Estate of M.D. et al v. State Of New York et al
OPINION & ORDER re: 84 MOTION to Dismiss for Lack of Jurisdiction , filed by New York State Office of Children and Family Services, State Of New York, 94 MOTION to Dismiss . filed by Ulster County, Michael Iapoce, Ulster County Department of Social Services, 86 MOTION to Dismiss , filed by Department of Community and Family Services of Dutchess County, Robert Allers, Monica Balassone, Alison Sterling, Dutchess County. Defendants' Moti ons To Dismiss are granted with prejudice. As all of Plaintiffs' federal claims have been dismissed, the Court declines to exercise jurisdiction over any remaining state-law claims. Further, as Plaintiffs assert no federal claims against Defen dants Wolfert and Stahli, the Court declines to exercise jurisdiction over the state law claims against non-moving Defendants. The state-law claims are thus dismissed without prejudice. The Clerk of Court is respectfully requested to terminate the pending Motions, (Dkt. Nos. 84, 86, 94), and close the case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/10/17) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ESTATE OF M.D., by LOUIS DeCOSMO,
Administrator, and J.D., a minor, by LOUIS
DeCOSMO, his father and natural guardian,
-vSTATE OF NEW YORK, NEW YORK STATE
OFFICE OF CHILDREN AND FAMILY
SERVICES, DUTCHESS COUNTY,
DEPARTMENT OF COMMUNITY AND FAMILY
SERVICES OF DUTCHESS COUNTY, ROBERT
ALLERS, ALISON STERLING, MONICA
BALASSONE, ULSTER COUNTY, ULSTER
COUNTY DEPARTMENT OF SOCIAL SERVICES,
MICHAEL IAPOCE, KENNETH STAHLI, and
Michael D. Pomerantz, Esq.
Marrone Law Firm, L.L.C.
Counsel for Plaintiff
Robert L. Kraft, Esq.
New York State Office of the Attorney General
New York, NY
Counsel for Defendants the State of New York and New York
State Office of Children and Family Services
David L. Posner, Esq.
McCabe & Mack LLP
Counsel for Defendants Dutchess County, Department of
Community and Family Services of Dutchess County,
Robert Allers, Alison Sterling, and Monica Balassone
No. 15-CV-6602 (KMK)
OPINION & ORDER
Michael T. Cook, Esq.
Cook, Netter, Cloonan, Kurtz & Murphy, P.C.
Counsel for Defendants Ulster County, Ulster County
Department of Social Services, and Michael Iapoce
KENNETH M. KARAS, District Judge:
Louis DeCosmo (“DeCosmo”), as administrator of the estate of M.D., and as father and
natural guardian of J.D., a minor (“Plaintiffs”), bring this Action against Defendants the State of
New York, New York State Office of Children and Family Services (“OCFS,” and together with
the State of New York, “State Defendants”), Dutchess County, Department of Community and
Family Services of Dutchess County (“Dutchess DCFS”), Robert Allers (“Allers”), Alison
Sterling (“Sterling”), Monica Balassone (“Balassone,” and together with Dutchess County,
Dutchess DCFS, Allers, and Sterling, the “Dutchess Defendants” ), Ulster County, Ulster County
Department of Social Services (“Ulster DSS”), Michael Iapoce (“Iapoce,” and together with
Ulster County and Ulster DSS, the “Ulster Defendants”), Kenneth Stahli (“Stahli”), and Katlin
Wolfert (“Wolfert”), alleging violations of Plaintiffs’ constitutional rights. (See Second Am.
Compl. (“SAC”) (Dkt. No. 78).) 1 Plaintiffs also bring claims of negligence, assault and battery,
wrongful death, and survival action under state law. (Id.) Before the Court are Motions To
Plaintiff Louis DeCosmo is the administrator of the estate of M.D. and was the
biological father of Decedent M.D., who was born in 2011 and died on August 5, 2014. (See
SAC ¶¶ 1, 3.) Plaintiff J.D. is a minor and the biological child of DeCosmo and is the brother of
Decedent M.D. (Id. ¶ 3.) Defendant Allers is, and at all relevant times was, commissioner of
DCFS; Defendant Sterling is, and at all relevant times was, a DCFS caseworker; Defendant
Balassone is, and at all relevant times was, the supervisor of caseworker Sterling; Defendant
Iapoce is, and at all relevant times was, commissioner of Ulster DSS. (Id. ¶¶ 8–10, 13.)
Dismiss on behalf of State Defendants, Dutchess Defendants, and Ulster Defendants (the
“Motions”). (See Dkt. Nos. 84, 86, 94.) 2 For the reasons to follow, the Motions are granted.
The following facts are taken from Plaintiffs’ SAC and are assumed true for the purpose
of resolving the instant Motions.
A. Factual Background
At the beginning of May 2014, DeCosmo, J.D., M.D., and Defendant Wolfert resided
together in Poughkeepsie, New York. (SAC ¶ 25.) At the time, J.D. was four months old and
Decedent M.D. was two and one-half years old. (Id.) The four had lived together since the birth
of M.D. (Id.) Plaintiff DeCosmo, who is blind, was employed as a disc jockey at a local radio
station and was an active parent to J.D. and M.D. (Id. ¶¶ 26–27.)
For a period of time leading up to May 2014, DeCosmo and Wolfert’s relationship “had
deteriorated to the point where the couple was no longer close.” (Id. ¶ 26.) On May 1, 2014, a
verbal argument occurred between DeCosmo and Wolfert and Wolfert “struck DeCosmo in the
face with her fist.” (Id. ¶ 28.) Following the incident, Wolfert made an ex parte application to
Dutchess County Family Court (“DCFC”) for a restraining order that would prohibit DeCosmo
from entering their home. (Id. ¶ 29.) On May 5, 2014, DCFC granted Wolfert’s application, (id.
¶ 30), and on May 12, 2014, DCFC entered an amended temporary restraining order that granted
DeCosmo access to the home, if accompanied by law enforcement, for the purpose of retrieving
his personal property, (id. ¶ 31). DeCosmo was not allowed, by virtue of a temporary restraining
order, to continue to provide care to J.D. and M.D. (Id. ¶ 32.)
Defendant Wolfert is M.D.’s and J.D.’s mother; Defendant Stahli was a paramour of
Wolfert’s who was convicted of killing M.D. Wolfert and Stahli do not join in the Motions.
As a result of the violent incident between DeCosmo and Wolfert, Defendants OCFS,
DCFS, and Allers opened a child protective services (“CPS”) file in relation to M.D. and J.D.
(Id. ¶ 33.) 3 The CPS file was assigned to Defendant Sterling, who was supervised by Defendant
Balassone. (Id. ¶¶ 34–35.) Sterling visited the home and interviewed Wolfert twice a month
from May to June 2014. (Id. ¶¶ 36–37.)
