Bano v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

MUSSARAT BANO and BASHIR RAHEE,

Plaintiffs,

-against-

MEMORANDUM

AND ORDER

UNITED STATES OF AMERICA; THE CITY OF NEW

No. 23-CV-4773

YORK; NEW YORK CITY ADMINISTRATION FOR

CHILDREN’S SERVICES COMMISSIONER JESS

DANNHAUSER, in his official capacity; NEW YORK

CITY ADMINISTRATION FOR CHILDREN’S

SERVICES CASEWORKER NICOLE RAMIREZ, in

her individual and official capacity; LITTLE FLOWER

CHILDREN AND FAMILY SERVICES CHIEF

EXECUTIVE OFFICER CORINNE HAMMONS, in her

official capacity; LITTLE FLOWER CHILDREN’S

SERVICES CASE PLANNER RENEE HARTLEY-

SAMMS, in her individual capacity,

Defendants.

For the Plaintiff: For Defendant U.S.A.:

JULIA HERNANDEZ MARIKA M. LYONS

TAREK Z. ISMAIL U.S. Attorney’s Office, E.D.N.Y.

CUNY School of Law 271 Cadman Plaza East

2 Court Square Brooklyn, New York 11201

Long Island City, NY 11101

For the N.Y.C. Defendants:

DARIAN ALEXANDER

New York City Law Department

100 Church Street

New York, New York 10007

For the Little Flower Defendants:

MICHAEL C. BECKER

Rutherford & Christie, LLP

800 Third Avenue, 9th Floor

New York, New York 10022

BLOCK, Senior District Judge:

Mussarat Bano and Bashir Rashee (“Plaintiffs”) have brought this action for

declaratory relief and damages against the United States of America (“U.S.” or

“Government”), New York City (“City”), and officials and employees from New

York City Administration for Children’s Services (“ACS”) and Little Flower

Children and Family Services (“Little Flower”). Plaintiffs’ suit emanates,

principally, from the alleged “seizure” of Plaintiffs’ 16-year-old daughter from a

shopping mall in Pakistan by the Government. and the defendants’ subsequent

failure to provide information or answer their questions about their child’s

whereabouts once she returned to the United States.

Plaintiffs’ Amended Complaint advances seven claims against the

defendants, in various iterations: two claims against the U.S. under the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–2680, for intentional infliction

of emotional distress (“IIED”) and negligence; three 42 U.S.C. § 1983 claims—for

violations of procedural and substantive due process, and interference with

intimate association—against the City, Dannhauser and Ramirez (the “City

Defendants”), as well as Little Flower CEO Corinne Hammons and Little Flower

caseworker Renee Hartley-Samms ( the “Little Flower Defendants”); a § 1983

claim for inadequate training and supervision against the City and Dannhauser; and

a malicious prosecution claim against the City Defendants.

Each of the defendants has now moved to dismiss the complaint arguing,

inter alia, that their conduct was a reasonable response to the child’s serious

allegations of parental abuse. Initially, the U.S. has moved to dismiss the FTCA

claims pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of

jurisdiction and, alternatively, under 12(b)(6) for failure to state a substantive

claim. The City Defendants and Little Flower Defendants have moved pursuant to

12(b)(6) to dismiss all of Plaintiffs’ claims against them.

I. Legal Standards

In reviewing a 12(b)(1) motion to dismiss, the Court must “draw all

inferences in favor of Plaintiffs, [who] must prove by a preponderance of the

evidence that subject matter jurisdiction exists.” Nouritajer v. Jaddou, 18 F.4th 85,

88 (2d Cir. 2021). The court must accept as true all non-conclusory factual

allegations in the complaint, “unless contradicted by more specific allegations or

documentary evidence.” Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140,

145 (2d Cir. 2011).

“[A] defendant is permitted to make a fact-based Rule 12(b)(1) motion,

proffering evidence beyond the Pleading.” Carter v. HealthPort Techs., LLC, 822

F.3d 47, 57 (2d Cir. 2016). “In opposition to such a motion, the plaintiffs will need

to come forward with evidence of their own to controvert that presented by the

defendant ‘if the affidavits submitted on a 12(b)(1) motion . . . reveal the existence

of factual problems’ in the assertion of jurisdiction.” Id. (quoting Exch. Nat’l Bank

of Chi. v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976)). “However, the

plaintiffs are entitled to rely on the allegations in the Pleading if the evidence

proffered by the defendant is immaterial because it does not contradict plausible

allegations that are themselves sufficient” to establish subject-matter jurisdiction.

Id.

Thus, in resolving disputed jurisdictional factual issues, the court may rely

on evidence presented outside the pleadings, such as affidavits. See Zappia Middle

E. Const. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); see also

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“In resolving a

motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a

district court . . . may refer to evidence outside the pleadings.”). The Court may

also take judicial notice of relevant documents. See Hertz Corp. v. City of New

York, 1 F.3d 121, 125 (2d Cir. 1992).

The Government has supplied the Declaration of Kristina Beard, ECF No.

60-2, and multiple accompanying documents in support of its 12(b)(1) motion.1

These documents are chiefly government records and email correspondence. They

1 The Beard Declaration and accompanying exhibits were submitted under seal. The Court in its

discretion is unsealing the select portions of those exhibits referenced here in order to fully set

forth the background facts underlying this dispute. See Team Obsolete Ltd. v. A.H.R.M.A. Ltd.,

464 F. Supp. 2d 164, 165 (E.D.N.Y. 2006) (“The decision to unseal a document filed under seal

is a matter left to the district court’s discretion.”).

have the imprimatur of trustworthiness, and the Plaintiffs have raised no concern

with the Court’s taking them into account. See Firestone v. Fed. Retirement Thrift

Inv. Bd., 375 F. Supp. 3d 102, 112 (D.D.C. 2019) (noting that a “presumption of

regularity attaches to ordinary-course government records” absent clear contrary

evidence (citation modified)). The Court accordingly considers these documents in

analyzing the Government’s 12(b)(1) motion.

Different standards, however, govern the Court’s analysis of the defendants’

multiple Rule 12(b)(6) motions. There, the Court assumes the complaint’s factual

allegations, but not legal conclusions, to be true. See Pension Ben. Guar. Corp. ex

rel. St. Vincent Cath. Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc.,

712 F.3d 705, 717 (2d Cir. 2013). To survive, the complaint must include sufficient

facts to state a claim to relief that is facially plausible, see Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007), i.e., the plaintiff must plead “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). Thus, in

evaluating the several Rule 12(b)(6) motions, the Court limits review of the facts to

those alleged in the Amended Complaint. The Court may also take judicial notice

of matters of public record, such as court documents. See Pani v. Empire Blue

Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998) (“It is well established that a

district court may rely on matters of public record in deciding a motion to dismiss

under Rule 12(b)(6).”).

