Callwood et al v. City of Kingston et al

Filing 110

MEMORANDUM-DECISION and ORDER - That the County defendants' motion to dismiss (Dkt. No. 20) is GRANTED IN PART and DENIED IN PART as detailed below: That all of plaintiffs' causes of action as against the County def endants (excepting the County) in their official capacities for damages (Am. Compl. 125-180) are DISMISSED. That plaintiffs' eighteenth and nineteenth causes of action (Am. Compl. 159-60, 161-64) and requests for a permanentinjunct ion and a declaratory judgment (Am. Compl. 178-79) are DISMISSED. That plaintiffs' demand for punitive damages (Am.Compl. 175) as against the County is DISMISSED. That plaintiffs' ninth cause of action (Am. Compl. 141- 42) is DISMISSED as against Culmone-Mills, Greene, Webb, Timbrouck,Meyer, Carnright, Sorkin, Iapoce, and the County. That plaintiffs' tenth, eleventh, twelfth, twentieth, and twenty-first causes of action (Am. Compl. 143-44, 145-46, 147-48 , 165- 66, 167-71) are DISMISSED as against Carnright, Sorkin, and Iapoce. That plaintiffs' seventh and eighth causes of action (Am. Compl. 137-38, 139-40) are DISMISSED as against Timbrouck and Meyer. That plaintiffs' thirteenth cause of action (Am. Compl. 149-50) is DISMISSED as against Culmone-Mills and Stitt. That the City defendants' cross-claim (Dkt. No. 16 at 5) is DISMISSED. Signed by Senior Judge Gary L. Sharpe on 9/29/2017. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ANGIE CALLWOOD et al.,
Plaintiffs,

1:15-cv-1298
(GLS/TWD)

v.
CITY OF KINGSTON et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
5185 MacArthur Boulevard, NW
Suite 611
Washington, DC 20016
Bergstein & Ulrich, LLP
5 Paradies Lane
New Paltz, NY 12561
FOR THE DEFENDANTS:
City of Kingston, Michael Mills,
Robert Farrell, Timothy Bowers,
Richard Negron, Kirk Strand,
and Emily-Claire E. Sommer
Cook, Netter Law Firm
P.O. Box 3939
85 Main Street
Kingston, NY 12402
County of Ulster, Michael Iapoce,
Barbara Sorkin, Pamela Joern,
James Meyer, Denise Timbrouck,
Amy Greene, Peggy Webb,

JOHNATHON HARDAWAY,
ESQ.

STEPHEN BERGSTEIN, ESQ.

ROBERT D. COOK, ESQ.

Holley Carnright,
Elizabeth Culmone-Mills,
and Tamatha Stitt
Maynard, O’Connor Law Firm
P.O. Box 180
Route 9W
Saugerties, NY 12477

ADAM T. MANDELL, ESQ.
MICHAEL E. CATALINOTTO,
JR., ESQ.

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs Angie Callwood and Johnathon Hardaway, on behalf of
themselves and their minor children, A.H and J.H., commenced this
action—and then filed an amended complaint—against defendants City of
Kingston (City), Michael Mills, Robert Farrell, Timothy Bowers, Richard
Negron, Kirk Strand, Emily-Claire Sommer (collectively, “City
defendants”), as well as Ulster County (County), Michael Iapoce, Barbara
Sorkin, Pamela Joern, James Meyer, Denise Timbrouck, Amy Greene,
Peggy Webb, Holley Carnright, Elizabeth Culmone-Mills, and Tamatha
Stitt1 (collectively, “County defendants”) pursuant to 42 U.S.C. § 1983 and
New York common law. (Am. Compl., Dkt. No. 4.) Pending is the County
1

Other than the City and County, each of the defendants was sued in his or her official
and individual capacity.

2

defendants’ motion to dismiss, (Dkt. No. 20), which seeks to dismiss
certain claims of the amended complaint as well as a cross-claim filed by
the City defendants, (Dkt. No. 16 at 5). For the reasons that follow, the
County defendants’ motion is granted in part and denied in part.
II. Background
A.

Facts2
At the outset, the court notes that it refers to the City defendants

only in general terms because plaintiffs’ claims against them are not the
subject of the pending motion, which was filed by the County defendants.
(Dkt. No. 20.) Nonetheless, some allegations regarding the City
defendants are included for relevant context.
1.

Events of February 8, 2014

Hardaway, Callwood, and their children, A.H. and J.H., are Florida
residents. (Am. Compl. ¶ 7.) Callwood was the director of admissions
and financial aid for Barrytown College, a Unificationist college. (Id.
¶¶ 15, 92.) Although she primarily worked offsite, she attended bi-monthly
work meetings near the college in Annandale-on-Hudson, New York. (Id.

2

The facts are drawn from plaintiffs’ amended complaint and presented in the light
most favorable to them.

