Jones v. County of Westchester et al

Filing 121

OPINION & ORDER re: 34 MOTION to Dismiss , MOTION for Judgment as a Matter of Law MOTION for Summary Judgment filed by Lisa Colin, 38 MOTION to Dismiss filed by County of Westchester, Elke Knuds en, Rosa Hazoury. For the foregoing reasons, the County Defendants' and Defendant Colin's motions to dismiss and for judgment on the pleadings are GRANTED to the extent of dismissing Plaintiff's civil RICO claim and DENIED in all oth er respects. The Court respectfully directs the Clerk to terminate the motions at ECF Nos. 34 and 38. In accordance with the opinion and order, the Court's consideration of Plaintiff's federal due process and state law claims is stayed pending the outcome of the state court proceedings. (Signed by Judge Nelson Stephen Roman on 12/14/2015) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LATONIA JONES, individually and on behalf
of her minor child, DJ,
Plaintiff,
-against-

No. 14-cv-7635 (NSR)
OPINION & ORDER

COUNTY OF WESTCHESTER, ROSA HAZOURY,
ELKE KNUDSEN, and LISA COLIN, ESQ.,
Defendants.
NELSON S. ROMAN, United States District Judge
Plaintiff Latonia Jones, individually and on behalf of her minor child D.J., asserts claims
against the County of Westchester (the "County"); Rosa Hazoury and Elke Knudsen, employees
of Westchester County (together with the County, the "County Defendants"); and Lisa Colin,
esq., arising out ofD.J.'s removal from the custody of her biological mother, Latonia Jones.
Before the Court are the motions of the County Defendants and Defendant Colin to
dismiss Plaintiffs Second Amended Complaint pursuant to Rules 12(b)(l) and 12(b)(6) of the
Federal Rule of Civil Procedure and for judgment on the pleadings pursuant to Rule 12(c). For
the following reasons, the motions are GRANTED in part and DENIED in part.
BACKGROUND 1

D.J. is a minor child of Plaintiff Latonia Jones. 2 (Second Amended Complaint ("Am.
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The facts are as alleged in the Second Amended Complaint (ECF No. 26), unless otherwise noted.

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DSS initiated a preventive services case. (Id. ¶ 14.) On May 19, 2005, DSS removed all four of
Latonia Jones’ children from her custody, including D.J, and the children were placed under the
“control, custody, and care” of Defendants Rosa Hazoury and Elke Knudsen. (Id. ¶ 15.) On or
about May 24, 2005, a neglect petition was filed against Latonia Jones with respect to all four of
her children. (Id. ¶ 18.) During a June 21, 2005 appearance in the neglect proceeding, Latonia
Jones entered into a consent finding pursuant to Family Court Act 1051A for neglect and
consented to an order of supervision over her household. (Id. ¶ 19.) In July 2005, Monica Gray
was assigned as D.J.’s Court Appointed Special Advocate (“CASA”) and continued to be D.J’s
CASA for six and a half years. (Id. ¶ 20.)
On August 2, 2005, D.J. was sent to the Andrus Center for Learning and Motivation in
Yonkers, New York (“Andrus”) after brief stays in two separate foster homes. (Id. ¶ 21.) Two
months after her arrival, Andrus performed an evaluation of D.J. and concluded she suffered
from jealousy issues, precocious sexual knowledge, needed anti-psychotic medication, lacked
focus and language skills, had average cognitive skills, and was noted as seeing and hearing
things. (Id. 22.) D.J. was heavily medicated with Risperdal and Depakote. (Id.) D.J.’s
discharge summary diagnosed her with Post Traumatic Stress Disorder, Attention Deficit
Hyperactivity Disorder, Bipolar Disorder, and Psychotic Disorder. (Id.) Though Andrus created
an individualized education plan (“IEP”) for D.J., it was never implemented and D.J. remains
uneducated. (Id.)
In November 2005, Hajirah Holmes, a member of Latonia Jones’ church, assumed
responsibility as a foster parent for D.J. (Id. ¶ 25.) During this time, Latonia Jones was taking
parenting classes to facilitate the return of her children to her home. (Id. ¶ 24.) In January 2006,
Plaintiff acted out at school and was thereafter hospitalized at Four Winds Hospital in Katonah,