II. Statement of Facts

The following facts are drawn from both the Plaintiffs’ Amended Complaint,

ECF No. 27, and the exhibits accompanying the Beard and Alexander

Declarations, ECF Nos. 60-2, 68. The Court integrates them to set forth the most

complete and coherent account of the facts at issue but will explain in its analysis

and resolution of the 12(b)(1) and 12(b)(6) motions which facts are relevant in

respect to each motion.

Plaintiffs Bano and Rahee have six children: five sons and one daughter,

F.B.2 Am. Compl. ¶ 26. The family emigrated from Pakistan to the U.S. when F.B.

was four years old and lives in Montrose, New York. Id. ¶¶ 26, 27. In July 2019,

the family traveled to Pakistan to visit extended family, including F.B.’s uncle and

aunt. Id. ¶ 27; Beard Decl. Ex. A. At some point prior to June 2020, Rahee, F.B.’s

father, returned to New York. Am. Compl. ¶ 27; Beard Decl. Ex. A.

On June 17, 2020, F.B. called the U.S. consulate in Lahore, Pakistan, and

“state[d] her uncle and aunt have beaten her several times” and she was worried

2 Plaintiffs have initialized their daughter’s name pursuant to FRCP 5.2(a), which provides “the

name of an individual known to be a minor” may be replaced by the minor’s initials. The privacy

afforded F.B. by this initialization provides further support for the Court’s decision to unseal

select portions of the documents attached to the Beard Declaration. See supra note 1.

that her family would not allow her to return to the U.S. Beard Decl. Ex. A. F.B.

said she had reported the matter to the local police, but they would not intervene

because it was a “family matter.” Id. She explained that she was concerned about a

possible forced marriage and asked for help to return to the U.S. She was afraid

that her family would “make her disappear” if she stayed in Pakistan. Id.

That day, Lahore consular chief Kelly Kopcial began communicating with

F.B. by phone and email. Beard Decl. Ex. C. F.B. repeated her fears. She also

explained that her father had taken her passport before his return to New York and

that her brother “said he was canceling my ticket” because she threatened to call

the police. Beard Decl. Exs. C, D. That same day, Kopcial began speaking with

State Department officials about F.B.’s case and how it might be possible, if at all,

to effectuate her return. Beard Decl. Ex. C.

The next day, June 18, 2020, Kopcial informed F.B. that the consulate was

working to obtain the requisite permissions to issue F.B. a new passport. Beard

Decl. Ex. B. Kopcial also asked F.B.’s permission to share her information with

Health and Human Services (“HHS”) and inquired whether her mother was

inclined to permit her to return. Id. F.B. agreed to share her information and

explained that “[n]o one is supportive of me getting home at all.” Id. She added

that her mother wanted her to stay in Pakistan permanently and had “let her brother

and his wife beat me up multiple times and supported and abused me with them.”

Id.

During the following days, Kopcial and F.B. stayed in regular contact

regarding the issuance of the passport and the logistics of her departure. Id. On

June 22, 2020, Kopcial told F.B. she had received permission to issue an

emergency passport, and that HHS had contacted social services in New York

concerning F.B.’s case. Id. Arrangements were being made for a consulate staffer

to meet F.B. at a local mall, where F.B. would try to slip away from her family. Id.

On June 23, 2020, F.B. did just that. When she and Bano were at a shopping

mall that day, F.B. stepped into a store and never emerged. Am. Compl. ¶ 30.

Rather than return to her mother, she met at the mall with staff from the consulate,

which had arranged an airline ticket for her to travel to New York. Beard Decl. Ex.

D.

Bano was terrified that F.B. had been abducted or trafficked. Am. Compl. ¶

31. She contacted mall security and Pakistani police, who reviewed security

camera footage and learned that F.B. had been escorted from the mall by an

unidentified individual and driven to the U.S. consulate in Lahore. Id. at ¶¶ 30–31.

Bano and Rahee both called the consulate and the U.S. embassy in Islamabad but

received no response as to F.B.’s whereabouts or well-being until June 29, 2020,

nearly a week later, when they were informed by an unnamed State Department

official that F.B. had left Pakistan and was safe. Id. at ¶¶ 32–33.

Earlier, on June 26, 2020, Kopcial had written an email to Rahee stating:

“We have received your June 25 email concerning your daughter, [F.B.]. The

Department’s Office of Overseas Citizen Services is also aware of the case and

alerted us to your recent phone call to report the issue. Due to privacy

considerations, we are prohibited by law from discussing issues related to an

ongoing Consular case.” Beard Decl. Ex. G.

Also on June 26, 2020, F.B. had arrived at JFK Airport in New York, where

officials had arranged for a case worker to meet her. Beard Decl. Exs. F, I. At that

time, ACS took custody of F.B. when its caseworker Ramirez met her at the

airport. Am. Compl. ¶¶ 39, 41. F.B. told Ramirez that her father was in New York.

Id. at ¶ 41.

On June 30, 2020, Little Flower caseworker Hartley-Samms accepted

assignment of F.B.’s case without verifying or confirming whether there was a

court order authorizing her to take custody of F.B. Id. at ¶¶ 43–44. On July 6, 2020,

Hartley-Samms organized a “transitional conference,” attended by herself, F.B.,

F.B.’s assigned foster parent, and Ramirez, to discuss how to proceed. Id. at ¶ 45.

Neither Ramirez nor Hartley-Samms notified Plaintiffs of this meeting. Id.

The following day, July 7, 2020, Dannhauser and Ramirez filed a

“meritless” Destitute Child Petition in the New York County Family Court, which

Ramirez signed under oath. Id. at ¶¶ 46–47. In this petition, Ramirez alleged—

without investigating—that F.B.’s family was forcing her to marry against her will

and that the whereabouts of F.B.’s parents was “unavailable.” Id. at ¶¶ 49, 51.

Almost three months later, on September 29, 2020, Dannhauser and Ramirez

withdrew the Destitute Child Petition and replaced it with an Abuse Petition. Id. at

¶ 52. On that same day, the Family Court issued an order directing the temporary

removal of F.B. Alexander Decl. Ex. C.