3

¶ 15.) Hardaway is an attorney and a sports agent. (Id. ¶ 77.) Hardaway
and Callwood are African-American, and Callwood is a Unificationist. (Id.
¶¶ 92, 105.)
On February 8, 2014, Hardaway and family stayed at a Super 8
Hotel in Kingston, New York while Callwood attended meetings. (Id.
¶ 15.) At about 5:20 P.M. that day, Hardaway and Callwood left the hotel
to pick up groceries and allowed A.H., then twelve years old, to babysit
J.H., then four years old. (Id. ¶ 16.) Hardaway and Callwood were gone
less than two hours and left a cell phone for A.H. with pre-programmed
contacts, including their own. (Id. ¶¶ 16, 18.)
Shortly after Hardaway and Callwood left the hotel, two Kingston
Police Department (KPD) officers arrived at the hotel, “purportedly in
response to a complaint that noise was coming from plaintiffs’ room earlier
that afternoon.” (Id. ¶ 19.) The officers knocked on plaintiffs’ hotel room
door, and, after A.H. responded but did not open the door, the officers
entered with a key card obtained from the hotel’s staff. (Id. ¶¶ 20-21.)
A.H. asked them to leave several times and “told them her age, that she
was allowed to babysit, that her father was an attorney, and that their
actions were unconstitutional.” (Id. ¶ 23.) Ignoring A.H.’s requests, the
4

officers confiscated her cell phone, interrogated her, and searched and
“ransacked” the room. (Id. ¶ 24.) The officers called a private ambulatory
care company, and paramedics arrived and performed a medical
examination of A.H. and J.H. (Id. ¶¶ 25-26.) “[T]he children were healthy;
had normal, regular, and strong vital signs; were alert and conscious; and
did not appear to be in any pain or distress.” (Id. ¶ 26.) A.H. asked the
officers to allow her and J.H. to stay in the hotel room, but the officers
ordered the paramedics to take the children to a hospital for a second
medical examination. (Id. ¶¶ 27-28).
At the hospital, A.H. repeatedly asked to return to the hotel, but a
KPD officer told the children that they had to remain. (Id. ¶ 29.) A second
medical examination indicated that the children “were alert, awake,
conversant, in no distress, at healthy weights, and appeared healthy and
well groomed.” (Id. ¶ 30.) A KPD officer called the New York State Office
of Children and Family Services (NYOCFS) Central Register of Child
Abuse and Maltreatment (hereinafter, “Central Register”) and “fabricated a
phony basis for their removal,” including stating A.H. was only ten years
old and that J.H. needed immediate medical care because he had a
seizure. (Id. ¶¶ 31-33.) Meyer, an Ulster County Department of Social
5

Services (DSS) caseworker, called a KPD officer who told him that KPD
officers were waiting at the hotel for Hardaway and Callwood, “‘a large
black man + girlfriend’” who were driving a car not registered to them, and
that KPD did not have their names or contact information.3 (Id. ¶¶ 11, 34.)
Meyer then called Timbrouck, a DSS caseworker and Meyer’s supervisor,
and relayed to her the KPD officer’s comments and the Central Register
allegations. (Id. ¶¶ 11, 35.) Timbrouck then “ordered . . . Meyer to ratify
the removal of the children . . . and to place [them] into foster care.” (Id.
¶ 35.)
Meyer went to plaintiffs’ hotel room and entered with two KPD
officers, who used a key card to enter. (Id. ¶¶ 37-38.) Meyer took
photographs of the room and then went to the hospital. (Id. ¶ 39.) He left
a notice on the hotel room door regarding the removal of the children, but
he did not leave contact information, as required by New York state law.4
(Id. ¶ 118.) At the hospital, “Meyer took A.H. into a . . . room and closed
the door to interview her.” (Id. ¶ 41.) A.H. told Meyer what happened
3

Plaintiffs allege that the KPD officer lied about not having Hardaway’s and Callwood’s
names or contact information, and that “no evidence whatsoever has ever been produced that
the license plate or car belonged to or was registered to anyone other than . . . Hardaway.”
(Am. Compl. ¶ 34.)
4

See N.Y. Fam. Ct. Act § 1024(b)(iii).

6

earlier in the hotel room, and he ignored several of her requests to call
Hardaway and Callwood. (Id.) The hospital discharged A.H. and J.H. into
Meyer’s custody, and he placed them in a foster care facility. (Id. ¶ 42.)
Hardaway and Callwood returned to the hotel to find their children gone;
no phone calls were made to them while they were away. (Id. ¶ 43.)
2.

Section 1028 Application to Return Hearing

On February 10, 2014, Hardaway and Callwood filed an application
to return their children,5 and a four-day hearing was held in Family Court
on February 10, 11, 13, and 14. (Id. ¶ 44.) Hardaway represented
himself during the hearing, and Joern, a DSS attorney, represented DSS.
(Id. ¶¶ 45-46.) According to the amended complaint, Meyer testified at the
hearing that the County’s policy “is not to investigate the countless
children twelve years old and younger that live in the County . . . and . . .
[the City that are] permitted to walk home and stay at home alone
unattended . . . each school day . . . for undetermined lengths of time.”
(Id. ¶ 48.) Meyer also “manufactured evidence” and “suppressed
exculpatory evidence” during the hearing. (Id. ¶ 49.) At the hearing on
February 13, Culmone-Mills, an Ulster County assistant District Attorney,
5

See N.Y. Fam. Ct. Act § 1028.

7

“made recommendations to [a KPD officer] as to how he should answer
questions during cross-examination,” “discussed fact patterns in case law
involving child removals” with him, and discussed her impressions of
hearing testimony with Joern and KPD officers. (Id. ¶¶ 12, 100.) On
February 14, Family Court ordered that A.H. and J.H. be immediately
returned to Hardaway and Callwood. (Id. ¶ 52.)
3.

