendant who is immune from such the constitutional rights of his wife and stepson are dismissed

relief.” 28 U.S.C. § 1915(e)(2)(B). To avoid dismissal for for failure to state a claim upon which relief can be granted.

failure to state a claim, a complaint must plead “enough facts

to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim II. Claims Against OCFS and ACS

has facial plausibility when the plaintiff pleads factual content Plaintiff's claims against the OCFS and the ACS are dismissed

that allows the court to draw the reasonable inference that the because those defendants are not proper parties to this lawsuit.

defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (discussing Fed. R. Civ. P. 8).

A. The OCFS

The Eleventh Amendment bars plaintiff's claims against the

When a plaintiff is proceeding pro se, the plaintiff's complaint

OCFS because the OCFS is an arm of the State. State

must be “liberally construed, and ... however inartfully

governments may not be sued in federal courts by private

pleaded, must be held to less stringent standards than formal

parties “unless they have waived their Eleventh Amendment

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.

immunity or unless Congress” has abrogated it. Gollomp v.

89, 94 (2007) (per curiam) (internal quotations and citations

Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (internal quotations

omitted). When a complaint falls short, the plaintiff should

and citations omitted); see Va. Off. for Prot. & Advoc. v.

be given an opportunity to amend the complaint if a “liberal

Stewart, 563 U.S. 247, 253-54 (2011). Sovereign immunity

reading of the complaint gives any indication that a valid

extends to “state instrumentalities” like the OCSF “that are,

claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112

effectively, arms of a state.” Woods v. Rondout Valley Cent.

(2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171

Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006)

F.3d 794, 795 (2d. Cir. 1999) (per curiam)); see Shomo v. City

(quoting Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,

of New York, 579 F.3d 176, 183 (2d Cir. 2009).

429 (1997)); see Hale v. Mann, 219 F.3d 61, 73 (2d Cir. 2000);

Estate of M.D. v. New York, 241 F. Supp. 3d 413, 421-22

(S.D.N.Y. 2017). And no waiver or abrogation of sovereign

DISCUSSION immunity has occurred here. See Li v. Lorenzo, 712 F. App'x

21, 22 (2d Cir. 2017). Plaintiff's claims against the OCFS are

I. Claims Asserted on Behalf of Plaintiff's Wife and therefore dismissed for failure to state a claim upon which

Stepson relief can be granted.

Plaintiff's claims that state workers violated the rights of his

wife or stepson must be dismissed. Plaintiff, who is not a

licensed attorney, see Mot. for Leave to Proceed In Forma B. The ACS

Pauperis (Dkt. #2) at 2, cannot act on behalf of his wife *3 Plaintiff's claims against the ACS are dismissed because

or stepson, Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. the ACS is an agency of the City of New York. Claims against

1998) (“[B]ecause pro se means to appear for one's self, such agencies must generally “be brought in the name of the

a person may not appear on another person's behalf in the city of New York and not in that of any agency.” See N.Y. City

other's cause.”); see Cheung v. Youth Orchestra Found. of Charter Ch. 17 § 396. Because the ACS itself is not a suable

Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990). And a plaintiff entity, plaintiff's claims against the agency are dismissed for

“generally must assert his own legal rights and interests, failure to state a claim upon which relief may be granted. See

and cannot rest his claim to relief on the legal rights or Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir.

interests of third parties.” Rajamin v. Deutsche Bank Nat'l 2007); Graham v. City of New York, 869 F. Supp. 2d 337, 348

Tr. Co., 757 F.3d 79, 86 (2d Cir. 2014) (quoting Warth v. (E.D.N.Y. 2012) (“[The] ACS is an agency of the City of New

Seldin, 422 U.S. 490, 509 (1975)). To assert a third party's York and cannot be sued independently.”).

constitutional claims, a plaintiff must “demonstrate ... a close

relationship to the injured party and ... a barrier to the injured

party's ability to assert its own interests.” W.R. Huff Asset III. Free Speech Claims Against ACS Caseworkers

Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 109 Plaintiff's free speech claims under the state and federal

(2d Cir. 2008). Plaintiff does not allege any obstacles that Constitutions also fall short.

would keep his wife or stepson from bringing a separate

his First Amendment rights is dismissed because plaintiff's v. Cnty. of Putnam, 492 F. Supp. 3d 281, 304 (S.D.N.Y.

allegations do not state a claim under Section 1983. “Section 2020). The New York Court of Appeals has recognized

1983 imposes liability only upon those who actually cause implied causes of action for violations of the New York State

a deprivation of rights.” Blyden v. Mancusi, 186 F.3d 252, Constitution's equal protection and search and seizure clauses,

264 (2d Cir. 1999). Accordingly, courts have consistently see Brown v. New York, 674 N.E.2d 1129, 1138-39 (N.Y.

rejected claims for attempted constitutional violations under 1996), but has not addressed whether an implied cause of

Section 1983. See Andree v. Ashland Cnty., 818 F.2d 1306, action exists for violations of article I, section 8. If such

