Long v. Zeller et al

Filing 25

OPINION AND ORDER re: 3 MOTION Emergency Relief re: 2 Complaint. filed by Eric J. Long, 11 MOTION to Dismiss for Lack of Jurisdiction and Failure to State of Cause of Action. filed by Santiago Baez, Leslie Zeller, Steven Gi oe, Kristina Jenney, 10 MOTION for the Court to issue a temporary court order allow Plaintiff to participate in therapeutic visitation whith. filed by Eric J. Long. Defendants' motion to dismiss is GRANTED. (Doc. #11). Plaintiff's m otions are DENIED AS MOOT. (Docs. ##3, 10). The Clerk is instructed to terminate the pending motions (Docs. ##3, 10, 11), and close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). So Ordered. (Signed by Judge Vincent L. Briccetti on 10/30/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ERIC J. LONG,
:
Plaintiff,
:
:
v.
:
:
LESLIE ZELLER, SANTIAGO BAEZ,
:
KRISTINA JENNEY, and STEVEN GIOE,
:
Defendants.
:
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OPINION AND ORDER
17 CV 5557 (VB)

Briccetti, J.:
Plaintiff Eric Long, proceeding pro se and in forma pauperis, brings this action claiming
defendants violated his rights under the Equal Protection Clause. (Doc. #2).
Now pending before the Court are: (i) plaintiff’s motion for emergency relief to enforce
the terms of a custody and visitation order issued on consent by the Orange County Family Court
(Doc. #3); (ii) plaintiff’s motion for a temporary order granting therapeutic and off campus
visitation with his daughter (Doc. #10); and (iii) defendants’ motion to dismiss the complaint
pursuant to Rules 12(b)(1) and 12(b)(6) (Doc. #11).
For the following reasons, defendants’ motion is GRANTED. Plaintiff’s motions are
DENIED AS MOOT.
BACKGROUND
For purposes of ruling on a motion to dismiss, the Court accepts all factual allegations of
the complaint as true, and draws all reasonable inferences in plaintiff’s favor.
Plaintiff’s daughter, “ML,” resides at Andrus, a private mental health facility in Yonkers,
New York.

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Plaintiff alleges defendant Zeller, an administrator at Andrus, refuses to return plaintiff’s
telephone calls regarding scheduling visitation with ML. Plaintiff claims defendants Baez and
Jenney, respectively a supervisor and clinician at Andrus, have failed to address his concerns
about ML, and intentionally have withheld information that is vital to understanding ML’s
condition. Plaintiff alleges defendant Gioe, a clinician at Andrus, is acting at the behest of
defendant Baez and refusing to make ML available for therapy, or allow plaintiff to participate in
ML’s therapy. Plaintiff claims defendants’ actions have caused him emotional distress and
damaged his relationship with ML.
Attached to the complaint is a copy of a Custody and Visitation Order On Consent issued
by Judge Lori Currier Woods of the Orange County Family Court. (Compl. at 8-10). Regarding
plaintiff’s visitation with ML, the Order states that plaintiff “may participate in the therapy,
visitation and mental health treatment within the parameters established by the facility [ML] is
currently in and all subsequent facilities [ML] may reside in.” (Id. at 9). The Order further
states, “this Order shall be enforceable by any police or peace officer.” (Id.).
Plaintiff seeks an Order granting similar visitation rights, specifically: “weekly
counseling sessions and off campus visits every other Saturday between 10 a.m. and 6 p.m.”
(Compl. at 6). Plaintiff further seeks a thirty day jail sentence for defendants, should they fail to
comply with the Court’s Order.
DISCUSSION
I.

Legal Standard
“[F]ederal courts are courts of limited jurisdiction and lack the power to disregard such

limits as have been imposed by the Constitution or Congress.” Durant, Nichols, Houston,
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Hodgson, & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (internal quotation
marks omitted). “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 marks omitted).
The party invoking the Court’s jurisdiction bears the burden of establishing that jurisdiction
exists. Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009). If this Court determines at any
time that it lacks subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3).
To do otherwise would be a usurpation of state power.
II.