February 13, 2014 Arrest of Hardaway and Callwood

Before the application to return hearing on February 13, Stitt, an
Ulster County District Attorney’s Office (UCDAO) investigator, CulmoneMills, Greene (a DSS caseworker), Meyer, and “other defendants” met.
(Id. ¶¶ 11, 12, 73.) Stitt claimed that Hardaway “had two telephone
numbers, one being used by an escort service and one a pornographic
web site,” and said that Hardaway and Callwood would be arrested for
child endangerment. (Id. ¶ 73.) At that day’s hearing, Stitt testified falsely
as to her investigation into Hardaway and afterward “continued to
manufacture evidence, hide exculpatory evidence, and falsely assert
[Hardaway and Callwood] were involved in illicit businesses.” (Id. ¶¶ 7490, 91.)
The same day, a KPD officer “swore out” a criminal complaint
8

against Hardaway and Callwood for endangering the welfare of a child.
(Id. ¶¶ 99, 101.) They were arrested after the February 13 hearing, during
which Hardaway had cross-examined some of the defendants. (Id.
¶¶ 101-02.) The arresting officer called Hardaway a racial slur and asked,
“‘[y]ou got any questions for me now?’” (Id. ¶ 104.) Per Culmone-Mills’
preference, Hardaway and Callwood spent the night in jail and were
released on their own recognizance on February 14. (Id. ¶¶ 108, 110.)
Later that day, Greene told Hardaway and Callwood that “‘[d]riving luxury
cars [referring to . . . Hardaway’s Porsche] will get you the kind of police
attention you do not want in Kingston’” and “‘[y]ou were arrested so that
we could find out who you were . . . [n]obody could figure out who you all
were.’” (Id. ¶¶ 111-12.) The same day, Stitt told Greene that Manassas,
Virginia (where Hardaway once rented an apartment) “‘has a notorious
sex trafficking issue being run by orientals and believed to be part of the
Moonie cult,’” which “‘explained why [Hardaway was driving] a Porsche.’”
(Id. ¶¶ 92-93.) The terms “orientals” and “Moonie cult” are derogatory
terms used to describe the Unification religion and its members. (Id.
¶ 94.) Stitt also told Virginia authorities that Hardaway and Callwood
“‘were likely involved in sex trafficking and other crimes.’” (Id. ¶ 95.)
9

Joern and unidentified DSS personnel posted Hardaway’s and
Callwood’s mugshots on Facebook “and took turns disparaging them and
‘liking’ each other’s negative comments.” (Id. ¶ 58.) Joern
mischaracterized the results of the application to return hearing and
disclosed confidential information about Hardaway and Callwood. (Id.)
Joern deleted electronic versions of her Facebook posts after Hardaway
and Callwood learned that they existed. (Id.)
4.

Further Legal Proceedings

Based on a neglect petition signed by Iapoce, the DSS
Commissioner, on February 10, 2014, Family Court set a trial for July and
August. (Id. ¶¶ 11, 52-57.) When ordering the return of A.H. and J.H. to
Hardaway and Callwood on February 14, Family Court “issued a
protective order requiring A.H.’s schooling [to] be compliant with state
education law during the pendency of all [F]amily [C]ourt matters.” (Id.
¶ 52.) On February 25, Greene filed a violation petition, signed by Iapoce,
claiming Hardaway’s and Callwood’s non-compliance with the protective
order because they failed to enroll A.H. in a school program. (Id. ¶ 56.) In
April, Sorkin, the DSS Deputy Commissioner, Webb (a DSS caseworker),
Joern, and “three other []DSS personnel” met and agreed to file an
10

emergency removal petition for A.H. “to circumvent” Family Court’s trial
scheduled for July and August. (Id. ¶¶ 11, 59.) Joern filed an emergency
removal petition on April 7 and at a hearing the next day claimed the
reason was that A.H.’s homeschooling plan was not registered with the
Kingston City School District. (Id. ¶¶ 60, 62.) Family Court instructed
Hardaway and Callwood to register A.H.’s homeschool plan with the
Kingston City School District.6 (Id. ¶ 63.) On August 13, after a trial in
July and August, Family Court dismissed the neglect petition and violation
petition. (Id. ¶¶ 65, 72). Sometime after that, Carnright, the Ulster County
District Attorney, reviewed Family Court transcripts and met with
subordinates at least twice. (Id. ¶¶ 12, 115.) The criminal charges
against Hardaway and Callwood were voluntarily dismissed by the
UCDAO at the end of October 2014. (Id. ¶ 116.)
B.

Procedural History
Hardaway and Callwood filed this action in late October 2015,

asserting claims on behalf of themselves and their minor children, A.H.

6

The Kingston City School District refused to register A.H. because she was not a
Kingston resident. (Am. Compl. ¶ 64.) Despite this, apparently there were no further
proceedings regarding the emergency removal petition, as plaintiffs made no other allegations
concerning the same in the amended complaint.

11

and J.H., (Compl., Dkt. No. 1), and then filed an amended complaint in
December 2015, (Am. Compl.). The City defendants answered the
amended complaint and cross-claimed against the County defendants for
“contribution and/or indemnification.” (Dkt. No. 16 at 5.) The County
defendants filed the pending motion to dismiss, which Hardaway opposed
but the City defendants did not. (Dkt. Nos. 20, 37, 46.)
III. Standard of Review
Rule 12(b)(6) provides that a cause of action shall be dismissed if a
complaint fails “to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). For a full discussion of the governing standard, the court
refers the parties to its prior decision in Ellis v. Cohen & Slamowitz, LLP,
701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
IV. Discussion
Plaintiffs assert the following claims, which are numbered as in the
amended complaint,7 against various of the County defendants: (2) Meyer
entered plaintiffs’ hotel room “without a search warrant, probable cause,

7

The numbering is not sequential because some of plaintiffs’ claims are against the
City defendants only. Some of the claims made against the County defendants are also made
against certain of the City defendants; for the sake of clarity, the City defendants are not
included here.

