Sulaymu-Bey et al v. City of New York et al

Filing 52

MEMORANDUM AND ORDER. The defendants' motion for judgment on the pleadings is granted in part and denied in part in accordance with the reasons set forth in this opinion. The plaintiffs' motion for judgment on the pleadings is denied. Ordered by Judge Ann M. Donnelly on 3/29/2019. (Greene, Donna)

FILED
IN Cl ERK'S OFFICE

US DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT

^ f4AR

2019 ^

EASTERN DISTRICT OF NEW YORK
X

S. SHARPE SULAYMU-BEY,ALEISHA M.

BROOKLYN OFFICE

SULAYMU-BEY,
Plaintiffs,

-against-

MEMORANDUM & ORDER
17-cv-3563(AMD)
(SJB)

CITY OF NEW YORK; GLADYS CARRION,
individually and in her capacity as Commissioner
of ACS/NYCCS; SASHA DAWSON,individually and

in her capacity as employee of ACS/NYCCS; KATHY
ANN BEST,individually and in her capacity as employee
of ACS/NYCCS; LINDA CATO,individually and in
her capacity as employee of ACS/NYCCS;NIKIA
WILLIAMS,individually and in her capacity as employee
of ACS/NYCCS; MICHAELANGELO MEDINA;
DETECTIVE DAVID SMALL,OFFICER TERRY
RILEY, and SERGEANT CHARLES PIEFER,

individually and in their capacities as employees of New
York City Police Dept.; LUCIANA MICHEL,
individually and as physician; KINGS COUNTY
HOSPITAL; and HEALTH AND HOSPITALS
CORPORATION,
Defendants.
X

ANN M.DONNELLY,United States District Judge:

The pro se plaintiffs bring this § 1983 action against multiple defendants: City of New
York, Gladys Carrion, Sasha Dawson, Kathy Ann Best, Linda Cato, Nikia Williams,

Michaelangelo Medina, Detective David Small, Officer Terry Riley, Sergeant Charles Piefer,
Luciana Michel, Kings County Hospital, and Health and Hospitals Corporation. The plaintiffs

allege that the defendants violated their rights when the New York City Administration for
Children's Services("ACS")removed the plaintiffs children, and instituted Family Court
proceedings. The parties filed cross-motions for judgment on the pleadings. For the reasons

below,the plaintiffs' motion is denied, and the defendants' motion is granted in part and denied
in part.
BACKGROUND^

On April 25,2014, ACS removed the plaintiffs' four daughters from their parents'
custody without prior court authorization based on reports of neglect. Following proceedings in
New York Family Court, the plaintiffs regained custody ofthree ofthe children in October of
2014, and the youngest child was returned in January of2015.
1.

Medical Examination and Child Neglect Report

On April 24,2014, plaintiff Aleshia Sulaymu-Bey took her four daughters, N.A.S.B.,
M.S.S.B., A.S.S.B., and N.S.B.,to the pediatric division of Kings County Hospital for medical
check-ups. (ECF No. 32 ^ 32.) The check-ups included a follow-up appointment for the
plaintiffs' oldest daughter, N.A.S.B, who had fallen in a grocery store a couple of weeks earlier.
{Id. H 33.) Dr. Kisung Kim,a resident physician, examined the plaintiffs' youngest daughter,
N.S.B., who was about a year old at the time. {Id. ^ 35;see also ECF No. 35-11 at 3-4.) Dr.
Kim told Ms. Sula5miu-Bey that N.S.B. was healthy, a conclusion reflected in medical records he

prepared—^NSB was "healthy, developed, and nourished." (ECF No. 32136.) The attending

physician, defendant Dr. Luciana Michel, arrived shortly thereafter. {Id. K 37.) Dr. Michel did
not examine N.S.B., but asked Ms. Sulaymu-Bey whether she was giving N.S.B. the medicine
that had been prescribed for her; Ms. Sulaymu-Bey responded that she used "alternative

medicine," including herbs, because of her religious beliefs and citizenship in the "Moorish

'The facts are derived from the plaintiffs' complaint and the Family Court orders and hearing transcripts.
I take judicial notice ofthe transcripts not for the truth ofthe matters asserted at the hearings, but"to
establish the fact ofsuch litigation and confirm the contents ofthose hearings." Green ex rel T.C. v.
Mattingly, No. 07-CV-1790,2010 WL 3824119, at *1 (E.D.N.Y. Sept. 23, 2010)(intemal quotation
marks and citation omitted).

Nation." {Id.

5,37-38;see also ECF No. 35-11 at 3-4.) Dr. Michel thought that N.S.B. was

underweight; the doctor became "agitated" and yelled at Ms. Sulaymu-Bey.^ {Id.

38,40.)

She scheduled a follow-up appointment for six weeks later, but prescribed no treatment. {Id.
^ 40.) Ms. Sulaymu-Bey asked for a "second opinion" about N.S.B. {Id. ^ 40.) Dr. Michel also

concluded that the plaintiffs' oldest daughter, N.A.S.B., had a heart murmur.^ {Id. ^ 46.)"*
After Ms. Sulaymu-Bey and her children left the hospital. Dr. Michel filed a report with
the Statewide Central Register of Child Abuse and Maltreatment("SCR Report") about her

"failure to thrive" diagnosis ofN.S.B.^ {Id.
II.

48-49.)

ACS's Removal of the Children

The next day, defendants Nakia Williams, Linda Cato, and Kathy-Ann Best—employees

of ACS^("ACS defendants")—four New York Police Department officers—defendants Charles
Piefer, Michaelangelo Medina, David Small, and Terry Riley ("police defendants")—and two
other ACS employees went to the plaintiffs' house to investigate the allegations in the SCR

Report.' (ECF No. 321|1[ 53, 206.) The plaintiffs would not let them in the house. Ms.

' plaintiffs allege that Dr. Michel "coerced" Dr. Kim to alter his findings in order to further her
The
agenda. (ECF No. 32^41.)

^ The plaintiffs assert that the diagnosis was false. (ECF No. 32 ^ 46.)
At Dr. Michel's behest, Ms. Sulaymu-Bey also saw a social worker, who asked her a few questions and
gave her a business card. (ECF No.32145.)

