Graham v. City of New York et al
Filing
38
AMENDED MEMORANDUM, ORDER & JUDGMENT granting 9 Motion to Dismiss for Lack of Jurisdiction, granting 9 Motion to Dismiss for Failure to State a Claim: Plaintiff's federal claims against all defendants are dismissed on the merits. The state claims are dismissed without prejudice. While Dr. Treacy has not moved to dismiss, such a motion is deemed made and granted. No costs and disbursements are awarded. Ordered by Judge Jack B. Weinstein, on 6/14/2012. (Barrett, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
AMENDED MEMORANDUM,
ORDER, & JUDGMENT
CLAUDE GRAHAM,
ll-CV-S747
Plaintiff,
v.
CITY OF NEW YORK, THE NEW YORK
CITY ADMINISTRATION FOR
CHILDREN'S SERVICES, JANET
CAESAR a/kIa JANET CAESARBALFOUR, and EILEEN TREACY, PH.D,
FIL,I;;U
c:::
.S. DISTRIC/S OFFICE
u
IN clER
* JUN 1~ 2012 *
COURT EO.N
Defendants.
BROOKLYN OFFICE
APPEARANCES:
For the plaintiff:
Steve Marchelos
87 Mineola Blvd.
Mineola, NY 11501
For defendants the City of New York, the New
York City Administration of Children's
Services, and Janet Caesar aIkIa Janet CaesarBalfour:
Eric Brent Porter
New York City Department of Law
100 Church Street
New York, NY 100007
For defendant Dr. Eileen Treacy:
Martha Anne Calhoun
New York City Department of Law
100 Church Street
New York, NY 100007
Joseph David La Cava
Garson DeCorato & Cohen, LLP
110 Wall St., 10th Floor
New York, NY 10005
JACK B. WEINSTEIN, Senior United States District Judge:
1.
Introduction .................................................................................................................. 2
II.
Facts .......................................................................................................................... 5
1
~
A.
Relationship Between Graham and JGR ............................................................... 6
B.
Initial ACS Investigation ....................................................................................... 6
C.
Complaints About Investigation ........................................................................... 7
D.
JGR Confirms Abuse and Recants ........................................................................ 7
E.
First Order of Protection Issued Against Plaintiff................................................. 7
F.
Forensic Evaluation by Defendant Dr. Treacy ...................................................... 8
G.
Family Court Case Filed Against Plaintiff............................................................ 9
H.
Claims Against Mother Dismissed ...................................................................... 10
I.
Plaintiff Denied Contact with His Son ................................................................ 10
1.
Petition Against Plaintiff Dismissed ................................................................... II
III.
Procedural History .................................................................................................. II
IV.
Motion to Dismiss Standard .................................................................................... II
V.
Rooker-Feldman Does Not Bar Consideration ofPlaintifi's Claims ..................... 12
VI.
Claims Against ACS Dismissed ............................................................................. 14
VII. Claims Against the City of New York, Janet Caesar, and Dr. Treacy Are Without
Merit ...................................................................................................................... 14
1.
2.
a. Procedural Due Process ........................................................ 16
b. Substantive Due Process ...................................................... 17
Unreasonable Search and Seizure .................................................................... 24
3.
Malicious Prosecution ..................................................................................... 27
4.
B.
Due Process ..................................................................................................... 15
Equal Protection .............................................................................................. 28
Supplemental Jurisdiction Over State Law Claims ............................................. 29
VIII. No Amendment of Pleadings Permitted .................................................................. 30
IX.
I.
Conclusion .............................................................................................................. 33
Introduction
This case illustrates the adage "justice delayed is justice denied." While the Family
Court and the City, through its employees and consultant, took years to investigate charges of
neglect against a child's father, completely separating the son and parent during the process, the
youngster grew estranged from his absent dad. Although the charges against him were
2
dismissed, the sire had effectively lost the son. The law regrets the harm caused by its sloth. But
no violation of the constitutional or statutory rights of the plaintiff was committed, so the
complaint must be dismissed.
In March 2006, the New York City Administration for Children's Services ("ACS"), an
agency of the City of New York, began investigating plaintiff's wife after it received allegations
from a person other than the plaintiff that she physically and sexually abused her children. In the
course of its investigation, an ACS caseworker, Janet Caesar ("Caesar"), conducted four
interviews with plaintiff's son, JGR, then seven years old. In the first two interviews, JGR
denied all allegations of abuse; in the third interview, he stated that his mother was abusing him;
in the fourth, he recanted his accusation and claimed that his father, plaintiff Claude Graham, had
coached him to say that he was being abused. At the request of ACS, a Family Court judge
issued an order of protection forbidding Graham from seeing JGR and instructed the agency to
investigate the father and consider filing a petition against him. That JGR was coached by his
father to falsely report the abuse was the opinion later reached by a forensic psychologist, Dr.
Eileen Treacy.
For almost a year, the initial temporary order of protection forbade Graham from seeing
his son, and the case against JGR's mother remained open, yet allegedly little was done to
investigate the claims against them. Plaintiff repeatedly complained to officials that ACS was
not taking swift and adequate steps to look into the alleged abuse. He claims that, in retaliation
for these complaints, a Family Court petition was filed against him, alleging that he emotionally
neglected JGR by coaching him to fabricate the abuse allegations. He claims that the defendants
lacked sufficient evidence to initiate the proceedings against him and sought to cover up their
prior inactivity by manufacturing the charges.
3
The Family Court case against the plaintiff lasted for almost three years. At the request
of ACS, during the pendency of the case, Graham was subject to temporary orders of protection
that severely limited or completely barred him from having contact with his son. Although the
cases were ultimately dismissed with prejudice against both parents, the damage to the father's
relationship with his son was devastating.
Plaintiff now sues the City of New York, ACS, and Caesar (collectively "the City
Defendants"), as well as Dr. Treacy, alleging:
•
Violations of his rights:
o To be free from unreasonable searches and seizures;
o To procedural and substantive due process; and
o To equal protection
under the New York state and federal constitutions and 18 U.S.C. § 1983;
• Malicious prosecution under 18 U.S.C. § 1983 and state law;
• Abuse of process;
• Negligent and intentional infliction of emotional distress; and
• Negligent hiring and supervision.
See Compl. ~~ 83-180, Doc. Entry I, Nov. 23, 2011 ("Compl."). He seeks declaratory relief,
compensatory damages, punitive damages, attorney's fees, and costs and disbursements. See id.
The City Defendants move to dismiss all claims, alleging that the Rooker-Feldman
doctrine deprives the court of subject matter jurisdiction to hear the case; that plaintiff has failed
to state claims on which relief can be granted, including failure to allege a policy or practice
triggering municipal liability under Monell v. New York City Dep 'f of Soc. Servs., 436 U.S. 658
(1978); and that Caesar is entitled to qualified and absolute immunity. See generally Mem. of L.
in Supp. of City Defs.' Mot. to Dismiss the Compl., Doc. Entry 12, Feb. 17,2012 ("Defs.'
Mem.").