1311 (7th Cir. 1987) (“[T]he mere attempt to deprive a a cause of action does exist, it sounds in tort law. Brown,

person of his First Amendment rights is not, under usual 674 N.E.2d at 1132-33. And a claim “in a constitutional tort

circumstances, actionable under [S]ection 1983.”); Dooley action” rests on “the failure to fulfill a stated constitutional

v. Reiss, 736 F.2d 1392, 1394-95 (9th Cir. 1984); Anderson duty,” id. at 1133, not an attempt to breach a duty. Even

v. Cameron, No. 13-CV-578V(Sr), 2016 WL 11259015, at assuming that plaintiff can sue under article I, section 8,

*4 (W.D.N.Y. Sept. 14, 2016) (collecting cases), report and he does not allege that the caseworkers violated his state

recommendation adopted by No. 13-CV-578-MAT, 2017 WL constitutional right to free speech. Thus, plaintiff's article I,

2240253 (W.D.N.Y. May 23, 2017); Lyddy v. Bridgeport Bd. section 8 claim is dismissed for failure to state a claim upon

of Educ., No. 3:06CV1420(AHN), 2007 WL 2697452, at which relief may be granted.

*5 (D. Conn. Sept. 11, 2007) (same); see also Mozzochi

v. Borden, 959 F.2d 1174, 1180 (2d Cir. 1992) (“Several

courts have held that the success of an attempt to deprive IV. Challenge to New York Social Services Law § 422(7)

an individual of constitutional rights is critical to whether *4 Plaintiff challenges the constitutionality of New York

those rights have in fact been violated.”). The reason is Social Services Law § 422(7) under the New York and

simple. “[C]laims brought pursuant to [Section] 1983 sound federal Constitutions. Section 422 specifies that reports to

in tort,” City of Monterey v. Del Monte Dunes at Monterey, the Statewide Central Register (“SCR”) “shall be confidential

Ltd., 526 U.S. 687, 709 (1999), and unlike the doctrine of and shall only be made available to” enumerated entities,

attempt in criminal law, “[t]here are no attempted torts,” including the “person who is the subject of the report or

United States v. Stefonek, 179 F.3d 1030, 1036 (7th Cir. other persons named in the report.” N.Y. Soc. Serv. § 422(4)

1999) (internal quotation marks omitted); see Heffernan v. (A), § 422(4)(A)(d). The identity of the reporter shall not be

City of Paterson, 136 S. Ct. 1412, 1420 (2016) (Thomas, J., disclosed to the subject of the report. Id. § 422(4)(A). And the

dissenting) (“Nothing in the text of [Section] 1983 provides a Commissioner of the OCFS may also “prohibit the release of

remedy against public officials who attempt but fail to violate data that would identify the person who made the report ...

someone's constitutional rights.”). Here, plaintiff has alleged which he reasonably finds will be detrimental to the safety or

only an attempted violation of his First Amendment rights— interests of such person.” Id. § 422(7). Construed liberally, the

not an actual violation. In particular, plaintiff alleges that ACS complaint alleges that these disclosure limits violate plaintiff's

caseworkers “tried to violate [plaintiff's] First Amendment rights under the Due Process Clauses of the Fifth Amendment

right[s]” when they told him “that it is ‘against the law’ and Fourteenth Amendments and of the New York State

to record them.” Compl. at 8. But he admits that he was Constitution; the Equal Protection Clauses of the Fourteenth

not prohibited from videotaping the encounter. See id. at 9. Amendment and of the New York State Constitution; and the

Accordingly, this claim is dismissed for failure to state a Confrontation Clauses of the Sixth Amendment and the New

claim. York State Constitution. Compl. at 11-12. These challenges

fail to state a claim upon which relief may be granted and are

For the same reasons, plaintiff fails to state a claim under dismissed without prejudice.

article I, section 8 of the New York State Constitution. That

provision states that “[e]very citizen may freely speak, write,

A. Federal Due Process Rights

and publish his or her sentiments on all subjects, being

Construed liberally, the complaint contends that Section 422

responsible for the abuse of that right; and no law shall be

deprives plaintiff of due process in violation of the Fifth

passed to restrain or abridge the liberty of speech or of the

and Fourteenth Amendments. Plaintiff's claim under the Fifth

press.” N.Y. Const. art. I, § 8. New York has not enacted

Amendment is dismissed without prejudice because that

a statute that provides a cause of action for the deprivation

federal actors. Castanza v. Town of Brookhaven, 700 F. Supp. quotation marks omitted) (quoting Leebaert v. Harrington,

2d 277, 288 (E.D.N.Y. 2010). The Fourteenth Amendment 332 F.3d 134, 140 (2d Cir. 2003)). Laws that infringe

does provide due process protections against the State, but fundament rights “must be narrowly tailored to serve a

plaintiff's claim under that provision is dismissed because compelling government interest.” Ibid. But laws that infringe

plaintiff fails to state a claim for deprivation of either non-fundamental rights “need only be reasonably related to

procedural or substantive due process rights. a legitimate state objective.” Ibid. (quoting Immediato v. Rye

Neck Sch. Dist., 73 F.3d 454, 461 (2d Cir. 1996)).

