Harper v. John Does 1-10

Filing 10

MEMORANDUM-DECISION & ORDER: that the Clerk of Court correct the division from 9 to 3 in case number 9:12-CV-0735; that these two actions be and hereby are consolidated with the first filed action (Civil Action No. 3:12-CV-0646) being designated as t he lead case and the action subsequently commenced by plaintiff in the E.D.N.Y. and transferred to the N.D.N.Y. (Civil Action No. 3:12-CV-0735) being designated as the member case, pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, solel y for purposes of pretrial proceedings, without prejudice to the right of one or both parties to later apply to the assigned trial judge for an order consolidating the cases for trial; and it is further; that the clerks office adjust its records to reflect that 3:12-CV-0646, will be designated as the lead case; that plaintiff's application to proceed in forma pauperis (Dkt. # 2) is granted. Signed by Judge Norman A. Mordue on 7/26/2012. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

SISTER LASHON HARPER
Plaintiff,
vs.
3:12-CV-0646

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NEW YORK CHILD WELFARE COMMISSIONERS,
ADMINISTRATION FOR CHILDRENS SERVICES,
BROOME COUNTY DEPARTMENT OF SOCIAL
SERVICES and BROOME COUNTY CHILD
PROTECTIVE SERVICES,
Defendants,

SISTER LASHAN HARPER
Plaintiff

9:12-CV-0735

vs.
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JOHN DOES 1 - 10,
Defendants.
_________________________________________
APPEARANCES:

OF COUNSEL:

SISTER LASHON HARPER
Plaintiff, Pro Se
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Norman A. Mordue, U.S. District Judge
MEMORANDUM-DECISION AND ORDER
I.

Introduction
Presently before the Court are two actions (Case No. 3:12-CV-0646 and Case No. 9:12-

CV-0735) commenced by the pro se plaintiff. Hon. David E. Peebles, United States Magistrate
has prepared a Report-Recommendation and Order which recommends consolidation and
dismissal of both actions for failure to state a cause of action with leave to replead. In lieu of

filing objections to the Magistrate Judge’s Report-Recommendation, plaintiff has filed a 186 page
amended complaint (Dkt # 8) with 167 pages of exhibits. Subsequent to filing her amended
complaint, plaintiff filed a motion (Dkt # 9) seeking “immediate custody” of her daughter and to
“vacate” a “void judgment.”
II.

Factual and Procedural background
As an initial matter, the Court finds that the filing of the Amended Complaint rendered

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moot the Report-Recommendation insofar as it consideration of the substance of the original two
complaints. However, the Court adopts the findings of the Report-Recommendation concerning
Magistrate Judge Peeble’s determination of plaintiff’s entitlement to IFP status.
The Court notes its obligation nonetheless to consider the sufficiency of the allegations set
forth in plaintiff’s amended pleading in light of 28 U.S.C. §1915(e). Section 1915(e) directs that,

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when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at
any time if the court determines that – . . . (B) the action . . . (I) is frivolous or malicious.” 28
U.S.C. § 1915(e)(2)(B). Thus, the Court has a gatekeeping responsibility to determine that a
complaint may be properly maintained in this district before it may permit a plaintiff to proceed
with an action in forma pauperis. See id. Turning to the allegations in the amended complaint,
they appear to be related to various encounters plaintiff had with ambulance personnel, health

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care providers, child and social welfare agencies, lawyers, judges, and other civil and law
enforcement personnel in connection with the birth of her child and subsequent DSS and family
court proceedings concerning custody and visitation with her child. In her extremely long,
disjointed and rambling amended complaint, plaintiff provides few facts. The Court has reviewed
the entire pleading and pieced together the following scenario from the information and various

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documents attachments thereto. It appears that plaintiff gave birth to a baby girl on or about June
24, 2011, either at Lourdes Hospital in Binghamton, New York or en route to said hospital in an
ambulance. Plaintiff devotes a considerable amount of time in her amended complaint detailing
the actions of an EMS worker in the ambulance which transported her to the hospital. Plaintiff
states that this man, a blonde man named Adam, “rubbed her clitoris,” allegedly to prevent
excessive bleeding, and no one did anything to stop him although they knew what he was doing.
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Plaintiff also alleges that personnel including nurses at the hospital were not prepared for her and
that the room where she and her baby stayed was unsanitary. Plaintiff seems to allege medical
malpractice on the part of the nurses, doctors and Lourdes Hospital itself.
It appears that plaintiff’s child was removed from her custody very shortly after birth due
to alleged neglect. Attached to the amended complaint is an Order of the Broome County Family

