Griffin v. Syracuse City School District

Case Information

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK ______________________________________________________________________ YVONNE GRIFFIN o/b/o C.T.M.,

Plaintiff, v. 5:24-CV-1044 (GTS/MJK) SYRACUSE CITY SCHOOL DISTRICT, Defendant. ______________________________________________________________________ YVONNE GRIFFIN o/b/o C.T.M., Plaintiff, pro se MITCHELL J. KATZ, U.S. Magistrate Judge

ORDER and REPORT-RECOMMENDATION TO THE HONORABLE GLENN T. SUDDABY, U.S. DISTRICT JUDGE:

The Clerk has sent to the court for review a civil rights complaint pursuant to 42 U.S.C. § 1983, filed by pro se plaintiff Yvonne Griffin, on behalf of her infant daughter, C.T.M. (Dkt. No. 1) (“Compl.”). In addition to the complaint, plaintiff also filed an application to proceed in forma pauperis (“IFP”), a motion for appointment of counsel, and a motion to obtain an ECF login and password. (Dkt. Nos. 2, 3, 4). I. IFP Application

Plaintiff Ms. Griffin declares in her IFP application that she is unable to pay the filing fee. (Dkt. No. 2). After reviewing her application, this court finds that Ms. Griffin is financially eligible for IFP status.

1 In addition to determining whether a plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii).

Notwithstanding the general rule as enumerated above, this case presents a more complicated set of circumstances, to the extent that Ms. Griffin, a non-attorney, is attempting to bring this action on behalf of her minor child. Because the court may not “make a merits determination of claims filed on behalf of a minor or incompetent person who is not properly represented,” Berrios v. New York City Hous. Auth. , 564 F.3d 130, 134 (2d Cir. 2009) (citations omitted), resolution of the counsel issue in this matter is necessary before the court can assess the sufficiency of the allegations set forth in plaintiff’s complaint. II. The Complaint

Although not explicitly set forth in the complaint, it appears that the infant plaintiff C.T.M. was a student enrolled with the defendant Syracuse City School District at the time of the underlying alleged events. In September 2023, C.T.M.’s medical provider “took [C.T.M.] out of school” in relation to a pregnancy. (Compl. at 2). Plaintiff “went to the main office and obtain[ed] a medical homebound app[lication] for

2 [C.T.M.],” which application was then “filled out” by C.T.M.’s medical provider. (

Id.

). Although it is unclear who, 1 plaintiff maintains that someone (other than herself or

C.T.M.), returned the application to the school principal. (

Id. ). Plaintiff maintains that “[h]e 2 never turned it in. He in fact said she didn’t need it.” ( Id. ). C.T.M. subsequently gave birth, and was released back to school on November 6, 2023 by her medical provider. ( Id. ). Plaintiff states that C.T.M. “received NO EDUCATION, NO CLASSWORK, NO HOMEWORK, NO TUTORIAL, NO BOOKS, NO TEACHER.” ( Id. ). “Nothing is on record” with the defendant “except [C.T.M.’s] return to school

paperwork.” (

Id. ).

Plaintiff next alleges a separate incident in which the defendant school district

“created an unsafe educational setting” for two of her minor children. 3 (Compl. at 3). Plaintiff states that this was due to a “disagreement in the amount of time the [defendant school district] was taking to provide transportation for [her] children who were 1 Plaintiff has redacted the name of the individual who is alleged to have returned C.T.M.’s homebound application to the school principal, presumably because that individual is a minor. (Compl. at 2). It appears that this individual’s name starts with an “M,” on which basis the court concludes that it is not C.T.M. 2 It is unclear whether plaintiff is referring to the school principal, or to “M.” 3 It is unclear whether plaintiff is referring to C.T.M. and another one of her children, or two children other than C.T.M.

3 homeless McKinney Vento 4 children[.]” ( Id. ). Plaintiff then claims that the defendant school district “took out a BAN LETTER not allowing [her] to call the school,” and preventing plaintiff from having contact with even the school nurse “without prior consent from Dr. Joshua Beerdall . . . .” ( Id. ).

Plaintiff further alleges that in January 2024, “both [her] daughters had told [her] that a group of girls were planning on jumping [her] daughter[.]” (Compl. at 3). Plaintiff “called [the school] the next day and they wouldn’t speak to [her].” ( Id. ). She

also called Dr. Beerdall, but he was on vacation. (

Id. ). Plaintiff asked one of his secretaries to “have one of [Dr. Beerdall’s] coworkers call [the school] and speak to them about this.” ( Id. ). Plaintiff was thereafter called by her children, and had to “rush” an event she was holding because she was “under the impression the fight happened.” ( Id. ). Plaintiff went to the school and “went live on [her] social media

because the school refused to give [her her] children.” (

Id. ). Plaintiff alleges that “the

fight happened 8 minutes AFTER [she] arrived to get both [her] children.” (

Id. ). She further states that “ultimately the [defendant school district], their law firm, [plaintiff] and [the involved child] went into a settlement waiver agreement.” ( Id. ). Plaintiff 4 The McKinney-Vento Act is a federal law providing certain rights to children who lack a “fixed, regular, and adequate nighttime residence,” including transportation to and from school. See https://www.nysed.gov/essa/mckinney-vento-homeless-education (last visited Sept. 6, 2024).

4 claims that “she” did not receive an education from the January 2024 incident until

March 2024, “when the waiver was signed.” (

Id. ).

III. Plaintiff’s Representation of C.T.M.

“A litigant in federal court has a right to act as his or her own counsel.” Cheung v. Youth Orchestra Found ., 906 F.2d 59, 61 (2d Cir. 1990) (citing 28 U.S.C. § 1654). “The statutory right to proceed pro se reflects a respect for the choice of an individual citizen to plead his or her own cause.” Id . However, “a non-attorney parent must be

represented by counsel in bringing an action on behalf of his or her child.”

Id . This is because the choice to appear pro se is not a true choice for minors who, under state law, cannot determine their own legal actions. Id . (citing Fed. R. Civ. P. 17(b)).

