Eubanks et al v. Hansell et al

Filing 20

ORDER granting 13 Motion to Dismiss. For the reasons set forth in the attached Memorandum and Order, Defendants' motion to dismiss Plaintiffs' Amended Complaint is hereby GRANTED. The Amended Complaint is DISMISSED without prejudice and with leave to refile Plaintiffs' state law claims in New York state court. The Clerk of Court is respectfully requested to enter judgement and close this case. Ordered by Judge Kiyo A. Matsumoto on 3/26/2024. (HM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
JAMAL EUBANKS, as Administrator of
the Estate of JACE EUBANKS deceased,
J.E., an infant, by his father and
natural guardian JAMAL EUBANKS, and
JAMAL EUBANKS, in his individual
capacity,
Plaintiffs,

MEMORANDUM & ORDER
No. 22-cv-6277(KAM)(JRC)

- against DAVID HANSELL, former commissioner
of the New York City Administration
for Children’s Services,
THE CITY OF NEW YORK, JOHN and JANE
DOES, and JOHN and JANE ROES,
Defendants.
-----------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Plaintiffs Jamal Eubanks, as administrator of the estate of
Jace Eubanks (the “Decedent”); J.E., a minor, by his father and
guardian, Jamal Eubanks (the “Minor Son” and, together with the
Decedent, the “Children”); and Jamal Eubanks, in his individual
capacity (“Mr. Eubanks”) (all together, “Plaintiffs”) commenced
the instant action on October 18, 2022 in connection with the
tragic death of the Decedent.

(ECF No. 1, Complaint, “Compl.”)

Defendants are the City of New York (the “City”); the former
Commissioner of the New York City Administration for Children’s

Services (“ACS”)1, David Hansell (“Hansell”); the individuals
affiliated with and representative of the New York City Police
Department (“NYPD”) who participated in the alleged incidents
(the “Doe Defendants”); and the individuals affiliated with and
representative of ACS who participated in the alleged incidents
(the “Roe Defendants”) (all together, “Defendants”).
In the operative Amended Complaint (ECF No. 10, Amended
Complaint, “AC”), Plaintiffs allege that, after receiving a
report of suspected child abuse from the Children’s daycare
center, Defendants visited the Children’s home where they
resided with their mother, Rickia Duvalle (“Ms. Duvalle”), and
her boyfriend, Jeremiah Johnson (“Mr. Johnson”), on August 26,
2021 and August 29, 2021.

Plaintiffs allege that Defendants

observed signs pf physical injuries on the Children’s bodies,
questioned their mother and Mr. Johnson, and permitted the
Children to remain in the care of their mother and Mr. Johnson,
despite learning of Mr. Johnson’s history of child abuse and his
outstanding warrant, and despite observing, from the Children’s
injuries, that they were at serious risk of future abuse.
¶¶ 34-52.)

(AC

Defendants allegedly promised the Children that they

Plaintiffs named ACS as a defendant in their Amended Complaint, but stated
in their opposition brief that they “do not contest the dismissal of ACS as a
named defendant.” (Ptf. Opp. at 22 n.37.) Accordingly, pursuant to Federal
Rule of Civil Procedure 41(a)(2) and pursuant to Plaintiffs’ request, the
Amended Complaint is dismissed as against ACS.
1

2

would protect them and, according to Plaintiffs, implicitly
communicated to Mr. Johnson that his abuse of the Children would
not be punished.

(AC ¶ 53.)

On September 12, 2021, the

Decedent succumbed to severe physical injuries inflicted upon
him by Mr. Johnson.

Mr. Johnson was subsequently charged with

the murder of the Decedent.

Plaintiffs do not allege that

Defendants were informed, prior to the Decedent’s murder, that
Mr. Johnson or the Children’s mother inflicted injuries on the
Children.
Plaintiffs allege that Defendants’ failure to remove the
Children from their dangerous home environment resulted in the
death of the Decedent.

Specifically, Plaintiffs allege that

Defendants’ failure to safeguard the wellbeing of the Decedent
and Minor Son by virtue of Defendants’ inaction and affirmative
conduct deprived Plaintiffs of their constitutional rights,
including Plaintiffs’ Due Process rights under the Fifth and
Fourteenth Amendments, and Plaintiffs’ rights under New York
Social Services Law.

Plaintiffs further allege that, because

Defendants acted under color of law and because Defendants’
conduct was purportedly part of the City’s policy of
indifference and inaction in the face of child abuse,
Defendants’ inaction and affirmative conduct constitute
violations of 42 U.S.C. § 1983 by individual municipal employees
and the City.

Finally, Plaintiffs also allege claims under New
3

York state law, including wrongful death and negligence.
Presently before the Court is Defendants’ motion to dismiss
the Amended Complaint (ECF Nos. 13-2, “Def. Mot.”; 15, “Def.
Reply”) pursuant to Federal Rule of Civil Procedure 12(b)(6).
Plaintiffs oppose Defendants’ motion to dismiss the Amended
Complaint.

(ECF No. 14, “Ptf. Opp.”)

For the reasons set forth

below, Defendants’ motion to dismiss the Amended Complaint is
GRANTED and Plaintiffs’ Amened Complaint is DISMISSED without
prejudice to refile in New York state court.
BACKGROUND
I.

Factual Background
Mr. Eubanks is the father of brothers, Jace Eubanks (the

“Decedent”) and J.E. (Mr. Eubanks’s “Minor Son”) (together, the
“Children”).

(AC ¶ 33.)

In August and September 2021, the

Children lived with their mother, Ms. Duvalle, and her
boyfriend, Mr. Johnson, in Brooklyn, New York.

(AC ¶ 34.)

At

the time, the Decedent was approximately four years old and J.E.
was approximately six years old.

(AC ¶¶ 17-18.)

According to the Amended Complaint, Mr. Johnson had a
history of child abuse, including three reports over the course
of four years charging him with committing acts of domestic
violence and abusing children.

(AC ¶ 38.)

On August 26, 2021,

Mr. Johnson was subject to an outstanding warrant for violating
the conditions of his supervised release in connection with
4

charges of domestic violence “involving children.”

