Pineda et al v. Department of Children and Families

Filing 9

Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER: 1. All ADA claims against the DCF and the individual defendants are DISMISSED; 2.All 1983 claims against DCF are DISMISSED;3.All 1983 claims against the DCF employees for monetary damages are DISMISSED;4.All 1983 claims against the individual DCF employees are DISMISSED;5.Any state law claims are DISMISSED without prejudice;6.All claims of the minor children are DISMISSED without prejudice;7.Plaintiffs request for appointment of counsel (contained in the Amended Complaint) is DENIED as moot; and8.This action is DISMISSED in its entirety.(PSSA, 1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
ALBA PINEDA, ET AL.,
Plaintiffs,
v.

Civil Action No. 16-12229-WGY

DEPARTMENT OF CHILDREN
AND FAMILIES,
Defendant.
MEMORANDUM AND ORDER
YOUNG, D.J.
I.

Introduction
On October 31, 2016, plaintiff Alba Pineda (“Pineda”), acting pro se, filed a Complaint

on behalf of herself and her minor children, against the Massachusetts Department of Children
and Families (“DCF”) and the DCF office in Cambridge. She sought $5 million in damages for
alleged physical and emotional harm, abuse of power and control, abuse of discretion, and
violation of rights based on disability (alcoholism and mental illness). She alleged that DCF
constantly made changes to her service plans and made arbitrary decisions regarding visitation.
She further claimed that DCF employees “deliberately initiated crisis” to her and have been
setting her up to fail. Comp. (Docket No. 1 at 1). Additionally, Pineda asserted violations of
Title II of the Americans with Disabilities Act (“ADA”). With respect to her children, Pineda
claimed that DCF was manipulating her children and causing them emotional distress.
On November 9, 2016, this Court issued a Memorandum and Order (Docket No. 6)
granting Pineda’s Motion for Leave to Proceed in forma pauperis and directing her to file an
Amended Complaint stating plausible claims. In that Memorandum and Order, this Court noted

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the various legal impediments to her claims, which included: (1) Pineda, a non-attorney, could
not represent the interests of her children; (2) Eleventh Amendment sovereign immunity barred
any civil rights claims against the DCF brought pursuant to 42 U.S.C. § 1983 (“§ 1983”);
(3) Eleventh Amendment sovereign immunity barred any claim for monetary damages against
DCF employees sued in their official capacities; and (4) Pineda failed to state plausible ADA
claims in accordance with the pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure.
As an additional matter, this Court considered whether appointment of pro bono counsel
was warranted under the circumstances. Notwithstanding Pineda’s emotional difficulties, in
light of the legal impediments to this action, this Court determined that the use of scarce pro
bono resources was not justifiable and thus denied Pineda’s Motion to Appoint Counsel (Docket
No. 3).
On December 8, 2016, Pineda filed an Amended Complaint (Docket No. 8) with an
attached exhibit.
II.

Discussion
A.

The Amended Complaint

In her Amended Complaint, Pineda reiterates the allegations contained in the original
Complaint, but includes additional details and some dates and context that were missing from the
original. Nevertheless, the Amended Complaint is set forth in narrative form and is not entirely
organized. While not clear, it appears that she seeks to add additional defendants, including:
(1) Kerry Woods, DCF Director; (2) Laura Ryan, DCF Office Manager; (3) Renee Franzis, DCF
Supervisor; (4) Nichole Wolf, DCF Social Worker; (5) Virginia Chan, DCF Adoption
Supervisor; (6) Chelsea Loyd; and (7) unnamed others whose location is unknown.

