Herbert v. Cattaraugus County et al

Filing 24

DECISION AND ORDER GRANTING Defendants Schavon Morgan and Michael Nenno's 7 Motion to Dismiss; GRANTING Defendants Cattaraugus County and Steven Miller's 8 Motion to Dismiss; GRANTING Donna Holiday's 10 Motion to Dismiss; DENYING all requests for fees or sanctions; DIRECTING the Clerk of Court to close this case. Signed by William M. Skretny, United States District Judge on 11/13/2017. (MEAL)- CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ALLEN HERBERT,
Plaintiff,
v.

DECISION AND ORDER
17-CV-248S

CATTARAUGUS COUNTY, et al.,
Defendants.

I. INTRODUCTION
Plaintiff Allen Herbert brings this suit seeking damages and injunctive relief under
42 U.S.C. § 1983, for alleged deprivations of his constitutional rights. Presently before
this Court are Defendants’ motions to dismiss, in which they argue that this Court lacks
subject matter jurisdiction under Rule 12(b)(1), and that Plaintiff has failed to state a claim
under Rule 12(b)(6). For the following reasons, Defendants’ motions are granted and the
Complaint is dismissed.
II. BACKGROUND1
Plaintiff, who is “of African and European descent” (Compl. ¶ 20), brings this civil
suit against Defendants Cattaraugus County, Michael Nenno (retired Cattaraugus County
Family Court Judge), Schavon Morgan (Support Magistrate for Cattaraugus County),
Steven Miller (Assistant County Attorney for Cattaraugus County), and Donna Holiday
(an employee of Cattaraugus County, who is also Plaintiff’s mother-in-law and the foster

1

For the sake of brevity and clarity, this Court recites only those facts pertinent to the pending motions.

1

parent to Plaintiff’s minor son). (Id. ¶¶ 5-10, 25.) Plaintiff alleges that Defendants
incarcerated him and denied him access to his son due to racial animus.
Specifically, Plaintiff alleges that, although he was authorized visitation with his
son by an order from the Cattaraugus County Family Court, Defendants have blocked
visitation through his son’s foster care placement. (Id. ¶¶ 25-26.) Plaintiff further alleges
that the denial of visitation is a result of Defendants’ racial animus, and that his
incarceration was ordered in retaliation for his attempts to visit his son. (Id. ¶ 27.) Plaintiff
does not make specific allegations of racism against any Defendant except Holiday,2 but
alleges generally that there is a history of discrimination against Americans of African
descent, including separating African Americans from their children. (Id. ¶¶ 18-19.)
Although the timeline and procedural history are not clear from the Complaint, it
appears that Defendant Morgan initially recommended Plaintiff be incarcerated for
overdue child support payments at a hearing on June 1, 2015. (Id. ¶ 29.) Judge Ploetz
of the Cattaraugus County Family Court (who is not named as a Defendant here)
sentenced Plaintiff to six months incarceration on August 7, 2015, but stayed enforcement
of the sentence for one year. (Id. ¶ 29.) Plaintiff alleges that, on December 10, 2015,3
Defendants Holiday, Miller, and Cattaraugus County moved to re-open his case, seeking
to impose incarceration and $50,293.844 in arrears. (Id. ¶ 33.) Around the same time,
“the parties”—presumably Plaintiff and Holiday—also consented to a new visitation order.
(Id. ¶ 32.) Following a hearing on March 22, 2016, Judge Nenno sentenced Plaintiff to

Plaintiff alleges that Holiday referred to her own daughter—Plaintiff’s estranged wife, who is also “of
African and European descent”—by a racially disparaging term. (Id. ¶¶ 22-23.)
3 The Complaint states that this took place in December 2016, but context suggests that this took place in
2015, prior to Plaintiff’s initial incarceration in March 2016. (Compare Compl. ¶ 33 and ¶ 35.)
4 Plaintiffs alleges that he owed only $320. (Id. ¶ 27.)
2