(AC ¶ 39.)

Plaintiffs allege that Defendants were aware of these reports,
the outstanding warrant, and of Mr. Johnson’s history of
violence towards children.

(AC ¶¶ 38-39.)

A. The August 26, 2021 Incident
On August 26, 2021, the Children attended Strong Place for
Hope Day Care Center in Brooklyn, New York.

(AC ¶ 35.)

On that

day, an employee of the Children’s daycare center observed signs
of physical injury on the Children’s bodies and called NYPD and
ACS authorities to report her suspicion that the Children were
being abused in their home.

(Id.)

The employee was a “Mandated

Reporter” under New York state law and called authorities
pursuant to her obligation to report any suspicions of child
abuse or neglect to the NYPD and/or ACS.

(Id.)

In response to the August 26, 2021 call from the Mandated
Reporter, the Doe and/or Roe Defendants visited the home of Ms.
Duvalle and Mr. Johnson to investigate the report of possible
child abuse.

(AC ¶ 36.)

The Doe and/or Roe Defendants

ultimately brought the Children, Ms. Duvalle, and Mr. Johnson to
the ACS office in Brooklyn, New York where Defendants conducted
interviews of the Children, Ms. Duvalle, and Mr. Johnson in
connection with the report of possible child abuse.
Plaintiffs allege that during the course of their
interviews, the Doe and/or Roe Defendants observed scars,
5

bruises, and other signs of physical injury on the Children’s
bodies, which indicated that the Children were being abused.
(Id.)

Specifically, the Decedent appeared to have a black eye

and numerous marks on his foot, the side of his rib, and on his
chest that the Doe and/or Roe Defendants noted.

(Id.)

The Doe

and/or Roe Defendants also questioned the Children, as well as
Ms. Duvalle and Mr. Johnson, about the signs of physical injury,
but there are no allegations that Defendants were provided with
information that either Ms. Duvalle or Mr. Johnson had caused
the Children’s injuries. (Id.)

During their interviews, the Doe

and/or Roe Defendants also learned that Mr. Johnson was subject
to an outstanding warrant for violating the conditions of his
supervised release in connection with charges of domestic
violence “involving children.”

(AC ¶ 39.)

While interviewing

the Children, the Doe and/or Roe Defendants purportedly promised
the Children “that they would protect them from harm, [that]
they would be there to prevent any injuries . . . and [that]
they would stop anyone, including Mr. Johnson, from injuring
them in the future.”

(AC ¶ 37.)

Plaintiff alleges that at the

conclusion of the interviews, the Doe and/or Roe Defendants
determined that the Children were “under suitable care” and
permitted the Children to return to their home with Ms. Duvalle
and Mr. Johnson.

(AC ¶ 43.)

B. The August 29, 2021 Incident
6

Three days after the initial home visit and ACS office
interview, the Doe and/or Roe Defendants returned to the
Children’s residence to check in.

(AC ¶ 44.)

The Children, Ms.

Duvalle, and Mr. Johnson were all present in the residence for
the follow-up home visit.

(Id.)

Plaintiffs allege that the Doe

and/or Roe Defendants again concluded that the Children were
under suitable care and left the residence without further
action.

(AC ¶ 45.)

C. The Decedent’s Death
Plaintiffs allege that approximately two weeks later, on
September 12, 2021, Mr. Johnson lifted the Decedent into the air
and threw him down to the floor, which caused severe physical
injuries and trauma, and to which the Decedent succumbed a short
time later.

(AC ¶ 54.)

According to the Amended Complaint, the

Decedent sustained blunt trauma to the torso and his cause of
death was pronounced to be “Battered Child Syndrome.”

(Id.)

Mr. Johnson was arrested and subsequently charged with the
murder of the Decedent.

(Id.)

D. Applicable ACS Policy
Plaintiff alleges that the Doe and/or Roe Defendants
“concluded that the Children were in no danger” on both August
26, 2021 and August 29, 2021, and that their decision to leave
the Children in the care of Ms. Duvalle and Mr. Johnson
constituted a “violation of their own policies.”
7

(AC ¶ 59.)

First, Plaintiffs allege that Defendants had an obligation
to require that the Children visit a medical doctor to assess
the extent of their observable injuries and to seek medical
clearance before returning them to the care of Ms. Duvalle and
Mr. Johnson.

(AC ¶ 65.)

Plaintiffs allege that if Defendants

had arranged for the required medical care, X-ray results would
have revealed what the Decedent’s autopsy revealed—that the
Decedent was suffering from fractures of his ribs, skull, and
other parts of his body, and that he was a victim of Battered
Child Syndrome.

(AC ¶¶ 66-67.)

Second, Plaintiffs allege that Defendants failed to
interview the Children’s neighbors, which, according to
Plaintiffs, also constitutes a violation of ACS policy, and
which may have revealed that the Decedent was a victim of
Battered Child Syndrome.

(AC ¶ 69.)

Finally, Plaintiffs allege that Defendants failed to
follow-up with Mr. Johnson with respect to his outstanding
warrant and other complaints of child abuse.

(AC ¶ 73.)

E. Defendants’ Policy and Practice
Notwithstanding the aforementioned policies, with which
Defendants purportedly failed to comply on August 26, 2021 and
August 29, 2021, Plaintiffs also allege that the City and ACS
have a “policy, practice, and/or custom of . . . allowing
vulnerable children to remain under the supervision of known
8

violent child predators” even when alerted of possible child
abuse and in the face of visible signs of children’s physical
injuries.

(AC ¶ 85.)

Plaintiffs allege that, pursuant to this

“policy, practice and/or custom,” several other children have
suffered from preventable deaths, including Julissia Batties,
Legacy Beauford, Aisyn Gonzalez, Lisa Steinberg, Elisa
Izguierdo, Daytwon Bennett, Sabrina Green, Marchella BrettPrince, Kyron Hamilton, Nixzmary Brown, Sierra Roberts, Quachaun
Brown, Myls Dobson, Sylena Herrenkind, Zymere Perkins, and Jaden
Jordan, among others.