12

consent, and in the absence of exigent circumstances” in violation of the
Fourth Amendment, (Am. Compl. ¶ 128); (3) Timbrouck and Meyer
confined A.H. and J.H. in a hospital room, which constituted
unconstitutional false imprisonment, (id. ¶ 130); (5) Timbrouck and Meyer
unlawfully removed A.H. and J.H. in violation of the Fourth Amendment,8
(id. ¶ 134); (6) “[t]he custodial interview of A.H. in the . . . hospital
room . . . constituted an unlawful Fourth Amendment violation seizure” by
Timbrouck and Meyer, (id. ¶ 136); (7) the second medical examination of
A.H. and J.H. constituted an unlawful seizure in violation of the Fourth
Amendment by Timbrouck and Meyer, (id. ¶ 138); (8) Timbrouck’s and
Meyer’s “acts of removing of [A.H. and J.H.], taking A.H.’s cellular phone,
forcing both to undergo two medical examinations and bearing false
witness in [F]amily [C]ourt hearings” in response to A.H.’s statements to
KPD officers constitutes First Amendment retaliation, (id. ¶ 140); (9) the
County defendants’ “false arrest” of Hardaway and Callwood, decision to
keep them in jail overnight, “filing and continuation of spurious [F]amily
and [C]riminal court proceedings, manufacturing false evidence and
bearing false witness, [and] making disparaging Facebook comments” in
8

Plaintiffs also cite the Fourteenth Amendment. (Am. Compl. ¶ 134.)

13

response to Hardaway’s cross-examination of a KPD officer, Stitt, Meyer,
and Greene constitutes First Amendment retaliation, (id. ¶ 142); (10) the
false testimony of and coverup of misconduct by Iapoce, Joern, Meyer,
Greene, Stitt, and Culmone-Mills at the application to return hearing
constitutes unconstitutional abuse of process, (id. ¶ 144); (11) Iapoce,
Sorkin, Joern, Webb, and Greene acting “in actual malice” with intent to
harm and with improper collateral objectives regarding the violation
petition and emergency removal petition constitutes unconstitutional
abuse of process, (id. ¶ 146); (12) Iapoce, Joern, Greene, Webb, and
Meyer “initiat[ing] a bogus neglect . . . trial” and acting “in actual malice”
with intent to harm and with improper collateral objectives in the neglect
proceedings constitutes unconstitutional abuse of process, (id. ¶ 148);
(15) Culmone-Mills’ and Stitt’s withholding of exculpatory evidence from
UCDAO and forwarding of “fabricated evidence, false sworn statements,
and perjured testimony” to UCDAO denied Hardaway and Callwood their
right to a fair trial, (id. ¶ 154); (16) Culmone-Mills and Stitt “used fraud and
perjury, misrepresented and falsified evidence, [and] withheld exculpatory
evidence” in the criminal proceedings against Hardaway and Callwood,
which constitutes malicious prosecution, (id. ¶ 156); (17) Culmone-Mills’
14

and Stitt’s actions also constitute malicious prosecution under New York
common law, (id. ¶ 158); (18) the County defendants “intended to and did
deprive plaintiffs of substantive [due process] rights,” (id. ¶ 160); (19)
municipal liability lies against the County because of its policies and
practices and failure to train, and Iapoce, Sorkin, and Carnright are liable
for failure to supervise, (id. ¶¶ 162-64); (20) the County defendants’
“unlawful and unconstitutional acts . . . were part and parcel of an
agreement and conspiracy . . . to maliciously violate plaintiffs’ civil rights,”
(id. ¶ 166); and (21) Stitt and Greene “intentionally discriminated against
plaintiffs on the basis of race, religion, and economic status,” and the
County defendants treated Hardaway’s “latchkey family . . . differently
from other latchkey families” with “no rational basis,” (id. ¶¶ 168-69).9
Plaintiffs also request punitive damages, (id. ¶ 172), “attorney’s
fees, costs, and disbursements” under 42 U.S.C. § 1988, (id. ¶ 176), “[a]
permanent injunction ordering [the County] to add the name, title,
organization, address, and telephone number of the caseworker removing
a child to all future § 1024 removal notices,” (id. ¶ 178), and a declaratory

9

For the sake of clarity, the court will hereafter refer to plaintiffs’ causes of action by
the aforementioned numbers.

15

judgment declaring certain of the County’s policies and practices
unconstitutional, (id. ¶ 179).
The City defendants cross-claimed against the County defendants
for “contribution and/or indemnification.” (Dkt. No. 16 at 5.)
A.

Immunity
The County defendants argue that dismissal of a number of claims

is appropriate because of various forms of immunity. (Dkt. No. 20,
Attach. 2 at 5-12.) The court addresses each in turn.
1.

Absolute Prosecutorial Immunity

The County defendants assert that absolute prosecutorial immunity
bars claims against Joern, Culmone-Mills, Carnright, Greene, Webb,
Sorkin, and Iapoce. (Dkt. No. 20, Attach. 2 at 5-7.) However, at this
juncture, only Carnright, Sorkin, and Iapoce are entitled to such immunity,
for the reasons stated below. On a more developed factual record, it may
be that more of the County defendants are immune to at least some of
Hardaway’s claims; accordingly, the County defendants are free to raise
this argument again at an appropriate time.
a.

Joern

Although Joern is “accorded absolute immunity from claims arising
16

out of the performance of her duties” as DSS counsel, Walden v.
Wishengrad, 745 F.2d 149, 152 (2d Cir. 1984), the amended complaint
includes allegations that Joern made Facebook comments outside of her
role as an attorney. (Am. Compl. ¶ 58.) Joern is not accorded absolute
immunity for comments having no functional tie to the judicial process.
See Buckley v. Fitzsimmons, 509 U.S. 259, 277 (1993); Warney v.
Monroe Cty., 587 F.3d 113, 121 (2d Cir. 2009). The claims against Joern
thus cannot be dismissed because of prosecutorial immunity at this time.
b.