2

six-months incarceration, but found that the amount of unpaid child support was $320,
not the larger amount allegedly demanded by Defendants. (Id. ¶ 35.) Plaintiff alleges
that, although Judge Nenno signed the visitation order agreed by the parties in December
2015, that order was frustrated due to his incarceration. (Id. ¶¶ 35.) Plaintiff further
alleges that Support Magistrate Morgan denied the petition to assess $50,293.84 in
arrears and dismissed the petition under which he was incarcerated at the end of March
2016. (Id. ¶¶ 36-37.)
Plaintiff completed his sentence on July 22, 2016, and contacted Holiday to visit
his son per the controlling Family Court visitation order. (Id. ¶ 40.) Plaintiff alleges that
Defendants “determined to recommence proceedings to incarcerate” him after he
attempted to contact his son and, on September 2, 2016, petitioned for Plaintiff’s
reincarceration for failure to pay child support during the period of his confinement. (Id.
¶¶ 41-42.) At a hearing on February 22, 2017, Defendant Miller, on behalf of defendants
Cattaraugus County and Holiday, allegedly stated that Plaintiff should be incarcerated for
failure to pay child support. (Id. ¶ 43.)
Finally, Plaintiff alleges that “Defendants were and are paid wages and
employment benefits . . . from United States Grants to New York State to fund public
assistance to those unable to support their minor children.” (Id. ¶ 44.) Plaintiff contends
that Defendants have refused to assist him and denied him his constitutional rights,
despite their obligation to assist non-custodial parents in visiting their children under the
terms of the grants. (Id. ¶¶ 45-46.)
The Complaint names five causes of action: (1) that Plaintiff’s First and Fourteenth
Amendment rights to associate with his son were violated through Defendants’ actions

3

including prosecution and incarceration; (2) that his Fifth and Fourteenth Amendment
rights to liberty were violated when he was incarcerated; (3) that his Fifth, Fourteenth,
and Fifteenth Amendment rights to liberty were violated due to his race; (4) that his Eighth
Amendment right to be free from cruel and unusual punishment was violated when he
was denied liberty and access to his son; and (5), that Defendants’ current prosecutions
have denied him his Fifth and Fourteenth Amendment rights to be free from double
jeopardy. The Complaint seeks compensatory damages, attorneys’ fees, and equitable
and declaratory relief against Defendants Cattaraugus County, Miller, and Holiday.

III. DISCUSSION
Plaintiff’s claims are brought under 42 U.S.C. § 1983. “To state a valid claim under
42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was attributable
to a person acting under color of state law, and (2) deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the United States.” Whalen
v. County of Fulton, 126 F.3d 400, 405 (2d. Cir. 1997) (citing Eagleston v. Guido, 41 F.3d
865, 875-76 (2d Cir. 1994)). Defendants seek dismissal of the Complaint under Rules
12(b)(1) and 12(b)(6), as well as sanctions and legal fees.
A.

Subject Matter Jurisdition
To defeat a motion to dismiss brought under Rule 12(b)(1), “[t]he plaintiff bears the

burden of proving subject matter jurisdiction by a preponderance of the evidence.”
Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). Where
subject matter jurisdiction is lacking, the suit must be dismissed. Id. “Although courts are
generally limited to examining the sufficiency of the pleadings on a motion to dismiss, on