Minor children “are entitled to trained legal assistance so their rights may be fully protected.” Cheung v. Youth Orchestra Found ., 906 F.2d at 61. Thus, the “court has an

affirmative duty to enforce the rule that a non-attorney parent must be represented by

counsel when bringing an action on behalf of his or her child.” 5 Fauconier v. Comm. on

Special Educ

., No. 02 Civ. 1050, 2003 WL 21345549, at *1 (S.D.N.Y. June 10, 2003),

aff’d sub nom

. Fauconier v. Comm. on Special Educ ., 112 F. App’x 85 (2d Cir. 2004). 5 The Second Circuit has carved out limited exceptions to this general rule, including for claims filed on behalf of minors under the Individuals with Disabilities Education Act (“IDEA”) and actions relating to social security benefits. Liberally construed, plaintiff’s complaint does not fall within any of the noted, limited exceptions.

5 In light of this rule, and to the extent this court interprets plaintiff’s allegations to contain claims exclusively concerning C.T.M.’s rights, plaintiff may not appear pro se on behalf of C.T.M. IV. Motion for Counsel

Plaintiff has moved for the appointment of pro bono counsel. As previously set forth, the court construes plaintiff’s allegations to be limited to claims concerning C.T.M.’s rights. Accordingly, the court considers whether the appointment of counsel is warranted in order for Ms. Griffin to bring this action on behalf of C.T.M.

Pursuant to 28 U.S.C. § 1915 (e)(1), courts may “request an attorney” to represent someone unable to afford counsel. Courts possess broad discretion when determining whether appointment is appropriate, “subject to the requirement that it be ‘guided by sound legal principle.’ ” Cooper v. A. Sargenti Co., Inc ., 877 F.2d 170, 171-

72 (2d Cir. 1989) (quoting

Jenkins v. Chemical Bank , 721 F.2d 876, 879 (2d Cir. 1983)). The Second Circuit has listed several factors to be looked at in making the determination of whether to appoint counsel, including a threshold determination of whether “the indigent’s position seems likely to be of substance.” Hodge v. Police

Officers

, 802 F.2d 58, 61 (2d Cir. 1986)). A court “may properly deny a motion to appoint counsel – even for a minor or incompetent person – when it is clear that no substantial claim might be brought on behalf of such a party.” Berrios v. New York City

Hous. Auth.

, 564 F.3d 130, 134 (2d Cir. 2009) (internal quotation marks and citations

6 omitted);

see also Palumbo v. Ross,

No. 07-CV-5378, 2009 WL 10708951, at *3 (E.D.N.Y. Feb. 19, 2009) (“There is no right to be appointed counsel in a civil matter, even where the indigent is an infant.”). “[I]n determining whether appointment of counsel is necessary in a case involving a party who is unable to represent himself [or herself] because he [or she] is a minor . . . , the court should consider the fact that, without appointment of counsel, the case will not go forward at all.” Id . However, even if the failure to appoint counsel might result in a minor’s claims being dismissed, the appointment of counsel is not required when it is clear that no substantial claim might be brought on behalf of the minor. Id .; see Cheung , 906 F.2d at 62.

If the court finds that the claims have substance, the court should then consider: [T]he indigent’s ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent’s ability to present the case, the complexity of the legal issues and any special reason in th[e] case why appointment of counsel would be more likely to lead to a just determination.

Terminate Control Corp. v. Horowitz , 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting

Hodge v. Police Officers

, 802 F.2d at 61-62). This is not to say that all, or indeed any, of these factors are controlling in a particular case. Rather, each case must be decided on its own facts. Velasquez v. O’Keefe , 899 F. Supp. 972, 974 (N.D.N.Y. 1995) (citing

Hodge v. Police Officers

, 802 F.2d at 61).

At the outset, plaintiff’s motion to appoint counsel is denied for failure to demonstrate her inability to obtain legal counsel for this case. The local rules of the 7 Northern District of New York state that any application by a pro se party for the appointment of counsel “shall include a form affidavit stating the party’s efforts to obtain an attorney by means other than appointment . . . .” N.D.N.Y.L.R. 83.2(b)(1). The form application provided by Ms. Griffin directs the movant to not only list the specific attorneys she has contacted in her effort to obtain counsel, but to further attach to the motion correspondence that she has received from those attorneys. (Dkt. No. 3). Ms. Griffin did not provide this information. ( Id. ). Instead, she states that she has contacted “several attorneys in the Syracuse area for years and the amount they are requesting even for a consult is high.” ( Id. ). Plaintiff’s representation is confusing, as the underlying events giving rise to the alleged allegations took place less than a year prior to the date that she filed the complaint. On this basis, the court has considerable doubts as to whether serious efforts have been taken to obtain an attorney on behalf of C.T.M. in this specific matter.

Furthermore, based on the allegations as pled in the complaint, the claims asserted on behalf of C.T.M. do not seem likely to be of substance – to the extent such a determination could be rendered at this early stage of the litigation. As a general matter, “counsel is not appointed in many cases, particularly where, as here, there is not a fully developed record from which an assessment of the merits of the case can be made.” LeClair v. Vinson , No. 1:19-CV-28 (BKS/DJS), 2019 WL 1300547, at *4

(N.D.N.Y. Mar. 21, 2019),

report and recommendation adopted , 2019 WL 2723478

8 (N.D.N.Y. July 1, 2019) (cautioning non-attorney parent as to reality of appointment of

counsel for minor plaintiff);

see also Harmon v. Runyon, No. 96 Civ. 6080, 1997 WL 118379 (S.D.N.Y. Mar. 17, 1997) (denying plaintiff’s request for counsel for failure to meet the threshold requirement set forth in Hodge because plaintiff “presented no evidence whatever to support her claims regarding defendant's allegedly improper actions.”). Here, the complaint has not yet been served on the proposed defendant, and they have not had the opportunity to respond to plaintiff’s allegations. Therefore, the court is limited in its consideration of the motion to the allegations in plaintiff’s complaint.

