Cruz v. The State of New York et al

Filing 6

ORDER STAYING CASE: It is Ordered that the # 2 Motion for Leave to Proceed in forma pauperis filed by Kiplind L. Cruz is GRANTED, It is further Ordered that this case be STAYED for ninety days in order to give Plaintiff time toretain counsel with r egard to all claims being pursued on behalf of his minor children, to move for appointment of counsel, or to file an amended notice of removal and amended complaint deleting all claims asserted on behalf of Plaintiffs minor children. Status Report du e by 9/11/2017. If no status report is filed, the Court will issue a Report and Recommendation that will recommend that the complaint be dismissed without prejudice. Unpublished decision attached and served upon the pro se plaintiff. Signed by Magistrate Judge Therese Wiley Dancks on 6/13/2017. (Copy served upon the pro se plaintiff via regular mail) (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
KIPLIND L. CRUZ, Individually and on
Behalf of his Two Minor Children,
Plaintiff,
5:17-CV-00510
v.
(BKS/TWD)
THE STATE OF NEW YORK, et al.,
Defendants.
_____________________________________________
APPEARANCES:
KIPLIND L. CRUZ
Individually and on Behalf of his
Two Minor Children
Plaintiff, pro se
5825 Townline Road
Cincinnatus, NY 13040
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
ORDER
Plaintiff Kipland L. Cruz, Individually and on behalf of his two minor children, has
submitted for filing by the Clerk: (1) a notice of removal to federal court, pursuant to 28 U.S.C. §
1443, naming twelve Respondents involved in child support, child custody, and child abuse
proceedings in state court (Dkt. No. 1); and a separate federal court civil rights complaint brought
under 42 U.S.C. §§ 1983, 1985, and 1986. (Dkt. No. 1-2.) The Clerk has sent the notice of
removal and civil rights complaint to the Court for initial review under 28 U.S.C. § 1915(e).
Also before the Court is Plaintiff’s application for leave to proceed in forma pauperis (“IFP
Application”). (Dkt. No. 2.)

I.

IFP Application
A court may grant in forma pauperis status if a party “is unable to pay” the standard fee

for commencing an action. 28 U.S.C. § 1915(a)(1) (2006). After reviewing Plaintiff’s IFP
Application (Dkt. No. 2), the Court finds that he meets this standard. Therefore, Plaintiff’s IFP
Application is granted.
II.

NOTICE OF REMOVAL AND FEDERAL COURT CIVIL RIGHTS
COMPLAINT
A.

NOTICE OF REMOVAL

Plaintiff has labeled his notice of removal as a “Petition for Writ of Habeas Corpus in
United States District Court pursuant of 18 USC 1512(b)(3) & 18 USC §1513(b) [&] 18 USC §
242 [and] Defendants Federal Removal from State of New York County of Cortland, Chenango,
Onondaga, New York State Cortland County Combined Court to US District Court pursuant to
28 U.S.C. § 1443.” (Dkt. No. 1 at 1.1) The various state court proceedings Plaintiff seeks to
remove to federal district court primarily involve unpaid child support, child abuse claims, and a
custody dispute between Plaintiff and his ex-wife Nicole A. Cruz. (See generally Dkt. Nos. 1, 11, 1-3.)
Plaintiff seeks appropriate declaratory and injunctive relief. Id. at 44.
B.

CIVIL RIGHTS COMPLAINT

In his federal civil rights complaint under 42 U.S.C. §§ 1983, 1985, and 1986, Plaintiff
appears to have named thirty or more defendants whom Plaintiff presumably believes to have
been involved in matters related, either directly or indirectly, to the state court proceedings. (See

1

Page references to documents identified by docket number are to the numbers assigned by the CM/ECF
docketing system maintained by the Clerk’s Office.