In the beginning of June 2014, Wolfert began a relationship with Defendant Stahli. (Id.
¶ 38.) 4 During June 2014, Defendants Sterling and Balassone indicated in the CPS case file that
Defendant Wolfert’s home was safe for M.D. and J.D. (Id. ¶ 43.) Accordingly, Defendants
Sterling and Balassone determined that the Dutchess CPS case file for M.D. and J.D. should be
closed, (id. ¶ 46), and recommended against the provision of family support services, (id. ¶ 47). 5
Plaintiffs allege that this was a reckless decision and resulted from a “lack of proper
training, the overburdened nature of the CPS system[,] and the excessive caseload on social
workers and supervisors.” (Id. ¶ 50.) According to Plaintiffs, these deficiencies were “part of a
longstanding and widespread custom and/or practice that was known to Defendants State of New
York, OCFS, Dutchess County, DCFS, and Allers, acting through high-level policymakers with
While Plaintiffs allege that the domestic incident was the reason for the Dutchess CPS
investigation, Plaintiffs also cite Wolfert’s testimony from Ulster County Family Court in which
Wolfert stated that “there was an allegation [that] I didn’t bathe [M.D. and J.D.] regularly . . .
there was diaper rash on them consistently and . . . I didn’t change [their] diaper[s] regularly.”
(SAC ¶ 36.)
According to Plaintiffs, Stahli “had a history of domestic violence, theft[,] and drug
abuse,” and this information was “readily available to [Defendants],” though Plaintiffs offer no
specifics in support of these claims. (SAC ¶¶ 39–40.)
According to Plaintiffs, Sterling and Balassone “actively . . . concealed the fact that
Defendant Stahli was a presence in the lives of Defendant Wolfert and M.D. and J.D. from . . .
DeCosmo.” (SAC ¶ 45.)
final authority or so widespread that they should have known of such custom and/or practice of
incomplete and inaccurate CPS investigations.” (Id. ¶ 53.)
On or around July 6, 2014, Wolfert moved with M.D. and J.D. to Milton, New York, in
Ulster County. (Id. ¶¶ 57, 60.) 6 Stahli also moved into Wolfert’s new home with her children
and became their sole caretaker while Wolfert worked during the day. (Id. ¶¶ 60–61.) During
the following month, Wolfert and Stahli “engaged in a drug fueled pattern of abuse, physical
battering[,] and torture.” (Id. ¶ 62.) On August 5, 2014, an emergency medical technician and
paramedic were called to Wolfert’s home and encountered an unresponsive M.D. with visible
bruising on his body. (Id. ¶ 63.) The paramedic attempted to perform life-saving measures on
M.D., but they were unsuccessful. (Id. ¶ 64.) An autopsy performed on M.D. revealed that he
had suffered internal bleeding from a lacerated pancreas and liver, brain injuries, a lacerated
frenulum, a subdural hematoma, and a broken rib. (Id. ¶ 65.) The post-mortem examination also
revealed the presence of heroin in M.D.’s body. (Id.)
An examination of J.D. at the time of M.D.’s death revealed “a double ear infection, a
101 [degree] fever, severe eczema . . . and very inflamed nipples, with a hickey-type injury about
two inches below the right nipple.” (Id. ¶ 71.) Following M.D.’s death, J.D. was removed from
Wolfert’s home and is currently in the custody of DeCosmo. (Id. ¶ 70.) On May 8, 2015,
following a jury trial in Ulster County, Stahli was convicted of the murder of M.D. and is
currently serving a sentence of 25 years to life in prison. (Id. ¶¶ 66, 73.)
Plaintiffs assert nine counts against various Defendants for violation of Plaintiffs’ rights
under the Fourth and Fourteenth Amendments, supervisory liability, Monell liability, assault and
Plaintiffs allege that Dutchess Defendants should have communicated with Ulster
County officials about this case or, in fact, should have transferred it to Ulster County. (SAC
battery, negligence, wrongful death, and survival action, (see id. ¶¶ 78–132), seeking monetary
and punitive damages, as well as interest, costs, and attorney’s fees, (see id.).
B. Procedural History
Plaintiffs filed their initial Complaint on August 20, 2015. (Dkt. No. 1.) 7 Plaintiffs filed
an Amended Complaint on September 1, 2015, (Dkt. No. 28), and the Second Amended
Complaint on February 8, 2016. (Dkt. No. 78.) On March 28, 2016, State Defendants filed a
Motion To Dismiss and accompanying memorandum of law, (Dkt. Nos. 84–85), and on the same
day, Dutchess Defendants filed a Motion To Dismiss and accompanying papers, (Dkt. Nos. 86–
92). On March 29, 2016, Ulster Defendants filed a Motion To Dismiss and accompanying
papers. (Dkt. Nos. 94–98.) On May 12, 2016, Plaintiffs filed oppositions to each Motion To
Dismiss, (Dkt. Nos. 99–101), and State, Dutchess, and Ulster Defendants each filed a reply on
May 26, 2016, (Dkt. Nos. 102–04).
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
This Action was originally assigned to Judge Jesse Furman of the District Court for the
Southern District of New York in the Manhattan courthouse. (See Dkt. (minute entry for Aug.
21, 2015).) Pursuant to an Order issued August 26, 2015, the case was reassigned to the White
Plains courthouse. (See Order (Dkt. No. 27).) On September 11, 2015, the case was assigned to
this Court. (See Dkt. (minute entry for Sept. 11, 2015).)
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks
omitted). Rather, a complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his] claims across the line from
conceivable to plausible, the complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679
(“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense. But where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P.
8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and
“draw all reasonable inferences in favor of the plaintiff,” Daniel v. T & M Prot. Res., Inc., 992
F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145
(2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must
confine its consideration to facts stated on the face of the complaint, in documents appended to
the complaint or incorporated in the complaint by reference, and to matters of which judicial
notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)
(internal quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317
(S.D.N.Y. 2016) (same).
1. Plaintiffs’ Claims Against State Defendants
As noted, Plaintiffs allege that the “deficiencies in the CPS investigation . . . which
brought about the death of M.D. and the injuries suffered by J.D. . . . were part of a longstanding
and widespread custom and/or practice that was known to Defendants State of New York . . .