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Court dated March 30, 2012, indicating that all matters relating to neglect, custody and limited
visitation rights of her child were dismissed without prejudice. Also included, however, is a letter
from plaintiff’s attorney to the Broome County Family Court judge dated May 11, 2012, which
purports to relate to an ongoing “trial” of an unsupervised visitation rights matter. Complicating
matters further is the motion filed by plaintiff concerning her request for immediate custody of
her daughter and an order vacating a “void judgment.” In this motion, plaintiff asserts that her

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daughter was “illegally kidnaped” by defendants on June 24, 2011, that a Broome County Family
Court Judge is allowing Department of Social Services’ (“DSS”) personnel to be witnesses for
plaintiff’s baby’s father. Plaintiff states that her visits have been illegally revoked and
unannounced and that she is not certain where her child is. It is wholly unclear to the Court what
plaintiff’s actual status is vis-a-vis her child regarding custody and visitation rights.

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There are documents attached to the amended complaint that shed some light on the DSS
determination to bring neglect charges against plaintiff. In a December 14, 2011, letter from DSS
to plaintiff, a caseworker advised plaintiff that a supervised visit with her daughter had been
scheduled for December 20, 2011. The caseworker, Heather Denton, and her supervisor, both of
whom are named as defendants in this lawsuit, advise plaintiff that she was expected to provide
proper care for her child during the visit and that she could not be under the influence of drugs or
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alcohol. The letter states that during plaintiff’s last visits, the baby was scheduled to eat and
plaintiff was “asked to feed her several times and refused.” Ms. Denton wrote that she believed
this was the reason that the baby cried throughout the entire visit. Ms. Denton also wrote that
plaintiff would be required to face her caseworker during the supervised visit for safety reasons
and not keep her back to Ms. Denton and the supervisor. The caseworker also asked plaintiff not

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to attempt to breast feed her baby due to the extended period of time it had been since she last saw
the baby and instructed her to bring baby food to the visit from an approved list in unopened jars.
In the May 11, 2012, letter from plaintiff’s attorney to the Broome County Family Court
Judge adjudicating a visitation matter involving plaintiff, states that DSS alleged plaintiff was
violent, used drugs and was not cooperative with DSS. DSS also asserted that plaintiff was
charged with criminal mischief in the 4th degree. The letter from plaintiff’s attorney makes

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reference to an objectionable “ritual” noted by DSS in which plaintiff laid her baby down,
undressed her, checked her diaper and wiped her down with sanitized wipes even after being told
not to do so by DSS personnel.1 Plaintiff’s attorney also stated that a supervised visit with her

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Apparently, plaintiff had a concern about animal hairs being on the baby and attempted to remove them
with the wipes. Indeed, the Court notes in the three pleadings that plaintiff has presented to this Court in this matter,
plaintiff has devoted substantial portions of time discussing various instances in which she found animal hairs on her
infant daughter.

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daughter was “cut short” because plaintiff was giving her baby food that was “for a different stage
[than] the baby’s age.”
The amended complaint names as defendants the New York Child Welfare
Commissioners, the State of New York Administration for Children’s Services, and the Broome
County Department of Social Services. Plaintiff also names as defendants her case worker
Heather Denton and all other case workers, social workers, supervisors, directors, and trainees at
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DSS. Also named as defendants are every lawyer, judge, clerk, supervisor, law guardian, foster
care parent, child care facilitator and security guard involved in plaintiff’s case. Plaintiff also
named the New York City Mayor and Commissioner of New York State Welfare as defendants.
In her first cause of action, she asserts violation of the New York State Constitution,
violation of civic rights, violation of human rights, violation of crime victims’ rights, violation of

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New York State rights, and violation of privacy laws. In the second cause of action, she claims
judicial malpraction (sic), judicial misconduct, judicial corruption, lawyer/attorney malpractice,
lawyer/attorney misconduct, lawyer/attorney corruption, profession misconduct, profession
malpractice, profession corruption, sexual assault, medical malpraction (sic). Finally, in the third
cause of action, plaintiff alleges intimidation, aggravated harassment, mental anguish, fraud,
intentional infliction of emotional distress, illegal studies, abuse of authority; violation of court

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orders, false arrest/[incarceration],organized discrimination, organized systematic stalking,
slander, pathological lying, exploitation, extortion, illegal kidnaping, child racketeering.
III.