The motion to dismiss the case is granted. Plaintiff's pleadings fail to support a claim
that his federal constitutional rights were violated by any of the defendants. Child protective
4
services must strike a delicate balance between protecting children from abuse and neglect and
avoiding unnecessary family disruptions. Caseworkers must make difficult, immediate
decisions, often with limited information. Once a child protective proceeding against a parent is
initiated, it can be unnecessarily prolonged due to inadequate resources or staffing. While the
alleged inefficiency ofthe agency in this case may have been lamentable, it is not
unconstitutional. Although defendant Dr. Treacy has not moved, all claims against her are
dismissed for the same reasons the other defendants' motions are granted.
II.
Facts
In addition to the facts alleged in the complaint, the Family Court petitions and orders
attached to defendants' moving papers, as well as the Family Court docket entries submitted by
the plaintiff, are considered in deciding this motion. A court generally may not consider
documents outside the pleadings on a motion to dismiss. Leonard F v. Israel Discount. Bank of
NY., 199 F.3d 99, 107 (2d Cir. I 999)("In adjudicating a Rule l2(b)(6) motion, a district court
must confine its consideration to facts stated on the face of the complaint, in documents
appended to the complaint or incorporated in the complaint by reference, and to matters of which
judicial notice may be taken." (internal citations and quotations omitted». It may, however,
consider both documents incorporated into the complaint by reference and matters of which
judicial notice may be taken without converting the motion into one for summary judgment. See,
e.g., Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005) (finding that
documents incorporated by reference may be considered on a motion to dismiss); Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (finding that courts may properly consider
"matters of which judicial notice may be taken, or documents either in plaintiffs' possession or of
which plaintiffs had knowledge and relied on in bringing suit"). As the petition is referred to
5
explicitly in the complaint, was in the plaintiff's possession, and was relied on by him in
pleading, it is incorporated by reference and may be considered at this stage. Records of prior
litigation are facts of which judicial notice may be taken. Anderson v. Rochester-Genesee Reg'l
Transp. Auth., 337 F.3d 201, 205 n. 4 (2d Cir. 2003) (citing cases). Plaintiff has not objected to
consideration of these documents.
While additional documents are now in the record, see Part III, infra, this evidence is not
considered in deciding this motion, see Parts III-IV, infra.
A. Relationship Between Graham and JGR
Plaintiff Claude Graham is the father of, JGR, who was born in 1998. Compl. '\[25.
Graham did not live with the child or the child's mother, although he saw the child frequently
and was paying child support. See Tr. ofHr'g, May 7, 2012. Graham is married to another
woman. Id.
B. Initial ACS Investigation
On March 15,2006, ACS opened an investigation relating to alleged child abuse and
neglect of JGR and his brothers by their mother. Id. '\[26. The allegations included physical and
sexual abuse, unsanitary living conditions, and school absences. Id. '\[27. The investigation was
prompted by a call from Norman McLean, one of JGR's mother's paramours, to the State
Central Register of Child Abuse and Maltreatment. Id. '\[26; Tr. ofHr'g, May 7, 2012.
Janet Caesar was assigned as the ACS caseworker. As part of her investigation, Caesar
interviewed JGR about the alleged abuse several times. JGR denied any abuse at an initial
interview on March 26, 2006. Id. '\[29. He again denied the allegations on April 7, 2006. Id. '\[
30. These first two interviews were apparently conducted in the mother's home, but not in her
presence. See id. '\[32; Tr. of Hr'g, May 7, 2012.
6
C. Complaints About Investigation
The plaintiff complained to ACS and other city officials about the abuse of his son and
the failure of the City Defendants to properly investigate. !d. '\[36. It is unclear to whom he
made these complaints, or when, or how frequently.
In April 2006, Graham's wife sent a letter to Mayor Michael Bloomberg and other City
officials criticizing ACS for its inactivity and incompetence in investigating the allegations. Id '\[
37.
D. JGR Confirms Abuse and Recants
On May 5, 2006, Caesar interviewed JGR for a third time-this time, at the child's
schoo!. !d. '\[31. For the first time, JGR claimed that he had, in fact, been abused by his mother.
Id He told Caesar that he did not admit the truth previously because his mother was nearby. Id
'\[32. The child was promptly removed from his mother's custody by ACS. Id '\[34; see also
Dec!. of Eric Porter ("Porter Decl.") Ex. C at 6 (Family Court Petition), Doc. Entry 13, Feb. 17,
2012 ("Family Court Petition") (stating that the child was removed on or about May 4, 2006).
Following this interview, the City Defendants filed a petition against the mother in
Queens Family Court on May 8, 2006. Comp!. '\[33. It alleged abuse and neglect.
Caesar interviewed JGR for a fourth time on May 9, 2006, after he had been removed
from his mother's care. Id '\[34. The child recanted. He said that his father, the plaintiff, had
instructed him to lie. !d.
E. First Order of Protection Issued Against Plaintiff
Following a hearing on May 11, 2006, a Family Court judge issued a temporary order of
protection preventing Graham from having any contact with JGR. Porter Dec!. Ex. A (May 11,
2006 Temporary Order of Protection). Graham was represented by counsel at the hearing. Pl.'s
7
Aff. in Opp. to Converted Mot. for Swnm. J. ("P!.'s Aff.") Ex. C (Family Court Docket Entry
for May 11,2006), Doc. Entry 32, May 17,2012. The court also ordered "ACS ... to
investigate the propriety of filing a new child protective proceeding against Mr. Graham." Porter
Dec!. Ex. A (May 11,2006 Temporary Order of Protection).
JOR was returned to his mother's custody on May 12,2006, approximately eight days
after he had been removed. Comp!., 35; see also Family Court Petition 6 (stating that the child
was returned on or about May 12,2006).
Plaintiff did not appeal the temporary order of protection. See N. Y. Fam. Ct. Act §
1112(a) (permitting appeal of such orders).
F. Forensic Evaluation by Defendant Dr. Treacy
In 2007, the ACS investigation of JOR's mother was still ongoing. In February of that
year, the City Defendants retained defendant Dr. Treacy, a developmental psychologist, to
conduct a forensic evaluation, assessing the validity ofthe sexual abuse allegations. Comp!.
mr
19,38-39. Alleged is that this evaluation was conducted in response to pressure by plaintiff. Id
'38.
Dr. Treacy interviewed JOR on February 9, 2007 and March 23,2007. Id , 40. In her
March 28, 2007 report summarizing her findings, Treacy concluded that Oraham had coached
JOR to state that his mother had abused him-information which would support a finding of
neglect by the plaintiff rather than the mother. Id. "42-43,57-58.
Plaintiff contends that this evaluation was so fatally flawed as to be grossly negligent and
improper. Id ,,57,60. Alleged is that it failed to provide any evidence that JOR's physical,
mental, or emotional condition had been impaired or was in imminent danger of being
impaired-a necessary element ofa neglect finding against him. Id ,,58-59. Claimed is that
8
this evaluation was so flawed that the City Defendants should have known that it was unreliable
and insufficient to support a charge of neglect. Id. ~ 62.
