Frazier v. New York State Administration for Children Services

Filing 9

ORDER. For the reasons discussed in the annexed memorandum and order, the Amended Complaint is dismissed with prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B), and the case is closed. Any appeal must be filed within 3 0 days of the date of this memorandum and order. The court certifies pursuant to 28 U.S.C. § 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. The Clerk of Court is respectfully requested to mail a copy of this memorandum and order to the plaintiff along with an appeals package, and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 5/9/2016. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------x
TIFFANY FRAZIER,
Plaintiff,

MEMORANDUM & ORDER
15-CV-6531 (KAM) (LB)

-againstMS.
MS.
New
for

SERRANO WILLIAMS and
OJO, as employees of the
York City Administration
Children’s Services

Defendants.
--------------------------------x
MATSUMOTO, United States District Judge:
Plaintiff Tiffany Frazier, proceeding pro se, filed this
action

seeking

damages

for

defamation

and

emotional

distress

against the New York City Administration for Children’s Services
(“ACS”) in the United States District Court for the Southern
District of New York. (ECF No. 2, Complaint (“Compl.”).) The action
was transferred to this court on November 6, 2015. (ECF No. 3.) On
January 4, 2016, the court granted plaintiff’s request to proceed
in forma pauperis (see ECF No. 1), dismissed the complaint for
failure to state a claim upon which relief may be granted, and
granted leave to file an amended complaint within 21 days. (ECF
No.

6

(“1/4/16

Order”).)

Plaintiff

subsequently

amended

her

complaint, naming only two ACS officials. (ECF No. 7, Amended
Complaint (“Am. Compl.”).) For the reasons discussed below, the
Amended Complaint is dismissed with prejudice for failure to state
a claim upon which relief may be granted.
1

BACKGROUND
Plaintiff’s initial complaint alleged that her mother
and her brother’s child’s mother filed a false report with ACS —
New York City’s child protective agency — charging that plaintiff
had neglected her child. (Compl. at ¶ III(C).) Acting on the
report, ACS employees subsequently informed plaintiff that if she
failed to accept social services, she would be taken to Family
Court where her child would be removed from her care and custody.
(Id. at ¶ III(B).) In response to a request by an ACS supervisor
overseeing her case, plaintiff alleged that she took medication —
apparently prescribed to plaintiff to help her cope with her
anxiety and depression — which caused her to experience a panic
attack

and

attempt

suicide.

(Id.

at

¶ IV.)

In

dismissing

plaintiff’s first complaint, which named only ACS (see Compl. at
¶ 1(B)), the court held that ACS was a city agency that could not
be sued independently. (1/4/16 Order at 3-4.)
Plaintiff thereafter timely filed the Amended Complaint,
from which the following facts, assumed true for purposes of this
decision, are drawn. The gravamen of plaintiff’s Amended Complaint
is

that

ACS

officials

Serrano

Williams

1

and

“Ms.

Ojo” 1

acted

Plaintiff does not provide Ms. Ojo’s first name in the Amended
Complaint.

2

improperly in their investigation of complaints about plaintiff’s
care of her child. Plaintiff avers that she was “forced” by ACS
officials to take part in “preventive services” 2 after her urine
tested positive for the presence of “a low level of THC.” 3 (Id. at
¶ III(c).) She was offered the opportunity to take a second drug
test two weeks later. (Id.) She declined, however, because she
avers that THC remains in the body for 30 days and she was afraid
that a second positive test would result in the removal of her
child from her custody. (Id.)
Plaintiff

also

alleges

that

the

child

protective

proceedings aggravated her depression and caused her to suffer a
severe panic attack. (Id. at ¶¶ IV-V.) Further, after plaintiff
signed medical release forms, she claims that ACS officials falsely
stated that she was bipolar. (Id. at ¶ V). Plaintiff, however, has
not alleged that she lost custody of her child. (See id. at ¶ IVV.)
Plaintiff brings four claims alleging: (1) a violation
of her due process rights under 42 U.S.C. § 1983 (“§ 1983”); (2)

2

Preventive services are designed to keep children out of foster care
by addressing issues including mental health, substance abuse, domestic
violence, and special medical needs. See Preventive Services, NYC
Administration
for
Children’s
Services,
http://www1.nyc.gov/site/acs/child-welfare/preventive-services.page.