[and] OCFS . . . , acting through high-level policymakers with final authority [who]
deliberately chose not to pursue a different course of action.” (SAC ¶ 54.) Similarly, Plaintiffs
aver that “the active and affirmative conduct of Defendants Alison Sterling and Monica Balasone
were the result of decisions by Defendants State of New York . . . [and] OCFS . . . , acting
through high-level policymakers with final authority and/or acquiescing to a longstanding
custom and/or practice known to such high-level policymakers.” (Id. ¶ 55.) Plaintiffs further
allege that during the final weeks of Decedent M.D.’s life, witnesses to the abuse committed by
Defendants Wolfert and Stahli “called anonymous child abuse ‘tip lines’ maintained by
Defendants State of New York” and that despite receiving such information, “Defendant State
of New York . . . did not initiate any CPS investigation or assign any caseworker.” (Id. ¶ 69.)
In their Motion To Dismiss, State Defendants argue that “Plaintiffs’ claims against State
Defendants are barred by the Eleventh Amendment.” (See Mem. of Law in Supp. of State Defs.’
Mot. To Dismiss 5 (Dkt. No. 85).) The Eleventh Amendment provides that “[t]he Judicial power
of the United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI. The Amendment prohibits suits against
a state in federal court unless the state consents or there has been a valid abrogation of its
sovereign immunity by an act of Congress. See Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 100–01 (1984). “[Section] 1983 does not explicitly and by clear language indicate
on its face an intent to sweep away the immunity of the States; nor does it have a history which
focuses directly on the question of state liability and which shows that Congress considered and
firmly decided to abrogate the Eleventh Amendment immunity of the States.” Quern v. Jordan,
440 U.S. 332, 345 (1979); see also Davis v. New York, 316 F.3d 93, 101 (2d Cir.
2002) (affirming dismissal of § 1983 claims for damages against state on Eleventh Amendment
State sovereign immunity extends to state agencies that constitute “arms of the state.”
See N. Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189, 193 (2006); see also Jones v. N.Y.
State Div. of Military & Naval Affairs, 166 F.3d 45, 49 (2d Cir. 1999) (holding that the Eleventh
Amendment bars § 1983 suits against state agencies). Here, OCFS is properly characterized as
an “arm of the state.” See Hale v. Mann, 219 F.3d 61, 67–69 (2d Cir. 2000) (granting immunity
under the Eleventh amendment to OCFS in the context of a Family Medical Leave Act suit);
Rivera v. Mattingly, 604 F. Supp. 2d 634, 638 (S.D.N.Y. 2009) (finding official capacity claims
against OCFS Commissioner barred by Eleventh Amendment).
In response to State Defendants’ Motion, Plaintiffs argue that “[t]he Eleventh
Amendment . . . is not truly a limit on subject matter jurisdiction, but rather a block on the
exercise of jurisdiction that still exists.” (Pls.’ Resp. in Opp’n to Defs. State of New York and
New York State Office of Children and Family Servs.’ Mot. To Dismiss (“Pls.’ State Opp’n”) 2
(Dkt. No. 101).) Plaintiffs offer no further explanation of this claim, whatever it is. Plaintiffs
further assert that OCFS’s assertions of immunity are unavailing because under Monell v.
Department of Social Services of the City of New York, 436 U.S. 658 (1978), a municipal agency
is considered a “person” subject to suit, (Pls.’ State Opp’n 2–3). As the Supreme Court made
clear in Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989), “it does not follow that if
municipalities are persons [under Monell] then so are States.” Id. at 70. “States are protected by
the Eleventh Amendment while municipalities are not . . . and . . . [the] holding in Monell [was
limited] to local government units which are not considered part of the State for Eleventh
Amendment purposes.” Id. (citation and internal quotation marks omitted).
Because New York State has not waived its Eleventh Amendment immunity, nor has
Congress abrogated the state’s immunity under § 1983, this Court lacks subject matter
jurisdiction over Plaintiffs’ claims against the State of New York and OCFS. Accordingly,
Plaintiffs’ claims against the State Defendants are dismissed.
2. Plaintiffs’ Claims Against Dutchess Defendants
a. Claims against Dutchess DCFS
Dutchess Defendants argue that the claims against Dutchess DCFS must be dismissed
because it lacks the capacity to be sued. (See Dutchess Defs.’ Mem. 29; Dutchess Cty. Defs.’
Reply Mem. of Law (“Dutchess Defs.’ Reply”) 5 (Dkt. No. 103).) The Court agrees.
“[U]nder New York law, departments that are merely administrative arms of a
municipality do not have a legal identity separate and apart from the municipality, and therefore,
cannot sue or be sued.” Davis v. Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y.
2002). Here, because Dutchess DCFS is an administrative arm of Dutchess County, and not an
independent legal entity, it lacks the capacity to be sued. See, e.g., Bey v. New York, No. 11-CV3296, 2013 WL 3282277, at *5 (E.D.N.Y. June 25, 2013) (dismissing claims against Nassau
County Child Protective Services); Teitelbaum v. Katz, No. 12-CV-2858, 2013 WL 563371, at
*5 (S.D.N.Y. Feb. 11, 2013) (dismissing claims against Orange County Child Protective
While the Court notes that it could substitute Defendant Dutchess County for DCFS, see
Fed. R. Civ. P. 21 (providing that “on its own, the court may at any time, on just terms, add . . . a
party”), each federal claim Plaintiffs assert against DCFS, is also brought against Dutchess
County, (see SAC ¶¶ 78–84, 108–13). Accordingly, Plaintiffs’ claims against Dutchess DCFS
b. Fourth Amendment
Dutchess Defendants assert that Plaintiffs’ failure to respond to the defenses to Plaintiffs’
claims under the Fourth Amendment constitutes abandonment of those claims and thus warrants
their dismissal. (See Dutchess Defs.’ Reply 1.) “Federal courts have the discretion to deem a
claim abandoned when a defendant moves to dismiss that claim and the plaintiff fails to address
in their opposition papers defendants’ arguments for dismissing such a claim,” Robinson v.
Fischer, No. 09-CV-8882, 2010 WL 5376204, at *10 (S.D.N.Y. Dec. 29, 2010) (report and
recommendation), “[h]owever, in the exercise of its discretion, the Court will not deem the claim
abandoned,” Marro v. Nicholson, No. 06-CV-6644, 2008 WL 699506, at *4 n.6 (E.D.N.Y. Mar.
12, 2008), but will instead address its merits.
Plaintiffs assert that M.D. and J.D. were “victims of unreasonable and/or unlawful seizure
and/or detainment at the home of [D]efendant Wolfert while she was in a romantic relationship
with Defendant Stahli” and that “[t]he conduct of . . . Defendants in not permitting Decedent
M.D. and Plaintiff J.D. to leave the premises . . . deprived [them] of their rights under the laws of
the Constitution.” (SAC ¶ 81.) In response, Dutchess Defendants assert that “[t]he Fourth
Amendment has no applicability” to Plaintiffs’ claims. (Dutchess Defs.’ Mem. 11–12.)
