Bey et al v. State of New York et al

Filing 72

MEMORANDUM & ORDER - For the foregoing reasons, the County Defendants 65 unopposed motion for judgment on the pleadings is GRANTED IN PART and DENIED IN PART. The only remaining claims are the New York common law claims against the County Defendant s, and the Section 1983 due process, intimate association, and malicious abuse of process claims against Defendants Leahey, McGrath, Williams, and Ferro.The Court notes that there is a motion to stay discovery pending the outcome of this motion prese ntly before Magistrate Judge William D. Wall. Thus, the Court hereby REFERS this action to Judge Wall for all remaining pretrial matters.Counsel for the County Defendants is ORDERED to serve a copy of this Memorandum and Order on the pro se Plaintiff and to file proof of service forthwith. So Ordered by Judge Joanna Seybert on 6/25/13. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
MALCOLM BEY,
Plaintiff,
-against-

MEMORANDUM & ORDER
11-CV-3296(JS)(WDW)

STATE OF NEW YORK, NASSAU COUNTY INC.,
NASSAU COUNTY FAMILY COURT, NASSAU
COUNTY CHILD PROTECTIVE SERVICES,
EDMUND DANE, SUZANNE LEAHEY, ELIZABETH
McGRATH, ROSALIE FITZGERALD, JOHN
COPPOLA, ALTON WILLIAMS, DAVID SULLIVAN,
KATHLEEN RICE, DAVID GOTIMER, BRUCE
COHEN, MERRY-LOU FERRO, CHERYL KREGER,
WARREN FREEMAN, and JANE DOE/JOHN DOE
1-100,

FILED 
CLERK 

6/25/2013 5:04 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Malcolm Bey, pro se
P.O. Box 31
Uniondale, NY 11553
For Defendants:
N.Y.S. Defendants

Ralph Pernick, Esq.
N.Y.S. Attorney General’s Office
200 Old Country Road, Suite 240
Mineola, NY 11501

County Defendants

Liora M. Ben-Sorek, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501

Bruce Cohen, Esq.

Adam Daniel Levine, Esq.
Matthew K. Flanagan, Esq.
Catalano, Gallardo & Petropoulous, LLP
100 Jericho Quadrangle, Suite 326
Jericho, NY 11753

Cheryl Kreger, Esq.

Jessica Zimmerman, Esq.
Marian C. Rice, Esq.
L’Abbate, Balkan, Colavita & Contini LLP

1001 Franklin Avenue
Garden City, NY 11530
SEYBERT, District Judge:
Presently before the Court is an unopposed motion filed
by Defendants Nassau County (the “County”), Nassau County Child
Protective Services (“CPS”), Suzanne Leahey, Elizabeth McGrath,
Alton Williams, Kathleen Rice, Donald Gotimer s/h/a David Gotimer,
Merry-Lou Ferro, and Warren Freeman (collectively, the “County
Defendants”) for judgment on the pleadings pursuant to Rule 12(c)
of the Federal Rules of Civil Procedure.

For the following

reasons, the County Defendants’ motion is GRANTED IN PART and
DENIED IN PART.
BACKGROUND
I.

Procedural Background
Plaintiff

Malcolm

Bey

(“Plaintiff”)

commenced

this

action on July 8, 2011 on behalf of himself, his wife Francique,
and their minor children, Rein, Drizzle, Truth, and Amicus Curiae
(the “Bey Children”) against the State of New York, Nassau County
Family Court, Judge Edmund Dane, Judge David Sullivan, Rosalie
Fitzgerald, John Coppola (collectively, the “State Defendants”),
Bruce Cohen, Cheryl Kreger, and the County Defendants asserting
claims arising out of petitions for child neglect that were filed
in Nassau County Family Court in 2009 and 2010.
Complaint

pleads

violations

of

2

the

Fourth

Specifically, the
and

Fourteenth

Amendments, various criminal statutes
Title

18

of

the

United

States

Code,

including provisions of
international

treaties,

provisions of the United Nation’s Charter, and the Alien Torts
Claims Act, as well as claims for “breech [sic] of trust and
fiduciary duty,” for “use of statutes[,] ordinances, rules and
policies of the corporate state of New York[,] not a rule of law
against indigenous man,” and various claims arising under the laws
of the State of New York.