^ Health care professionals are required by law to report... suspicions" that"a child is being abused or
neglected"to the SCR. Nicholson v. Williams^ 203 F. Supp. 2d 153, 166(E.D.N.Y. 2002)(citing N.Y.
Soc. Serv. Law §§ 413, 414.)

® ACS had previously been in contact with the plaintiffs regarding educational neglect petitions related to
their daughters' private school education. (ECF No.32^ 194.)

' "is responsible for investigating reports involving children in New York City." Nicholson^ 203 F.
ACS
Supp. 2d at 166. "When an ACS field office receives a report from SCR,an applications worker forwards
it to a supervisor," and the supervisor "assigns a Caseworker to investigate." Id. "ACS is responsible for
completing its investigations ofcomplaints referred by SCR within sixty days." Id.(citing N.Y. Soc. Serv.
Law §§ 424(6),424(7)). "A Child Protective Manager("CPM")oversees the Supervisor-Caseworker
team and approves major decisions such as removing a child or prosecuting a mother." Id. "When the
investigation is completed, ACS must determine whether there is 'credible evidence' to support the
allegations." Id.

Sulaymu-Bey told them that doctors saw N.S.B. the previous day and concluded that N.S.B. was
"developed, hydrated, active and nourished." {Id. 53.) Ms. Sulaymu-Bey slid the notice for
N.S.B.'s follow-up appointment under the door. {Id.) Eventually, one ofthe officers forced the
door open; they took N.S.B. from Ms. Sulaymu-Bey's arms, applying pressure to Ms. SulaymuBey's head and neck. {Id. 57.) They also took the other three children. {Id.) The defendants

did not have court authorization for the emergency removal, which they conducted pursuant to
§ 1024 ofthe Family Court Act. {Id. f 122.)
III.

Family Court Petitions and Hearings

Later that day, defendant Gladys Carrion, Commissioner of ACS,filed four Article 10

petitions in Kings County Family Court seeking orders that the plaintiffs' children were
"neglected;" Commissioner Carrion asserted that Ms. Sulaymu-Bey "fail[ed] to provide the

children ... with medical care," and "fail[ed] to provide the subject children... with proper
supervision or guardianship." (ECF Nos. 35-1, 35-2, 35-3, 35-4.) The petitions included Dr.
Michel's diagnosis about N.S.B., and her observation that Ms. Sulaymu-Bey did not have

"insight" into N.S.B.'s nutritional needs. {E.g.^ ECF No. 35-1 at 5.) The petitions asserted that
the other children had not had medical appointments at Kings County Hospital in about eight

months, and that N.A.S.B. had "a heart murmur, which [Ms. Sulaymu-Bey] denied." {E.g., id. at
6.) In addition, the petitions included allegations that the plaintiffs' home was "in a cluttered and
unsanitary state." {Id.) The petitions noted that the Police Department had requested "an
immediate psychiatric evaluation" of Ms. Sulaymu-Bey as a result of her "behavior and

presentation." {Id.)

On the same day. Family Court Judge Robert Mulroy held an ex parte hearing.^ (ECF
No. 32.fl 49,101.) Judge Mulroy granted the Article 10 petitions; he ordered the temporary
removal ofthe children, which he deemed "necessary to avoid imminent risk to [the] child[ren']s
life or health," based on his determination that Ms. Sulaymu-Bey failed to provide the children

with adequate medical care, that the plaintiffs' home was "cluttered and unsanitary," and that
Ms. Sulaymu-Bey was "being investigated for possible emergency psych eval," and he ordered
that the children be placed in the custody ofthe Commissioner of ACS. (ECF No. 35-6.) Judge

Mulroy set a date for a permanency hearing on April 29,2014. (ECF No. 35-5 at 7.)
The plaintiffs contacted defendant Sasha Dawson,an ACS employee, who told them

about the upcoming hearing on April 29th. (ECF No. 32

62-63.) The plaintiffs appeared at

the April 29th hearing, which Judge Mulroy adjourned to the next day to hear the plaintiffs'
application pursuant to § 1028 ofthe Family Court Act for the return oftheir children. (ECF No.
35-7 at 21.) The plaintiffs argued that as Moorish-Americans, they were not subject to the
jurisdiction ofthe Family Court. {Id. at 15.)

After a series of motions and another hearing, Family Court Judge Daniel Turbow held a
trial on August 27, September 3, September 10, September 29, and October 10,2014. (ECF

Nos. 35-9, 35-10, 35-11, 35-12, 35-13.) Six witnesses testified for ACS—^Dr. Michel, Dr. Kim,
Kathy Ann Best, Nikia Williams, Linda Cato, and Z. Najam. (ECF No. 35-9 at 2; ECF No. 3511 at 2.) Ms. Sulaymu-Bey testified on her own behalf. (ECF No. 35-9 at 2.)
Dr. Michel testified that she reviewed Dr. Kim's examination and discussed her concerns

about N.S.B.'s weight with Ms. Sulaymu-Bey. (ECF No. 35-9 at 3,10-11.) She diagnosed
N.S.B. with "failure to thrive" because N.S.B.'s weight had dropped from the 94th percentile at

^ The plaintiffs were not given notice ofthe hearing. {See ECF No.32f 61.)
5

birth to about the 14th percentile at the April 24th examination, which Dr. Michel attributed to

"inadequate caloric intake." (ECF No. 35-9 at 5-6,10.) Dr. Michel further testified that she filed
the SCR report because of her diagnosis offailure to thrive, Ms. Sulaymu-Bey's lack ofinsight

into N.S.B.'s condition, and Ms. Sulaymu-Bey's failure to take N.S.B. to medical appointments.
(ECF No. 35-11 at 8.)
Judge Turbow asked Dr. Michel about Dr. Kim's medical note that N.S.B. was

"nourished and developed." (ECF No. 35-11 at 5.) Dr. Michel explained that it may not be

possible to identify "failure to thrive" due to weight loss on a mere physical observation. (Id.)
Defendants Williams and Cato testified that they went to the plaintiffs' home on April
25,2014,to investigate the SCR Report and conduct a home visit. (ECF No. 35-9 at 16.) Ms.
Sulaymu-Bey refused to let them in. {Id. at 21.) They called the police for "security and
support." {Id. at 21.) When Ms. Sulaymu-Bey opened the door to her home after two and a half

hours, Williams observed that N.S.B., the plaintiffs' youngest daughter, seemed "very pale" and
"very small." {Id. at 18-19.) Defendant Cato did not think that N.S.B. could "stand up on her
own" or "even sit on her own." {Id. at 25.)