Graham concedes that he did not know Dr. Treacy and is not claiming that she had any
specific animus towards him. See Tr. ofHr'g, May 7, 2012.
G. Family Court Case Filed Against Plaintiff
On March 29, 2007, the Family Court again ordered that there should be no contact
between JGR and Graham until authorized by a further order of the court. Porter Decl. Ex. B
(March 29,2007 Temporary Order of Protection).
On April 13, 2007, the City Defendants filed a neglect petition against Graham on the
ground that he coached or coerced JGR into making false allegations against his mother and that
this constituted emotional neglect. Compl.
~
45; see also Family Court Petition. That same day,
they filed a second petition alleging both emotional neglect by plaintiff and sexual abuse and
neglect by JGR's mother. Compl.
~
46; see also Family Court Petition.
Plaintiff denies the allegation of coaching. Compl.
factual basis to support the charges against him. Id.
~
~
74. He contends that there was no
52. He claims that JGR's multiple
contradictions and recantations made his statements untrustworthy. Id. Alleged is that the
statements were uncorroborated, id.
~
55, and that Dr. Treacy's flawed forensic evaluation did
not adequately support JGR's charge. Id. ~~ 56-57. The City Defendants, he suggests, knew that
an uncorroborated statement from a child could not be the basis of a neglect finding. id.
~
56.
Graham asserts that the petition was filed against him in retribution for his complaints
about the City Defendants and for the letter his wife sent to the Mayor. Id.
~~
66-67. The
gravamen of his charge is that the City Defendants sought to punish him in order to cover up the
breach of their own procedures, including their failure to obtain a proper forensic evaluation of
9
JGR until nearly a year after the investigation began, and their failure to present the allegations
of abuse by the mother to the local Children's Advocacy Center. Id. '1['1[68-70.
H. Claims Against Mother Dismissed
JGR remained in his mother's custody after the second petition against her was filed on
April 13, 2007. Id. '1[47. On April 18th, defendants withdrew the sexual abuse allegations
against her and agreed to an adjournment in contemplation of dismissal of the remaining neglect
charges. Id. '1[49. All charges against JGR's mother were dismissed a year later. Id. '1[50.
I.
Plaintiff Denied Contact with His Son
After the petition was filed against him, the Family Court issued another temporary order
of protection prohibiting Graham from having contact with his son. Porter Dec!. Ex. D (April
13,2007 Temporary Order of Protection). A series of similar orders followed. Porter Dec!. Ex.
E (Temporary Orders of Protection from April 18, 2007 to October 1,2007). Plaintiff alleges
that these orders were requested by Caesar. P!.'s Mem. ofL. in Opp. to the City Defs.' Mot. to
Dismiss the Comp!. 48, Doc. Entry 19, Mar. 21, 2012 ("PI.'s Mem.").
In October 2007, the plaintiff was permitted to visit with his son under supervision.
Porter Decl. Ex. F (Temporary Orders of Protection from October 29, 2007 to May 20,2010). In
an order dated June 2, 2009, the Family Court noted that these visits had a negative effect on the
mental health of JGR. Porter Dec!. Ex. G (Family Court Order on Motion June 2, 2009).
It was due to these orders, issued at the behest of the City Defendants, that plaintiff was
unable to have lawful and unimpeded contact with his son until April 10, 2010. Comp!. '1[72;
Porter Dec!. Exs. E, F (Temporary Orders of Protection from April 18, 2007 to May 20, 2010).
As a result, what had previously been what plaintiff describes as a loving relationship with the
child was seriously disrupted. See Tr. ofHr'g, May 7, 2012.
10
J. Petition Against Plaintiff Dismissed
On August 26, 2010, the neglect petition against Graham was dismissed without
qualification and with prejudice. Id '1[71.
III.
Procedural History
Plaintiff filed a complaint in the Eastern District of New York on November 23, 20 II.
See id. Defendants moved to dismiss the action pursuant to Rule 12(b)(6) on February 15,2012.
See Defs.' Mem. In order to determine whether conversion of the City Defendants' motion to
dismiss to one for summary judgment was appropriate, defendants were asked to submit the full
case records from the underlying ACS investigation and Family Court action. See Order, Doc.
Entry 20, Apr. 4, 2012.
At the May 7, 2012 hearing, both plaintiff and Mrs. Caesar testified without objection.
See Tr. ofHr'g, May 7, 2012. The parties were permitted to submit supplemental letter briefs on
the facts raised at the hearing. See id Plaintiff supplied additional documents in further
opposition to defendants' motion. See Doc. Entry 32, May 15, 2012.
Plaintiff has opposed conversion to summary judgment at this time. See Pl.'s Aff. '1['1[2-3.
Because the case can be decided based on the pleadings, conversion of the defendants' motion to
one for summary judgment is not appropriate.
IV.
Motion to Dismiss Standard
Rule 12(b)(6) allows dismissal of claims when the pleadings fail "to state a claim upon
which relief can be granted." In ruling on a 12(b)(6) motion, a court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in plaintiff's
favor. Hayden v. Paterson, 594 F.3d ISO, 160 (2d Cir. 2010). "The issue is not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support
11
the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). While plaintiffs are not required to
put forward "detailed factual allegations," a pleading that offers "labels and conclusions" or "a
formulaic recitation of the elements of a cause of action will not do." Bell Atlantic v. Twombly,
550 U.S. 544, 555 (2006). A claim survives a motion to dismiss ifit is "plausible on its face."
Id. at 570. By contrast, "[a] complaint which consists of conclusory allegations unsupported by
factual assertions fails even the liberal standard of Rule 12(b)(6)." De Jesus v. Sears Roebuck &
Co., 87 F.3d 65, 70 (2d Cir. 1996), cert. denied 519 U.S. 1007 (1996).
V.
Rooker-Feldman Does Not Bar Consideration of Plaintiff's Claims
Rooker-Feldman does not deprive this court of subject matter jurisdiction over plaintiff's
claims. It is a "narrow" doctrine prohibiting federal district courts and courts of appeals from
reviewing final state court judgments. Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544
U.S. 280, 285 (2005). Its application "is confined to cases of the kind from which the doctrine
acquired its name: cases brought by state-court losers complaining of injuries caused by statecourt judgments rendered before the district court proceedings commenced and inviting district
court review and rejection of those judgments." Id.
There are four "requirements" for application of Rooker-Feldman:
First, the federal-court plaintiff must have lost in state court. Second, the plaintiff
must "complain[] of injuries caused by [a] state-courtjudgment[.l" Third, the
plaintiff must "invite district court review and rejection of [that] judgment[ ]."
Fourth, the state-court judgment must have been "rendered before the district
court proceedings commenced"-i.e., Rooker-Feldman has no application to
federal-court suits proceeding in parallel with ongoing state-court litigation.
Hoblock V. Albany County Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005) (alterations in
original).