Plaintiff fails to state a procedural due process claim

because he does not allege that the State deprived him of a *5 Plaintiff has failed to adequately plead a claim under

cognizable life, liberty, or property interest. “To formulate these principles. Plaintiff has not alleged the Section 422

a claim under the Due Process Clause of the Fourteenth interferes with a fundamental right, because he has alleged,

Amendment, a plaintiff must demonstrate that he ... possesses at most, reputational harm. “[T]here is no fundamental right

a constitutionally protected interest in life, liberty, or property, to one's own reputation.” Zutz v. Nelson, 601 F.3d 842, 850

and that state action has deprived him ... of that interest.” (8th Cir. 2010); see Avila v. Pappas, 591 F.3d 552, 554

Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994). While (7th Cir. 2010); Lambert v. Hartman, 517 F.3d 433, 444

plaintiff asserts that his “character will be ‘defamed’ if [he (6th Cir. 2008). And plaintiff has not plausibly alleged that

does] not know the name of [his] accuser,” Compl. at 12, Section 422 is not “reasonably related to a legitimate state

“loss of reputation” alone is not enough “to rise to the level objective.” Bryant, 692 F.3d at 217 (quoting Immediato, 73

of a protectible liberty interest,” Valmonte, 18 F.3d at 999; F.3d at 461). Confidentiality safeguards like those in Section

see Paul v. Davis, 424 U.S. 693, 701 (1976) (“[R]eputation 422 serve the State's “compelling interest in protecting its

alone, apart from some more tangible interests such as child-abuse information” by encouraging witnesses to come

employment, is [neither] ‘liberty’ [nor] ‘property’ by itself forward “without fear of general disclosure.” Pennsylvania v.

sufficient to invoke the procedural protection of the Due Ritchie, 480 U.S. 39, 60-61 (1987); see Selapack v. Iroquois

Process Clause.”). Instead, a plaintiff must allege “stigma Cent. Sch. Dist., 17 A.D.3d 1169, 1171 (N.Y. App. Div. 2005).

plus” “some other tangible element,” Valmonte, 18 F.3d at Plaintiff's allegations that the vast majority “of suspects of

99, by showing: “(1) the utterance of a statement sufficiently investigations are not some violent people who will confront

derogatory to injure his or her reputation, that is capable of their accuser with a baseball bat,” Compl. at 12, and that

being proved false, and that he or she claims is false, and (2) he himself does not “[pose] a danger to [his] accuser,”

a material state-imposed burden or state-imposed alteration id. at 11—even if true—would not counter the principle

of the plaintiff's status or rights,” Vega v. Lantz, 596 F.3d 77, that laws protecting the identity of child-abuse reporters

81 (2d Cir. 2010) (internal quotation marks omitted) (quoting serve compelling interests because witnesses to child abuse

Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004)). are deterred from making reports by the risk of losing

For example, a plaintiff's inability “to get a job in the child- their anonymity. See Ritchie, 480 U.S. at 60-61. Plaintiff's

care field” because “all child care providers must consult [the argument that “the right of an accused should outweigh the

SCR]” coupled with stigma qualifies as a protected interest. State's interest to protect a possibility of safety risk of the

Valmonte, 18 F.3d at 1001. Here, plaintiff does not allege a reporter,” Compl. at 11, fails to plead a substantive due

loss of employment opportunities or any other “plus.” Since process violation because so long as no fundamental right

plaintiff has not alleged the deprivation of a protected liberty is at stake, courts analyzing substantive due process rights

or property interest, his procedural due process challenge is consider only whether a challenged provision is “reasonably

dismissed without prejudice. related to a legitimate state objective.” Bryant, 692 F.3d at

217. Since plaintiff has not made the requisite allegations for

Plaintiff has also failed to adequately plead that Section a substantive due process attack on Section 422, his challenge

422 violates his substantive due process rights. The Second fails to state a claim and is dismissed without prejudice.

Circuit has explained that to determine if “a government rule

or regulation infringes a substantive due process right,” a

court must decide “whether the asserted right is fundamental,” B. State Due Process Rights

meaning “implicit in the concept of ordered liberty, or deeply Plaintiff's challenge under the due process clause of the New

rooted in this Nation's history and tradition.” Bryant v. N.Y. York State Constitution fails for the same basic reasons as

the New York Constitution and the United States Constitution thus dismissed without prejudice.

to be coextensive—or assumed that they are.” Oneida Indian

Nation v. Madison Cnty., 665 F.3d 408, 427 n.13 (2d Cir.

