Jones v. Nickens et al

Filing 216

ORDER granting 211 Motion to Dismiss for Failure to State a Claim For the reasons set forth herein, the County's motion to dismiss the federal claims in the Third Amended Complaint is granted, and the Court, in its discretion, declines to exercise supplemental jurisdiction over the remaining state law claims. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/21/2017. (Hammond, Daniel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-2445
_____________________

MARIE JONES AS ADMINISTRATOR OF THE ESTATE OF ROY ANTONIO JONES, III; AND
ROY A. JONES, JR.,
Plaintiffs,
VERSUS

COUNTY OF SUFFOLK AND PEDRO JONES,
Defendants.
___________________
MEMORANDUM AND ORDER
February 21, 2017
___________________

JOSEPH F. BIANCO, District Judge:
Marie Jones, as administrator of the Estate of her grandson Roy A. Jones, III (“decedent”), and decedent’s father, Roy A. Jones,
Jr. (“Roy Jones”), (collectively, “plaintiffs”)
brought this civil rights action against defendants the County of Suffolk (“the
County”) and Pedro Jones (collectively, “defendants”) in connection with the beating
death of decedent by Pedro Jones on August
1, 2010. On that day, the sixteen-month-old
decedent resided with and was in the custody
of his mother, Vanessa Jones. Pedro Jones
was her boyfriend.
Plaintiffs brought 28 U.S.C. § 1983
claims against the County, alleging that it violated decedent’s Fourteenth Amendment
procedural and substantive due process rights
by failing to remove him from his mother’s
custody or take other steps to protect him

even though the County had previously removed decedent’s sister. The County now
moves to dismiss for failure to state a claim
under F.R.C.P. 12(b)(6). For the following
reasons, the motion is granted as to the federal claims. The Court declines to exercise
supplemental jurisdiction over the state law
claims against both defendants and dismisses
the state law claims, without prejudice to refiling in state court.
I. BACKGROUND
The following facts are taken from the
Third Amended Complaint (“Compl.”) and
from the parties’ submissions. (ECF No.
209.) The Court assumes them to be true for
purposes of deciding this motion and construes them in the light most favorable to
plaintiffs, the non-moving party.

A. Facts

welfare” of decedent. (Compl. ¶ 35.) She
was also arrested and charged with the assault
of another individual on February 4, 2010.
(Id. ¶ 42.)

Before decedent was born, his parents,
Roy and Vanessa Jones, had a daughter,
Amiya Jones (“Amiya”). (Compl. at ¶ 16.)
After a domestic dispute occurred between
the parents in Amiya’s presence in October
2008, the Suffolk County Department of Social Services (“DSS”) procured an order of
protection in favor of Amiya against both
parents from the Suffolk County Family
Court. (Id. ¶¶ 21–23.) Roy and Vanessa
Jones violated the terms of that order, and
DSS filed an emergency petition with the
Family Court seeking to remove Amiya from
their custody. (Id. ¶ 24.) DSS removed
Amiya in connection with that petition, the
Family Court subsequently deemed her a neglected child, and she was not returned to her
parents’ custody before August 1, 2010, the
date of decedent’s death. (Id. ¶¶ 25–28.)

In a separate order dated June 4, 2009, the
Family Court placed Vanessa Jones under the
supervision of DSS. (Order of Fact-Finding
and Disposition without Placement, Ex. B to
Def.’s Mot. to Dismiss, ECF No. 211-3, at 4.)
It also required her to obtain a mental health
evaluation and suitable housing. (Id. at 5.)
On June 25, 2009, Vanessa Jones participated
in a mental health evaluation and was referred for outpatient substance abuse counseling. (Pet. for Modification and Extension
of Supervision, Ex. E to Def.’s Mot. to Dismiss, ECF No. 211-6.) She was admitted into
a treatment program on April 5, 2010, but
demonstrated inconsistent attendance and
failed to complete the program by May 24,
2010. (Id.) At that time, the County asked
the Family Court to extend the effective period of its June 4 orders. (Id.) The Family
Court agreed, first extending its orders
through July 5, 2010, then through July 29,
2010, and finally through July 28, 2011. (See
Exs. C, D, F to Def.’s Mot. to Dismiss, ECF
Nos. 211-4, 211-5, 211-7.)