The threshold question is whether any actions of Dutchess Defendants constituted a
“seizure” for Fourth Amendment purposes. See Kyllo v. United States, 533 U.S. 27, 31 (2001)
(noting that “the antecedent question” in a Fourth Amendment inquiry is whether the
governmental conduct in question constituted a search or seizure). Only if the conduct can be
defined as such does the Court then analyze whether the seizure was reasonable under the Fourth
Amendment. See Illinois v. Caballes, 543 U.S. 405, 409–10 (2005) (ending the Fourth
Amendment inquiry after determining that the contested police action did not constitute a
search). “A ‘seizure’ triggering the Fourth Amendment’s protections occurs only when
government actors have, ‘by means of physical force or show of authority, . . . in some way
restrained the liberty of a citizen.’” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)
(alteration in original) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). This happens when,
“in view of all of the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.” Kia P. v. McIntyre, 235 F.3d 749, 762 (2d Cir. 2000)
(internal quotation marks omitted). As one court has explained:
Factors that have been found relevant in determining whether a seizure has occurred
include: “threatening presence of several officers; the display of a weapon; physical
touching of the person [by] the officer; language or tone indicating that compliance
with [the] officer was compulsory; prolonged retention of a person’s personal
effects, such as airplane tickets or identification; and a request by an officer to
accompany him to the police station or a police room.”
Dejesus v. Village of Pelham Manor, 282 F. Supp. 2d 162, 169 (S.D.N.Y. 2003) (quoting United
States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990)). Courts also should consider the age of the
person being detained because “‘whether the person . . . is a child or an adult’” is “relevant” to
whether a person would feel free to leave. United States v. Little, 18 F.3d 1499, 1505 n.6 (10th
Cir. 1994); see also Jones v. Hunt, 410 F.3d 1221, 1226 (10th Cir. 2005) (noting that the
plaintiff’s “encounter” with police officers should be viewed “through the eyes of a reasonable
sixteen-year-old”); Doe v. Heck, 327 F.3d 492, 510 (7th Cir. 2003) (asking whether a
“reasonable child” being questioned at school about abuse allegations would have felt free to
leave); Phillips v. County of Orange, 894 F. Supp. 2d 345, 363 (S.D.N.Y. 2012) (finding “a
reasonable five-year-old child would not have thought she was free to leave or decline the adults’
While lower courts within the Second Circuit have held that a deprivation of custody
constitutes a seizure under the Fourth Amendment, see Estiverne v. Esernio-Jenssen, 833 F.
Supp. 2d 356, 375–76 (E.D.N.Y. 2011) (finding that there was an issue of fact as to whether
parents were free to take their child from a hospital, and thus allowing a Fourth Amendment
seizure claim to go forward); E.D. ex rel. V.D. v. Tuffarelli, 692 F. Supp. 2d 347, 366 (S.D.N.Y.
2010) (“The removal of a child, even on a temporary basis, may constitute a ‘seizure’ for the
purpose of the Fourth Amendment’s prohibition against unlawful search and
seizure.”), aff’d, 408 F. App’x 448 (2d Cir. 2011), the Court has not identified any precedent
within the Second Circuit addressing whether a failure of CPS workers to remove a child from an
allegedly abusive home constitutes a seizure, such that the child can state a
valid Fourth Amendment claim.
Here, Plaintiffs fail to allege any affirmative conduct of Dutchess Defendants to support
assertions that they did “not permit Decedent M.D. and Plaintiff to leave the premises.” (SAC
¶ 81.) Of the factors pertinent in determining whether seizure has occurred—threatening
presence of officers, display of a weapon, physical contact, language or tone urging compulsory
compliance, prolonged retention of personal property, officer escort to a police station—see
Dejesus, 282 F. Supp. 2d at 169, none is present here. Plaintiffs have failed to adequately plead
any facts that support a claim that M.D. or J.D.’s liberty “was restrained,” let alone “by means of
physical force or show of authority” on behalf of any of Dutchess Defendants. Graham, 490
U.S. at 395 n.10. M.D. and J.D. were in the home of their legal guardian, Defendant Wolfert. In
the absence of anything beyond conclusory allegations that M.D. and J.D. “were the victims of
unreasonable and/or unlawful seizure and/or detainment at the home” of their legal guardian, the
Court finds the allegations are insufficient to state a claim under the Fourth Amendment. See
Zimmerman v. Wolczyk, No. 15-CV-1437, 2016 WL 3702987, at *6 n.11 (N.D.N.Y. July 8,
2016) (“[The] [p]laintiff’s conclusory assertion that his confinement constituted an unreasonable
seizure . . . does not give rise to a cognizable Fourth Amendment claim against these
defendants.” (alterations and internal quotation marks omitted)). Plaintiffs’ Fourth Amendment
claims against Dutchess Defendants are therefore dismissed.
c. Fourteenth Amendment
Plaintiffs allege that Defendants Sterling and Bassalone violated M.D.’s and J.D.’s
substantive rights to due process under the Fourteenth Amendment. (SAC ¶¶ 85–107.) In
response, Dutchess Defendants assert that Plaintiffs fail to state a claim and additionally, fail to
plead that Sterling and Bassalone were the proximate cause of M.D.’s and J.D.’s injuries because
of the intervening conduct of Defendant Wolfert. (Dutchess Defs.’ Mem. 13–19.)
The Second Circuit has emphasized that “[o]nly an affirmative act can amount to a
violation of substantive due process, because the Due Process Clause is phrased as a limitation
on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.”
Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007) (internal quotation marks omitted).
Moreover, state action resulting in bodily harm is not a substantive due process violation unless
the state “action was so ‘egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.’” Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005) (quoting County
of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). Thus, it is insufficient to allege that a
state actor failed to protect an individual, even from a known danger of bodily harm or failed to
warn that individual of such danger. See Collins v. City of Harker Heights, 503 U.S. 115, 125–
29 (1992) (holding that there was no due process violation where the plaintiff alleged that the
city failed to properly train or warn its employees of known dangers that resulted in a sanitation
worker’s asphyxiation). This includes dangers arising from private parties. As the Supreme
Court explained in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189
(1989), the purpose of the Due Process Clause of the Fourteenth Amendment is “to protect the
people from the State, not to ensure that the State protected them from each other.” Id. at 196.