2011). Plaintiff makes a similar assumption, alleging that D. Confrontation Clauses

Section 422 violates the New York State due process clause *6 Plaintiff's confrontation clause claims are meritless. The

for the same reasons that the statute violates the federal Due Confrontation Clause of the Sixth Amendment provides that

Process Clause. Compl. at 12. Accordingly, the shortcomings “[i]n all criminal prosecutions, the accused shall enjoy the

in plaintiff's federal due process claim also doom his state due right ... to be confronted with the witnesses against him.”

process argument. In any event, plaintiff's state due process U.S. Const. amend. VI. New York's Constitution contains a

claim would fail because it is conclusory. His “[t]hreadbare broader guarantee, granting the “party accused” the right to

recital” that Section 422 violates state due process protections “be confronted with the witnesses against him or her” “[i]n

is a “legal conclusion couched as a factual allegation” and any trial in any court,” N.Y. Const. art I, § 6—not simply in a

“[does] not suffice” to state a claim upon which relief may be criminal trial. See In re Sawyer, 823 N.Y.S.2d 641, 643 (N.Y.

granted. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at Sup. Ct. 2006). Plaintiff has failed to state a claim under either

555). The state due process challenge is therefore dismissed of these provisions. He alleges only that he faces an ACS

without prejudice. investigation—not a trial of any kind. Because plaintiff has

not alleged that he was denied the right to confront witnesses

in in a “criminal prosecution[ ],” U.S. Const. art. VI, or a “trial

C. Equal Protection Clauses in any court,” N.Y. Const. art I, § 6, petitioner has not alleged

Plaintiff does not plead sufficient factual support to sustain a violation of the federal or state confrontation clauses.

his federal or state equal protection challenges. Federal equal

protection claims generally require “adverse treatment ...

compared with other similarly situated individuals” that is

CONCLUSION

“based on impermissible considerations such as race, religion,

intent to inhibit or punish the exercise of constitutional rights, Plaintiff's request to proceed in forma pauperis is granted.

or malicious or bad faith intent to injure a person.” Miner Plaintiff's claims against the ACS and the OCFS, his First

v. Clinton Cnty., 541 F.3d 464, 474 (2d Cir. 2008) (quoting Amendment claim against ACS caseworkers under Section

Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005)). Plaintiff 1983, and his challenges to Section 422 are dismissed

has not made factual allegations that would support an equal without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).

protection claim. He simply cites a case for the principle that No summons shall issue as to the ACS and the OCFS, and

discriminatory enforcement can violate the Equal Protection the Clerk of the Court is respectfully directed to correct the

Clause and conclusorily asserts that New York State Social caption to reflect their dismissal.

Services Law § 422(7) “is arbitrarily applied against me and

other members of similarly situated class members.” Compl. For now, plaintiff's federal Fourth Amendment claims and

at 14. But to state a claim upon which relief may be granted, the corresponding claims under article I, section 12 of the

a plaintiff must provide “more than labels and conclusions, New York State Constitution may proceed. Plaintiff may file

and a formulaic recitation of a cause of action's elements an amended complaint to correct the deficiencies described

will not do.” Twombly, 550 U.S. at 555. Because plaintiff's above within 30 days. The complaint must be captioned

allegations are conclusory, his allegations under the federal “Amended Complaint” and shall bear the same docket

Equal Protection Clause fail to state a claim upon which relief number as this order. All further proceedings are stayed for 30

can be granted. days. If plaintiff does not file an amended complaint within

30 days, only plaintiff's federal Fourth Amendment claims

Plaintiff's state equal protection claim fails for the same and the corresponding claims under article I, section 12 of

reason. Plaintiff asserts only that the New York State the New York State Constitution will proceed. The United

Constitution contains an equal protection clause and that States Marshals Service will not be able to serve defendants

Section 422 violates it “[f]or reasons stated above.” Compl. without further identifying information. Accordingly, the

at 12. Plaintiff's mere assertion that the State applies Section Court requests that Corporation Counsel for the City of

422 arbitrarily is a legal conclusion that does not state a claim New York ascertain the full names of ACS caseworkers

121 F.3d 72 (2d Cir. 1997) (per curiam); Mortimer v. City The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that

any appeal from this order would not be taken in good

of New York, No. 15 Civ. 7186 (KPF), 2018 WL 1605982,

faith and therefore in forma pauperis status is denied for the

at *4 n.6 (S.D.N.Y. Mar. 29, 2018) (noting Valentin order

purpose of any appeal. Coppedge v. United States, 369 U.S.

that had issued to identify ACS caseworkers). The Court

438, 444-45 (1962).

also requests that Corporation Counsel provide the addresses

where ACS caseworker defendants can currently be served.

SO ORDERED.

This information should be provided to the Court within 45

days from the date of this Order. After Corporation Counsel

submits that information, the United States Marshals Service

All Citations

shall serve the defendants without prepayment of fees. Once

the defendants have been identified, plaintiff's complaint shall Not Reported in Fed. Supp., 2021 WL 3472647

be deemed amended to reflect their full names.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

2021 WL 1193044 Johnson (“Johnson”), Frances Pierre (“Pierre”), and Dennis

Only the Westlaw citation is currently available. Nowak (“Nowak”), and the New York State Office of

For Online Publication Only Children and Family Services (“NYSOCFS” and collectively,

United States District Court, E.D. New York. “defendants”). In its entirety, plaintiff's fact section alleges:1

Rolanda J. DAVIS, Plaintiff, During November 10th, 2003 plaintiff Rolanda J. Davis

v. was confined to 3 different detention centers were

NYS OFFICE OF CHILDREN AND excessive force of abuse was used to subdue as well as

FAMILY SERVICES, et al., Defendants. misusage of medication, and misdiagnosis for a period

of two and a half years. While under the care of NYS

20-CV-1480 (JMA) (ARL) OCFS, Suffolk County Commissioner, and Suffolk County

| Department of Social Services.