4

a challenge to a district court’s subject matter jurisdiction, the court may also resolve
disputed jurisdictional fact issues by reference to evidence outside the pleadings.” Licci
v. Lebanese Canadian Bank, SAL, 834 F.3d 201, 211 (2d Cir. 2016).
1. Rooker-Feldman
Defendants contend that the Complaint must be dismissed under the RookerFeldman doctrine,5 which precludes district court review of state court judgments due to
a lack of subject matter jurisdiction. Mitchell v. Fishbein, 377 F.3d 157, 165 (2d Cir. 2004);
Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 83-84 (2d Cir. 2005) (“Where a
federal suit follows a state suit, the former may be prohibited by the so-called RookerFeldman doctrine in certain circumstances.”). Named for two Supreme Court cases—
Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362 (1923), and District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d
206 (1983)—the doctrine “established the clear principle that federal district courts lack
jurisdiction over suits that are, in substance, appeals from state-court judgments.” See
Hoblock, 422 F.3d at 84. Because a federal statute, 28 U.S.C. § 1257, “vests authority
to review a state court's judgment solely in th[e] [Supreme] Court,” Rooker and Feldman
held that district courts “lacked subject-matter jurisdiction” to hear cases seeking to
“overturn an injurious state-court judgment.” See Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 291-92, 125 S. Ct. 1517, 1526, 161 L. Ed. 2d 454 (2005).
The Rooker-Feldman doctrine has four requirements: “(1) the federal court plaintiff
lost in state court; (2) the plaintiff complains of injuries caused by a state court judgment;

“Because the Rooker-Feldman doctrine implicates the subject matter jurisdiction of the District Court, the
doctrine's application” should be analyzed first. Fraccola v. Grow, 670 F. App'x 34, 35 n. 1 (2d Cir. 2016)
(internal citation omitted).
5

5

(3) the plaintiff invites the federal court to review and reject that judgment; and (4) the
state court judgment was rendered prior to the commencement of proceedings in the
district court.” Brodsky v. Carter, 673 Fed. App’x 42, 43 (2d Cir. 2016). “Under RookerFeldman, a district court may not review a claim that is ‘inextricably intertwined’ with a
state court’s judgment.” Simpson v. Putnam Cty. Nat’l Bank of Carmel, 20 F. Supp. 2d
630, 633 (S.D.N.Y. 1998) (quoting Feldman, 460 U.S. at 483 n.16); see also Dye v. Virts,
No. 03-CV-6273L, 2004 WL 2202638, at *3 (W.D.N.Y. Sept. 28, 2004) (“[W]here a claim
is so ‘inextricably intertwined’ with a state court judgment that ‘federal relief can only be
predicated upon a conviction that the state court was wrong’ the Rooker-Feldman doctrine
will defeat the court’s jurisdiction over the claim.” (quoting Pennzoil Co. v. Texaco, Inc.,
481 U.S. 1, 25, 107 S. Ct. 1519, 95 L. Ed. 2d 1 (1987)).
“[I]n determining whether the doctrine applies, the key inquiry is whether the
complaint alleges an injury caused by a state court judgment.” Brodsky , 673 F. App'x at
43. Here, the alleged injuries in Counts One, Two, and Four flow from orders entered in
the Cattaraugus County Family Court, specifically the orders of incarceration. Although
Plaintiff does not challenge the orders themselves, to address his claims and find that
constitutional violations had been committed, this Court would be required to review and
reject the Family Court’s decision to incarcerate the Plaintiff. With respect to timing, the
two orders of incarceration, which are dated August 7, 2015 and March 22, 2016,
significantly precede the filing of this action on March 21, 2017. (See Compl. ¶¶ 26, 31,
33-38.)
Plaintiff argues that the Rooker-Feldman doctrine is inapplicable because “his
prosecution itself is a violation of federal law.” (Pl. Opp. at 7.) Plaintiff cites no precedent

6

in support of this position, and the doctrine extends to bar § 1983 claims that are framed
to, or in effect do, challenge the validity of a state court judgment. Brodsky, 673 F. App’x
at 43; Segreto v. Islip, No. 12-CV-1961(JS)(WDW), 2013 WL 572435 (E.D.N.Y. Feb. 12,
2013) (holding that recasting a complaint in the form of a civil rights action pursuant to §
1983 does not avoid the Rooker-Feldman bar). A federal plaintiff cannot “avoid RookerFeldman by clever pleading—by alleging that actions taken pursuant to a court order
violate his rights without ever challenging the court order itself.” See Hoblock, 422 F.3d
77 at 87-88. Further, “even if the state court judgment was wrongly procured, it is effective
and conclusive until it is modified or reversed in the appropriate State appellate or
collateral proceeding.” Gonzalez v. Ocwen Home Loan Servicing, 74 F. Supp. 3d 504,
517 (D. Conn. 2015), aff'd 632 F. App’x 32 (2d Cir. 2016) (internal quotation marks
omitted).
This Court finds that the requirements of the Rooker-Feldman doctrine are met as
to Counts One, Two, and Four, and that Plaintiff’s “clever pleading” cannot overcome that.
Accordingly, because there is no subject matter jurisdiction over those claims, they must
be dismissed.6
2. Younger Abstention
The alleged constitutional violations in Count Five arise from ongoing Family Court
proceedings and Defendants’ alleged continued attempt to incarcerate Plaintiff. This

