Hargis v. Werner
MEMORANDUM-DECISION AND ORDER granting 15 Motion to Dismiss for Failure to State a Claim; denying 18 Letter Request/Motion to Strike: The Court hereby ORDERS that Plaintiff's motion to strike Defendant's motion to dismiss is DENIED; and the Court further ORDERS that Defendant's motion to dismiss Plaintiff's complaint is GRANTED; and the Court further ORDERS that the Clerk of the Court shall restrict Defendant's affidavit and the exhibitsattached thereto, Dkt. No. 15-2, to court users and the parties to this action; and ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 3/22/2017. (Copy served via regular and certified mail)(ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DELBERT W. HARGIS, JR.,
DELBERT W. HARGIS, JR.
27882 New York State Route 342
Black River, New York 13612
Plaintiff pro se
OFFICE OF THE JEFFERSON
175 Arsenal Street
Watertown, New York 13601
Attorneys for Defendant
DAVID J. PAULSEN, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
On March 25, 2016, Plaintiff commenced this action pursuant to 42 U.S.C. § 1983
alleging that Defendant violated his First Amendment rights in connection with a Jefferson
County Family Court child protective proceeding against Plaintiff and his wife. Plaintiff also
alleges that Defendant's conduct in the underlying Jefferson County action constitutes a violation
of the Model Rules of Professional Conduct and/or New York Judiciary Law.
Currently before the Court are Defendant's motion to dismiss the complaint pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, see Dkt. No. 15-3, and
Plaintiff's letter-motion to strike Defendant's motion to dismiss, see Dkt. No. 18. Plaintiff filed an
affidavit in opposition to Defendant's motion to dismiss on June 2, 2016, see Dkt. No. 17, and a
memorandum of law in opposition to Defendant's motion to dismiss on June 24, 2016, see Dkt.
According to the complaint, on February 12, 2012 the Child Protective Services Unit of
the Jefferson County Department of Social Services ("CPS") began to investigate Plaintiff's
household for child abuse, including sexual abuse. See Dkt. No. 1 at ¶ 4. Plaintiff contends that
the investigation was closed on July 30, 2012 and that CPS concluded in a report that allegations
of sexual abuse were unfounded (the "CPS Report"), in part because Plaintiff's two children
denied abuse. See id. at ¶ 6(a)-(b), (h).
On July 17, 2012, Nicole E. Hargis, Plaintiff's wife and step-mother of Plaintiff's two
children, filed a petition with the Jefferson County Family Court in which she asserted that her
step-children had been harassing her for years and that she was entitled to an order of protection.
See id. at ¶ 6(c). On July 19, 2012, Plaintiff's children disclosed to CPS that their step-mother had
been sexually abusing them for years. See id. at ¶ 6(d). At some point between July 19, 2012 and
September 28, 2015, Plaintiff called his children "liars" and called their disclosures of sexual
abuse "retaliation." See id. at ¶ 6.
Plaintiff contends that Defendant, an attorney with CPS, filed1 a child protective petition
against Plaintiff and Ms. Hargis on August 10, 2012 in Jefferson County Family Court based on
the children's July 19, 2012 claims.2 See Dkt. No. 1 at ¶ 6(e). That petition alleges that Ms.
Hargis sexually abused her step-children and that Plaintiff neglected to protect his children from
the abuse. See Dkt. No. 15-2 at 9. Ms. Hargis was subsequently criminally convicted of sexually
abusing the children. See Dkt. No. 1 at ¶ 6(p)(x).
Plaintiff contends that while the family court proceeding was ongoing he attempted to
offer the CPS Report into evidence. See id. at ¶ 24. According to Plaintiff, Defendant
asserted—and the family court judge initially agreed—that the CPS Report was inadmissible. See
id. at ¶¶ 26-28. On September 28, 2015, the family court judge issued an overruling decision
finding the CPS report admissible. See id. at ¶ 29.
On October 7, 2015, Plaintiff and Defendant agreed to a settlement in the family court
proceeding whereby Defendant would drop all allegations that Plaintiff knew or should have
known about the abuse, see id. at ¶ 44, in exchange for Plaintiff's admission that he caused his
two minor children to suffer an emotional impairment by calling them "liars" after they disclosed
the sexual abuse and that his conduct caused his youngest child—who was born subsequent to the
filing of the August 10, 2012 petition—to be derivatively neglected, see id. at ¶ 45. Plaintiff
contends that after entering into the agreement he learned Defendant misrepresented the law
governing emotional impairment by using the dictionary definition of the term in place of the
In a sworn affidavit, Defendant notes that he did not commence employment with CPS
until September 4, 2012 and therefore did not initiate the August 10, 2012 proceeding on behalf
of CPS. See Dkt. No. 15-2 at 1-2.
