Dyer v. Family Court et al

Filing 5

MEMORANDUM DECISION AND ORDER: The Court grants Dyer's 2 request to proceed in forma pauperis. I hereby dismiss the claims as to ACS, the Family Court, Judge Deane, Piyali Basak, Brooklyn Hospital, Eva Mok, Natalia Rimarvera, Ms. H arris, Monifah Samuels, Keith Little, and Towanda Bennette pursuant to 28 U.S.C. § 1915(e)(2)(B). No summons shall issue against these defendants and the Clerk of Court is directed to amend the caption to reflect the dismissal of these defend ants. However, the claims against Edwin Gould Services, Aimme Ambush, Leigh Stanislaus, and Ms. Rocha may proceed as provided in this Order. The Clerk of Court is directed to issue summonses against these defendants, and the United States Marshals Service is directed to serve the complaint and this Order on the defendants without prepayment of fees. A copy of this Order shall be served on the New York City Law Department. The case is referred to the Honorable Roanne L. Mann, United States Magistrate Judge, for pretrial supervision. The Court certifies pursuant to 28 U.S.C. § 1915(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. SO ORDERED by Judge Brian M. Cogan, on 12/28/2016. C/mailed by Chambers to pro se Plaintiff. (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------)(

C/M

IVREE DYER,
Plaintiff,
- against -

MEMORANDUM DECISION AND
ORDER

l 6-cv-6876 (BMC)(RLM)

FAMILY COURT; EDWIN GOULD;
BROOKLYN HOSPITAL; MONIFAH
SAMUELS; MS. HARRIS; KEITH LIITLE;
EVA MOK; NATALIA RIMARVERA;
PIYALI BASAK; MS. ROCHA; AIMEE
AMBUSH; LEIGH STANISLAUS;
TOW ANDA BENNETTE; THE
HONORABLE JACQULINE B. DEANE;
and ACS,
Defendants.
----------------------------------------------------------)(
COGAN, District Judge.

Plaintiff prose is the mother of two children, S.D. and N.D., who are in the custody of
the New York City Administration for Children's Services ("ACS") and have been placed in
foster care. Plaintiff brings claims under 42 U.S.C. § 1983 alleging that her Fourteenth
Amendment rights 1 have been violated and seeking $500 million in damages.
Plaintiff has brought claims against fifteen defendants, including: the New York City
Family Court, Family Court Judge Jacquline[sic] Deane, ACS, Edwin Gould Services for
Children and Families ("Edwin Gould Services"), the Executive Director of Edwin Gould
Services and numerous case planners and supervisors, the foster mother, the children's guidance
counselor, Brooklyn Hospital, two doctors at Brooklyn Hospital, and an individual who plaintiff
identifies as a ''lawyer."
1
In her complaint, plaintiff also asserts that she brings claims for violations of her First Amendment rights, but
plaintiff alleges no facts that possibly- let alone plausibly- state a First Amendment claim.

The Court grants Dyer's request to proceed informa pauperis. For the reasons discussed
below, the claims are dismissed as to ACS, New York City Family Court, Family Court Judge
Jacquline Deane, Brooklyn Hospital, Eva Mok, Natalie Rimarvara, Piyali Basak, Ms. Harris,
Kevin Little, Monifah Samuals, and Towanda Bennette. The claims shall proceed only against
Edwin Gould Services, "Ms. Rocha," Aimee Ambush, and Leigh Stanislaus.