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New York (“Four Winds”) for a month. (Id. ¶ 26.) Upon D.J.’s return to Ms. Holmes’
residence, Ms. Holmes reported to CASA Monica Gray that she was concerned D.J. may be
overmedicated. (Id.) D.J. was homeschooled during the spring of 2006 and attended Clear View
School beginning in September 2006 through June 2007. (Id. ¶¶ 27–29.)
In July 2007, Latonia Jones requested that DSS delay filing a Termination of Parental
Rights (“TPR”) petition to enable her to comply with DSS’s requirements for the return of her
children, including additional parenting classes. (Id. ¶ 30.) Nevertheless, DSS filed a TPR
petition with respect to D.J. (Id. ¶ 31.) Plaintiff contends that this raised tension between D.J.’s
foster parent and Latonia Jones. (Id.) On June 17, 2007, D.J. was again admitted to Four Winds
due to the stress caused by tension between D.J.’s foster parent and Latonia Jones. (Id. ¶ 34.) At
Four Winds, D.J. was diagnosed with Mood Disorder NOS, Oppositional Defiant Disorder, and
Psychotic Disorder NOS, and she was put on various medications. (Id. ¶ 35.) D.J. remained at
Four Winds until November 26, 2007, at which time she was transferred to the Astor Home in
Rhinebeck, New York. (Id. ¶ 34.) D.J. repeatedly was hospitalized at Four Winds when she
became unmanageable at Astor. (Id. ¶¶ 38–43.)
On October 15, 2008, D.J. was again hospitalized due to increasingly violent behavior,
including self-abuse and suicidal statements. (Id. ¶ 47.) Four Winds refused to take D.J., so she
was instead hospitalized at Stony Lodge Hospital. (Id.) Though Stony Lodge was intended to be
a temporary placement, D.J. remained there for 11 months. (Id.)
In December 2008, CASA Monica Gray reported to the Family Court that D.J. had not
been educated since she was removed from Ms. Holmes’ custody in September 2007 and that
D.J. was too needy to remain in facilities. (Id. ¶¶ 48–49.) Additionally, in February 2009,
CASA Monica Gray expressed concerns to the Family Court about the length of time D.J. had

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spent in hospitals and D.J.’s powerful drug treatments. (Id. ¶ 50.) On June 17, 2009, the
Defendants received a reported from CASA Monica Gray which advocated, in part, that D.J. be
placed in a therapeutic foster home. (Id. ¶51.) DSS agreed and identified a potential foster
mother for D.J. (Id.) That placement failed one month after D.J. arrived at the home in
September 2009. (Id. ¶ 61.) Even though the placement had already failed, an October 6, 2009
permanency hearing report noted only that D.J. was adjusting to her new foster home. (Id. ¶ 62–
63.)
D.J. was then sent to Westchester Medical Center Behavioral Health Center
(“Westchester Medical”), where she was diagnosed with Psychotic Disorder, Pervasive
Development Disorder, Intermittent Explosive Disorder, and Adjustment Disorder and placed on
medication including Colace, Depakote, Trilafon, Tenex, and DDVAP. (Id. ¶ 64.) CASA was
not allowed to visit D.J. while she was at Westchester Medical. (Id. ¶ 68.) In April 2010, D.J.
returned to Four Winds where she was heavily medicated and remained uneducated. (Id. ¶ 69.)
A November 5, 2010 Permanency Hearing Report created by DSS recommended long term
residential treatment for D.J. (Id. ¶ 72.) Additionally, a Family Court judge had ordered a new
TPR petition be filed against Latonia Jones due to the lapse of the suspended judgment on the
previous TPR. (Id.) On November 8, 2010, D.J. was discharged from Four Winds and
transferred to Rockland Children’s Psychiatric Center (“RCPC”) in Orangeburg, New York,
where she remained until June 2012. (Id. ¶ 73.)
By February 2011, D.J. lacked adequate clothing and remained uneducated. (Id. ¶ 77.)
By June 2012, D.J. had been in DSS custody for over seven years—more than half her life. (Id.
¶ 81.) At this time, the Family Court ordered that D.J. be returned to Latonia Jones’ custody,
even though Plaintiff contends there was no change in circumstance in Latonia Jones’ household

