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

Filing 7

MEMORANDUM & ORDER: The Court grants the plaintiffs' requests to proceed in forma pauperis. The Court directs the plaintiffs to obtain counsel for their four minor children listed in the caption within 30 days from the date o f this Order. The attorney is to file a notice of appearance on the docket. If the plaintiffs fail to do so, the complaint shall be dismissed, without prejudice, as to the minor children. The adult plaintiffs' complaint shall proceed as to their claims against the defendants. The Clerk of Court is directed to issue a summons and the United States Marshal Service is directed to serve the following Defendants without prepayment of fees: the City of New York, the Commissioner of ACS , Gladys Carrion, Sasha Dawson, Kathy Ann Best, and Linda Cato, Nikia Williams, employees of ACS, Sergeant John Pheifer, Badge #732, Dr. Luciana Michele, Kings County Hospital, and the Health and Hospitals Corporation. The plaintiffs also sue thr ee unidentified police officers who were involved in the removal of the children on 4/25/2014. Accordingly, within 45 days from the date of this Order, the Court requests that Corporation Counsel for the City of New York ascertain the full name s of the individuals whom the plaintiffs have identified as police officers John and Jane Doe # 2-4, and provide the addresses where these individuals can be served. The plaintiffs, who have not yet provided the Court with the defendants' ad dresses, are directed to submit a letter to the Clerk of Court with the addresses for the remaining defendants within 14 days from the date of this order in order to effect service of process. The Clerk of Court shall send a copy of this Order to the plaintiffs and to the Corporation Counsel for the City of New York, Special Federal Litigation Division. The case is referred to the Honorable Vera M. Scanlon, United States Magistrate Judge, for pretrial supervision. The Court certifies purs uant 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 the purpose of an appeal. SO ORDERED by Judge Ann M Donnelly, on 8/2/2017. C/mailed. (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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NOT FOR PUBLICATION

S. SHARPE SULAYMU-BEY, as next friends
and on behalf ofN.S. BEY, M.S. BEY, N.A.S. BEY:
and A.S. BEY, by and through their parents and
guardians, S. SHARPE SULAYMU-BEY and
ALESHIA M. SULAYMU-BEY,
Plaintiffs,
-againstCITY OF NEW YORK; GLADYS CARRION,
individually and in her capacity as Commissioner
ofACS/NYCCS; SASHA DAWSON, individually
and in her capacity as employee ofA CSINYCSS;
KATHY ANN BEST, individually and in her
capacity as employee ofACSINYCSS; LINDA
CATO, individually and in her capacity as
employee ofACSINYCSS; NIKIA WILLIAMS,
individually and in her capacity as employee of
ACS/NYCSS; JOHN AND JANE DOE POLICE
1-4, inclusive of Sergeant "JOHN' PHIEFER,
name being fictitious and unknown, individually
and in his capacity as employee ofNew York
City Police Dept; LUCIANA MICHELE,
individually and as physician, KINGS COUNTY
HOSPTIAL, and HEALTH AND HOSPITALS
CORPORATION,

MEMORANDUM & ORDER
l 7-CV-3563 (AMD) (VMS)

FILED

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

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AUG 0 2 2017

*

BROOKLYN OFFICE

Defendants.

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ANN M. DONNELLY, United States District Judge:
On April 24, 2017, the plaintiffs, S. Sharpe Sulaymu-Bey and Aleshia M. Sulaymu-Bey, filed
this pro se action against the defendants, challenging the removal from their home of their four minor
daughters. The action was originally filed in the Southern District of New York and was transferred to
this Court on June 13, 2017. (ECF 4.) The plaintiffs bring claims under the First, Fourth, Fifth, Ninth,
and Thirteenth Amendment, as well as various state law claims, and seek injunctive relief and damages.

The Court grants the plaintiffs' requests to proceed in forma pauperis. The Complaint is
dismissed in part as set forth below.

BACKGROUND
The following is taken from the plaintiffs' complaint and is assumed to be true for the purposes
of this Order. The plaintiffs identify as Moorish-Americans and follow the teachings of Islam. (Compl.
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5, 8.) On April 24, 2014, the plaintiff, Aleshia M. Sulaymu-Bey, took her four daughters to Kings

if 32.)