3

THC is short for tetrahydrocannabinol, the “active ingredient in
marijuana.” See Marijuana, National Institute of Health, U.S National
Library of Medicine, MedlinePlus,
http://www.nhtsa.gov/people/injury/research/job185drugs/cannabis.htm.

3

racial discrimination under § 1983; (3) harassment under state
law; and (4) defamation under state law. 4 (Am. Compl. at ¶ II(B))
Plaintiff seeks monetary damages. (Id. at ¶ V.)
LEGAL STANDARD
Title 28 U.S.C. § 1915(e)(2), which governs in forma
pauperis proceedings, provides that “the court shall dismiss the
case at any time if the court determines that . . . the action .
. . fails to state a claim on which relief may be granted . . . .”
A “complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678
(citation omitted).

4

Although plaintiff did not specify the particular statutory vehicle
for her due process or racial discrimination claims, the court construes
both as arising under § 1983. See Gaddy v. Waterfront Comm’n, No. 13CV-3322, 2014 WL 4739890, at *3, *5-6 (S.D.N.Y. Sept. 19, 2014)
(construing racial discrimination claims against quasi-public entity as
arising under § 1983). With respect to plaintiff’s third claim, which
alleges harassment, New York courts “are divided as to whether New York
law recognizes harassment as an independent tort.” Poulos v. City of New
York, No. 14-CV-3023, 2016 WL 224135, at *3 (S.D.N.Y. Jan. 19, 2016)
(collecting cases). The court will assume for purposes of this decision
that New York state law recognizes harassment as a separate cause of
action. The court construes plaintiff’s fourth claim, for defamation,
as arising under New York common law. See Varela v. City of Troy, No.
10-CV-1390, 2014 WL 2176148, at *1, *2 (N.D.N.Y. May 22, 2014)
(construing defamation claim against city officials as “arising under
New York State common law”).

4

In evaluating whether a pleading states a claim for
relief, courts “must accept all allegations in the complaint as
true and draw all inferences in the light most favorable to the
non-moving party’s favor,” but “need not accord legal conclusions,
deductions or opinions couched as factual allegations . . . a
presumption of truthfulness.” In re NYSE Specialists Sec. Litig.,
503

F.3d

89,

95

(2d

Cir.

2007)

(internal

quotation

marks,

citations, and alterations omitted). “Threadbare recitals of the
elements

of

a

cause

of

action,

supported

by

mere

conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation
omitted). Moreover, the “[f]actual allegations must be enough to
raise a right to relief above the speculative level,” and to nudge
a

plaintiff’s

claims

“across

the

line

from

conceivable

to

plausible.” Twombly, 550 U.S. at 555, 570.
Pro se complaints, like other pleadings, must contain
sufficient factual allegations to meet the plausibility standard.
See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Pro se
documents, however, are to be “liberally construed” and “must be
held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
quotation marks and citation omitted). Thus, a court must read a
pro se complaint with “special solicitude,” Ruotolo v. I.R.S., 28
F.3d 6, 8 (2d Cir. 1994), and must interpret it to raise the
strongest claims it suggests. See Triestman v. Fed. Bureau of
5

Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006). If a liberal reading
of the complaint “gives any indication that a valid claim might be
stated,” the court must grant leave to amend the complaint. See
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal
quotation marks and citation omitted); see also Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999).
DISCUSSION
I.

Federal Claims
Plaintiff has raised two federal claims: one for a due

process

violation

and

the

second

for

racial

discrimination.