The court is mindful that this case cannot proceed if appointment of counsel is not made, unless counsel is otherwise secured on behalf of C.T.M. However, the court also appreciates that the statute of limitations is tolled until plaintiff reaches the age of majority, which, based on the complaint, does not appear to be far-removed. 6 Accordingly, in consideration of all the above factors, the court recommends that appointment of counsel be denied and the complaint be dismissed without prejudice. See Cheung v. Youth Orchestra Found., Inc ., 906 F.2d at 62 (“If [the non-attorney parent] does not retain counsel and if the district court declines to appoint counsel, the complaint should be dismissed without prejudice.”); Hughes v. Callahan , No. 97-CV- 6 The complaint alleges that in 2023, C.T.M. was a student at the “PSLA,” or the Public Service Leadership Academy, a high school operating in the Syracuse City School District.

9 5652, 1998 U.S. Dist. LEXIS 14840, at *1 (E.D.N.Y. Aug. 3, 1998) (“Accordingly, the Court must either appoint counsel for the child in this case, or dismiss the case without prejudice.”). If the district court accepts this recommendation, and plaintiff wishes to proceed with this action, she is encouraged to explore the possibility of representation by one of the various legal aid and/or lawyer referral services in this district, contacts for which can be found on the district court’s webpage. 7 V. Motion for ECF Login/Password

“Because this court is recommending dismissal at this time, the court will deny

plaintiff’s motion to obtain ECF privileges without prejudice.”

Amato v. McGinty , No.

1:17-CV-593(MAD/ATB), 2017 WL 9487185, at *11 (N.D.N.Y. June 6, 2017),

report

and recommendation adopted

, 2017 WL 4083575 (N.D.N.Y. Sept. 15, 2017).

WHEREFORE

, based on the findings above, it is

ORDERED

, that plaintiff’s motion to proceed IFP (Dkt. No. 2) be GRANTED ,

and it is

RECOMMENDED , 8 that the district court DENY plaintiff’s motion for the

appointment of counsel (Dkt. No. 3), and it is

7 See https://www.nynd.uscourts.gov/legal-aid-referral-services. 8 Ordinarily, motions to appoint counsel fall within the scope of the magistrate judges’ jurisdiction, due to their nondispositive nature. See 28 U.S.C. § 636(b)(1)(A). However, in light of the dispositive effect of a decision denying the appointment of counsel in a case such as this, the court, in an abundance of caution, addresses plaintiff’s motion to appoint counsel in a report-recommendation.

10 RECOMMENDED,

that the district court

DISMISS the complaint (Dkt. No. 1) in its entirety, without prejudice, but without leave to replead until C.T.M. is properly represented by counsel or reaches the age of majority, and it is

ORDERED,

that plaintiff’s motion to obtain ECF privileges (Dkt. No. 4) is

DENIED,

and it is

ORDERED

, that the Clerk of the Court serve a copy of this Order and Report- Recommendation on plaintiff by regular mail. 9 Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette , 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of

Health and Hum. Servs.

, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72. Dated: September 16, 2024

Fauconier v. Committee on Special Education, Not Reported in F.Supp.2d (2003)

2003 WL 21345549

barred suit under Individuals with Disabilities Education Act (IDEA) by noncustodial

KeyCite Overruling Risk - Negative Treatment parent challenging school district's denial of Overruling Risk Exxon Mobil Corp. v. Saudi Basic Industries Corp., U.S., mainstream educational placement for disabled March 30, 2005 student; claimant was trying to obtain federal court reversal of state court determination that

2003 WL 21345549

he could not represent student's interests under Only the Westlaw citation is currently available. IDEA, because he was not custodial parent. 20 United States District Court, U.S.C.A. § 1400 et seq. S.D. New York. Richard FAUCONIER, Plaintiff, v. COMMITTEE ON SPECIAL EDUCATION, District 3, New York City Board of Education, Defendant. OPINION & ORDER No. 02 Civ.1050 RCC. | CASEY, J. June 10, 2003. I. Background Synopsis *1 Pro se Plaintiff Richard Fauconier (“Plaintiff”) initiated this action on behalf of himself and his son, M.F., 1 against Noncustodial parent sued special education committee under Individuals with Disabilities Act (IDEA), challenging denial

the Committee on Special Education of District 3 of the of mainstream educational placement for student. Committee New York City Board of Education (“Defendant”) alleging moved to dismiss. The District Court, Casey, J., held that: violations of the Individuals with Disabilities Education (1) nonattorney parent could not proceed pro se, representing Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. On July 24, interests of student under IDEA, and (2) Rooker-Feldman 2002, Defendant filed a motion to dismiss the complaint. doctrine barred suit. By Report and Recommendation (“Report”) Judge Ronald Ellis recommended that Defendant's motion to dismiss be

Case dismissed. granted and that Plaintiff's complaint be dismissed without prejudice. Thereafter, the Plaintiff filed timely objections to the Report. Accordingly, the Court reviews the matter de novo. Fed.R.Civ.P. 72(b).

West Headnotes (2) 1 In the interests of privacy, the child will be referred [1] Infants Schools and education to in these proceedings as “M.F.” Nonattorney parent could not proceed pro The Plaintiff is the non-custodial parent of M.F., who has been se to represent interests of student in suit diagnosed with Attention Deficit Hyperactive Disorder. M.F. under Individuals with Disabilities Education is a student at a private institution for emotionally, physically Act (IDEA) challenging school committee's and mentally challenged students. Due to his disability, public decision to retain student in special private funds are used to pay for M.F.'s education. education setting rather than mainstreaming him. 20 U.S.C.A. § 1400 et seq.

