Sterling v. Human Resources Administration (Social Services)

Filing 12

ORDER OF DISMISSAL: Plaintiff's action, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed for lack of standing to assert claims on behalf of Bob Sterling, and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) . The Court declines to address any substantive due process claim suggested by the amended complaint; any such additional claim, which the Court did not authorize for inclusion in the amendment, is dismissed without prejudice. The Court also decli nes to exercise supplemental jurisdiction of Plaintiff's state-law claims. All other pending matters in this case are terminated. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. SeeCoppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to enter judgment in this case. SO ORDERED. (Signed by Judge Laura Taylor Swain on 8/1/22) (rdz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROSE STERLING,
Plaintiff,
-against-

21-CV-10192 (LTS)

HUMAN RESOURCES ADMINISTRATION
(SOCIAL SERVICES), et al.,

ORDER OF DISMISSAL

Defendants.
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff, who is proceeding pro se and in forma pauperis (IFP), filed this complaint
under 42 U.S.C. § 1983, alleging that Defendants violated her rights and those of her deceased
son. By order dated February 2, 2022, the Court directed Plaintiff to amend her complaint to
address deficiencies in her original pleading. Plaintiff filed an amended complaint on June 7,
2022, and the Court has reviewed it. For the reasons set forth below, the Court dismisses this
action.
BACKGROUND
The Court assumes familiarity with the underlying facts of this case as summarized in the
Court’s February 2, 2022, order. Plaintiff sued the New York City Human Resources
Administration (HRA), asserting that the agency is responsible for the death of her adult son,
Bob V.E. Sterling. In her original complaint, Plaintiff first described her often contentious
relationship with the New York City Administration for Children’s Services (ACS), which she
claims “baselessly” accused her of abusing Bob, who had unspecified disabilities and suffered
from asthma. (ECF 1, at 5.) Plaintiff further indicated that, based on false reports from Good
Shepherd Services, an ACS contractor, Bob was institutionalized. ACS also attempted to have
Plaintiff deported, disseminated her personal information to friends and family, blocked her