Meanwhile, F.B.’s family had been trying to obtain information about her

whereabouts. On the day F.B. had arrived in the United States—June 26, 2020—a

State Department official had contacted F.B.’s repatriation case manager,

conveying that there had been calls from her family reporting she had been

kidnapped. Beard Decl. Ex. I. The official suggested to the case manager that F.B.

should contact her family in Pakistan to assure them she was okay, but the case

manager reported that F.B. did not want to do that. Id.

On July 2, 2020, Kopcial wrote to F.B., informing her that her mother had

visited the embassy, seeking information about F.B. Beard Decl. Ex. H. Kopcial

asked F.B. to either send a brief message to her parents to let them know she was in

the U.S. and safe, or to sign a Privacy Act waiver enabling the consulate to do so.

Id. F.B. insisted she did not want her parents contacted and “want[ed] them to

continue thinking I’m still in Pakistan.” Id.

It was not until July 20, 2020—eighteen days later—when Plaintiffs learned

from the New York State police that F.B. had arrived at JFK in late June and was in

the custody of a child protective services agency; neither federal nor state officials

would confirm which agency had custody. Am. Compl. ¶ 35. On July 24, 2020,

Plaintiffs learned that F.B. was in the legal and physical custody of ACS, and that

Hartley-Samms had accepted F.B.’s case. Id. at ¶¶ 36, 43.

On February 14, 2022, the Family Court dismissed the City Defendants’

Abuse Petition without making any findings concerning the alleged maltreatment

or abuse. Id. at ¶ 53. F.B. then was reunited with her family. Id. at ¶ 5. In 2023 she

left to study in London. Id.

III. The Government’s Motions to Dismiss

A. Jurisdictional Issues

Although the U.S. may ordinarily be liable for IIED and negligence tort

claims under the FTCA, the Government argues in its 12(b)(1) motion that several

exceptions to this waiver of sovereign immunity apply—most significantly, that the

Government conduct at issue occurred in a foreign country. See Badilla v. Midwest

Air Traffic Control Serv., Inc., 8 F.4th 105, 121 (2d Cir. 2021) (“The FTCA

contains several exceptions, which preserve the Government’s sovereign immunity

under specified circumstances.” (citing 28 U.S.C. § 2680)). Plaintiffs bear the

initial burden of showing that their claims fall within the FTCA’s limited waiver of

immunity and are not barred by an exception under the statute. See Cangemi v.

United States, 13 F.4th 115, 130 (2d Cir. 2021).

The U.S. argues that there are three reasons that it is immune to suit on

Plaintiffs’ FTCA tort claims, notwithstanding the FTCA’s waiver: (1) the foreign

country exception to the FTCA, which applies to claims arising in other countries;

(2) the discretionary function exception, which applies to certain discretionary

acts of government employees; and (3) the private analog requirement, which

precludes claims against the U.S. for which there is no comparable private tort.

1. Foreign Country Exception Defined

The foreign country exception, is set forth in the text of the FTCA, which

restores the U.S.’s sovereign immunity for “[a]ny claim arising in a foreign

country.” 28 U.S.C. § 2680(k).

The Government argues that this exception bars Plaintiffs’ claims because

the conduct of which Plaintiffs complain—removing F.B. from their custody and

transporting her back to the U.S. without any notification or warning—all occurred

in Pakistan.

Plaintiffs agree that the foreign country exception bars them from recovering

for any injuries suffered in Pakistan3 but argue that they nonetheless have a

cognizable claim against the Government because they suffered additional injuries

in the United States when the Government continued to deprive them of their

daughter’s custody by failing to inform them of her whereabouts.

This case, therefore, raises the question of whether a plaintiff can assert a

cognizable FTCA claim for additional injuries that occurred after the initial injuries

suffered in a foreign country by reason of the Government’s subsequent tortious

conduct in the United States. Based upon the Court’s research, no reported case has

addressed this precise question.

The beginning point in the Court’s analysis is the seminal Supreme Court

case of Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). There the plaintiff, a

Mexican national, was abducted from Mexico to stand trial in the United States for

the torture and murder of a DEA agent in Mexico. He was subsequently acquitted

and sued the United States under the FTCA. In refusing to dismiss the case, the

Ninth Circuit relied on what had become known as the “headquarters doctrine,”

precluding the application of the foreign country exception for claims which

3 The exception also encompasses claims based on torts that occur at U.S. embassies and on

property located in a foreign country. See Smith v. United States, 507 U.S. 197, 203–04 (1993)

(FTCA waiver inapplicable to torts occurring at U.S. facility in Antarctica); Galvin v. United

States, 859 F.3d 71, 73 (D.C. Cir. 2017) (diplomatic housing); Asmah v. U.S. Consulate Accra

Ghana, No. 15-CV-3742, 2016 WL 2993203, at *4 (S.D.N.Y. May 23, 2016) (embassy).

“typically involve allegations of negligent guidance in an office within the United

States of employees who cause damage while in a foreign country, or activities

which take place in a foreign country.” Id. at 701 (citation modified). Its reasoning

was that since the plaintiff’s abduction in Mexico “was the direct result of

wrongful acts of planning and direction by DEA agents located in California, his

abduction ‘fits the headquarters doctrine like a glove.’” Id. at 702 (citation

modified).

In reversing, the Supreme Court principally reasoned that “[w]hen the FTCA

was passed, the dominant principle in choice-of-law analysis for tort cases was lex

loci delicti: courts generally applied the law of the place where the injury

occurred.” Id. at 705. “For a plaintiff injured in a foreign country, then, the

presumptive choice in American courts under the traditional rule would have been

to apply foreign law to determine the tortfeasor’s liability.” Id.

The Court concluded that “[t]he application of foreign substantive law . . .

was, however, what Congress intended to avoid by the foreign country exception.”

Id. It bolstered its conclusion by drawing from the statute’s legislative history:

The object being to avoid application of substantive foreign law,

Congress evidently used the modifier ‘arising in a foreign country’ to

refer to claims based on foreign harm or injury, the fact that would

trigger application of foreign law to determine liability. That object,

addressed by the quoted phrase, would obviously have been thwarted,

however, by applying the headquarters doctrine, for that doctrine

would have displaced the exception by recasting claims of foreign

injury as claims not arising in a foreign country because some

planning or negligence at domestic headquarters was their cause. And

that, in turn, would have resulted in applying foreign law of the place

of injury, in accordance with the choice-of-law rule of the

headquarters jurisdiction.

Id. at 706.