(AC ¶¶ 86-95.)

Following the deaths of Zymere Perkins and Jaden Jordan,
the New York City Department of Investigation conducted an
investigation into ACS and concluded that ACS is plagued by
“systemic failures” and that “the City’s response to complaints
of child abuse” is hampered by “poorly trained staff and
inadequate staffing in a unit that receives a high proportion of
critical cases.”
II.

(AC ¶¶ 93-95.)

Procedural Background

Plaintiffs initiated this civil rights action, pursuant to
42 U.S.C. §1983, on October 18, 2022 by filing the original
Complaint.

In response to Defendants’ motion for a pre-motion

conference in anticipation of Defendants’ motion to dismiss the
original Complaint, Plaintiffs sought leave to file an Amended
Complaint.

(ECF No. 9 at 1-2.)

The Court granted Plaintiffs’
9

request for leave to file an Amended Complaint at the February
23, 2023 Pre-Motion Conference.

(Feb. 23, 2023 Min. Entry.)

Thereafter, Plaintiffs filed the operative Amended Complaint on
March 17, 2023.
LEGAL STANDARD
I.

Motion to Dismiss
“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (internal quotation marks omitted).

The

Court reviews the operative Amended Complaint, “accept[ing] all
factual allegations as true,” for the purposes of Defendants’
12(b)(6) motion, and “draw[ing] all reasonable inferences in”
Plaintiffs’ favor.
1010 (2d Cir. 2021).

Melendez v. City of New York, 16 F.4th 992,
To the extent Plaintiffs allege “legal

conclusion[s] couched as factual allegation[s],” however, the
Court is not bound to accept such statements as true.

Drimal v.

Tai, 786 F.3d 219, 223 (2d Cir. 2015) (citing Iqbal, 556 U.S. at
678).
The Court must dismiss Plaintiffs’ Amended Complaint if
Plaintiffs have failed to plead “enough facts to state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007).

Bell Atl. Corp. v.

“A claim has facial

plausibility when the plaintiff pleads factual content that
10

allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Iqbal, 556

U.S. at 678.
I.

Due Process
The Due Process Clause of the Fourteenth Amendment to the

U.S. Constitution dictates that “no State shall . . . deprive
any person of life, liberty, or property, without due process of
law.”

U.S. Const. amend. XIV, § 1.

The Fifth Amendment

provides that “[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law.”
amend. V.

U.S. Const.

The Fifth Amendment Due Process Clause protects

against the actions of the federal government, whereas the
Fourteenth Amendment Due Process Clause protects against the
actions of state actors.
21 n.3 (2d Cir. 2017).

See Darnell v. Pineiro, 849 F.3d 17,
Both the Due Process Clause of the Fifth

Amendment and the Due Process Clause of the Fourteenth Amendment
were enacted “to prevent government ‘from abusing its power, or
employing it as an instrument of oppression.’”

DeShaney v.

Winnebago County Department of Social Services, 489 U.S. 189,
195 (1989) (citing Davidson v. Cannon, 474 U.S. 344, 348
(1986)).
A plaintiff who alleges he or she has been deprived of the
right against “unjustified intrusions on personal security”
irrespective of any particular “procedural safeguard[]” invokes
11

the substantive component of the Due Process Clause, rather than
procedural component.

DeShaney, 489 U.S. at 195.

To state a

substantive Due Process claim, Plaintiffs must allege (1) a
constitutional right that Defendants infringed (2) by virtue of
conduct that “shocks the [contemporary] conscience” or
constitutes “a gross abuse of governmental authority.”

Natale

v. Town of Ridgefield, 170 F.3d 258, 262-63 (2d Cir. 1999)
(“Substantive due process standards are violated only by conduct
that is so outrageously arbitrary as to constitute a gross abuse
of governmental authority.”).
The measure of conduct that “shocks the conscience” is “no
calibrated yard stick,” but the Due Process guarantee cannot be
interpreted to “impos[e] liability whenever someone cloaked with
state authority causes harm.”

County of Sacramento v. Lewis,

523 U.S. 833, 847-48 (1998).

Intentionally inflicted injuries

are the “most likely to rise to the conscience-shocking level”
whereas negligently inflicted harm “is categorically beneath the
threshold of constitutional due process.”
849.

Lewis, 523 U.S. at

Where defendants are subject to “the pull of competing

obligations,” harm that is inflicted recklessly or with
deliberate indifference likely does not shock the conscience.
Matican v. City of New York, 524 F.3d 151, 159 (2d Cir. 2008)
(citing Lombardi v. Whitman, 485 F.3d 73, 83 (2d Cir. 2007)).
Because the Due Process Clause of the Fourteenth Amendment
12

explicitly limits the states’ power vis-à-vis individuals, the
United States Supreme Court has repeatedly held that the Due
Process Clause cannot be interpreted to create liability in
connection with acts of violence perpetrated by private, nonstate actors.

In DeShaney, the United States Supreme Court

explained the limited applicability of the Due Process Clause to
State actors, as follows:
[N]othing in the language of the Due Process
Clause itself requires the State to protect
the life, liberty, and property of its
citizens against invasion by private actors.
The Clause is phrased as a limitation on the
State’s power to act, not as a guarantee of
certain minimal levels of safety and security.
It forbids the State itself to deprive
individuals of life, liberty, or property
without ‘due process of law,’ but its language
cannot fairly be extended to impose an
affirmative obligation on the State to ensure
that those interests do not come to harm
through other means.
489 U.S. at 195.
The United States Supreme Court has affirmed this same
reasoning time and time again.

See Lewis, 523 U.S. at 849 (The

Due Process Clause “does not guarantee due care on the part of
state officials”); Davidson v. Cannon, 474 U.S. 344, 348 (1986)
(“The guarantee of due process has never been understood to mean
that the State must guarantee due care on the part of its
officials.”)
The Second Circuit, however, recognizes limited exceptions

13

to the general rule that State actors may not be held liable
under the Due Process clause for the acts of private citizens.
The first exception involves circumstances where the government
maintains “a special relationship with an individual” such that
the State has “affirmative duties of care and protection.”

