Shook v. NYS Central Register of Child Abuse and Maltreatment

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

DELORES SHOOK,

Plaintiff,

v. 1:24-cv-01218 (AMN/PJE)

NYS CENTRAL REGISTER OF CHILD

ABUSE AND MALTREATMENT, et al.,

Defendants.

APPEARANCES: OF COUNSEL:

DELORES SHOOK

1737 U.S. Route 9W

Lot #73

Selkirk, New York 12158

Plaintiff pro se

Hon. Anne M. Nardacci, United States District Judge:

ORDER

I. INTRODUCTION

On October 3, 2024, Plaintiff pro se Delores Shook (“Plaintiff”) filed a complaint against

the New York State Central Register of Child Abuse and Maltreatment (“NYS Central Register”),

New York State Child Protective Services (“NYS CPS”), Lisa Testa, Emilie Miller, and Brandon

Behan (collectively, “Defendants”) pursuant to 42 U.S.C. § 1983 alleging violations of her due

process rights regarding the removal of her grandchildren from her home and care. See Dkt. No.

1 (“Complaint”). Plaintiff sought and received leave to proceed in forma pauperis. See Dkt. Nos.

2, 5.

This matter was referred to United States Magistrate Judge Paul J. Evangelista, who

reviewed the Complaint pursuant to 28 U.S.C. § 1915(e) and, on June 20, 2025, recommended that

the Complaint be dismissed without prejudice and without leave to amend. See Dkt. No. 5

(“Report-Recommendation”). Magistrate Judge Evangelista advised that, pursuant to 28 U.S.C.

§ 636(b)(1), the Parties had fourteen days within which to file written objections and that failure

to object to the Report-Recommendation within fourteen days would preclude appellate review.

Id. at 37.1 After being granted an extension of time to do so, Plaintiff filed objections on September

9, 2025, along with a secondary submission titled “lawful notice of status, special appearance, and

affidavit of natural law standing package under natural law, and in propria persona, sui juris.” See

Dkt. Nos. 7-9. Additionally, Plaintiff filed a motion for leave to file an amended complaint on

September 9, 2025, notwithstanding the recommendation from Magistrate Judge Evangelista that

Plaintiff’s Complaint be dismissed without an opportunity to amend. See Dkt. No. 10.

For the reasons set forth below, the Court rejects Plaintiff’s objections and adopts the

Report-Recommendation in its entirety. Moreover, Plaintiff’s motion for leave to amend is denied.

II. STANDARD OF REVIEW

This Court reviews de novo those portions of a magistrate judge’s report-recommendation

that have been properly preserved with a specific objection. 28 U.S.C. § 636(b)(1)(C). “To be

‘specific,’ the objection must, with particularity, ‘identify [1] the portions of the proposed findings,

recommendations, or report to which it has an objection and [2] the basis for the objection.’”

Petersen v. Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012) (alteration in original) (quoting

N.D.N.Y. Local Rule 72.1(c)). If no specific objections have been filed, this Court reviews a

magistrate judge’s report-recommendation for clear error. See Petersen, 2 F. Supp. 3d at 229

(citing Fed. R. Civ. P. 72(b) advisory committee’s notes to 1983 addition). Similarly, when a party

1 Citations to docket entries utilize the pagination generated by CM/ECF, the Court’s electronic

filing system, and not the documents’ internal pagination.

files “[g]eneral or conclusory objections, or objections which merely recite the same arguments

[previously] presented to the magistrate judge,” the district court reviews a magistrate judge’s

report-recommendations for clear error. O’Diah v. Mawhir, No. 08-cv-322, 2011 WL 933846, at

*1 (N.D.N.Y. Mar. 16, 2011) (citations omitted); accord Mario v. P & C Food Markets, Inc., 313

F.3d 758, 766 (2d Cir. 2002) (a “statement, devoid of any reference to specific findings or

recommendations to which [the plaintiff] objected and why, and unsupported by legal authority,

was not sufficient to preserve” a claim); Petersen, 2 F. Supp. 3d at 228-29 & n.6 (collecting cases).