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between the date of D.J.’s removal and that time. (Id.) Within days of her return to Latonia
Jones’ custody, D.J. was hospitalized at Westchester Medical. (Id. ¶ 82.) On August 15, 2012,
the Family Court again discharged D.J. to her mother’s custody, but she was shortly thereafter
admitted to Parsons Child and Family Center in Albany, New York where she remained until
August 29, 2013. (Id. ¶¶ 83–85.) D.J. spent one week at home before returning to Westchester
Medical and then a group home from September 2013 until March 2014. (Id. ¶ 85.) D.J.
returned to Latonia Jones’ custody in March 2014. (Id.)
LEGAL STANDARDS
I.

Motion to Dismiss Standards
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it.” Nike, Inc. v.
Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (internal quotation omitted). “A plaintiff asserting
subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it
exists.” Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In assessing whether there is
subject matter jurisdiction, the Court must accept as true all material facts alleged in the
complaint, Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009), but “the court may resolve
[any] disputed jurisdictional fact issues by referring to evidence outside of the pleadings, such as
affidavits . . . .” Zappia Middle E. Const. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d
Cir. 2000).
Under Rule 12(b)(6), the inquiry is whether the complaint “contain[s] sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007));

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accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). The Court, again, must take all
material factual allegations as true and draw reasonable inferences in the non-moving party’s
favor, but the Court is “ ‘not bound to accept as true a legal conclusion couched as a factual
allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “While legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Id. at 679. When there are well-pleaded factual allegations in the complaint, “a
court should assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Id. A claim is facially plausible when the factual content pleaded allows a
court “to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id.
at 678.
II.

Judgment on the Pleadings Standard
Under Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed—but early

enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P.
12(c). “To survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to
‘state a claim to relief that is plausible on its face.’” Graziano v. Pataki, 689 F.3d 110, 114 (2d
Cir. 2012) (quoting Twombly, 550 U.S. at 570). The standard for analyzing a motion for
judgment on the pleadings under Rule 12(c) is identical to the standard for a motion to dismiss
for failure to state a claim under Rule 12(b)(6). Cleveland v. Caplaw Enters., 448 F.3d 518, 521
(2d Cir. 2006); see also Fed. R. Civ. P. 12(b)(6). “Judgment on the pleadings ‘is appropriate
where material facts are undisputed and where a judgment on the merits is possible merely by
considering the contents of the pleadings.’” Virgin Grp. Holdings Ltd. v. Energy Parametics &
Commc’ns, Inc., No. 10-cv-08752 (BSJ) (THK), 2011 WL 4448943, at *1 (S.D.N.Y. Sept. 26,
2011) (quoting Sellers v. M.C. Floor Crafters Inc., 842 F.2d 639, 642 (2d Cir. 1988)).

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DISCUSSION
I.

Abstention
The County Defendants contend that the Younger abstention doctrine and Rooker-

Feldman doctrine should compel this Court to refrain from exercising jurisdiction over Plaintiff’s
claims. (County Defendants’ Memorandum of Law in Support of Motion to Dismiss (“County
Defs.’ Mot.”) at 15–17.) Whereas the Younger doctrine dictates that federal courts should
“abstain from jurisdiction whenever federal claims have been or could be presented in ongoing
state judicial proceedings that concern important state interests,” Hawaii Housing Authority v.
Midkiff, 467 U.S. 229, 237–38 (1984); see Younger v. Harris, 401 U.S. 37 (1971), the RookerFeldman doctrine mandates that federal district courts lack “subject matter jurisdiction over
claims that effectively challenge state court judgments.” Kropelnicki v. Siegel, 290 F.3d 118,
128 (2d Cir. 2002) (citing D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486–87 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415–16 (1923)). As explained more fully below, the
Court need not reach the issue of whether the Rooker-Feldman doctrine applies since the Court
finds that abstention from hearing Plaintiff’s substantive due process claim is appropriate under
Younger.
Younger “and its progeny espouse a strong federal policy against federal-court
interference with pending state judicial proceedings absent extraordinary circumstances.”
Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982). The
Younger abstention doctrine is rooted in “[t]he notion of ‘comity,’” which “includes ‘a proper
respect for state functions, a recognition of the fact that the entire country is made up of a Union
of separate state governments, and a continuance of the belief that the National Government will