Mr. Bey simultaneously filed an

application for a temporary restraining order and preliminary
injunction which was denied by this Court on July 13, 2011.
(Docket Entry 8.)
On July 28, 2011, this Court entered an Order that, inter
alia, warned Plaintiff that the claims brought on behalf of his
children

would

be

dismissed

without

prejudice

unless

counsel

entered a notice of appearance on their behalf within thirty days.
(Docket Entry 7.)

No counsel ever entered a notice of appearance

on behalf of the Bey Children.
On November 4, 2011, the State Defendants moved to
dismiss. (Docket Entry 25.) On November 7, 2011, Defendants Cohen
and Kreger moved to dismiss the claims against them respectively
(Docket Entries 29, 32), and the County Defendants filed an Answer
(Docket Entry 34).
motions

to

On September 21, 2012, the Court granted the

dismiss,

dismissing

the

claims

against

Defendants, Cohen, and Kreger in their entirety.
3

the

State

(Docket Entry

62.)

Bey v. New York, No. 11-CV-3296, 2012 WL 4370272 (E.D.N.Y.

Sept. 21, 2012) (the “September 21 Memorandum and Order”).

In

that same Order, the Court dismissed the claims brought on behalf
of the Bey Children, id. at *4, and warned Francique Bey that the
claims asserted on her behalf would also be dismissed unless she
provided the Court with a signed copy of the Complaint within
thirty days, id. at *3.1

She failed to do so, and her claims were

accordingly dismissed on January 9, 2013.

(Docket Entry 64.)

Also on January 9, 2013, the County Defendants moved for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.

(Docket Entry 65.)

Plaintiff has not

opposed this motion, which is currently pending before the Court.
II.

Factual Background2
The Complaint is over forty pages long and is comprised

of fifty-five paragraphs, eleven “maxims of law,” and sixteen
causes of action.

The Court will only discuss those facts that

are relevant to the pending motion--i.e., the facts related to
Plaintiff’s remaining claims against the County Defendants.
On or around June 4, 2009, the Bey Children were “seized
from class and without parental knowledge, consent, warrant or

1

Only Plaintiff had signed the Complaint.

The following facts are drawn from Plaintiff’s Complaint and
the documents attached thereto and referenced therein and are
presumed to be true for the purpose of this Memorandum and
Order.
2

4

authoritative paperwork present” “interrogated” by a CPS agent,
Defendant Elizabeth McGrath, and a Nassau County police officer,
Defendant Alton Williams.

(Compl. ¶¶ 14, 20, 26.)

The Bey

Children were later taken to the police station “separated from
their mother and all questioned without their parents[’] consent
for hours, without a warrant, without court order, or authoritative
paperwork.”

(Compl. ¶ 26.)

Mrs. Bey was arrested, and the Bey

Children returned home with their father.

(Id.)

The following day, however, Defendant McGrath returned
to the Bey residence with “approximately 7 persons dressed like
police officers” to remove the Bey Children from the home. (Compl.
¶ 27.)

The Bey Children were not permitted to see or speak to

their parents while they were separated. (Compl. ¶ 28.) According
to the Complaint, Plaintiff was not provided with “notice of a
hearing or proceeding” prior to the children being removed from
the

home,

and

they

“indigenous status.”3

were

taken

(Compl. ¶ 27.)

notwithstanding

Plaintiff’s

The children were placed in

foster care, and, on or around June 9, 2009, petitions for neglect
were filed in the Family Court against Plaintiff and his wife.
(Compl. ¶ 31.)

Defendant Suzanne Leahey, an Assistant Director

Plaintiff has declared his independence from the United States
and, although he resides in the state of New York, he considers
himself “an indigenous man (not a US Citizen).” (Compl. ¶ 2.)
3

5

for CPS, was allegedly seeking to remove the Bey Children from
their home permanently.

(Compl. ¶ 32.)

Shortly thereafter, Defendant McGrath inspected the Bey
home and, after finding it habitable for the Bey Children, returned
them to their father.

(Id.)

A temporary restraining order was

issued against Francique Bey, however, and she was only allowed
supervised visitation with her children.

(Id.)

She was ordered

to take parenting and anger management classes.

(Compl. ¶ 34.)4

During this time, Plaintiff “lost work” because he could not afford
daycare, and he and his family were eventually evicted from their
home.

(Compl. ¶ 35.)

When Plaintiff told Defendant McGrath that

the family was being evicted, she said “that if he did not get
social services and go to a shelter for services[,] she would come
and take the children again.”
Plaintiff reluctantly agreed.