This Court notes that Rooker-Feldman “does not bar federal adjudication of a general constitutional
challenge to a state law or rule.” Dubin v. Cty. of Nassau, No. 16CV4209JFBAKT, 2017 WL 4286613, at
*6 (E.D.N.Y. Sept. 27, 2017) (citing Feldman, 460 U.S. at 482-85 (distinguishing “between general
challenges to state bar admission rules and claims that a state court has unlawfully denied a particular
applicant admission” and holding that a federal district court has jurisdiction over the former claim); Feng Li
v. Rabner, 643 Fed. App’x 57, 59 (2d Cir. 2016) (“As to the court’s Rooker-Feldman ruling, this doctrine
does not apply to Li’s challenge to the constitutionality of the state court rule.”). However, in Counts One,
Two, and Four, the challenge is specifically aimed at how the law was applied to the Plaintiff, and not at the
law itself.
6

7

Court finds that, although Count Five does not meet the Rooker-Feldman requirements
because the Family Court proceedings are not yet final, this claim is nevertheless barred
by the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27
L. Ed. 2d 669 (1971).

Younger abstention “requires federal courts to abstain from

exercising jurisdiction over claims that implicate ongoing state proceedings.” Torres v.
Gaines, 130 F. Supp. 3d 630, 635 (D. Conn. 2015). This doctrine “applies if the federal
action involves ongoing: (1) ‘state criminal prosecutions’; (2) ‘civil proceedings that are
akin to criminal prosecutions’; or (3) civil proceedings that ‘implicate a State's interest in
enforcing the orders and judgments of its courts.’” Id. at 636 (quoting Sprint Commc'ns,
Inc. v. Jacobs, 134 S. Ct. 584, 588, 187 L. Ed. 2d 505 (2013)).
Several courts in this Circuit have held that Younger abstention applies in similar
circumstances as this case. See id.; see also Graham v. N.Y. Ctr. for Interpersonal Dev.,
No. 15-CV-00459, 2015 WL 1120120, *2-3 (E.D.N.Y. Mar. 12, 2015) (holding that the
plaintiff’s claims for injunctive relief were barred by Younger where the plaintiff sought to
challenge ongoing family court proceedings regarding the loss of custody of her son);
Moore v. Sims, 442 U.S. 415, 435, 99 S. Ct. 2371, 60 L. Ed. 2d 994 (1979) (family
relations are a traditional area of state concern).
Because the issues in Count Five are still pending in the Family Court, this Court
abstains from exercising jurisdiction pursuant to Younger. Accordingly, Count Five is also
dismissed.
B.

Failure to State a Claim
Defendants have also moved for dismissal under Rule 12(b)(6). On a motion to

dismiss, a court accepts as true all well-pleaded factual allegations and draws all

8

reasonable inferences in favor of the non-moving party. Trs. of Upstate N.Y. Eng'rs
Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand
dismissal, a pleading “must contain 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, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007)). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Count Three of Plaintiff’s Complaint alleges that Plaintiff was unconstitutionally
deprived of his right to liberty based upon Defendants’ racial hatred.