access to adequate housing, and generally destabilized Plaintiff’s and Bob’s lives. Despite these
obstacles, Plaintiff regained custody of Bob and found a “small place” to live for which ACS
wrongfully refused to pay the down payment. (Id.)
Plaintiff then alleged that on an unspecified date, HRA switched Bob’s Medicaid
insurance to an Aetna plan with a life insurance program without informing Bob or Plaintiff of
the change. Aetna subsequently denied Bob “medications and standard care,” including an
inhaler for his asthma. (Id.) Plaintiff and Bob went to HRA and “pleaded for help,” including
switching Bob’s insurance back to Medicaid, but HRA did not correct the matter. (Id.) On
November 28, 2020, while taking a shower, Bob collapsed in the bathtub and died. Plaintiff filed
this action seeking to “recuperate the unethical death benefit that was the motive and cause of
denying [Bob] medications that led to his death.” (Id. at 6.)
In the February 2, 2022, order, the Court held the following: (1) Plaintiff lacked standing
to assert claims on behalf of Bob or his estate as she did not allege that she was the administrator
and sole beneficiary of Bob’s estate; and (2) even if Plaintiff could assert such claims, she failed
to allege sufficient facts suggesting that HRA’s allegedly improper change of Bob’s Medicaid
benefits amounted to a deprivation of a property interest without due process of law in violation
of the Fourteenth Amendment. Because it was not clear that amendment would be futile, the
Court granted Plaintiff leave to amend the complaint to allege facts suggesting that she has
standing to bring claims on behalf of Bob’s estate, and indicating a viable due process claim,
such as the unavailability or inadequacy of state post-deprivation procedures to challenge HRA’s
alleged changing of Bob’s Medicaid benefits.
In the amended complaint, Plaintiff sues HRA and two new defendants, ACS and
“Medicaid,” which she identifies as an agency of the City of New York. She claims that after
ACS “baselessly” accused her of child abuse, it began a process where she was obligated to deal
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with HRA and ACS, “along with its destructive and phony preventive services, Good Shepherd
in the Bronx.” (ECF 11, at 6.) Plaintiff asserts that Defendants “established a special
relationship” with her and that they must be held accountable for their allegedly unconstitutional
actions, which include depriving her of her “parental duties, and the right to have appropriate,
timely, and necessary health insurance” for her son. (Id.)
Plaintiff provides largely the same factual allegations from the initial complaint, but she
expands on the role that ACS played in the lives of Plaintiff and her son. The following
information is taken from the amended complaint. After Plaintiff became a widow, she and Bob
returned to New York City from Florida. She claims that the Florida Jewish community had
animus towards her because she refused to take a “baseless[] psychiatric evaluation,” “saved”
Bob from a “Jewish psychiatric camp,” and “hampered” the foreclosure of the Florida house she
had lived in. (Id. at 8.) Unnamed members of the Florida Jewish community “succeeded” in
getting revenge against Plaintiff through ACS and Allen McCormick, whom Plaintiff describes
as “a human trafficker from Florida, who bridged the NYC Jewish networks” and was paid by
New York City. ACS, with the assistance of McCormick, “infiltrated” and disrupted Plaintiff’s
and Bob’s lives. (Id.) In particular, ACS accused her of child abuse and allowed Good Shepherd
to discriminate against her and deprive her of her parental rights. ACS also violated her right to
privacy; destroyed her career and “professional potential”; mandated her participation in a drug
rehabilitation program although she had never touched drugs; and discriminated against her with
“racist allegations.” (Id. at 9, 11.) In all, ACS’s false accusations led to “consequences [that]
persist through [Plaintiff’s] son’s life and after his death on [her].” (Id. at 11.)
Further, “HRA (Social Services) and the Medicaid accelerated [Plaintiff’s] pain” by
ignoring her pleas to help save Bob’s life. (Id. at 10.) Bob was a person with disabilities, who
suffered from psychosis and had breathing problem as a result of a shot he had received at a
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clinic at St. Barnabas Hospital. At some unspecified point, Bob’s insurance, which was handled
by HRA, was changed to a “non-consented and hidden Aetna life insurance,” which “blocked all
access to all existential medications.” (Id. at 13.) Bob was “prematurely killed . . . because the
HRA (Social Services) and the Medicaid, which have constitutional duties to handle poor people
and people with disabilities like Bob,” for years, “denied Bob medications and access to standard
care through silence, no action, no information or communication on why Bob was not fully
insured.” (Id.) Plaintiff asserts that
the HRA, and the Medicaid intentionally, cruelly, and recklessly deprived me
from adequately and efficiently taking care of my child, whom the ACS had
accused me of abusing [], and yet, under their responsibility and watch, the
Medicaid and the HRA cut Bob’s access to medications and standard care, in the
process, they created cruel and unbearable situation to me, see my child suffers
because the NYC’s agencies and its employees had cruelly, inhumanely, and
unconstitutionally deprived my son Bob of the right to his life and alleviating his
suffering, and also, of any existential help within and under their constitutional
duties.
(Id. at 6.)
Plaintiff brings this action asserting that as a result of Defendants’ actions – particularly
ACS’s alleged “infiltration” of hers and Bob’s lives and HRA’s and Medicaid’s “intentionally
and recklessly depriv[ing]” her of all information about her disabled child health insurance,
which made her unable to take care of her child adequately and save his life − she suffered “cruel
and unbearable pain” by having to watch Bob in “deep pain” for years. (Id. at 6-7.) Plaintiff
claims that Defendants violated her civil rights and that, as a mother, she is entitled to
compensation for the alleged violations that occurred.
DISCUSSION
A.

Plaintiff does not have standing to bring claims on behalf of Bob Sterling
Plaintiff’s amended complaint has not addressed the deficiencies that the Court found in