Signed 03/30/2021

On September 21st 2017 unsupported allegations from a

Attorneys and Law Firms local shelter was ordered in a petition by Suffolk County

Rolanda J. Davis, Deer Park, NY, Pro Se. Social Services ordering a removal of a child S.D.2

Kinship resource were provided to aid child. Later JCCA

S.M.D., Pro Se. admission without parental consent wall administrated.

JCCA later informed mother of restraints used on children.

K.J.D., Pro Se. On July 26, 2018, plaintiff son was also removed without

prior supported notice and evidence to either allegation

under case file # 133449.

ORDER

Compl. ¶ II. In the space on the form that calls for a

AZRACK, United States District Judge: description of any claimed injuries, plaintiff responded:

*1 By Order dated September 24, 2020 (the “Order”), the

Court denied the application to proceed in forma pauperis

During placement in detention center

filed by pro se plaintiff Rolanda J. Davis (“plaintiff”). (Order,

little medical treatment was provided

ECF No. 7.) The Court ordered plaintiff to either remit the

after a full prone body restraint

$400 filing fee or renew her application to proceed in forma

resulting in severe body aches and

pauperis upon completion of the AO 239 Long Form in forma

pains, busted lips and emotional

pauperis application (“Long Form”) attached to the Order

discomfort. Removal of my children S

within twenty-one (21) days. (Id. at 2.) On November 19,

and K result in maladaptive behavior

2020, plaintiff filed the Long Form. (ECF No. 10.) Albeit

and complications during pregnancy

untimely, the Court accepts it for filing. Upon review, the

due to high levels of distress. Further

Court finds that plaintiff is qualified by her financial position

emotional distress and mental abject.

to commence this action without prepayment of the filing fee.

However, for the reasons that follow, the complaint is sua

sponte dismissed without prejudice pursuant to 28 U.S.C. §

1915(e)(2)(B) and with leave to file an amended complaint. Id. ¶ II.A. For relief, plaintiff seeks “[t]he reunification of

both of my children. Amnesty from the County of Suffolk

and adjust agreement. Assistive compensation awarded of

$1.6 million for past and present occurrances involving

I. THE COMPLAINT Commissioner(s) listed and both children state/federal

agencies.” Id. ¶ III.

Plaintiff's brief, handwritten complaint is submitted on

the Court's Section 1983 complaint form and names as

defendants the Suffolk County Department of Social Services

exactly as they appear in the original. Errors in defendant is liable for the misconduct alleged.” Ashcroft v.

spelling, punctuation, and grammar have not been Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). The

corrected or noted. plausibility standard requires “more than a sheer possibility

that a defendant has acted unlawfully.” Id. at 678. While “

2 The Court has used initials to identify plaintiff's ‘detailed factual allegations’ ” are not required, “[a] pleading

minor child, rather than her full name, in that offers ‘labels and conclusions’ or ‘a formulaic recitation

accordance with the E-Government Act of 2002, as of the elements of a cause of action will not do.’ ” Id. at 678

amended. (quoting Twombly, 550 U.S. at 555).

II. DISCUSSION C. Federal Rule of Civil Procedure 8

Federal Rule of Civil Procedure 8 requires a plaintiff to

A. In Forma Pauperis Application provide “a short and plain statement of the claim showing that

*2 Upon review of plaintiff's renewed application to proceed the pleader is entitled to relief” against each defendant named

in forma pauperis, the Court finds that plaintiff is qualified so that they have adequate notice of the claims against them.

to commence this case without prepayment of the filing fee. FED. R. CIV. P. 8(a)(2), see Iqbal, 556 U.S. at 678 (holding

28 U.S.C. § 1915(a)(1). Therefore, plaintiff's application to that Rule 8 “demands more than an unadorned, the-defendant-

proceed in forma pauperis is granted. unlawfully-harmed-me accusation”). The purpose of Rule 8

“is to give fair notice of the claim being asserted so as to

permit the adverse party the opportunity to file a responsive

B. Standard of Review answer, prepare an adequate defense and determine whether

Pursuant to the in forma pauperis statute, a court must dismiss the doctrine of res judicata is applicable.” Velasquez v.

an action if it determines that it “(i) is frivolous or malicious, Suffolk Cty. Police (7th Precinct), No. 19-CV-5368, 2019 WL

(ii) fails to state a claim upon which relief may be granted, or 6726217, at *3 (E.D.N.Y. Dec. 11, 2019) (internal quotation

(iii) seeks monetary relief from a defendant who is immune marks and citation omitted). A pleading that only “tenders

from such relief.” 28 U.S.C. § 1915(e)(2)(B). The Court must naked assertions devoid of further factual enhancement” will

dismiss the action as soon as it makes such a determination. not suffice. Iqbal, 556 U.S. at 678 (internal citations and

28 U.S.C. § 1915A(b). alterations omitted). Although the Court must afford pro

se pleadings a liberal construction, pro se pleadings still

Pro se submissions are afforded wide interpretational latitude must comply with Rule 8 of the Federal Rules of Civil

and should be held “to less stringent standards than formal Procedure. Ogidi-Abegaje v. Nassau Community College,

pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. No. 19-CV-5519, 2020 WL 7699643, at *1-2 (E.D.N.Y. Dec.