2

Generally Dkt. No. 1-2.) Included in the complaint are allegations that Plaintiff’s minor children
have been subjected to repeated sexual abuse, mental and emotional abuse, and maltreatment by
their mother, and that false charges of child abuse and child exploitation have been placed
against Plaintiff by certain of the defendants. Id. at 15. Plaintiff has also asserted claims for
unfair employment practices and discrimination. Id. at 29. In addition to his civil rights claims
under §§ 1983, 1985, and 1986, Plaintiff has asserted claims under the Fair Housing Act, 42
U.S.C. §§ 3602-3631; the Violent Crime Control and Law Enforcement Act, 42 U.S.C. § 14141;
and two criminal statutes, 18 U.S.C. § 245 (Federally protected activities) and § 2258 (sexual
exploitation of children).
Plaintiff seeks damages in the amount of $250,000 per defendant for himself and each of
his minor children for a total of $750,000 per defendant. Id. at 29. He seeks an additional
$60,000,000 in damages for irreparable damages, retirement, and the seizure of properties, along
with declaratory and injunctive relief. Id. at 30-31.
III.

PLAINTIFF’S ATTEMPTED PRO SE REPRESENTATION OF HIS MINOR
CHILDREN
When a Plaintiff seeking relief from an officer or employee of a governmental entity

meets the financial criteria for commencing a case in forma pauperis, the Court must conduct an
initial review of the sufficiency of the allegations set forth in the complaint under 28 U.S.C. §§
1915(e) before he can proceed. Section 1915(e) directs that when a plaintiff proceeds in forma
pauperis, “the court shall dismiss the case at any time if the court determines that . . . the action .
. . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C.

3

§ 1915(e)(2)(B)(i)-(iii).2
The Court finds initial review to be premature in this case. A litigant in federal court has
the right to act as his own counsel. See 28 U.S.C. § 1654 (1982) (“in all courts of the United
States, the parties may plead and conduct their own cases personally or by counsel. . . .”).
Morever, Rule 17(c) of the Federal Rules of Civil Procedure authorizes a general guardian to
bring suit on behalf of a minor. Fed.R.Civ.P. 17(c)(1)(A). However, it is well established that
“[a] person who has not been admitted to the practice of law may not represent anybody other
than himself.” Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010) (citing Lattanzio v. COMTA, 481
F.3d 137, 139 (2d Cir. 2007) and 28 U.S.C. § 1654). The prohibition extends to non-lawyer
parents seeking to represent their children. See Cheung v. Youth Orchestra Foundation of
Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990) (“It goes without saying that it is not in the interest
of minors or incompetents that they be represented by non-attorneys. Where they have claims
that require adjudication, they are entitled to trained legal assistance so their rights may be fully
protected.”); KLA v. Windham Southeast Supervisory Union, 348 F. App’x 604, 605-05 (2d Cir.
2009) (the prohibition on unlicensed laymen representing anyone other than themselves extends
to non-lawyer parents seeking to represent their children); Panzardi v. Jensen, No. 13-CV-441
(MKB), 2014 WL 905546, at * 2 (E.D.N.Y. March 7, 2014)3 (non-lawyer parents are prohibited
from representing their children).

2

To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an
arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319,
327 (1989).
3

A copy of the unpublished decision cited herein will be provided to Plaintiff in accordance with
LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

4

Because Plaintiff, a non-attorney, cannot proceed pro se on behalf of his minor children,
initial review of the notice of removal and federal civil rights complaint cannot be undertaken at
this point. See Cheung, 906 F.2d at 62 (remand by Second Circuit of a case dismissed sua sponte
on the grounds that a non-attorney parent must be represented by counsel in bringing an action on
behalf of his or his child, stating: “We believe that no issues concerning this litigation should be
decided until the counsel issue is resolved. We remand to give [plaintiff] an opportunity to retain
counsel or to request the appointment of counsel. . . . If [plaintiff] does not retain counsel and if
the district declines to appoint counsel, the complaint should be dismissed without prejudice.”).
It is not possible at this point for the Court to separate out claims that may be solely those
of the Plaintiff with sufficient certainty to ensure that initial review of those claims would not
ultimately harm the interests of his as yet unrepresented children. Therefore, the Court will order
that the case be stayed for ninety days in order to give Plaintiff time to retain counsel with regard
to all claims being pursued on behalf of his minor children, to move for appointment of counsel,4
or file an amended notice of removal and amended complaint deleting all claims asserted on
behalf of his minor children. If there is no appearance by counsel on the claims Plaintiff is
pursuing on behalf of his minor children, no motion filed for appointment of counsel, and no

