Moskowicz v. Watson et al

Filing 23

MEMORANDUM AND ORDER, For the foregoing reasons. Plaintiffs claims against defendants Wilson, Irani, Vielot,Moore, Johnson, Richter, Oloruntoba, McKnight, Philippeaux, Flory, Taylor, Hinds, the John Doe Police Officers, and New York State are dismiss ed pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiffs claims against defendants Sari, Watson, Witherspoon, Kyrkos, Piccione, and the City of New York may proceed. The Clerk of Court is directed to issue summonses againstthese defendants and to ma il a copy of this Order to Plaintiff and the New York City Law Department. The U. S. Marshals Service is directed to serve the summonses, the Second Amended Complaint, and this Order on the remaining defendants without prepayment of fees. The Court r efers this matter to Magistrate Judge Sanket J. Bulsara for pretrial supervision. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this orderwould 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). (Ordered by Judge William F. Kuntz, II on 4/23/19) c/m (Galeano, Sonia)

FILED
US DISTRICT COURT E.D.N^
IN CLERK'S OFFICE

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

* M6fC2 2019 5
-X

BROOKLYN OFFICE

MIRIAM MOSKOWICZ,
Plaintiff,

MEMORANDUM & ORDER

17-CV-3074(WFK)(SJB)

V.

RONALD E RICHTER, Commissioner of NYC
Administration for Children's Services; MARIE

PHILIPPEAUX, Acting Deputy Commissioner;
JACQUELINE McKNIGHT,Borough
Commissioner; JAN FLORY,Deputy Commissioner;
GILBERT A. TAYLOR,Executive Deputy
Commissioner; DERRICK HINDS,Borough

Commissioner; LAWRENCE SARI, Supervisor for
Administration for Children's Services, Unit 278;
JEAN PIERRE WATSON,Child Protective

Specialist for Administration for Children's Services,
Unit 278; DEATRICE WILSON,Child Protective
Worker for Administration for Children's Services;
MARCIA MOORE;KAREN JOHNSON;
MARSHKA VIELOT; ABDUL OLORUNTOBA,
Caseworker for Child Protective Services, Unit 278;
DAVID TRANI; JOHN DOES 1-50;

WITHERSPOON,NYPD Detective #26397;
KYRKOS,NYPD Detective #12285; PICCIONE,
NYPD Detective #23160; JOHN DOE NYPD

DETECTIVES 1-50; THE CITY OF NEW YORK;
and THE STATE OF NEW YORK,
Defendants.
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WILLIAM F. KUNTZ,II, United States District Judge:

Miriam Moskowicz("Plaintiff), proceeding pro se,filed the above-captioned complaint

on May 18, 2017, purportedly on behalf of herself and her two minor children. By Order dated
May 30,2017, the Court granted Plaintiffs request to proceed informa pauperis("IFP")

pursuant to 28 U.S.C. § 1915, dismissed the minor children as plaintiffs and several ofthe
defendants, and gave Plaintiff leave to file an amended complaint. After multiple requests to

extend the time to file and after the case was dismissed and then reopened, Plaintiff filed an

Amended Complaint on January 29, 2018 and a Second Amended Complaint on February 8,

2018. Having reviewed the Second Amended Complaint, the Court dismisses the claims against
Defendants Ronald E Richter, Marie Philippeaux, Jacqueline Mcknight, Jan Flory, Gilbert A.

