Brazley v. ACS et al

Filing 5

AMENDED MEMORANDUM AND ORDER: As set forth in the Court's October 13, 2017 Amended Memorandum and Order, Plaintiff is granted thirty (30) days from the date of this Order to file an amended complaint. See attached Memorandum and Order for deta ils. No summons shall issue at this time. The Clerk of the Court is respectfully requested to serve a copy of the attached Amended Memorandum and Order on the pro se Plaintiff and to provide Plaintiff a "Complaint for Violation of Civil Rights" form. Ordered by Judge LaShann DeArcy Hall on 10/13/2017. (Zdanys, Joanna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X

NOT FOR PUBLICATION

YAJAIDA BRAZLEY,
Plaintiff,
-againstACS; FAMILY COURT; EDWIN GOULD;
ANNA STERN; BROOKLYN HOSPITAL;
ALLEN REID, Child’s Attorney; LEIGH
STANLAUS, 1 Case Planner, Edwin Gould;
TYSHAWN LEE, ACS Worker; S.
HOGRATH, R.N. at Brooklyn Hospital;
DR. MOBOSSERIE; NOVA
JACOBONER, 2 Supervisor, Edwin Gould;
AIMEE AMBUSH, Permanency Planner,
Edwin Gould; KEVIN LITTLE, Executive
Director, Edwin Gould,
Defendants.

MEMORANDUM AND ORDER
16-CV-07138 (LDH)(PK)

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LASHANN DEARCY HALL, United States District Judge:
Plaintiff Yajaida Brazley, proceeding pro se, brings the instant action under 42 U.S.C.
§1983, alleging that Defendants violated her constitutional rights. In addition, Plaintiff seeks to
have Defendants criminally prosecuted. Plaintiff’s request to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915 is granted.
BACKGROUND
Plaintiff describes two incidents in which two of her children were taken from her by ACS.
(Compl. 8-9, ECF No. 1.) The first removal in 2011 involved Plaintiff’s older daughter, who is
now six years old. (Id. at 8.) At that time, Ms. Walden, an ACS employee, initiated a complaint

1 Plaintiff lists defendants Stanlaus, Lee, Gograth, Mobosserie, Jacoboner, Ambush and Little in the body of her
complaint, but not in the caption. (See Compl. 1-4.) The Court liberally construes the complaint as against all of the
Defendants that Plaintiff has named.
2 Defendant Jacoboner’s name is alternatively spelled by Plaintiff as Jocabbonner. (Compl. 3.)

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against Plaintiff when Plaintiff’s daughter’s father “laid his hands” on her on December 12, 2011.
(Id.) Plaintiff was then accused of not having milk for her baby while they were residing at a
family shelter. (Id. at 8-9.) As a result, Plaintiff’s child was taken from her and put in the care of
Edwin Gould, a foster care agency. (Id. at 8.)
The second incident concerns Plaintiff’s infant daughter. Plaintiff alleges that
Defendants Stanlous and Jacoboner removed the infant from Plaintiff at the hospital on April 26,
2016, presumably to be placed in foster care, without proper cause to do so. (Id. at 8-9.)
Plaintiff further alleges that, on September 13, 2016, her baby was “slammed on the bed” or
“thrown across the room” by the foster mother’s thirteen year-old daughter. (Id. at 6, 9.)
Plaintiff contends that ACS and Edwin Gould knew about the incident, but waited for a month
before informing Plaintiff about it. (Id. at 6, 9.) She alleges that the police were called, and that
there is an investigation pending. (Id. at 9.) Plaintiff seeks to “press charges on all parties to my
case” and seeks damages of nine hundred million dollars. (Id. at 7, 9.)
STANDARD OF REVIEW
A pro se complaint nevertheless must plead “enough 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 is facially
plausible 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 v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). Although “detailed factual allegations” are not required, “[a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). Similarly, a complaint does not
state a claim “if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.