There is no legal right to counsel in civil cases. Hodge v. Police Officers, 802 F.2d 58, 60
(2d Cir. 1986). However, 28 U.S.C. § 1915 specifically provides that a court may request an attorney
to represent any person “unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The Court cautions
Plaintiff that while counsel may be appointed in appropriate circumstances, see Fed.R.Civ.P. 17(c),
28 U.S.C. § 1915(e)(1), the appointment of counsel is far from a sure thing, particularly where, as in
this case, there is not a fully developed record from which an assessment of the merits of the case can
be made. See Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (court must look to the
likelihood of merit of the underlying dispute in determining whether to appoint counsel); Cooper v. A.
Sargenti Co., Inc., 877 F.2d 170, 174 (2d Cir. 1989) (per curiam) (even where a claim is not
frivolous, counsel should not be appointed in a case where the merits are thin and a plaintiff’s chance
of prevailing is poor).
4

5

amended notice of removal and/or complaint deleting all claims asserted on behalf of the minor
children filed on or before September 11, 2017, the Court will issue a Report-Recommendation
to the assigned District Court Judge recommending that the notice of removal and federal civil
rights complaint be dismissed without prejudice.
WHEREFORE, it is hereby
ORDERED that Plaintiff’s IFP Application (Dkt. No. 2) is GRANTED; and it is further
ORDERED that this case be stayed for ninety days in order to give Plaintiff time to
retain counsel with regard to all claims being pursued on behalf of his minor children, to move
for appointment of counsel, or to file an amended notice of removal and amended complaint
deleting all claims asserted on behalf of Plaintiff’s minor children. If the Court does not receive
notice by September 11, 2017, that Plaintiff has taken one of those actions, the Court will issue a
Report-Recommendation to the assigned District Court judge recommending that the notice of
removal and federal civil rights complaint be dismissed without prejudice; and it is further
ORDERED that the Clerk serve copies of this Order and the unpublished decision in
Panzardi v. Jensen, No. 13-CV-441 (MKB), 2014 WL 905546 (E.D.N.Y. March 7, 2014) in
accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

IT IS SO ORDERED.
Dated: June 13, 2017
Syracuse, New York

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2014 WL 905546
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Alex PANZARDI, Plaintiff,
v.
Poul JENSEN, Rolando Perez, Deborah
Brewer, Alban Boucher, Shannon Greene,
and Dr. Carmen Veloz, Defendants.
No. 13–CV–4441 (MKB).
|
Signed March 7, 2014.
Attorneys and Law Firms
Alex Panzardi, Romulus, NY, pro se.

MEMORANDUM & ORDER
MARGO K. BRODIE, District Judge.
*1 On July 19, 2013, the Court received several
documents from Alex Panzardi, a prisoner incarcerated
at Five Points Correctional Facility, including a handwritten letter addressed to “District Court Staff,” a
completed application to proceed in forma pauperis and
a Prisoner Authorization form. (See Docket Entry No.
1.) No complaint was included among the documents.
On August 7, 2013, the clerk's office mailed a packet
with the necessary forms for filing a civil rights complaint
and directed Plaintiff to return them within 14 days. (Id.)
Plaintiff requested and received several extensions of time
to file a complaint, and eventually filed an Amended
Complaint on November 1, 2013. (See Docket Entry No.
8 (“Am.Compl.”).) The Court grants Plaintiff's request to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
For the reasons discussed below, the Amended Complaint
is dismissed for lack of jurisdiction and for failure to state
a claim. Plaintiff is granted leave to replead his 42 U.S.C.
§ 1983 claim for damages within 30 days.