519, 520 (1972) (per curiam); see also Boddie v. Schnieder, 28, 2020). A court may dismiss a complaint that is “so

105 F.3d 857, 860 (2d Cir. 1997). In addition, the court is confused, ambiguous, vague or otherwise unintelligible that

required to read the plaintiff's pro se complaint liberally and its true substance, if any, is well disguised.” Salahuddin v.

interpret it as raising the strongest arguments it suggests. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).

United States v. Akinrosotu, 637 F.3d 165, 167 (2d Cir. 2011)

(per curiam) (citation omitted); Harris v. Mills, 572 F.3d 66, *3 Here, as is readily apparent, plaintiff's complaint falls far

72 (2d Cir. 2009). The Supreme Court has held that pro short of the required pleading standard. Plaintiff's allegations

se complaints need not even plead specific facts; rather the are wholly conclusory and are devoid of factual content,

complainant “need only give the defendant fair notice of what making it impossible to determine the basis for her claims,

the ... claim is and the grounds upon which it rests.” Erickson the manner in which she was allegedly harmed, and who,

v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks if anyone, harmed her. In addition, wholly absent from

and citations omitted); cf. FED. R. CIV. P. 8(e) (“Pleadings plaintiff's complaint is any description of what, if anything,

must be construed so as to do justice.”). However, a pro se each defendant named in complaint allegedly did, or failed to

plaintiff must still plead “enough facts to state a claim to do, and how such action or inaction violated plaintiff's rights.

relief that is plausible on its face.” Bell Atlantic Corp. v. See Mendes Da Costa v. Marcucilli, 675 F. App'x 15, 17 (2d

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial Cir. 2017) (summary order) (affirming dismissal where it was

to sufficiently allege a deprivation of plaintiff's constitutional 484 (2d Cir. 2006)).

rights. Because conclusory allegations are insufficient to

give fair notice of the events of which she complains, see,

e.g., Williams v. Ponte, 16-CV-5420, 2019 WL 4696425, 1. Timeliness of Plaintiff's Section 1983 Claims

*2 (E.D.N.Y. Sept. 26, 2019) (dismissing claims where As a threshold matter, to the extent that plaintiff seeks to

allegations were merely conclusory), plaintiff's complaint is impose Section 1983 liability for events alleged to have

dismissed without prejudice pursuant to Federal Rule of Civil occurred in 2003, such claims appear barred by the three-

Procedure 8 and 28 U.S.C. § 1915(e)(2)(B)(ii). year statute of limitations. See Cotto v. City of New York,

No. 17-2845, 2020 WL 1228765 (2d Cir. Mar. 13, 2020)

(“Section 1983 actions filed in New York are ... subject to a

D. Section 1983 three-year statute of limitations.”) (citation omitted); Milan

Section 1983 provides that v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015) (“Section

1983 actions in New York are subject to a three-year statute

of limitations,” which “run[s] from the time a ‘plaintiff knows

[e]very person who, under color of any or has reason to know of the injury’ giving rise to the claim.”)

statute, ordinance, regulation, custom, (first citing Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995);

or usage, of any State ... subjects, or then quoting Cornwall v. Robinson, 23 F.3d 694, 703 (2d Cir.

causes to be subjected, any citizen of 1994)). Plaintiff filed her complaint in this Court on March

the United States ... to the deprivation 16, 2020, approximately seventeen years after her alleged

of any rights, privileges, or immunities unlawful detention in 2003. (Compl. ¶ II.)

secured by the Constitution and laws,

shall be liable to the party injured .... *4 A failure to file a claim within the statute of limitations

period is an affirmative defense, and sua sponte dismissal

of plaintiff's claims arising from conduct alleged to have

42 U.S.C. § 1983. In order to state a § 1983 claim, a occurred in 2003 as time-barred is generally improper without

plaintiff must allege two essential elements. First, the conduct first providing plaintiff notice and an opportunity to be heard.

challenged must have been “committed by a person acting See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007) (holding

under color of state law.” Cornejo v. Bell, 592 F.3d 121, that it was error for the district court to sua sponte dismiss

127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, a prisoner's complaint with prejudice on the basis of an

547 (2d Cir. 1994)); see also Am. Mfrs. Mut. Ins. Co. v. anticipated statute of limitations defense without granting the

Sullivan, 526 U.S. 40, 50 (1999) (“[T]he under-color-of- prisoner notice and an opportunity to be heard). “Dismissal is

state-law element of § 1983 excludes from its reach merely appropriate, however, where the existence of an affirmative

private conduct, no matter how discriminatory or wrongful.”) defense, such as the statute of limitations, is plain from the

(internal quotation marks and citation omitted). Second, “the face of the pleading.” Harris v. Admin. for Children Servs.,

conduct complained of must have deprived a person of rights, No. 20-CV-6832, 2020 WL 5983236, at *2 (S.D.N.Y. Oct.

privileges or immunities secured by the Constitution or laws 7, 2020) (citing Walters v. Indus. and Commercial Bank

of the United States.” Id.; see also Snider v. Dylag, 188 F.3d of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011); Pino v.