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From what can be discerned, Pineda alleges she suffers from Post Traumatic Stress
Disorder (“PTSD”) and is a recovered alcoholic under the supervision of a psychologist. She
contends that DCF has knowledge of her conditions from her therapist and herself. DCF was
requested to create an environment that would encourage and provide stability and certainty to
Pineda so that she could avoid anxiety and depression, which she claims previously resulted in
suicide attempts. Pineda contends that this request “requires DCF to modify their administrative
procedures and methods to reduce stress causing news and announcements [concerning
cancellations of visitation with her children] which triggers anxiety, depression, alcohol, relapse,
and suicide thoughts and of actions.” Am. Compl. (Docket No. 8 at 3) (brackets added).
Next, Pineda alleges that a foster parent working for DCF has advised her that, using
DCF procedures, DCF workers are trying deliberately to put her under stress to set her up to fail
in order to terminate her parental rights. Pineda appears to support this allegation by referencing
two specific incidents.
With respect to the first incident, Pineda claims that on July 21, 2015, she was home
alone with severe depression when the DCF Social Workers Team (that included defendants
Ryan, Franzis, and Wolf), placed a conference call to her to advise that her children were being
put on a track for adoption. That information caused her to become anxious and she let the
defendants know that she was going to commit suicide. The defendants terminated the call but
Pineda claims they did not perform a well-being check or a follow up with her. As a result,
Pineda attempted suicide by laying down on the commuter rail train tracks. Thereafter, she was
hospitalized and placed in the psychiatric ward for a number of days. She was diagnosed with
anxiety and PTSD. Id. Pineda claims the doctor contacted DCF and requested that its workers

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be cautious when communicating with her, making sure she had a safe environment as well as
continued mental health and medical treatment.
With respect to the second incident, Pineda alleges that on May 3, 2016, the defendants
placed a conference call to her informing her that her infant daughter would not be returned to
her. Apparently, this call from DCF was intended to be a reply to Pineda’s investigation
regarding a letter she previously received informing her of the fact that her daughter would not
be returned. Pineda claims that as a result, she suffered a severe anxiety attack that caused her to
become depressed and have suicidal thoughts. Id.
Pineda contends that she was alone during both of these incidences, and claims that DCF
knew this, but did not attempt to prepare a safe environment for her to receive their “frightening
decisions.” Id. She further contends that similar episodes occurred on September 19, 2015,
March 14, 2016, October 7, 2016, and October 10, 2016.
Further, Pineda claims that she has been denied services that almost caused her to lose
her life. Attached to the Amended Complaint, is a letter dated December 6, 2016 from a licensed
social worker advising her of her current diagnosis of PTSD. Exhibit (Docket No. 8-1).
As relief, Pineda again seeks $5 million in damages. She also seeks to have DCF make
changes so that its workers are more humane and respectful of the values and rights of families.
In the body of the Amended Complaint, she seeks the appointment of counsel.
B.

Failure to State Plausible Civil Rights Claims Against the DCF Under § 1983

In the prior Memorandum and Order, this Court addressed the sovereign immunity of the
DCF as a bar to Pineda’s claims for civil rights violations under § 1983. Nothing in the
Amended Complaint sets forth any basis to conclude that sovereign immunity has been waived
with respect to her claims arising under § 1983.

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Accordingly, Pineda’s claims against the DCF (including the DCF office in Cambridge)
brought pursuant to § 1983 are DISMISSED sua sponte.
C.

Failure to State Plausible Claims For Monetary Damages Against Individual
Employees of the DCF Sued in Their Official Capacities Under § 1983

Pineda has not clearly identified the sum total of defendants, nor has she distinguished
whether the (presumed) individual defendants are sued in their official and/or personal
capacities. To the extent that Pineda seeks monetary damages from any of the individual DCF
workers based on actions taken in their official capacities, her § 1983 claims also are barred by
Eleventh Amendment sovereign immunity, as noted in the prior Memorandum and Order.
Accordingly, Pineda’s § 1983 claims for monetary damages against the individual DCF
defendants in their official capacity are DISMISSED sua sponte.
D.

Failure to State Plausible Claims Against the Individual DCF Defendants Sued in
Their Personal Capacities Under § 1983

Although this Court credits Pineda’s efforts to file an Amended Complaint that comports
with the pleading requirements of Rule 8, this Court finds she has failed to do so, even given a
liberal construction to which Pineda is entitled as a pro se litigant. Pineda makes wholly
conclusory allegations that DCF employees are deliberately trying to cause her distress in order
to facilitate the termination of her parental rights. She provides no relevant information about
the current custodial status of her children. Moreover, the facts that she alleges in support of her
allegations (i.e., that DCF employees held two conference calls that she feels were instituted
while she was alone and not in a safe environment, thereby causing depression and anxiety) do
not have “procedural” due process implications cognizable under § 1983. Pineda she has not
alleged that the defendants’ actions deprived her of the ability to seek redress in a state family
court proceeding with respect to parental termination or other child custody or visitation issues,