Ying

Jing Gan v. City of New York, 996 F.2d 522, 533 (2d Cir. 1993).
The second exception arises out of affirmative conduct by a
State actor that “create[s] or increase[s] the danger to the
individual” victim.

Id.

“[S]pecial relationship liability

arises from the relationship between the state and a particular
victim, whereas state created danger liability arises from the
relationship between the state and the private assailant.”

Pena

v. DePrisco, 432 F.3d 98, 109 (2d Cir. 2005).
The first exception requires Plaintiffs to allege a
“special relationship” between the victim and State actor
whereby the State’s “affirmative act of restraining the
individual’s freedom to act on his own behalf” triggers the
protections of the Due Process Clause.
200.

Deshaney, 489 U.S. at

Typically, the “restraint” that gives rise to a “special

relationship” relates to physical restraints on an individual in
a custodial setting where the State’s “affirmative exercise of
power . . . renders [an individual] unable to care for himself
or herself[.]”

Id.

But courts have also found special

relationships that have given rise to a governmental duty of
14

protection against third-person attacks in the context of a
“relationship between a social service agency and foster child.”
Ying Jing Gan, 996 F.2d at 532 (internal citations omitted).
Courts within the Second Circuit “focus[] on involuntary custody
as the linchpin of any special relationship exception.”
Matican, 524 F.3d at 156 (citing Lombardi, 485 F.3d at 79 n.3).
The second exception, which is referred to as the “state
created danger” exception, does not depend on the relationship
between the victim and the State actors.

See Pena, 432 F.3d at

113 n.22 (Under the “state created danger” exception, the fact
that the victims were not in state custody at the time of
[alleged incidents] is irrelevant.”)2

Instead, under the “state

created danger” exception, the government is liable for a Due
Process violation where a State actor “affirmatively create[s]
or enhance[s] the danger of private violence.”

Okin v. Village

of Cornwall-On-Hudson Police Dept., 577 F.3d 415, 433 (2d Cir.
2009).

State created danger cannot be demonstrated by virtue of

an “allegation simply that [] officers [] failed to act upon
reports of past violence.”

Id.

Rather, the state actors must

have “in some way assisted in creating or increasing the danger
to the victim” in order to implicate the Due Process Clause.
Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993).

In

Unlike other Circuit courts, the Second Circuit “treats the ‘state created
danger’ exception as distinct from the ‘special relationship’ exception.’”
Pena, 432 F.3d at 113 n.22.
2

15

defining affirmative conduct, the Second Circuit has also held
that “repeated, sustained inaction by government officials, in
the face of potential acts of violence, might . . . ris[e] to
the level of an affirmative condoning of private violence, even
if there is no explicit approval.”
II.

Pena, 432 F.3d at 111.

42 U.S.C. § 1983

In 42 U.S.C. § 1983, “Congress [] created a federal cause
of action for ‘the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,’” by state
actors.

Town of Castle Rock, Colorado v. Gonzales, 545 U.S.

748, 755 (2005) (citing 42 U.S.C. § 1983).

In order to state a

claim under 42 U.S.C. § 1983, Plaintiffs must allege that they
were (1) deprived of a constitutional right (2) by a person
acting under the color of state law.

See 42 U.S.C. § 1983.

While the factors necessary to establish a § 1983 claim will
vary depending on the constitutional provision at issue,
Plaintiffs “must plead that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.”

Iqbal, 556 U.S. at 676.

It is long established

law within the Second Circuit that “personal involvement of
defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.”
Ellen, 593 F.3d 233, 249 (2d Cir. 2010).
A. Qualified Immunity
16

Farid v.

State actors are “shielded from liability for civil damages
[where] their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.”
(1982).

Harlow v. Fitzgerald, 457 U.S. 800, 818

The threshold inquiry that a Court must determine when

assessing a qualified immunity defense to an alleged violation
of 42 U.S.C. § 1983 “is whether a plaintiff sufficiently alleges
a deprivation of any right secured by the constitution.”

Id. If

the Court finds that Plaintiffs have alleged a violation of a
constitutional right, the Court must then “determine if the
right was clearly established at the time of the defendants’
behavior in issue.”

Saucier v. Katz, 533 U.S. 194, 201 (2001).

In other words, the Court asks whether it would have been clear
to a reasonable [official] that his [or her] conduct was
unlawful in the situation.”

Pena, 432 F.3d at 114.

“This

inquiry ‘must be undertaken in light of the specific context of
the case, not as a broad general proposition.’”

Id. at 114

(internal citation omitted).
Typically, a qualified immunity defense cannot support
dismissal of a case pursuant to Fed. R. Civ. P. 12(b)(6) unless
“the facts supporting the defense appear on the face of the
complaint.”
2004).

McKenna v. Wright, 386 F.3d 432, 435-36 (2d Cir.

At the motion to dismiss stage, “a defendant presenting

an immunity defense . . . must accept the more stringent
17

standard applicable to this procedural route” whereby “the
motion may be granted only where it appears beyond doubt that
the plaintiff can prove no set of facts in support of [the]
claim.”

Id. at 436 (internal quotation marks and citation

omitted).
B. Monell Liability
Pursuant to the United States Supreme Court’s decision in
Monell v. Department of Social Services, 436 U.S. 658 (1978), a
municipality is liable for a violation of 42 U.S.C. § 1983 where
an “official municipal policy of some nature cause[s] a
constitutional tort.”

Monell, 436 U.S. at 691.

However, “a

municipality cannot be held liable under 1983 on a respondeat
superior theory.”

Id. at 691.

The elements of a Monell claim

for municipal liability are (1) an official policy or custom
that (2) causes the plaintiff to be subjected to (3) the
deprivation of a constitutional right.”
702 F.2d 393, 397 (2d Cir. 1983).

Batista v. Rodriguez,

An official municipal policy

may be evidenced by “the decision[s] of . . . lawmakers, the
acts of [] policymaking officials, and practices so persistent
and widespread as to practically have the force of law.”
Connick v. Thompson, 563 U.S. 51, 61 (2011).
DISCUSSION
I.