BACKGROUND
A significant portion of plaintiffs complaint is unclear to the point of being incoherent.
Liberally construed, the Court has extrapolated the following claims.
First, plaintiff alleges that her Fourteenth Amendment right to due process has been
violated because her two children have been neglected and abused while in the care of their
foster mother, defendant Bennette. Specifically, plaintiff alleges that the children have suffered
from rashes and have been kept ungroomed and in dirty clothes. Plaintiff further alleges that in
July 2016, one or both of the children - the complaint is unclear - were sexually abused in the
foster home and that on November 28, 2016 and November 29, 2016, two additional "incidents"
occurred. It is unclear if by "incidents" plaintiff is referring to additional events of sexual abuse,
or something else. Plaintiff states that she has informed defendant Edwin Gould Services of the
abuse and neglect on numerous occasions, and has made requests to defendants Aimee Ambush
and Leigh Stanislaus, employees of Edwin Gould Services, that the children be placed in a
different foster home, including prior to the incident of sexual abuse in July 2016, but they have
ignored her complaints.
Second, plaintiff alleges that her parental rights were violated when defendant Ambush
took S.D. to Brooklyn hospital for medical treatment without informing plaintiff. The complaint
fails to state when S.D. visited the hospital and it is unclear whether the hospital visit was related

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to the alleged sexual abuse. S.D. was treated by defendant doctors Eva Mok and Natalia
Rimarvera at Brooklyn Hospital. Plaintiff alleges no further facts regarding the doctors or
Brooklyn Hospital.
Third, plaintiff alleges that Ms. Rocha, the children's guidance counselor, prevented
plaintiff from accessing N.D.'s educational records. Plaintiff alleges that after Edwin Gould
Services had diagnosed N.D. with autism spectrum disorder, she went to N.D. 's school to ensure
that N.D. was being provided with the proper services, but Rocha denied plaintiff access to this
information.
Fourth, plaintiff alleges that Family Court Judge Deane violated her due process rights
when Judge Deane: ( 1) ordered plaintiffs visitation rights suspended, without providing plaintiff
with an opportunity to contest the evidence against her; and (2) permitted witnesses from Edwin
Gould Services and ACS to "commit[] perjury on [the] stand."
Finally, in a supplemental letter to the Court, plaintiff alleges that: she never received an
order from the Family Court suspending her visitation rights; defendant Edwin Gould services
has consistently withheld information from plaintiff regarding her children; and the biological
father and aunt of the children have been denied their rights as family members to "intervene." 2

DISCUSSION
First, plaintiff may not maintain a claim against ACS. Section 396 of the New York City
Charter provides that "[a]ll 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." N.Y.C. Admin. Code & Charter Ch. 16 § 396. That
provision "has been construed to mean that New York City departments, as distinct from the City

2

The father and the aunt of the children are not named as plaintiffs in this case and thus I will not consider any
claim regarding the violation of their rights.

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itself, lack the capacity to be sued." Ximines v. George Wingate High Sch., 516 F.3d 156, 15960 (2d Cir. 2008) (per curiam); see Thomas v. City of New York, No. 15 CV 3236, 2015 WL
9412543, at *3 (E.D.N.Y. Dec. 22, 2015) (ACS is not a suable entity); Worrell v. City ofNew
York, No. 12 CV 6151, 2014 WL 1224257, at *3 (E.D.N.Y. March 24, 2014) (same).
Accordingly, any claims that plaintiff may be advancing against ACS are dismissed.
Second, any claims against the Family Court, a court that is part of the New York State
Unified Court System, must be dismissed because it is entitled to sovereign immunity as
guaranteed by the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, I 04 S. Ct. 900 (1984) (holding that absent consent, a State and its agencies are immune
from suits brought in federal court); Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466
F.3d 232, 236 (2d Cir. 2006) ("[A]s a general rule, state governments may not be sued in federal
court unless they have waived their Eleventh Amendment Immunity."); see also Gollomp v.
Spitzer. 568 F.3d 355, 368 (2d Cir. 2009) (the New York State Unified Court System is entitled
to sovereign immunity as an arm of the State); Raghunath v. New York, No. 14 CV 4218, 2015
WL 4623467, at *3 (E.D.N.Y. July 30, 2015) (holding that the court lacked subject matter
jurisdiction over plaintiffs claims against New York City Family Court because it is entitled to
sovereign immunity); McKnight v. Middleton, 699 F.Supp.2d 507, 521 (E.D.N.Y. 2010)
(holding that New York City Family Court is "a part of the New York State Unified Court
system and is, therefore, also protected by the State's sovereign immunity from suit in federal
court."). Accordingly, any claims against the Family Court are barred.
Third, plaintiffs claims against Judge Deane must also be dismissed because judges have
absolute immunity for acts performed in their judicial capacities. See Mireles v. Waco, 502 U.S.
9 (1991); Stump v. Sparkman. 435 U.S. 349 (1978). Absolute judicial immunity "is not