In DeShaney, the seminal case on substantive due process, the Supreme Court considered
“when, if ever, the failure of a state or local government entity or its agents to provide an
individual with adequate protective services constitutes a violation of the individual’s due
process rights.” Id. at 194. There, defendant Winnebago County Department of Social Services
(“Winnebago DSS”) received information that four-year-old Joshua DeShaney was being abused
by his father, his guardian. Id. at 192. Following admission to the hospital with abrasions and
bruises, Joshua’s examining physician notified Winnebago DSS, and a juvenile court placed
Joshua in temporary custody of the hospital. Id. Following consultation with a pediatrician, a
child psychologist, and a police detective, Winnebago DSS determined that there was
insufficient evidence of abuse to warrant keeping Joshua in custody of the State, and returned
Joshua to his father’s custody. Id. at 192. However, the abuse continued and Joshua suffered a
severe beating that resulted in permanent brain damage. Id. at 193. Joshua and his mother sued
Winnebago DSS and various individual employees, claiming that “by failing to intervene to
protect [Joshua] against a risk of violence at his father’s hands of which they knew or should
have known,” the defendants violated Joshua’s substantive due process rights. Id.
The Court held that the failure to remove Joshua from his father’s custody, despite the
defendants’ knowledge of abuse, did not constitute a violation of substantive due process. Id. at
202. The Court noted that “nothing in the language of the Due Process Clause itself requires the
State to protect the life, liberty, and property of its citizens against invasion by private actors,” id.
at 195, and that the language of the Clause “cannot fairly be extended to impose an affirmative
obligation on the State to ensure that those interests do not come to harm through other means,”
id. “If the Due Process Clause does not require the State to provide its citizens with particular
protective services,” the Court stated, “it follows that the State cannot be held liable under the
Clause for injuries that could have been averted had it chosen to provide them.” Id. at 196–97.
However, “in exceptional circumstances a governmental entity may have a constitutional
obligation to provide . . . protection, either because of a special relationship with an individual,
or because the governmental entity itself has created or increased the danger to the individual.”
Ying Jing Gan v. City of New York, 996 F.2d 522, 533 (2d Cir. 1993) (citation omitted) (citing
DeShaney, 489 U.S. at 198, 201). Here, Plaintiffs contend that both the “state-created danger”
and “special relationship” exceptions apply. (See SAC ¶¶ 85–99; Pls.’ Resp. in Opp’n to Defs.’
Dutchess Cty., Dep’t of Cmty. and Family Servs. of Dutchess Cty., Robert Allers, Alison
Sterling and Monica Balassone’s Mot. To Dismiss (“Pls.’ Dutchess Opp’n”) 7–12 (Dkt. No. 99).)
Plaintiffs assert that Defendants Sterling and Balassone are culpable because “they affirmatively
exercised their authority in a manner that created a danger to M.D. and J.D.” and that “M.D.’s
and J.D.’s status as the subjects of a CPS file and/or investigation created a special relationship
that existed between Decedent M.D., J.D. and Defendants Sterling and Balassone.” (SAC ¶¶ 90–
91.) The Court addresses each exception in turn.
i. State-Created Danger
The early incantations of state-created danger involved law enforcement officers
encouraging private actors to inflict harm upon others. In the wake of DeShaney, the Second
Circuit first recognized the notion of a state-created danger in Dwares v. City of New York, 985
F.2d 94 (2d Cir. 1993), overruled on other grounds by Leatherman v. Tarrant Cty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163 (1993). In Dwares, the plaintiff alleged that
police officers conspired with “skinheads” to assault a group of flag-burners expected to be at a
public protest. In particular, the plaintiff claimed that the police officers who were present when
these skinheads attacked plaintiff while he attended the demonstration (and supported those who
burned flags) had previously communicated to the skinheads that the police would not interfere
with or arrest the skinheads for assaulting any flag-burners, “unless they got completely out of
control.” Id. at 96–97. According to the Dwares court, such “a prearranged official sanction of
privately inflicted injury would surely have violated the victim’s rights under the Due Process
Clause.” Id. at 99.
The next application of the state-created danger exception was in Hemphill v. Schott, 141
F.3d 412 (2d Cir. 1998). Describing state-created danger liability as arising when a “state actor
aids and abets a private party in subjecting a citizen to unwarranted physical harm,” id. at 418,
the Hemphill court found such liability where the police not only returned a firearm to a robbery
victim, but then drove him to the scene of the robber’s arrest, whereupon the robbery victim shot
the robber, id. at 418–20. The following year, in Snider v. Dylag, 188 F.3d 51 (2d Cir. 1999), the
Second Circuit held that a prison guard who told inmates that it was “open season” on a prisoner
created a danger when inmates later beat up that prisoner. Id. at 55.
The reach of state-created liability was extended in Pena, 432 F.3d 98. In Pena, family
members of pedestrians who were killed by an intoxicated off-duty police officer brought a
§ 1983 action against other officers, claiming that they sanctioned the intoxicated officer’s
alcohol abuse and driving under the influence, in violation of the pedestrians’ substantive due
process rights. Id. at 103–04. In analyzing the plaintiffs’ theory of liability, the Pena court
broke down the categories of officers into those who merely “failed to intercede on the day of the
accident,” and those who encouraged, even if implicitly, the intoxicated officer to drink
excessively and drive. Id. at 110–11. In making this distinction, the court recognized that in
applying the state-created danger doctrine, the Second Circuit has “sought to tread a fine line
between conduct that is ‘passive’ as in DeShaney and that which is ‘affirmative’ as in Dwares,”
id. at 109, an exercise that the court acknowledged can be “difficult,” id. at 110. Nonetheless,
the court had little trouble in holding that the plaintiffs’ allegations regarding officers who either
failed to intercede, or otherwise “stood by and did nothing” to address the intoxicated officer’s
previous misconduct were “inadequate to state a substantive due process claim.” Id. (internal
quotation marks omitted). As the court emphasized, “[a] failure to interfere when misconduct
takes place, and no more, is not sufficient to amount to a state created danger.” Id. (emphasis in
Here, any theory of state-created danger is fatally undermined by the absence of any
allegation that Defendants Sterling and Balassone affirmatively communicated, even implicitly,
to Stahli that abuse against J.D. and M.D. was permissible. “The affirmative conduct of a
government official may give rise to an actionable due process violation if it communicates,
explicitly or implicitly, official sanction of private violence.” Okin v. Vill. of Cornwall-OnHudson Police Dep’t, 577 F.3d 415, 429 (2d Cir. 2009) (discussing the state-created danger
doctrine in a case where police officers were alleged to have implicitly encouraged the
perpetration of domestic abuse); see also Pena, 432 F.3d at 111 (“[W]hen . . . state officials
communicate to a private person that he or she will not be arrested, punished, or otherwise
interfered with while engaging in misconduct that is likely to endanger the life, liberty or
property of others, those officials can be held liable under [§] 1983 for injury caused by the
misconduct under Dwares.”); Jones v. Nickens, 961 F. Supp. 2d 475, 487 (E.D.N.Y. 2013)
(“Missing from [the plaintiff’s] claim, however, is any allegation that the [defendants] took the
kind of affirmative action that would otherwise imbue them with a duty to protect [the decedent]
from private abuse.”). This communication gap is the critical missing link between the danger
M.D. and J.D. faced and the responsibility for creating it. While “‘[t]he boundaries of the state
created danger exception to DeShaney are not entirely clear,’ . . . the exception does require a
government defendant to ‘either be a substantial cause of the danger . . . or at least enhance it in a
material way.’” Scruggs v. Meriden Bd. of Educ., No. 03-CV-2224, 2007 WL 2318851, at *12
(D. Conn. Aug. 10, 2007) (second alteration in original) (quoting Clarke v. Sweeney, 312 F.