On five separate occasions, from August, 1994 to March, 2001, M.F. was evaluated by District 3. As a result of each

12 Cases that cite this headnote evaluation, District 3 found it to be in M.F.'s best interest that he continue to attend a private educational institution. Constitutional questions, civil

[2] Courts The Plaintiff, however, sought to have his son placed in rights, and discrimination in general a mainstream school. District 3 denied Plaintiff's request Rooker-Feldman doctrine, precluding federal for a reevaluation and transfer of M.F. and declined to court review of state court final judgment, Fauconier v. Committee on Special Education, Not Reported in F.Supp.2d (2003)

2003 WL 21345549

include Plaintiff as a member of M.F.'s IEP team. In reaching M.F. Therefore, at the outset the Court dismisses Counts One these decisions, District 3 cited Plaintiff's status as the non- and Two of Plaintiff's complaint. Counts Three and Five are custodial parent. dismissed to the extent that they concern M.F.'s rights. Thus,

the remaining claims not barred by Cheung are Plaintiff's As a result, on November 5, 2001, Plaintiff filed an order to record-access claim, Plaintiff's claim that he be permitted a show cause in an Article 78 Special Proceeding in the State seat on M.F.'s IEP team, and his claim that Defendant has of New York Supreme Court, New York County. Plaintiff violated his Fourteenth Amendment rights. sought: (1) a reevaluation of M.F.; (2) placement of M.F. in a mainstream academic setting with support services; (3)

B. Rooker–Feldman permission for M.F. to take the standardized testing for fourth *2 [2] The Rooker–Feldman doctrine holds that a party grade math and English; and (4) a position on M.F.'s IEP may not take an appeal of a state court decision to a federal team with full access to his educational records. By final court. Plaintiff, however, requests that this Court do precisely disposition, the state court denied Plaintiff's claims in light that. of his non-custodial status. Plaintiff then commenced this federal action on February 11, 2002.

Plaintiff's claims that he be permitted access to M.F.'s educational records and that he be given a seat on M.F.'s IEP

II. Discussion team were precisely the subject of Plaintiff's order to show [1] In his Report, Judge Ellis recommended that Plaintiff's cause brought in state court. Therefore, as discussed below, complaint be dismissed without prejudice on the ground that under the Rooker–Feldman doctrine these claims may not be under Cheung v. Youth Orchestra Foundation of Buffalo, Inc., re-litigated here. Accordingly, the Court finds that it lacks 906 F.2d 59, 61 (2d Cir.1990), Plaintiff could not proceed subject matter jurisdiction over these claims. pro se to litigate M .F.'s interests. For the following reasons, the Court concludes that pursuant to its affirmative duty to A challenge under the Rooker–Feldman doctrine is for lack enforce the Cheung rule, the claims that Plaintiff brings on of subject matter jurisdiction and therefore may be raised at behalf of his son must be dismissed. Additionally, the Court any time by either party or sua sponte by the Court. Moccio v. finds that Plaintiff's remaining claims brought on his own New York State Officers of Court Admin., 95 F.3d 195, 198 (2d behalf are barred by the Rooker–Feldman doctrine. Cir.1996). Generally speaking, the Rooker–Feldman doctrine

directs that a federal district court lacks authority to review the final judgment of state courts in judicial proceedings.

A. Representing Children Pro Se Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir.2002). The The Second Circuit has made clear in Cheung that a court doctrine is derived from two Supreme Court decisions. In has an affirmative duty to enforce the rule that a non-attorney the first, Rooker v. Fidelty Trust Co., 263 U.S. 413, 44 S.Ct. parent must be represented by counsel when bringing an 149, 68 L.Ed. 362 (1923), the Court held that appeals from action on behalf of his or her child. See id. at 61. In fact, the state court judgments are reserved to the Supreme Court, and Second Circuit in Cheung enforced this affirmative duty prior therefore the lower federal courts lack jurisdiction to entertain to addressing the jurisdictional issues present in that case. such appeals. Sixty years later, in District of Columbia Court This Court therefore has a duty to enforce the Cheung rule, of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 for “ ‘[t]he infant is always the ward of every court wherein L.Ed.2d 206 (1983), the Court extended Rooker by barring his rights or property are brought into jeopardy, and is entitled reconsideration of claims that were implicitly decided by the to the most jealous care that no injustice be done to him.” ’ state court as well. In crafting the “inextricably intertwined” Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123, 125 (2d test, the Court held: Cir.1998) (quoting Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir.1997). On the other hand, a parent is entitled to represent himself when claiming that his own rights under

If the constitutional claims presented the IDEA have been violated. Id. at 126. Here, Counts One to a United States district court and Two of Plaintiff's Amended Complaint are claims that are inextricably intertwined with the exclusively concern M.F.'s rights. Additionally, Counts Three state court's denial in a judicial and Five concern both Plaintiff's and M.F.'s rights. Under proceeding ... then the district court Cheung, however, Plaintiff may not litigate the interests of Fauconier v. Committee on Special Education, Not Reported in F.Supp.2d (2003)

2003 WL 21345549

court failed to protect his federal rights. Plaintiff's Amended Complaint asserts that the state court “made no mention

is in essence being called upon to of Doe v. Anrig” and that “apparently, no judicial notice review the state-court decision. This is taken of cases in federal district courts such as Doe v. the district court may not do. Anrig, and the educational system's escape of scrutiny is assured.” Am. Compl. ¶¶ 33, 34. Accordingly, the Court finds that Plaintiff's pleadings demonstrate that he has brought

Feldman, 460 U.S. at 483–84 n. 16. this action because he is dissatisfied with the state court decision. In effect, Plaintiff is asking the Court to review the Under the Rooker–Feldman doctrine, the Court may address state court's determination that he lacks educational decision two questions: (1) whether a party is attempting to directly making authority because he is not the custodial parent. challenge a state court decision in federal court and (2) The Rooker–Feldman doctrine squarely bars a litigant from whether such a suit is inextricably intertwined with the complaining of a result in state court by asking a federal court previous state court proceedings. Given that a challenge under to entertain an appeal of that result. See Kropelnicki, 290 F.3d the Rooker–Feldman doctrine as an inquiry into the Court's at 128. To consider Plaintiff's claims, the Court would be subject matter jurisdiction, the Court may consider materials required to determine whether the IDEA protects the rights of extrinsic to the complaint. Phifer v. City of New York, 289 F.3d both custodial and non-custodial parents, a question the state 49, 55 (2d Cir.2002). The Court now turns to this inquiry. court has already ruled upon in this case. This type of request

is squarely barred under the Rooker–Feldman doctrine. See In his attempt to appeal the decision of the state court to Corsini v. Ross, 152 F.3d 917 (2d Cir.1998) (“[D]istrict courts the federal courts, Plaintiff asserts that this action contains ‘do not have jurisdiction ... over challenges to state court claims under the IDEA that were never raised in the state court decisions ... even if those challenges allege that the state proceeding. See Plaintiff's Memorandum of Law ¶ 38. The court's action was unconstitutional .” ’) (quoting Feldman, Court, however, finds Plaintiff's assertion disingenuous. In 460 U.S. at 486). Accordingly, the Court lacks subject matter his November 15, 2001 Affidavit filed in New York Supreme jurisdiction in this case. Court, Plaintiff himself stated that his cause of action was partly “governed by the federal Individuals with Disabilities

