Modica v. Wolf
MEMORANDUM AND ORDER: For purposes of this Order, the Court grants Modica's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. For the reasons discussed, all claims asserted by Modica are dismissed for lack of subject matter jurisdiction. The Court certifies pursuant to 28 U.S.C. § l915(a)(3) that any appeal from this Order 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 directed to enter judgment, mail a copy of this Memorandum and Order and the accompanying Judgment to plaintiff Nicole E. Modica, pro se, note the mailing on the docket, and close this case. Ordered by Judge Roslynn R. Mauskopf on 6/16/2017. (Taronji, Robert)
UNITED STATES DISTRICT COURT
EASTERN DIST RICT OF NEW YORK
N ICOLE E. MODICA,
MEMORANDUM AND ORDER
16-CV-4464 (RRM) (LB)
-againstHON . KAREN WOLF; CHILDREN'S AID
SOCIETY; and ADMINISTRATION FOR
ROSL YNN R. MAUSKOPF, United States District Judge.
Plainti ff N icole E. Modica fi led this prose action pursuant to 42 U.S .C. § 1983, seeking
certain reliefrelated to the custody of her child. For purposes of thi s Order, the Court grants
Modica's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. For the reasons
discussed below, all claims asserted by Modica are dismissed for lack of subject matter
Modica alleges that her son was removed from her custody by the Children ' s A id Society
and the New York City Adm inistration for Children's Serv ices ("ACS"). Fo llowing a family
court proceeding, Modica was found guilty of child neglect. (Comp!. (Doc. No. I ) at 14.)2 It
appears that her child is currently in the custody of Modica's father. Modica asks thi s Court to
do the following: ( 1) return her son to her custody; (2) direct ACS to pay for counseling; and (3)
impeach Judge Wolf. Modica a lso seeks 15 million dollars in damages. (Id. at 6.)
1 The following facts are drawn exclusive ly from the complaint, and are assumed to be true for purposes of this
Memorandum and Order.
All citations to pages of the complaint refer to the Electronic Case Filing System ("ECF") pagi nation.
ST AND ARD OF REVIEW
Under 28 U.S.C . § l 9 15(e)(2)(B), a district court shall dismiss an informa pauperis
action where it is satisfied that the acti on "(i) is frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief." An action is " fri volous" when either: (1) "the ' factual contentions are clearly
baseless,' such as when allegations are the product of delusion or fantasy"; or (2) "the claim is
' based on an indisputably meritless lega l theory."' Livingston v. Adirondack Beverage Co. , 141
F.3d 434, 437 (2d Cir. 1998) (internal citation omitted).
At the pleadings stage of the proceedi ng, the Court must assume the truth of "all wellpleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum
Co., 62 1F.3d 111, 124 (2d Cir. 20 10), aff'd, 133 S. Ct. 1659 (2013) (citing Ashcroft v. Iqbal,
556 U .S. 662, 678- 78 (2009)). A complaint must plead sufficient facts to "state a claim to relief
that is plausible on its face." 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." Iqbal, 556 U.S. at
678 (internal citations omitted). The Court must be mindful that a prose plaintiffs pleadings
should be held " to less stringent standards than forma l pleadings drafted by lawyers." Erickson
v. Pardus, 55 1 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, I 04-05
(1976)); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly ,
the court "remain[s] obligated to construe a prose complaint liberally").
A plaintiff seeking to bring a lawsuit in federal court must establish that the court has
subject matter jurisdiction over the action. See, e.g., Rene v. Citibank NA, 32 F. Supp. 2d 539,
541 -42 (E. D.N.Y. 1999). " [F] ailure of subj ect matter jurisdiction is not waivable and may be
raised at any time by a party or by the court sua sponte. If subject matter jurisdiction is lacking,
the action must be dismissed." Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697,
700-01 (2d Cir.2000) (citations omitted); see Fed. R. Civ. P. 12(h)(3).
Domestic Relations Exception
The domestic relations exception "'divests the federal courts of power to issue divorce,
alimony, and child custody decrees."' Sobel v. Prudenti, 25 F. Supp. 3d 340, 353 (E.D.N.Y.
2014) (quotingAkenbrandt v. Richards, 504 U.S . 689, 703 (1992)). The exception "stems from
' the policy consideration that the states have traditionally adjudicated marital and child custody
disputes and therefore have developed competence and expertise in adjudicating such matters,
which federal courts lack."' Id. (quoting Thomas v. New York City, 814 F. Supp. 1139, 1146
Although the exception is narrow, it applies where the essence of a plaintiffs suit
involves an issue such as custody. Scholle/ v. Kutba, No. 06-CV-1577 (JON) (SS) (JSR), 2009
WL 230106, at *1 (2d. Ci r. Feb. 2, 2009). Federal courts have discretion to abstain from
exercising jurisdiction over issues that " begin and end" in a domestic dispute where full and fair
adjudication is available in state courts; such abstention may apply to civil rights actions. Id. ; see
also Martinez v. Queens Cty. Dist. Atty., No. 12-CV-6262 (RRM), 20 14 WL 1011054, at *9
(E.D.N.Y. Mar. 17, 2014), ajf'd, 596 F. App'x 10 (2d Cir. 2015) (finding that all questions that
begin and end in the domestic dispute shou ld be adjudicated in the state family court).