When decedent was born on March 18,
2009, the County immediately sought and obtained a temporary order of protection in his
favor against Roy and Vanessa Jones from
the Family Court, which found on June 4,
2009 that decedent was a victim of “derivative neglect” because of Amiya’s status as a
neglected child. (Id. ¶¶ 29–31.) The order of
protection released decedent to his mother’s
custody but required her to “[r]efrain from
acts . . . that create an unreasonable risk to the
health, safety or welfare of [decedent].”
(Temporary Order of Protection, Ex. A to
Def.’s Mot. to Dismiss for Failure to State a
Claim (“Def.’s Mot. to Dismiss”), ECF No.
211-2, at 1.) 1 The order was to last until April
7, 2010. (Id. at 2.) Nevertheless, the mother
continued to engage in conduct that created
“an unreasonable risk to the health, safety or

Before decedent’s death, his father was
incarcerated, and his mother moved him to a
Native American Reservation. (Compl. ¶¶
38, 43.) After the move and about a month
before decedent’s death, DSS Case Worker
Corris Nickens visited the reservation and
found decedent in the care of Rose Lawrence,
who, in Nickens’s view, was too young to be
a caretaker. (Id. ¶¶ 46–48.) Nickens advised
Vanessa Jones of his opinion about Lawrence. (Id. ¶ 48.) About two weeks later—in

1

This Court may take judicial notice of orders of the
Family Court on a Rule 12(b)(6) motion. See Bryant
v. N.Y. State Educ. Dep’t, 692 F.3d 202, 208 (2d Cir.
2012) (“[A] court can consider the complaint, documents attached to the complaint, documents incorporated by reference in the complaint, and public records

when considering a motion to dismiss.” (citing Taylor
v. Vt. Dep’t of Educ., 313 F.3d 768, 776 (2d Cir.
2002))); Lomnicki v. Cardinal McCloskey Servs., No.
04-CV-4548 (KMK), 2007 WL 2176059, at *1
(S.D.N.Y. July 26, 2007) (taking judicial notice of
family court records).

2

for a stay pending appointment of the representative of decedent’s estate was granted on
July 14, 2011. (ECF No. 14.) Marie Jones,
decedent’s paternal grandmother, was appointed temporary administrator of decedent’s estate on December 16, 2011 and then
as permanent administrator on April 27,
2012. (Compl. ¶ 4.) Plaintiffs then filed an
amended complaint against a variety of defendants on several different claims. (ECF
No. 23.) Thereafter, the case went through an
extended period of motion practice and discovery in relation to other defendants who
were ultimately dismissed from this action.
(See, e.g., ECF Nos. 90, 192, 203.) Notably,
this Court granted a motion to dismiss filed
by several private entities and individuals on
August 20, 2013. See Jones v. Nickens, 961
F. Supp. 2d 475, 492 (E.D.N.Y. 2013).

July 2010—Nickens encountered Pedro
Jones, Vanessa Jones’s new boyfriend, while
visiting the home, but Nickens did nothing to
obtain more information about this individual. (Id. ¶ 50.)
On July 20, 2010, decedent suffered an
unexplained skull fracture and was hospitalized. (Id. ¶¶ 52–53.) Vanessa Jones told
Nickens that Rose Lawrence had been caring
for her child when decedent sustained the injury, but Lawrence denied this assertion. (Id.
¶¶ 57, 59.) Roy Jones, incarcerated at the
time, told Nickens and other County investigators that decedent was in danger, that
Vanessa Jones left decedent with whomever
she could, and that decedent was not in his
mother’s care at the time of the injury. (Id.
¶ 61.) Neither Nickens nor anyone else with
the County took action to remove the child in
response to this incident. (Id. ¶ 64.)

On June 19, 2016, plaintiffs filed a third
amended complaint against the County and
Pedro Jones, raising Section 1983 claims for
violations of decedent’s substantive and procedural due process rights, as well as state
law wrongful death claims against the
County and Pedro Jones. (ECF No. 209.)
The County moved to dismiss for failure to
state a claim on August 25, 2016, plaintiffs
filed an opposition on November 18, 2016,
and the County replied on December 2, 2016.
(ECF Nos. 211–13.) Oral argument was held
on January 6, 2017. The Court has fully considered the parties’ submissions.

After decedent was released from the
hospital, in the week between decedent’s
skull fracture and his death, Nickens visited
him at his home and found him to be underweight. (Id. ¶¶ 69–70.) On August 1, 2010,
Vanessa Jones left decedent alone with Pedro
Jones. (Id. ¶ 71.) While decedent was in his
care, Jones shook, punched, and fatally
wounded decedent, who was pronounced
dead at Southampton Hospital at 9:11 p.m.
(Id. ¶ 73.) The autopsy indicated that the
physical abuse had been occurring for some
time before that night. (Id. ¶ 74.) Pedro
Jones pleaded guilty to the murder of decedent and, in his statement to the police after
the arrest, indicated that he had abused decedent on multiple occasions. (Id. ¶¶ 72, 74.)

