Panzardi v. Jensen et al

Filing 18

MEMORANDUM AND ORDER, For the reasons set forth herein, Pltff's due process claim related to the administration of medicine to his child w/o his consent shall proceed. The remaining claims are dismissed. The Clerk of Court shall issue a summons to Defts, and to the US Marshals Service is directed to serve the summons, Second Amended Complaint and a copy of this Memorandum and Order, as well as the Court's Memorandum and Order dated 3/7/14, upon Defts w/o prepayment of fees. The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. (Ordered by Judge Margo K. Brodie on 2/18/2015) c/m (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

Brv:x,,:,

--------------------------------------------------------------NOT FOR ELECTRONIC OR
PRINT PUBLICATION

ALEX PANZARDI,

Plaintiff,

MEMORANDUM & ORDER
13-CV-4441 (MKB)

v.
POUL JENSEN, ROLANDO PEREZ, DEBORAH
BREWER, ALBAN BOUCHER, SHANNON
GREENE, and DR. CARMEN VELOZ,
Defendants.

--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
On July 19, 2013, the Court received several documents from Plaintiff Alex Panzardi, a
prisoner incarcerated at Five Points Correctional Facility, including a hand-written Jetter
addressed to "District Court Staff," a completed application to proceed informa pauperis and a
Prisoner Authorization form. (See Docket Entry No. I.) No complaint was included among the
documents. Plaintiff filed an Amended Complaint on November 1, 2013. (Am. Comp!., Docket
Entry No. 8.) By Memorandum and Order dated March 7, 2014, the Court granted Plaintiffs
request to proceed informa pauperis pursuant to 28 U.S.C. § 1915, but dismissed the Amended
Complaint for lack of jurisdiction and for failure to state a claim. (Docket Entry No. JO.)
Plaintiff was granted leave to replead his 42 U.S.C. § 1983 claim within 30 days. After being
granted two extensions, Plaintiff filed a Second Amended Complaint. (Sec. Am. Comp!., Docket
Entry No. 14.)

I.

Background
In the Second Amended Complaint, Plaintiff claims that the Defendants, employees at

Graham Windham Services to Families and Children ("the Agency"), interfered with his parental
relationship with his minor son, J.P.P., and medicated J.P.P. without Plaintiffs permission.
According to Plaintiff, after he became incarcerated, his son was "turned over to the custody" of
the "Commissioner o[f] Social Services" and the Agency. (Sec. Am. Comp!.

iJ 17.) Plaintiff

alleges that Defendants {I) "failed to assist [Plaintiff] with establishing visits [with] his son;" (2)
"failed to assist [Plaintiff] in written communications [with his son];" (3) "have not complied
with Family Court orders;" (4) "tried to revoke [Plaintiffs] custody-parental rights;" and (5)
have medicated J.P.P. despite Plaintiffs refusal to provide consent. (Id.

II.

iii! 28-37.)

Discussion
As the Court previously explained, to the extent that Plaintiff seeks review of decisions

pertaining to his parental rights, including any visitation rights and/or restrictions on those rights,
such review is barred by the "domestic relations exception" to federal jurisdiction described in

Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (describing the domestic relations exception
as "divest[ing] the federal courts of power to issue divorce, alimony, and child custody
decrees"). Moreover, review of any state court decisions or orders is further precluded by the

Rooker-Feldman doctrine. See Phifer v. City ofNew York, 289 F.3d 49, 57 (2d Cir. 2002)
(Rooker-Feldman precludes federal review of family court proceedings regarding issues of child
custody, including issues "inextricably intertwined" with the state court's determinations.).
Accordingly, to the extent that the Second Amended Complaint continues to advance claims
related to his visitation rights, orders issued pursuant to the Family Court's authority, and the

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status of his custodial or parental rights, such claims are not within this Court's jurisdiction, and
are dismissed.
However, the Court finds that Plaintiff has, arguably, sufficiently stated a cause of action
under Section 1983 by alleging that Defendants medicated his son without his consent. In order
to sustain a claim for relief under Section 1983, a plaintiff must allege (1) that the challenged
conduct was "committed by a person acting under color of state law," and (2) that such conduct
"deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws
of the United States." Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v.
Callan, 13 F.3d 545, 547 (2d Cir. 1994)).
Plaintiff asserts that Defendants acted under "color of state law," and that his son was
"turned over to the custody" of the Agency and the Commissioner for Social Services. (See Sec.
Am. Comp!. iii! 11-17.) While Plaintiff does not specify the relationship between the Agency
and the Commissioner for Social Services, as it relates to their control and/or custody of his son,
to the extent that the Agency was "delegated a public function by the state" by retaining custody
of J.P.P., Plaintiff may meet the color-of-state-law requirement. See Perez v. Sugarman, 499
F.2d 761, 765 (2d Cir. 1974) (Private childcare agencies that perform a "public function" of
accepting custody of neglected and abandoned children are "state actors" for the purposes of
Section 1983); S. W. ex rel Marquis-Abrams v. City ofNew York, --- F. Supp. ----, ----, 2014 WL
4627747, at *I 0 (E.D.N. Y. 2014) (collecting cases, finding private child care agencies accepting
custody of neglected and abandoned children to be state actors); Vega v. Fox, 457 F. Supp. 2d
172, 182 (S.D.N. Y. 2006) ("It is now well established in this circuit that private child-care

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institutions authorized by New York's Social Services Law to care for neglected children are
acting 'under color of state law' for purposes of[S]ection 1983.").