This alleged

deprivation of liberty may be construed as independent from the challenges to Family
Court’s orders incarcerating Plaintiff, therefore, this claim may survive Rooker-Feldman.
See In re Dayton, 786 F. Supp. 2d 809, 817 (S.D.N.Y. 2011) (finding that claims arising
from actions that were not done pursuant to the final court order survived RookerFeldman).
1. Defendant Holiday
Holiday, proceeding pro se, has moved for dismissal of all the claims against her
and for “sanctions and costs and fees associated” with her defense of the action. “It is
well settled that pro se litigants generally are entitled to a liberal construction of their
pleadings, which should be read to raise the strongest arguments that they suggest.”
Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal quotation omitted). Here,
Holiday contends that all of her interactions with Plaintiff have been on a “personal level”
and that there are no allegations related to her work as an employee of the state.

9

Plaintiff alleges that he was incarcerated on the demand of defendant Holiday and
that she blocked access to his son (see Compl. ¶¶ 25, 27), yet fails set forth any allegation
that these actions were carried out under the color of state law or in Holiday’s official
capacity as an employee of the Department of Social Services Public Assistance Unit.
Conclusory allegations that a defendant acted in concert with state officials do not suffice
to state a § 1983 claim against a private actor. Finnan v. Ryan, 357 F. App’x 331, 333
(2d. Cir. 2009), cert. denied, 562 U.S. 952 (2011).
Accordingly, because Plaintiff has not alleged that Holiday was acting under color
of state law, see Whalen, 126 F.3d at 405, the claims against her are dismissed.7
2. Defendants Judge Nenno, Support Magistrate Morgan, and Assistant County
Attorney Miller
Defendants Judge Nenno, Support Magistrate Morgan, and Assistant County
Attorney Miller move for dismissal on the grounds of judicial and prosecutorial immunity.
“It is well settled that judges generally have absolute immunity from suits for money
damages for their judicial actions.” Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009).
Therefore, a judge is immune from all forms of suit unless he or she has acted either
beyond the judge's judicial capacity, or “in the complete absence of all jurisdiction.”
Bobrowsky v. Yonkers Courthouse, 777 F. Supp. 2d 692, 711 (S.D.N.Y. 2011) (quoting
Mireles v. Waco, 502 U.S. 9, 12, 112 S. Ct. 286, 288, 116 L. Ed. 2d 9 (1991)). In
determining whether or not a judge acted in the “clear absence of all jurisdiction,” the
judge’s jurisdiction is to be construed broadly, “and the asserted immunity will only be

Further, Plaintiff made no argument opposing Holiday’s motion. This Court therefore deems the claims
against Holiday to be abandoned. See Brandon v. City of New York, 705 F. Supp. 2d 261, 268 (S.D.N.Y.
2010) (collecting cases); Bonilla v. Smithfield Assoc. LLC, 09 Civ. 1549, 2009 WL 4457304, at *4 (S.D.N.Y.
Dec. 4, 2009) (dismissing plaintiff's claims as abandoned by failing to address them in his opposition motion
to defendant's motion to dismiss all claims).
7

10

overcome when the ‘judge clearly lacks jurisdiction over the subject matter.”' Ceparano
v. Southampton Justice Court, 404 Fed. Appx. 537, 539 (2d Cir. 2011) (quoting Maestri
v. Jutkofsky, 860 F.2d 50, 52 (2d Cir. 1998)).
“Whether a judge acted in a ‘judicial capacity’ depends on the ‘nature of the act
[complained of] itself, i.e., whether it is a function normally performed by a judge, and [on]
the expectations of the parties, i.e., whether they dealt with the judge in his judicial
capacity.”' Id. (quoting Stump v. Sparkman, 435 U.S. 349, 362, 98 S. Ct. 1099, 1107, 55
L. Ed. 2d 331 (1978)). “Further, if the judge is performing in his judicial capacity, the judge
will not be deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority; rather, he will be subject to liability only
when he has acted in the clear absence of all jurisdiction.” Id. (quotations omitted). The
doctrine of judicial immunity is applicable to actions brought pursuant to 42 U.S.C. § 1983.
Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1218, 18 L. Ed. 2d 288 (1967).
Prosecutors are also immune from § 1983 actions arising from conduct that was
an exercise prosecutorial functions. See, e.g., Imbler v. Patchman, 424 U.S. 409, 423,
96 S. Ct. 984, 991, 47 L. Ed. 2d 128 (1976). For such immunity to apply, the prosecutor
must have been functioning as an advocate when he or she engaged in the challenged
conduct, meaning that immunity attaches only as to actions within the scope of the judicial
phase, and not to actions taken as an administrator or investigative officer that falls
outside that scope. Warney v. Monroe County, 587 F.3d 113, 120-122 (2d. Cir. 2009)
(citing Imbler, 424 U.S. at 430). Prosecutors are also immune from liability for their
decision to prosecute. See Anilao v. Spota, 774 F. Supp. 2d 457, 480 (E.D.N.Y. 2011)
(citing Hartman v. Moore, 547 U.S. 250, 261-62, 126 S. Ct. 1695, 164 L. Ed. 2d 441