II. STANDARD OF REVIEW
In reviewing a motion to dismiss pursuant
to Rule 12(b)(6), the Court must accept the
factual allegations set forth in the complaint
as true and draw all reasonable inferences in
favor of the plaintiff. See, e.g., Cleveland v.
Caplaw Enters., 448 F.3d 518, 521 (2d Cir.
2006); Nechis v. Oxford Health Plans, Inc.,
421 F.3d 96, 100 (2d Cir. 2005). “In order to
survive a motion to dismiss under Rule
12(b)(6), a complaint must allege a plausible

B. Procedural History
Roy Jones brought this Section 1983 action against the County and a number of other
defendants, including several private entities,
on May 17, 2011. (ECF No. 1). His request

3

set of facts sufficient ‘to raise a right to relief
above the speculative level.’” Operating Local 649 Annuity Trust Fund v. Smith Barney
Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir.
2010) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). This standard
does not require “heightened fact pleading of
specifics, but only enough facts to state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.

cedent’s procedural and substantive due process rights by failing to ensure Vanessa
Jones’s compliance with the Family Court orders, conduct a safety assessment, or otherwise protect decedent. (See Compl. ¶¶ 112,
114, 115, 120, 135–41.) The County contends that plaintiffs fail to state a claim under
F.R.C.P. 12(b)(6) because (1) neither the
cited statutes nor the manual create a constitutionally protected interest, as required to
state a procedural due process claim; (2) decedent was never in the County’s custody,
and the County never took an affirmative step
to place the child in danger, as required to
state a substantive due process claim;
(3) plaintiffs’ federal claims are based on the
County’s negligence, but negligence is not
actionable under Section 1983; and (4) plaintiffs failed to allege a policy or custom of the
County as the basis for these constitutional
violations, as required to state a Section 1983
claim under Monell v. Department of Social
Services of City of New York, 436 U.S. 658
(1977). For the reasons set forth below, the
Court agrees with the County on the first two
points, and plaintiffs’ federal claims are dismissed on these grounds. Furthermore, the
Court does not reach the County’s other arguments and declines to exercise jurisdiction
over the state law claims against either defendant.

The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal,
setting forth two principles for a district court
to follow in deciding a motion to dismiss.
556 U.S. 662 (2009). First, district courts
must “identify[ ] pleadings that, because they
are no more than conclusions, are not entitled
to the assumption of truth.” Id. at 679.
“While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Id. Second, if
a complaint contains “well-pleaded factual
allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.
III. DISCUSSION
Plaintiffs raise two federal claims under
Section 1983 for violations of decedent’s
procedural and substantive due process rights
as the basis for this Court’s jurisdiction. Specifically, plaintiffs assert that the County violated decedent’s procedural and substantive
due process rights by failing to remove him
from Vanessa Jones’s custody even though it
was required to do so by the New York State
Child Protective Services Manual (the “manual”), New York Family Court Law § 1024,
and New York Social Services Law § 417 by
virtue of Amiya’s earlier removal. (See
Compl. ¶¶ 110, 112, 131–41; Pls.’ Mem. of
Law in Opp’n. to Def.’s Rule 12(b)(6) Mot.
(“Pls.’ Br.”), ECF No. 213, at 7–8.) Plaintiffs
further contend that the County violated de-

A. Procedural Due Process Claim
The County first moves to dismiss plaintiffs’ procedural due process claim. In order
to assert a violation of procedural due process
rights, a plaintiff must “first identify a property right, second show that the [State] has
deprived him of that right, and third show that
the deprivation was effected without due process.” Local 342, Long Island Pub. Serv.
Emps., UMD, ILA, AFL-CIO v. Town Bd. of
Huntington, 31 F.3d 1191, 1194 (2d Cir.
1994) (citation omitted). Thus, a claimed violation of procedural due process involves a
two-step analysis: (1) the court examines
4

462 (1989) (“[A] State creates a protected liberty interest by placing substantive limitations on official discretion.” (citation omitted)). As the Court explained, “[w]here the
administrative scheme does not require a certain outcome, but merely authorizes particular actions and remedies, the scheme does not
create ‘entitlements’ that receive constitutional protection under the Fourteenth
Amendment.” Id. (citing Kelly Kare, Ltd. v.
O’Rourke, 930 F.2d 170, 175 (2d Cir. 1991)).
The Court emphasized that Connecticut’s
procedures for investigating child abuse,
standing alone, “create no independent substantive entitlements, whose deprivation
might trigger application of the Due Process
Clause.” Id. at 57 (citing Olim v. Wakinekona, 461 U.S. 238, 250–51 (1983)).

whether the State deprived plaintiff of a constitutionally protected interest, and (2) if so,
the court determines whether the procedures
surrounding that deprivation were constitutionally adequate. See Shakur v. Selsky, 391
F.3d 106, 118 (2d Cir. 2004).
Under the first step, it is well settled that
“[t]he requirements of procedural due process apply only to the deprivation of interests
encompassed by the Fourteenth Amendment’s protection of liberty and property.”
Bd. of Regents v. Roth, 408 U.S. 564, 569
(1972). When the claimed interest is “rooted
in state law, [courts] look to the particular
state ‘statute, contract, or regulation that purports to establish’ the asserted entitlement in
order to assess the parameters and the
strength of the alleged interest to determine if
due process protection applies.” Sealed v.
Sealed, 332 F.3d 51, 56 (2d Cir. 2003)
(“Sealed I”). “Where those statutes or regulations meaningfully channel official discretion by mandating a defined administrative
outcome, a property interest will be found to
exist.” Kapps v. Wing, 404 F.3d 105, 113 (2d
Cir. 2005) (citation omitted); see also Town
of Castle Rock v. Gonzales, 545 U.S. 748,
756 (2005) (“[A] benefit is not a protected entitlement if government officials may grant or
deny it in their discretion.”).