Taylor, Derrick Hinds, Deatrice Wilson, Marcia Moore, Karen Johnson, Marshka Vielot, Abdul
Oloruntoba, David Trani, the John Doe Police Officers, and the State of New York. The action

may proceed against the remaining defendants named in the Second Amended Complaint.
BACKGROUND

As alleged in the Second Amended Complaint, on December 9,2011,an employee at

RLS High School reported excessive school absences of Plaintiffs 16-year-old daughter Malka.
Amended Compl. K 30. Thereafter, the New York City Administration for Children's Services
("ACS")initiated an investigation. Id. H 40. ACS assigned defendant Deatrice Wilson to

investigate the report. Id. ^ 42. Defendant David Trani was Wilson's supervisor, and defendant
Marshka Vielot was Trani's supervisor. Id. f 42. Caseworker Akunna Osuagwu also

investigated. Id. ^ 43. Defendants Marcia Moore, Karen Johnson, and Abdul Oloruntoba were
also assigned as supervisors and managers. Id. ^ 44. Osuagwu, Wilson, and Trani visited
Plaintiffs home. Id. H 46. Johnson told Plaintiffthat ACS caseworkers routinely lie to their
clients, and Oloruntoba told her that caseworkers "are 'trained' to lie." Id. H 53. Plaintiff
informed the ACS workers that their visits to her home were traumatizing to her and her child

and, at Johnson's request, also sent letters from Malka's therapist and physician "about the

traumatic impact upon Malka by the visits and interrogations of defendants City and ACS

employees."

57-61. Nonetheless, ACS continued its investigation and home visits. M HH

59,62. On or about January 25,2012, defendants Wilson, Trani, and Vielot scheduled a Child

Safety Conference. Id. H 66. After Plaintiffs counsel informed them counsel would attend the
conference with Plaintiff on February 1, 2012, the conference was canceled. Id.

68-69. On or

about February 3,2012, ACS employees commenced neglect proceedings against Plaintiff in
Brooklyn Family Court, without notifying Plaintiff. Id.

29a, 70. The February 1, 2012

petition was signed by defendant Wilson and approved by Wilson's supervisors. Id.

80.

"Based upon the false information and omission ofexculpatory evidence that defendants

provided, the Family Courtjudge purportedly issued an ex-parte order for Court Ordered

Supervision." Id. H 95. Plaintiff was not notified of the proceedings. Id.

106-07. The neglect

proceeding was settled by an Adjournment in Contemplation of Dismissal on January 29,2013,
which provided that Malka would return to school and receive mental health services. Id.
29b, 112. Plaintiff agreed to cooperate with ACS supervision and ensure that her children's
medical needs were met and that they attended school. Id. H 114.

On or about August 5,2013, ACS employees Jean Pierre Watson, Lawrence Sari, and
Abdul Oloruntoba, each of whom is named as a defendant, took over the case. Id.

29c, 133.

"On August 16,2013, defendants[ACS Commissioner Ronald E.] Richter and Oloruntoba
caused to be submitted to the Family Court an application for a warrant... that was not

supported by probable cause or any justification." Id. ^ 139. The application named defendant
Wilson as the source of information. Id. f 140. On several occasions in September and October
of 2013, defendant Watson questioned Malka at her school. Id.

166-69. On November 8,

2013, at about 6 a.m., three police officers, named as John Doe Defendants, entered Plaintiffs
home and arrested her. Id. ^ 174. Police officers took her to Family Court, separated her from

her children, and prohibited her from making any telephone calls. Id. 1[1| 184, 185, 187. Plaintiff
was released after the Family Court hearing. Id. ^ 190. "On April 23,2014, defendant Watson,

with the approval and support of defendant Sari, caused to be submitted to the court an Affidavit

in Support" of an arrest warrant. Id. ^ 203. On May 19, 2014, at about 6 a.m., defendant police
officers Piccione, Kyrkos, and Witherspoon broke Plaintiffs door and stated that they had a
warrant for her arrest. Id.

29h,219. Plaintiff felt unwell and called for paramedics. Id. 219.

When the paramedics arrived, the police officers admitted that they did not have a warrant for
her arrest. Id. Plaintiffs minor child Nechama was also seized and suffered an unidentified

harm "relate[d] to bodily privacy." Id. Iffl 217,222. At a post-deprivation hearing on May 19,
2014,"ACS employees admitted there were 'no safety concerns' about any of[Plaintiffs]

children." Id. H 223. The Family Court proceeding terminated on April 4, 2016. Id. H 244.
Plaintiff filed a notice of claim with the Comptroller ofthe City of New York within 90 days of
the termination. Id. H 245.