Culmone-Mills

The claims against Culmone-Mills likewise cannot be dismissed at
this time, because it is unclear whether Culmone-Mills’ alleged
involvement in the application to return hearing, (Am. Compl. ¶ 100), was
within the scope of her prosecutorial duties. See Walden, 745 F.2d at
151. Moreover, Hardaway makes a state common law claim against
Culmone-Mills, and the County defendants have failed to address if and
how prosecutorial immunity would apply to a claim alleged pursuant to
authority other than § 1983.
c.

Carnright

Carnright’s review of court transcripts and meetings with
17

subordinates, (Am. Compl. ¶ 115), are part of the performance of his
prosecutorial duties, and absolute immunity applies. See Walden, 745
F.2d at 152. Except for the failure to supervise claim that is addressed
below, see infra Part IV.F.3, the claims against Carnright are thus
dismissed.
d.

Greene, Webb, Sorkin, and Iapoce

Because “officials performing certain functions analogous to those of
a prosecutor should be able to claim absolute immunity with respect to
such acts,” Walden, 745 F.2d at 151 (internal quotation marks and
citations omitted), and the only allegations regarding Sorkin and Iapoce
are their involvement with an emergency removal petition, a neglect
petition, and a violation petition, (Am. Compl. ¶¶ 52, 56, 59), the claims
against Sorkin and Iapoce are dismissed, with the exception of the failure
to supervise claim that is addressed below.10 Greene and Webb are not
entitled to absolute immunity at this time because the allegations
concerning them do no squarely show that they solely performed duties
analogous to those of a prosecutor. (Id. ¶¶ 61, 112.)
2.
10

Absolute Witness Immunity

See infra Part IV.F.3.

18

The County defendants next argue that absolute witness immunity
bars claims against Meyer, Greene, and Stitt. (Dkt. No. 20, Attach. 2 at
8.) “[A]bsolute witness immunity [applies] to Section 1983 actions arising
out of or caused by the substance of public officials’ allegedly false trial
testimony.” Cipolla v. Cty. of Rensselaer, 129 F. Supp. 2d 436, 447
(N.D.N.Y. 2001) (citing Briscoe v. LaHue, 460 U.S. 325 (1983)), aff’d, 20
F. App’x 84 (2d Cir. 2001). However, the County defendants failed to
meaningfully articulate which of plaintiffs’ claims arise out of or were
caused solely by the substance of such testimony. That is, the County
defendants did not address why the alleged out-of-court actions of Meyer,
Greene, and Stitt do not suffice to support plaintiffs’ claims.11 At an
appropriate time, the County defendants are free to raise this issue again.
3.

Qualified Immunity

The County defendants also seek to dismiss the claims against
Meyer, Timbrouck, and Stitt on the basis of qualified immunity. (Dkt.
No. 20, Attach. 2 at 8-11.) Qualified immunity generally protects
governmental officials from civil liability “insofar as their conduct does not

11

Furthermore, plaintiffs allege a state common law claim against Stitt, and the County
defendants have failed to address if and how witness immunity would apply to a claim alleged
pursuant to authority other than § 1983.

19

violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982) (internal citations omitted). On the facts now before the
court, which are drawn from the amended complaint and accepted as
true, the County defendants have not established that qualified immunity
applies.12
4.

Eleventh Amendment Immunity

The County defendants argue that plaintiffs’ claims against them in
their official capacities are barred by the Eleventh Amendment. (Dkt.
No. 20, Attach. 2 at 11-12.) “To the extent that a state official is sued for
damages in his official capacity, such a suit is deemed to be a suit against
the state, and the official is entitled to invoke the Eleventh Amendment
immunity belonging to the state.” Ying Jing Gan v. City of New York, 996
F.2d 522, 529 (2d Cir. 1993). Plaintiffs did not dispute the County
defendants’ Eleventh Amendment argument. Accordingly, the court

12

The parties argue over whether New York Social Services Law § 419 applies in this
context. (Dkt. No. 20, Attach. 2 at 9-10; Dkt. No. 37 at 28-29; Dkt. No. 46 at 3-4.) The court
need not decide that issue at this time because even if § 419 applies, the issue of whether
Meyer, Timbrouck, or Stitt are entitled to qualified immunity remains a fact-intensive inquiry not
appropriately resolved at the motion to dismiss stage.

20

dismisses plaintiffs’ claims for damages13 against the County defendants
in their official capacities, except for the County itself.14 See Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (holding
Eleventh Amendment does not extend to counties or similar municipal
corporations).
B.

Fourth Amendment Claim for Hospital Examination
Plaintiffs’ seventh cause of action is a § 1983 Fourth Amendment

claim based on the medical examination of A.H. and J.H. at a hospital.
(Am. Compl. ¶ 138.) As argued by the County defendants, (Dkt. No. 20,
Attach. 2 at 14), the claim against Timbrouck and Meyer must be
dismissed because there are no allegations that either had any
involvement regarding the medical examination, (Am. Compl. ¶¶ 25-30).
Indeed, plaintiffs acknowledge that “[A.H. and J.H.] were undergoing a
second medical examination in the hospital before . . . Meyer left his

13

Plaintiffs’ request for a declaratory judgment and a permanent injunction are
addressed below. See infra Part IV.F.1 and Part IV.H, respectively.
14

Plaintiffs’ claims against the County defendants in their official capacities (excepting
the County) also must be dismissed because an “official-capacity suit is . . . to be treated as a
suit against the entity” and “official-capacity claims a[re] unnecessary or redundant where
similar claims [a]re asserted against the entity.” Sheriff’s Silver Star Ass’n of Oswego Cty., Inc.
v. Cty. of Oswego, 56 F. Supp. 2d 263, 265 n.3 (N.D.N.Y. 1999) (internal quotation marks and
citations omitted).