“When performing such a ‘clear error’ review, ‘the court need only satisfy itself that there is no

clear error on the face of the record in order to accept the recommendation.’” Dezarea W. v.

Comm’r of Soc. Sec., No. 21-cv-01138, 2023 WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023)

(quoting Canady v. Comm’r of Soc. Sec., No. 17-cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y.

Nov. 14, 2017)).

“[I]n a pro se case, the court must view the submissions by a more lenient standard than

that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289 F. Supp. 2d 289,

295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations

omitted). The Second Circuit has held that courts are obligated to “make reasonable allowances

to protect pro se litigants” from inadvertently forfeiting legal rights merely because they lack a

legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a

pro se party’s objections to a Report and Recommendation must be specific and clearly aimed at

particular findings in the magistrate’s proposal . . . .” Machicote v. Ercole, No. 06-cv-13320, 2011

WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011) (citation omitted); accord Caldwell v. Petros, No.

22-cv-567, 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After appropriate review, “the

court may accept, reject or modify, in whole or in part, the findings or recommendations made by

the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

III. DISCUSSION

The Court adopts those aspects of the Report-Recommendation to which no Party has

raised a specific objection, finding no clear error therein, including the background and the legal

framework set forth in the Report-Recommendation, familiarity with which is presumed for

purposes of this decision.

Construed liberally, the Complaint asserts that Defendants violated Plaintiff’s Fourteenth

Amendment due process rights when they removed her grandchildren from her home and care

without meeting the necessary burden for justifying removal or following proper notice

procedures. See generally, Dkt. No. 1.2 Specifically, on November 26, 2019, while Plaintiff was

not at home, Defendants Miller, Behan, and two police officers “without a warrant or legal court

document” removed her two grandchildren “D.A. & C.M” based on prior domestic violence

incidents involving Plaintiff and her daughter. Dkt. No. 1 at ¶¶ 9-11. Plaintiff alleges that

Defendants did so without affording her notice that a CPS violation was pending against her, and

without giving Plaintiff the opportunity to defend herself in Court. Id.

The Report-Recommendation recommends dismissal of the Complaint against all

Defendants for a multitude of reasons. First, Magistrate Judge Evangelista recommends that

Defendant NYS Central Register be dismissed based on Eleventh Amendment sovereign immunity

principles. See Dkt. No. 5 at 7-11 (citing, inter alia, Gerken v. Gordon, No. 1:24-CV-00435, 2024

WL 4608307, at *6 (N.D.N.Y. Oct. 29, 2024), report and recommendation adopted, 2024 WL

2 As the Report-Recommendation acknowledges, and the undersigned agrees, while Plaintiff also

alleges that her Fourth and Fifth Amendment rights were violated, the substance of the Complaint

does not support a claim for relief on those grounds. See Dkt. No. 9 at 7 n.9.

5001402 (N.D.N.Y. Dec. 6, 2024)). Second, Magistrate Judge Evangelista recommends dismissal

of Defendant NYS CPS, as well as Defendants Miller and Behan, to the extent that they are sued

in the official capacities, for failure to satisfy the requirements of Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1978). Id. at 11-16. And with respect to Defendant Testa, Magistrate Judge

Evangelista recommends dismissing her from the action based on the Complaint’s failure to

establish her personal involvement in the alleged constitutional violations. Id. at 16-21 (citing,

inter alia, Golston v. Cortese, No. 1:21-CV-914, 2022 WL 2657290, at *5 (N.D.N.Y. Apr. 1,

2022), report and recommendation adopted, 2022 WL 2071773 (N.D.N.Y. June 9, 2022)).

Magistrate Judge Evangelista also outlines several alternative grounds for the dismissal of

Plaintiff’s claims. First, he recommends that Defendants Miller and Behan be dismissed because

they are entitled to absolute immunity based on their roles as NYS CPS case workers. Id. at 21-

24 (citing, inter alia, Robertson v. Allen, No. 1:15-CV-11, 2016 WL 205381, at *10 (N.D.N.Y.