The Court held, therefore, “that the FTCA’s foreign country exception bars

all claims based on any injury suffered in a foreign country, regardless of where the

tortious act of omission occurred.” Id. at 712. The Ninth Circuit faithfully

subsequently followed Sosa. See S.H. by Holt v. United States, 853 F.3d 1056,

1058 (9th Cir. 2017) (holding that for purposes of the FTCA’s foreign country

exception “an injury is suffered where the harm first impinges upon the body, even

if it is later diagnosed elsewhere” (citation modified)).

2. Post-Sosa Decisions

None of the post-Sosa cases address the precise issue now confronting the

Court. Since Sosa the Second Circuit has only twice opined on the foreign country

exception, both times in non-precedential summary orders. See Rodriguez v. U.S.

Army, 788 F. App’x 67 (2d Cir. 2019) (summary order); Leytman v. United States,

832 F. App’x 720 (2d Cir. 2020) (summary order). In Rodriguez, the Circuit tersely

affirmed a district court order that had dismissed FTCA claims arising from a

murder committed by a U.S. servicemember in Panama, finding the foreign

country exception squarely applied. See 788 F. App’x at 68. In Leytman, a pro se

plaintiff alleged that security officials had subjected him to heightened screening at

the Moscow airport prior to boarding a flight to New York. The Circuit found these

allegations likewise to be unambiguously encompassed by the exception, noting

that in light of Sosa’s repudiation of the “headquarters doctrine” this would be true

even if orders for the enhanced screening in Moscow had originated in the U.S. See

832 F. App’x at 722.

There are a handful of decisions by Second Circuit district courts applying

the exception post-Sosa. See Roe v. United States, No. 18-CV-2644, 2019 WL

1227940 (S.D.N.Y. Mar. 15, 2019); Asmah v. U.S. Consulate Accra Ghana, No. 15-

CV-3742, 2016 WL 2993203 (S.D.N.Y. May 23, 2016); In re Agent Orange Prod.

Liability Litig., 373 F. Supp. 2d 7 (E.D.N.Y. 2005). None involved a comparable

scenario. Roe concerned a plaintiff’s removal from the United States to a foreign

country, and the district court found the exception inapplicable because the “last

act necessary to establish liability” occurred in the U.S. 2019 WL 1227940, at *5

(citing Sosa, 542 U.S. at 75). Asmah held that the exception applied to alleged torts

occurring at the U.S. embassy in Ghana, see 2016 WL 2993203, at *4, while the

sprawling Agent Orange case concerned a unique scenario involving tort claims

against the manufacturers of Agent Orange and herbicides used in the Vietnam war.

The decisions of other circuit courts are also inapt. Perhaps, arguably, the

most relevant are those where a few appellate courts have articulated a “derivative

injury” doctrine. See Harbury v. Hayden, 522 F.3d 413, 423 (D.C. Cir. 2008);

Gross v. United States, 771 F.3d 10, 13 (D.C. Cir. 2014) (affirming dismissal of

alleged economic injuries of American contractor detained and imprisoned in Cuba

as derivative of foreign injuries); S.H. by Holt v. United States, 853 F.3d 1056,

1063 (9th Cir. 2017) (finding cerebral palsy injury diagnosed in the U.S. to be

derivative of premature birth and permanent injury suffered in Spain); see also

Klayman v. Obama, 125 F. Supp. 3d 67, 85–86 (D.D.C. 2015) (applying derivative

injury doctrine to claims of IIED alleged by relatives of individuals killed in

Israel).

Thus, in Harbury, the D.C. Circuit found the exception applicable to claims

brought by the widow of a Guatemalan rebel who sued U.S. officials for

negligence and infliction of emotional distress she suffered in the United States

arising from the torture and killing of her husband in Guatemala. But those injuries

were clearly derivative because they were based “entirely on the injuries her

husband suffered [in Guatemala].” 522 F.3d at 423. The court explained that “[a]

plaintiff in Harbury’s situation cannot plead around the FTCA’s foreign-country

exception simply by claiming injuries such as ‘emotional distress’ that are

derivative of the foreign-country injuries at the root of the complaint.” Id. To

permit such claims under the FTCA “would threaten to ‘swallow the foreign

country exception whole.’” Id. (quoting Sosa, 542 U.S. at 703).

There are also some appellate decisions reiterating Sosa’s focus on the

location of the injury in other factual contexts. See, e.g., Hernandez v. U.S., 757

F.3d 249, 258 (5th Cir. 2014).4 In Hernandez, the Fifth Circuit was confronted with

claims brought by the family of a man allegedly shot while standing in Mexico by

a border patrol agent standing in the U.S. The court reasoned that because the

victim was undisputedly standing in Mexico at the time he was shot, “[a]ny claim

will therefore necessarily be based on an injury suffered in a foreign country.” Id.

The Ninth Circuit analyzed a still more improbable scenario in Quintero Perez v.

United States, finding the exception inapplicable in the case of a man who was

standing on the border fence when he was shot and killed by a border agent, his

body landing halfway across the border. 8 F.4th 1095. Because the fence on which

he was standing when shot was built within U.S. boundaries, “the injury took place

in the United States, so the foreign country exception d[id] not apply.” Id. at 1101

n.1.

Numerous other appellate decisions provide limited aid, as they are largely

confined to analyzing the applicability of the exception to various types of

facilities. See Galvin v. United States, 859 F.3d 71, 74 (D.C. Cir. 2017) (holding

4 The full Fifth Circuit affirmed after a rehearing en banc. See Hernandez v. United States, 785

F.3d 117 (5th Cir. 2015). The Supreme Court then vacated on other grounds, holding that the

Fifth Circuit had erred in granting qualified immunity because the nationality of the victim was

unknown to the border patrol agent at the time of the shooting. See Hernandez v. Mesa, 582 U.S.

548, 554 (2017).

that foreign country exception applies to claim of faulty construction in diplomatic

housing abroad); Doe v. Meron, 929 F.3d 153, 167 (4th Cir. 2019) (affirming

exception applies to U.S. military bases abroad). Others simply echo holdings

found in the Second Circuit cases. See, e.g. Arce v. United States, 899 F.3d 796,

801 n.5 (9th Cir. 2018) (noting à la the S.D.N.Y. decision in Roe that FTCA claims

concerning plaintiff’s deportation from the U.S. are not covered by the exception).

3. Foreign Country Exception Applied

How then should the present case be resolved, where the Plaintiffs plead that

they suffered additional emotional injuries in the United States by reason of the

torts committed by the U.S. in New York because of the Government’s alleged

negligence in failing to timely advise the Plaintiffs of their daughter’s safety and

whereabouts in the United States?