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nor has she set forth any facts from which the interference with the right to family integrity
procedurally has been denied. See Voltaire v. Westchester County Department of Social
Services, 2016 WL 4540837 (S.D.N.Y. Aug. 29, 2016) (noting the general rule that parents must
be afforded due process before being deprived of a constitutionally protected liberty interest in
the care, custody and management of their children; ordinarily due process involves a court
proceeding resulting in an order permitting removal).
Further, Pineda fails to state any plausible “substantive” due process claim. “Unlike
procedural due process, substantive due process comes into play when, regardless of the
procedures followed, a governmental decision or action violates a fundamental right and no
overridingly important state interest justifies that infringement. See Daniels v. Williams, 474
U.S. 327, 331 (1986) (Substantive due process rights bar “certain government actions regardless
of the fairness of the procedures used to implement them . . . .” Marcel v. United States, 2012
WL 5463926, at *4 (E.D.N.Y. 2012) appeal dismissed No. 12-5001 (2d Cir. 2013),
reconsideration denied, 2012 WL 6720771 (E.D.N.Y. 2012). See Joyner by Lowry v. Dumpson,
712 F.2d 770, 777 (2d Cir.1983). In the context of substantive due process claims relating to
children, “a plaintiff must demonstrate that his separation from his children was ‘so shocking,
arbitrary, and egregious that the Due Process Clause would not countenance it even were it
accompanied by full procedural protection.’” Marcel, 2012 WL 5463926 at *4 quoting Anthony
v. City of New York, 339 F.3d 129, 143 (2d Cir. 2003).
In this case Pineda disagrees with DCF’s decisions to pursue the termination of her
parental rights and to cancel visitation, but nothing in her Complaint suggests that the separation
from her children itself or the DCF’s employees actions in calling her to give her bad news at a
time when she was not ready to hear it, was “shocking, arbitrary or egregious.” See Voltaire,

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2016 WL 4540837, at *8 citing Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 275 (2d
Cir. 2011) (“Only the most egregious official conduct can be said to be arbitrary in the
constitutional sense and therefore unconstitutional.”).
Accordingly, all claims against the individual defendants brought pursuant to § 1983 are
DISMISSED sua sponte.
E.

This Court Lacks Authority to Compel the DCF to Treat Clients With More
Respect

To the extent that Pineda seeks an order directing the DCF to make changes to its policies
or procedures in order to ensure that its workers are more humane and respectful of the values
and rights of families, this Court cannot grant such relief, either in the form of an injunction or
through a writ of mandamus. First, the request is overbroad and vague. Second, the DCF is
entitled to sovereign immunity from suit, including an order for injunctive relief. Third, this
Court lacks authority to compel a state agency such as the DCF to modify its regulations,
policies, or procedures in this regard. See Davis Assocs., Inc. v. HUD, 498 F.2d 385, 388 (1st
Cir. 1974) (if no clear, non-discretionary duty exists on the part of the defendant, the court lacks
mandamus jurisdiction).
Accordingly, all claims for injunctive relief against any of the defendants are DENIED.
F.

Failure to State a Plausible Claim Under the ADA

Although Pineda has alleged she has been denied services in violation of the ADA, the
Amended Complaint fails to set forth plausible claims against the DCF itself. Her conclusory
allegations are insufficient to meet the pleading requirements of Rule 8. As the prior
Memorandum and Order noted, in order to state an ADA claim, plaintiff must allege that she is a
qualified individual with a disability, that she was excluded participation in or denied the
benefits of some public entity’s services, programs, or activities or was otherwise discriminated
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against, and that such exclusion, denial of benefits or discrimination was by reason of her
disability. Buchanan v. Maine, 469 F.3d 158, 170 -171 (1st Cir. 2006).
Here, the Court broadly construes Pineda’s allegations regarding her PTSD and other
mental health issues as alleging she is a qualified person with a disability. Nevertheless, with
respect to the second element, Pineda fails to state with any particularity the deprivation of
services, programs, or activities that she has suffered as a result of DCF employees’ actions, nor
has she set forth underlying facts that she otherwise was discriminated against based on her
disability. Pineda’s allegations of conspiracy by the defendants to cause her stress in order to
deprive her of her parental rights are wholly conclusory and, in any event, do not provide a
causal link between the alleged conduct and discrimination based on disability. While she
mentions that another worker at DCF advised her of their plan, she provides no relevant dates or
details. Moreover, the alleged facts set forth regarding the two conference calls do not implicate
denial of services or disability discrimination under the ADA; rather, the conversations appear to
involve giving Pineda notice of upcoming DCF actions with respect to her children.
Next, construing the Amended Complaint broadly, the fact that Pineda had requested that
DCF create a safe environment that would encourage and provide stability and certainty to her so
that she could avoid anxiety and depression, could be construed as her request for a reasonable
accommodation. Such a request, on its face, is amorphous and thus unreasonable as she has not
set forth any rational parameters in which the DCF could enforce this requested accommodation.
A request for an accommodation must be a “reasonable” one. Wisconsin Cmty. Servs., Inc. v.
City of Milwaukee, 465 F.3d 737, 752 (7th Cir. 2006) (interpreting 28 C.F.R. § 35.130(b)(7)
outlining the duty of a public entity to accommodate the needs of the disabled pursuant to 42
U.S.C. § 12131, et. seq.).