51, 53 (2d Cir. 1999). The statute of limitations applied to Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte

claims brought pursuant to Section 1983 is three years. See dismissal under 28 U.S.C. § 1915(d) on statute of limitations

Kelly v. New York, 19-CV-2063, 2020 WL 7042764, *12 grounds)). Given plaintiff's pro se status and in an abundance

(E.D.N.Y. Nov. 30, 2020) (citing N.Y. C.P.L.R. § 214(5); of caution, plaintiff's Section 1983 claims are dismissed

Wheeler v. Slanovec, 16-CV-9065, 2019 WL 2994193, *5 without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)

(S.D.N.Y. July 9, 2019) (“[F]ederal courts in New York apply and with leave to file an amended complaint as set forth

a three-year statute of limitations for personal injury actions below.

to § 1983 claims”) (additional citation omitted)). Moreover,

in an action brought pursuant to Section 1983, a plaintiff 2. Personal Involvement

must allege the personal involvement of the defendant in the Plaintiff names Commissioners Johnson, Pierre, and Nowak

purported constitutional deprivation. Farid v. Ellen, 593 F.3d

allegations against any of them. Indeed, the only mention violation based on the removal of children from the home,

these individuals is in the caption of the complaint. (See “ ‘a plaintiff must demonstrate that the state action was so

Compl, generally.) As noted above, in order to allege a egregious, so outrageous, that it may fairly be said to shock

plausible § 1983 claim, a plaintiff must allege the personal the contemporary conscience.’ ” Mortimer v. City of N.Y.,

involvement of the defendant in the purported constitutional No. 15-CV-7186, 2018 WL 1605982, at *14 (S.D.N.Y. Mar.

deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) 29, 2018) (quoting Southerland, 680 F.3d at 151) (internal

(citing Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)). quotation marks omitted). In addition, procedural due process

As the Second Circuit recently made clear, “there is no requires that, “before parents may be deprived of the care,

special rule for supervisory liability” and, in order “[t]o hold custody, or management of their children without their

a state official liable under § 1983, a plaintiff must plead and consent, due process -- ordinarily a court proceeding resulting

prove the elements of the underlying constitutional violation in an order permitting removal --must be accorded to them.”

directly against the official without relying on a special test for Hagans, 2020 WL 1550577, at *5 (internal quotation marks

supervisory liability.” Tangreti v. Bachmann, 983 F.3d 609, and citation omitted). However, “children may be removed

618 (2d Cir. 2020). Where a Section 1983 claim fails to allege without a court order or parental consent in emergency

the personal involvement of the defendant, it fails as a matter circumstances where there is objectively reasonable evidence

of law. See Johnson v. Barney, 360 F. App'x 199, 201 (2d Cir. that the ‘children will be left bereft of care and supervision’

2010). and that the risk of harm to the children is imminent.”

Hagans, 2020 WL 1550577, at *5 (citing Mortimer, 2018 WL

Here, as is readily apparent, plaintiff has not alleged any 1605982, at *16).

facts from which the Court could reasonably construe

a plausible Section 1983 claim against these defendants. *5 As is readily apparent, plaintiff's sparse allegations do

Indeed, although plaintiff names Commissioners Johnson, not allege a plausible due process claim under a theory

Pierre, and Nowak as defendants, there are no allegations of of either substantive or procedural due process. Wholly

conduct or inaction attributable to any of them. Thus, plaintiff absent are any factual allegations from which the Court

has not alleged a plausible claim against Commissioners could reasonably construe a plausible due process claim.

Johnson, Pierre, and Nowak and these claims are dismissed Accordingly, plaintiff's due process claim is dismissed

without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)

(ii). See Gray v. Nassau Cty. Jail, No. 20-CV-02585, 2020 and with leave to file an amended complaint.

WL 4783400, at *3 (E.D.N.Y. Aug. 18, 2020) (sua sponte

dismissing Section 1983 claims pursuant to 28 U.S.C. §§

1915(e)(2)(B)(ii), 1915A(b) where plaintiff did not include 4. Immunity

any facts from which the Court could plausibly construe a Even if plaintiff had properly alleged a plausible Section

Section 1983 claim against supervisors). 1983 claim, her claims against the NYSOCFS are barred

by the Eleventh Amendment. “[A]s a general rule, state

governments may not be sued in federal court unless they

3. Due Process Claims have waived their Eleventh Amendment immunity, or unless

Affording the pro se complaint a liberal construction, Congress has abrogate[d] the states’ Eleventh Amendment

it appears that plaintiff seeks to pursue a due process immunity....” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d

claim under the Fourteenth Amendment. “Parents have a Cir. 2009) (internal quotation marks and citation omitted,

‘substantive right under the Due Process Clause to remain second alteration in original). “This immunity shields states

together with their children without the coercive interference from claims for money damages, injunctive relief, and

of the awesome power of the state.’ ” Hagans v. Nassau Cty. retrospective declaratory relief.” Yi Sun v. Saslovsky, No.