The Second Circuit then proceeded to analyze Connecticut’s welfare statutes, finding
that most of the provisions invest the State
with “significant discretion” in investigating
and taking remedial action against child
abuse, thereby preventing the Court from
concluding that those provisions create a protected property or liberty interest. Id. The
Court highlighted one statutory provision,
however, that, due to its ambiguous language,
could require the State to take more substantive action (in the form of removing a child
from an abusive environment without parental consent) against child abuse. Id. at 57–58
(citing a provision under which “the commissioner, or his designee, shall authorize any
employee of the department or any law enforcement officer to remove the child . . .
from [abusive] surroundings without the consent of the child’s parent or guardian”). Because the Court lacked a “clear understanding
of the underlying state law,” however, it
could not determine whether the provision in
fact makes removal mandatory (thereby imbuing plaintiffs with “a legitimate entitlement
to emergency removal potentially triggering
Fourteenth Amendment protection”). Id. at

In Sealed I, for example, the Second Circuit was asked to determine whether Connecticut’s child welfare laws create an entitlement to protective services subject to constitutional scrutiny. 332 F.3d at 55–56. The
Court began its analysis by looking at the underlying state statutes, stating that, “[i]n evaluating whether a state has created a protected
interest in the administrative context, we
must determine whether the state statute or
regulation at issue meaningfully channels official discretion by mandating a defined administrative outcome.” Id. at 56; see also Ky.
Dep’t of Corr. v. Thompson, 490 U.S. 454,

5

Sabol, 247 A.D.2d 15, 29 (1st Dep’t 1998)).
Second, the court explained that even if a certain mandatory aspect of the statute was not
followed by the defendants, no procedural
due process claim could survive because the
mandate (i.e., to conduct an immediate investigation once a report of suspected child
abuse is received) merely authorizes particular actions and remedies, but does not require
a certain substantive outcome. Id. at *41. For
these reasons, the court concluded that “it
cannot be said that [the plaintiffs] were denied constitutionally protected liberty or
property rights under the statutory scheme in
question,” and dismissed the procedural due
process claim. Id. at *42.

58 (explaining that if the provision makes removal mandatory, the Court could not conclude, at this preliminary stage of litigation,
that plaintiffs failed to allege the existence of
a protected property or liberty interest). The
Court elected, therefore, to certify interpretation of the provision to the Connecticut Supreme Court and retained jurisdiction to dispose of the appeal following its receipt of the
state court’s guidance. Id. at 59–60. When
the state court held that the statutory provision at issue did not require removal, but
merely authorized removal on a discretionary
basis, the Second Circuit affirmed the district
court’s dismissal of the procedural due process claim. See Sealed v. Sealed, 125 F.
App’x 338, 339 (2d Cir. 2005) (“Sealed II”).

Plaintiffs make essentially the same argument here as the plaintiffs did in Sealed I and
Hilbert S., arguing that, under the manual and
two New York statutes, decedent was “entitled to protective services under state mandates regarding, inter alia . . . mandated investigation and intervention protocols governing the conduct of the mandated child protective services unit of each County through
its Department of Social Services.” Id. at *11
(quoting the complaint). Specifically, plaintiffs highlight language in New York Family
Court Law § 1024 and New York Social Services Law § 417. (Pls.’ Br. at 7–8, 14.) Family Court Law § 1024(a) provides that

In Hilbert S. v. County of Tioga, the
Northern District of New York was presented
with a similar procedural due process claim,
but under New York State law. No. 3:03-CV193, 2005 WL 1460316, at *10 (N.D.N.Y.
June 21, 2005). In that case, plaintiffs argued
that they were denied protective services
without due process of law—protective services to which they claimed they were entitled under New York Social Services Law
§ 411 et seq., Art. 6, Title 6. Id. at *11. Following the Second Circuit’s guidance, the
court proceeded to analyze whether New
York’s child welfare legislation ‘“require[s]
a certain outcome,”’ or ‘“merely authorizes
particular actions and remedies”’ (to discern
whether or not the State’s administrative
scheme creates a protected property or liberty
interest). Id. (quoting Sealed I, 332 F.3d at
56). In rejecting plaintiffs’ contention that
New York’s legislation creates an entitlement
to protective services subject to due process
scrutiny, the court focused on the discretionary aspects of the statute. First, the court
noted that New York State courts have previously denied procedural due process claims
based on the State’s child welfare statute precisely because the statute involves discretionary determinations. Id. (citing Mark G. v.