I. Background
The Amended Complaint is on a form for filing civil
rights complaints pursuant to 42 U.S.C. § 1983, and
names six individuals as defendants, each apparently

employed by Graham Windham, a private child welfare
agency (“Graham Windham” or “the Agency”). (Am.
Compl. at 3–4. 1 ) Plaintiff alleges that the staff of the
Agency intervened in his visits with his son by making
recommendations to family court “with out having any
kind of hard ‘evidence’ on how visits would [have] been
‘detrimental’ or ‘harmful’ to my son,” and medicated his
son without Plaintiff's consent. (Id. at 5.) Plaintiff further
alleges that the Agency's staff “violated numerous ... court
orders [and] motions.” (Id.) He alleges that Defendants'
actions have done “ ‘severe’ ‘unrepairable’ ‘damage’ to my
son emotionaly [sic ] [and] physically [and] with his school
education as well.” (Id.)
Plaintiff attaches several exhibits to the Amended
Complaint, including his initial letter dated July 15, 2013
and filed with the Court on July 19, 2013, addressed to
the District Court Staff (“July 19, 2013 letter”). Plaintiff
appears to have challenged the Agency's determination
that visits between Plaintiff and his son should not
continue while Plaintiff is incarcerated. Plaintiff made
several allegations in the July 19, 2013 letter. Plaintiff
stated that on “Sept. 15, 2009, the Agency issue[d] a
summons against me stating that the therapist from
the Agency felt it would [have] been detrimental or
harmful for my son to see [me] in prison[,] in which the
local court granted the recommendation.” (Ex. A at 8.)
Plaintiff also alleged that this finding was made without
“ ‘hard’ ‘evidence,’ ” in violation of New York State
laws and regulations. (Id. at 8–9.) Plaintiff argued that,
“If visitation is not permitted, then the fact that you
have not visited with your child ‘cannot’ be [a] basis for
a permanent neglect or abandonment proceeding.” (Id.
at 9.) Plaintiff also alleged that his son was prescribed
various medications that had a “severe side effect” and
that the Agency prescribed these medications “to distract
his focus from me in not allowing him to have any
interest to look forward to have a relationship with
his father.” (Id.) Plaintiff accused the Agency of using
“their tactics tryin[g] to ‘coerce’ me to surrender my
parental rights to my son” and “coerce my children's
mom to surrender her parental rights not only just to
my son but also to my daughter as well.” (Id.) Plaintiff
described orders issued by Judge Marilyn Lazarello
requiring the Agency to give his letters to his son and
directing the Agency to provide Plaintiff with assistance
in strengthening his relationship with his son. (Id. at 10.)
Plaintiff claims that the Agency failed to obey these orders
and “the Agency was ... in cahoots with the foster parent

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trying to poison my son.” (Id.) Plaintiff suggested that
the Agency “should be ‘investigated’ “ for destroying
relationships between other incarcerated individuals and
their children by failing to follow court orders. (Id. at 11.)
Neither the Amended Complaint nor the attached letter
indicates Plaintiff's current custody rights as to his son.
*2 Plaintiff also attaches a March 18, 2013 letter
from Graham Windham to Plaintiff as an exhibit to
the Amended Complaint (“March 18, 2013 letter”). In
the March 18, 2013 letter the Agency sought Plaintiff's
consent to give Focalin, a psychotropic medicine, to
his son. 2 (Id. at 12.) The Agency asked Plaintiff to
sign a consent form “for the purposes of ... continuing
medical treatment” and “consent for psychotropic
medication.” (Id. at 13–14.) A hand-written notation on
the letter from the Agency states that, “The Agency never
got my consent to put my son on (medication).” (Id. at 12.)
Plaintiff has also attached to the Amended Complaint a
copy of a report documenting a “psychiatric evaluation”
of his son conducted in June 2011, which indicates that his
son was at that time on Focalin and other medications. 3
(Id. at 16.)
Plaintiff responded to the Agency's March 18, 2013
letter by letters dated March 21 and March 25, 2013,
opposing medication for his son and requesting that his
son's therapist write him a letter explaining how the
medication would be in his son's best interests. (Id. at 17–
20.) Plaintiff also requested a copy of the “2013 ‘Service
Plan.’ ” 4 (Id. at 17.) According to a subsequent Agency
“Treatment Plan” for Plaintiff's son dated April 22, 2013,
the Agency planned to “[g]et consent from father for
medication changes,” and to “[s]eek ACS [Administration
for Children Services] override if needed.” 5 (Id. at 21–22.)
The Treatment Plan indicates that the “current level of
care” for the child was in a “kinship foster home.” (Id.)
The Amended Complaint and exhibits appear to suggest
that Plaintiff is attempting to allege claims for the
following actions: (1) an unidentified therapist associated
with Graham Windham recommended to an unidentified
court that Plaintiff's son not be allowed to visit Plaintiff
in prison, without providing detailed explanation for that
determination, and such recommendation was adopted
by the court; (2) Plaintiff's son was given medication
without Plaintiff's consent; (3) unidentified “Agency
staff” failed to comply with court orders involving