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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 (internal quotation marks and citation omitted); accord Horton v. City ofNew York, No. 14
CV 4279, 2014 WL 3644711, at *l (E.D.N.Y. July 22, 2014); Edo v. Queens Cnty. Criminal
Court, No. 13 CV 7089, 2013 WL 6732811, at *1 (E.D.N.Y. Dec. 19, 2013). To the extent that
plaintiff brings claims against Judge Deane for violations of due process, or any other claim in
connection with plaintiffs family court proceedings in which Judge Deane presided, they are
foreclosed by absolute judicial immunity.
Fourth, any claims against Piyali Basak, Brooklyn Hospital, and doctors Eva Mok and
Natalia Rimarvera are dismissed for failure to state a claim upon which relief can be granted.
Federal Rule of Civil Procedure 8(a) provides that "[a] pleading that states a claim for relief must
contain ... a short and plain statement of the claim showing that the pleader is entitled to relief."
This rule "does not require 'detailed factual allegations,' but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Igbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atlantic Coro. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
1955, 1964 (2007)).
Here, plaintiff fails to state a single factual allegation against Piyali Basak, who she has
identified as a "lawyer." As far as plaintiffs complaint is concerned, Piyali Basak has no
involvement with this case. Thus, any claims as to Piyali Basak are dismissed.
In regards to Brooklyn Hospital and doctors Mok and Rimarvera, the only facts that
plaintiff alleges against them are that S.B. was treated at Brookyln Hospital by Dr. Mok and Dr.
Rimarvera. Plaintiff, however, does not accuse Brooklyn Hospital or the doctors of any
wrongful conduct. The mere allegation that plaintiffs child visited the hospital and was treated

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by two doctors is insufficient to state any claim, let alone a § 1983 claim for a constitutional
violation. Thus, any claims as to Brooklyn Hospital, Mok, and Rimarvera are dismissed.
Fifth, any claims against Ms. Harris, who plaintiff identifies as a "supervisor of
permanency planning," Monifah Samuels, who plaintiff identifies as a "case planner supervisor"
and Keith Little, who plaintiff identifies as the "Executive MPA Director," are dismissed for
failure to allege any personal involvement by these defendants in the alleged constitutional
deprivation. It is well settled that in order to establish a defendant's individual liability in a suit
brought under§ 1983, a plaintiff must show the defendant's personal involvement in the alleged
constitutional deprivation.

See,~'

Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.

2013); Farid v. Ellen, 593 F .3d 233, 250 (2d Cir. 2010). Moreover, liability under § 1983 cannot
be generally imposed on a supervisor solely based on his position because there is no respondeat

superior or vicarious liability under§ 1983.

See,~

Monell v. New York City Dept. of Soc.

Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036 (1978) ("[A] municipality cannot be held liable
under§ 1983 on a respondeat superior theory."); Hernandez v. Keane, 341 F.3d 137, 144 (2d

...
Cir. 2003) ("[S]upervisor liability in a§ 1983 action depends on a showing of some personal
responsibility, and cannot rest on respondeat superior."). Even liberally construed, plaintifrs
complaint fails to allege sufficient facts to link any acts or omissions by these defendants to the
violation of her constitutional rights.
Six th, any claims against Bennette, the foster mother, fail because Bennette was acting as
a private citizen, not as a state actor, when the alleged sexual abuse occurred. To state a claim
for relief under § 1983, plaintiff must allege that a defendant, acting under color of state law,
deprived her of a constitutionally or federally protected right. See Gomez v. Toledo, 446 U.S.
635, 640, 100 S. Ct. 1920, 1923 ( 1980); Washington v. James, 782 F.2d 1134, 1138 (2d Cir.