Supp. 2d 277, 293 (D. Conn. 2004)). Here, the danger (and harm) to M.D. and J.D. came from
Defendant Stahli and there is no allegation that Sterling or Balassone did anything to create that
danger, even if they allegedly failed to, and could, prevent the danger.
In DeShaney, the Supreme Court recognized that the State had played no role in creating
the dangers to Joshua, “nor did it do anything to render him more vulnerable to” such dangers.
DeShaney, 489 U.S. at 201. 8 The same is true here. Plaintiffs’ allegations fall short of
sustaining a claim that Sterling’s or Balassone’s actions, or lack of action, substantially caused or
enhanced the danger to M.D. and J.D. At worst, their actions were insufficient to prevent the
danger, thus placing this case squarely in the ambit of DeShaney.
ii. Special Relationship
DeShaney also recognized the so-called “special relationship” exception to the general
rule that the Due Process Clause does not impose an affirmative obligation to protect its citizens
from private tortfeasors. The Supreme Court has described this relationship as follows:
[W]hen the State takes a person into its custody and holds him there against his
will, the Constitution imposes upon it a corresponding duty to assume some
responsibility for his safety and general well-being. . . . The rationale for this
principle is simple enough: when the State by the affirmative exercise of its power
so restrains an individual’s liberty that it renders him unable to care for himself,
and at the same time fails to provide for his basic needs—e.g., food, clothing,
shelter, medical care, reasonable safety—it transgresses the substantive limits on
state action set by the . . . Due Process Clause.
DeShaney, 489 U.S. at 199–200 (italics omitted). In Deshaney, the Supreme Court held that the
special relationship exception did not apply, because “[t]he affirmative duty to protect arises not
from the State’s knowledge of the individual’s predicament or from its expression of intent to
help him, but from the limitation which it has imposed on his freedom to act on his own behalf.”
Id. at 200 (emphasis added).
Most often, substantive due process claims arise in the child-removal context. “[A]
‘special relationship’ . . . may exist between the state and a child when a state official places the
child in foster care.” S.W. ex rel. Marquis-Abrams v. City of New York, 46 F. Supp. 3d 176, 203
Moreover, in DeShaney, the defendants were aware of previous instances of abuse, at
least one of which resulted in a trip to the hospital. While Plaintiffs allege that “[a]t all relevant
times, Defendant Stahli had a history of domestic violence, theft and drug abuse,” (SAC ¶ 39),
there are no allegations that Stahli previously abused children, or abused M.D. or J.D.
(E.D.N.Y. 2014); see also Doe v. N.Y.C. Dep’t of Soc. Servs., 649 F.2d 134, 141–42 (2d Cir.
1981); Smith v. Town of East Haven, No. 01-CV-1375, 2005 WL 677284, at *4 (D. Conn. Mar.
22, 2005) (“The ‘special relationship’ exception applies to persons in state custody, such as to
foster children, or persons who have their freedom of movement limited by the state, e.g.
undercover witnesses.”), reconsideration granted, 2005 WL 2406011 (D. Conn Sept. 28, 2005).
Here, as noted above, M.D. and J.D. were not placed in foster care, and therefore, were not in the
custody of the State. “Accordingly, [Plaintiffs] cannot assert a § 1983 claim against the . . .
[D]efendants based on the ‘special relationship’ exception.” S.W. ex rel. Marquis-Abrams, 46 F.
Supp. 3d at 203; see also Cruz v. N.Y.C. Hous. Auth., No. 03-CV-8031, 2004 WL 1970143, at *8
(S.D.N.Y. Sept. 3, 2004) (noting “the Second Circuit has . . . only recognized ‘custodial
relationships such as a prison and inmate or a mental institution and involuntarily committed
patient, and the relationship between a social service agency and foster child’ as imposing an
affirmative duty to protect on state actors” (quoting Ying Jing Gan, 996 F.2d at 533)). As such,
the conduct of Defendants Sterling and Balassone does not rise to the level of a “limitation on
[M.D. and J.D.’s] freedom to act on [their] own behalf.” DeShaney, 489 U.S. at 200 (emphasis
added). As Plaintiffs have failed to demonstrate that Defendants Sterling and Balassone violated
M.D. and J.D.’s constitutional right to substantive due process and neither exception applies, the
Court grants Dutchess Defendants’ Motion To Dismiss on this ground.
d. Supervisory and Monell Liability
Plaintiffs bring a claim for supervisory liability against Defendants Allers and Balassone,
asserting that they “knew or should have known that their directions and/or acquiescence to the
conduct of those over whom they exercised supervisory control would have the effect of
depriving M.D. and J.D. of their rights under the law of the Constitution . . . .” (SAC ¶ 106; see
also Pls.’ Dutchess Opp’n 13–14.) Defendants argue that Plaintiffs “fail to allege sufficient
personal conduct by Allers to state a supervisory liability claim” and that the claim for
supervisory liability against Defendant Balassone should be dismissed as Plaintiffs fail to state
claims for a constitutional violation. (Dutchess Defs.’ Mem. 19–20 & n.8; see also Dutchess
Defs.’ Reply 6–7.)
“It is well settled in [the Second] Circuit that personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal quotation marks omitted). While “[i]n
certain situations, a supervisor may be held liable under [§] 1983 for a constitutional violation
committed by a subordinate,” Santana v. City of Hartford, 283 F. Supp. 2d 720, 728 (D. Conn.
2003), “the doctrine of respondeat superior standing alone does not suffice to impose liability for
damages under [§] 1983 on a defendant acting in a supervisory capacity,” Hayut v. State Univ. of
N.Y., 352 F.3d 733, 753 (2d Cir. 2003).
“[F]or a supervisor to be liable under [§] 1983, there must have been an underlying
constitutional deprivation.” Blyden v. Mancusi, 186 F.3d 252, 265 (2d Cir. 1999); see also
Clarke, 312 F. Supp. 2d at 298 (“[O]ne of the requirements of supervisory liability . . . is that the
supervisor’s action (or inaction) must have led to a deprivation of constitutional rights.”). As
detailed supra, there was no constitutional violation of M.D.’s and J.D.’s rights arising from
Sterling’s and Balassone’s conduct. See Elek v. Incorporated Village of Monroe, 815 F. Supp.