According to Plaintiff, the petition was amended two times: first at an unspecified time,
and again in 2015. See Dkt. No. 19 at 5. The second amended petition "was specifically
collaborated by [Defendant] to include . . . the allegation that [ ] Plaintiff's actions of calling his
children liars caused [his] children to suffer an emotional impairment." Id. at 5-6.
statutory definition, see id. at ¶¶ 47, 57, and that "Plaintiff's actions of calling the children liars
and not supporting [their] emotional needs did not even cause enough emotional damage under
the law to rise to the level that constitutes emotional neglect under the legal definition emotional
impairment," id. at ¶ 48. Plaintiff raised his concerns with the family court judge but was told
that no appeal could be made because the agreement had already been reached. See id. at ¶ 54.
Standard of Review
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111–12 (2d Cir. 2007) (citation omitted). In considering the legal
sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all
reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493
F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not
extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Although a court's review of a motion to dismiss is generally limited to the facts presented in the
pleading, the court may consider documents that are "integral" to that pleading, even if they are
neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico v.
Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d
147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," id. at 555 (citation omitted), and present claims that are "plausible
on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability requirement,'
but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556
U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a
defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement
to relief."'" Id. (quoting Twombly, 550 U.S. at 557). Ultimately, "when the allegations in a
complaint, however true, could not raise a claim of entitlement to relief," Twombly, 550 U.S. at
558, or where a plaintiff has "not nudged [its] claims across the line from conceivable to
plausible, the[ ] complaint must be dismissed[,]" id. at 570.
Despite this recent tightening of the standard for pleading a claim, complaints by pro se
parties continue to be accorded more deference than those filed by attorneys. See Erickson v.
Pardus, 551 U.S. 89, 127 (2007). As such, Twombly and Iqbal notwithstanding, this Court must
continue to "construe [a complaint] broadly, and interpret [it] to raise the strongest arguments that
[it] suggests." Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir. 2002).
When a party moves to dismiss a claim pursuant to Rule 12(b)(1), "the movant is deemed
to be challenging the factual basis for the court's subject matter jurisdiction." Cedars-Sinai Med.
Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993) (citations omitted). For purposes of such a
motion, "the allegations in the complaint are not controlling . . . and only uncontroverted factual
allegations are accepted as true. . . ." Id. (internal citations omitted). Both the movant and the
pleader are permitted to use affidavits and other materials to support and oppose the motion to
dismiss for lack of subject matter jurisdiction. See Makarova v. United States, 201 F.3d 110, 113
(2d Cir. 2000) (citation omitted). "Furthermore, 'jurisdiction must be shown affirmatively, and
that showing is not made by drawing from the pleadings inferences favorable to the party
asserting it.'" Gunst v. Seaga, No. 05 Civ. 2626, 2007 WL 1032265, *2 (S.D.N.Y. Mar. 30,
2007) (quoting Shipping Financial Services Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998));
see also State Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007)
(holding that, in a motion to dismiss for lack of subject matter jurisdiction, a court "may resolve
disputed factual issues by reference to evidence outside the pleadings, including affidavits").
Defendant's Motion to Dismiss
1. Model Rules of Professional Conduct
Plaintiff alleges that Defendant violated Rule 8.4 of the Model Rules of Professional
Conduct in the family court proceeding by raising a legal argument regarding the admissibility of
the CPS Report and securing a settlement in which Plaintiff admitted his conduct amounted to a
form of neglect. See Dkt. No. 1 at ¶ 72. "But even assuming the applicability of the Model Rules
[in New York] and that [Defendant] violated Rule [8.4], it would not follow that [Defendant]
breached a legal duty to [Plaintiff]." In re Parmalat Sec. Litig., 570 F. Supp. 2d 521, 525
(S.D.N.Y. 2008) (footnote omitted) (citing Model Rules of Prof'l Conduct, Premable and Scope
("Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it
create any presumption in such a case that a legal duty has breen breached. . . . The Rules . . . are
not designed to be a basis for civil liability")). Accordingly, the complaint's first cause of action
2. Section 1983
"County attorneys who initiate and prosecute child protective orders or litigate family
court petitions are [ ] entitled to absolute immunity." Roach v. Clark, No. 15–CV–0408, 2015
WL 4067504, *7 (N.D.N.Y. July 2, 2015); see also Cornejo v. Bell, 592 F.3d 121, 127-28 (2d Cir.
2010); Walden v. Wishengrad, 745 F.2d 149, 152 (2d Cir. 1984). Absolute immunity extends to
actions related to settlement, see Taylor v. Kavanagh, 640 F.2d 450, 453 (2d Cir. 1981) (holding
that "prosecutor's activities in the plea bargaining context merit the protection of absolute
immunity"); Sneed v. City of New York, No. 93–CV–4642, 1994 WL 116020, *4 (S.D.N.Y. Mar.
28, 1994) (finding that agency attorneys' actions "in initiating settlement discussion" were
protected by absolute immunity), as well as to an attorney's choice of legal arguments, see Flagler
v. Trainor, 663 F.3d 543, 547 (2d Cir. 2011) (finding that absolute immunity applies to functions
"intimately associated with initiating or presenting the State's case"); Griffin v. Doyle, No.