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fare best if the States and their institutions are left free to perform their separate functions in their
separate ways.’” Id. (quoting Younger, 401 U.S. at 44).
The Second Circuit has established a three part test for determining whether Younger
abstention is appropriate: “(1) whether there is an ongoing state proceeding; (2) whether an
important state interest is involved; and (3) whether the federal plaintiff has an adequate
opportunity for judicial review of his constitutional claims during or after the proceeding.”
Christ the King Reg’l High Sch. v. Culvert, 815 F.2d 219, 224 (2d Cir. 1987), cert. denied, 484
U.S. 830 (1987); see also Temple of Lost Sheep Inc. v. Abrams, 930 F.2d 178, 182–83 (2d Cir.
1991), cert. denied, 502 U.S. 866 (1991).
Turning to the first element, Plaintiff concedes that there are ongoing state civil
proceedings. (Memorandum of Law in Opposition to Defendant County of Westchester, Rosa
Hazoury, and Elke Knudsen’s Motion to Dismiss (“Pl.’s County Opp.”) at 16.) As the County
Defendants make clear in their reply brief, the ongoing proceedings are permanency hearings in
the Westchester County Family Court. (County Defendants’ Reply Memorandum of Law in
Support of Motion to Dismiss (“Count Defs.’ Reply”) at 9.) “[N]umerous courts have found that
ongoing Family Court proceedings satisfy the first Younger element.” People United for
Children, Inc. v. City of New York, 108 F. Supp. 2d 275, 290 (S.D.N.Y. 2000) (collecting cases).
Therefore, the first element of the Younger abstention test is satisfied.
The second element of the Younger abstention test is easily satisfied because “state courts
have a paramount if not exclusive interest in child custody cases.” Neustein v. Orbach, 732 F.
Supp. 333, 341 (E.D.N.Y. 1990); see also Reinhardt v. Com. Of Mass. Dep’t of Soc. Servs., 715
F. Supp. 1253, 1256 (S.D.N.Y. 1989) (citing Moore v. Sims, 442 U.S. 415, 435 (1979)
(“Questions of family relations, especially when issues of custody . . . are involved, are

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traditionally an area of state concern.”)); Thomas v. New York City, 814 F. Supp. 1139, 1149
(E.D.N.Y. 1993) (collecting cases).
Finally, the Court must examine whether Plaintiff has, or has had, the opportunity to raise
her constitutional claims in the state court proceeding. Plaintiff asserts that neither she nor D.J.
is able to assert substantive due process claims on behalf of D.J. in Westchester County Family
Court because D.J. is involuntarily committed; D.J. cannot speak and act on her own behalf; and
Plaintiff cannot influence what happens to D.J. while she remains in the County’s custody. (Pl.’s
County Opp. at 16.) The County Defendants maintain, on the other hand, that D.J. can speak for
herself since Section 1089 of the Family Court Act mandates age appropriate consultation with
the subject child prior to the family court ordering a permanency plan. (County Defs.’ Opp. at
9.)
“This Circuit has often recognized the obligation and competence of state courts to
decide federal constitutional questions.” Donkor v. City of New York Human Res. Admin.
Special Servs. for Children, 673 F. Supp. 1221, 1226 (S.D.N.Y. 1987) (citing Texaco Inc. v.
Pennzoil Co., 784 F.2d 1133, 1142 (2d Cir.1986); Star Distributors, Ltd. v. Marino, 613 F.2d 4,
8 n. 10 (2d Cir.1980)). “Clearly, the Family Court of New York is bound by the Federal
Constitution. Thus, notions of comity and federalism compel the assumption that the Family
Court is competent to hear and thoughtfully consider the plaintiff’s constitutional challenges.”
Reinhardt, 715 F. Supp. At 1257 (citing Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987). In light
of the numerous decisions in this circuit holding that a family court is competent to hear a
plaintiff’s constitutional claims, see, e.g., Reinhardt, 715 F. Supp. at 1257; Thomas, 814 F. Supp.
at 1150, the Court finds that Plaintiff has more than ample opportunity to raise her substantive
due process claims in the family court proceeding. Plaintiff has failed to carry her burden that