Plaintiff's relationship with his son; (4) “cruel and unusual
punishment of parent and child;” and (5) “the Agency”
used unspecified tactics to try to coerce Plaintiff to
surrender his parental rights.
Plaintiff seeks $1 million in compensatory damages and $1
million in punitive damages, along with injunctive relief
to end the alleged forced medication without parental
consent and the restoration of his visitation rights. (Id.
at 6.) By Letter dated November 17, 2013 and addressed
to the Clerk of Court, Plaintiff also requested the Court's
assistance in securing additional library time to work on
his pending action. (Docket Entry No. 9.)

II. Discussion
a. Standard of Review
A complaint must plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). “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, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Although all allegations contained in the complaint are
assumed to be true, this tenet is “inapplicable to legal
conclusions.” Id. In reviewing a pro se complaint, the
court must be mindful that the Plaintiff's pleadings
should be held “to less stringent standards than formal
pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S.
5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (internal
quotation marks omitted); Harris v. Mills, 572 F.3d
66, 72 (2d Cir.2009) (noting that even after Twombly,
the court “remain[s] obligated to construe a pro se
complaint liberally”). Nevertheless, the court must screen
“a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee
of a governmental entity” and, thereafter, “dismiss the
complaint, or any portion of the complaint,” if it is
“frivolous, malicious, or fails to state a claim upon which
relief may be granted.” 28 U.S.C. § 1915A; see Abbas
v. Dixon, 480 F.3d 636, 639 (2d Cir.2007). Similarly,
the court is required to dismiss sua sponte an in forma
pauperis action, if the court determines it “(i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. § 1915(e)(2)
(B); Abbas, 480 F.3d at 639.

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*3 A plaintiff seeking to bring a lawsuit in federal
court must establish that the Court has subject matter
jurisdiction over the action. See, e.g., Monreal v. New
York, 518 F. App'x 11 (2d Cir.2013) (affirming dismissal
of pro se complaint for failure to establish subject matter
jurisdiction); Zito v. New York City Office of Payroll
Admin., 514 F. App'x 26, 27 (2d Cir.2013) (same);
Chestnut v. Wells Fargo Bank, N.A., No. 11–CV–5369,
2012 WL 1657362, at * 3 (E.D.N.Y. May 7, 2012)
(“Notwithstanding the liberal pleading standard afforded
pro se litigants, federal courts are courts of limited
jurisdiction and may not preside over cases if subject
matter jurisdiction is lacking.”). “[F]ailure of subject
matter jurisdiction is not waivable and may be raised
at any time by a party or by the court sua sponte. If
subject matter jurisdiction is lacking, the action must be
dismissed.” Lyndonville Sav. Bank & Trust Co. v. Lussier,
211 F.3d 697, 700–01 (2d Cir.2000) (citations omitted).
Federal subject matter jurisdiction is available only when
a “federal question” is presented, or when plaintiffs and
defendants have complete diversity of citizenship and
the amount in controversy exceeds $75,000. 28 U.S.C.
§ 1331 and § 1332. In order to invoke federal question
jurisdiction, a plaintiff's claims must arise “under the
Constitution, laws, or treaties of the United States.” 28
U.S.C. § 1331.