a designated employee of a city or
county department of social services
shall take all necessary measures to
protect a child’s life or health including, when appropriate, taking or keeping a child in protective custody . . . if
(i) such person has reasonable cause
to believe that the child is in such circumstance or condition that his or her
continuing in said place of residence
or in the care and custody of the parent or person legally responsible for
the child’s care presents an imminent
danger to the child’s life or health;
6

part of social service officials to make
the statutorily required finding under
certain described circumstances.
Such reasoning has already been rejected by [the New York Supreme
Court, Appellate Division] inasmuch
as such professional evaluation as to
the existence of a circumstance requiring child preventive services cannot reasonably be construed as ministerial or nondiscretionary. Any “entitlement” sought to be enforced depends upon the decisions of social
services professionals and does not
even come into existence until the discretionary determination as to what is
appropriate has been made.

and (ii) there is not time enough to apply for an order under section one
thousand twenty-two of this article.
N.Y. Fam. Ct. Act § 1024(a). Similarly, under Social Services Law § 417,
a designated employee of a city or
county department of social services,
. . . shall take all appropriate measures
to protect a child’s life and health including, when appropriate, taking or
keeping a child in protective custody
without the consent of a parent or
guardian if such person has reasonable cause to believe that the circumstances or condition of the child are
such that continuing in his or her
place of residence or in the care and
custody of the parent, guardian, custodian or other person responsible for
the child’s care presents an imminent
danger to the child’s life or health.

Id. (quoting Mark G., 247 A.D.2d at 29 (emphasis added in original) (citations omitted));
see also Grant v. Cuomo, 130 A.D.2d 154,
163–65 (1st Dep’t 1987) (analyzing provisions of New York Social Services Law and
explaining that the findings that serve as a
prerequisite to any obligation to provide preventative services involve the exercise of discretion and professional judgment).

N.Y. Soc. Serv. Law § 417(1)(a).
Neither of the cited provisions creates a
liberty interest that triggers due process protection. As a threshold matter, in its order
dismissing the private entities from this case,
this Court agreed with Hilbert S. that “the
State’s child welfare legislation contains procedural requirements and mandates that a
particular process be followed in the case of
suspected child abuse, but it does not command a particular substantive outcome. Instead, under New York’s statute, the provision of preventive services is predicated on
discretionary determinations.” Jones, 961 F.
Supp. 2d at 492 (citing Hilbert S., 2005 WL
1460316, at *12). As this Court stated in that
opinion,

Although the Court focused on the Social
Services Law in that opinion, the same logic
applies with equal force to Family Court Act
§ 1024, which also contains language affording case workers significant discretion. See
N.Y. Fam. Ct. Act § 1024(a) (“[A] designated
employee of a city or county department of
social services shall take all necessary
measures to protect a child’s life or health including, when appropriate, taking or keeping
a child in protective custody . . . [if] such person has reasonable cause to believe that the
child is in such circumstance or condition that
his or her continuing . . . in the care and custody of the parent . . . presents an imminent
danger to the child’s life or health.” (emphasis added)). This is especially true in light of
the fact that Social Services Law § 417 was
enacted to implement the Family Court Act.

Inherent in [plaintiffs’] claim of entitlement to such preventive services is
the implication that the statute imposes a nondiscretionary duty on the
7

See N.Y. Soc. Serv. Law § 417 (enacted
“[p]ursuant to the requirements and provisions of the family court act”). 2

their children. . . . The Fourteenth Amendment imposes a requirement that except in
emergency circumstances, judicial process
must be accorded both parent and child before removal of the child from his or her parent’s custody may be effected.” (quoting
Tenenbaum v. Williams, 193 F.3d 581, 593
(2d Cir. 1999) (first omission in original)));
Troxel v. Granville, 530 U.S. 57, 65–66,
(2000) (collecting cases concerning the “fundamental right of parents to make decisions
concerning the care, custody, and control of
their children”). Thus, the Court concludes
that Amiya’s removal, by itself, did not give
her brother, decedent, a protected liberty interest in removal from the home.

The Court sees no reason to deviate from
its earlier interpretation of New York State’s
child welfare scheme. In arguing for such a
deviation, plaintiffs first contend that the
County’s discretionary duties with respect to
decedent became mandatory by virtue of the
County’s earlier removal of Amiya from
Vanessa Jones’s custody. (See Pls.’ Br. at
20.) Plaintiffs cite no statutory or case law,
however, to support the proposition that the
County must remove a child from a parent’s
custody if, at an earlier time, it removed a different child from that custody. On the contrary, New York’s child welfare scheme appears to contemplate a case-by-case (i.e.,
child-by-child) approach to removal. See,
e.g., N.Y. Soc. Serv. Law § 417 (“[A] designated employee of a city or county department of social services . . . shall take all appropriate measures to protect a child’s life
and health. . . .” (emphasis added)); N.Y.
Fam. Ct. Act § 1024 (“[A] designated employee of a city or county department of social services shall take all necessary measures
to protect a child’s life or health. . . .” (emphasis added)). Indeed, a rule requiring automatic removal of a child born to parents
from whom another child was previously removed could create significant due process
issues regarding the parent’s protected rights.
See, e.g., Southerland v. City of N.Y., 680
F.3d 127, 142 (2d Cir. 2012) (“[P]arents . . .
have a constitutionally protected liberty interest in the care, custody and management of