The Court of Appeals for the Second Circuit has held that a plaintiff does not invite
rejection of a state court judgment when he seeks to recover for constitutional harms caused by
12
interim state court orders after a case was tenninated in his favor. See Green v. Mattingly, 585
F.3d 97,102-103 (2d Cir. 2009). In Green, ACS initiated child protective proceedings in Family
Court against the plaintiff mother. [d. at 99. At an initial hearing, the court issued a temporary
order removing the child from her custody. [d. at 100. At a second hearing, the child was
returned to the mother, and the case was adjourned for twelve months in contemplation of
dismissal. [d. Following dismissal, plaintiff filed suit in to recover under 18 U.S.C. § 1983 for
malicious prosecution. [d. The Court of Appeals for the Second Circuit found that her case was
not barred by Rooker-Feldman. [d. at 102-103. The plaintiff was not a "state court loser":
although the Family Court issued a temporary order of removal, the child was returned four days
later, and the proceedings were ultimately dismissed. [d. at 102; see also
vs. v. Muhammad,
595 F.3d 426, 430 (2d Cir. 2010) (finding, under similar facts, that plaintiff "V.S. is not a 'statecourt loser,' since, prior to the commencement of the instant action, ACS had withdrawn all its
claims against V.S. and the Family Court had released T.S. to V.S.'s custody. Likewise, nothing
in the instant action invites district court review and rejection of a final state-court judgment.").
Moreover, the court found that plaintiff had "plainly has not repaired to federal court to undo the
Family Court judgment," since "the only conceivable 'judgment' against plaintiff-the
temporary removal of her child-has already been undone." Green, 585 F.3d at 102-103
(internal citations and alterations omitted). Compare Phifer v. City o/New York, 289 F.3d 49,57
(2d Cir. 2002) (holding that the plaintiffs claims seeking an order directing ACS to return
plaintiffs child to her custody were barred by the Rooker-Feldman doctrine); Allen v. Mattingly,
No. 10 CV 0667, 2011 WL 1261103, *8 (E.D.N.Y. Mar. 29, 2011) (holding that there was no
jurisdiction under Rooker-Feldman where plaintiff's "claims invite this Court to review and
reject the state Family Court's detenninations to remove her son from her custody and to place
13
him in the custody of a foster care agency, which have not otherwise been vacated, i.e., her son
has not been returned to her custody"); Puletti v. Patel, No. 05 CV 2293, 2006 WL 2010809, at
*5 (E.D.N.Y. July 14,2006) (finding that Rooker-Feldman deprived the court of subject matter
jurisdiction over the complaint where the "Plaintiff request[ed] that th[ e] Court restore his lost
Thursday night visitations because he [wa]s unsatisfied with the outcome of the custody
proceeding that left Plaintiff with 'four nights out of every ten' with his son").
In the instant case, the child protective proceeding against Graham was dismissed with
prejudice. As in Green, the only '~udgment" against the plaintiff was the temporary order of
protection that deprived him of contact with his son. Plaintiff does not seek relief from these
orders, but compensation for the harms they, together with other official acts, wrought. Under
Green, these claims are not barred by Rooker-Feldman.
VI.
Claims Against ACS Dismissed
ACS is an agency of the City of New York and cannot be sued independently. N.Y. City.
Charter, Ch. 17 § 396 ("All actions and proceedings for the recovery of penalties for the
violation of any law shall be brought in the name of the city of New York and not in that of any
agency, except where otherwise provided by law."); see also, e.g., Emerson v. City o/New York,
740 F. Supp. 2d 385, 396 (S.D.N.Y. 2010). Plaintiff concedes that claims against ACS should be
dismissed. PI.' s Mem. 49.
VII.
Claims Against the City of New York, Janet Caesar, and Dr. Treacy Are
Without Merit
A. Federal Claims
Graham raises claims under 18 U.S.C. § 1983 and the United States Constitution. To
establish a constitutional violation under section 1983, a plaintiff must show that: 1) the
14
defendants were acting under color of state law; and 2) this action constituted a deprivation of a
constitutional or federal statutory right. See, e.g., Hayut v. State Univ. o/New York, 352 F.3d
733,743-44 (2d Cir. 2003).
Graham alleges that the defendants, including Dr. Treacy, were acting under color of
state law. Compl.
~
22. This claim is taken as true for the purposes of this motion. He has
failed, however, to plead sufficient facts to state a claim for the violation of his rights. Because
no basis for a federal claim has been stated, the issues of municipal liability and qualified
immunity need not be decided.
1. Due Process
Government actions that restrict a parent's contact with his child implicate fundamental
rights. "Choices about marriage, family life, and the upbringing of children are among
associational rights the Court has ranked of 'basic importance in our society,' ... rights sheltered
by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or
disrespect." ML.B. v. s.L.), 519 U.S. 102, 116 (1996) (internal citations and quotations
omitted); see also Duchesne v. Sugarman, 566 F .2d 817, 824 (2d Cir. 1977) (holding that it is
"beyond peradventure" that the "existence of a private realm offamily life which the state cannot
enter has its source not in state law, but in ... intrinsic human rights" (internal citations and
quotation marks omitted)). Parents have a "fundamental liberty interest ... in the care, custody,
and management of their child[, which] does not evaporate simply because they have not been
model parents or have lost temporary custody of their child." Santosky v. Kramer, 455 U.S. 745,
753 (1982). This includes the right of parents not to be forcibly separated from their children.
See Quilloin v. Walcott, 434 U.S. 246, 255 (1978) ("We have little doubt that the Due Process
Clause would be offended '[if] a State were to attempt to force the breakup ofa natural family,
15
over the objections of the parents and their children, without some showing of unfitness and for
the sole reason that to do so was thought to be in the children's best interest. "'); Duchesne, 566
F.2d at 825 ("[T]he most essential and basic aspect offamilial privacy [is] the right ofthe family
to remain together without the coercive interference of the awesome power of the state.").
Parental rights are implicated when a child is temporarily removed from the custody of a
parent and placed in foster care on an emergency basis or for all or part of the duration of a child
protective proceeding. See, e.g., Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999).
Government actions other than removal may also implicate important rights. In the
instant case, the temporary orders of protection forbade the plaintiff from having any contact
with his son for more than a year, and significantly limited their contact for several years. These
orders, procured at the request of ACS, adversely affected Graham's vital rights as a parent.
"The liberty interests of parent and child in continued care and companionship has both
procedural as well as substantive elements." Kia P. v. McIntyre, 2 F. Supp. 2d 281, 290
(E.D.N.Y. 1998), affd, 235 F.3d 749 (2d Cir. 20000). Plaintiff raises both claims. See Pl.'s
Mem.20-27. Here, neither element was trespassed upon. Graham received full procedural
protections from the Family Court before he was significantly deprived of his right to interact
with his son. That court found-after an appropriate inquiry-that a sufficient basis existed to
issue the temporary orders of protection preventing Graham from seeing his son. Nor were his
substantive due process rights violated.
a. Procedural Due Process
Procedural due process is designed to reduce the possibility that the government will
infringe on protected interests unnecessarily. Kia P, 235 F.3d at 759 ('''[P]rocedural due
process rules are shaped by the risk of error inherent in the truthfinding process as applied to the
16
generality of cases. "')(quoting Mathews v. Eldridge, 424 U.S. 319, 344 (1976)). To determine
whether there have been sufficient procedural protections before an individual is deprived of a
liberty interest, courts rely on the test stated in Mathews v. Eldridge, assessing: I) "the private
interest that will be affected by the official action;" 2) "the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards;" and 3) "the Government's interest, including the function
involved and the fiscal and administrative burdens that the additional or substitute procedural
requirement would entail." 424 U.S. at 335.