On October 10,2014, Judge Turbow dismissed the Article 10 petitions for the three
oldest children "due to the agency's failure to prove neglect." (ECF No. 35-15.) Judge Turbow

found by a preponderance ofthe evidence that Ms. Sulaymu-Bey neglected N.S.B."by reason of
acts that caused the child to suffer from failure to thrive," and ordered that N.S.B. not be returned

to the plaintiffs. (ECF No. 35-14 at 2.)
On January 13, 2015, Judge Turbow ordered that N.S.B. be released to Mr. Sulaymu-

Bey's custody under ACS supervision for one year with certain conditions. (ECF No. 35-16 at
2.)

LEGAL STANDARDS

A Rule 12(c) motion forjudgment on the pleadings applies the same standard as a motion
to dismiss imder Rule 12(b)(6). Bank ofNew York v. First Millennium, Inc.,607 F.3d 905,922

(2d Cir. 2010). In deciding the motion forjudgment on the pleadings, the court must "accept all
factual allegations in the complaint as true and draw all reasonable inferences in [plaintiffs']
favor." Hayden v. Paterson, 594 F.3d 150, 160(2d Cir. 2010)(alteration in original).
Submissions filed by a pro se litigant are to be "liberally construed," and a pro se plaintiffs

complaint,"however inartfully pleaded, 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). Nevertheless, even a pro se complaint must plead sufficient facts to

"state a claim to relief that is plausible on its face." Mcmcuso v. Hynes,379 Fed. Appx.60,61
(2d Cir. 2010){(\\xoX\ng Ashcroft v. Iqbal, 556 U.S. 662,678(2009));see also Harris v. Mills,
572 F.3d 66,72(2d Cir. 2009)(applying Iqbal and Twombly to a pro se complaint). The court
will dismiss the complaint if the plaintiff fails to plead "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.

The reviewing court "is not limited to the four comers ofthe complaint," and may also
consider "documents attached to the complaint as an exhibit or incorporated in it by
reference, matters of which judicial notice may be taken, or documents either in plaintiffs'

possession or of which plaintiffs had knowledge and relied on in bringing suit." Villanueva v.
City ofNew York, No. 08-CV-8793, 2010 WL 1654162, at *5(S.D.N.Y. Apr. 14,2010)(intemal
quotation marks and alterations omitted); see also Taylor v. Vt. Dep't ofEduc.,313 F.3d 768,
776(2d Cir. 2002). Thus,I consider the Family Court orders and the hearing transcripts attached

to the parties' briefs in deciding this motion. Villanueva, 2010 WL 1654162, at *5. I take
judicial notice ofthe transcripts "not for the truth ofthe matters asserted in those proceedings,
but rather to establish the fact ofsuch litigation and confirm the contents ofthose hearings."

Green,2010 WL 3824119, at *1 (internal quotation marks and citation omitted).
DISCUSSION

I.

Defendants' Motion for Judgment on the Pleadings^
A.

Due Process Claims(Fourteenth Amendment)*^

The Second Circuit has observed that "parents have a constitutionally protected liberty

interest in the care, custody and management oftheir children." Southerland v. City ofNew
York,680 F.3d 127,142(2d Cir. 2012)(internal quotation marks and alterations omitted)(citing
Tenenbaum v. Williams, 193 F.3d 581,593(2d Cir. 1999; Troxel v. Granville,530 U.S. 57,65-

66(2000)). Therefore, the state's removal of a child may give rise to substantive and procedural
due process claims. See Southerland,680 F.3d at 142. In this context,"a procedural due process

claim challenges the procedure by which a removal is effected,[while] a substantive due process
claim challenges the fact ofthe removal itself." See id. (internal quotation marks and alterations
omitted.)

^ To the extent the plaintiffs raise any claims on behalf oftheir children, those claims are dismissed. The
plaintiffs, who are proceeding pro se, can only bring claims on their own behalf. Cheung v. Youth
Orchestra Found, ofBuffalo, Inc.,906 F.2d 59,61 (2d Cir. 1990)("[A] non-attomey parent must be
represented by counsel in bringing an action on behalf of his or her child."). In addition, the plaintiffs did
not assert any false arrest claims on their children's behalf, so I do not address the defendant's argument
in this regard. {See ECF No. 228-30.) The defendants did not move to dismiss the false arrest claims
that the plaintiffs asserted on their own behalf.
The plaintiffs' Fifth and Ninth Amendment due process claims must be dismissed because "the Fifth
Amendment pertains only to the federal govemment,"Park v. City ofNew York,No.99-CV-2981,2003
WL 133232, at *7(S.D.N.Y. Jan. 16,2003), and "the Ninth Amendment does not independently confer
any constitutional rights that may support a § 1983 claim." Sevilla v. Perez, No. 15-CV-3528,2016 WL
5372792, at *10(E.D.N.Y, Sept, 26,2016);see also People Unitedfor Children, Inc. v. City ofNew York,
108 F. Supp. 2d 275,300(S.D.N.Y. 2000)(Ninth Amendment"claim does not create a basis for recovery
independent of plaintiffs' other claims because 'the Ninth Amendment does not confer substantive rights
in addition to those conferred by other provisions ofour governing law.'").
8

1.