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Plaintiff has asserted that Defendants' conduct deprived him of his constitutional right to
direct the medical care of his child. Parents have a "constitutionally protected liberty interest in
the care, custody and management of their children." Southerland v. City ofNew York, 680 F.3d
127, 142 (2d Cir. 2011). This liberty interest includes the right to direct medical care for their
child. See Emrik v. Chemung Cnty. Dep 't of Social Servs., 911 F .2d 863, 867 (2d Cir. 1990)
("[T]he constitutional liberty interest of parents ... though not beyond limitation ... includes a
significant decision-making role concerning medical procedures sought to be undertaken by state
authority upon their children.").
According to Plaintiff, Defendants sought his consent for certain treatment plans for his
son, but proceeded to medicate his son, notwithstanding his refusal to provide such consent. (See
Sec. Am. Campi.

iii! 36(A)-(B).)

Although the Second Amended Complaint suggests that

Defendants possessed some custodial rights with respect to Plaintiffs son, (see id. ii 17), Plaintiff
asserts that he retains "full parental rights over his son." (Id.

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ii 36.)

At this juncture the Court

In the March 7, 2014 Memorandum and Order, the Court instructed Plaintiff to specify
his allegations as to each Defendant by describing what each Defendant did or failed to do in
violation of his civil rights. (Docket Entry No. I 0 at 11.) The Second Amended Complaint
alleges that the individual Defendants were supervisors and/or employees of the Agency, "had
personal involvement," and were "involved in the treatment team" for Plaintiffs son. (Sec. Am.
Comp!. iii! 11-16.) By claiming that each of the Defendants was directly involved in the medical
treatment of his son, Plaintiff has sufficiently pied personal involvement of the individual
Defendants. See Platt v. Inc. Viii. of Southampton, 391 F. App'x 62, 65 (2d Cir. 2010) (Liability
under Section 1983 can be established by showing direct participation or when asserted against a
supervisory official, by showing that the supervisor had actual or constructive notice of
unconstitutional practices and demonstrated gross negligence or deliberate indifference.); Farid
v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) ("[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under [Section] 1983.").

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assumes, without deciding, that, based on the facts alleged in the Second Amended Complaint,
Plaintiff may sustain a due process claim based on the deprivation of his right to direct the
medical care of his child, notwithstanding any custodial rights possessed by Defendants. 2 See
Fuentes v. Bd ofEduc. of City of New York, No. Ol-CV-1454, 2002 WL 1466421, at *2
(E.D.N.Y. July l 0, 2002) (noting that "non-custodial status, whether by operation of a divorce
decree, incarceration, or otherwise, does not automatically divest a non-custodial parent of all
parental rights" (citing Crane v. Crane, 694 N.Y.S.2d 763, 766 (App. Div. 1999) (granting
mother primary physical custody ofchild but father retained right to make decisions concerning
the welfare of children)).

III. Conclusion
For the reasons set forth above, Plaintiffs due process claim related to the administration
of medicine to his child without his consent shall proceed. The remaining claims are dismissed.
The Clerk of Court shall issue a summons to Defendants, and the United States Marshal Service
is directed to serve the summons, Second Amended Complaint and a copy of this Memorandum
and Order, as well as the Court's Memorandum and Order dated March 7, 2014, upon
Defendants without prepayment of fees. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)

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Plaintiff also claims that Defendants interfered in his parental relationship because they
"failed to assist Mr. Panzardi with establishing visits ... [and] written communications to J.P.P.
and have not complied with Family Court Orders." (Sec. Am. Comp. iii! 32-33.) Plaintiff
further alleges that Defendants "are not attempting to assist [Plaintiff] and J .P .P. in forming a
relationship or in plan[n]ing for [Plaintiffs] release and custody of J.P.P. in 2014-2015." (Id
if 39.) Plaintiff states that Defendants have "effectively enforced their own version of retaliation
by continuing to remove Mr. Panzardi's parental rights." (Id if 40(B).) As explained above, the
Court does not have jurisdiction to issue relief pertaining to Plaintiffs parental and/or custodial
rights or pertaining to compliance with orders issued by the Family Court.

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that any appeal would not be taken in good faith and therefore in form a pauperis status is denied
for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED:

s/MKB
MARGO K. BRODIE
United States District Judge
Dated: February 18, 2015
Brooklyn, New York

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