Plaintiff alleges the City of New York "has official policies, practices or customs that

caused [Plaintiffs] constitutional deprivations,""knew or should have known that defendants

ACS employees were engaging in conduct that violated [Plaintiffs] constitutional rights, and
"failed to take reasonable steps to ensure its employees acted with reasonable regard for

[Plaintiffs] constitutional rights." Id.

237-39. She alleges the City has "an official unwntten

policy, custom, or practice" in that"ACS workers are trained to lie." Id. 1241. She also alleges
the City failed to properly screen, train, and supervise ACS employees or intervene. Id. H 339.
Plaintiff further alleges that the State of New York is liable for her injuries because "State

policies set the rates and caps on compensation for 18-B attorneys, which resulted in a denial of
my constitutional right to counsel." Id. ^ 242, 342.

Plaintiff alleges defendants violated her constitutional rights and New York State law.
She seeks declaratory relief and compensatory and punitive damages of not less $900,000.

DISCUSSION

I.

Standard of Review

Pursuant to the informa pauperis statute, a district court must dismiss a case if the court

determines the action "(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."
28 U.S.C. § 1915(e)(2)(B). Pro se complaints are held to less stringent standards than pleadings
drafted by attorneys, and the Court is required to read pro se complaints liberally and interpret
them as raising the strongest arguments they suggest. See Erickson v. Pardus, 551 U.S. 89,94

(2007)("A document filed pro se is fto be liberally construed,' and 'apro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers.'")(internal citations omitted); see also Sealed Plaintiffv. Sealed Defendant, 537 F.3d
185, 191-93(2d Cir. 2008)(noting when "[a] plaintiff proceeds pro

... a court is obliged to

construe his pleadings liberally")(alteration in original). If a liberal reading ofthe complaint

"gives any indication that a valid claim might be stated," the Court must grant leave to amend the
complaint." Cuoco v. Moritsugu,222 F.3d 99, 112(2d Cir. 2000); see also Ashmore v. Prus,
510 F. App'x 47,49(2d Cir. 2013)(summary order)("District courts should generally not

dismiss a pro se complaint without granting the plaintiff leave to amend."). At the pleadings

stage, the Court must assume the truth of"all well-pleaded, nonconclusory factual allegations in
the Complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124(2d Cir. 2010)(citing
Ashcroft V. Iqbal, 556 U.S. 662,677-79(2009)). The 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).

11.

Statute of Limitations

Plaintiffs allegations involve incidents that occurred between 2011 and 2016. The

statute of limitations for civil rights actions brought pursuant to 42 U.S.C. § 1983 in federal
courts in New York State is three years. See Owens v. Okure,488 U.S. 235, 249-51 (1989)

(discussing Wilson v. Garcia,471 U.S. 261 (1985), which held that courts deciding claims
under § 1983 should "borrow" the State statute oflimitations for personal injury actions); N.Y.
C.P.L.R. § 214(providing a three-year statute of limitations for personal injury actions,

including constitutional torts). The statute of limitations for most constitutional torts under New
York State law is three years, but claims for false imprisonment, including false arrest, must be

filed within a one-year period. See N.Y. C.P.L.R. § 214(most actions to recover damages for a

personal injury must be commenced within three years); N.Y. C.P.L.R. § 215( The following
actions shall be commenced within one year:... an action to recover damages for assault,

battery, false imprisonment, malicious prosecution, libel, slander,[or] false words causing
special damages."). Generally, a § 1983 claim accrues "when the plaintiff knows or has reason
to know ofthe harm" he or she has suffered. See Connolly v. McCall,254 F.3d 36,41 (2d Cir.
2001)(quoting Eagleston v. Guido,41 F.3d 865,871 (2d Cir. 1994)).
Plaintiff filed the instant lawsuit on May 18, 2017. Counting back three years from that

date. Plaintiffs claims would have had to accrue after May 18,2014 in order to be timely. All of
the allegations leading up to Plaintiffs arrest on November 8,2013 are thus outside ofthe statute
of limitations. Defendants Wilson, Trani, Vielot, Moore, Johnson, Richter, Oloruntoba and the