III. Conclusion Education Act (IDEA).” Moreover, in state court Plaintiff For the reasons stated above, under Cheung Plaintiff's claims asserted that despite the fact that he is M.F.'s non-custodial brought on behalf of M.F. are dismissed. Additionally, father, Doe v. Anrig, 651 F.Supp. 424 (D.Mass.1987), Plaintiff's remaining claims pertaining to his rights under the supported his claim that he could still assert claims under the IDEA are dismissed under the Rooker–Feldman doctrine. The IDEA. See Plaintiff's Nov. 15, 2001 Aff. ¶ 7(i). Nevertheless, Clerk of the Court is hereby directed to close the case. the state court concluded that because Plaintiff is not the custodial parent, he lacked decision making authority for M.F. See Ex. O to Am. Compl.

All Citations *3 On December 6, 2001 Plaintiff filed this action Not Reported in F.Supp.2d, 2003 WL 21345549 contending that the state court was insensitive to the facts forming the basis of his federal claims and that the state End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. Fauconier v. Committee on Special Educ., Dist. 3, New..., 112 Fed.Appx. 85 (2004) 193 Ed. Law Rep. 136

Act, § 601 et seq., as amended, 20 U.S.C.A. § 1400 et seq.

112 Fed.Appx. 85 This case was not selected for 3 Cases that cite this headnote publication in the Federal Reporter. United States Court of Appeals, [2] Courts Constitutional questions, civil Second Circuit. rights, and discrimination in general Richard FAUCONIER, Plaintiff–Appellant, To the extent that claims asserted by noncustodial v. father against special education committee

COMMITTEE ON SPECIAL EDUCATION,

pursuant to Individuals with Disabilities DISTRICT 3, NEW YORK CITY BOARD Education Act (IDEA) implicated father's own OF EDUCATION, Defendant–Appellee. rights, they were barred by Rooker-Feldman

doctrine, which generally barred federal court No. 03–7793–CV. review of state-court judgments, inasmuch as | any other outcome would presume that father Sept. 30, 2004. possessed authority, as noncustodial parent, to litigate claims under IDEA on son's behalf,

Synopsis thereby calling into question validity of prior Background: On behalf of himself and son, noncustodial state-court determination holding otherwise. parent brought pro se action against special education Individuals with Disabilities Education Act, § committee under Individuals with Disabilities Act (IDEA), 601 et seq., as amended, 20 U.S.C.A. § 1400 et challenging denial of mainstream educational placement for seq. son. Committee moved to dismiss. The United States District Court for the Southern District of New York, Casey, J., 2003

1 Case that cites this headnote WL 21345549, dismissed complaint. Parent appealed. *85 Appeal from the United States District Court for the Holdings: The Court of Appeals held that: Southern District of New York (Casey, J.). *86 UPON DUE CONSIDERATION, IT IS HEREBY

[1] parent, who was not attorney, could not assert claims on ORDERED, ADJUDGED, AND DECREED that the son's behalf, and judgment of the said district court be and it hereby is

AFFIRMED.

[2] claims implicating parent's rights were barred by Rooker- Feldman doctrine.

Attorneys and Law Firms Richard Fauconier, Troy, NY, for Appellant, pro se.

Affirmed. Victoria Scalzo, Assistant Corporation Counsel, Corporation Counsel, City of New York, New York, NY, for Appellees.

West Headnotes (2) PRESENT: FEINBERG, CARDAMONE, and B.D. PARKER, Circuit Judges.

[1] Education Judicial Review or Intervention Infants Schools and education

SUMMARY ORDER

Nonattorney parent could not assert claims on behalf of son in action brought under

**1 Richard Fauconier, pro se, appeals the District Court's Individuals with Disabilities Education Act dismissal of his complaint, in which he had alleged various (IDEA). Individuals with Disabilities Education claims on behalf of his son as well as on his own behalf under Fauconier v. Committee on Special Educ., Dist. 3, New..., 112 Fed.Appx. 85 (2004) 193 Ed. Law Rep. 136

were properly dismissed as barred by the Rooker–Feldman the Individuals with Disabilities Education Act (“IDEA”), 20 doctrine, because any other outcome would have presumed U.S.C. § 1400, et seq. Familiarity with the underlying facts, that Fauconier possessed the authority, as a non-custodial procedural context, and specification of appellate issues is parent, to litigate claims under the IDEA on behalf of his assumed. son. Such a result would have called into question the validity of a prior state court determination holding otherwise. See

We review de novo the District Court's dismissal of Phifer v. City of New York, 289 F.3d 49, 55 (2d Cir.2002) Fauconier's complaint. Rombach v. Chang, 355 F.3d 164, (noting that the Rooker–Feldman doctrine “holds that inferior 169 (2d Cir.2004) (dismissal under Fed.R.Civ.P. 12(b)(6)); federal courts lack subject matter jurisdiction over cases see also Mackensworth v. S.S. Am. Merch., 28 F.3d 246, 252 that effectively seek review of judgments of state courts (2d Cir.1994) (dismissal for lack of jurisdiction). Because and that federal review, if any, can occur only by way of “most pro se plaintiffs lack familiarity with the formalities of a certiorari petition to the Supreme Court”) (citations and pleading requirements, we must construe pro se complaints internal quotation marks omitted); see also D.C. Ct. of App. v. liberally, applying a more flexible standard to evaluate their Feldman, 460 U.S. 462, 482–86 & n. 16, 103 S.Ct. 1303, 75 sufficiency than we would when reviewing a complaint L.Ed.2d 206 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, submitted by counsel.” Lerman v. Bd. of Elections, 232 F.3d 415–16, 44 S.Ct. 149, 68 L.Ed. 362 (1923). 135, 140 (2d Cir.2000). **2 Accordingly, the decision of the District Court is [1] [2] To the extent Fauconier raised claims on behalf of

AFFIRMED.