Jan. 15, 2016)). Next, Magistrate Judge Evangelista recommends that Plaintiff’s claims be

dismissed based on the three-year statute of limitations recognized for Section 1983 claims. Id. at

24-28 (citing, inter alia, Golston, 2022 WL 2657290, at *3). Additionally, Magistrate Judge

Evangelista recommends that the Court dismiss the action pursuant to the domestic relations

abstention doctrine, which bars federal courts from hearing cases “involving divorce, alimony, and

child custody.” Id. at 28-31 (quoting Bowman v. Morris, No. 8:19-CV-97, 2019 WL 5150196, at

*5 (N.D.N.Y. Apr. 10, 2019), report and recommendation adopted, 2019 WL 3759174 (N.D.N.Y.

Aug. 9, 2019)). Finally, Magistrate Judge Evangelista recommends that the Court find that

Plaintiff’s claims are barred based upon the availability of a post-deprivation remedy, specifically

an Article 78 proceeding, which Plaintiff chose not to initiate. Id. at 31-35 (citing, inter alia,

Nicholas v. Seggos, No. 8:23-CV-463, 2023 WL 6121164, at *6 (N.D.N.Y. Sept. 19, 2023), report

and recommendation adopted, 2023 WL 7004103 (N.D.N.Y. Oct. 24, 2023)).3

In her objections, Plaintiff first takes issue with the recommendation that the Court find

that her claims are time barred, arguing generally that equitable tolling and the continuing violation

should apply. See Dkt. No. 9 at 2 (first citing Holland v. Florida, 560 U.S. 631 (2010), and then

Shomo v. City of N.Y., 579 F.3d 176 (2d Cir. 2009)). Next, Plaintiff asserts that the availability of

a post-deprivation remedy does not bar her claims since, according to Plaintiff, “under federal law,

exhaustion of state remedies is not required for [Section] 1983 claims,” id. (citing Patsy v. Bd. of

Regents, 457 U.S. 496 (1982)), and that “state procedural requirements cannot be used to block

federal remedies,” id. (citing Howlett v. Rose, 496 U.S. 356 (1990)). Moreover, Plaintiff states

that Eleventh Amendment immunity and the domestic relations abstention doctrine do not apply

to her claims, since “[u]nder Natural Law, no man or woman is immune from accountability for

trespass and harm.” Id. Finally, Plaintiff takes issue with the recommendation that she be denied

the right to amend the Complaint, arguing that the standard under Fed. R. Civ. P. 15(a)(2) is “liberal

. . . [and] shall be freely given when justice so requires, particularly for pro se litigants.” Id. The

Court addresses each of these objections in turn.

First, regarding Plaintiff’s objections related to the statute of limitations, as detailed in the

Report-Recommendation, “the statute of limitations for actions brought pursuant to § 1983 is three

years.” Golston, 2022 WL 2657290, at *3 (quoting Johnson v. Fargione, No. 1:20-CV-764, 2021

WL 1406683, at *3 (N.D.N.Y. Feb. 17, 2021), report and recommendation adopted, 2021 WL

1404554 (N.D.N.Y. Apr. 14, 2021)). While Plaintiff alleges generally that the Report-

3 Magistrate Judge Evangelista also recommends that Plaintiff be denied an opportunity to amend

the Complaint since, given the nature of several of the grounds upon which he recommends

dismissal, doing so would be futile. Id. at 35

Recommendation “disregards the doctrines of equitable tolling and continuing violations,”

Magistrate Judge Evangelista addressed both equitable tolling and the continuing violation

doctrine in detail. See Dkt. No. 5 at 26 n.17, 27-28. Plaintiff fails to identify any portions of the

Complaint that Magistrate Judge Evangelista overlooked and does not challenge the substantial

authority upon which Magistrate Judge Evangelista’s analysis relied. Upon de novo review, the

Court agrees with Magistrate Judge Evangelista’s conclusion in the Report-Recommendation that

equitable tolling and the continuing violation do not apply to Plaintiff’s claims.