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(quoting Twombly, 550 U.S. at 557).
A district court shall dismiss an in forma pauperis action where it is satisfied that the
action is “(i) 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.” 28 U.S.C.
§ 1915 (e)(2)(B). Courts must read pro se complaints with “special solicitude” and interpret
them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474-76 (2d Cir. 2006) (internal quotation marks omitted) (quoting Ruotolo v.
I.R.S., 28 F.3d 6, 8 (2d Cir. 1994) and Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir. 2003)).
Accordingly, the Court construes Plaintiff’s pleadings liberally in light of her pro se status.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d
185, 191-93 (2d Cir. 2008).
DISCUSSION
I.

Plaintiff’s Criminal Claims
Plaintiff seeks to have Defendants criminally prosecuted. (See Compl. at 9 (“I wanna

[sic] press charges on all parties to my case.”)). This is not her domain as a civil litigant. Rather,
criminal prosecutions are within the province of prosecutors, who, unlike individual citizens,
have unreviewable discretion over the decision to prosecute. Leeke v. Timmerman, 454 U.S. 83,
85-86 (1981) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.”) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)).
Because Plaintiff cannot herself commence a criminal prosecution, this claim is dismissed for
failure to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

Plaintiff’s Constitutional Claims
A. Due Process Claims Arising under 42 U.S.C. § 1983
Plaintiff alleges that Defendants “[o]verall [violated her] constitutional rights.” (Compl.

at 7.) After a complete and liberal reading of Plaintiff’s complaint, the Court construes the
instant complaint as alleging due process violations during the removal of her children in 2011
and 2016 and during her daughter’s time in foster care in 2016. See Sharpe v. Conole, 386 F.3d
482, 484 (2d Cir 2004) (“we construe [a pro se complaint] broadly and interpret it to raise the
strongest arguments it suggests”). Because Plaintiff alleges a violation of her constitutional
rights, the Court construes the action as brought pursuant to 42 U.S.C. § 1983, which states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State or Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper proceeding for seeking
redress[.]
42 U.S.C. § 1983.
To maintain a § 1983 action, a plaintiff must allege both that the conduct complained of
was “committed by a person acting under color of state law” and that the conduct “deprived a
person of rights, privileges or immunities secured by the Constitution or laws of the United States.”
Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994) (citing Parratt v. Taylor, 451 U.S. 527, 535
(1981) overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)). Moreover, she
must allege the direct or personal involvement of each of the named defendants in the alleged
constitutional deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (quoting Farrell v.
Burke, 449 F.3d 470, 484 (2d Cir. 2006) (“It is well-settled in this Circuit that personal involvement
of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under

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§ 1983.”)). Section 1983 “is not itself a source of substantive rights, but a method for vindicating
federal rights elsewhere conferred by those parts of the United States Constitution and federal
statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).
The Second Circuit has held that “[p]arents . . . have a constitutionally protected liberty
interest in the care, custody and management of their children.” Tenenbaum v. Williams, 193
F.3d 581, 593 (2d Cir.1999). This liberty interest is protected by both the substantive and
procedural safeguards of the Due Process Clause of the Fourteenth Amendment. See Kia P. v.
McIntyre, 235 F.3d 749, 758–59 (2d Cir. 2000). With respect to procedural due process rights, a
state actor may not deprive a parent of the custody of his children without a pre-deprivation
hearing unless the children are “immediately threatened with harm,” in which case a prompt
post-deprivation hearing is required. Tenenbaum, 193 F.3d at 594 (internal quotation marks
omitted). With respect to substantive due process rights, state seizure of children is
constitutionally permitted only where “case workers have a ‘reasonable basis' for their findings
of abuse.” Wilkinson v. Russell, 182 F.3d 89, 104 (2d Cir.1999) (quoting Van Emrik v. Chemung
Cnty. Dep’t of Social Servs., 911 F.2d 863, 866 (2d Cir.1990)). And, because children have a
correlative liberty interest in being in the care and custody of their parents, children taken into
state custody have the right not to be placed by the state with foster parents having a known
propensity to neglect or abuse children. See, e.g., Southerland v. Giuliani, 4 F. App’x 33, 37 (2d
Cir. 2001) (“It is well-established that a child in foster care has a liberty interest to be free from
harm, and correspondingly, that the state has a duty to protect such children from harm.”).
Therefore, applying a liberal construction to Plaintiff’s allegations, the Court finds that
Plaintiff states cognizable § 1983 claims for violations of procedural and substantive due