his son, the claims were properly dismissed because, pursuant to Cheung v. Youth Orchestra Found., 906 F.2d 59, 61 (2d Cir.1990), a federal court has an affirmative duty to enforce

All Citations the rule that “a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child.” To

112 Fed.Appx. 85, 2004 WL 2278541, 193 Ed. Law Rep. 136 the extent Fauconier's claims implicated his own rights, they End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. Palumbo v. Ross, Not Reported in Fed. Supp. (2009)

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to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) filed by Judge Ross

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and Referee Gibson (hereinafter the “Judicial Defendants”), Only the Westlaw citation is currently available. a motion to dismiss pursuant to Rules 8, 9(b), and 12(b) United States District Court, E.D. New York. (6) brought by Defendants Nicolosi and Rhindress, a motion Robert PALUMBO, Noel Palumbo, Plaintiff, to compel Plaintiff to arbitration brought by H&R Block, a motion to appoint counsel for Noel Palumbo, and finally, a v. motion to amend the Complaint. For the reasons stated below, Robert ROSS, Marston Gibson, Vincent the motions to dismiss are GRANTED, the motion to compel Nicolosi, Charleen Rhindress, H&R Block Plaintiff to arbitration is GRANTED, the motion to appoint Financial Advisors, Inc., Defendants. counsel is DENIED, and the motion to amend is GRANTED in part and DENIED in part.

07-CV-5378 (JS)(ETB)

| 1 Signed 02/19/2009 Because the Court dismisses Noel Palumbo's Complaint without prejudice, all citations to

Attorneys and Law Firms “Plaintiff” in this Order refer to Robert Palumbo. For Plaintiffs: Robert Palumbo, Robert Palumbo, Pro Se, 456 Half Hollow Road, Dix Hills, NY 11746.

BACKGROUND

Noel Palumbo, Noel Palumbo, Pro Se. The facts of this case are taken from the Complaint. In April of 2003, Plaintiff received a judgment of divorce from

For Defendants: Justice Robert, Ross, Referee, Marston C.D., Rhindress. Although unclear from Plaintiff's Complaint, it Gibson, Ralph Pernick, Esq., New York State Attorney appears that Judge Ross retained jurisdiction over certain General, 200 Old County Road, Suite 460, Mineola, NY ongoing issues concerning either Plaintiff's matrimonial 11545-1403. action or custody issues pertaining to Noel Palumbo. Vincent F., Nicolosi, Vincent F. Nicolosi, Esq., Nicolosi & Nicolosi, LLP, 111 Plandome Road, Manhasset, NY 11030. On or about December 21, 2007, Plaintiff allegedly received a

phone call from Dave Andrews (“Andrews”), a representative Charleen Rhindress: No Appearance. of H&R Block, indicating that Plaintiff's retirement account at H&R Block had been sequestered. Andrews stated that

H&R Block, Financial, Advisors, Inc., Theodore Snyder, he had an order signed by Defendant Gibson that authorized Esq., Krensbach & Snyder, P.C., One Exchange Plaza, 55 the sequestration. Plaintiff alleges that he did not consent Broadway, Suite 1600, New York, NY 10006. to Gibsons' participation in the matter and that Gibson signed the order without providing Plaintiff with notice. The Complaint states that sequestration was unwarranted because

ORDER

Plaintiff did not owe any monies in child support or as a result of the divorce decree. Plaintiff further argues that his

Joanna Seybert, U.S.D.J. retirement account is covered by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq (“ERISA”) and *1 On December 27, 2007, pro se Plaintiff Robert therefore Judge Ross and Gibson lacked jurisdiction to issue Palumbo (“Palumbo”) filed a Complaint in this Court against

an order of sequestration. Nassau County Supreme Court Justice Robert Ross (“Judge Ross”), Referee Marston C.D. Gibson (“Gibson”), Charleen At some point during the state court proceeding, Judge Rhindress (“Rhindress”), Vincent F. Nicolosi, (“Nicolosi”) Ross issued an order enjoining Plaintiff from filing any new and H&R Block Financial Advisors, Inc. (“H&R Block”)

action in the court without first obtaining permission from (collectively, “Defendants”). On February 26, 2008, Palumbo Judge Ross. Plaintiff argues that this order unconstitutionally filed an Amended Complaint (hereinafter referred to as the violates Plaintiff's access to the courts. Plaintiff seeks “Complaint”) and added his daughter, Noel Palumbo, as an “injunctive relief, declaratory relief[,] and money damages in additional Plaintiff. 1 Pending before the Court is a motion Palumbo v. Ross, Not Reported in Fed. Supp. (2009)

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excess of two million dollars” from Judge Ross. (Amended that are not addressed whatsoever in Defendants' Complaint (“Comp.”) p 5.) motion, such as, for example, Defendants' motion

to dismiss pursuant to Rule 9(b). *2 On April 11, 2008, Plaintiff filed an Order to Show Cause before this Court seeking an order enjoining Defendants

DISCUSSION

from sequestering Plaintiff's retirement account pending the resolution of this case. On April 14, 2008, this Court

I. Motion to Appoint Counsel denied Plaintiff's Order to Show Cause for failure to show Plaintiff moves to appoint counsel on behalf of himself and a likelihood of success on the merits. Plaintiff appealed on behalf of Noel Palumbo. this Court's denial to the Second Circuit Court of Appeals. On September 29, 2008, the Court of Appeals dismissed

Pursuant to 28 U.S.C. § 1915(e)(1), courts may appoint Plaintiff's appeal because it lacked an arguable basis in law an attorney to represent someone unable to afford counsel. or in fact. Courts possess broad discretion when determining whether appointment is appropriate, “subject to the requirement that it

It is unclear what Plaintiff's cause of action is against be ‘guided by sound legal principle.’ ” Cooper v. A. Sargenti Defendants Nicolosi, Rhindress, and H&R Block. As best Co., Inc., 877 F.2d 170, 171-72 (2d Cir. 1989) (quoting as can be parsed from Plaintiff's Complaint, Plaintiff alleges Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983) ). that Defendant Nicolosi, counsel for Rhindress, improperly sought sequestration of Plaintiff's retirement fund to pay for his attorney's fees. Defendant Rhindress has contributed to