12–CV–4359, 2014 WL 2945676, *6 n.6 (E.D.N.Y. June 30, 2014) (finding that "any claims
pertaining to legal arguments made by [government laywers] are [ ] barred by absolute
immunity"). Defendant's actions related to the family court proceeding fall squarely within the
aegis of absolute immunity.3
In response, Plaintiff clarifies that he is "not requesting . . . money damages or injunctive
relief" but "is only asking the court for a declaratory judgment" so that he can determine whether
Defendant's prior actions violated Plaintiff's rights. See Dkt. No. 19 at 11. "Nevertheless, given
the dismissal of Plaintiff's [other] claims . . ., [his] claims for declaratory relief must also be
dismissed." Morales v. City of New York, 59 F. Supp. 3d 573, 581 (S.D.N.Y. 2014). By
requesting that the Court declare that Defendant violated his rights, Plaintiff "asks the Court only
to recognize a past wrong, which, in the context of declaratory relief, does not in itself 'amount to
that real and immediate threat of injury necessary to make out a case or controversy.'" Id.
To the extent Plaintiff's complaint may be read as raising a claim under New York
Judiciary Law § 487, the same result holds. See Rudow v. City of New York, 822 F.2d 324, 329
(2d Cir. 1987) (holding that an agency staff attorney was "absolutely immune to liability under
section 487" and rejecting the argument that "New York's attorney misconduct statute, N.Y. Jud.
Law § 487, applies to the prosecutorial acts of municipal attorneys").
(collecting cases) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)); see also
Murdock v. Legal Aid Soc'y, No. 14–CV–508, 2015 WL 94245, *4 (E.D.N.Y. Jan. 6, 2015)
(applying City of Los Angeles and dismissing a request for a declaration that a district attorney's
actions in a criminal proceeding violated the plaintiff's due process rights). Accordingly, the
complaint's second cause of action is dismissed.
3. Leave to Replead
"While generally, leave to amend should be freely given, the Court may deny leave to
replead where amendment would be futile." Peacock v. Suffolk Bus Corp., 100 F. Supp. 3d 225,
231 (E.D.N.Y. 2015) (citing Fed. R. Civ. P. 15(a)). In the present matter, it would be futile to
allow leave to replead because Plaintiff's claims fail as a matter of law and there is no possibility
that he can state a plausible claim against Defendant. Thus, the Court will not grant Plaintiff
leave to replead, and the complaint is dismissed with prejudice. See Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000) ("The problem with [the pro se plaintiff's] causes of action is
substantive; better pleading will not cure it. Repleading would thus be futile. Such a futile
request to replead should be denied").
Plaintiff's Motion to Strike
In a letter-brief, Plaintiff requests that the Court order the withdrawal of Defendant's (1)
memorandum of law because it lacks a table of contents and Defendant has not provided a hard
copy of cited authorities that are unpublished or published exclusively on electronic databases in
violation of Local Rule 7.1(a)(1), and (2) affidavit and attached exhibits because they contain
personal names, birthdays, and sensitive information in violation of Local Rule 8.1. See Dkt. No.
The Court notes that Defendant does not cite in his motion papers to any authorities that
are unpublished or published exclusively on electronic databases. Plaintiff is correct, however,
that Defendant's memorandum of law lacks a table of contents4 and that Defendant has failed to
redact several personal identifiers contained in one of his filings, Dkt. No. 15-25. Nevertheless,
"'district courts have "inherent power to decide when a departure from its Local Rules should be
excused or overlooked."'" Dudla v. P.M. Veglio LLC, No. 13–CV–333, 2016 WL 1068120, *6
(N.D.N.Y. Mar. 15, 2016). Here, "[t]he interests of justice would not be served by disqualifying
[Defendant's] papers due to a failure . . . to include a table of contents" because Plaintiff's claims
fail as a matter of law. Id. For the same reason, Defendant's violation of Local Rule 8.1 does not
warrant the striking of his motion. Rather, the Court will restrict the offending filing to court
users and the parties to this action to shield it from public view. Accordingly, Plaintiff's motion
to strike is denied.
Accordingly, the Court hereby
ORDERS that Plaintiff's motion to strike Defendant's motion to dismiss is DENIED; and
the Court further
ORDERS that Defendant's motion to dismiss Plaintiff's complaint is GRANTED; and the
Defense counsel is respectfully reminded that, in this District, memoranda of law must
contain a table of contents. See Local Rule 7.1(a)(1).
While the filed version of the affidavit and its exhibits contains dozens of redactions,
Defendant failed to redact the names of minor children and sexual assault victims on several
occasions in violation of Local Rule 8.1. The Court stresses the need for a thorough and
conscientious review of filings in actions concerning such sensitive matters.
ORDERS that the Clerk of the Court shall restrict Defendant's affidavit and the exhibits
attached thereto, Dkt. No. 15-2, to court users and the parties to this action; and
ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 22, 2017
Albany, New York
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