2d 801, 808 (S.D.N.Y. 2011) (“Absent an underlying constitutional violation, there is no
cognizable claim for supervisor liability.” (internal quotation marks omitted)). Accordingly,
there can be no supervisory liability for Defendants Allers or Balassone based on the actions of
those over whom they exercised supervisory control.
The same is true as to Plaintiffs’ claims under Monell v. Department of Social Services of
the City of New York, 436 U.S. 658 (1978). Plaintiffs allege that Dutchess County and DCFS
failed to: (1) “properly screen, hire, employ and/or retain employees . . . with sufficient skill
and/or fitness for duty to serve as caseworkers and/or supervisors”; (2) “properly train
and/supervise employees”; (3) “properly implement appropriate policies, practices, and/or
procedures”; and (4) “properly train supervisors managers and other personnel to properly and
adequately oversee the activities of caseworkers.” (SAC ¶ 111.) Defendants assert that Plaintiffs
fail to allege facts sufficient to state a claim. (See Dutchess Defs.’ Mem. 22–23; Dutchess Defs.’
“To state a claim under [§ 1983], the plaintiff must show that a defendant, acting under
color of state law, deprived him of a federal constitutional or statutory right.” Sykes v. Bank of
Am., 723 F.3d 399, 405–06 (2d Cir. 2013). “Congress did not intend municipalities to be held
liable [under § 1983] unless action pursuant to official municipal policy of some nature caused a
constitutional tort.” Monell, 436 U.S. at 691. Thus,
to prevail on a claim against a municipality under [§] 1983 based on acts of a public
official, a plaintiff is required to prove: (1) actions taken under color of law; (2)
deprivation of a constitutional or statutory right; (3) causation; (4) damages; and
(5) that an official policy of the municipality caused the constitutional injury.
Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008); cf. Salvatierra v. Connolly, No. 09CV-3722, 2010 WL 5480756, at *10 (S.D.N.Y. Sept. 1, 2010) (dismissing a claim against
government agencies where the plaintiff did not allege that any policy or custom caused the
deprivation of his rights), adopted by 2011 WL 9398 (S.D.N.Y. Jan. 3, 2011); Arnold v.
Westchester County, No. 09-CV-3727, 2010 WL 3397375, at *9 (S.D.N.Y. Apr. 16, 2010)
(dismissing a claim against the county because the complaint “[did] not allege the existence of an
unconstitutional custom or policy”), adopted sub nom. Arnold v. Westchester Cty. Dep’t of Corr.,
2010 WL 3397372 (S.D.N.Y. Aug. 25, 2010). The fifth element—that an official policy of the
municipality caused the constitutional injury—reflects the notion that “a municipality may not be
held liable under § 1983 solely because it employs a tortfeasor.” Bd. of Cty. Comm’rs of Bryan
Cty. v. Brown, 520 U.S. 397, 403 (1997); see also Newton v. City of New York, 566 F. Supp. 2d
256, 270 (S.D.N.Y. 2008) (“As subsequently reaffirmed and explained by the Supreme Court,
municipalities may only be held liable when the municipality itself deprives an individual of a
constitutional right.”). In other words, a municipality may not be held liable under § 1983 “by
application of the doctrine of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469,
478 (1986) (italics omitted); see also Vassallo v. Lando, 591 F. Supp. 2d 172, 201 (E.D.N.Y.
2008) (noting that “a municipal entity may only be held liable where the entity itself commits a
wrong”). Instead, there must be a “direct causal link between a municipal policy or custom and
the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); see
also City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (“[G]overnments should be held
responsible when, and only when, their official policies cause their employees to violate another
person’s constitutional rights.”). Importantly, “Monell does not provide a separate cause of
action for the failure by the government to train its employees; it extends liability to a municipal
organization where that organization’s 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).
“If a plaintiff alleges no constitutional violation, or a district court finds that the plaintiff
has inadequately alleged one, the Monell claim fails.” Williams v. City of New York, No. 11-CV6679, 2012 WL 3245448 at *12 (S.D.N.Y. Aug. 8, 2012); see also Segal, 459 F.3d at 219
(“Because the district court properly found no underlying constitutional violation, its decision
not to address the municipal defendants’ liability under Monell was entirely correct.”); Vassallo,
591 F. Supp. 2d at 202 (holding that because there was no constitutional violation by the
individual defendants, no Monell claim remained against the municipality). As Plaintiffs’ have
failed to allege a constitutional violation on behalf of Dutchess Defendants, (see supra),
Plaintiffs claims pursuant to Monell are dismissed. 9
Even if Plaintiffs had plausibly alleged a constitutional violation, the Monell claim would
be dismissed. First, Plaintiffs’ allegations about Dutchess County’s policies and training
practices are devoid of any specifics. For example, there is no particular deficiency in the
training of its employees that is identified. Instead, they represent the type of conclusory
allegations that are routinely found to be insufficient. See Moore v. City of New York, No. 08CV-8879, 2010 WL 742981, at *6 (S.D.N.Y. Mar. 2, 2010) (“Allegations that a defendant acted
pursuant to a ‘policy’ or ‘custom’ ‘without any facts suggesting the policy’s existence, are
plainly insufficient.’” (quoting Missel v. County of Monroe, 351 F. App’x 543, 545 (2d Cir.
2009))). Second, Plaintiffs have, at most, identified a single instance of allegedly unlawful
conduct by Dutchess County employees. Plaintiffs have not identified any practice or pattern of
unlawful conduct, or the actionable conduct of a particular policymaker that could trigger Monell
liability here. Newton, 566 F. Supp. 2d at 271 (“[A] custom or policy cannot be shown by
pointing to a single instance of unconstitutional conduct by a mere employee of the
[municipality].”); see also Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985) (plurality
opinion) (“Proof of a single incident of unconstitutional activity is not sufficient to impose
Dutchess Defendants contend that Allers, Sterling, and Balassone have not been
properly served with process. (See Dutchess Defs.’ Mem. 28–29.) As the Court has resolved the
dispute on the merits of Plaintiffs’ claims, it need not address the procedural deficiencies in
liability under Monell, unless proof of the incident includes proof that it was caused by an
existing, unconstitutional municipal policy, which policy can be attributed to a municipal
policymaker.”); Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A
single incident by itself is generally insufficient to establish the affirmative link between the
municipal policy or custom and the alleged unconstitutional violation.”).