"As a general rule ... before parents may be deprived of the care, custody or
management of their children without their consent, due process--{)rdinarily a court proceeding
resulting in an order [approving,] permitting[, or ordering] removal-must be accorded to them."
Tenenbaum, 193 F.3d at 593 (citing Stanley v. Illinois, 405 U.S. 645 (1972). Similar process is
due when the government action substantially restricts a non-custodial parent's relationship with
the child.
The proceedings in this case complied with due process. Graham was present at the
Family Court hearing when it issued the first temporary order of protection denying him contact
with JGR. At that hearing, he was represented by counsel who could have argued that such an
order was unnecessary. Pl.'s Aff. Ex. C (Family Court Docket Entry for May 11,2006). He was
free to appeal the temporary order of protection, yet failed to do so. Additional process would
not have produced a different result.
Since Graham's procedural due process rights were not violated, this claim must be
dismissed.
b. Substantive Due Process
17
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 .... "); Joyner by Lowry v. Dumpson,
712 F.2d 770, 777 (2d Cir. 1983). A plaintiff seeking to prevail on such a claim must establish
that the infringement on his liberty interest to be with his children is "so shocking, arbitrary, and
egregious that the Due Process clause would not countenance it even were it accompanied by full
procedural protection." Anthony v. City ofNew York, 339 F.3d 129, 143 (2d Cir. 2003).
In light of the "compelling governmental interest in the protection of minor children," the
Court of Appeals for the Second Circuit "has adopted a standard governing case workers which
reflects the recognized need for unusual deference in the abuse investigation context. An
investigation passes constitutional muster provided simply that case workers have a 'reasonable
basis' for their findings of abuse." Wilkinson v. Russell, 182 F.3d 89, 104 (2d Cir. 1999)
(internal citations and quotations omitted); see also van Emrik v. Chemung County Dep 't of
Social Services, 911 F.2d 863,866 (2d Cir. 1990).
Discretion is not unlimited. The government must conduct a sufficient investigation into
the alleged neglect or abuse it relies upon to establish a reasonable basis for its action. Nicholson
v. Williams, 203 F. Supp. 2d 153,251 (E.D.N.Y. 2002) (citing Croft v. Westmoreland County
Children & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. 1997) (holding that the child welfare
agency must independently corroborate a report of abuse from an anonymous informant in order
to separate a child and parent»; Strail v. Dep 't of Children, Youth and Families of Rhode Island,
62 F. Supp. 2d 519, 529 (D.R.L 1999) ("[T]he due process clause will certainly be offended if
18
children are taken away from their parents without sufficient investigation."}}. Moreover,
"[c]ase workers [are not] free to substantiate a claim of abuse ... by ignoring overwhelming
exculpatory information or by manufacturing false evidence." Wilkinson, 182 F.3d at 104; see
also Estiverne v. Esernio-Jenssen, --- F.Supp.2d ----, 2011 WL 6754069, at *11 (E.D.N.Y. 2011)
(holding that defendant doctor was not entitled to summary judgment where plaintiff produced
evidence that he "both ignored significant exculpatory evidence and manufactured a false or
reckless diagnosis").
"[M]ere failure to meet local or professional standards" or "a faulty investigation does
not necessarily rise to the level of an unconstitutional investigation." Wilkinson, 182 F.3d at 106.
In Wilkinson, for example, child protective services relied on statements by the subject children
that their father had abused them, as well conclusions by the children's psychiatrist in
substantiating the abuse allegation. Id. at 105-06. The court noted that the "children gave
conflicting signals as to whether their father had abused them," and that one child equivocated on
whether the allegations against the father were true or were coached by the mother. !d. at 105.
Many of the child's statements supporting the conclusion of abuse were in response to leading
questions by the agency investigator. Id. at 93-94. Some of the child's claims were also
objectively implausible. Id. at 94 ("[The child] described an incident in which his father 'cut
[his] eye out,' leaving [him] with only' one eye.' ... [The investigator] conceded at trial that this
claim was 'a bit fantastic,' he had no explanation for failing to follow up on the child's bizarre
comments beyond the fact that 'it was clear that he had both eyes. "'). The Court of Appeals for
the Second Circuit concluded that the government's actions were constitutional, despite
significant flaws in the investigation:
It appears that [the investigator] should have been considerably more thorough in
his work. [The child], by his express claims of coaching by his mother, raised
19
significant doubt as to the likelihood of abuse, and that doubt was compounded by
the absence of any medical evidence (particularly given the invasive types of
physical abuse ... described). Nevertheless, [the investigator] interviewed [the
child] only once, used leading questions, and did not fully explore the child's
comments suggesting possible maternal coaching. Furthermore, instead of seeking
corroboration from additional witnesses, or from an independent psychiatrist or
from elsewhere, [the investigator] spoke only to ... a child psychiatrist who had
met with the children only two or three times.
Despite these assorted problems, we conclude that defendants had a reasonable
basis for their substantiation determination and that they therefore did not violate
plaintiffs' constitutional rights .... [E]ven with its deficiencies, the [child
protective] investigation generated significant information supporting a finding of
abuse. In our view, this evidence was sufficient-though marginally-to establish
the requisite reasonable basis for defendants' substantiation determination to
comport with plaintiffs' constitutional right to family integrity.
!d. at 106.
Plaintiff in this case alleges that the Family Court petition filed against him was not
supported by the facts and was actually motivated by the City Defendant's desire to retaliate.
ACS caseworkers cannot initiate a child protective proceeding for the purpose of retaliation.
While no cases have been identified addressing the effect of a retaliatory motive in the context of
a substantive due process violation, plaintiffs claim can be analogized to an allegation of First
Amendment retaliatory arrest or prosecution. In child protective proceedings, ACS occupies a
position analogous to that of a police officer, conducting the investigation of the parent and
collecting evidence in support of potential abuse or neglect charges.
ACS [also] occupies the role of prosecutor when it initiates an Article 10 petition
for neglect against a [parent]. Prosecutors enjoy broad discretion in the conduct of
their office. See, e.g., U.S. v. Armstrong, 517 U.S. 456, 465 ... (1996) ("[C]ourts
are properly hesitant to examine the decision whether to prosecute.") (internal
quotations and citations omitted). Nevertheless, the discretion to prosecute is not
absolute; it "is subject to constitutional constraints." !d. at 464,116 S.Ct. 1480
(quoting U.s. v. Batchelder, 442 U.S. 114, 125 ... (1978)). Discretion extends
only so far as "the prosecutor has probable cause to believe that the accused
committed an offense defined by statute." U.s. v. Bonnet-Grullon, 212 F.3d 692,
701 (2d Cir. 20000)(quoting U.s. v. Armstrong, 517 U.S. at 464, 116 S.Ct. 1480).