(Id.)
(Id.)

“[U]nder threat and duress,”
Defendant McGrath arranged

for the Department of Social Services to pay to put Plaintiff’s
belongings in storage while they were displaced; however, “Social
Services did not pay the bill consistently[,] and after several

The Complaint also asserts that Defendant Kathleen Rice, the
Nassau County District Attorney, stated that the classes that
Francique Bey took were “unacceptable,” and she “ordered the
Judge to order more classes.” (Compl. ¶ 34.) The Complaint
also asserts that Defendant Rice “attempted to coerce Francique
Bey to agree to a plea deal.” (Compl. ¶ 33.) As all of
Francique Bey’s claims have been dismissed, these claims are
irrelevant to the present analysis.
4

6

months of non-payment and without notification to Bey Family,
[their] possessions were sold in an auction.”

(Id.)

In December 2009, the neglect petition against Plaintiff
was withdrawn.

(Compl. ¶ 36.)

However, in April 2010, Defendant

Leahey filed a new neglect petition which resulted in a restraining
order being issued against Plaintiff “without his knowledge and
without him ever being served a copy of the order or demand
appearance in a tribunal.”
From
Children

December

were

(Compl. ¶ 37.)

2009

repeatedly

through

February

questioned

by

2011,

Defendant

the

Bey

McGrath,

Defendant Merry-Lou Ferro (another CPS agent), and/or various
other CPS agents at school and were visited by a CPS agent twice
a month at home.
In

the

(Compl. ¶¶ 38-39.)
interim,

Plaintiff

returned

to

Family

Court

approximately once a month between December 2009 and January 2011
“under duress and threat of duress and unlawful seizure of his
children.”

(Compl. ¶ 42.)

The judge and counsel for CPS,

Defendant Donald Gotimer’s “representative” would “talk[] over
[Plaintiff], adjourn court, and set new court dates,” without
addressing his objections.
In

January

2011,

(Id.)
Judge

Dane

extended

the

temporary

restraining order issued against Mr. Bey and ordered that he be
mentally evaluated.

(Compl. ¶ 45.)

March 15, 2011 for trial.

Mr. Bey returned to court on

Defendant Gotimer’s “representative”
7

asked Plaintiff to turn over custody of the Bey Children to CPS
for one year, but Plaintiff refused and his trial was adjourned to
April 29, 2011.

(Compl. ¶¶ 46, 48.)

Mr. Bey returned to court on

April 29 and was asked to turn over custody of his children to CPS
for six months, but he again refused.
was adjourned to May 13, 2011.

(Id.)

(Compl. ¶ 49.)

His trial

On that date, he was again

asked to give CPS custody of his children.

(Compl. ¶ 50.)

refused, and the trial was rescheduled for June 8, 2011.5

He

(Compl.

¶ 51.)
On June 7, 2011, Plaintiff informed that the Court that
he would not be attending any future court dates (Compl. ¶ 52),
and,

on

June

15,

2011,

he

received

“an

offer

to

contract

threatening him with arrest and imprisonment if he does not come
to court.” (Compl. ¶ 53.) Plaintiff commenced this action shortly
thereafter on July 8, 2011.
DISCUSSION
The Court will discuss the applicable standard of review
before addressing the merits of the pending motion.
I.

Standard of Review
The standard for deciding a motion pursuant to Rule 12(c)

“is identical to that of a Rule 12(b)(6) motion for failure to
state a claim.”

Patel v. Contemporary Classics of Beverly Hills,

The Complaint mistakenly states that the trial was rescheduled
for June 2008.
5

8

259 F.3d 123, 126 (2d Cir. 2001); see also Karedes v. Ackerley
Grp., Inc., 423 F.3d 107, 113 (2d Cir. 2005).

To survive a motion

to dismiss for failure to state a claim, a plaintiff must plead
sufficient factual allegations in the complaint to “state a claim
[for] relief that is plausible on its face.”

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929,
949

(2007).

A

complaint

does

not

need

“detailed

factual

allegations,” but it demands “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do.”

Id. at 555.

In addition, the facts pled in the

complaint “must be enough to raise a right to relief above the
speculative level.”

Id.

Determining whether a plaintiff has met

his burden is “a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.”
Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed.
2d 868 (2009); accord Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009).
In deciding a motion to dismiss, the Court is confined
to “the allegations contained within the four corners of [the]
complaint.”

Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67,

71 (2d Cir. 1998).

This has been interpreted broadly to include

any document attached to the complaint, any statements or documents
incorporated in the complaint by reference, any document on which
the complaint heavily relies, and anything of which judicial notice
9

may be taken.

See Chambers v. Time Warner, Inc., 282 F.3d 147,

152-52 (2d Cir. 2002); Kramer v. Time Warner, Inc., 937 F.2d 767,
773 (2d Cir. 1991).
II.

The County Defendants’ Motion for Judgment on the Pleadings
As an initial matter, the Court hereby GRANTS the County

Defendants’ motion to the extent that it seeks judgment on the
pleadings on Plaintiff’s claims arising under the Alien Tort Claims
Act,

Title

18

of

the

United

States

Code

and

other

criminal

statutes, international treaties, and provisions of the United
Nation’s Charter, his claim for breach of the public’s trust, and
his claim regarding the unconstitutionality of all laws enacted
after

1867.

As

the

Court

explained

in

its

September

2012

Memorandum and Order, these are not cognizable causes of action
against any defendant.

The Court will not reiterate its rationale

for dismissing these claims herein, and the reader is referred to
the

Court’s

analysis

of

these

claims

in

the

September

2012

Memorandum and Order, 2012 WL 4370272, at *6-7.
Thus,

all

that

remains

pending

against

the

County

Defendants are the claims pursuant to 42 U.S.C. § 1983 and the
claims arising under state law.
A.

Section 1983 Claims
The Court reads the Complaint liberally to assert the

following claims for relief against the County Defendants under
Section 1983: (1) that Plaintiff’s procedural due process rights
10

were violated when the Bey Children were removed from his custody
without prior notice and an opportunity to be heard; (2) that his
right

to

be

free

from

state

interference

with

his

familial

relationships was violated; and (3) a claim for malicious abuse of
process.6

The Court will discuss the Section 1983 claims as pled

against each of the County Defendants separately.
1.

The County

The County Defendants argue that the Section 1983 claims
against the County must be dismissed because Plaintiff has failed
to plead a basis for municipal liability.

The Court agrees.

A

municipality may not be held liable under Section 1983 for alleged
unconstitutional actions committed by its employees solely on the
basis of respondeat superior.

Monell v. N.Y.C. Dep’t of Soc.

Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978).

Rather, “to hold a municipality liable in such an action,

The Complaint also appears to assert two claims against the
County Defendants arising out of the Fourth Amendment’s
prohibition against unreasonable searches and seizures: one
arising out of Francique Bey’s arrest and the other arising out
of the alleged seizure and interrogation of the Bey Children.
As the Court previously held, however, a non-lawyer cannot
represent the interests of another pro se, Bey, 2012 WL 4370272,
at *3, and Plaintiff does not have standing to assert these
claims on his own behalf, see, e.g., Guan N. v. N.Y.C. Dep’t of
Educ., No. 11-CV-4299, 2013 WL 67604, at *9 & n.4 (S.D.N.Y.
2013) (stating that although children and their parents both
have the right to be free from unreasonable searches and
seizures, there was no authority for the proposition that a
parent has the right not to have his or her child subjected to
questioning).
6

11

a plaintiff is required to plead and prove three elements: (1) an
official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right.”

Zahra v.

Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (internal
quotation marks and citation omitted); see also Hartline v. Gallo,
546 F.3d 95, 103 (2d Cir. 2008).

To establish the existence of a

municipal policy or custom, the plaintiff must allege: (1) the
existence of a formal policy which is officially endorsed by the
municipality; (2) actions taken or decisions made by municipal
officials with final decision-making authority, which caused the
alleged violation of plaintiff's civil rights; (3) a practice so
persistent and widespread that it constitutes a custom of which
constructive knowledge and acquiescence can be implied on the part
of the policy making officials; or (4) a failure by policymakers
to properly train or supervise their subordinates, amounting to
“deliberate indifference” to the rights of those who come in
contact within the municipal employees.

Sulehria v. City of N.Y.,

670 F. Supp. 2d 288, 320 (S.D.N.Y. 2009); see also Davis v.
Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 478 (E.D.N.Y. 2002).
The Complaint here is devoid of any allegations from
which

the

existence

plausibly inferred.

of

a

municipal

policy

or

custom

can

be

Accordingly, the Section 1983 claims against

the County are hereby DISMISSED.