Plainly this is not a headquarters case, which would entail planning in the

United States before the injuries occurred. Nor is the “derivative injuries”

preclusion concept a relevant fit because Plaintiffs’ injuries were not simply

derived from the Government’s foreign behavior; rather they were newly created

by the Government’s separate alleged tortious conduct in the United States.

In the Court’s view, the conceptual basis for resolving the question is

bottomed in the underlying rationale for Congress’ enactment of the foreign

country exception as explained in Sosa, namely the need to avoid having to apply

foreign law. That is plainly not an issue here since the alleged tortious behavior

which caused the additional emotional injuries occurred in the United States.

Therefore, the foreign country exception will not bar the Court from accepting

jurisdiction over Plaintiffs’ FTCA suit.

Nor will the other bases for the Government’s immunity claim.

4. Discretionary Function Exception

The Government makes a second immunity argument because of the

“discretionary function” exception (“DFE”). This exception applies to claims based

on the acts of a Government employee “exercising due care, in the execution of a

statute or regulation . . . or based upon the exercise or performance or the failure to

exercise or perform a discretionary function or duty[.]” 28 U.S.C. § 2680(a). “The

exception covers only acts that are discretionary in nature, acts that ‘involv[e] an

element of judgment or choice.’” United States v. Gaubert, 499 U.S. 315, 322

(1991) (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)).

Additionally, “the exception ‘protects only governmental actions and decisions

based on considerations of public policy.’” Id. at 323 (quoting Berkovitz, 486 U.S.

at 537).

Thus, the exception bars FTCA suits if two conditions are met: “(1) the acts

alleged to be [tortious] must be discretionary, in that they involve an ‘element of

judgment or choice’ and are not compelled by statute or regulation and (2) the

judgment or choice in question must be grounded in ‘considerations of public

policy’ or susceptible to policy analysis.” Coulthurst v. United States, 214 F.3d

106, 109 (2d Cir. 2000) (citing Berkovtiz and Gaubert).

The Government contends that its actions in helping F.B. leave Pakistan and

declining to provide timely information of her whereabouts to her parents are

encompassed by the DFE. It argues that they were discretionary decisions, rooted

in policy considerations and that consular assistance to minors implicates multiple

statutes and regulations which authorize officials to use their judgment. See, e.g.,

22 C.F.R. § 51.28(b)(1) (providing that minors who are age 16 and older may

execute their own passport applications “unless, in the judgment of the person

before whom the application is executed, it is not advisable”).

However, the DFE does not apply because the Plaintiffs have plausibly

alleged that the Government’s actions contravened due process. See Myers &

Myers, Inc. v. U.S. Postal Serv., 527 F.2d 1252, 1261 (2d Cir. 1975) (“It is, of

course, a tautology that a federal official cannot have discretion to behave

unconstitutionally[.]”). In analyzing the DFE, “[t]he Second Circuit and its district

courts have consistently held that a federal officer does not have the discretion to

commit constitutional violations.” M.Q. v. United States, No. 22-CV-10680, 2025

WL 965810, at *6 (S.D.N.Y. Mar. 31, 2025); see also D.J.C.V. v. United States, 605

F. Supp. 3d 571, 591 (S.D.N.Y. 2022) (“Other circuits are in accord [with the

Second Circuit], holding that the DFE does not shield unconstitutional conduct.”);

Loumiet v. United States, 828 F.3d 935, 943 (D.C. Cir. 2016) (“We hold that the

FTCA’s discretionary-function exception does not provide a blanket immunity

against tortious conduct that a plaintiff plausibly alleges also flouts a constitutional

prescription.”).5

Plaintiffs contend that both their procedural and substantive due process

rights were violated. To be sure, they have a “constitutionally protected liberty

interest in the care, custody and management of their children.” Tenenbaum v.

Williams, 193 F.3d 581, 593 (2d Cir. 1999).

In respect to procedural due process, “[a]s a general rule, before parents may

be deprived of the care, custody or management of their children without their

consent, due process—ordinarily a court proceeding resulting in an order

permitting removal—must be accorded to them.” Id. (citing Stanley v. Illinois, 405

U.S. 645, 649 (1972)). The Government may, however, act without notice or

authorization in limited emergency circumstances. Id. at 595. In “emergency

circumstances,” officials may take a child into custody without ordinary procedural

5 Other circuits have taken a differing view that this amounts to “circumvent[ing] the limitations

on constitutional tort actions . . . by recasting the same allegations [] as a common-law tort claim

under the FTCA that is not subject to the discretionary function exception[.]” Shivers v. United

States, 1 F.4th 924, 921 (11th Cir. 2021); see also Linder v. United States, 937 F.2d 1087, 1090

(7th Cir. 2019) (“[T]he theme that ‘no one has discretion to violate the Constitution’ has nothing

to do with the [FTCA], which does not apply to constitutional violations.”). The circuit split is

briefly summarized in Mynatt v. United States, 45 F.4th 889, 897 n.4 (6th Cir. 2022).

safeguards, unless there is “reasonable time safely to obtain judicial authorization

consistent with the child’s safety.” Id. at 596. “Emergency circumstances mean

circumstances in which the child is immediately threatened with harm.” E.D. ex

rel. Demtchenko v. Tuffarelli, 408 F. App’x 448, 450 (2d Cir. 2011) (summary

order) (citing Tenenebaum, 193 F.3d at 593).

In respect to substantive due process, the Government once again cannot

interfere with a parent’s constitutionally protected liberty interest. But this

interference “must be so shocking, arbitrary, and egregious that the Due Process

Clause would not countenance it even were it accompanied by full procedural

protection.” Southerland v. City of New York, 680 F.3d 127, 152 (2d Cir. 2012).

Initially, the Court cannot fault the Government for its actions in effecting

the removal of F.B. from Pakistan. To the contrary, it applauds its sensible and

rational behavior in erring on the side of caution in secretly extricating F.B. from

that country. It was the classic example of an emergency. To have given the

Plaintiffs notice of its actions would have been foolish and counterproductive, and

certainly its behavior was not shocking, arbitrary and egregious.

But the Government’s keeping the whereabout of the Plaintiffs’ child a

secret once she was safely in the United States does raise at least a serious

procedural due process issue. Surely, the Government could have notified the

Plaintiffs of their daughter’s whereabouts and that she was safe once she was out of

harm’s way.

Because the DFE does not shield such unconstitutional conduct, the

Government is not jurisdictionally immune from suit on that basis.