20
Nicholson, 203 F. Supp. 2d at 246. Much as police officers or prosecutors cannot abuse the
powers of their office to retaliate against an individual by arresting or prosecuting them without
probable cause, neither can child protective services retaliatorily deprive a father of his parental
rights. A reasonable basis for proceeding must exist---considering all exigencies such as the
dangers to a child of delay.
Allegations of retaliatory motive, on their own, may be insufficient to establish
constitutional violations where caseworker actions are otherwise supported by a reasonable basis.
In First Amendment retaliation cases:
[U]pon a prima facie showing of retaliatory harm, the burden shifts to the
defendant official to demonstrate that even without the impetus to retaliate he
would have taken the action complained of .... If there is a finding that
retaliation was not the but-for cause [for the action], the claim fails for lack of
causal connection between unconstitutional motive and resulting harm, despite
proof of some retaliatory animus in the official's mind.
Hartman v. Moore, 547 U.S. 250, 260 (U.S. 2006) (internal citations and quotations omitted). In
the context of retaliatory arrests and prosecutions, a showing of probable cause can rebut the
inference that animus was the but-for cause of the government action. See id. at 261
("[E]stablishing the existence of probable cause will suggest that prosecution would have
occurred even without a retaliatory motive."); see also Curley v. Village o/Suffern, 268 F.3d 65,
73 (2d Cir. 2001) (Where "defendants had probable cause to arrest plaintiff, an inquiry into the
underlying motive for the arrest need not be undertaken."). In the case of a child protective
investigation, the existence of a reasonable basis for the filing of a Family Court petition is
sufficient to demonstrate that the government action would have been taken even in the absence
of some retaliatory motive.
In light of the presumption of regularity attributed to state judicial proceedings, an
intervening independent judicial determination that a reasonable basis exists for limiting the
21
exercise of parental rights generally cleanses any subsequent infringement of unconstitutional
taint. See Southerland v. City ofNew York, --- F.3d ----, 2012 WL 1662981, at *21-22 (2d Cir.
2012), amending and superseding 667 F.3d 87 (2d Cir. 2012), reh 'g en banc denied --- F.3d ----
(2d Cir. 2012). The Court of Appeals for the Second Circuit has held that, where a child has
been wrongfully removed on an emergency basis, "once ... 'court confirmation of the basis for
removal' is obtained, ... any liability for the continuation of the allegedly wrongful separation of
parent and child can no longer be attributed to the officer who removed the child." E.g., id. at
21. Only if a plaintiff can show that the government's request for removal or an order of
protection was summarily approved by the Family Court on the basis offalse or greatly flawed
ACS representations, or that the judicial proceeding was otherwise substantially tainted, will a
court-ordered separation be found to infringe on a parent's substantive due process rights.
Compare id. at 22 ("Although the [plaintiff's children] continued to be separated from [him]
even after the post-removal confirmation proceeding, in light of the presumption of regularity
that we attribute to state judicial proceedings, ... and in light of [his] failure to proffer any
evidence tending to rebut that presumption, we cannot conclude that the continued separation of
[plaintifi] from his children following the judicial confirmation proceeding is fairly attributable
to" the caseworker.); with Estiverne, 2011 WL 6754069, at *11 (finding that the fact that "the
Family Court granted ACS's petition, thereby 'confirming' that there existed a reasonable basis
for removal, does not mandate" dismissal of plaintiff s substantive due process claim "when the
facts upon which the judicial tribunal relies are themselves false or misleading, court
confirmation will not 'suffice to show that the caseworker's conduct had an objectively
reasonable basis'" (internal citations and alterations omitted)); and Nicholson, 203 F. Supp. 2d at
22
251 ("The removals of abused mother's children, even when summarily approved by a court
based on ACS representations, infringe on mothers' substantive due process rights.").
For the purposes of this motion, plaintiff's allegation that the City Defendants filed the
petition in order to retaliate against him will be assumed to be true-though nothing, in fact,
supports them. There is not the slightest suggestion of malice as a motive for Caesar's actions.
See Tr. of Hr'g, May 7, 2012.
Even if the investigation was, like that in Wilkinson, seriously flawed, the facts as pled in
the complaint establish that the City Defendants had a reasonable basis to request a temporary
order of protection. Coercion or coaching of a child to falsely accuse his mother of abuse could
be found to constitute abuse or neglect of the child. See, e.g., Matter ofJohn A. v Bridget M,
791 N.Y.S.2d 421, 429 (1st Dep't 2005) (Tom, J.P. & Friedman, J., concurring) ("It is
psychologically abusive for a parent to plant in the mind of a three- or four-year-old child the
false notion that the other parent is sexually abusing the child."); David K. v Iris K., 714
N.Y.S.2d 297,298 (1st Dep't 2000) (finding, in custody determination, that making "false
allegations of sexual misconduct" is "inconsistent with the best interests of the child"). The
Family Court judge directed ACS to investigate whether a petition against Graham should be
filed when the allegations of coaching first came to light. In light of the considerable deference
afforded to caseworkers, JOR's statement of coaching that could have reasonably been found
credible by a caseworker provided a sufficient basis for the City Defendants to request that the
court temporarily restrict his access to the child. When combined with the expert's, Dr.
Treacy's, confirmation of coaching, the facts were sufficient to justify the filing of the petition
against the plaintiff.
23
In view of the uncontroverted facts, it is implausible to suggest that the City Defendants
would not have taken these actions but for some vague retaliatory motive. "[Alction colored by
some degree of bad motive does not amount to a constitutional tort if that action would have
been taken anyway." Hartman, 547 U.S. at 260.
In any event, the separation of Graham from his son was not effectuated by the
defendants directly. The temporary orders of protection depriving plaintiff of his right to contact
with his son were issued by the Family Court for good cause. See N.Y. Fam. Ct. Act § I029(a).
Plaintiff does not assert that the evidence the court relied on in issuing these orders were false; he
only claims that they did not provide a sufficient basis for depriving him of a parental right. The
Family Court disagreed. In the absence of any allegations of substantial irregularities in the
Family Court proceeding, the intervening, independent judicial determination-the actual cause
of the plaintiff's deprivation-absolves the defendants ofliability.
Even where the Rooker-Feldman doctrine does not apply, comity to state court activities
is essential if the Administration for Children's Services and the Family Court are to fulfill their
appropriate functions. The limitation on Graham's contact with JGR may possibly have been
unnecessarily prolonged due to inefficiencies within ACS and the Family Court system.
Nevertheless, plaintiff cannot show a violation of his substantive due process rights.