b. The Court Lacks Subject Matter Jurisdiction
The Court does not have jurisdiction over Plaintiff's
application for injunctive relief to restore visitation rights
and enforce state court orders. It is well-settled that
“the whole subject of the domestic relations of husband
and wife, parent and child, belongs to the laws of the
States and not to the laws of the United States.” In re
Burrus, 136 U.S. 586, 593–94, 10 S.Ct. 850, 34 L.Ed. 500
(1890); see also United States v. Windsor, 570 –––U.S.
––––, ––––, 133 S.Ct. 2675, 2691, 186 L.Ed.2d 808 (2013)
(“[S]ubject to [constitutional] guarantees, regulation of
domestic relations is an area that has long been regarded
as a virtually exclusive province of the States.” (citation
and internal quotation marks omitted)). “So strong is [the
Supreme Court's] deference to state law in this area that
[the Supreme Court has] recognized a ‘domestic relations
exception’ that ‘divests the federal courts of power to
issue divorce, alimony, and child custody decrees.” ‘ Elk
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12–13, 124
S.Ct. 2301, 159 L.Ed.2d 98 (2004) (quoting Ankenbrandt
v. Richards, 504 U.S. 689, 703, 112 S.Ct. 2206, 119

L.Ed.2d 468 (1992)); see also Keane v. Keane, ––– F.
App'x ––––, ––––, 2014 WL 104095, at *1 (2d Cir. Jan.13,
2014) (stating that the “domestic relations exception to
subject matter jurisdiction generally encompasses ... cases
involving the issuance of a divorce, alimony, or child
custody decree” (citation and internal quotation marks
omitted)); Hernstadt v. Hernstadt, 373 F.2d 316, 317 (2d
Cir.1967) (“Since the very early dicta [of] In re Burrus,
136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500 (1890), it has
been uniformly held that federal courts do not adjudicate
cases involving the custody of minors and, a fortiori, rights
of visitation.”); Ashmore v. New York, No. 12–CV–3032,
2012 WL 2377403, at * 1–2 (E.D.N.Y. June 25, 2012)
(“Federal courts ‘lack [ ] jurisdiction to interfere with ...
ongoing state court proceedings concerning the custody
and care of ... children.’ ” (alteration in original) (quoting
Abidekun v. N.Y.C. Bd. of Educ., No. 94–CV–4308, 1995
WL 228395, at *1 (E.D.N.Y. Apr.6, 1995))). Therefore,
Plaintiff's claim for custodial or visitation rights and any
claim seeking the enforcement of family court orders
cannot be adjudicated by this Court and must be brought
in state court.
*4 In addition, to the extent that Plaintiff seeks review
of state court decisions and orders, federal court review
of those decisions and orders would be barred by the
Rooker–Feldman doctrine. Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161
L.Ed.2d 454 (2005); see also Phifer v. City of New York,
289 F.3d 49, 57 (2d Cir.2002) (Rooker–Feldman precludes
federal court review of family court proceedings regarding
issues of child custody, including issues “inextricably
intertwined” with the state court's determinations.). The
Rooker–Feldman doctrine prohibits federal district courts
from reviewing cases brought by state court losers
complaining of injuries caused by state court judgments
rendered before the district court proceedings commenced
and inviting district court review and rejection of those
judgments. Exxon Mobil Corp., 544 U.S. at 284. This
Court may not consider Plaintiff's challenges to past
Family Court proceedings related to his custodial rights
or visitation. 6 Accordingly, all of Plaintiff's claims for
injunctive relief are dismissed for lack of subject matter
jurisdiction, pursuant to Fed.R.Civ.P. 12(h)(3).

c. Plaintiff Has Failed to State a Claim
Plaintiff also seeks damages for violation of his
constitutional rights pursuant to 42 U.S.C. § 1983 but