Discussion

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The Amended Complaint
In deciding whether a complaint states a colorable claim a court must extend a certain

measure of deference towards pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990)
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(per curiam), and extreme caution should be exercised in ordering sua sponte dismissal of a pro
se complaint before the adverse party has been served and the parties have had an opportunity to
respond, Anderson v. Coughlin, 700 F.2d 37, 41 (1983). There is, nonetheless, an obligation on
the part of the court to determine that a claim is not frivolous before permitting a plaintiff to
proceed. See Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d
Cir. 2000) (district court may dismiss frivolous complaint sua sponte notwithstanding fact the
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plaintiff has paid statutory filing fee); Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir.
1994) (district court has power to dismiss case sua sponte for failure to state a claim).
“Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal
theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense
clearly exists on the face of the complaint.’” Aguilar v. United States, Nos. 3:99-MC-304,

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3:99-MC-408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (Burns J.) (quoting
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v.
Williams, 490 U.S. 319, 325 (1989) and Pino v. Ryan, 49 F.3d. 51, 53 (2d Cir.1995) (“[T]he
decision that a complaint is based on an indisputably meritless legal theory, for the purposes of
dismissal under section 1915(d), may be based upon a defense that appears on the face of the
complaint.”).

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When reviewing a complaint under section 1915(e), the court may also look to the Fed. R.
Civ. P.. Rule 8 of the Fed. R. Civ. P. provides that a pleading that sets forth a claim for relief
shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief
[.]” Fed. R. Civ. P. 8(a)(2). The purpose of Rule 8 “‘is to give fair notice of the claim being
asserted so as to permit the adverse party the opportunity to file a responsive answer [and]

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prepare an adequate defense.’” Hudson v. Artuz, No. 95 CIV. 4768, 1998 WL 832708, *1
(S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.
1995) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977))) (other citation omitted).
The only specific factual allegations in the amended complaint relate to the alleged sexual
assault that occurred in the ambulance and the alleged medical malpractice or unsanitary
conditions that occurred at the hospital in this case. According to plaintiff, the ambulance worker
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was a “Town of Union” employee. However, the Court notes that the ambulance worker was
likely part of a volunteer EMS squad in the Town of Union, New York. The actions of the EMS
worker and hospital employees, illegal and wrongful if they occurred, do not provide this Court
with a basis for federal or diversity subject matter jurisdiction. Insofar as her claims under 42
U.S.C. § 1983, plaintiff makes only vague factual allegations concerning wrongdoing by the

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judges, case workers, social workers and other people assigned to work with her and her
daughter. Plaintiff asserts that her daughter was illegally kidnaped and her visits have been
illegally revoked and unannounced but provide no further facts in support of these claims.
Plaintiff also suggests that her baby’s father has custody of her while also stating she does not
know where her daughter is.
The amended complaint is replete with legal conclusions regarding alleged wrongdoing in

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this case but these conclusory statements are insufficient. “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)
(citation omitted). Although a court should construe the factual allegations in the light most
favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained

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in a complaint is inapplicable to legal conclusions.” Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atlantic
Corp. v. Twombly , 550 U.S. at 555, 570 (2007). Where the allegations in a pleading do not
permit the court to infer more than the mere possibility of misconduct, the complaint has not
shown that the pleader is entitled to relief. See id.
A pro se litigant's complaint should be read liberally, and the pro se litigant should be
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granted leave to amend a complaint at least once “when a liberal reading of the complaint gives
any indication that a valid claim might be stated.” Shomo v. City of New York, 579 F.3d 176, 183
(2d Cir. 2009) (internal quotation marks and citation omitted). In this case, plaintiff has already
filed an extensive amended complaint which the Court has considered. The Court finds that a
fair reading of the entire record, including the recent motion filed by plaintiff, suggests that

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plaintiff could possibly advance facts in support of a viable claim under 42 U.S.C. § 1983. In
light of her pro se status, the Court will afford plaintiff one further opportunity to amend her
complaint if she desires to proceed with this action. Any amended complaint submitted in
response to this Memorandum-Decision and Order must set forth a short and plain statement of
the facts plaintiff relies on in support of her claim that the individuals named as defendants
engaged in acts of misconduct or wrongdoing which violated her constitutional rights.