Here, although Modica alludes to violations of her constitutional rights, she seeks to have
this Court intervene and consider a child custody matter that has already been considered by the
state court. Under the domestic relations exception, this Court cannot provide the relief Modica
seeks. Sobel, 25 F. Supp. 3d at 354.
Further, to the extent that Modica seeks to have this Court revisit or overturn the state
court' s determination concerning custody of her son, the Court is barred by the Rooker- Feldman
abstention doctrine. See Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284
(2005); see generally D.C. Court ofAppeals v. Feldman, 460 U.S. 462, 482-86 (1983) and
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415- 16 (1923). Modica may not seek to collaterally
attack in this Court the state court orders relating to the custody proceeding. See, e.g., Graham
v. Criminal Court of the City of NY , No. 15-CV-337 (PKC), 2015 WL 42798 1, at *4 (E.D.N.Y.
Feb. 2, 20 15); Johnson v. Myers, No. IO-CV-1 964 (JS), 20 14 WL 2744624, at *6 (E.D.N.Y. June
16, 20 14). Accordingly, Modica's claims relating to the state court child custody dispute are
di smissed for lack of subject matter jurisdiction.
Even if this Court had subj ect matter jurisdiction over Modica' s claims, her claim would
be dismissed against Judge Wolf. It is well settled that judges have absolute immunity for their
judicial acts performed in their judicial capacities. Mireles v. Waco , 502 U.S. 9, 11 (1991);
Stump v. Sparkman , 435 U.S . 349, 356 (1978); Dupree v. Bivona, No. 07-CV-4599 (RKW)
(RAK) (RR), 2009 WL 82717, at* 1-2 (2d Cir. Jan. 14, 2009); Colson v. NY Police Dep 't, No .
13-CV-5394 (JG), 2015 WL 64688, at *6 (E.D.N.Y. Jan. 5, 2015). Thi s absolute "judicial
immunity is not overcome by allegations of bad faith or malice," nor can a judge "be deprived of
immunity because the action he took was in error . . . or was in excess of his authority." Mireles,
502 U.S . at 11 (quotation omitted); Horton v. City ofNew York, No. 14-CV-4279 (KAM), 2014
WL 36447 11 , at *l (E.D.N.Y. July 22, 20 14); Eda v. Queens Cty. Criminal Court, No. 13-CV-
7089 (JBW), 2013 WL 6732811, at *1 (E.D.N.Y. Dec. 19, 2013); Gamez v. U.S. Dist. Court E.
& S. Dist. of- Tyranny, NY, No. 11-CV-4068 (KAM), 2011WL3949807, at *1 (E.D.N.Y.
Sept. 6, 2011 ).
Moreover, the Federal Courts Improvement Act of 1996, § 309(c), Pub. L. No. 104-317,
110 Stat. 3847, 3853 (1996) (amending 42 U.S.C. § 1983) bars all claims for injunctive relief
against a judicial officer for a judicial action or omission "unless a declaratory decree was
violated or declaratory relief was unavailable." See also Rodriguez v. Trager, No. 10-CV-781
(ARR), 2010 WL 889545, at *2 (E.D.N.Y. Mar. 8, 2010). Here, Modica alleges that Judge Wolf
lied and found her guilty of child neglect. Modica alleges no acts performed by Judge Wolf that
fall outside the scope of absolute judicial immunity. Accordingly, Modica's claim against Judge
Wolf is dismissed.
The New York City Administration for Children's Services
Finally, Modica seeks an order directing ACS to pay for counseling. (See Compl. at 6.)
ACS is the child protective service agency for the City of New York. See Graham v. City of
New York, 869 F. Supp. 2d 337, 348 (E.D.N.Y. 2012) ("ACS is an agency of the City of New
York .... "). As an agency of the City of New York, ACS cannot be sued independently. See
Frazier v. N. Y State Adm in. for Children Servs, No. l 5-CV-6531 (KAM) , 2016 WL 50801, at
*1 (E.D.N.Y. Jan . 4, 20 16). Accordingly, Modica's claims against ACS are dismissed.
Leave to Amend
Whereas ordinarily the Court would allow a plaintiff an opportunity to amend her
complaint, see Cruz v. Gomez, 202 F.3d 593, 597- 98 (2d Cir. 2000), it need not afford that
opportunity here where it is clear from Modica's submission that she cannot state a claim for
relief. Therefore, any attempt to amend the complaint would be futile. See Ashmore v. Prus, 510
Fed. App'x. 47, 49 (2d Cir. 20 13) (finding leave to amend is futi le where barriers to relief cannot
be surmounted by reframing the complaint); see also Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000) (denying leave to amend a prose complaint where amendment would be futile).
Accordingly, Modica's complaint filed informa pauperis is dismissed for lack of subject
matter jurisdiction. See Fed. R. Civ. P. 12(h)(3); 28 U.S.C. § 1915(e)(2)(B).
The Court certifies pursuant to 28 U.S.C. § l 915(a)(3) that any appeal from this Order
would not be taken in good faith , and therefore, in forma pauper is 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 directed to enter judgment, mail a copy of this
Memorandum and Order and the accompanying Judgment to plaintiff N icole E. Modica, prose,
note the mailing on the docket, and close this case.
s/Roslynn R Mauskopf
ROSLYNN R. MAUSKOPF
United States District Judge
Dated: Brooklyn, New York
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