A. Motion to Appoint Counsel on Behalf of Noel this illegal sequestration by “allow[ing] her counsel to collect Palumbo more than $600,000 in counsel fees.” (Comp. P. 7.) Defendant The Court notes the “well-established general rule in this H&R Block allegedly breached its fiduciary duty and Circuit that a parent not admitted to the bar cannot bring an interfered with Plaintiff's “legal and civil rights.” According action pro se in federal court on behalf of his or her child.” to Plaintiff, H&R Block's legal department “should know Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d the law and understand that a state referee cannot sequester Cir. 2005); see also Allen v. Mattingly, No. 08-CV-2003, ERISA funds.” (Id.) 2008 U.S. Dist. LEXIS 48930 at *5 (E.D.N.Y. June 19, 2008) (“Generally, a parent who is not admitted to the bar cannot

The Judicial Defendants argue that the Complaint should be maintain an action pro se in federal court on behalf of his or dismissed because Plaintiff fails to state a claim, Plaintiff her child.”). Thus, if the Court declines to appoint counsel for cannot pursue an action on behalf of his daughter, and Noel Palumbo, Plaintiff, as a non-attorney, will not be able to Plaintiff's arguments are barred by the Rooker-Feldman asserts claims on behalf of his infant daughter. doctrine and absolute judicial immunity. Nicolosi and Rhindress move to dismiss Plaintiff's Complaint pursuant

*3 District courts have the authority to appoint counsel on to Federal Rules of Civil Procedure 8, 9(b) and 12(b)(6). 2 behalf of a minor child. “The determination as to whether Finally, H&R Block moves to compel Plaintiff to arbitration. or not to appoint counsel must be made before deciding any other issues in the case. If the district court declines to 2 appoint counsel and if the non-attorney parent is unable to The Court notes that Rhindress and Nicolosi retain counsel, the complaint should be dismissed without have not properly filed their motion to dismiss. prejudice.” Fayemi v. Bureau of Immigration & Custom Rhindress and her attorney have not cited to Enforcement, No. 04-CV1935, 2004 WL 1161532, at *2, any case law, and in fact, failed to submit a 2004 U.S. Dist. LEXIS 9256, at *4 (E.D.N.Y. May 24, 2004) memorandum of law in support of their motion. (internal citations omitted). There is no right to be appointed Their entire motion consists of a four-page counsel in a civil matter, even where the indigent is an infant. affirmation submitted by Nicolosi, and a one-page affidavit signed by Rhindress. The Court will not

“As a threshold matter, ... the district court must consider the take the time to ascertain what legal arguments merits of the indigent's claim.” Hodge v. Police Officers, 802 Defendants intend to make, nor will it fill in the F.2d 58, 60 (2d Cir. 1986). The Court has reviewed Plaintiff's blanks and make arguments on behalf of counsel. application and finds that the appointment of counsel is Thus, the Court declines to address any arguments Palumbo v. Ross, Not Reported in Fed. Supp. (2009)

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not warranted at this stage. As discussed more fully below, subject to dismissal. See Alfaro Motors, Inc. v. Ward, 814 F.2d Plaintiff's claims do not have sufficient merit and therefore do 883, 887 (2d Cir. 1987). not satisfy the threshold requirement of Hodge, 802 F.2d at 61.

B. Rule 12(b)(1) Because the Court declines to appoint counsel on behalf of In considering a motion to dismiss for lack of subject matter Noel Palumbo, and because Robert Palumbo has indicated jurisdiction pursuant to Rule 12(b)(1), the Court may consider that he is unable to retain counsel on her behalf, the Court affidavits and other materials beyond the pleadings to resolve dismisses all claims on behalf of Noel Palumbo without jurisdictional questions. See Robinson v. Gov't of Malaysia, prejudice. See Cheung v. Youth Orchestra Foundation, 269 F.3d 133, 140 n.6 (2d Cir. 2001). Under Rule 12(b)(1), Inc., 906 F.2d 59, 62 (2d Cir. N.Y. 1990) (“If [the non- the Court will deem true the factual allegations contained in attorney parent] does not retain counsel and if the district the complaint. See Jaghory v. New York State Dep't of Educ., court declines to appoint counsel, the complaint should be 131 F.3d 326, 329 (2d Cir. 1997). However, where there is a dismissed without prejudice.”); Hughes v. Callahan, No. 97- question involving federal jurisdiction, “jurisdiction must be CV-5652, 1998 U.S. Dist. LEXIS 14840, at *1 (E.D.N.Y. shown affirmatively, and that showing is not made by drawing Aug. 3, 1998) (“Accordingly, the Court must either appoint from the pleadings inferences favorable to the party asserting counsel for the child in this case, or dismiss the case without it.” Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 prejudice.”). Noel Palumbo is therefore dismissed without (2d Cir. 1998) (citing Norton v. Larney, 266 U.S. 511, 515, prejudice as a plaintiff from this action. 45 S.Ct. 145, 69 L.Ed. 413 (1925) ). B. Motion to Appoint Counsel for Robert Palumbo C. Rule 12(b)(6) The Court similarly finds that counsel for Robert Palumbo is *4 On a motion to dismiss pursuant to Rule 12(b)(6), not warranted because Plaintiff's case is not likely to be of a plaintiff must satisfy a “flexible ‘plausibility standard,’ substance. See Fayemi v. Bureau of Immigration & Custom which obliges a pleader to amplify a claim with some factual Enforcement, 2004 WL 1161532, 2004 U.S. Dist. LEXIS allegations in those contexts where such amplification is 9256 (E.D.N.Y. May 24, 2004) (“In determining whether needed to render the claim plausible.” Iqbal v. Hasty, 490 F.3d to appoint counsel, a district court must first determine 143, 157-58 (2d Cir. 2007). The Complaint “must be enough whether the indigent litigant's position ‘seems likely to be of to raise a right to relief above the speculative level.” Bell Atl. substance.’ ”) (quoting Wenger v. Canastota Cent. Sch. Dist., Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 146 F.3d 123, 125 (2d Cir. 1998) ). Accordingly, Plaintiff's 929 (2007). To be clear, on a motion to dismiss, the Court application for appointment of counsel is DENIED without does not require “heightened fact pleading of specifics, but prejudice to renewal at a later stage of the proceedings, if only enough facts to state a claim for relief that is plausible circumstances warrant such an application. on its face.” Id. at 1974. II. Motions to Dismiss Standard of Review In applying this standard, the district court must accept the factual allegations set forth in the Complaint as true and draw A. Rule 8 all reasonable inferences in favor of Plaintiff. See Cleveland Rule 8 of the Federal Rules of Civil Procedure provides, v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. in relevant part, that a complaint “shall contain ... a short Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). and plain statement of the claim showing that the pleader is entitled to relief,” and “[e]ach averment of a pleading shall