5. Private Analog

The FTCA also provides that claims brought pursuant to the statute must

have a private analog. See 28 U.S.C. § 1346(b)(1) (providing for jurisdiction of

claims “under circumstances where the United States, if a private person, would be

liable to the claimant in accordance with the law of the place where the act or

omission occurred”); C.P. Chem. Co. v. United States, 810 F.2d 34, 37 (2d Cir.

1987) (“The plain meaning of section 1346(b) is that the United States cannot be

held liable when there is no comparable cause of action against a private citizen.”).

The Government asserts that there is no private analog for Plaintiffs’

conduct, characterizing the Government’s actions as “determining U.S. citizenship;

issuing a U.S. passport; assessing a minor U.S. citizen’s claims of abuse and forced

marriage to determine what assistance is warranted under applicable treaties,

statutes, and regulations; determining what information could be shared with third

parties under the Privacy Act; and providing repatriation assistance.” Def.’s Mem.

at 20, ECF No. 59-1. That conduct would not have a private analog. But this

mischaracterizes the Plaintiffs’ allegations of wrongdoing. As explained, supra, in

addressing the Government’s 12(b)(1) motion, the Plaintiffs’ allegations focus on

the interference with custody and withholding of information.

In other FTCA cases, courts have found that “a private individual could be

held liable for separating a parent from a child, barring the two from

communicating, and doing so in a way to cause maximum distress.” D.J.C.V., 605

F. Supp. at 601; see also, e.g., A.P.F. v. United States, 492 F. Supp. 3d 989, 994 (D.

Ariz. 2020) (denying motion to dismiss in separation case after finding “[p]rivate

individuals have been held liable for IIED, negligence, and loss of child's

consortium in Arizona under reasonably similar circumstances”); Kajtazi v.

Kajtazi, 488 F. Supp. 15, 18 (E.D.N.Y. 1978) (“The unlawful taking or withholding

of a minor child from the custody of the parent entitled to such custody is a tort.”).

The Government’s actions here are at least “comparable” to a private cause of

action. See Chen v. United States, 864 F.2d 622, 626 (2d Cir. 1988) (“[F]or liability

to arise under the FTCA, a plaintiff’s cause of action must be ‘comparable’ to a

cause of action against a private citizen[.]’” (quoting C.P. Chem, 810 F.3d at 37)).

Thus, the Government is not immune from suit for lack of a private analog.

B. 12(b)(6) Motion to Dismiss

In addition to the jurisdictional challenge, the Government has alternatively

moved to dismiss the Amended Complaint for failure to state a claim. Once again,

on a Rule 12(b)(6) motion, the Court assumes the complaint’s factual allegations,

but not legal conclusions, to be true. In contrast to its analysis of the Government’s

12(b)(1) motion, the Court does not consider the facts supplied outside the

complaint other than for relevant matters of which it may take judicial notice. See

Pani, 152 F.3d at 75.

Plaintiffs have alleged claims for both IIED and negligence.

1. Intentional Infliction of Emotional Distress

“Under New York law,6 a claim for intentional infliction of emotional distress

requires a showing of (1) extreme and outrageous conduct; (2) intent to cause, or

reckless disregard of a substantial probability of causing, severe emotional distress;

(3) a causal connection between the conduct and the injury; and (4) severe

emotional distress.” Stuto v. Fleishman, 164 F.3d 820, 824 (2d Cir. 1999) (citing

Howell v. N.Y. Post Co., 81 N.Y.2d 115, 121 (1993)).

There can be no question that there is “a causal connection between the

[Government’s] conduct” in the United States “and the injury” since the sustained

disappearance of a child is likely to cause severe emotional distress. See D.J.C.V.,

605 F. Supp. 3d at 601 (claims of separation “easily clear the bars set by the IIED

and NIED torts”); A.P.F., 492 F. Supp. 3d at 999 (same); see also, e.g., Santiago-

6 In resolving FTCA claims, “courts are bound to apply the law of the state where the [tort]

occurred,” i.e., New York law. Borley v. United States, 22 F.4th 75, 78 (2d Cir. 2021) (citation

modified).

Ramirez v. Sec’y of Dep’t of Def., 984 F.2d 16, 20 (1st Cir. 1993) (citing Sheehan v.

United States, 896 F.2d 1168 (9th Cir. 1990)) (“Claims against the government for

intentional infliction of emotional distress are not excepted from the FTCA.”);

Gross v. United States, 676 F.2d 295, 304 (8th Cir. 1982) (rejecting argument that

plaintiff may not bring claim of IIED against federal government).

2. Negligence

“Under New York law, the elements of a negligence claim are: (i) a duty

owed to the plaintiff by the defendant; (ii) breach of that duty; and (iii) injury

substantially caused by that breach.” Lombard v. Booz-Allen & Hamilton, Inc., 280

F.3d 209, 215 (2d Cir. 2000) (citing Merino v. N.Y.C. Transit Auth., 218 A.D.2d

451, 639 (N.Y. App. Div. 1996)).

Plaintiffs have alleged that the Government had a duty to act with “ordinary

care and prudence” that it breached by not timely informing them about F.B.’s

wellbeing in the United States. See Am. Compl. ¶ 114. A reasonable juror could

conclude that withholding that information for a sustained period breached that

duty in a manner that could foreseeably cause emotional injury. See, e.g. D.J.C.V.,

605 F. Supp. 3d at 601–02 (finding plaintiffs stated a claim for negligence under

New York law where they “alleged that Government agents violated their duty to

act with ordinary care towards them by separating parent and child and preventing

them from communicating”).

The Government argues, however, that Plaintiffs’ negligence claim fails

because under New York law the government can only be liable for negligent

performance of a government function where there is a “special duty” between the

plaintiff and government. Defs.’ Opp. at 24 (citing McLean v. City of N.Y., 12

N.Y.3d 194, 199 (2009)).

However, the “special duty” requirement “is not based upon state tort law,

but rather, sovereign immunity.” Saint-Guillen v. United States, 657 F. Supp. 2d

376, 383 (E.D.N.Y. 2009) (citing Cossano v. New York, 129 A.D.2d 671, 672 (2d

Dep’t 1987)). The federal government has by statute in the FTCA articulated

specific circumstances in which its own immunity is waived. “Hence, this [special-

duty] requirement does not apply to claims under the FTCA, which directs the

court to consider private-party liability under state tort law.” Id.

In sum, Plaintiffs have adequately pled claims of IIED and negligence in the

United States against the Government.