Plaintiffs’ Constitutional Claims
As set forth previously, in order to state a substantive
18

Due Process claim, Plaintiffs must allege (1) a fundamental
right that (2) Defendants infringed by virtue of conduct that
“shocks the [contemporary] conscience” or constitutes “a gross
abuse of governmental authority.”

Natale, 170 F.3d at 262-63.

At the outset, Plaintiffs’ Amended Complaint purports to
allege constitutional claims against state actors.

Thus, the

Court considers Plaintiffs claims only under the Fourteenth
Amended Due Process Clause, which restricts the actions of state
governments and officials.

See Darnell v. Pineiro, 849 F.3d 17,

21 n.3 (2d Cir. 2017) (“[A] case implicates the Due Process
Clause of the Fourteenth Amendment [where] it involves state []
detainees” whereas “claims brought by federal [] detainees [are
brought] pursuant to the Due Process Clause of the Fifth
Amendment.”).

In any event, the due process analysis under both

Amendments is the same.

See Malinski v. New York, 324 U.S. 401,

415 (1945) (“To suppose that ‘due process of law’ meant one
thing in the Fifth Amendment and another in the Fourteenth is
too frivolous to require elaborate rejection.”)
A.

Constitutional Right

Plaintiffs first allege a constitutional right to “familial
relationship and companionship” as between Mr. Eubanks and his
sons, the Decedent and his Minor Son, and between the Decedent
and the Minor Son, who are brothers.

(AC ¶¶ 98-108.)

Plaintiffs also allege a “right to life and liberty” (AC ¶¶ 10919

120), which corresponds to the Children’s “right to safety and
security . . . and [their] physical well-being.”

(AC ¶ 61.)

Both the right to life, as well as the right to maintain
familial relationships, are recognized as constitutional rights
protected under the Due Process Clause.

See Patel v. Searles,

305 F.3d 130, 137 (2d Cir. 2002) (“[C]onstitutional protections
for associational interests are at their apogee when close
family relationships are at issue.”)
Plaintiffs, however, fail to allege that their
constitutional rights were infringed upon by Defendants.
Plaintiffs allege that Defendants deprived them of their
constitutional rights by virtue of Defendants’ failure to
intervene by removing the Children from the custody of their
mother and Mr. Johnson on August 26, 2021 and August 29, 2021,
notwithstanding several indications that the Children were being
abused, including a call from the Mandated Reporter, visible
signs of physical injury, and information regarding Mr.
Johnson’s history of abuse.
As noted previously, however, “[a] State's failure to
protect an individual against private violence generally does
not constitute a violation of the Due Process Clause, because
the Clause imposes no duty on the State to provide members of
the general public with adequate protective services.”
DeShaney, 489 U.S. at 189.

Acts of violence perpetrated by a
20

private actor, such as Mr. Johnson’s infliction of physical
abuse on the Children, can only form the basis of a substantive
Due Process claim where (1) “the state had a special
relationship with the victim” or (2) the state actors “assisted
in creating or increasing the danger to the victim.”
524 F.3d at 155.

Matican,

Even then, Plaintiffs must allege that

Defendants’ actions, as distinct from Mr. Johnson’s actions,
“shock the contemporary conscience.”

Lewis, 5235 U.S. at 847

n.8 (explaining that “in a due process challenge, . . .

the

[court must consider] whether the behavior of the governmental
officer is so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience.”)

For the reasons

set forth below, Plaintiffs fail to allege sufficient facts to
state a Due Process claim under either exception.
1.

Special Relationship

In the Amended Complaint, Plaintiffs allege that Defendants
“created a special duty to the Children.”
114, 124, 126 152.)

(AC ¶¶ 100, 102, 112,

Plaintiffs contend that Defendants formed a

special relationship with the Children by virtue of the Roe and
Doe Defendants’ interactions with the Children, Ms. Duvalle, and
Mr. Johnson on August 26, 2021 and August 29, 2021, and
specifically because of Defendants’ promise to safeguard the
Children from harm.

See (Ptf. Opp. at 19) (“[T]he Roe and Doe

Defendants made explicit promises that they would protect the
21

Children”).
The United States Supreme Court has explicitly rejected
this exact argument.

See DeShaney, 489 U.S. at 194 (the court

“reject[s] the position . . . that once the State learns that a
particular child is in danger of abuse from third parties and []
undertakes to protect [the child], a ‘special relationship’
arises between it and the child which imposes an affirmative
constitutional duty to provide adequate protection.”)

A special

relationship only exists in circumstances of “incarceration,
institutionalization,” or where an individual is subject to
“other similar restraint on [his or her] personal liberty.”

Id.

Neither “the State’s knowledge of the [victim’s] predicament or
. . . its expressions of intent to help [the victim]” create a
special relationship.

Jones v. Nickens, 961 F. Supp. 2d 475,

487 (E.D.N.Y. 2013) (citing DeShaney 489 U.S. at 199-200)
(Defendants’ “pledge[] to help correct the danger of abuse that
the decedent faced” does not constitute a “special
relationship”).

Though the Amended Complaint makes repeated

reference to the creation of “a special duty,” Plaintiffs do not
allege facts that Defendants imposed any restraint on the
Children’s personal liberty or otherwise created a special
relationship.

Nor do Plaintiffs allege that the Children were

ever in State custody during any of the instances of abuse.
the contrary, Plaintiffs allege that the Children were in the
22

To

care of Ms. Duvalle and Mr. Johnson at the time that they
sustained grievous bodily injuries.

See Nickens, 961 F. Supp.

2d at 487 (“Because the harms the child suffered occurred while
he was in [a private actor’s] custody, rather than in the
custody of the State, there was no such ‘deprivation of liberty’
triggering the protections of the Due Process Clause.”) (citing
DeShaney, 489 U.S. at 201).
Accordingly, Plaintiffs fail to assert sufficient factual
allegations that the Children and Defendants shared in a special
relationship that triggered an affirmative duty to intervene.
2.

State-Created Danger

Plaintiffs also allege that Defendants engaged in
affirmative conduct, which “creat[ed] and/or increas[ed] the
danger to the Children.”
141.)