11

(2006)). Further, “absolute immunity still applies where a prosecutor brought a case in
violation of a defendant's constitutional rights but was otherwise acting within his role as
an advocate.” Id. at 488.
Here, Plaintiff’s claims against Judge Nenno, Support Magistrate Morgan, and
Assistant County Attorney Miller arise solely from their conduct within their judicial and
prosecutorial roles. Plaintiff alleges injuries arising from the Findings and Fact and Orders
by Judge Nenno and Support Magistrate Morgan, as well as from the prosecutorial
actions taken by Assistant County Attorney Miller. Plaintiff’s argument that Support
Magistrate Morgan is not eligible for judicial immunity is without merit. See Parent v. New
York, 786 F. Supp. 2d 516, 533-34 (S.D.N.Y. 2011) (dismissing claims brought against
both a judge and Support Magistrate as both parties had judicial immunity).

His

contentions of wrongdoing are also insufficient to defeat the motions to dismiss, as judicial
immunity protects judges and prosecutors even from claims of malfeasance as long as
they are acting within their jurisdiction. See Teichmann v. New York, 769 F.3d 821, 826
(2d Cir. 2014) (holding that the Plaintiff failed to state a claim to relief because the judge
and district attorney whom Plaintiff asserted violated his constitutional rights were entitled
to absolute immunity).
Accordingly, the claims against defendants Judge Nenno, Support Magistrate
Morgan, and Assistant County Attorney Miller are dismissed.
3. Defendant Cattaraugus County
Finally, Defendant Cattaraugus County moves for dismissal pursuant to Monell v.
Dep’t of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed.
2d 611 (1978). Under the standards set forth in Monell, a municipality can be held liable

12

under § 1983 if a plaintiff can plead and prove “(1) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Batista v.
Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983); see also Connick v. Thompson, 563 U.S.
51, 60-61 (2011). Monell does not provide an independent separate cause of action
against a municipality; rather, “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 N.Y., 459 F.3d 207, 219 (2d Cir.
2006). A municipality can be held liable for actions taken pursuant to its policies, pursuant
to custom, or for “practices so persistent and widespread as to practically have the force
of law.” Connick, 563 U.S. at 61. “Absent such a custom, policy, or usage, a municipality
cannot be held liable on a respondeat superior basis for the tort of its employee.” Jones
v. Town of East Haven, 691 F.3d 72, 80 (2d. Cir. 2012) (citing Monell, 436 U.S. at 691)).
To successfully state a claim for municipal liability under Monell, a plaintiff must
allege the existence of a policy or custom that caused injury, and a direct causal
connection between that policy or custom and the deprivation of a constitutional right.
Barnes v. Cty. of Monroe, 85 F. Supp. 3d 696, 718 (W.D.N.Y. 2015). Here, the only policy
or custom identified by Plaintiff is a passing reference to the state of New York and
Cattaraugus County’s receipt of funding under 42 U.S.C. § 607 (Grants to States with
Child Welfare Services (“GSGC”)), and an allegation that Defendants have failed to assist
him as a non-custodial parent, despite their obligations to do so under the GSGC. 8
(Compl. ¶¶ 44-46.)