12

2.

CPS

The County Defendants argue that the claims against CPS
must be dismissed because it lacks the capacity to be sued.
Court agrees.

The

“[U]nder New York law, departments that are merely

administrative arms of a municipality do not have a legal identity
separate and apart from the municipality and therefore, cannot sue
or be sued.”

Davis, 224 F. Supp. 2d at 477.

Here, because CPS is

an administrative arm of the County, and not an independent legal
entity, it lacks the capacity to be sued.

See, e.g., Teitelbaum

v. Katz, No. 12-CV-2858, 2013 WL 563371, at *5 (S.D.N.Y. Feb. 11,
2013) (dismissing claims against Orange County Child Protective
Services).

Accordingly, the Section 1983 claims against CPS are

DISMISSED.
3.

Rice, Gotimer, and Freeman

The County Defendants argue that the claims against
Defendants

District

Warren Freeman

Attorney

Rice,

CPS

Attorney

Gotimer,

must be dismissed for failing to plead

and

their

personal involvement in the alleged constitutional deprivations.
The Court agrees.7

“It is well settled in this Circuit that

The County Defendants also argue that the claims against the
remaining defendants--Leahey, McGrath, Williams, and Ferro--must
be dismissed for failing to plead their individual involvement.
With respect to these defendants, this argument is entirely
without merit as Leahey drafted and signed the neglect
petitions, which, according to the Complaint, led to the removal
of the Bey Children, and McGrath, Williams, and Ferro were all
involved in the questioning of the Bey Children and removing
7

13

personal

involvement

of

defendants

in

alleged

constitutional

deprivations is a prerequisite to an award of damages under
§ 1983.”

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)

(internal

quotation

marks

and

citation

omitted).

Thus,

“a

plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.”

Iqbal, 556 U.S. at 676.

Here, the only allegations in the Complaint involving
Defendant Rice are that she “attempted to coerce Francique Bey to
agree to a plea deal” (Compl. ¶ 33) and she “ordered the Judge to
order [Francique Bey to take] more [parenting and anger management]
classes” (Compl. ¶ 34).

See also supra note 4.

However, Francique

Bey has been dismissed as a plaintiff in this action, and, as the
Court previously stated, Plaintiff may not bring these claims on
her

behalf.

Accordingly,

allegations

that

Defendant

Plaintiff’s

alleged

as

the

Rice

Complaint

was

constitutional

is

personally

deprivations,

void

of

involved
the

any
in

claims

against her are hereby DISMISSED.
Similarly, the Complaint is void of any allegations that
Defendants Gotimer or Freeman were personally involved--instead it
refers to Defendant Gotimer’s “representative” (see, e.g., Compl.

them from the home.
they were personally
suit. Whether their
rights is a separate

Thus, the Complaint clearly alleges that
involved in the actions giving rise to this
actions violate Plaintiff’s constitutional
question.
14

¶ 42) and does not mention Freeman at all, aside from stating that
he is a “CPS supervisor” (Compl. ¶ 22a).

As there is no respondeat

superior liability under Section 1983, see Richardson v. Goord,
347 F.3d 431, 435 (2d Cir. 2003), the claims against Defendants
Gotimer and Freeman are also DISMISSED.
5.

Leahey, McGrath, Williams, and Ferro

The County Defendants argue that the claims against
Defendants Leahey, McGrath, Williams, and Ferro are barred under
the doctrine of qualified immunity.

Qualified immunity protects

a government official sued in his official capacity:
(1) if the conduct attributed to him was not
prohibited by federal law; or (2) where that
conduct was so prohibited, if the plaintiff’s
right not to be subjected to such conduct by
the defendant was not clearly established at
the time it occurred; or (3) if the
defendant’s
action
was
objective[ly]
legal[ly] reasonable[] . . . in light of the
legal rules that were clearly established at
the time it was taken.
Manganiello v. City of N.Y., 612 F.3d 149, 164 (2d Cir. 2010)
(alterations and omission in original) (internal quotation marks
and citations omitted).

The County Defendants assert, without

citing any applicable law, that the actions of Defendants Leahey,
McGrath, Williams, and Ferro were reasonable because they were
“predicated upon information obtained from employees of Child
Protective Services” and, therefore, “[p]robable cause existed for

15

the interviews and Plaintiff’s arrest.”