21

home.” (Id. ¶ 99(K).)
C.

First Amendment Retaliation
1.

First Amendment Retaliation as to A.H.

The eighth cause of action is for Timbrouck’s and Meyer’s alleged
retaliation against A.H. in violation of her First Amendment rights. (Am.
Compl. ¶ 140.) “To plead a First Amendment retaliation claim a plaintiff
must show: (1) he has a right protected by the First Amendment; (2) the
defendant’s actions were motivated or substantially caused by his
exercise of that right; and (3) the defendant’s actions caused him some
injury.” Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013). The
claim against Timbrouck fails because there is no allegation that
Timbrouck knew that A.H. spoke to KPD officers, let alone what A.H. said.
(Am. Compl. ¶¶ 23, 35.) The claim against Meyer likewise fails because
plaintiffs do not sufficiently allege either “that [A.H.’s] speech [was]
adversely affected by the government retaliation or that [A.H.] . . . suffered
some other concrete harm” because of Meyer’s actions. Dorsett, 732
F.3d at 160. Even if Meyer hid exculpatory evidence and gave false

22

testimony in Family Court,15 (Am. Compl. ¶¶ 49, 69), there was no injury to
A.H. because she was returned to Hardaway and Callwood upon
completion of the application to return hearing, and the neglect and
violation petitions were dismissed after trial in Family Court, (id. ¶¶ 52,
72).
2.

First Amendment Retaliation as to Hardaway

Hardaway’s ninth cause of action, which is against the County
defendants for First Amendment retaliation based on acts in response to
Hardaway’s cross-examination during Family Court proceedings, (Am.
Compl. ¶ 142), survives as to Stitt and Joern but must be dismissed as to
the remaining County defendants, as explained below.
a.

Stitt

Stitt began her investigation after Hardaway’s cross-examination of
Meyer and a KPD officer, and Stitt said Hardaway and Callwood would be
arrested because “‘nothing seems to be adding up.’”16 (Am. Compl. ¶¶ 73,
15

Hardaway and Callwood also allege that the removal of A.H. and J.H., confiscation of
A.H.’s cellular phone, and two medical examinations were done in retaliation for A.H.’s speech.
(Am. Compl. ¶ 140.) However, the removal decision was made before A.H. told Meyer what
happened, Meyer did not take A.H.’s cell phone, and Meyer had no involvement as to either
medical examination. (Id. ¶¶ 24, 35, 41, 99(K).)
16

The court notes that Stitt said this at a meeting with Culmone-Mills, Greene, and
Meyer. (Am. Compl. ¶ 73.) The mere fact that Culmone-Mills, Greene, and Meyer were
present at that meeting is insufficient to support a retaliation claim against any of them.

23

75, 142.) These allegations facially constitute a valid First Amendment
retaliation claim.17 See Dorsett, 732 F.3d at 160.
b.

Joern

Plaintiffs allege that Joern retaliated against Hardaway by making
disparaging Facebook comments. (Am. Compl. ¶¶ 58, 142.) As
described above, see supra Part IV.A.1.a, Joern is not entitled to
prosecutorial immunity for the Facebook comments. The claim thus
survives as to Joern.
c.

Culmone-Mills

Although Culmone-Mills is not entitled to absolute prosecutorial
immunity as to each claim against her, see supra Part IV.A.1.b, she is
immune regarding her “prefer[ence]” that Hardaway and Callwood spend
the night in jail after they were arrested, (Am. Compl. ¶ 108), because
such a decision is a “component[] of the initiation and presentation of a
prosecution,” Doe v. Phillips, 81 F.3d 1204, 1213 (2d Cir. 1996). As none
of Culmone-Mills’ other conduct adversely affected Hardaway’s speech or
caused him to suffer some other concrete harm, the First Amendment

17

This claim is bolstered by the allegation that Stitt investigated Hardaway only and not
Callwood. (Am. Compl. ¶ 75.)

24

retaliation claim as to Culmone-Mills is dismissed. See Dorsett, 732 F.3d
at 160.
d.

Remaining Defendants

Iapoce, Sorkin, and Carnright have absolute prosecutorial immunity,
see supra Part IV.A.1.c-d, and Hardaway fails to sufficiently allege that the
retaliation of Greene, Webb, Timbrouck, Meyer, or the County caused him
concrete harm or an adverse effect on his speech, see Dorsett, 732 F.3d
at 160. Therefore, the First Amendment retaliation claim against them is
dismissed.
D.

Malicious Prosecution
The County defendants assert that plaintiffs’ state law malicious

prosecution claim (seventeenth cause of action) against Culmone-Mills
and Stitt should be dismissed because plaintiffs failed to file a notice of
claim, as required by New York state law. (Dkt. No. 20, Attach. 2 at 1516.) But the court agrees with plaintiffs that a notice of claim is not
required for an intentional tort claim against a municipal employee in her
individual capacity for which the municipality has no obligation to
indemnify the employee. See Lluberes v. City of Troy, No. 11-CV-1346,
2014 WL 1123413, at *21 (N.D.N.Y. Mar. 21, 2014); Knox v. Cty. of
25

Ulster, No. 1:11-CV-0112, 2013 WL 286282, at *9 (N.D.N.Y. Jan. 24,
2013). The County defendants do not argue that the County has an
obligation to indemnify Culmone-Mills and Stitt for malicious prosecution,
and thus the claim survives.18
E.