Procedural Due Process

The plaintiffs allege that their procedural due process rights were violated when the ACS

and police defendants removed their children without prior court authorization and when the
ACS defendants did not give them notice ofthe April 25th Article 10 hearing. (ECF No. 32

UK 126, 128,133-35.) The defendants respond that the children were at risk ofimminent harm
based on the SCR Report, Ms. Sulaymu-Bey's refusal to admit the ACS defendants, and N.S.B.'s

condition—^that she was "very small" and "very pale," and could not stand or sit on her own.^'
(ECF No. 36 at 19-20.) Thus,they argue, there was no violation ofthe plaintiffs' rights.
"[B]efore parents may be deprived ofthe care, custody, or management oftheir 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)(internal quotation marks omitted). However,"a child may be taken into custody by a
responsible State official without court authorization or parental consent" in "emergency

circumstances." Tenenbaum v. Williams^ 193 F.3d 581,594(2d Cir. 1999). In emergency
removal cases,"parents must be provided with a prompt post-deprivation hearing." Hollenbeck
V. Boivert, 330 F. Supp. 2d 324, 332(S.D.N.Y. 2004)(quoting Tenenbaum, 193 F.3d at 594). "If

the danger to the child is not so imminent that there is reasonably sufficient time to seek prior
judicial authorization, exparte or otherwise, for the child's removal,then the circumstances are
not emergent." Southerland,680 F.3d at 149(quoting Nicholson, 344 F.3d at 171). "[RJemoval

without a court order under § 1024[ofthe Family Court Act] is only available in the most
exigent ofcircumstances." Villanueva, 2010 WL 1654162, at *1.

"At this stage in the proceeding, 1 do not consider defendant Williams' Family Court testimony about
her observations ofN.S.B. for its truth. See supra at 6-7.

"To show that emergency circumstances existed, the government must offer objectively
reasonable evidence that harm was imminent." Southerland,680 F.3d at 149 (internal quotation

marks and alterations omitted.) Although the Second Circuit "has not attempted to set forth

exhaustively the types offactual circumstances that constitute imminent danger justifying
emergency removal," it has "concluded that these circumstances include ...the risk that children
will be left bereft of care and supervision, and immediate threats to the safety ofthe child." Id.

(internal quotation marks and alterations omitted).
a. ACS's Removal of the Children

The plaintiffs state a procedural due process claim with respect to ACS's removal oftheir
children. It is undisputed that the children were removed without prior court authorization or
parental consent. At this stage in the proceeding, the plaintiffs' allegation—^that there was no
emergency that warranted the children's removal without a court order—is sufficient. The

complaint alleges that while Dr. Michel told Ms. Sulaymu-Bey that N.S.B. was underweight, she
did not prescribe any treatment, and scheduled a follow-up examination six weeks later. After
Dr. Michel filed an SCR report,the ACS defendants and police defendants went to the plaintiffs'

home the next day. Although the plaintiffs initially refused to open the door, Ms. Sulaymu-Bey
told the defendants that her children had just seen the doctor, and were scheduled for a follow-up
appointment in six weeks. Under these circumstances, and at this early stage ofthe proceedings,
the plaintiffs state a claim that the children were not in imminent danger, and there was

"reasonably sufficient time to seek prior judicial authorization." See Southerland,680 F.3d at
149(quoting Nicholson, 344 F.3d at 171). Thus,the plaintiffs sufficiently state a claim for
procedural due process.

10

b. Notice of April 25,2014 Hearing
The plaintiffs fail to state a procedural due process claim with respect to defendants'

failure to give them notice ofthe April 25th Article 10 hearing. The Second Circuit "has held
that court orders oftemporary removal may constitutionally be sought ''ex parte or otherwise,'

and as a result, did 'not hold, expressly or implicitly...that notice to parent or guardian is
constitutionally required." Villanueva, 2010 WL 1654162, at *8 (alteration in original)(quoting

Tenenbaum^ 193 F.3d at 594 n. 10.) Thus,the defendants' failure to provide the plaintiffs with
notice ofthe April 25th hearing did not violate the plaintiffs' procedural due process rights.
2.

Substantive Due Process

The plaintiffs assert substantive due process claims based on the removal oftheir children

without prior court authorization and the failure to give them notice ofthe April 25th Family
Court hearing. {See ECF No.32

119-49.)

Parents and children have "a substantive right under the Due Process Clause to remain
together without the coercive interference ofthe awesome power ofthe state." Tenenbaum, 193
F.3d at 600(internal quotation marks omitted). To state a substantive due process claim, the

plaintiffs must plausibly allege that the removal oftheir children "would have been prohibited by
the Constitution even had the parents been given all the procedural protections to which they
were entitled." Southerland,680 F.3d at 142(internal quotation marks and alterations omitted).
That burden is met where the facts show that "the state action was 'so egregious, so outrageous,

that it may fairly be said to shock the contemporary conscience.'" Id. at 151 (quoting Okin v.
Vill ofCornwall-On-Hudson Police Dep't, 577 F.3d 415,431 (2d Cir. 2009)).

The plaintiffs also assert a procedural due process claim against defendant City ofNew York for failing
to initiate a hearing within four days oftheir children's removal, but the Family Court, not the defendant,
set the permanency hearing date. {See ECF No.32 ^ 139; ECF No. 35-5 at 7.)
11

Brief removals of a child "generally do not rise to the level ofa substantive due process
violation, at least where the purpose ofthe removal is to keep the child safe during investigation
and court confirmation ofthe basis for removal.'" Southerland,680 F.3d at 153(quoting

Nicholson^ 344 F.3d at 172). Once such "court confirmation ofthe basis for removal is
obtained, any liability for the continuation ofthe allegedly wrongful separation of parent and
child can no longer be attributed to the officer who removed the child." Id. (internal quotation
marks and citation omitted).
a. ACS's Removal of the Children

The plaintiffs fail to state a substantive due process claim with respect to their children's
removal. After the plaintiffs' children were removed on April 25,2014,the Family Court held a
hearing the same day and confirmed the basis ofremoval. Thus,the plaintiffs' claim for a
substantive due process violation for their children's removal must fail. See, e.g., Schweitzer v.
Crofton, 935 F. Supp.2d 527,549(E.D.N.Y. 2013)(no substantive due process violation where
defendants filed neglect petition three days after removal, and post-removal judicial hearing was
held three days later); E.D. ex rel. V.D. v. Tuffarelli, 692 F.Supp.2d 347, 368(S.D.N.Y. 2010)
(no substantive due process violation where judicial proceedings began Monday after children
were removed Friday evening).

h. Notice of April 25,2014 Hearing
The plaintiffs' substantive due process claim about the lack of notice fails for the same

reason that their procedural due process claim failed.