Plaintiff has stated no facts in her complaint that would even
remotely support the viability of a racial discrimination claim
under § 1983. She has not even stated her own race. “Conclusory
allegations of racial discrimination are insufficient to maintain
a § 1983 action.” McMillan v. Togus Reg’l Office, Dep’t of Veterans
Affairs, 120 F. App’x 849, 852 (2d Cir. 2005); see also Graham v.
Henderson, 89 F.3d 75, 82 (2d Cir. 1996). Accordingly, the racial
discrimination claim is dismissed with prejudice.
Plaintiff’s

due

process

allegations

are

more

substantive. Three central allegations in the Amended Complaint
relate

to

a

purported

due

process

violation:

(1)

defendants

allegedly forced plaintiff to accept services from ACS after she
tested positive for THC; (2) defendants allegedly “insisted” that
plaintiff take a medication that had been prescribed to plaintiff,
6

but which defendants knew carried negative side effects; and (3)
defendants allegedly misstated the nature of plaintiff’s mental
conditions by maintaining that she was bipolar. (Am. Compl. at
¶¶ III-V.) Because it is unclear whether plaintiff has raised a
substantive or procedural due process claim, the court will analyze
both.
A.

Procedural Due Process
“A procedural due process claim is composed of two

elements: (1) the existence of a property or liberty interest that
was deprived and (2) deprivation of that interest without due
process.” Bryant v. New York State Educ. Dep’t, 692 F.3d 202, 218
(2d Cir. 2012) (citation omitted). Parents have a fundamental
liberty interest in the “care, custody, and control of their
children.” Troxel v. Granville, 530 U.S. 57, 65 (2000); Kia P. v.
Mcintyre, 235 F.3d 749, 759 (2d Cir. 2000); Tenenbaum v. Williams,
193 F.3d 581, 593 (2d Cir. 1999); Graham v. City of New York, 869
F. Supp. 2d 337, 349 (E.D.N.Y. 2012).

Accordingly, as “a general

rule . . . before parents may be deprived of the care, custody, or
management of their children without their consent, due process –
ordinarily a court proceeding resulting in an order permitting
removal – must be accorded to them.”

Nicholson v. Scoppetta, 344

F.3d 154, 171 (2d Cir. 2003) (emphasis added) (internal quotation
marks and citation omitted). The failure to afford parents pre-

7

removal

due

process

may

give

rise

to

a

Fourteenth

Amendment

procedural due process claim. See Tenenbaum, 193 F.3d at 593.
Where a state actor has not removed a child from a
parent’s custody, however, there has been no deprivation entitling
a parent to procedural due process. See Daniels v. Murphy, No. 06CV-5841, 2007 WL 1965303, at *4 (E.D.N.Y. July 2, 2007) (“[B]ecause
plaintiff does not allege that a state actor removed a child from
a parent’s custody, the complaint fails to present circumstances
that would trigger plaintiff’s entitlement to the procedures that
must be afforded to a parent when the coercive power of the State
seeks to separate them from their children.” (internal quotation
marks and citation omitted)); see also Brennan v. Cty. Of Broome,
No. 09-CV-677, 2011 WL 2174503, at *8-9 (N.D.N.Y. June 2, 2011)
(“Plaintiff also fails to present a viable procedural due process
claim against Defendant based upon his liberty right to the custody
of his son. Again, the claim fails because Defendant did not remove
the child from Plaintiff’s custody.” (citation omitted)); cf.
Bryant, 692 F.3d at 218 (recognizing “deprivation” requirement of
a procedural due process claim).
Here, plaintiff has a protected liberty interest in the
custody of her son. See Troxel, 530 U.S. at 65; Mcintyre, 235 F.3d
at 759. She has failed, however, to establish a deprivation that
would have entitled her to procedural due process because she never
alleges that she lost custody of her son. The Amended Complaint
8

instead states that plaintiff has retained custody of her son.
(See Am. Compl. at ¶ V (“Ms. Ojo called to threaten me to sign a
new [HIPAA] form or she would go to court to remove my son.”
(emphasis

added));

id.

at

¶ IV

(“Ms.