Next, regarding Plaintiff’s objections pertaining to post-deprivation remedies, the

argument that “exhaustion of state remedies is not required for [Section] 1983 claims,” Dkt. No. 9

at 2, is misplaced. It has long been maintained that “the availability of an Article 78 proceeding

bars seeking relief under Section 1983 when there is an adequate state post-deprivation procedure

to remedy a random or arbitrary deprivation of property or liberty.” Attallah v. N.Y. Coll. of

Osteopathic Med., 94 F. Supp. 3d 448, 455 (E.D.N.Y. 2015) (citing Hellenic Am. Neighborhood

Action Comm. v. City of N.Y., 101 F.3d 877, 881 (2d Cir. 1996)). Thus, Magistrate Judge

Evangelista’s recommendation that Plaintiff’s claims should be dismissed based on her failure to

bring an Article 78 proceeding, Dkt. No. 5 at 31-35, is correct.4

Additionally, regarding Plaintiff’s contention that that Eleventh Amendment immunity and

the domestic relations abstention doctrine do not apply to her claims since, “[u]nder Natural Law,

4 The case Plaintiff cites in support of her argument, Dkt. No. 9 at 2, is not to the contrary. As the

Second Circuit held in Campo v. N.Y.C. Employees’ Ret. Sys., 843 F.2d 96, 103 (2d Cir. 1988), the

Supreme Court’s decision in Patsy v. Bd. of Regents stood only for the proposition that Section

1983 claims need not be exhausted in state court prior to bringing those claims in federal court.

See Patsy, 457 U.S. 496, 516 (1982). But, as relevant here, where the state already provides for

an adequate post-deprivation remedy and the plaintiff fails to avail herself of that remedy, there is

no procedural due process violation. See Campo, 843 F.2d at 103; see also N.Y.S. Nat’l Org. for

Women v. Pataki, 261 F.3d 156, 169 (2d Cir. 2001).

no man or woman is immune from accountability for trespass and harm,” Dkt. No. 9 at 2, the Court

is unpersuaded. This unsupported statement does not undermine the controlling precedent relied

upon by Magistrate Judge Evangelista.

Finally, regarding Plaintiff’s objection to Magistrate Judge Evangelista’s recommendation

that Plaintiff be denied leave to amend the Complaint, and notwithstanding the procedural

impropriety of Plaintiff’s motion seeking the same, upon de novo review, the Court agrees with

Magistrate Judge Evangelista that the filing of any amended complaint would be futile. Even in

pro se cases, where a complaint contains issues that are inherently “substantive” and not a result

of “inadequately or inartfully” pled causes of action, leave to amend should be denied as “futile.”

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citing Hunt v. Alliance N. Am. Gov’t Income

Tr., 159 F.3d 723, 728 (2d Cir.1998)). As detailed throughout this Order and in the Report-

Recommendation, Plaintiff’s claims are untimely, barred by several immunity doctrines, and

otherwise substantively deficient. See generally, Dkt. No. 5. Accordingly, the Court denies

Plaintiff’s motion for leave to file an amended complaint.

In sum, following de novo review, the Court agrees with Magistrate Judge Evangelista’s

findings and recommendations for the reasons set forth in the Report-Recommendation.

Accordingly, the Report-Recommendation is adopted in its entirety.

IV. CONCLUSION

Accordingly, the Court hereby

ORDERS that the Report-Recommendation, Dkt. No. 5, is ADOPTED in its entirety;

and the Court further

ORDERS that the Complaint, Dkt. No. 1, is DISMISSED without prejudice and without

leave to amend; and the Court further

ORDERS that Plaintiff's motion for leave to file an amended complaint, Dkt. No. 10, is

DENIED; and the Court further

ORDERS that the Clerk is directed to close this case without further order of this Court;

and the Court further

ORDERS that the Clerk serve a copy of this Order on all Parties in accordance with the

Local Rules.°

IT IS SO ORDERED.

Dated: September 29, 2025 | . | Jar Rae

Albany, New York Anne M. Nardacci

U.S. District Judge

> The Clerk shall also provide Plaintiff with copies of all unreported decisions herein.