Dep't of Soc. Servs., No. 18-CV-1917, 2020 WL 1550577, at 19-CV-10858, 2020 WL 6828666, at *3 (S.D.N.Y. Aug. 6,

*5 (E.D.N.Y. Mar. 31, 2020) (quoting Southerland v. City of 2020) (citing Green v. Mansour, 474 U.S. 64, 72-74 (1985);

N.Y., 680 F.3d 127, 142 (2d Cir. 2012)) (additional citation Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

omitted). “While a procedural due process claim challenges 101-02 (1984)).

the procedure by which a removal is effected, a substantive

due process claim challenges the ‘fact of the removal’ itself.” NYSOCFS is an arm of the State of New York and, as such,

241 F. Supp. 3d 413, 421-22 (S.D.N.Y. 2017) (OCFS enjoys must describe all relevant events, stating the facts that support

Eleventh Amendment immunity); Finch v. N.Y.S. Office of plaintiff's case, including what each defendant did or failed

Children & Family Servs., 499 F. Supp. 2d 521, 535-36 to do and how each defendants acts or omissions violated

(S.D.N.Y. 2007) (holding that Statewide Central Register of plaintiff's rights. If plaintiff does not know the identities of

Child Abuse and Maltreatment (“SCR”) supervisors that were the individuals she seeks to hold liable, she may name them

sued in their official capacities enjoy same); Valmonte v. as John Doe or Jane Doe and shall provide sufficient factual

Peralesa, 788 F. Supp. 745, 755 (S.D.N.Y. 1992) (holding that information in support of her claims against them.

the County Social Services Commissioners who supervise

SCR enjoy same), rev'd on other grounds sub nom. Valmonte *6 Any amended complaint shall be clearly labeled

v. Bane, 18 F.3d 992 (2d Cir. 1994)). Accordingly, the “Amended Complaint”, shall bear the same docket number as

Court dismisses plaintiff's Section 1983 claims against the this Order, 20-CV-1480, and shall be filed within thirty (30)

NYSOCFS pursuant to 28 U.S.C. § 1915(e)(2)(B) because days from the date of this Order. If submitted, the amended

complaint will be reviewed for compliance with this Order

such claims are barred by Eleventh Amendment immunity.3

and for sufficiency under FED. R. CIV. P. 8 and 28 U.S.C.

§ 1915. Should plaintiff prepare an amended complaint, she

3 Such claims are also implausible because a state should carefully consider this Order and amend her claims

agency is not a “person” for purposes of Section accordingly.

1983 liability. Saslovsky, 2020 WL 6828666, at *3

n. 2 (citing Will v. Mich. Dep't of State Police, 491 If plaintiff again fails to plead sufficient facts in her amended

U.S. 58 (1989)) (holding that a state agency is not a complaint, or if she fails to file an amended complaint within

“person” for the purpose of section 1983 liability). thirty (30) days, she will not have another opportunity to

re-plead, and the Court will enter judgment. Alternatively,

plaintiff may pursue any valid claims she may have against

III. LEAVE TO AMEND the defendants under state law in state court.

A pro se plaintiff should ordinarily be given the opportunity

“to amend at least once when a liberal reading of the

complaint gives any indication that a valid claim might be IV. CONCLUSION

stated.” Shomo v. City of New York, 579 F.3d 176 (2d

Cir. 2009) (quoting Gomez v. USAA Fed. Sav. Bank, 171 For the forgoing reasons, the plaintiff's application to proceed

F.3d 794, 795-96 (2d Cir. 1999) (internal quotation marks in forma pauperis is granted, but the complaint is dismissed

omitted)). Yet while “pro se plaintiffs are generally given without prejudice pursuant to Federal Rule of Civil Procedure

leave to amend a deficient complaint, a district court may 8 and 28 U.S.C. § 1915(e)(2)(B). Plaintiff is granted leave to

deny leave to amend when amendment would be futile.” Id. file an amended complaint within thirty (30) days from the

(citations omitted). date of this order.

Here, in an abundance of caution, the Court grants plaintiff The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that

thirty (30) days to amend her complaint to properly state a any appeal from this Order would not be taken in good

claim. Should plaintiff choose to file an amended complaint, faith and therefore in forma pauperis status is denied for the

the amended complaint must allege facts in support of her purpose of any appeal. See Coppedge v. United States, 369

claims, including facts showing that equitable tolling applies U.S. 438, 444–45 (1962).

to her untimely claims. She must also provide facts stating

a claim for relief. Plaintiff must allege who violated her

SO ORDERED.

federally protected rights; what facts show that her federally

protected rights were violated; when such violation occurred; All Citations

where such violation occurred; and why she is entitled to

relief. She must also name as defendants the individuals who Not Reported in Fed. Supp., 2021 WL 1193044