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she will be precluded from raising her federal constitutional claims in the state court action. See
Thompson v. Vacco, No. 96-cv-8670 (SS), 1997 WL 539949, at *5 (S.D.N.Y. Aug. 29, 1997)
(citing Penzoil, 481 U.S. at 14).
Moreover, since Plaintiff does not assert, nor has this Court determined, that any of the
narrow exceptions to the Younger abstention doctrine apply, 3 the Court finds it appropriate to
refrain from considering Plaintiff’s substantive due process claims at this juncture and stays
Plaintiff’s substantive due process claim pending the outcome of the family court proceeding.
See Thomas, 814 F. Supp. at 1150 (citing Deakins v. Monaghan, 484 U.S. 193, 202 (1988)
(holding the Younger doctrine requires a court to stay, rather than dismiss, claims for monetary
relief).
II.

Civil RICO Claim
The Court next turns to Plaintiff’s civil RICO claim. 4 In order to state a claim for relief

under RICO, “a plaintiff must show: (1) a violation of the RICO statute, 18 U.S.C. § 1962; (2) an
injury to business or property; and (3) that the injury was caused by the violation of Section
1962.” Spool v. World Child Int'l Adoption Agency, 520 F.3d 178, 183 (2d Cir. 2008) (internal
citations and quotation marks omitted). “Under any prong of § 1962, a plaintiff in a civil RICO

3
Courts have construed two narrow exceptions to the Younger doctrine: (i) the bad faith exception and (ii)
the exceptional circumstances exception. “To invoke the [bad faith] exception, the federal plaintiff must show that
the state proceeding was initiated with and is animated by a retaliatory, harassing, or other illegitimate motive.”
Diamond “D” Const. Corp. v. McGowan, 282 F.3d 191, 199 (2d Cir. 2002) (citing Schlagler v. Phillips, 166 F.3d
439, 442–44 (2d Cir. 1999)). The exceptional circumstances exception applies only if “the state court [is] incapable
of fairly and fully adjudicating the federal issues before it . . . .” Kugler v. Helfant, 421 U.S. 117, 124 (1975).
Circumstances are extraordinary “in the sense of creating an extraordinary pressing need for immediate federal
equitable relief, not merely in the sense of presenting a highly unusual factual situation.” Id. at 125.
4
The County Defendants contend that Plaintiff’s civil RICO claim fails at the outset because Plaintiff did
not file and serve upon the opposing party a RICO statement setting forth the elements required to plead a civil
RICO claim. (County Defs.’ Mot. at 18.) However, as Plaintiff points out, the County Defendants cite to the
Individual Rules & Procedures of another Judge in this District for that proposition. This Court has no such
requirement for civil RICO claims in its Individual Practices in Civil Cases. Therefore, the Court declines to
dismiss Plaintiff’s civil RICO claim on this basis.

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suit must establish a ‘pattern of racketeering activity’ ... [,]must plead at least two predicate acts
... and must show that the predicate acts are related and that they amount to, or pose a threat of,
continuing criminal activity.” GICC Capital Corp. v. Tech. Fin. Grp., Inc., 67 F.3d 463, 465 (2d
Cir.1995) (citing H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989)).
Plaintiff’s civil RICO claim appears to be predicated upon two alleged acts of retaliation:
(1) the County’s removal of three of Plaintiff’s children from her custody in October 2014, and
(2) Defendant Colin’s filing of the motion for the appointment of a guardian ad litem for D.J.
With respect to the first incident, on or about October 7, 2014, Plaintiff sought assistance from
the local County DSS office to pay her electric bill following the electric company’s termination
of power at her residence for nonpayment of her electric bill. (Am. Compl. ¶ 127.) Plaintiff
alleges she was informed that since her name was not listed on the bill, she must return to the
County DSS office with her husband the following day to seek assistance. (Id. ¶ 128.) When
Plaintiff returned home, a caseworker, Gabrielle Mendoza, was at her residence and allegedly
demanded to inspect Plaintiff’s apartment. (Id.) Plaintiff informed Ms. Mendoza that since she
did not have power, she had been staying with her children at a neighbor’s home. (Id.)
Subsequently, on October 10, 2014, the County made an emergency application to remove
Plaintiff’s children for neglect. (Id. ¶ 129.) Three of Plaintiff’s children, but not D.J., were
removed from Plaintiff’s custody on October 11. (Id.) Plaintiff contends that her children were
removed from her custody in retaliation for Plaintiff’s initiation of the instant federal case. (Id. ¶
130.) As to the second alleged act, Plaintiff asserts that Defendant Colin has not withdrawn as
counsel for D.J. in the Family Court action despite Defendant Colin’s receipt of a letter in
October 2014 pointing on the apparent conflict of interest between her representation of D.J. in
Family Court and being named as a defendant in the present action. (Id. ¶¶ 136-37.)