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process. Notwithstanding the fact that Plaintiff has raised arguably cognizable claims, there
remain deficiencies in the complaint.
B. Statute of Limitations
As a threshold matter, some of Plaintiff’s claims are time-barred. A three-year statute of
limitations applies to claims brought under 42 U.S.C. § 1983. Wallace v. Kato, 549 U.S. 384,
388 (2007) (Section 1983 “provides a federal cause of action, but … federal law looks to the law
of the State … for the length of the statute of limitations”); Owens v. Okure, 488 U.S. 235, 251
(1989) (statute of limitations on § 1983 claim to which New York law applies is three years).
Accordingly, Plaintiff’s claims based on the 2016 removal are timely.
It is unclear from the complaint whether Plaintiff wishes to challenge the 2011 removal
of her daughter from her custody. Assuming that Plaintiff intended to bring such a claim,
however, it would be time-barred because Plaintiff filed this action in 2016, well beyond the
three-year statute of limitations applicable to 42 U.S.C. § 1983 actions. See Sevilla v. Perez, 15–
CV-3528-KAM, 2016 WL 5372792, at *3 (E.D.N.Y., Sep. 26, 2016) (finding that the statute of
limitations began to run on the date the children were removed from the parent's custody);
Winkler v. Grant, 07–CV-6280T-MAT, 2008 WL 1721758, at *3 (W.D.N.Y. Apr. 8, 2008)
(“The three-year period begins on the date on which the plaintiff knew or had reason to know of
the injury allegedly suffered… In the instant case, plaintiff’s cause of action for the unlawful
removal of his children accrued on December 3, 2003, the date on which his children were taken.
Because the removal of his children took place more than three years before plaintiff filed his
Complaint, plaintiff’s cause of action based on that claim is time barred.”) (citation omitted),

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aff’d in part, vacated in part on other grounds, 370 F. App’x 145 (2d Cir. 2010) (summary
order).
C. Family Court is Not a Proper Defendant
Notwithstanding the timeliness of Plaintiff’s claim premised on the 2016 removal,
Plaintiff brings the instant action against entities that are not proper defendants. The Eleventh
Amendment bars Plaintiff’s claims against the “Family Court” in federal court. The Eleventh
Amendment of the United States Constitution states:
The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. Thus, state governments may not be sued in federal court unless they
have waived their Eleventh Amendment immunity, or unless Congress has abrogate[d] the
state’s Eleventh Amendment immunity when acting pursuant to its authority under section 5 of
the Fourteenth Amendment. Gollomp v. Spitzer, 568 F. 3d 355, 366, 368 (2d Cir. 2009) (citation
omitted) (holding that the New York State Unified Court System is unquestionably an “arm of
the State” and is entitled to Eleventh Amendment sovereign immunity); McKeown v. N.Y. State
Comm’n on Judicial Conduct, 377 F. App’x 121, 122-23 (2d Cir. May 18, 2010) (summary
order) (noting that state courts, as “arms of the State are immunized from suit.”) (internal
quotations and citation omitted)); see also N.Y. CONST. art. 6, § 1 (creating the unified court
system). Because the New York State Unified Court System is entitled to Eleventh Amendment
sovereign immunity, this complaint against one of its family courts, the Brooklyn Family Court,
is dismissed because it seeks monetary relief from an entity that is immune from such relief. 28
U.S.C. § 1915(e)(2)(B)(iii).