County Hospital to "receive[] medical check ups." (Id.
the plaintiff that the children were healthy. (Id.

if 36.)

The examining physician, Dr. Kim, told

After the examination ended, however, another

doctor, Dr. Michele, e.ntered the examination room and questioned the plaintiffs decision to rely on
alternative medicine. (Id
underweight. (Id

if 38.)

Dr. Michele also told the plaintiff that her youngest daughter was

if 40.)
' I

The next" day,

foiir Administration for Children's Services ("ACS") employees-Nikia

Williams, Linda Cato, and Kathy Ann Best-along with four police officers, entered the plaintiffs'
home without a warrant and removed the four children.

(Id.~

53.) A removal hearing was scheduled

for April 30, 2014. (Id. if 65.) It is not clear from the complaint what happened at the hearing or whether
the children were returned to the plaintiffs.
The plaintiffs allege that the defendants discriminated against them based on their religious
beliefs, and removed their children in violation of their constitutional rights. The plaintiffs also allege
that the City of New York has an unconstitutional policy of removing all the children from the home
even if only one child is suspected of being abused, and that the City of New York, ACS, Kings County
Hospital, and the Health and Hospitals Corporation have failed to properly train employees in child
removal cases.

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STANDARD OF REVIEW
Although courts must read pro se complaints with "special solicitude" and interpret them to
raise the "strongest arguments that they suggest," Triestman v. Federal Bureau of Prisons, 470 F.3d
471, 474-76 (2d Cir. 2006) (quotations omitted), a complaint 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
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation omitted). While "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 is insufficient to
state a claim "if it tenders 'naked assertion[s]' devoid of 'further factual enhancement."' Id (quoting

Twombly, 550 U.S. at 557).
Further, under 28 U.S.C. § 1915(e)(2)(B), district courts shall dismiss an informa pauperis
complaint action that "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §
1915(e)(2)(B). Finally, ifthe Court "determines at any time that it lacks subject-matter jurisdiction, the
Court must dismiss the action." Fed. R. Civ. P. 12(h)(3).
DISCUSSION

1. Claims on behalf of the Minor Children
It is well-settled that a lay person cannot represent another individual-not even his or her
own child. Cheung v. Youth Orchestra Found of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)
("[A] non-attorney parent must be represented by counsel in bringing an action on behalf of his or
her child."); Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) ("[B]ecause prose means to
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appear for one's self, a lay person may not represent a corporation or a partnership or appear on
behalf of his or her own child."). When it is apparent to the Court that a pro se plaintiff is suing
on behalf of a minor, the Court has a duty to protect the child by sua sponte enforcing the
prohibition against unauthorized representation. See Wenger v. Canastota Cent. School Dist., 146
F.3d 123, 125 (2d Cir. 1998).
In this case, the four minor children are included as plaintiffs in the case caption. Since
the plaintiffs are not lawyers, they cannot bring the action on behalf of their minor children; they
must obtain counsel in order to proceed with any claims on their children's behalf. If the plaintiffs

fail to obtain a lawyer to represent the minor children within 30 days, the children's claims shall
be dismissed without prejudice.

2. Section 1983 Claims
Section 1983 provides in pertinent part:
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 redress ....
42 U.S.C. § 1983. This statute "creates no substantive rights; it provides only a procedure for
redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d
Cir. 1993). In order to maintain a § 1983 action, a plaintiff must show that the defendant (a) acted
under color of state law (b) to deprive the plaintiff of a right arising under the Constitution or
federal law. Pitche/l v. Callan, 13 F.3d 545, 547 (2d Cir. 1984). Here, the plaintiffs named parties

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who acted under color of state law and sufficiently alleged deprivations of their constitutional
rights.
"Parents ... have a constitutionally protected interest in the case, custody and management
of their children," which is protected by the substantive and procedural safeguards of the Due
\