Plaintiffs also argue that the circumstances present here—in particular decedent’s unexplained skull fracture, which occurred less than two weeks before his death—
transformed the County’s discretionary powers to investigate and remove him into mandatory obligations. (Pls.’ Br. at 20.) Nothing
in the language of the statutes, however, suggests that certain, specific facts require automatic removal. Rather, both Family Court
Law § 1024(a) and Social Services Law § 417
provide that a social worker can remove a
child “when appropriate” and only if the social worker “has reasonable cause to believe
that the child is in such circumstance or condition that his or her continuing . . . in the care
and custody of the parent . . . presents an imminent danger to the child’s life or health.”
N.Y. Fam. Ct. Act § 1024; see also N.Y. Soc.
Serv. Act § 714 (social worker can remove
child if she “has reasonable cause to believe
that the circumstances . . . of the child are

2

Plaintiffs argue that the use of the term “shall” in the
statute indicates that DSS’s investigatory and removal
duties are mandatory. (Pls.’ Br. at 8.) That same term,
however, is used in both provisions, and New York
courts have still interpreted Social Services Law § 417
as creating discretionary functions. See Mark G., 247
A.D.2d at 29; see also Hilbert S., 2005 WL 1460316,
at *12. Furthermore, in Sealed II, the similar usage of

the term “shall” in the Connecticut statute did not
transform a discretionary duty into a mandatory one.
See Sealed II, 125 F. App’x at 340. Finally, the presence of the discretionary language identified above
offsets this mandatory language. Therefore, this Court
concludes that the use of the term “shall” in both statutes is not dispositive on this issue.

8

it is “reluctant to expand the concept of substantive due process because guideposts for
responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. Harker Heights, 503 U.S. 115, 125
(1992). “In order to establish a violation of a
right to substantive due process, [after
demonstrating that it was denied a valid property interest,] a plaintiff must demonstrate not
only government action but also that the government action was ‘so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.’” Pena, 432 F.3d
at 112 (quoting Lewis, 523 U.S. at 847 n. 8).
To satisfy this standard, a plaintiff must show
that the government decision it challenges
“was arbitrary or irrational or motivated by
bad faith.” Rosa R. v. Connelly, 889 F.2d 435,
439 (2d Cir. 1989).

such that continuing . . . in the care and custody of the parent . . . presents an imminent
danger to the child’s life or health”). The
statutes’ use of the phrases “when appropriate” and “reasonable cause to believe,” coupled with their silence on what constitutes an
“appropriate” circumstance or “reasonable
cause,” leaves those determinations to the
discretion of the social worker in each instance.
In short, as this Court held in its earlier
decision, New York State’s child welfare
scheme does not create a protected interest in
a specific substantive outcome such as removal, see Jones, 961 F. Supp. 2d at 492, and
no such interest is created based on Amiya’s
removal or decedent’s injuries in the days
leading up to his death. Therefore, plaintiffs
have failed to state a procedural due process
claim as a matter of law.

In the context of child welfare services,
the seminal substantive due process case is
DeShaney v. Winnebago County Department
of Social Services, 489 U.S. 189 (1989). This
Court summarized that holding in its earlier
order granting the private defendants’ motion
to dismiss. See Jones, 961 F. Supp. 2d at
486–87. Importantly, as this Court noted earlier, the Supreme Court indicated in
DeShaney that the Due Process Clause “generally confer[s] no affirmative right to governmental aid, even where such aid may be
necessary to secure life, liberty, or property
interests of which the government itself may
not deprive the individual.” Id. at 486 (quoting DeShaney, 489 U.S. at 198). Although an
exception to this rule exists where the state
bears a “special relationship” to a plaintiff,
the Supreme Court went on to hold in
DeShaney that no “special relationship”
arises by virtue of “the State’s knowledge of
the individual’s predicament or from its expressions of intent to help him.” DeShaney,
489 U.S. at 200. Instead,