(AC ¶¶ 60, 78, 99, 110, 111, 122, 123,

In support of this allegation, Plaintiffs point out that

Defendants (1) brought the Children, Ms. Duvalle, and Mr.
Johnson to the ACS office in Brooklyn, New York for interviews;
(2) questioned the Children, Ms. Duvalle, and Mr. Johnson; (3)
observed physical injuries sustained by the Children; (4)
learned and knew of Mr. Johnson’s history of child abuse,
including an outstanding warrant; and (5) made two home visits,
at which Ms. Duvalle, Mr. Johnson, and the Children were
present, and after which they discharged the Children into the
care and supervision of Ms. Duvalle and Mr. Johnson.
23

(AC ¶ 51.)

Plaintiffs do not allege that Defendants had information that
Ms. Duvalle and/or Mr. Johnson caused injuries to the Children.
Plaintiffs contend that by failing to intervene on August 26,
2021 and August 29, 2021, the Doe and Roe Defendants “implicitly
– and/or explicitly – communicated to Mr. Johnson that
Defendants [would] not interfere, arrest, or punish him for his
abuse . . . and/or [that] he [could] continue to attack, injure,
and abuse the Children with impunity.”

(AC ¶ 50.)

However, Plaintiffs allegations do not rise to the level of
state created danger alleged in any case where a Due Process
violation was recognized by the Second Circuit under the state
created danger exception.

Plaintiffs do not allege that

Defendants ever told Mr. Johnson that he could act with impunity
or assured Mr. Johnson that he would “not be impeded or
arrested.”

Dwares, 985 F.2d at 99; see also Snider v. Dylag,

188 F.3d 51, 55 (2d Cir. 1999) (Defendants told the private
actor that it was “open season” on the victim, whereupon the
private actor proceeded to assault the victim).

Nor do

Plaintiffs allege that Defendants declined to arrest Mr.
Johnson, nor that Mr. Johnson or Ms. Duvalle explicitly admitted
that Mr. Johnson was abusing the Children, nor that Defendants
“openly expressed camaraderie with [Mr. Johnson] and contempt
for [the Children]” in the face of such an admission.

Okin, 577

F.3d at 430 (finding that defendants “actually contributed to
24

the vulnerability of [the victim]” such that the victim was
“safer before the state action than . . . after it.”) (citing
Koulta v. Merciez, 477 F.3d 442, 446 (6th Cir. 2000)).

Neither

do Plaintiffs allege that Defendants provided Mr. Johnson with
the physical means to abuse the Children as in Hemphill v.
Schott, 141 F.3d 412, 419 (2d Cir. 1998) (“Officers conspired .
. . with [the private actor] by giving a 9 mm Glock handgun to
[the private actor] who shot [Plaintiff] several times.”)
Plaintiffs also do not allege that Defendants “participated in
or condoned [Mr. Johnson’s] behavior” by “routinely” engaging in
the abusive conduct alongside Mr. Johnson or by repeatedly
“condoning the misconduct” over the course of several months.
Pena, 432 F.3d at 110-11 (“several of the defendants . . .
[engaged in misconduct] with [the private actor]” on a
“routine[]” basis, and facilitated the misconduct on the day of
the alleged incident, including by “asking [the private actor]
to” engage in knowingly unlawful conduct).
Finally, Plaintiffs allegations are not in any way similar
to the facts alleged in Matican, a case upon which Plaintiffs
rely, wherein the Second Circuit found that the “plaintiff’s
allegation that the officers planned [a] sting in a manner that
would lead [the private actor] to learn about [the plaintiff’s
involvement [was] sufficiently affirmative to qualify as a
state-created danger.”

Matican, 524 F.3d at 158.
25

Instead, Plaintiffs argue that Defendants’ office interview
and two home visits with the Children, their mother, and Mr.
Johnson amounted to “do[ing] nothing” to intervene on August 26,
2021 and August 29, 2021 and that by allowing the Children to
continue living with their mother and Mr. Johnson, Defendants
communicated to Mr. Johnson that his conduct was permissible.
“There is no plausible allegation that Defendants somehow
conveyed [] implicit encouragement of child abuse” under these
circumstances.

Hendricks v. City of New York, No. 13-cv-2787,

2014 WL 3819296, at *4 (S.D.N.Y. Aug. 4, 3014).

Though

Defendants had knowledge that Mr. Johnson had a prior record of
child abuse, Plaintiffs do not allege that Defendants had gained
knowledge that Mr. Johnson had physically harmed the Children.
Instead, Plaintiffs argue that “a failure to interfere when
[evidence of past] misconduct” is apparent is itself an implicit
encouragement of that misconduct.

This argument collapses the

distinction between a state-created danger, which may constitute
a basis for a Due Process claim, and a failure to intervene,
which does not.

Matican, 524 F.3d at 157 (the Second Circuit

has “sought to tread a fine line between conduct that is passive
(and therefore outside the exception) and that which is
affirmative (and therefore covered by the exception).”)
(internal quotation marks and citation omitted).

Moreover,

Plaintiffs’ position has been explicitly rejected by the United
26

States Supreme Court and the Second Circuit.

Id. at 157 (“while

the State may have been aware of the dangers that [plaintiff]
faced in the free world, it played no part in their creation,
nor did it do anything to render him any more vulnerable to
them.”) (citing DeShaney, 489 U.S. at 201).

The factual

allegations in the Amended Complaint, construed “as favorably as
possible for Plaintiff[s],” are insufficient to establish the
state created danger exception and amount to no more than an
assertion that “[Defendants] stood by and did nothing despite
assuring [the Children] that they would protect [them] from a
known danger.”

Tufaro v. City of New York, No. 12-cv-7505

(AJN), 2014 WL 4290631, at *4 (S.D.N.Y. Aug. 28, 2014) (finding
such conduct “passive” and “insufficient to state a claim under
Section 1983.”) (citing Matican, 524 F.3d at 157-58).
Accordingly, Plaintiffs fail to assert sufficient factual
allegations that Defendants’ conduct posed a state-created
danger to the Children, such that Defendants had an affirmative
duty to intervene.
Plaintiffs did not have an affirmative right to government
protection under the Due Process Clause because Plaintiffs
failed to adequately allege either that the Children had a
special relationship with Defendants or that the Children faced
a state-created danger.