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D. Seven Individual Defendants Dismissed
Federal Rule of Civil Procedure 8 states that a complaint must “contain . . . a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2);
Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009). This rule “does not require ‘detailed factual
allegations,’” but “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555); see also
Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006). “Nor does a
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). And, “the personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages under
§1983. Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016) (citing Farrell, 449 F.3d at 484 ); Holmes
v. Kelly, No. 13-CV-3122, 2014 WL 3725844, at *2 (E.D.N.Y. July 25, 2014) (finding that “a
plaintiff must demonstrate the defendant’s direct or personal involvement in the actions which are
alleged to have caused the constitutional deprivation.”). A plaintiff must also “allege a tangible
connection between the acts of the defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d
260, 263 (2d Cir. 1986); Andino v. Fischer, 698 F. Supp. 2d 362, 381 (E.D.N.Y. 2010) (citing
Bass, 790 F.2d at 263).
Here, Plaintiff names ten individual defendants, but only makes allegations against Leigh
Stanlaus (ACS Caseworker), Edwin Gould (Supervisor), and Nova Jacoboner. None of the other
seven individual defendants are mentioned in the complaint at all, except to have their names and
titles listed as Defendants. Thus, the complaint does not comply with Rule 8 of the Federal Rules
of Civil Procedure as to these seven Defendants, because it fails to notify these them of the

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claims against them. Thus, the complaint fails to state a claim against Defendants Anna Stern, 3
Allen Reid, Tyshawn Lee, S. Hogarth, Dr. Mobosserie, Aimee Ambush and Kevin Little, and
these Defendants are dismissed. 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff’s § 1983 due process
claims concerning the 2016 removal and foster care of her daughter may proceed against the
remaining defendants: ACS, Edwin Gould, Brooklyn Hospital, Leigh Stanlaus and Nova
Jacoboner.
CONCLUSION
Plaintiff’s cause of action seeking the criminal prosecution of Defendants is dismissed
with prejudice. Plaintiff’s § 1983 due process claims regarding the 2011 removal of her daughter
from her custody are dismissed as untimely. The complaint is dismissed against Defendant
Family Court because it seeks monetary damages from an entity that is immune from such relief.
28 U.S.C. § 1915(e)(2)(B)(iii). And the complaint is dismissed against defendants Anna Stern,
Allen Reid, Tyshawn Lee, S. Hogarth, Dr. Mobosserie, Aimee Ambush and Kevin Little for
failure to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk
of the Court is respectfully requested to correct the caption to reflect their dismissal.
Plaintiff’s § 1983 Due Process claims concerning the 2016 removal and foster care of her
daughter may proceed against the remaining defendants: ACS, Edwin Gould, Brooklyn Hospital,
Leigh Stanlaus and Nova Jacoboner. Plaintiff shall be afforded thirty (30) days leave from the
entry of this order to file an amended complaint. The Clerk of Court is respectfully requested to
provide a “Complaint for Violation of Civil Rights” form to Plaintiff. Should Plaintiff have any
decisions regarding the removal of her child or her child’s placement in foster care, she may

3 Plaintiff concludes that Defendant Stern “violated due process law” but does not allege any facts about her.

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include the document(s) with her amended complaint. If Plaintiff elects to file an amended
complaint, the amended complaint must provide facts giving rise to each of her federal claims
against the Defendants. She should list specifically what injury she suffered, when and how it
occurred, and who was responsible for it. Finally, Plaintiff must name the individuals who were
personally involved as Defendants. Should Plaintiff have a basis to assert § 1983 due process
claims against Defendants other than ACS, Edwin Gould, Brooklyn Hospital, Leigh Stanlaus and
Nova Jacoboner, she may name those Defendants in the amended complaint. Plaintiff is advised
that the amended complaint will completely replace the original complaint, must be captioned
“Amended Complaint,” and must bear the same docket number as this 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 the purpose of any appeal.
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.

/s/ LDH
LASHANN DEARCY HALL
United States District Judge
Dated: Brooklyn, New York
October 13, 2017

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