the original complaint. As in the original pleading, Plaintiff’s main assertions concern the alleged
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change in Bob’s insurance from Medicaid to an Aetna policy, under which he was denied
medications, including an inhaler, that allegedly led to his premature death. She asserts that, as a
mother, she is entitled to seek compensation for her son’s pain and suffering. As explained in the
February 2, 2022, order, however, as a pro se litigant, Plaintiff cannot assert claims on behalf of
her deceased adult son.1 See U.S. ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir.
2008) (“[A]n individual who is not licensed as an attorney may not appear on another person’s
behalf in the other’s cause.” (internal quotation marks and citation 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.”). Plaintiff is not an attorney, and
she does not allege any facts suggesting that she has been appointed administrator or personal
representative of Bob’s estate and there are no other beneficiaries or creditors of the estate. See
Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997) (“[A]n administratrix or executrix of an
estate may not proceed pro se when the estate has beneficiaries or creditors other than the
litigant.”). Plaintiff therefore lacks standing to assert claims on behalf of Bob or his estate. See
Garmon v. Cty. of Rockland, No. 10-CV-7724 (ALC) (GWG), 2013 WL 541380, at *3
(S.D.N.Y. Feb. 11, 2013) (“Since Plaintiff was not named the administrator of the estate, he does
not have standing to bring claims belonging to the decedent.”) (collecting cases).

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A nonlawyer parent ordinarily cannot represent a child’s interests pro se, even those of
a minor child. See Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.
1990) (finding that minors “are entitled to trained legal assistance so their rights may be fully
protected” and nonlawyer parents are not trained to represent competently the interests of their
children); Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005) (holding that it is
“a well-established general rule in this Circuit that a parent not admitted to the bar cannot bring
an action pro se in federal court on behalf of his or her child”).
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B.

The named defendants cannot be held liable under Section 1983
Plaintiff is essentially seeking to hold local agencies, such as HRA and ACS, liable for

their alleged involvement in changing her deceased son’s Medicaid benefits, which she asserts
led to his premature death. Even if Plaintiff could assert claims on her own behalf, the defendants
she seeks to sue cannot be held liable under 42 U.S.C. § 1983. First, as agencies of the City of
New York, HRA and ACS are not entities that can be sued. The New York City Charter provides
that “[a]ll actions or proceedings for the recovery of penalties for the violation of any law should
be brought in the name of the city of New York and not in that of any agency, except where
otherwise provided by law.” New York City Charter, Ch. 17, § 396; see Friedman v. N.Y.C.
Admin. For Children’s Servs., 502 F. App’x 23, 27 n.3 (2d Cir. 2012) (summary order) (ACS is
not a suable entity); Tatum v. City of New York, No. 19-CV-2581, 2019 WL 1877385, at *1
(S.D.N.Y. Apr. 26, 2019) (HRA is not a suable entity); see also Emerson v. City of New York,
740 F. Supp. 2d 385, 395 (S.D.N.Y. 2010) (“ [A] plaintiff is generally prohibited from suing a
municipal agency.”) To the extent Plaintiff is asserting claims on her own behalf, the Court
dismisses Plaintiff’s claims against HRA and ACS for failure to state a claim on which relief can
be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
Further, although Plaintiff alleges that “Medicaid” is an agency of the City of New York,
such an entity does not exist. Medicaid is a federal program administered by the states, and in
New York, the New York State Department of Health (DOH) is the state agency responsible for
its administration. See N.Y. Soc. Serv. Law § 363-a; Shakhnes v. Berlin, 689 F.3d 244, 248 (2d

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Cir. 2012). Plaintiff’s purported claims against Medicaid must be dismissed because it is not
entity that can be sued.2
C.

Plaintiff has not alleged a federal claim for relief
In light of Plaintiff’s pro se status and clear intention to assert claims against the City of

New York, the Court construes the complaint as asserting claims against the City of New York.
A municipality or other local government may be liable under Section1983 “if the governmental
body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to
such deprivation.” Connick v. Thompson, 63 U.S. 51, 60 (2011) (quoting Monell v. Dep’t of Soc.
Servs. of City of New York, 436 U.S. 658, 692 (1978)). A municipal organization is subject to
liability where its “failure to train, or the policies or customs that it has sanctioned, led to an
independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.
2006) (citing Monell, 436 U.S. at 694).
As the Court previously concluded in the February 2, 2022, order, Plaintiff’s assertions
concerning the change in her son’s Medicaid insurance do not state a procedural due process
claim under the Fourteenth Amendment because she did not allege facts suggesting that either