IV. The City Defendants’ Motion to Dismiss

Unlike the Government, the City Defendants do not question the Court’s

jurisdiction but move to dismiss each of Plaintiffs’ claims pursuant to Rule

12(b)(6). Accordingly, the Court limits its review to the facts alleged in the

Amended Complaint, and those relevant documents of which it may permissibly

take judicial notice.

Plaintiffs have alleged five causes of action against the three City

Defendants—the City, Dannhauser, and Ramirez—each arising under § 1983:

substantive due process; procedural due process; interference with intimate

association; malicious prosecution; and inadequate training and supervision.

Because Dannhauser is named as a defendant in his official capacity as ACS

commissioner, the Court construes the claims against him as claims against ACS.

See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is,

in all respects other than name, to be treated as a suit against the entity.”); Reynolds

v. Giuliani, 506 F.3d 183, 191 (2d Cir. 2007) (“An official capacity suit against a

public servant is treated as one against the governmental entity itself.”). Thus, the

Court analyzes these claims in tandem with the claims against the City before

separately analyzing the claims against Ramirez.

A. Claims Against the City & ACS

A municipal entity can be liable under § 1983 provided there is an official

policy or custom that caused a plaintiff to be deprived of a constitutional right. See

Monell v. N.Y.C. Dep’t of Social Servs., 436 U.S. 658, 694 (1978). Specifically,

Monell provides that a municipality “may be sued directly under § 1983 for

constitutional deprivations inflicted upon private individuals pursuant to a

governmental custom, policy, ordinance, regulation, or decision . . . [but] may not

be held liable for the actions of its employees or agents under a theory of

respondeat superior; it is liable only when its policy or custom inflicts the injury

upon the plaintiff.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (citing

Monell, 436 U.S. at 690–91, 694).

To state a claim for municipal liability under § 1983, “a plaintiff is required

to plead and prove three elements: (1) an official policy or custom that (2) causes

the plaintiff to be subjected to (3) a denial of a constitutional right.” Id. A

municipality’s “failure to train or supervise city employees may constitute an

official policy or custom if the failure amounts to ‘deliberate indifference’ to the

rights of those with whom the city employees interact.” Wray v. City of New York,

490 F.3d 189, 195 (2d Cir. 2007) (quoting City of Canton v. Harris, 489 U.S. 378,

388 (1989)).

The Court must accordingly dismiss the Plaintiffs’ first four causes of action

against the City and ACS because they fail to allege violations of any

“governmental custom, policy, ordinance, regulation, or decision.” Batista, 702

F.2d at 397. Only Plaintiffs’ fifth cause of action—alleging inadequate training and

supervision on the part of the City and ACS—alleges a policy or custom.

The City and ACS argue that the complaint does not allege the requisite

deliberate indifference or any policy or custom beyond conclusory statements that

lack “factual enhancement.” ECF No. 66-1 at 33. They are correct that it does not

identify a specific training that was not provided to City employees. However, this

is not fatal. “It is unlikely that a plaintiff would have information about the city’s

training programs or about the cause of the misconduct at the pleading stage, and

therefore need only plead that the city’s failure to train caused the constitutional

violation.” Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 129 n.10 (2d Cir.

2004).

The complaint identifies numerous subjects which could serve as the basis

for a finding that the City’s training and supervision was “grossly inadequate,”

including repatriation cases, methods for investigation of abuse allegations, and

notice-and-hearing requirements. See Am. Compl. ¶¶ 102–04. This is

circumstantial evidence which, taken collectively with Plaintiffs’ allegations of the

Government officials’ behavior and their alleged deprivation of Plaintiffs’

constitutional rights, suffice to satisfy Plaintiffs’ statement of failure to train and

supervise claims. See Davis v. City of New York, No. 16-CV-3685, 2017 WL

11505252, at *10–11 (E.D.N.Y. May 25, 2017) (finding circumstantial indication

of failure to train sufficient to withstand 12(b)(6) motion).

B. Claims Against Ramirez

Plaintiffs claim that they have viable individual § 1983 claims against

Ramirez for violations of their rights to substantive due process, intimate

association, procedural due process, and freedom from malicious prosecutions.7 As

7 During oral argument Plaintiffs withdrew their malicious prosecution claim.

an employee of a municipality, Ramirez is deemed to have been acting under

“color of law” under §1983 and may therefore be individually sued under that

statute for federal constitutional and statutory violations. See Filarsky v. Delia, 566

U.S. 377, 383 (2012) (“Anyone whose conduct is fairly attributable to the State can

be sued as a state actor under § 1983.” (citation modified)).

The allegations against Ramirez are based on her alleged conduct in the

United States. She was the case worker who took custody of F.B. as soon as F.B.

landed in the United States on June 26; participated in the filing of a Destitute

Child Petition ten days later, on July 7, 2020, which she signed under oath in the

New York County Family Court, and swore in that petition—without conducting

an investigation—that F.B.’s family was forcing her to marry against her will and

that the whereabouts of her family was “unavailable.” See Am. Compl. ¶¶ 46–51.

The Destitute Child Petition was extant for three months, when Ramirez then filed

the Abuse Petition resulting in the Family Court’s temporary removal order.

This conduct clearly alleges a due process violation. And it also satisfies

the heightened standard for a cognizable substantive due process claim because the

totality of Ramirez’ conduct, if true, was “shocking, arbitrary, and egregious.”

Southerland, 680 F.3d at 162.8 Although Plaintiffs’ substantive due process claim

8 The Court rejects the City Defendants’ argument that its alleged actions do not constitute a

“removal” and thus cannot support a substantive due process violation. See ECF No. 66-1 at 25.

survives, their intimate association claim must be dismissed because it is

duplicative of the substantive due process claim. See Richardson-Holness v.

Alexander, 196 F. Supp. 3d 364, 374 (E.D.N.Y. 2016) (“[T]o the extent the intimate

associational rights plaintiff asserts arise under the Due Process Clause, and not the

First Amendment, as seems to be the case, the appropriate course is to dismiss the

intimate association claim as duplicative.”).

At oral argument Ramirez’s counsel took issue with Plaintiffs’ due process

allegations in several respects, but at this pleading stage the Court must accept the

allegations as true.

Nonetheless, Ramirez contends that she is entitled to qualified immunity.