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Plaintiff has failed to state a claim upon which relief can
be granted. In order to state a § 1983 claim, a plaintiff must
allege (1) that the challenged conduct was “committed by
a person acting under color of state law,” and (2) that
such conduct “deprived [the plaintiff] of rights, privileges,
or immunities secured by the Constitution or laws of the
United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d
Cir.2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d
Cir.1994)). Section 1983 does not create any independent
substantive right, but rather is a vehicle to “redress ...
the deprivation of [federal] rights established elsewhere.”
Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.1999). As
the Supreme Court has held, “the under-color-ofstate-law
element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.”
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (quotations
omitted). A § 1983 plaintiff seeking to recover money
damages must also establish that the named defendant
was personally involved in the wrongdoing or misconduct
complained of. Farrell v. Burke, 449 F.3d 470, 484 (2d
Cir.2006) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d
Cir.1994)). “Because vicarious liability is inapplicable to ...
§ 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official's own individual
actions, has violated the Constitution.” Iqbal, 556 U.S. at
676.
Plaintiff has not alleged that any of the named Defendants
were acting under color of state law. 7 Moreover, even
if the named Defendants were found to be state actors
for purposes of § 1983 liability, Plaintiff has failed to
state a claim against any of them. The only Defendant
named in the body of the Amended Complaint is Jensen,
who is described as “the president of Graham Windham
Families & Childrens.” (Am. Compl. at 5.) Jensen is
named in his supervisory capacity. Although it is unclear
whether Plaintiff intended to name Jensen in his personal
capacity, (see id.), Plaintiff has not alleged that Jensen
participated in any of the alleged unlawful conduct. No
other Defendant is specifically alleged to have participated
in any alleged violation of Plaintiff's constitutional rights.
*5 Plaintiff also has not clearly identified the nature of
the constitutional rights he asserts have been violated.
Plaintiff states that his son was forcibly medicated without
his consent. However, a personal liberty claim involving
forced medication could only be advanced by Plaintiff's
son or by someone acting on his son's behalf. As a pro se

litigant, Plaintiff cannot represent his son in this action.
See Guest v. Hansen, 603 F.3d 15, 20 (2d Cir.2010) (“A
person who has not been admitted to the practice of law
may not represent anybody other than himself.”); KLA
v. Windham Se. Supervisory Union, 348 F. App'x 604,
605–06 (2d Cir.2009) (“Although litigants in federal court
have a statutory right to act as their own counsel, 28
U.S.C. § 1654, the statute does not permit ‘unlicensed
laymen to represent anyone other than themselves.’
That prohibition extends to non-lawyer parents seeking
to represent their children, and the representation of
incompetent adults.” (citations omitted)); Iannaccone v.
Law, 142 F.3d 553, 558 (2d Cir.1998) ( “[B]ecause pro se
means to appear for one's self, a person may not appear
on another person's behalf in the other's cause.... For
example, a lay person may not represent a corporation or
a partnership or appear on behalf of his or her own minor
child.”); see also Barrett v. United States, 622 F.Supp.
574 (S.D.N.Y.1985) (“[S]ection 1983 civil rights action is
a personal suit and may not be brought by a relative,
even the parents ... or spouse or children of the individual
whose civil rights were violated.” (internal quotation
marks and citations omitted)). In addition, Plaintiff has
not stated whether he currently has legal custody over
his son in order to raise a substantive due process claim
regarding his right to make medical decisions for his son.
Plaintiff has also not stated whether the Administration
for Children's Services, Graham Windham, or another
entity has temporary or some other form of custody of his
son. Finally, Plaintiff's allegation that Graham Windham
tried to “coerce” him to surrender his parental rights to
his son is too vague to state a claim under the Fourteenth
Amendment. Plaintiff has not identified any specific acts
or omissions by any of the Defendants, nor has he alleged
that he has in fact lost his parental rights or suffered any
other constitutional deprivation as a result of these acts or
omissions.
Plaintiff's § 1983 claims for damages are therefore
dismissed for failure to state a claim, pursuant to 28 U.S.C.
§ 1915(e)(2)(B) (ii). However, in light of Plaintiff's pro se
status, the Court grants Plaintiff leave to further amend
the Amended Complaint to state factual allegations in
support of his claim that his civil rights have been
violated and to identify the individuals whom he believes
to have been responsible for the alleged deprivation of
his constitutional rights. Plaintiff must provide specific
descriptions of what happened and give a brief description
of what each Defendant did or failed to do in violation of

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his civil rights, along with the dates of all relevant events.
Plaintiff must identify his custodial rights and identify
who has temporary legal custody over his son. Plaintiff
must also state the current status of any Family Court
proceedings related to his custodial claims.