B. Substantive Due Process Claim
The County also moves to dismiss plaintiffs’ substantive due process claim on the
ground that decedent was not in the County’s
custody when he died, and custody is the
“linchpin” of substantive due process claims
against state actors. (Def.’s Br. at 10.)
As the Second Circuit has explained,
“[t]he touchstone of due process is protection
of the individual against arbitrary action of
government.” Leebaert v. Harrington, 332
F.3d 134, 139 (2d Cir. 2003) (quoting Cty. of
Sacramento v. Lewis, 523 U.S. 833, 845
(1998)). The Fourteenth Amendment, however, “does not provide a comprehensive
scheme for determining the propriety of official conduct or render all official misconduct
actionable.” Pena v. DePrisco, 432 F.3d 98,
112 (2d Cir. 2005). Instead, the scope of the
substantive due process doctrine is very limited. See Washington v. Glucksberg, 521 U.S.
702 (1997). The Supreme Court has said that

it is the State’s affirmative act of restraining the individual’s freedom to
9

(S.D.N.Y. Aug. 4, 2014). In Hendricks, the
plaintiff was in a relationship with a man
named Reginald Smith, and Smith was subject to a protective order issued by the Bronx
Family Court that prohibited him from being
in contact with children because he had allegedly abused his own daughter and had violent
tendencies. Id. at *1. A caseworker with the
Administration for Children’s Services
(“ACS”) visited plaintiff’s home to serve the
protective order. Id. While there, she found
Smith with plaintiff’s infant son and learned
about plaintiff’s romantic relationship with
Smith. Id. The caseworker took no action to
enforce the protective order or otherwise
warn plaintiff about Smith’s violent propensities. Id. Two months later, Smith beat
plaintiff’s son to death, and plaintiff subsequently sued ACS and the City of New York,
alleging, inter alia, that they violated her
son’s substantive due process rights by failing to enforce the protective order against
Smith. Id.

act on his own behalf—through incarceration, institutionalization, or other
similar restraint of personal liberty—
which is the “deprivation of liberty”
triggering the protections of the Due
Process Clause, not its failure to act to
protect his liberty interests against
harms inflicted by other means.
Id. In other words, “involuntary custody [is]
the linchpin of any special relationship exception” to the rule that the state is under no
affirmative obligation to protect a person’s
liberty interest against encroachments by others. Robischung-Walsh v. Nassau Cty. Police
Dep’t, 421 F. App’x 38, 40 (2d Cir. 2011)
(quoting Matican v. City of New York, 524
F.3d 151, 156 (2d Cir. 2008)).
Applying these rules to this case, this
Court held that plaintiffs failed to state a
claim against the private defendants because
plaintiffs “do not allege that the decedent was
ever in the State’s custody, let alone during
one of the instances of Pedro Jones’ abuse.”
Jones, 961 F. Supp. 2d at 487. The plaintiffs
still fail to make such an allegation. Instead,
plaintiffs argue that, even though decedent
was never in the State’s custody, the County
created a “special relationship” with him by
removing Amiya. (Pls.’ Br. at 15–16.)
Again, however, they cite no law, and the
Court could find none, supporting the proposition that the removal of one child creates a
special relationship between the County and
a different child born at a later date to the
same parents. In addition, that rule does not
appear to follow from the logic of DeShaney,
which repeatedly indicates that a special relationship is created where the state takes a person into its custody. See DeShaney, 489 U.S.
at 198–200.

The court dismissed this Section 1983
claim on the grounds that plaintiff did not adequately allege a “special relationship between the state and the decedent” because
“the gravamen of the Amended Complaint is
that the Municipal Defendants failed to act
while knowing that the Decedent might be in
danger,” given the defendants’ previous determination that Smith was a danger to children. Id. at *3. This was not enough to create
a special relationship, the court reasoned, because
[i]f a protective order prohibiting
Smith’s contact with children could
create such a “special relationship,”
then the state would have a constitutional duty to protect every child.
Such a broad duty is inconsistent with
DeShaney’s teaching that the Due
Process Clause is “not . . . a guarantee
of certain minimal levels of safety
and security.”

Indeed, at least one case in the Second
Circuit cuts directly against plaintiffs’ argument. See Hendricks v. City of N.Y., N.Y., No.
13 CIV. 2787 PAC, 2014 WL 3819296, at *3
10

Id. at *4 (quoting DeShaney, 489 U.S. at 195)
(omission in original).

again that the harm was inflicted not
by the State . . ., but by [a third party].
The most that can be said of the state
functionaries in this case is that they
stood by and did nothing when suspicious circumstances dictated a more
active role for them.

The Court agrees with the analysis in
Hendricks, and that reasoning applies with
equal force here. If the County’s removal of
Amiya created a “special relationship” between the County and decedent, it would also
create a special relationship with any future
children of Roy or Vanessa Jones. Not only
is this “inconsistent with DeShaney’s teaching that the Due Process Clause is ‘not . . . a
guarantee of certain minimal levels of safety
and security,’” id., it would also prove highly
impractical and burdensome to the parents’
privacy rights, as the state would constantly
need to check on them to see if any new children have been born. Like the Hendricks
court, this Court finds the following passage
from DeShaney quite on point:

DeShaney, 489 U.S. at 202–03; see also Hendricks, 2014 WL 3819296, at *4. Such inaction does not, however, rise to the level of a
constitutional violation by the County. See
DeShaney, 489 U.S. at 200. It follows that,
under DeShaney, plaintiffs have failed to
state a substantive due process claim against
the County. 3 See id. Accordingly, the substantive due process claim is dismissed as a
matter of law. 4
C. Leave to Amend