Plaintiff therefore fails to make factual allegations that his

8

Plaintiff presents additional theories and allegations in his Opposition to the Motions to dismiss. However,
these new allegations cannot be considered because “it is axiomatic that a complaint may not be amended
by the briefs in opposition to a motion to dismiss.” Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir.
1998).

13

constitutional rights were violated pursuant to an official course of action in the form of a
policy or custom, or even that Cattaraugus County maintains a policy or custom based
upon receipt of GSCS funds. See Finnan, 357 F. App’x at 333 (finding that plaintiff failed
to allege a governmental custom or policy sufficient to make the defendant County liable,
therefore, the claims against the County were properly dismissed for failing to state a
claim). Further, Plaintiff fails to put forth facts sufficient to create a plausible inference
that Cattaraugus County’s receipt of GSCS funding defendant did, or would, create a
policy or custom that could injure Plaintiff and deny him his constitutional rights. See
Montalvo v. Lamy, 139 F. Supp. 3d 597, 609 (W.D.N.Y. 2015) (finding the policy identified
by Plaintiff did not violate a constitutional right and, therefore, held that Plaintiff’s Monell
claim must be dismissed for failure to allege an underlying constitutional violation).
Accordingly, because the allegations in the Complaint are not sufficient to state a
claim under Monell, the claim against Cattaraugus County must be dismissed.
C.

Defendants’ Requests for Fees
Defendants Holiday, Judge Nenno, and Support Magistrate Morgan have

requested attorneys’ fees under 42 U.S.C. § 1988(b); Holiday also requests sanctions.
Section 1988 states that “the court, in its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney's fee as part of the costs.” When the
prevailing party is the defendant, as here, attorneys’ fees may be recovered if the
underlying action was “frivolous, unreasonable, or groundless, or . . . the plaintiff
continued to litigate after it clearly became so.” Davidson v. Keenan, 740 F.2d 129, 132
(2d Cir. 1984) (quotation omitted).

The Second Circuit has found denial of fees

appropriate where a “plaintiff[ ] had some foundation, albeit a weak one, to bring [the]

14

claim.” Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 229 (2d Cir. 2004). Here, although
this Court has found no jurisdiction or merit in these causes of action, it finds that they are
not entirely frivolous or unreasonable.
Moreover, the request is premature and fails to comply with the relevant rules. See
Bartels v. Inc. Vill. of Lloyd Harbor, No. 10 CV 5076 PKC, 2015 WL 4459403, at *1
(E.D.N.Y. July 21, 2015) (denying award of fees because, inter alia, prevailing defendant
had failed to comply with Fed. R. Civ. P. 54(d)(2)(B)). Accordingly, this Court exercises
its discretion to deny Defendants’ requests for fees and sanctions.

IV. CONCLUSION
For the reasons stated above, Defendants’ motions are granted and the Complaint
is dismissed. Counts One, Two, and Four are dismissed for lack of subject-matter
jurisdiction under Rooker-Feldman.

Count Five is dismissed under the Younger

abstention doctrine. Count Three is dismissed for failure to state a claim. To the extent
that Defendants seek other remedies, including sanctions and attorneys’ fees, their
motions are denied.

V. ORDERS
IT HEREBY IS ORDERED, that Defendants Schavon Morgan and Michael
Nenno’s motion to dismiss (Docket No. 7) is GRANTED;
FURTHER, that Defendants Cattaraugus County and Steven Miller’s motion to
dismiss (Docket No. 8) is GRANTED;
FURTHER, Donna Holiday’s motion to dismiss (Docket No. 10) is GRANTED;
15

FURTHER, that all requests for fees or sanctions are DENIED;
FURTHER, that the Clerk of Court is directed to close this case.
SO ORDERED.
Dated: November 13, 2017
Buffalo, New York
/s/William M .Skretny
WILLIAM M. SKRETNY
United States District Judge

16