III. Conclusion
*6 Plaintiff's claims for injunctive relief are dismissed
for lack of subject matter jurisdiction, pursuant to
Fed.R.Civ.P. 12(h) (3). Plaintiff's § 1983 claims for
damages are dismissed for failure to state a claim pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff is granted leave
to amend his § 1983 claims for damages. Any amended
complaint must be filed within 30 days of the date of
this order. The amended complaint must be captioned
“Second Amended Complaint” and bear the same docket
number as this order. Plaintiff must use his son's initials

in any correspondence, rather than his son's full name.
All documents containing information regarding his son's
care that Plaintiff seeks to file with the Court must be
filed under seal. If Plaintiff fails to file a second amended
complaint, the Amended Complaint will be dismissed.
No summonses shall issue at this time, and all further
proceedings shall be stayed for 30 days. The Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would
not be taken in good faith and therefore in forma pauperis
status is denied for purpose of an appeal. See Coppedge
v. United States, 369 U.S. 438, 444–45, 82 S.Ct. 917, 8
L.Ed.2d 21 (1962).
SO ORDERED.

All Citations
Not Reported in F.Supp.3d, 2014 WL 905546

Footnotes

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2

3

4

5
6

7

Citations to pages of the Amended Complaint and attached exhibits refer to the ECF pagination, as the pages are not
otherwise consecutively numbered.
Because several of the documents submitted by Plaintiff contain the name and birth date of his minor son, the Court
sealed the Amended Complaint and exhibits. Plaintiff is advised that pursuant to Rule 5.2(a) of the Federal Rules of Civil
Procedure, only a minor's initials should be used in all publicly filed documents, and references to birth dates should
only include the year of birth.
It is unclear whether the psychiatric report was attached to the March 2013 letter from the Agency to Plaintiff as support
for the Agency's request that Plaintiff consent to medicating his son with Focalin, or whether Plaintiff is now providing this
report to demonstrate that in 2011, prior to the 2013 request from the Agency, his son was prescribed Focalin without
Plaintiff's consent. (See Ex. A at 12–16.)
According to a May 9, 2012 letter from the New York State Office of Children and Family Services (“Children and Family
Services”) addressed to the Agency (“May 9, 2012 letter”), which Plaintiff attached to the Amended Complaint, Plaintiff
has raised concerns regarding the Agency's oversight of his son's care in the past. In the May 9, 2012 letter, Children and
Family Services notified the Agency that Plaintiff had written them three letters “identif[ying] several issues that concern
his son.” (Id. at 25.) Children and Family Services requested that the Agency provide them with detailed information
addressing Plaintiff's concerns.” (Id.)
The treatment plan listed Defendants Rolando Perez, Deborah Brewer, Alban Boucher, Shannon Greene and Dr. Carmen
Veloz as members of Plaintiff's son's “team.” (Id. at 22.)
To the extent Plaintiff has any ongoing Family Court proceedings, this Court abstains from considering any claims related
to those proceedings pursuant to Younger v. Harris, 401 U.S. 37 (1971). The Second Circuit has held that “Younger
abstention is appropriate when: 1) there is an ongoing state proceeding; 2) an important state interest is implicated; and
3) the plaintiff has an avenue open for review of constitutional claims in the state court.” Hansel v. Springfield, 56 F.3d
391, 393 (2d Cir.1995). New York has an important state interest in caring for children in its temporary custody and in
enforcing its courts' orders, and Plaintiff has an opportunity to raise his claims related to his custodial and visitation rights
in any ongoing Family Court proceedings.
Plaintiff's failure to allege that Defendants acted under color of law also bars his claim that Defendants' actions violated
the Eighth Amendment prohibition against cruel and unusual punishment. See DiPilato v. 7–Eleven, Inc., 662 F.Supp.2d
333, 349 (S.D.N.Y.2009) (“In order for liability to attach to defendants for violation[ ] of the ... Eighth Amendment[ ], the
defendants must be state actors or their actions must be attributable to the state.”); see also Walker v. Schult, 717 F.3d
119, 125 (2d Cir.2013) (“[P]rison officials violate the Constitution when they deprive an inmate of his ‘basic human needs'

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2014 WL 905546
such as food, clothing, medical care, and safe and sanitary living conditions.” (citation omitted)); Samirah v. Sabhnani,
772 F.Supp.2d 437, 449 (E.D.N.Y.2011) ( “[T]he Eighth Amendment prohibition on cruel and unusual punishment [ ]
exclusively proscribe[s] government actions....”).

End of Document

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