2. Unreasonable Search and Seizure
Plaintiff claims that "[dlefendants' commencement and continuation of the Family Court
proceeding and the pursuit of the interim/temporary orders of protection barring and/or
restricting his contact with JGR violated his Fourth Amendment right to be free from
unreasonable searches and seizures." PI. 's Mem. 27. He argues that the Family Court orders
denying him contact with JGR constituted a "seizure" of the plaintiff, and that the child
24
protective investigation constituted a "search." Id. See also Tr. ofHr'g, May 7, 2012 (arguing
that ACS' failure to investigate the claims against Graham or JOR's mother for a year while the
temporary order of protection prevented plaintiff from seeing his son constituted a seizure). This
claim is without merit.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. Const. amend. IV. "A 'seizure', triggering the Fourth Amendment's protections occurs ...
when government actors have, 'by means of physical force or show of authority ... in some way
restrained the liberty of a citizen. '" Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989); see also,
e.g., Gardiner v. Incorporated Vii/age a/Endicott, 50 F.3d 151, 155 (2d Cir. 1995) (stating that
an individual is seized if, under the circumstances presented, "a reasonable person would have
believed he was not free to leave"). A search occurs if the government intrudes upon a
subjective expectation of privacy that society is willing to recognize as objectively
reasonable. See, e.g., Katz v. United States, 389 U.S. 347, 351-52 (1967).
A Family Court order of removal is the equivalent of a warrant for Fourth Amendment
purposes. Tenenbaum, 193 F.3d at 602; see also Kia P., 235 F.3d at 762 ("[T]he Fourth
Amendment applies in the context of the seizure of a child by a government-agency official
during a civil child-abuse or maltreatment investigation."). A claim arising out of the removal of
a child without probable cause can thus raise constitutional concerns. See, e.g., Nicholson v.
Scoppetta, 344 F.3d 154, 172 (2d Cir. 2003). Parents have standing to challenge a search of their
residence pursuant to a child protective investigation. See Southerland, 667 F.3d at 103.
25
Fourth Amendment rights, however, are personal rights that carmot be asserted
vicariously. See Alderman v. United States, 394 U.S. 165, 174 (1969); Tenenbaum, 193 F.3d at
601 n. 13. While a Fourth Amendment claim may be brought by a parent on behalf of a child,
parents do not have their own Fourth Amendment right to be free from a child's court-approved
removal. Southerland, 667 F.3d at 103 ("A Fourth Amendment child-seizure claim belongs only
to the child, not to the parent. "); P. C. v. Conn. Dep 't of Children and Families, 662 F. Supp. 2d
218, 231 (D. Conn. 2009) (holding, as a matter oflaw, that parents do not have a Fourth
Amendment right to be free from a child's removal and may bring Fourth Amendment claims
only on the child's behalf); see also Tenenbaum, 193 F.3d at 601 n. 13 (declining to challenge
district court's holding that parents "did not have standing to bring a Fourth Amendment claim in
their own behalf with respect to the State's treatment of' their daughter).
The temporary orders of protection procured from the Family Court at the City
Defendants' request did not constitute a seizure under the Fourth Amendment. Although he was
prevented from seeing his son, Graham was otherwise at liberty. The court orders did not
significantly limit the plaintiffs freedom of movement, nor is any case cited in which a seizure
was found on analogous facts. While they may have infringed on plaintiff s liberty interest in
maintaining the integrity of his family, this is not the liberty of movement-physical freedomthat the Fourth Amendment protects. Even if JGR would have a claim for his seizure by ACS,
which the plaintiff could raise a Fourth Amendment claim on his behalf, JGR's seizure did not
violate plaintiff's Fourth Amendment rights.
Nor is a child protective investigation a Fourth Amendment "search." While the plaintiff
may have a privacy interest in excluding the state from interfering in his familial relations, the
family is not a "zone ofprivacy"-a physical space-for which a warrant based on probable
26
cause is required. The complaint does not allege any incident in which the defendants
impermissibly searched plaintiffs "person[], house[], papers, [or] effects." U.S. Const. amend.
IV; cf Southerland, 2012 WL 1848360, at *15-17 (finding that child protective services
caseworker was not entitled to summary judgment or qualified immunity for making alleged
misrepresentations in affidavit used to procure a warrant for search of parent's home).
No relief may be granted on this claim.
3. Malicious Prosecution
Generally, the elements of a federal claim for malicious prosecution under § 1983 are
borrowed from the underlying analogous claim under state law. Cook v. Sheldon, 41 F.3d 73, 79
(2d Cir. 1994). The federal cause of action for malicious prosecution is more limited in scope
than the equivalent claim under New York law. While New York recognizes the tort of civil
malicious prosecution, a claim for malicious prosecution under § 1983 may only arise where
there has been a violation ofthe plaintiffs Fourth Amendment rights. Washington v. County of
Rockland, 373 F.3d 310, 315-16 (2d Cir. 2004); see also Albright v. Oliver, 510 U.S. 266, 27375 (1994) (holding that plaintiffs malicious prosecution claim arises under the Fourth
Amendment rather than substantive due process). No claim for malicious prosecution lies where
the plaintiff was "never taken into custody, imprisoned, physically detained or seized within the
traditional meaning of the Fourth Amendment." Washington, 373 F.3d at 316; see also Singer v.
Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995) (Since "[t]he Fourth Amendment right
implicated in a malicious prosecution action is the right to be free of unreasonable seizure of the
person- i.e., the right to be free of unreasonable or unwarranted restraints on personal liberty,"
"[a] plaintiff asserting a Fourth Amendment malicious prosecution claim under § 1983 must ...
show some deprivation of liberty consistent with the concept of 'seizure. "'). The Court of
27
Appeals for the Second Circuit has noted that "it is unlikely that a civil proceeding ... would
implicate constitutional rights in a manner that would warrant redress under § 1983."
Washington, 373 F.3d at 117.
Since the plaintiff's Fourth Amendment rights were not violated, see Part VII(A)(I), no
claim for malicious prosecution lies.
4. Equal Protection
Plaintiff claims, for the first time, in his opposition to this motion that he "was treated
differently on numerous occasions than other similarly situated parents" since the defendants
selectively enforced the child protections laws because of his complaints regarding their failure
to investigate the abuse allegations against his wife. Pl.'s Mem. 30.
The Equal Protection Clause requires that the government treat all similarly-situated
individuals essentially alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985). "Although the prototypical equal protection claim involves discrimination against
people based on their membership in a vulnerable class, we have long recognized that the equal
protection guarantee also extends to individuals who allege no specific class membership but are
nonetheless subjected to invidious discrimination at the hands of government officials." Harlen
Assocs. v. Inc. Vill. ofMineola, 273 F.3d 494, 499 (2d Cir. 2001). To establish a claim based on
selective enforcement, a plaintiff must show: I) that he was selectively treated compared with
others similarly situated; and (2) "that such differential treatment was based on impermissible
considerations such as race, religion, intent to inhibit or punish the exercise of constitutional
rights, or malicious or bad faith intent to injure a person." Harlen Assocs., 273 F.3d at 499-500.