Domestic Relations Exception to Federal Jurisdiction
Defendants assert that the Court lacks subject matter jurisdiction over this case.
The Court agrees.
Plaintiff’s allegations militate against the exercise of jurisdiction. Although plaintiff cites

the Equal Protection Clause as the basis for his claim, he alleges neither state action nor disparate
treatment. See Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (“[T]he Equal Protection
Clause bars the government from selective adverse treatment of individuals compared with other
similarly situated individuals if such selective treatment was based on impermissible
considerations such as race.”) (internal quotation marks omitted). The complaint also does not
allege facts that would support diversity jurisdiction pursuant to 28 U.S.C. § 1332, which
requires that the action be between citizens of different states. All parties are alleged to be
residents of New York.
Further, the Supreme Court has long recognized an exception to subject matter
jurisdiction, called the domestic relations exception, that “divests the federal courts of power to
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issue divorce, alimony, and child custody decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 703
(1992). Although the domestic relations exception is “very narrow,” Williams v. Lambert, 46
F.3d 1275, 1283 (2d Cir. 1995), it is understood that a “federal court presented with . . . issues
‘on the verge’ of being matrimonial in nature should abstain from exercising jurisdiction so long
as there is no obstacle to their full and fair determination in state courts.” Am. Airlines, Inc. v.
Block, 905 F.2d 12, 14 (2d Cir. 1990).
The sum and substance of plaintiff’s complaint concerns a matter of child custody.
Plaintiff alleges he has not been able to schedule visits with his daughter, and the relief he seeks
is a certain schedule of weekly therapy appointments and bi-weekly visitation. “Since the very
early dicta [of] In re Burrus, 136 U.S. 586 (1890), it has been uniformly held that federal courts
do not adjudicate cases involving the custody of minors and, a fortiori, rights of visitation.”
Hernstadt v. Hernstadt, 373 F.2d 316, 317 (2d Cir. 1967); see also HMG & HLG v. Johnson,
2014 WL 11370122 at *3 (S.D.N.Y. Aug. 15, 2014), aff’d, 599 F. App’x 396 (2d Cir. 2015). 1
Moreover, plaintiff does not allege an “obstacle” to the “full and fair determination” of
his visitation rights in the New York state court. Am. Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d
Cir. 1990). In fact, the order of the Orange County Family Court submitted with plaintiff’s
complaint provides a mechanism for enforcement, stating that it “shall be enforceable by any
police or peace officer.” (Compl. at 9). In addition, it is self-evident that the Family Court
retains jurisdiction to clarify, amend or modify the terms of its own order. See N.Y. Dom. Rel.
Law § 76-a; Scott v. Jackson, 38 A.D.3d 788, 789 (2d Dep’t 2007) (“a New York court that has

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Because plaintiff is proceeding pro se, he will be provided with copies of all unpublished
opinions cited in this decision. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
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issued an initial custody determination retains exclusive, continuing jurisdiction with respect to
issues of custody and visitation”).
Thus, whether plaintiff’s asserted basis for subject matter jurisdiction is diversity of
citizenship or federal question, his claims would be barred by the domestic relations exception to
the jurisdiction of the federal courts. See Schottel v. Kutyba, 2009 WL 230106, at *1 (2d Cir.
Feb. 2, 2009) (affirming dismissal of a complaint that was “at heart, a dispute surrounding the
custody of [plaintiff’s] child”).
Accordingly, the Court is without jurisdiction to issue an order granting plaintiff
visitation rights, or subjecting defendants to penalties for their alleged failure to acknowledge the
same. As such, the Court will not consider the merits of plaintiff’s petitions for emergency and
temporary relief. 2

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The Court does not find any allegations in the complaint, liberally construed, that suggest
plaintiff has a valid claim he has merely “inadequately or inartfully pleaded” and therefore
should be “given a chance to reframe.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
On the contrary, the Court finds that repleading would be futile, because the problems with the
complaint are substantive, and supplementary and/or improved pleading will not cure its
deficiencies. Id. Accordingly, the Court declines to grant leave to amend.
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CONCLUSION
Defendants’ motion to dismiss is GRANTED. (Doc. #11).
Plaintiff’s motions are DENIED AS MOOT. (Docs. ##3, 10).
The Clerk is instructed to terminate the pending motions (Docs. ##3, 10, 11), and close
this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Dated: October 30, 2017
White Plains, NY
SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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