Process Clause of the Fourteenth Amendment. See Tenenbaum v. Williams, 193 F.3d 581, 593 (2d
Cir. 1999); Kia P. v. Mcintyre, 235 F.3d 749, 758-59 (2d Cir. 2000). The procedural safeguards
prevent a state actor from depriving a parent of custody of his or her child without a pre-deprivation
hearing, unless the child is "immediately threatened with harm." Tenenbaum, 193 F.3d at 594.
Even when an immediate threat of harm justifies an emergency removal without a hearing, due
process requires that the parent have "an opportunity to be heard at a reasonably prompt time after
the removal." Gottlieb v. County of Orange, 84 F.3d 511, 520 (2d Cir. 1996). The substantive
due process safeguards prohibit state seizure of children unless "case workers have a 'reasonable
basis' for their findings." Kia P., 235 F.3d at 758-59. Case workers cannot be free "to substantiate
a claim of abuse, for instance, by ignoring overwhelming exculpatory information or by
manufacturing false evidence." Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 104 (2d Cir.
1999).
The plaintiffs complaint suggests that the defendants violated their due process rights by
effecting an emergency removal without evidence of an immediate threat of harm. Furthermore,
the plaintiffs allege that Dr. Michele discriminated against them based on their religion when
reporting them to ACS. Finally, the plaintiffs allege that the City of New York has an unlawful
policy of removing all children from the home, and that Commissioner Gladys Carrion and Kings
County Hospital failed to train and supervise their employees. Accordingly, at this stage of the

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litigation, the plaintiffs have stated "enough facts to state a claim to relief that is plausible on its
face."
CONCLUSION
Accordingly, the Court directs the plaintiffs to obtain counsel for their four minor children
listed in the caption within 30 days from the date of this Order. The attorney is to file a notice of
appearance on the docket. If the plaintiffs fail to do so, the complaint shall be dismissed, without
prejudice, as to the minor children. The adult plaintiffs' complaint shall proceed as to their claims
against the defendants.
The Clerk of Court is directed to issue a summons and the United States Marshal Service
is directed to serve the following Defendants without prepayment of fees: the City of New York,
the Commissioner of ACS, Gladys Carrion, Sasha Dawson, Kathy Ann Best, and Linda Cato,
Nikia Williams, employees of ACS, Sergeant John Pheifer, Badge #732, Dr. Luciana Michele,
Kings County Hospital, and the Health and Hospitals Corporation.
The plaintiffs also sue three unidentified police officers who were involved in the removal
of the children on April 25, 2014. However, the United States Marshals Service will not be able
to serve the John Doe defendants without further identifying information.

The problem

encountered by the plaintiffs is common; it is frequently difficult for a pro se litigant to identify
individual law enforcement officers. In Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per
curiam), the Second Circuit stated that a pro se litigant is entitled to assistance from the district
court in identifying a defendant.
Accordingly, within 45 days from the date of this Order, the Court requests that
Corporation Counsel for the City of New York ascertain the full names of the individuals whom
the plaintiffs have identified as police officers John and Jane Doe #2-4, and provide the addresses
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where these individuals can be served. Corporation Counsel does not need to defend or indemnify
these individuals at this times. This Order merely provides a means by which the plaintiffs may
name and properly serve the individuals as instructed by the Second Circuit in Valentin. Once this
information is provided, the plaintiffs' complaint will be deemed amended to reflect the full name
and badge number of these officers. An amended summons shall be issued, and the Court shall
direct service on these defendants.
The plaintiffs, who have not yet provided the Court with the defendants' addresses, are
directed to submit a letter to the Clerk of Court with the addresses for the remaining defendants
within 14 days from the date of this order in order to effect service of process.
The Clerk of Court shall send a copy of this Order to the plaintiffs and to the Corporation
Counsel for the City of New York, Special Federal Litigation Division.
The case is referred to the Honorable Vera M. Scanlon, 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 the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1 962).

In Sum, the plaintiffs are to:
1) Hire an attorney to represent the four minor children within 30 days or else the
children will be dismissed from the complaint; and
2) File a letter with the Clerk of Court within 14 days providing the addresses of the
defendants so the Court may serve the complaint.

SO ORDERED.
/S/ Judge Ann M Donnelly
ANN M. DONNELL y
United States District Judge
Dated: Brooklyn, New York
August 2, 20 17
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