6

1986). Courts of Appeals that have considered whether a foster parent is a state actor under

§ 1983

'~have

resoundingly answered in the negative." Smith v. Gristina, 11 CV 2371, 2012 WL

247017, at *3 (S.D.N.Y. Jan. 6, 2012) (collecting cases); see Hafez v. Madison, 348 F. App'x
465, 467 (11th Cir. 2009) ("[F]oster parents are not state actors for section 1983 purposes.");
United States v. Peneaux, 432 F.3d 882, 896 (8th Cir. 2005) ("[F]oster parents are generally not
considered agents of the state."); Leshko v. Servis, 423 F.3d 337, 341 (3d Cir. 2005) (holding
that a foster parent was not a state actor); Rayburn v. Hogue, 241 F .3d 1348-49 (11th Cir. 2001)
(holding that foster parents were not state actors in the context ofchild abuse); Weller v. Dep't of
Soc. Servs., 901F.2d387, 392 (4th Cir. 1990) ("[H]arm suffered by a child at the hands of his
foster parents is not harm inflicted by state agents."); Milburn v. Anne Arundel County Dep't of
Soc. Servs., 871 F.2d 474, 479 (4th Cir. 1989) (holding that foster parents were not state actors
because the state "exercised no coercive power over" the foster parents nor did it "encourage
them."). Thus, plaintiffs claims against Bennette are dismissed.
However, plaintiffs claims against Edwin Gould Services, Aimme Ambush, and Leigh
Stanislaus may proceed on a theory that plaintiffs due process rights were violated because
defendants failed to protect the children from harm in the foster home. Plaintiffs claim against
Ms. Rocha may also proceed on a theory that Ms. Rocha violated plaintiffs right to information
under§ 1415(b)(l) of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §
1400, et seq. 3

3

Plaintifrs rights under the IDEA, however, will "be determined with reference to the rights she retains under the
state custody decree ...." Taylor v. Vermont Dept. ofEduc., 313 F.3d 768, 786 (2d Cir. 2002). Thus, if the Family
Court had previously suspended plaintifrs parental rights relating to her children's education, then there was no
violation of the IDEA. Additionally, plaintifrs IDEA claim will be dismissed if it is determined that she failed to
exhaust the IDEA's administrative remedies prior to bringing this action. See 20 U.S.C. § 1415(1); Taylor, 313 F.3d
at 788-90.

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CONCLUSION
For the reasons set forth above, I hereby dismiss the claims as to ACS, the Family Court,
Judge Deane, Piyali Basak, Brooklyn Hospital, Eva Mok, Natalia Rimarvera, Ms. Harris,
Monifah Samuels, Keith Little, and Towanda Bennette pursuant to 28 U.S.C. § 1915(e)(2)(B).
No summons shall issue against these defendants and the Clerk of Court is directed to amend the
caption to reflect the dismissal of these defendants. However, the claims against Edwin Gould
Services, Aimme Ambush, Leigh Stanislaus, and Ms. Rocha may proceed as provided in this
Order. The Clerk of Court is directed to issue summonses against these defendants, and the
United States Marshals Service is directed to serve the complaint and this Order on the
defendants without prepayment of fees. A copy of this Order shall be served on the New York
City Law Department. The case is referred to the Honorable Roanne L. Mann, United States
Magistrate Judge, for pretrial supervision.
The Court certifies pursuant to 28 U.S.C. § l 9 l 5(a)(3) that any appeal from this order
would not be taken in good faith and therefore informa pauperis status is denied for purpose of
an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

Digitally signed by Brian
M. Cogan
U.S.D.J.

Dated: Brooklyn, New York
December 28, 2016

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