12

B.

Search and Seizure and Invasion of Privacy Claims(Fourth Amendment and
New York Constitution Article 1,Section 12)

The plaintiffs claim that the defendants violated the Fourth Amendment by entering and

searching their home.'^ (ECF No. 32

150-54.)

"The Fourth Amendment applies in the context ofthe seizure ofa child by a government-

agency official during a civil child-abuse or maltreatment investigation." Nicholson, 344 F.3d at
172(internal quotation marks and alterations omitted). In the Fourth Amendment context,"a
warrantless arrest can usually be justified by the existence of probable cause to arrest arising at

the time of the arresting officer's action." Id. However,"ifNew York law does not authorize
the removals the plaintiffs complain of, there can be no probable cause to carry out the removal."
Id. at 176. "The test is similar to the procedural due process standard." Shapiro v. Kronfeld, No.
OO-CV-6286,2004 WL 2698889, at *17(S.D.N.Y. Nov. 24,2004).

Because the plaintiffs sufficiently state a procedural due process claim, including that

emergency circumstances did not exist for the defendants to remove their children, the plaintiffs
sufficiently allege that there was no probable cause to justify defendants' entry and search ofthe

plaintiffs' house without prior court authorization. See Nicholson, 344 F.3d at 172, 176. Thus,
at this stage,the plaintiffs sufficiently state a Fourth Amendment claim.

The plaintiffs also assert a Fourth Amendment claim on their children's behalffor their removal
without a warrant or court order. However, as discussed above,the pro se plaintiffs may not assert claims
on their children's behalf. See infra at 8 n.9 (citing Cheung,906 F.2d at 61). In addition, any Fourth

Amendment claim arising from the removal ofthe children is dismissed because "[a] Fourth Amendment
child-seizure claim belongs only to the child, not to the parent...." Southerland,680 F.3d at 143.
Because the plaintiffs state a claim under the Fourth Amendment,the plaintiffs' claim for the same
conduct under the New York Constitution is dismissed. Allen v. Antal,665 F. App'x 9, 13(2d Cir. 2016)
(affirming district court's dismissal of New York state constitutional claims "[bjecause altemative
remedies were available under § 1983"). In any case, the plaintiffs' New York state law claims are barred
by the applicable statute of limitations. See infra at 22; N.Y. Gen. Mun. Law § 50-i(c).
13

C.

Slavery,Peonage,and Trafficking Claims

The plaintiffs claim that the defendants violated the Thirteenth Amendment by
unlawfully removing their children, (EOF No. 32

212-21.) They allege that defendant City of

New York employs a policy and custom ofremoval targeting families it "perceives as black or
latino." (EOF No.32

215-21.)

The Thirteenth Amendment provides that "[njeither slavery nor involuntary servitude,

except as a punishment for crime whereofthe party shall have been duly convicted, shall exist
within the United States, or any place subject to their jurisdiction." U.S. Const, amend. XIII, § 1.
To state a claim under the Thirteenth Amendment, plaintiffs must demonstrate that they have

been subjected to "compulsory labor akin to African slavery which in practical operation would
tend to produce like undesirable results." Ford v. Nassau Cty. Exec., 41 F. Supp. 2d 392,400-01

(E.D.N.Y. 1999)(internal quotation marks omitted). "Under 18 U.S.C,§ 1595,an individual
who is the victim of peonage, enticement into slavery, or forced labor 'may bring a civil action

against the perpetrator....'" Stein v. World-Wide Plumbing Supply Inc., 71 F. Supp. 3d 320,
327(E.D.N.Y. 2014)(quoting 18 U.S.C. § 1595(a)).

The plaintiffs fail to state a claim under the Thirteenth Amendment and § 1595 because
they do not allege that they were subjected to slavery,involuntary servitude, or any type of
compulsory labor. The plaintiffs do not allege that the defendants required them or their children

to perform any work.^^ The defendants' actions at issue in this case—^filing an SCR report and
removing the children—^are not actionable under the Thirteenth Amendment or § 1595.

As discussed above, any claims asserted by the pro se plaintiffs on their children's behalf are dismissed.
See infra at 8 n.9(citing Cheung,906 F.2d at 61).
14

D.

Retaliation and Religious Exercise Claims (First Amendment,RFRA,

RLUIPA)i6
1.

Retaliation

The plaintiffs claim that the defendants removed their children in retaliation for their

complaints about ACS's policies, and their statements about their nationality and religion. (EOF
No. 321189-95.)

In order to establish a First Amendment retaliation claim, the plaintiffs must plausibly
allege that(1)the speech or conduct was protected by the First Amendment,and(2)the
defendants took an adverse action against them that had a causal connection to the protected

speech. Mortimer v. City ofNew York, No. 15-CV-7186,2018 WL 1605982, at *24(S.D.N.Y.
Mar. 29, 2018). If plaintiffs make a prima facie showing of retaliatory harm,"the burden shifts
to the defendant official to demonstrate that even without the impetus to retaliate he would have

taken the action complained of...." Graham v. City ofNew York, 869 F. Supp. 2d 337,352
(E.D.N.Y. 2012)(quoting Hartman v. Moore,547 U.S. 250,260(2006)).

Accepting the plaintiffs' allegations as true and drawing all reasonable inferences in their
favor, as I must, I find that the plaintiffs have sufficiently stated a First Amendment retaliation

claim. The plaintiffs allege that they sent letters to defendants City ofNew York, Kathy Ann
Best, and Gladys Carrion in which they complained about ACS's policies regarding educational

neglect petitions, and "detailed] the rights and national standing," presumably a reference to the

plaintiffs' religious beliefs. The plaintiffs allege that ACS's decision to remove their children
was connected to their protected expression oftheir views. At this early stage, the plaintiffs have
sufficiently pled a First Amendment retaliation claim.

The plaintiffs' RFRA claim is dismissed because they do not allege any federal government action.
Tanvir v. Tanzin, 915 F.3d 898,901 (2d Cir. 2019)
("RFRA applies to the federal government")
15

2.