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Next, to the extent that she alleges that the individual defendants are liable for ADA
violations, her claims are not cognizable. Individuals are not liable under the ADA because they
are not “public entities” as defined under the ADA. 1
In light of the above, Pineda’s ADA claims against the DCF and the individual DCF
defendants are DISMISSED sua sponte.
G.

Declination to Exercise Supplemental Jurisdiction

Finally, Pineda’s claims that DCF employees deliberately tried to cause her distress
sounds in state law for intentional infliction of emotional distress. Since there is no bona fide
federal claim, this Court will not exercise jurisdiction over any state law claims. “When a
plaintiff’s anchor claim is a federal cause of action and the court unfavorably disposes of the
plaintiff’s federal claim at the early stages of a suit, well before trial, the court generally
dismisses any supplemental state-law claims without prejudice. Rodriguez v. Doral Mortg.
Corp., 57 F.3d 1168, 1177 (1st Cir.1995); see also Martinez v. Colon, 54 F.3d 980, 990 (1st
Cir.1995) (affirming dismissal without prejudice of pendent claims when the district court
determined “far in advance of trial that no legitimate federal question existed”). “RamosEchevarria v. Pichis, Inc., 659 F.3d 182, 191 (1st Cir. 2011).
Accordingly, to the extent Pineda asserts any state law claims, they are DISMISSED
without prejudice.

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Individuals are not public entities under the ADA. See Askins v. N.Y.C. Transit, 2013 WL
142007, at *4 (S.D.N.Y. 2013) (collecting authorities)); Hallett v. New York State Dep’t of
Correctional Servs., 109 F. Supp. 2d 190, 199-200 (S.D.N.Y. 2000) (dismissing ADA claims
against individual defendants because Title II provides disabled individuals redress for
discrimination by a public entity, not individuals). See also Kiman v. New Hampshire Dep't of
Corr., 2007 WL 2247843, at *8 (D.N.H. 2007) (subsequent history omitted; adopting unanimous
view of fife circuits that have held Title II does not apply to individuals).
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H.

The Second Request for Appointment of Counsel

In the body of the Amended Complaint, Pineda requests appointment of counsel. This
Court previously considered the matter and denied her motion for counsel. The Amended
Complaint does not add anything new to the mix. Because this action is being dismissed for the
reasons set forth herein, the request for appointment of counsel is DENIED as moot.
I.

Dismissal of Claims of the Minor Children

As noted in the prior Memorandum and Order (Docket No. 6), Pineda may not represent
the interests of her children in this Court since she is not an attorney. Since this Court will not
appoint counsel, the claims of the minor children shall be DISMISSED without prejudice.
III.

Conclusion and Order
Based on the foregoing, it is hereby Ordered that:

1.

All ADA claims against the DCF and the individual defendants are DISMISSED;

2.

All § 1983 claims against DCF are DISMISSED;

3.

All § 1983 claims against the DCF employees for monetary damages are DISMISSED;

4.

All § 1983 claims against the individual DCF employees are DISMISSED;

5.

Any state law claims are DISMISSED without prejudice;

6.

All claims of the minor children are DISMISSED without prejudice;

7.

Plaintiff’s request for appointment of counsel (contained in the Amended Complaint) is
DENIED as moot; and

8.

This action is DISMISSED in its entirety.

SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
UNITED STATES DISTRICT JUDGE
DATED: December 14, 2016
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