Substantive Due Process
The court dismisses plaintiffs’ eighteenth cause of action, which

claims a substantive due process violation, because it violates Rule
8(a)(2), as argued by the County Defendants. (Dkt. No. 20, Attach. 2 at
5.)19 The claim does not specify which actions violate substantive due
process, nor which defendants are responsible, nor whose rights were
violated, nor even which substantive due process rights are at issue.
(Am. Compl. ¶ 160.) The only factual content supporting the claim is a
reference incorporating the previous 158 paragraphs, and “[s]uch general

18

The court notes the County defendants’ argument for dismissal based on plaintiffs’
allegation that “[a]t all times relevant, the individual defendants acted in the scope of their
employment.” (Dkt. No. 46 at 6-7 (internal quotation marks omitted).) However, dismissal on
that basis would unduly favor form over substance. Plaintiffs make a claim of malicious
prosecution, which, as an intentional tort, necessarily implies that individuals were acting
outside the scope of their employment.
19

The County defendants argue that the entire Amended Complaint should be
dismissed for violating Rule 8. (Dkt. No. 20, Attach. 2 at 5.) Although the court does not
agree with the County defendants to that extent, the argument is accepted as it applies to
plaintiffs’ eighteenth cause of action. In any event, the court has the power to dismiss a claim
sua sponte for failure to comply with Rule 8(a)(2). See Simmons v. Abruzzo, 49 F.3d 83, 86
(2d Cir. 1995).

26

allegations, without supporting facts other than a clause incorporating an
entire complaint by reference, are insufficient to withstand even a motion
to dismiss because they do not give fair notice of what the claim is and the
grounds upon which it rests.” Brandon v. City of New York, 705 F. Supp.
2d 261, 268-69 (S.D.N.Y. 2010) (internal quotation marks and citations
omitted); see United States v. Int’l Longshoremen’s Ass’n, 518 F. Supp.
2d 422, 463 n.75 (E.D.N.Y. 2007) (“[I]t is not the duty of the defendants or
this [c]ourt to sift through the [c]omplaint and guess which factual
allegations support which claims.”) (internal quotation marks and citation
omitted).
F.

Municipal Liability and Supervisory Liability
Hardaway’s nineteenth cause of action consists of claims of

municipal liability on the grounds of policy and practices and failure to
train, as well as supervisory liability claims. (Am. Compl. ¶¶ 162-64.) The
court addresses each of these in turn.
1.

Municipal Liability: Policy and Practices

“[A] municipality can be held liable under Section 1983 if the
deprivation of the plaintiff’s rights under federal law is caused by a
governmental custom, policy, or usage of the municipality.” Jones v.
27

Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (internal citations
omitted). “[A]part from a detailed recounting of [their] own experiences,
[plaintiffs’] complaint contains only general and conclusory allegation[s]”
as to the County’s policies and practices, Schnauder v. Gibens, 679 F.
App’x 10 (2d Cir. 2017) (internal quotation marks and citation omitted),
and plaintiffs thus fail to state a municipal liability claim based on a
custom, policy, or usage. See Uwadiegwu v. Dep’t of Soc. Servs., 639 F.
App’x 13, 16 (2d Cir. 2016). The claim is dismissed, and plaintiffs’ request
for a declaratory judgment, (Am. Compl. ¶ 179), is dismissed for the same
reasons. See Cty. of Los Angeles v. Humphries, 562 U.S. 29, 31 (2010).
2.

Municipal Liability: Failure to Train

Plaintiffs also fail to state a municipal liability claim on the grounds of
the County’s failure to train. “[A] municipality can be liable for failing to
train its employees where it acts with deliberate indifference in
disregarding the risk that its employees will unconstitutionally apply its
policies without more training.” Amnesty Am. v. Town of W. Hartford, 361
F.3d 113, 129 (2d Cir. 2004) (citing City of Canton v. Harris, 489 U.S. 378,
387-90 (1989)). But plaintiffs fail to “identify a specific deficiency in the
[County]’s training program and establish that that deficiency . . . actually
28

caused [any] constitutional deprivation.” Id. at 129 (internal quotation
marks and citation omitted). A failure to train claim must “be based on
more than the mere fact that the misconduct occurred in the first place,”
which plaintiffs’ conclusory allegations fail to provide. Id. (internal citations
omitted). The claim is thus dismissed.
3.

Supervisory Liability

A supervisor may be held personally liable20 under § 1983 if he “(1)
directly participated in the infraction, (2) failed to remedy the wrong after
learning of the violation, (3) created a policy or custom under which
unconstitutional practices occurred or allowed such a policy or custom to
continue, or (4) was grossly negligent in managing subordinates who
caused the unlawful condition or event.” Abbas v. Senkowski, No.
03CV476, 2005 WL 2179426, at *2 (N.D.N.Y. Sept. 9, 2005) (citing
Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)). The allegations
that Carnright, Iapoce, and Sorkin directly participated in Constitutional
violations, (Am. Compl. ¶ 164(a)), are barred by absolute prosecutorial
immunity. See supra Part IV.A.1.c-d. And even if those allegations were

20

The court notes that supervisory liability (where a supervisor is personally liable) is
distinct from municipal liability (where a municipal entity is liable). Plaintiffs include claims for
each in their nineteenth cause of action. (Am. Compl. ¶¶ 162-64.)