Free Exercise Clause*''

The plaintiffs appear to claim that the defendants violated their right to free exercise of
religion under the First Amendment. {See ECF No. 32 ^ 187, 196,247-51.)

The First Amendment's Free Exercise Clause "prohibits the government from enacting a
law or regulation that discriminates against religious beliefs or regulates conduct because it is

undertaken for religious reasons." People Unitedfor Children, Inc. v. City ofNew York, 108 F.

Supp. 2d 275, 298(S.D.N.Y. 2000)(citing Church ofthe Lukumi BabaluAye, Inc. v. City of
Hialeah, 508 U.S. 520(1993)). A law or regulation is invalid if it facially targets religion unless

"it is justified by a compelling governmental interest and is narrowly t£iilored to advance that

interest." Id. However,a neutral law or regulation of general applicability "is constitutional
even if it has an incidental effect on religion." Id. (citing Employment Div., Dep't ofHuman

Resources ofOregon v. Smith, 494 U.S. 872(1990)). Even so,the Free Exercise Clause
'"forbids subtle departures from neutrality,' and 'covert suppression of particular religious

beliefs.'" Id. (quoting Hialeah, 508 U.S. at 534). In order to state a Free Exercise Clause claim,
the plaintiffs must show that "their religious beliefs are sincerely held, that the [cjhallenged

[IJaws burden Plaintiffs' religious practice, and that the [cjhallenged [l]aws were enacted to
infnnge upon or restrict religious practices because oftheir religious motivation." Congregation
Rabbinical Coll. ofTartikov, Inc. v. Vill. ofPomona, NY,280 F. Supp. 3d 426,484(S.D.N.Y.
2017).

The plaintiffs fail to state a claim under the Free Exercise Clause. The plaintiffs allege
no facts to support their claim that the legislature enacted the Family Court Act to infnnge upon

To the extent the plaintiffs bring their free exercise claim under Article 1, Section 3 ofthe New York
Constitution, the claim is barred by the relevant statute of limitations. See infra at 22; N.Y. Gen. Mun.
Law § 50-i(c).
16

or restrict religious practices. The plaintiffs allege that defendants' actions burdened their
religious practice, but that is not sufficient to state a Free Exercise Clause claim.
3.

Religious Land Use and Institutionalized Persons Act(RLUIFA)

The plaintiffs similarly fail to state an RLUIFA claim. RLUIFA prohibits the
government from imposing a "substantial burden on the religious exercise of a person residing in
or confined to an institution ...." See 42 U.S.C. § 2000cc(a). The plaintiffs do not allege any

facts showing that they were confined in an institution. Thus,the plaintiffs do not allege

sufficient facts to support their claim that their religious exercise was substantially burdened
while they were confined to an institution, so the RLUIFA claim is dismissed.
E.

Conspiracy Claims

The plaintiffs claim that defendants Cato, Best, Williams, Dawson,and Dr. Michel

conspired to remove their children unlawfully, to deprive the plaintiffs ofthe opportunity to
appear in Family Court, and to lie to the Family Courtjudge about the timing ofthe police
officers' arrival at the plaintiffs' home and whether the plaintiffs could get a second medical
opinion on the health oftheir oldest and youngest daughters. (ECF No. 32 Uf 254-55;see also
ECFNo.321111197-204.)

To state a § 1983 conspiracy claim, a plaintiff must allege facts showing (i) an agreement
between two or more state actors or between a state actor and a private entity (ii) to act in concert
to inflict an unconstitutional injury, and (iii) an overt act done in furtherance ofthat goal causing
damages. See Ciambriello v. County ofNassau^ 292 F.3d 307,324-25(2d Cir. 2002).

Conspiracy claims are "so easily made and can precipitate such protracted proceedings with such
disruption ofgovernmental functions" that detailed fact pleading is required. Bender v. City of
New York, No.09-CV-3286,2011 WL 4344203, at *1 (S.D.N.Y. Sept. 14,2011)(quoting

Angola V. Civiletti, 666 F.2d 1,4(2d Cir. 1981)). "[AJssertions lack[ing] any factual
17

foundation ... are merely conclusory allegations" and are insufficient to state a claim. Jackson
V. County ofRockland,450 F. App'x 15,19(2d Cir. 2011)(summary order).
To state a § 1985(3) conspiracy claim, a plaintiff must allege "(1)a conspiracy(2)for the
purpose of depriving a person or class of persons ofthe equal protection ofthe laws, or the equal
privileges and immunities under the laws;(3)an overt act in furtherance ofthe conspiracy; and
(4)an injury to the plaintiffs person or property, or a deprivation of a right or privilege of a
citizen ofthe United States." Porter v. City ofNew York, et al. No.03-CV-6463,2004 WL
7332338, at *5(E.D.N.Y. Mar. 15, 2004)(quoting Thomas v. Roach, 165 F.3d 137,146(2d Cir.

1999)). For the conspiracy element, plaintiffs "must provide some factual basis supporting a
meeting ofthe minds, such as that defendants entered into an agreement, express or tacit, to
achieve the unlawful end." Id. (internal quotation marks and citations omitted). A § 1985

conspiracy claim also requires that plaintiffs allege "some racial or perhaps otherwise classbased, invidious discriminatory animus behind the conspirators' action." Palmieri v. Lynch,392
F.3d 73,86(2d Cir. 2004)(quoting Thomas, 165 F.3d at 146); see also Cine SK8, Inc. v. Town of
Henrietta, 507 F.3d 778, 791 (2d Cir. 2007). "A complaint containing only conclusory, vague,

or general allegations of conspiracy to deprive a person ofconstitutional rights must be
dismissed." Porter,2004 WL 7332338, at *5 (internal quotation marks omitted).

The plaintiffs' conspiracy claims fail because they do not allege detailed facts or provide
any factual basis that the defendants agreed to deprive the plaintiffs oftheir rights or to commit
an unconstitutional injury. The plaintiffs allege only that the defendants "conspired by concerted
action" to take the actions they did. That conclusory allegation is not sufficient to state a § 1983
or § 1985 conspiracy claim.

18

F.

Municipal Liability (Monell)^^
9

1.