In the instant case, Graham fails to plead sufficient facts to satisfy the first prong. He
does not allege in the complaint a single instance in which a child protective proceeding was not
28
initiated against a parent under similar factual circumstances. The only statement to that effecta conclusory remark in his opposition papers-is unsupported by any authority. The initial
temporary order of protection was requested by the defendants after JGR accused his father of
coaching him to fabricate the abuse allegations against his mother. The petition against the
plaintiff was filed, and additional orders of protection requested, after the Family Court judge
encouraged ACS to look into filing a claim against him and after JGR's statement that his father
coached him was corroborated by Dr. Treacy's report. As noted above, see Part VIJ(A)(I)(b),
the defendants had a reasonable basis to initiate these proceedings. Without any further
contentions to bolster the unlikely assertion that ACS would not request an order of protection or
file a child protective petition against other parents under similar facts, the claim that Graham
was selectively prosecuted is not "plausible on its face." Twombly, 550 U.S. at 570.
This claim must be dismissed.
B. Supplemental Jurisdiction Over State Law Claims
Jurisdiction will not be exercised over pendent state-law claims. See, e.g., Marcus v.
AT&T Corp., 138 F.3d 46,57 (2d Cir. 1998) ("In general, where the federal claims are dismissed
before trial, the state claims should be dismissed as well."). The parties have not yet expended
substantial resources in this litigation on state claims, and the case is not nearly trial-ready. See,
e.g., Purgess v. Sharrock, 33 F.3d 134, 139 (2d Cir. 1994) (upholding district court's decision to
exercise supplemental jurisdiction over state law claims where "[t]he parties and the court had
spent years preparing for this trial in federal court; the jury had heard evidence for several days
and was ready to begin its deliberations; and it would have been wasteful to subject this case to
another full trial before a different tribunal").
The state law claims are dismissed without prejudice.
29
VIII.
No Amendment of Pleadings Permitted
The temporary orders of protection prohibiting plaintiff from seeing his son arguably
infringed on his parental rights. Yet the facts alleged do not state a plausible claim that this
denial was procured for unconstitutional reasons or through improper means, or that the
prohibition on contact was wrongfully prolonged.
As noted above, defendants submitted the full case records from the underlying ACS
investigation and Family Court action. Both plaintiff and Mrs. Caesar testified at the May 7,
2012 hearing. While the facts revealed in these records and at the hearing are not relied upon in
deciding the present motion, they demonstrate that there is no point in permitting an amendment
to the complaint or converting the motion to one for summary judgment. A fair reading of the
evidence in the record indicates that the City Defendants had a reasonable basis for requesting
the orders of protection and initiating proceedings against him.
The records reveal that the relationship between Graham and JGR's mother was not
amicable. E.g. id. at NYC 000010 ("Mother stated ... she will not allow [Claude] Graham to
run her life. Mother said ... his father would go to his school or day care and pick up child
without her permission. Mother said she went into court and get an order for father Mr. Graham
not to removed [JGR] from any school. .... Mother ... was generally furious at what she states
is the child's father's harassment [sic] of the family."); id. at NYC 000011 ("Mother stated she
gets angry when Claude interfere with her parenting of her child. Mother said she has new man
in her [life] for the past three years with new baby and Claude try to make her life hell. Mother
said Mr. Graham told her he wants to have his woman back."); id. at NYC 000014 ("Mother said
she did get telephone call from Mr. Graham stating she will be arrested by the police because he
knows people in high places.").
30
On May 24, 200S-before the events at issue in this case--an initial accusation was
called in against JGR's mother. Decl. of Eric Porter Ex. A at NYC 000006 (ACS Case File),
Doc. Entry 2S, May 2,2012. From the very first interview with JGR on May 31 st, the child told
the caseworker that his father coached him to lie about being abused. Id. at NYC 000011
("[JGR] told worker his father came up to school and tell him that he should tell the police and
workers that his mother beats him. [JGR] said he does not like to lie on his mother for no reason .
. . . [JGR] said he loves his mother but he [is] sad when his father tells him to lie."). ACS closed
the investigation after determining that the charges were unsubstantiated and were likely the
result of conflict between Graham and JGR's mother. Id. at NYC 000016 ("All reported
allegations are unsubstantiated. The father has been harassing mother regarding the
custody/visitation issue with his son. Mother was initially irate and uncooperative but has since
met with the worker and assisted with the investigation. There is no need for services nor further
ACS involvement."); see also id. at NYC 000013-14 ("Mr. Graham said he will meet with a
detective very soon so he can tell them what type of mother [JGR's mother] is to her children...
. Cps worker met detective Frawley from Special Victim Squad regarding the father Mr.
Graham. Detective stated Mr. Graham has been calling his office every day for past two weeks.
Detective said he told Mr. Graham there is no criminality on this family baseld] on his
investigation. He stated the father is harassing the mother ... to make her life sad. Detective
said he will put a stop to the father[,] Mr. Graham['s], behavior [harassing] the mother with her
new boyfriend. Detective Frawley stated the father[,] Mr. Graham[,] was warn [ed] not to call the
mother with any new allegation .... Father was told he could be arrested ifhe continue to make
false report[ s] on the mother with her three children. Detective said he will close his case based
on the children['s] stories.").
31
As described in Graham's complaint, a charge of abuse was again called in against JOR's
mother in March 2006. The initial reporter appears to have been motivated by malice. Id. at
NYC 000031 (reporting that individual's "main goal as he stated was 'to get that woman,
because she keeps having my son locked up'''); id. at NYC 000034 ("The source who is a
relative called in the case following the arrest of the father for violating an order of protection
issued against him to the mother. The source complained [about] being upset with the mother for
having the father thrown in jail so many times. There ha[ve] been two unsubstantiated reports
last year with similar allegations. ").
In April 2006, ACS was forwarded an anonymous letter (which Oraham says was written
by his wife) sent to the Mayor's Office, the ACS Commissioner and Deputy Commissioner, and
the New York City Office of Children & Family Services with further allegations of abuse and
neglect against JOR's mother. Id. at NYC 000034; Tr. of Hr'g, May 7, 2012. As the
investigation progressed, Graham tried to amplify the allegations against JOR's mother. Id. at
NYC 000042 ("Mr. Oraham stated that he had a lot of information about [JOR's mother], and the
things that she has done to [JOR], and the other children. Mr. Graham proceeded to pull out a big
brown envelope which contained pictures, journals, and information on [JOR's mother]."). The
caseworker did not credit his allegations in light of inconsistencies in his story and JOR's
revelation that Graham coached him to claim he was abused. Id. Between August 22, 2006 and
September 28, 2006, three additional reports alleging substantially the same allegations against
JOR's mother were lodged. Id. at NYC 000132. The caseworker noted that "[t]he children are
emotionally distressed at having to be questioned so frequently about allegations they all claim
[are] untrue." !d.
32
Based on the pleadings and all of the record evidence, it is highly improbable that the
plaintiff could show, on summary judgment, that the defendants were motivated by malice and
not by valid concerns about Graham's potentially corrosive relationship with his son. Nor could
the plaintiff draft a more persuasive complaint than he has.
Permission to replead is denied.
IX.
Conclusion
Plaintiffs federal claims against all defendants are dismissed on the merits. The state
claims are dismissed without prejudice. While Dr. Treacy has not moved to dismiss, such a
motion is deemed made and granted. No costs and disbursements are awarded.
SO ORDERED.
enior United States District Judge
Dated: June 14, 2012
Brooklyn, New York
33
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?