2

Even if the Court were to construe Plaintiff’s alleged claims against Medicaid, as an
attempt to bring claims against DOH, such claims could not proceed. [A]s a general rule, state
governments may not be sued in federal court unless they have waived their Eleventh
Amendment immunity, or unless Congress has abrogated the states’ Eleventh Amendment
immunity . . . .” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). “The immunity
recognized by the Eleventh Amendment extends beyond the states themselves to state agents and
state instrumentalities that are, effectively, arms of a state.” Id. New York has not waived its
Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states’
immunity in enacting Section 1983. See Trotman v. Palisades Interstate Park Comm’ n, 557 F.2d
35, 40 (2d Cir. 1977). As DOH is an arm of the State of New York, it is therefore protected by
Eleventh Amendment immunity.
Further, Plaintiff alleges no facts suggesting that, once a decision was made with respect
to Bob’s Medicaid benefits, DOH or an agency with delegated authority failed to grant them an
opportunity for a fair hearing as provided by federal and state regulations. See 42 C.F.R.
§ 431.205; N.Y. Soc. Serv. Law § 22(1).
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she or Bob was deprived of a property interest without due process. Plaintiff’s amended
complaint provides no additional factual allegations to change that conclusion. In fact, she does
not address in the amended complaint the availability or sufficiency of the City of New York’s
procedures or whether she was given the opportunity to challenge the alleged change in Bob’s
Medicaid or any other alleged deprivations. Because Plaintiff does not allege that the City of
New York’s notice and hearing procedures were constitutionally deficient in any way, she fails
to state a claim for relief against the City of New York.3
D.

The Court will not consider Plaintiff’s state-law claims
Plaintiff’s assertions could suggest state-law claims such as wrongful death. A district

court, however, may decline to exercise supplemental jurisdiction of state-law claims when it
“has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and
only state-law claims remain, the federal court should decline the exercise of jurisdiction.”
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). Having dismissed the federal
claims of which the Court has original jurisdiction, the Court declines to exercise its
supplemental jurisdiction of any state-law claims Plaintiff may be asserting. See Kolari v. New
York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms
3

In the amended complaint, Plaintiff makes several references to discrimination and the
deprivation of her parental rights when ACS wrongfully accused her of child abuse and removed
her son from her care. The Court declines to consider in this action any claim Plaintiff is seeking
to assert that may implicate the substantive component of the Due Process Clause of the
Fourteenth Amendment as beyond the scope of the permitted amendment. The Court is
authorized to dismiss claims going beyond the scope of the original lawsuit and the permitted
amendment. See, e.g. Palm Beach Strategic Income, LP v. Salzman, 457 F. App’x 40, 43 (2d Cir.
2012) (“District courts in this Circuit have routinely dismissed claims in amended complaints
where the court granted leave to amend for a limited purpose and the plaintiff filed an amended
complaint exceeding the scope of the permission granted.”); Grimes v. Fremont General Corp.,
933 F. Supp. 2d 584, 597 (S.D.N.Y. 2013) (citing cases); Sullivan v. Stein, 487 F. Supp. 2d 52
(D. Conn. 2007) (dismissing claims as “beyond the scope” of the court’s order).
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the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which
district courts can refuse its exercise.’” (quoting City of Chicago v. Int’ l Coll. of Surgeons, 522
U.S. 156, 173 (1997))).
E.

Leave to amend denied
District courts generally grant a pro se plaintiff leave to amend a complaint to cure its

defects, but leave to amend may be denied if the plaintiff has already been given an opportunity
to amend but has failed to cure the complaint’s deficiencies. See Ruotolo v. City of New York,
514 F.3d 184, 191 (2d Cir. 2008); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because
the defects in Plaintiff’s amended complaint cannot be cured with a further amendment, the
Court declines to grant Plaintiff another opportunity to amend.
CONCLUSION
Plaintiff’s action, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed for lack of
standing to assert claims on behalf of Bob Sterling, and for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii). The Court declines to address any substantive due process claim
suggested by the amended complaint; any such additional claim, which the Court did not
authorize for inclusion in the amendment, is dismissed without prejudice. The Court also
declines to exercise supplemental jurisdiction of Plaintiff’s state-law claims. All other pending
matters in this case are terminated.

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The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to enter judgment in this case.
SO ORDERED.
Dated:

August 1, 2022
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

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