Custom or Policy

The plaintiffs allege that defendant City ofNew York is liable for § 1983 violations
because of its customs and policies, including a custom ofignoring exculpatory evidence in its
investigations and prosecutions, and a policy and practice of using "boilerplate forms as [a] basis
for seizure and prosecution of Plaintiffs," allowing ACS employees to substitute theirjudgment
for doctors' opinions, and failing to give notice of Family Court hearings. (ECF No.32

123,

126,131,235.)

To establish municipal liability for a § 1983 claim,"a plaintiff must demonstrate both an
injury to a constitutionally protected right and that the injury was caused by a policy or custom
ofthe municipality or by a municipal official responsible for establishing final policy." Hartline
V. Gallo, 546 F.3d 95, 103(2d Cir. 2008)(internal quotation marks omitted).

The plaintiffs do not allege sufficient facts about an official policy or custom. Rather,

they make conclusory allegations about the defendant City of New York's "custom" and "policy
and practice;""[cjonclusory allegations ofthis type do not provide a basis for municipal liability
under Mowe//." Mortimer, 2018 WL 1605982, at *28. The plaintiffs' Monell claim is also

premised primarily on the violation oftheir own rights in this case, which is insufficient to state a
claim for municipal liability. See DeCarlo v. Fry, 141 F.3d 56,61 (2d Cir. 1998)("[A] single

Defendant Kings County Hospital is dismissed from this suit because it is not a suable entity. See
Ingrassia v. Health & Hasp. Corp., 130 F. Supp. 3d 709,716(E.D.N.Y. 2015)(dismissing Elmhurst
Hospital, an operating division of Health and Hospitals Corporation, because it "is not a suable entity");
Walton V. Rubel, No. 16-CV-1989,2018 WL 3369664, at *2(E.D.N.Y. July 10,2018)("Kings County

Hospital is operated by the Health and Hospitals Corporation ofthe City of New York.") Under the New
York City Charter, actions must be brought in the name ofthe City of New York unless "otherwise
provided by law." N.Y. City Charter Ch. 17,§ 396. Although Health and Hospitals Corporation has the
capacity to be sued by statute. Kings County Hospital does not. Cf. Ayala v. Bellevue Hosp.,No.94-CV1551, 1999 WL 637235, at *3(S.D.N.Y. Aug.20, 1999)(citing N.Y. Unconsol. Laws § 7385(1)
(McKinney 1979)).
19

incident alleged in a complaint, especially if it involved only actors below the policy-making
level, does not suffice to show a municipal policy."); Anderson v. City ofNew York,657 F. Supp.
1571,1574(S.D.N.Y. 1987)("Plaintiffcannot infer a policy from the alleged violation of his

own civil rights.").'^
2.

Failure to Train or Supervise

The plaintiffs allege that defendant City ofNew York failed to train or supervise its
employees on "on constitutional procedural and substantive protections and rights under the

constitution," and on the "lawful use of past information later found to be unsubstantiated in a
manner that safeguards the rights of plaintiffs." (ECF No.32 H 235;see also EOF No. 32 H 160.)
"To state a claim for municipal liability on a failure to train theory, a plaintiff must allege
an underlying constitutional violation that was occasioned by a municipality's failure to train its
employees and,further, that the failure to train amounted to deliberate indifference." Mortimer,
2018 WL 1605982, at *29. Deliberate indifference is established where

[i] a policymaker knows to a moral certainty that city employees will confront a
particular situation; [ii] the situation either presents the employee with a difficult choice
ofthe sort that training or supervision will make less difficult or there is a history of
employees mishandling the situation; and [iii] the wrong choice by the city employee will
frequently cause the deprivation ofa citizen's constitutional rights.
Id. at 195-96. Plaintiffs must establish "[a] pattern ofsimilar constitutional violations by

untrained employees...to demonstrate deliberate indifference for purposes offailure to
train." Connick v. Thompson,563 U.S. 51,62(2011). "A municipality's culpability for a
deprivation ofrights is at its most tenuous where a claim turns on a failure to train." Id. at 61.

The plaintiffs attach to their complaint an article about a case in which the New York Supreme Court
reversed a Family Court order granting ACS's neglect petition for the infant child ofa 19-year-old
mother; ACS relied on past reports ofthe mother's arguments with her mother and grandmother. (ECF
No.32 at 48.) It does not appear that the case had anything to do with the defendants' alleged policies
and practices, or that the case is similar to this case.
20

The plaintiffs' allegations that defendant City of New York failed to train or supervise its
employees are completely conclusory, and thus are not sufficient to support a claim for
municipal liability. Moreover,the plaintiffs' Monell claim is premised primarily on the one
incident at the heart ofthis case, which does not give rise to municipal liability for failure to

train. Mortimer, 2018 WL 1605982, at *29("A single violation does not give rise to municipal
liability for failure to train.").

G.

Defendants Gladys Carrion and Sasha Dawson

"It is well settled in this Circuit that 'personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award ofdamages under § 1983.'" Colon v.

Coughlin,58 F.Sd 865,873(2d Cir. 1995)(quoting Wright v. Smith,21 F.3d 496,501 (2d Cir.
1994)); see also Richardson v. Goord,347 F.3d 431,435(2d Cir. 2003)("Supervisor liability in
a § 1983 action depends on a showing ofsome personal responsibility, and cannot rest on

respondeat superior^(internal quotation marks and alterations omitted)).
I agree with defendants Carrion and Dawson that the plaintiffs do not allege sufficient

facts to state a constitutional violation claim against either defendant. The plaintiffs allege that
defendant Carrion received correspondence from the plaintiffs and did not answer, and that
defendant Dawson told the plaintiffs when the post-deprivation Family Court hearing would be,

and spoke with the defendant police officers when the children were removed. These allegations
are not sufficient to subject defendants Carrion and Dawson to § 1983 liability, and the case
against them is dismissed.
H.

State Law and "Medical Fraud'' Claims

The plaintiffs claim that the defendants violated a number of New York state laws,
asserting claims for negligent hiring and retention, negligence per se, tortious interference with
birthright, and negligent infliction ofemotional distress. (ECF No. 32
21

236-38, 240-46, 268-

72,280-90.) The plaintiffs also claim that Dr. Michel engaged in "medical fraud" during her
medical examination of B.A.S., which I construe as a claim for either common law fraud or

medical malpractice under New York state law. (ECF No.32

273-79.)