[The County’s] failure to [protect decedent]—though calamitous in hindsight—simply does not constitute a
violation of the Due Process
Clause. . . . Judges and lawyers, like
other humans, are moved by natural
sympathy in a case like this to find a
way for [decedent] and his [father] to
receive adequate compensation for
the grievous harm inflicted upon
them. But before yielding to that impulse, it is well to remember once

Although plaintiffs have not requested
leave to submit an amended complaint, the
Court has considered whether they should be
given an opportunity to do so. Rule 15(a)(2)
of the Federal Rules of Civil Procedure provides that a party shall be given leave to
amend “when justice so requires.” “Leave to
amend should be freely granted, but the district court has the discretion to deny leave if
there is a good reason for it, such as futility,
bad faith, undue delay, or undue prejudice to
the opposing party.” Jin v. Metro. Life Ins.

3
To the extent plaintiffs invoke the “state-created danger” exception to the rule that states have no affirmative obligation to protect individuals not in their custody, that argument fails because the County did nothing to create or increase the danger decedent faced.
See Matican, 524 F.3d at 157 (“[T]he state does infringe a victim’s due process rights when its officers
assist in creating or increasing the danger that the victim faced at the hands of a third party.”). Passive inaction does not rise to the level of creating or increasing danger. See Hilbert S., 2005 WL 1460316, at *4
(“[T]he actor must have acted affirmatively, using his
or her authority to create an opportunity that would not
otherwise have existed for the third party’s acts to occur.”); Brown v. Commonwealth of Pennsylvania,

Dep’t of Health Emergency Med. Servs. Training Inst.,
318 F.3d 473, 479 (3d Cir. 2003) (“The Supreme
Court has specifically pointed out that the Due Process
Clause is not implicated by an official’s negligent act.
. . . ‘[I]ndefensible passivity,’ and ‘nonfeasance’ do
not rise to the level of a constitutional violation.” (citations omitted) (alterations in original)).
4

In addition, given the Court’s conclusion that plaintiffs failed to state procedural or substantive due process claims on the grounds discussed above, the Court
need not and does not reach the County’s alternative
arguments for dismissal.

11

299, 305 (2d Cir. 2003) (“[I]n the usual case
in which all federal-law claims are eliminated
before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims” (citing CarnegieMellon University v. Cohill, 484 U.S. 343,
350 n. 7 (1988))).

Co., 310 F.3d 84, 101 (2d Cir. 2002); see Local 802, Assoc. Musicians of Greater N.Y. v.
Parker Meridien Hotel, 145 F.3d 85, 89 (2d
Cir. 1998) (finding that leave to amend may
be denied based upon the “futility of amendment”). As to futility, “leave to amend will
be denied as futile only if the proposed new
claim cannot withstand a 12(b)(6) motion to
dismiss for failure to state a claim, i.e., if it
appears beyond doubt that the plaintiff can
plead no set of facts that would entitle him to
relief.” Milanese v. Rust-Oleum Corp., 244
F.3d 104, 110 (2d Cir. 2001) (citing Ricciuti
v. N.Y.C. Transit Auth., 941 F.2d 119, 123
(2d Cir. 1991)). Furthermore, if amendment
of the complaint would not cure the substantive defects of the claim, leave to amend
should be denied. See Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000).

IV. CONCLUSION
For these reasons, the County’s motion to
dismiss the federal claims in the third
amended complaint is granted. The Court in
its discretion declines to exercise supplemental jurisdiction over the state law claims
against both defendants, and those claims are
dismissed without prejudice to refiling in
state court. The Clerk of the Court shall enter
judgment accordingly and close the case.

Here, the Court has concluded that, as a
matter of law, plaintiffs have not pleaded a
violation of decedent’s procedural due process rights because New York law does not
afford decedent a protected interest in removal or other protection by virtue of
Amiya’s removal or decedent’s head injury.
Likewise, plaintiffs have not pleaded a violation of decedent’s substantive due process
rights because decedent was not in the
County’s custody at the time of his death, and
Amiya’s removal did not create a “special relationship” between decedent and the
County. As such, the defects in the Complaint are substantive, and therefore any attempt to amend it would be futile. See id.
Consequently, leave to amend is denied.

SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: February 21, 2017
Central Islip, NY
***
Plaintiffs are represented by Michael J. Collesano, One World Trade Center, 85th Floor,
New York, NY 10007. Defendants are represented by Arlene S. Zwilling, Assistant
County Attorney, on behalf of Dennis M.
Brown, Suffolk County Attorney, 100 Veterans Memorial Highway, Hauppauge, New
York 11788.

D. State Law Claims
Plaintiffs also raise state law wrongful
death claims against the County and Pedro
Jones. Having concluded that plaintiffs
failed to state any federal claims, however,
the Court declines in its discretion to exercise
pendent jurisdiction over the state law claims.
See Valencia ex rel. Franco v. Lee, 316 F.3d
12