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As noted above, an individual cannot be held liable for damages under § 1983 merely
because he or she held a position of authority. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.
1996) (citations omitted). “Further, a Section 1983 plaintiff must ‘allege a tangible connection
between the acts of the defendant and the injuries suffered.’” Austin v. Pappas, No. 04-CV-7263,
2008 WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008) (citing Bass v. Jackson, 790 F.2d 260, 263 (2d

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Cir. 1986). Thus, any further amended pleading filed by plaintiff must include allegations of fact
against each defendant sufficient to demonstrate their personal involvement in the matters
complained of.
Plaintiff’s second amended complaint, which shall supersede and replace in its entirety the
original complaint in this case (3:12-CV-0646) as well as the original complaint in the companion
case (3:12-CV-0735) in addition to the amended complaint which is the subject of this
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Memorandum-Decision and Order, must be a complete pleading which sets forth all of the claims
that she wants this Court to consider as a basis for awarding relief herein. Plaintiff is advised that
her failure to file a second amended complaint within thirty (30) days of the filing date of this
Decision and Order will result in dismissal of this action without prejudice without further Order
of the Court.

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B.

Plaintiff’s Motion
As referenced above, plaintiff filed a motion subsequent to filing her amended complaint

for immediate custody of her daughter and to vacate a void judgment. There are few factual
averments in said motion and it does not suggest that imminent harm will come to plaintiff or her
daughter if immediate relief is not granted to her. Moreover, the Court notes that there has been
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no viable complaint filed yet in this action. There are no causes of action pending and no named
defendants. Thus, the Court cannot grant the relief requested by plaintiff at this time, particularly
in the absence of facts setting forth her legal entitlement to such relief. Based thereupon, her
motion must be denied.
IV.

Conclusion
WHEREFORE, it is hereby

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ORDERED that the Clerk of Court correct the division from 9 to 3 in case number
9:12-CV-0735; and it is further
ORDERED that these two actions be and hereby are consolidated with the first filed
action (Civil Action No. 3:12-CV-0646) being designated as the lead case and the action
subsequently commenced by plaintiff in the E.D.N.Y. and transferred to the N.D.N.Y. (Civil
Action No. 3:12-CV-0735) being designated as the member case, pursuant to Rule 42(a) of the
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Federal Rules of Civil Procedure, solely for purposes of pretrial proceedings, without prejudice to
the right of one or both parties to later apply to the assigned trial judge for an order consolidating
the cases for trial; and it is further
ORDERED, that the clerk’s office adjust its records to reflect that 3:12-CV-0646, will be
designated as the lead case; and it is further

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ORDERED that plaintiff's application to proceed in forma pauperis (Dkt. # 2) is granted;
and it is further
ORDERED that plaintiff is granted leave to file a second amended complaint as set forth
above within thirty (30) days from the date of the filing of this Decision and Order. The Clerk is
directed to send plaintiff a blank § 1983 complaint form and a copy of her amended complaint for

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use in preparing a second amended complaint; and it is further
ORDERED that in the event plaintiff fails to file a signed second amended complaint
within thirty (30) days from the date of the filing of this Decision and Order, the Clerk shall
enter judgment dismissing this action without prejudice pursuant to 28 U.S.C. § 1915(e) and 28
U.S.C. § 1915A due to plaintiff's failure to state a claim upon which relief can be granted and to
comply with the terms of this Order, without further order of this Court; and it is further

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ORDERED that upon the filing of plaintiff's second amended complaint this matter be
returned to the Court for further review; and it is further
ORDERED that plaintiff’s motion for immediate custody of her daughter and to vacate a
void judgment is DENIED without prejudice; and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on plaintiff .
IT IS SO ORDERED.
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Date: July 26, 2012

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