The plaintiffs' New York state law claims are barred by the statute of limitations.

Felmine v. City ofNew York, No.09-CV-3768,2011 WL 4543268, at *24(E.D.N.Y. Sept. 29,
2011)("In New York,the statute of limitations for tort actions against the city or its employees is
one year and ninety days."(citing N.Y. Gen. Mun. L.§ 50-i, k)). The plaintifffiled the
complaint on April 21, 2017,three years after Dr. Michel's medical examination and ACS's

removal ofthe children. Thus,the plaintiffs' state law claims against the defendants, who
include the City of New York and its employees, are untimely.
I.

Qualified Immunity

The individual defendants assert that they are entitled to qualified immunity. (ECF No.

36 at 32-34.) "A government actor performing a discretionary task is entitled to immunity from
§ 1983 suits if either(a)the defendant's action did not violate clearly established law, or(b)it

was objectively reasonable for the defendant to believe that his action did not violate such
law." Hollenbeck, 330 F. Supp. 2d at 334(quoting Johnson v. Newburgh Enlarged School
District, 239 F.3d 246,250(2d Cir. 2001)).

A determination on the question of qualified immunity at this stage in the proceeding is
premature. Hollenbeck, 330 F. Supp. 2d at 335(S.D.N.Y. 2004)(noting defendants' concession
that "it is an unusual case where the question of qualified immunity can be resolved on a motion
to dismiss"). Accordingly, the defendants' motion forjudgment on the pleadings on the basis of
qualified immunity is denied without prejudice.

22

J.

Rooker/Feldman Doctrine

The defendants argue that the Rooker/Feldman doctrine precludes the Court from hearing

any claims that challenge the Family Court's findings and orders. (ECF No.48 at 7-8.)
Specifically, they argue that Judge Mulroy found that the plaintiffs' children "were in imminent
risk, that ACS had made reasonable efforts to avoid recourse to removal, and that removal was

necessary." (ECF No.48 at 8.)
"Underlying the Rooker-Feldman doctrine is the principle, expressed by Congress in 28

U.S.C. § 1257, that within the federal judicial system, only the Supreme Court may review statecourt decisions." Hoblockv. Albany County Bd. ofElections, 422 F.3d 77,85(2d Cir. 2005).

According to the Second Circuit, the following four threshold factors must be established in
order for the Rooker-Feldman bar to apply:

First, the federal-court plaintiff must have lost in state court. Second,the plaintiff must
complain ofinjuries caused by a state-courtjudgment. Third, the plaintiff must invite
district court review and rejection ofthatjudgment. Fourth,the state-courtjudgment
must have been rendered before the district court proceedings commenced—i.e.,RookerFeldman has no application to federal-court suits proceeding in parallel with ongoing
state-court litigation.

Green v. Mattingly,585 F.3d 97,101 (2d Cir. 2009)(alterations omitted)(quoting Hoblock, 422
F.3d at 85).

The defendants' argument fails because the plaintiffs are not "state-court losers." The

Family Court ultimately retumed all four ofthe plaintiffs' children to the plaintiffs' custody. See
Villanueva, 2010 WL 1654162,at *7("Plaintiffs child had already been retumed before the

federal court action was filed, so he plainly has not repaired to federal court to undo the

Family Courtjudgment."(internal quotation marks and alterations omitted)). In other words,
"[tjhis is not the type of situation... where a child is permanently removed from custody and Ijie

23

parent seeks the child's return," which would implicate Rooker-Feldman. Tuffarelli,692 F.
Supp. 2d at 358.

To the extent the defendants argue that the plaintiffs "should be issue precluded from

litigating claims that were decided by the Family Court's orders,"(ECF No.48 at 5 n.3), the
plaintiffs did not have a full and fair opportunity to litigate Judge Mulroy's imminent risk finding
because the April 25,2014 hearing was conducted exparte. See Shapiro,2004 WL 2698889, at
*10(collateral estoppel bars claims if"the party against whom the doctrine is asserted had a full
and fair opportunity to litigate the issue in the first proceeding"). Moreover, Judge Turbow's
later orders on October 10,2014,finding no neglect for the older three children and neglect for
N.S.B. are not implicated in the plaintiffs' claims in this suit. See id. (collateral estoppel bars
claims if"'the issue in question was actually and necessarily decided in a prior proceeding'"
(quoting Colon,58 F.3d at 869). As the defendants acknowledge,"the issues ofimminent

danger, reasonable basis and exigent circumstances were not necessary to Judge Turbow's
decision whether or not Ms. Sulaymu-Bey neglected her children." (ECF No.48 at 10.)
11.

Plaintiffs' Motion for Judgment on the Pleadings
In a purported motion forjudgment on the pleadings, the plaintiffs argue that collateral

estoppel prevents the defendants from asserting that emergency circumstances existed at the time

of ACS's seizure oftheir children. (ECF No.42 at 12-18.) They argue that the Family Court's
findings offact included a determination that no emergency circumstances existed that warranted
the police entering their home without a court order and seizing their children. {Id. at 12-13.)

"Under New York law, collateral estoppel or issue preclusion will bar claims if(1)the
issue in question was actually and necessarily decided in a prior proceeding, and(2)the party
against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the

first proceeding." Shapiro,2004 WL 2698889, at *10(internal quotation marks omitted).
24

As discussed above, the issues at stake in this litigation—including whether emergency
circumstances existed at the time of the children's removal—were not necessary to Judge
Turbow's findings in his October 10, 2014 orders. Accordingly, the plaintiffs' motion for
judgment on the pleadings is denied.
CONCLUSION

The defendants' motion for judgment on the pleadings is granted in part and denied in

part in accordance with the reasons set forth in this opinion. The plaintiffs' motion for judgment
on the pleadings is denied.

SO ORDERED.

s/Ann M. Donnelly

Ann m!Donnelly
United States District Judge
Dated: Brooklyn, New York
March 29,2019

25