John Doe Police Officers involved in the November 8, 2013 arrest are alleged to have harmed

Plaintiff prior to or during that arrest, and are not alleged to have had any continuing
involvement in Plaintiffs case. Accordingly, the claims against these defendants are dismissed

as time-barred. See Milan v. Wertheimer^ 808 F.3d 961,963(2d Cir. 2015)(affirming sua

sponte dismissal of claims that fall outside ofthe statute of limitations for § 1983 actions).
III.

Supervisory Officials

As the Court previously explained to Plaintiff, a civil rights plaintiff seeking to recover

money damages under 42 U.S.C. § 1983 must establish the named defendants were personally
involved in the alleged wrongdoing or misconduct. Farrell v. Burke^ 449 F.3d 470,484(2d Cir.

2006)(citing Wright v. Smith, 21 F.3d 496,501 (2d Cir. 1994). "Because vicarious liability is
inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant,

through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at
676. Plaintiff names multiple top officials at ACS and asserts they were "responsible for making
and implementing policy for ACS." Compl. 8-15. Plaintiff has not alleged defendants

Jacqueline McKnight, Marie Philippeaux, Jan Flory, Gilbert A. Taylor, and Derrick Hinds took
any personal action in the alleged violation of Plaintiffs constitutional rights. The vague and
conclusory assertion they were "responsible for making and implementing policy, unsupported
by any factual allegations, is insufficient to establish personal involvement in the alleged
violation of Plaintiffs constitutional rights. As Plaintiff fails to adequately allege the personal
involvement of these defendants, the claims against them are dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).
IV.

Sovereign Immunity

Plaintiff names the State of New York as a defendant, but her only allegation against the

State is that State policies set compensation rates for court-appointed attorneys. The Eleventh
Amendment bars suits for damages against states, state agencies, and state officials acting in

their official capacity, absent the state's consent to suit or an express or statutory waiver of

immunity. See Pennhurst State Sch. & Hasp. v. Halderman,465 U.S. 89, 100(1984); Bd ofTrs.

ofUniv, ofAla. v. Garrett, 531 U.S. 356, 363(2001); Will v. Mich. Dep't ofState Police, 491
U.S. 58,71 (1989). Plaintiff has not identified any waiver of sovereign immunity that would

permit her to bring suit against the State of New York for how it administers its assigned counsel
program. Accordingly, New York State is dismissed as a defendant pursuant to 28 U.S.C. §
1915(e)(2)(B)(iii).
CONCLUSION

For the foregoing reasons. Plaintiffs claims against defendants Wilson, Irani, Vielot,
Moore, Johnson, Richter, Oloruntoba, McKnight, Philippeaux, Flory, Taylor, Hinds,the John
Doe Police Officers, and New York State are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

Plaintiffs claims against defendants Sari, Watson, Witherspoon, Kyrkos, Piccione, and

the City of New York may proceed. The Clerk of Court is directed to issue summonses against
these defendants and to mail a copy of this Order to Plaintiff and the New York City Law

Department. The U. S. Marshals Service is directed to serve the summonses,the Second
Amended Complaint, and this Order on the remaining defendants without prepayment offees.
The Court refers this matter to Magistrate Judge Sanket J. Bulsara 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 informa pauperis status is denied for purpose of
an appeal. See Coppedge v. United States, 369 U.S. 438,444-45 (1962)
SO ORDEl

/s/ USDJ WILLIAM F. KUNTZ, II

/ifllAM F. K
United States District

Dated: Brooklyn, New York
April 23,2019