“ACS caseworkers and their superiors are generally entitled to qualified immunity

from claims under §1983 if it was objectively reasonable for the caseworkers to

believe their conduct did not violate clearly established statutory or constitutional

rights of which a reasonable caseworker would have known.” V.S. v. Muhammad,

595 F.3d 426, 430–31 (2d Cir. 2010).

Certainly Ramirez should have known that Plaintiffs had a clearly

established constitutional right to the care and custody of their child. And a

reasonable juror could certainly find that her overall conduct was not objectively

However, physical removal of a child by the state is not required to state a due process claim. See

Kia P. v. McIntyre, 235 F.3d 749, 760 (2d Cir. 2000).

reasonable. See, e.g., Southerland, 680 F.3d at 151 (vacating grant of qualified

immunity to ACS caseworker in circumstances where “a reasonable juror could

find that there was sufficient time to acquire a court order prior to removal,”

precluding a finding that caseworker’s actions were “objectively reasonable”

(citation modified)); see also Sabir v. Williams, 52 F.4th 51, 64 (2d Cir. 2022)

(explaining that “advancing qualified immunity as grounds for a motion to dismiss

is almost always a procedural mismatch . . . [and] faces a formidable hurdle” given

plaintiffs’ entitlement to all reasonable inferences at the pleadings stage (citation

modified)).

Accordingly, Plaintiffs have alleged both procedural and substantive due

process § 1983 claims against Ramirez, for which she is not now—if ever—

entitled to qualified immunity.

V. Hartley-Samms’s Motion to Dismiss

Plaintiffs have sued Little Flower’s chief executive officer, Corinne

Hammons, in her official capacity, and its case planner Hartley-Samms, in both her

individual and official capacities. Unlike their claims against the City, the Plaintiffs

have not sued Little Flower as an entity for Monell liability. Nor could they since it

is not a municipality; nor are they contending that Little Flower should nonetheless

be held liable under Monell as a “state actor.”9 And, as previously explained,

claims against employees in their official capacities are tantamount to claims

against the entity. See Graham, 473 U.S. at 166.

Rather, although they have brought §1983 procedural and substantive due

process claims and interference with intimate association claims against Little

Flowers’ case planner, Hartley-Samms, in her official capacity, they have also

asserted these claims against her in her individual capacity. Thus, the Court must

determine whether Hartley-Simms was a “state actor,” which is the predicate for a

§ 1983 lawsuit for constitutional deprivations against an individual who is not a

municipal employee. See Filarsky, 566 U.S. at 383.

The factual allegations against Hartley-Samms, once again, are that she was

assigned by Little Flower as a case planner; that there was no court order

authorizing Little Flower to take custody of F.B., that she “did not seek to verify or

otherwise confirm whether a court order existed authorizing them to take custody

of F.B.,” and that she and Ramirez “organized and held a ‘Transitional

Conference.’” Moreover, they “did not attempt to notify Plaintiffs, and Plaintiffs

were not notified of the conference.” See Am. Compl. ¶¶ 43–45.

9 Counsel for the Plaintiffs confirmed at oral argument that they are not seeking to hold Little

Flower liable. Previously, Plaintiffs had voluntarily dismissed their claims against Hammons. See

ECF No. 64.

The Second Circuit has held that foster care agencies are performing a

public function and are liable as state actors under § 1983. See Perez v. Sugarman,

499 F.2d 761, 765 (2d Cir. 1974). However, the defendant has cited a case, C.B. v.

St. Vincent’s Servs., Inc., where a district court held that post-Perez Supreme Court

precedent has taken a more limited view of state action and “substantially replaced

the approach relied upon in Perez.” No. 16-CV-2282, 2018 WL 1737701, at *4

(S.D.N.Y. Mar. 19, 2018). The district court in C.B. concluded, therefore, that

foster agencies are not state actors. Id.

Other district courts in this circuit have likewise questioned the underlying

logic of Perez but have nevertheless recognized that they are bound to follow this

precedent and treat foster care agencies as state actors. See, e.g., Phelan ex rel.

Phelan v. Torres, 843 F. Supp. 2d 259, 274 (E.D.N.Y. 2011) (“assuming—as I am

obligated to do until the Second Circuit holds otherwise—that SVS is a state

actor”); S.M. by next friend King v. City of New York, 2021 WL 3173456, at *4

(S.D.N.Y. July 26, 2021) (“[Although a] number of district courts in this circuit

have noted that treating foster agencies as state actors is in tension with the

Supreme Court's increasing skepticism—in the almost forty years since Perez—

toward applying constitutional demands to plausibly private action . . . the Court

remains bound by the Second Circuit[.]”).

The Court follows these district courts in finding itself bound by the Second

Circuit precedent in Perez to treat Little Flower as a state actor. See Diamond

Jewels v. Lewis, No. 15-CV-5760, 2019 WL 5896224, at *11 (E.D.N.Y. Nov. 12,

2019) (noting recent decisions of other district courts determining private foster

care agencies are not state actors but concluding that “Perez . . . remains good law

and is binding”). Accordingly, it follows that its employee, Hartley-Samms, is also

a state actor. See Mortimer v. City of New York, No. 15-CV-71866, 2018 WL

1605982, at *13 (S.D.N.Y. Mar. 29, 2018) (finding two individuals foster care

employees subject to liability under 1983 as state actors); Diamond Jewels, 2019

WL 5896224, at *11 (same).

Unlike the allegations against Ramirez, the allegations against Hartley-

Samms do not rise to the heightened level of “shocking, arbitrary, and outrageous”

behavior to support a substantive due process claim and the duplicative

interference with intimate association claim. But they are sufficient to support a

procedural due process claim against her because she allegedly was not authorized

to take custody of F.B.

Nor is she entitled at this stage to qualified immunity. See Southerland, 680

F.3d at 151. Nonetheless, Hartley-Samms contends that she is entitled to judicial

immunity, which New York courts have extended not only to judges, but to those

acting pursuant to a court order. See Mosher-Simons v. Cnty. of Allegany, 99

N.Y.2d 214, 220 (2002). While it is conceivable that Hartley-Samms could claim

such immunity for her actions subsequent to the Family Court’s order on

September 29, 2020, see Alexander Decl. Ex. C., there was no such order when she

assumed custody of F.B. on June 30, 2020.

VI. Conclusion

The Government’s motion to dismiss is denied. The City Defendant’s motion

to dismiss is granted except with respect to the procedural and substantive due

process claims against Ramirez, and the inadequate training and supervision claim

against the City and ACS. The Little Flower Defendants’ motion to dismiss is

granted except with respect to the procedural due process claim against Hartley-

Samms.

SO ORDERED.

_/S/ Frederic Block___________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

June 26, 2025