In this circumstance, Defendants’

failure to remove the Children from the custody of their mother
27

and Mr. Johnson resulted in tragic circumstances, but did not
violate the Due Process Clause.

See DeShaney, 489 U.S. at 196

(“[T]he Due Process Clauses generally confer no affirmative
right to government aid, even where such aid may be necessary to
secure life, liberty or property.”)
B. Shocks the Conscience
Having determined that Plaintiffs failed to adequately
allege that Defendants violated Plaintiffs’ constitutional
rights, the Court need not examine whether Defendants’ conduct
was “so egregious [and] so outrageous, that it may fairly be
said to shock the contemporary conscience.”
431 (citing Lewis, 523 U.S. at 847 n.8.)

Okin, 577 F.3d at

In any event,

Plaintiff fails to allege conduct by Defendants, as opposed to
Mr. Johnson, that rises “to the conscience-shocking level.”
Matican, 524 U.S. at 159.
Plaintiff alleges that Defendants engaged in “gross
negligence, reckless conduct, and deliberate indifference.”
¶ 64.)

(AC

Plaintiffs, however, do not identify or explain what

conduct is allegedly shocking to the conscience.

Plaintiffs

only state that “the Court . . . must find that a reasonable,
contemporary factfinder would conclude that Defendants’ conduct
offends ‘decencies of civilized conduct.’”

(Ptf. Opp. at 14)

(citing Rochin v. California, 342 U.S. 165, 1173 (1952)).
Putting aside Plaintiffs’ misstatement of the applicable
28

standard of review, the Amended Complaint does not allege facts
from which the Court can infer that Defendants engaged in
conduct which shocks the contemporary conscience.3

This

requirement that an alleged violation of a plaintiff’s Due
Process rights must shock the conscience “preserve[s] the
constitutional proportions of constitutional claims, lest the
Constitution be demoted to . . . a font of tort law.”
523 U.S. at 847 n.8.

Lewis,

Plaintiffs do not contend that Defendants’

conduct “was arbitrary or irrational or motivated by bad faith.”
Rosa v. Connelly, 889 F.2d 435, 439 (2d Cir. 1989).

Indeed,

Plaintiffs repeatedly allege that Defendants “negligently failed
to provide for the safety, security and protection of the
Children.”

See (AC ¶¶ 6, 43, 45, 72 103, 104, 106, 115, 116,

118, 127, 128, 130, 153-156.)

Plaintiffs also assert a tort law

claim sounding in negligence under New York state law.
151-61.)

(AC ¶¶

However, “negligently inflicted harm is categorically

beneath the threshold of constitutional due process.”

Lewis,

523 U.S. at 849.
Plaintiffs’ allegations of deliberate indifference also
cannot fairly be said to shock the contemporary conscience.”

It

As set forth previously, in considering a motion to dismiss under Fed. R.
Civ. P. 12(b)(6), the Court “accepts all factual allegations as true,” and
“draws all reasonable inferences in” Plaintiffs’ favor. Melendez, 16 F.4th
at 1010. Plaintiffs’ statement regarding what “a reasonable, contemporary
factfinder would conclude” relates to the standard of review for a summary
judgment motion under Fed. R. Civ. P. 56.
3

29

is “[Defendants’] actions themselves [that] must ‘shock the
contemporary conscience’; it is not enough that [Mr. Johnson’s]
actions would meet that standard.”

Zubko-Valva v. County of

Suffolk, 607 F. Supp. 3d 301, 310 (E.D.N.Y. 2022) (reiterating
that “a State's failure to protect an individual against private
violence simply does not constitute a violation of the Due
Process Clause even if state actors may have been aware of the
dangers that the individual faced from specific private
actors.”) (citing DeShaney, 489 U.S. at 197).

Defendants’

failure to intervene in the course of interviewing and
questioning the Children, Ms. Duvalle, and Mr. Johnson,
Defendants’ promises to protect the Children, Defendants’
failure to act on evidence of Mr. Johnson’s past criminal
history, including his outstanding warrant, and Defendants’
failure to respond to visible signs of abuse resulted in tragic
consequences for the Children.

The Decedent’s death and the

abuse sustained by the Children is heartbreaking.

Nevertheless,

“the Fourteenth Amendment is not a font of tort law to be
superimposed upon whatever systems may already be administered
by the States,” and Plaintiffs do not state plausible facts that
Defendants’ conduct rises to the level of “constitutional
proportions.”

Lewis, 523 U.S. at 848 (citing Paul v. Davis, 424

U.S. 693, 701 (1976)).

Moreover, as in Matican, this Court is

“loathe to dictate to the police [or to ACS] how best to protect
30

. . . the public.”

Matican, 524 U.S. at 159.

Accordingly,

Plaintiffs fail to allege conduct that shocks the contemporary
conscience.
II.

42 U.S.C. § 1983 Liability

If a court concludes, as this Court does here, that
Plaintiffs have failed to state a claim that they were deprived
of a constitutional right by Defendants, “the Court [has] no
occasion to consider whether the individual [Defendants] might
be entitled to a qualified immunity defense, or whether the
allegations in the complaint are sufficient to support a § 1983
claim against the [municipality] under Monell . . . and its
progeny.”

DeShaney, 489 U.S. at 202 n.10 (internal citations

omitted).

Indeed, under the qualified immunity test, if

Plaintiffs fail to allege facts demonstrating a constitutional
violation under the first prong, the Court certainly cannot find
that the alleged “right was clearly established at the time of
the alleged conduct” under the second prong.

Harlow v.

Fitzgerald, 457 U.S. 800, 817 (1982) (“[G]overnment officials
performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.”).
In any event, “[i]t is well settled that child protective
services workers are entitled to qualified immunity for their
31

conduct during the course of abuse investigations.”