(Cnty. Defs. Mot. 10.)

This argument is confusing for a few reasons.
First, it is unclear whether the County Defendants are
arguing that there was no underlying constitutional violation or
that, even if there was a constitutional violation, the actions of
these Defendants were objectively reasonable.

To the extent that

they are arguing that their actions were objectively reasonable,
the Second Circuit has held that this inquiry often “turns on
factual questions that cannot be resolved at this stage of the
proceedings.”

Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 793 (2d

Cir. 2002); see also Maloney v. Cnty. of Nassau, 623 F. Supp. 2d
277,

292

(E.D.N.Y.

2007)

(“Because

this

defense

necessarily

involves a fact-specific inquiry, it is generally premature to
address the defense of qualified immunity in a motion to dismiss.”
(internal quotation marks and citation omitted)).
Second, to the extent that the County Defendants are
attempting to argue that there was no underlying constitutional
violation, their analysis is woefully incomplete.

The County

Defendants fail to identify: (1) the “employees of Child Protective
Services” who allegedly provided unspecified “information” to
these Defendants, (2) what that “information” was, and (3) why it
established probable cause.

Their motion papers do not even

include a statement of facts, and, although counsel for the County
Defendants submitted an affidavit in support of their motion, which
16

attached various filings from the neglect proceedings that were
attached to Plaintiff’s Complaint, those exhibits are not cited in
this section of the brief.

Although it is very likely that

probable cause did exist, “[i]t is well-established that courts
cannot make a party’s arguments for it or ‘fill in the blanks’ on
that party’s behalf.”

Polk v. Sears, Roebuck, & Co., No. 11-CV-

0725, 2012 WL 1640708, *3 (S.D. Ala. May 8, 2012); cf. Sioson v.
Knights of Columbus, 303 F.3d 458, 460 (2d Cir. 2002) (stating
that the Circuit will generally decline to scour the record for
evidence to support a party’s arguments).
Finally, although probable cause may defeat Plaintiff’s
claim for malicious abuse of process, see Savino v. City of N.Y.,
331 F.3d 63, 76-77 (2d Cir. 2003) (“In New York, a malicious abuse
of process claim lies against a defendant who (1) employs regularly
issued legal process to compel performance or forbearance of some
act (2) with intent to do harm without excuse of justification,
and (3) in order to obtain a collateral objective that is outside
the legitimate ends of the process.” (emphasis added) (internal
quotation marks and citation omitted)), it is less clear if and
how probable cause relates to Plaintiff’s due process and intimate
association claims.8

Defendants also argue, without citing any legal authority, that
“the County Defendants’ actions were privileged as they were
acting under Court Order.” (Cnty. Defs. Mot. 6.) The County
Defendants’ actions that form the basis of Plaintiff’s claims,
8

17

Thus, although the Court highly doubts that Plaintiff
has stated a plausible claim for relief, the Court cannot dismiss
the

Section

1983

claims

pending

against

Defendants

Leahey,

McGrath, Williams, and Ferro for the reasons asserted by the County
Defendants.
B.

State Law Claims
The Complaint also asserts claims for abuse of process

and fraud arising under New York state law. These claims, however,
were not mentioned in the County Defendants’ motion to dismiss,
and, accordingly, they will not be dismissed at this time.
CONCLUSION
For

the

foregoing

reasons,

the

County

Defendants’

unopposed motion for judgment on the pleadings is GRANTED IN PART
and DENIED IN PART.

The only remaining claims are the New York

common law claims against the County Defendants, and the Section
1983 due process, intimate association, and malicious abuse of
process claims against Defendants Leahey, McGrath, Williams, and
Ferro.
The Court notes that there is a motion to stay discovery
pending the outcome of this motion presently before Magistrate

however, occurred at least in part before the initial neglect
petition was filed--thus before the Family Court’s involvement.
Therefore, it is unclear how they could have been acting “under
Court Order.”
18

Judge William D. Wall.

Thus, the Court hereby REFERS this action

to Judge Wall for all remaining pretrial matters.
Counsel for the County Defendants is ORDERED to serve a
copy of this Memorandum and Order on the pro se Plaintiff and to
file proof of service forthwith.

SO ORDERED.

/s/ JOANNA SEYBERT_______
Joanna Seybert, U.S.D.J.
Dated:

June 25, 2013
Central Islip, NY

19