Ojo

insisted

I

take

[medication] cause my child would be removed had I not . . . .”).)
Without suffering a deprivation of custody, plaintiff cannot state
a procedural due process claim. See Brennan, 2011 WL 2174503, at
*8-9; Daniels, 2007 WL 1965303, at *4.
B.

Substantive Due Process
In

addition

to

their

procedural

due

process

rights

outlined above, parents have a “substantive right under the Due
Process Clause to remain together with their children without the
coercive

interference

of

the

awesome

power

of

the

state.”

Southerland v. City of New York, 680 F.3d 127, 142 (2d Cir. 2012)
(internal quotation marks, citation, and alterations omitted). 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” or neglect. See Wilkinson v. Russell,
182 F.3d 89, 104 (2d Cir. 1999) (internal quotations marks and
citations omitted).
Just as plaintiff was required to establish loss of
custody to state a procedural due process claim, she must establish
9

loss of custody to state a substantive due process claim. See
Oglesby v. Eikszta, 499 F. App’x 57, 60-61 (2d Cir. 2012) (finding
no substantive due process violation where “plaintiffs admit that
they never lost custody of any of their children”); Cox v. Warwick
Valley Cent. Sch. Dist., 654 F.3d 267, 276 (2d Cir. 2011) (“Where
there is no actual loss of custody, no substantive due process
claim can lie.” (citations omitted)); see also Nicholson, 344 F.3d
at 172 (holding that ex parte removal of a child to “safeguard the
child until a court hearing is practicable” does “not infringe on
any of the [parent-]plaintiffs’ substantive due process rights”);
Joyner ex rel. Lowry v. Dumpson, 712 F.2d 770, 778 (2d Cir. 1983)
(finding no substantive due process violation in the case of a
temporary custody transfer under New York’s foster care statutes
in part because the transfer did “not result in [the] parents’
wholesale relinquishment of their right to rear their children”).
Because plaintiff has not lost custody of her children
(see supra Discussion, Part I-A), she cannot state a claim for a
substantive due process violation. See Cox, 654 F.3d at 276 (“Where
there is no actual loss of custody, no substantive due process
claim can lie.”).

II.

Supplemental Jurisdiction Over State Law Claims

10

In

addition

to

asserting

constitutional

violations,

plaintiff raises state law claim of defamation and harassment.
“District courts may decline to exercise supplemental jurisdiction
over a claim . . . [if] the district court has dismissed all claims
over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3);
see also Spiegel v. Schulmann, 604 F.3d 72, 78 (2d Cir. 2010).
Because the court has dismissed any possible federal claims against
defendants for failure to state a claim upon which relief may be
granted, the court declines to exercise supplemental jurisdiction
over plaintiff’s state law claims for defamation and harassment.
III. Opportunity to Amend
The court has already permitted plaintiff to amend her
complaint. The Amended Complaint fails to allege any specific facts
that would give rise to a plausible claim against defendants.
Plaintiff has failed to establish that her second amendment to her
complaint is more fruitful than the first. Accordingly, the court
will not permit plaintiff to file a second amended complaint. See
Best v. City of New York, No. 12-CV-7874, 2014 WL 163899, at *3,
*11-12 (S.D.N.Y. Jan. 15, 2014) (noting that where a plaintiff has
been given notice of deficiencies and the opportunity to amend her
complaint, a court is not required to permit the filing of a second
amended complaint).

CONCLUSION
11

For the foregoing reasons, the Amended Complaint is
dismissed with prejudice for failure to state a claim pursuant to
28 U.S.C. § 1915(e)(2)(B), and the case is closed. Any appeal must
be filed within 30 days of the date of this memorandum and order.
See Fed. R. App. P. 4(a)(1)(A). The court certifies pursuant to 28
U.S.C. § 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. See Coppedge v. United States, 369 U.S. 438, 444-45
(1962). The Clerk of Court is respectfully requested to mail a
copy of this memorandum and order to the plaintiff along with an
appeals package, and note service on the docket.
SO ORDERED.
_________/s/________________
Kiyo A. Matsumoto
United States District Judge

Dated: May 9, 2016
Brooklyn, New York

12