Wilkinson

v. Russell, 182 F.3d 89, 99 (2d Cir. 1999) (internal citations
omitted).

This is because the “decision to remove a child from

parental custody . . . obliges protective services caseworks to
choose between difficult alternatives in the context of
suspected child abuse.”

Van Emrik v. Chemung County Department

of Social Services, 911 F.2d 863, 866 (2d Cir. 1990).

In one

scenario, state actors “may be accused of infringing the
parents’ constitutional rights” and in the other scenario, state
actors may be accused of “infringing the child’s rights. . . .
It is precisely the function of qualified immunity to protect
state officials in choosing between such alternatives[.]”

Id.

at 866 (finding that defendants’ conduct was not “objectively
[un]reasonable” even in the face of visible injury and an
“attending physician’s . . . suspicion[n] of child abuse.”)
Accordingly, Plaintiffs fail to allege a violation of a
constitutional right and, by extension, that any alleged right
was clearly established at the time of Defendants’ alleged
inaction or affirmative conduct.
Similarly, where a plaintiff’s “due process claims fails,”
the Court need not “reach [the plaintiff’s] Monell” claim.
Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (If
“the district court properly [finds] no underlying
constitutional violation, its decision not to address the
32

municipal defendants’ liability under Monell [is] entirely
correct.”)

This is because “a Monell claim cannot succeed

without an independent constitutional violation.”

Anilao v.

Spota, 27 F.4th 855, 874 (2d Cir. 2022) (Monell does not provide
a separate cause of action for the failure by the government to
train its employees; it extends liability . . . where that
organizations’ failure to train, or the policies or customs that
it has sanctioned, led to an independent constitutional
violation.”) (emphasis in original) (internal citation omitted).
As discussed, the Amended Complaint fails to allege a
constitutional violation.
Moreover, Plaintiffs’ allegation that the City maintains a
policy, practice, and custom of endangering vulnerable children
by ignoring complaints of child abuse as a result of inadequate
training is insufficient to state a claim for Monell liability.
The United States Supreme Court has recognized limited
circumstances where a municipality’s “policy of inaction in
light of notice that its program will cause constitutional
violations is the functional equivalent of a decision by itself
to violate the Constitution.”

Connick, 563 U.S. at 61.

However, Plaintiffs do not allege such notice.

See id. at 61.

(“Without notice” that a municipality is engaged in a pattern or
practice of violating individuals’ constitutional rights,
“decisionmakers can hardly be said to have deliberately chosen .
33

. . [to] violat[e] [individuals’] constitutional rights.”)
Neither have Plaintiffs alleged that the City’s inadequate
structure, including personnel, rises to the level of a
“practice[] so persistent and widespread as to practically have
the force of law.”

Id.

“[T]he Due Process Clause . . . is not

a guarantee against incorrect or ill-advised personnel
decisions” and this Court “is not the appropriate forum in which
to review the multitude of personnel decisions that are made
daily by public agencies.”

Bishop v. Wood, 426 U.S. 341, 350

(1976).
Accordingly, Plaintiffs’ failure to allege an underlying
individual constitutional violation or to allege a practice of
constitutional violations is fatal to Plaintiffs’ Monell claim.
III. Plaintiffs’ Remaining State Law Claims
“If [Plaintiffs] ha[ve] no valid claim under [42 U.S.C. §]
1983 against any defendant, it is within the district court’s
discretion to decline to exercise supplemental jurisdiction over
the pendent state-law claims.”

Matican, 524 F.3d at 155.

Indeed, because Plaintiffs have failed to allege a viable
federal claim, it would “exceed [the] allowable discretion” of
the Court to assert supplemental jurisdiction.

Id. at 159.

Here, Plaintiffs’ federal claims will have been dismissed
well in advance of any trial, discovery has not proceeded, and
the parties have not articulated any federal interest in
34

resolving Plaintiffs’ state law claims.

Accordingly, the Court

finds that this is “the usual case” where the balance of
factors, including “judicial economy, convenience, fairness, and
comity . . . point toward declining to exercise jurisdiction
over the remaining state law claims.”

Carnegie-Mellon

University v. Cohill, 484 U.S. 343, 350 n.7 (1988); see also
United Mine Workers of America v. Gibbs, 383 U.S. 715, 726
(1966) (“[n]eedless decisions of state law should be avoided
both as a matter of comity and to promote justice between the
parties, by procuring for them a surer-footed reading of
applicable law.”)
The Court declines to exercise supplemental jurisdiction in
light of its decision to dismiss Plaintiffs’ federal claims.
Plaintiffs’ state law claims are hereby dismissed without
prejudice and with leave to refile in New York state court.
CONCLUSION
For the reasons set forth in this Memorandum and Order,
Defendants’ motion to dismiss Plaintiffs’ Amended Complaint is
hereby GRANTED.

The Amended Complaint is DISMISSED without

prejudice and with leave to refile Plaintiffs’ state law claims
in New York state court.
Federal Rule of Civil Procedure 15(a) dictates that leave
to amend a complaint shall be freely given “when justice so
requires.”

Although the Second Circuit has advised that “the
35

usual practice upon granting a motion to dismiss [is] to allow
leave to replead,” Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2d Cir. 1991), Plaintiffs have already been granted
leave to amend the Complaint.

See Ruotolo v. City of New York,

514 F.3d 184, 191 (2d Cir. 2008) (“leave to amend, though
liberally granted, may properly be denied for . . . failure to
cure deficiencies by amendments previously allowed”) (internal
citations omitted).

Moreover, Plaintiffs “can plead no facts

that would overcome the legal [and factual] deficiencies
discussed above,” as it relates to Plaintiffs’ Due Process
claim.

Johnson v. Maximus Services LLC, No. 22-cv-2935 (AMD),

2023 WL 5612826, at *6 (E.D.N.Y. Aug. 30, 2023).

As such, the

Court will not grant further leave to amend Plaintiffs’ federal
claims.
The Clerk of Court is respectfully requested to enter
judgement and close this case.
SO ORDERED.
Dated:

March 26, 2024
Brooklyn, New York
_______________________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

36