3. Plaintiffs’ Claims Against Ulster Defendants
a. Claims against Ulster DSS
For the reasons given above, Plaintiffs’ claims against Ulster DSS must be dismissed
because, like Ulster DCFS, Ulster DSS lacks the capacity to be sued. See Davis, 224 F. Supp. 2d
at 477 (“[U]nder New York law, departments that are merely administrative arms of a
municipality do not have a legal identity separate and apart from the municipality and therefore,
cannot sue or be sued.”).
b. Monell Liability
Plaintiffs’ only remaining federal claim against Ulster Defendants is asserted against
Ulster County for liability pursuant to Monell for violations of M.D.’s and J.D.’s rights under the
Fourth and Fourteenth Amendments. (See SAC ¶¶ 108–13; see also Pls.’ Resp. in Opp’n to
Defs.’ Ulster Cty., Ulster Cty. Dep’t of Soc. Servs. and Michael Iapoce’s Mot. To Dismiss 13–14
(Dkt. No. 100).)
Plaintiffs assert that “[u]pon information and belief, . . . during the final weeks of M.D.’s
life, other individuals witnessed incidents and results of abuse that were being committed by
Defendants Wolfert and Stahli and called anonymous child abuse ‘tip lines’ maintained by
Defendants . . . Ulster County, Ulster DSS and/or Iapoce.” (SAC ¶ 69.) Plaintiffs aver that
“[d]espite the provision of information about abuse, [Ulster] Defendants . . . did not initiate any
CPS investigation or assign any caseworker.” (Id.)
Ulster Defendants’ failure to investigate the alleged calls to anonymous tip lines does not
rise to the level of a violation of substantive due process. Indeed, in DeShaney, “suspicion that
Joshua was being abused . . . was relayed to [the defendant] for investigation and possible
action.” 489 U.S. at 208. Such information came from police, emergency room personnel,
neighbors, and social workers, id. at 208–09, but the Court held that “[t]he most that can be said
of the state functionaries in this case is that they stood by and did nothing when suspicious
circumstances dictated a more active role for them,” id. at 203.
For the reasons set forth above as applied to Dutchess Defendants, Plaintiffs’ fail to
allege a constitutional violation on the part of Ulster Defendants. Thus, Plaintiffs’ Monell claim
4. Plaintiffs’ State-Law Claims
Plaintiffs also assert claims of negligence, wrongful death, and a survival action under
New York state law against certain Dutchess and Ulster Defendants. (See SAC ¶¶ 117–18, 121–
32.) Because the Court has dismissed Plaintiffs’ federal claims, the Court declines to exercise
supplemental jurisdiction over Plaintiffs’ state-law claims. See United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial, . . .
the state claims should be dismissed as well.”); McGugan v. Aldana–Bernier, No. 11-CV-342,
2012 WL 1514777, at *8 (E.D.N.Y. Apr. 30, 2012) (“[W]hen all federal claims are eliminated in
the early stages of litigation, the balance of factors generally favors declining to exercise pendent
As the Court finds that Plaintiffs have failed to state a claim for violation of their
constitutional rights, the Court declines to consider Defendants’ arguments that they are entitled
to qualified immunity. (See Dutchess Defs.’ Mem. 24–27; Ulster Defs.’ Mem. 8–10.)
jurisdiction over remaining state law claims and dismissing them without prejudice.”), aff’d, 752
F.3d 224 (2d Cir. 2014).
C. Dismissal With Prejudice
A complaint should be dismissed without prejudice if the pleading, “‘liberally read,’
suggests that the plaintiff has a claim that he has inadequately or inartfully pleaded and that
he should therefore be given a chance to reframe.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000) (alterations and citation omitted) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d
794, 795 (2d Cir. 1999)). If a complaint, however, has substantive problems and “[a] better
pleading will not cure [them],” “[s]uch a futile request to replead should be denied.” Id. (citing
Hunt v. All. N. Am. Gov’t Income Tr., 159 F.3d 723, 728 (2d Cir. 1998)). Courts are especially
wary of giving plaintiffs multiple “bites at the apple” where a plaintiff has already been granted
leave to amend. See Anthony v. Brockway, No. 15-CV-451, 2015 WL 5773402, at *3 (N.D.N.Y.
Sept. 30, 2015) ([The] [p]laintiff has already been given one opportunity to amend his complaint
. . . , and there is nothing in his second amended complaint suggesting that [he] could do better
given another opportunity.”); Al-Qadaffi v. Servs. for the Underserved (SUS), No. 13-CV-8193,
2015 WL 585801, at *8 (S.D.N.Y. Jan. 30, 2015) (denying leave to amend where “[the plaintiff]
ha[d] already had one chance to amend his [c]omplaint, and there [was] still no indication that a
valid claim might be stated if given a second chance”), aff’d, 632 F. App’x 31 (2d Cir. 2016);
Bui v. Indus. Enters. of Am., Inc., 594 F. Supp. 2d 364, 373 (S.D.N.Y. 2009) (dismissing an
amended complaint with prejudice where the plaintiff failed to cure the deficiencies identified in
his initial complaint despite “being given ample opportunity to do so”).
The gravity and tragic nature of the facts of this case are not lost on the Court. As the
Supreme Court noted in DeShaney, “[j]udges and lawyers, like other humans, are moved by
natural sympathy in a case like this to find a way for [Plaintiffs] to receive adequate
compensation for the grievous harm inflicted upon them.” 489 U.S. at 202–03. However, the
Second Circuit has also observed that “[p]rotective services caseworkers [must] choose between
difficult alternatives . . . . If they err in interrupting parental custody, they may be accused of
infringing the parents’ constitutional rights. If they err in not removing the child, they risk injury
to the child and may be accused of infringing the child’s rights.” Tenenbaum v. Williams, 193
F.3d 581, 596 (2d Cir. 1999) (alteration and internal quotation marks omitted). In DeShaney, the
Supreme Court faced the unenviable task of balancing the desire for recompense for the plaintiffs
and deference to the judgment of defendants; the Court will not deviate from that formula here.
As noted, Plaintiffs have already amended their pleadings twice. (See Compl. (Dkt. No.
1); Am. Compl. (Dkt. No. 28); SAC (Dkt. No. 78).) There is no reason to suspect that, given
another opportunity to amend, Plaintiffs will be able to cure the substantive deficiencies in their
SAC. Therefore, the Court dismisses Plaintiffs’ federal claims with prejudice.
For the reasons stated above, Defendants’ Motions To Dismiss are granted with
prejudice. As all of Plaintiffs’ federal claims have been dismissed, the Court declines to exercise
jurisdiction over any remaining state-law claims. Further, as Plaintiffs assert no federal claims
against Defendants Wolfert and Stahli, the Court declines to exercise jurisdiction over the statelaw claims against non-moving Defendants. The state-law claims are thus dismissed without
The Clerk of Court is respectfully requested to terminate the pending Motions, (Dkt. Nos.
84, 86, 94), and close the case.
March J..Q_, 20 17
White Plains, New York
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