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Additionally, Defendant Colin will not withdraw her motion seeking the appointment of a
guardian ad litem. (Id. ¶ 137.)
Plaintiff’s Second Amended Complaint does not specify how these incidents qualify as
predicate acts of “racketeering activity” within the meaning of 18. U.S.C. § 1961(1).
Additionally, Plaintiff’s opposition brief merely states in a conclusory fashion that Plaintiff has
“pled particularized facts with respect to the RICO claim . . . .” (Pl.’s Opp. at 17.) Based upon
the Court’s review of the pleadings, Plaintiff’s arguments, and the relevant statute, it is clear that
Plaintiff has failed to allege any action on the part of either the County Defendants or Defendant
Colin constituting racketeering activity. Accordingly, Plaintiff’s civil RICO claim is dismissed.
III.

State Law Claims
Having dismissed Plaintiff’s civil RICO claim and stayed Plaintiff’s substantive due

process claim, the Court next considers whether it may properly adjudicate Plaintiff’s remaining
state law claims. Pendent jurisdiction allows a federal court to consider state law claims when
they “arise out of the same set of facts that give rise to an anchoring federal question claim.”
Kirschner v. Klemons, 225 F.3d 227, 239 (2d Cir. 2000) (citing 28 U.S.C. § 1367; Greenblatt v.
Delta Plumbing & Heating Corp., 68 F.3d 561, 576 (2d Cir. 1995)); see also United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966) (“The state and federal claims must derive
from a common nucleus of operative fact.”). In Kirschner, the Second Circuit noted that if
application of the Younger doctrine warranted a stay of plaintiff’s federal claim pending the
outcome of state law proceedings, then the district court had discretion to stay related state law
claims as well. 68 F.3d at 238–39.
Plaintiff alleges the following state law claims in this action: (1) common law negligence
against the County Defendants premised upon the County’s failure to provide adequate care to

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DJ. while in the County's custody, and (2) legal malpractice as against Defendant Colin for her
failure to provide adequate representation to DJ. Like Plaintiffs federal claims, these state law
claims are premised upon alleged failures on the part ofDJ.'s caretakers to provide adequate
services to D.J. upon her removal from her mother's custody. Therefore, the state law claims
and Plaintiffs federal constitutional claim arise out of a "common nucleus of operative fact."
The Court deems it appropriate to stay its consideration of Plaintiffs state law claims pending
the disposition of the proceeding in Family Cou1t.

IV.

Punitive Damages
Having stayed Plaintiffs federal substantive due process claim and related state law

claims, the Court declines to reach the issue as to whether punitive damages are appropriate at
this juncture.

CONCLUSION
For the foregoing reasons, the County Defendants' and Defendant Colin's motions to
dismiss and for judgment on the pleadings are GRANTED to the extent of dismissing Plaintiffs
civil RlCO claim and DENIED in all other respects. The Court respectfully directs the Clerk to
tenninate the motions at ECF Nos. 34 and 38. In accordance with the opinion and order, the
Comt's consideration of Plaintiffs federal due process and state law claims is stayed pending the
outcome of the state comt proceedings.

Dated:

SO ORDERED:

December 14, 2015
White Plains, New York

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