29

not barred by absolute immunity, they do not satisfy any of the
aforementioned bases for liability. The claims, (Am. Compl. ¶ 164(b)-(d)),
are conclusory and “naked assertion[s] devoid of further factual
enhancement,” and the court “[is] not bound to accept as true a legal
conclusion couched as a factual allegation.” Pension Benefit Guar. Corp.
ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv.
Mgmt. Inc., 712 F.3d 705, 717 (2d Cir. 2013) (internal quotation marks
and citations omitted). Therefore, plaintiffs’ failure to supervise claims are
dismissed.
G.

Punitive Damages
The County defendants argue that punitive damages are not

available against a municipality, (Dkt. No. 20, Attach. 2 at 18), and
plaintiffs fail to show otherwise. See City of Newport v. Fact Concerts,
Inc., 453 U.S. 247, 271 (1981) (“[A] municipality is immune from punitive
damages under 42 U.S.C. § 1983.”). Thus, plaintiffs’ demand for punitive
damages against the County is dismissed. However, the County
defendants have not provided a valid basis for dismissing plaintiffs’
demand for punitive damages from the County defendants (excepting the

30

County) in their individual capacities.21
H.

Permanent Injunction
Because plaintiffs “ha[ve] made no showing that [they are]

realistically threatened by a repetition” of the alleged harm that they
suffered as a result of the § 1024 removal notice’s lack of contact
information, plaintiffs lack standing to seek an injunction. City of Los
Angeles v. Lyons, 461 U.S. 95, 109 (1983). Even if plaintiffs had
standing, an injunction “is unavailable absent a showing of irreparable
injury, a requirement that cannot be met [because] there is no showing of
any real or immediate threat that . . . plaintiff[s] will be wronged again” by
an omission of contact information from a § 1024 removal notice. Id. at
111.
I.

Attorney’s Fees
Under § 1988, a prevailing party in a § 1983 action may be allowed

to recover reasonable attorney’s fees. LeBlanc-Sternberg v. Fletcher, 143
F.3d 748, 757 (2d Cir. 1998) (citing 42 U.S.C. §§ 1988). But a decision on
that issue is premature at this stage of the proceedings. See Rielly v.

21

All claims for damages against the County defendants (excepting the County) in their
official capacities have been dismissed. See supra Part IV.A.4.

31

Barkley, No. 91 CV 4871, 1992 WL 390282, at *2 (E.D.N.Y. Dec. 15,
1992).
J.

The City Defendants’ Cross-Claim
The County defendants moved to dismiss the cross-claim brought

against them by the City defendants. (Dkt. No. 20, Attach. 2 at 1; Dkt.
No. 16 at 5.) The court deems the City defendants’ failure to file any
opposition as consent to the granting of the motion under Local Rule
7.1(b)(3), and their cross-claim is hereby dismissed. See Burns v.
Trombly, 624 F. Supp. 2d 185, 197 (N.D.N.Y. 2008).
K.

Other Observations
The court notes that it appears plaintiffs’ tenth, eleventh, and twelfth

causes of action are subject to dismissal because § 1983 liability may not
be predicated on a claim of malicious abuse of civil process. Green v.
Mattingly, 585 F.3d 97, 104 (2d Cir. 2009). However, because the issue
was neither raised nor argued by the parties, the court declines to dismiss
those claims at this time.
The court also notes that Hardaway withdrew his thirteenth cause of
action for “false arrest / false imprisonment” as to Culmone-Mills and Stitt.
(Dkt. No. 37 at 1.)
32

Finally, the court notes that the dismissal of plaintiffs’ claims is with
prejudice because plaintiffs have already amended their complaint once,
and they did not seek leave to amend their complaint for a second time in
their opposition to the County defendants’ motion to dismiss. See Shields
v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1132 (2d Cir. 1994).
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the County defendants’ motion to dismiss (Dkt.
No. 20) is GRANTED IN PART and DENIED IN PART as detailed below;
and it is further
ORDERED that all of plaintiffs’ causes of action as against the
County defendants (excepting the County) in their official capacities for
damages (Am. Compl. ¶¶ 125-180) are DISMISSED; and it is further
ORDERED that plaintiffs’ eighteenth and nineteenth causes of
action (Am. Compl. ¶¶ 159-60, 161-64) and requests for a permanent
injunction and a declaratory judgment (Am. Compl. ¶¶ 178-79) are
DISMISSED; and it is further
ORDERED that plaintiffs’ demand for punitive damages (Am.
Compl. ¶ 175) as against the County is DISMISSED; and it is further
33

ORDERED that plaintiffs’ ninth cause of action (Am. Compl. ¶¶ 14142) is DISMISSED as against Culmone-Mills, Greene, Webb, Timbrouck,
Meyer, Carnright, Sorkin, Iapoce, and the County; and it is further
ORDERED that plaintiffs’ tenth, eleventh, twelfth, twentieth, and
twenty-first causes of action (Am. Compl. ¶¶ 143-44, 145-46, 147-48, 16566, 167-71) are DISMISSED as against Carnright, Sorkin, and Iapoce;
and it is further
ORDERED that plaintiffs’ seventh and eighth causes of action (Am.
Compl. ¶¶ 137-38, 139-40) are DISMISSED as against Timbrouck and
Meyer; and it is further
ORDERED that plaintiffs’ thirteenth cause of action (Am. Compl.
¶¶ 149-50) is DISMISSED as against Culmone-Mills and Stitt; and it is
further
ORDERED that the City defendants’ cross-claim (Dkt. No. 16 at 5) is
DISMISSED; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.

34

IT IS SO ORDERED.
September 29, 2017
Albany, New York

35