When deciding a 12(b)(6) motion, the Court is confined be simple, concise, and direct.” Fed. R. Civ. P. 8. Essentially, to “the allegations contained within the four corners of the Rule 8 ensures that a complaint provides a defendant with complaint.” Pani v. Empire Blue Cross Blue Shield, 152 F.3d sufficient notice of the claims against him. See Fed. R. Civ. 67, 71 (2d Cir. 1998). Additionally, the Court may examine P. 8; Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). “any written instrument attached to [the complaint] or any In that vein, the Second Circuit has held that complaints statements or documents incorporated in it by reference” as containing only vague or conclusory accusations and no well as any document on which the complaint relies heavily. specific facts regarding the alleged wrongdoing do not allow Chambers v. Time Warner, Inc., 282 F.3d 147, 152-153 (2d defendants to frame an intelligent defense and are therefore Cir. 2002). “Of course, it may also consider matters of which Palumbo v. Ross, Not Reported in Fed. Supp. (2009)

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judicial notice may be taken under Fed. R. Evid. 201.” Kramer jurisdiction to adjudicate on the Keogh v. Time Warner, Inc., 837 F.2d 767, 773 (2d Cir. 1991). accounts because of [ERISA]. It is

settled that this Court, like other States' courts, can direct distribution

III. The Claims Against the Judicial Defendants are of a Keogh account so long as it Dismissed utilizes a qualified domestic relations The Court finds that Plaintiff's claims against the Judicial order (“QDRO” ...). The defendant's Defendants are barred by the Rooker-Feldman doctrine and contention ignores the fact that the absolute judicial immunity. Because the Court dismisses QDRO exception to the ERISA anti- Plaintiff's Complaint on the aforementioned grounds, the alienation rules is contained both in Court declines to address the Judicial Defendants' remaining ERISA itself ... and in the Internal arguments for dismissal. Revenue Code of 1986 (see, 26

U.S.C.A. § 414; ...).

A. Plaintiff's Claims are Barred by the Rooker-Feldman Doctrine

The Judicial Defendants argue, and the Court agrees, that The essence of Plaintiff's current Complaint is that ERISA Plaintiff's claims are barred by the Rooker-Feldman doctrine. preempts state law and therefore the Judicial Defendants Coalescing the Supreme Court's holdings in District of lacked jurisdiction to issue the sequestration order. However, Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 Plaintiff's arguments have already been heard by the state S.Ct. 1303, 75 L.Ed.2d 206 (1983) and Rooker v. Fidelity court; a review of Plaintiff's claims by this Court would be Trust Co. 263 U.S. 413, 414-17, 44 S.Ct. 149, 150, 68 L.Ed. tantamount to a federal district court hearing an appeal of 362 (1923), the Rooker-Feldman doctrine prohibits federal a state court judgment, which this Court cannot do. Such a district courts from considering collateral attacks to state court review would be barred by the Rooker-Feldman doctrine, and judgments. additionally by the doctrine of issue preclusion because the

state court has already rendered a decision regarding ERISA There are four requirements for the application of the Rooker- premption. See Wolff v. City of N.Y. Fin. Servs. Agency, Feldman doctrine: (1) the federal-court Plaintiff must have 939 F.Supp. 258, 264-65 (S.D.N.Y. 1996) (“Federal courts lost in state court; (2) the Plaintiff's injuries must be caused by must give the same preclusive effect to a New York court's the state court judgment; (3) the Plaintiff's claims must invite judgment that [state] courts would give it.”) (citing Migra v. the district court to review and reject the state court judgment; Warren City Sch. Dist., 465 U.S. 75, 83, 104 S.Ct. 892, 79 and (4) the state-court judgment must have been rendered L.Ed.2d 56 (1984) ). Plaintiff's recourse is to seek appeal in prior to the commencement of the district court proceedings. the state courts, and not to file a separate action in federal See Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, court to overturn the sequestration order. 85 (2d Cir. 2005).

B. Judicial Immunity Here, Plaintiff was the state-court loser in the Nassau County The doctrine of judicial immunity bars Plaintiff's claims Supreme Court. Plaintiff is now dissatisfied with the state against Judge Ross and Referee Gibson. It is well-settled that court's order sequestering Plaintiff's account. The order of judges are subject to suit only for (1) “non-judicial actions, sequestration was issued prior to this action. Further, it is clear i.e., actions not taken in the judge's judicial capacity,” or that Plaintiff raised ERISA as a defense in the state court (2) “actions, though judicial in nature, taken in the complete proceedings prior to the sequestration order. In a decision absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, dated May 21, 2007, Referee Gibson considered, and rejected, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991); see Stump v. Plaintiff's arguments that the state court lacked jurisdiction Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 55 L.Ed.2d over Plaintiff's retirement accounts. Specifically, Referee 331 (1978). Judicial immunity applies to all judges and Gibson stated, extends to other individuals engaged in a judicial function, that is the “performance of the function of resolving disputes between parties, or of authoritatively adjudicating private

*5 [t]here is no merit in [Plaintiff's] rights,” Burns v. Reed, 500 U.S. 478, 498-502, 111 S.Ct. 1934, contention that this Court lacks Palumbo v. Ross, Not Reported in Fed. Supp. (2009)

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1946-47, 114 L.Ed.2d 547 (1991). This absolute “judicial 1195, 1199 (2d Cir. N.Y. 1989) (citing § 1132(d) immunity is not overcome by allegations of bad faith or (2) ); see also Ortiz v. Local 32BJ, 2008 U.S. malice,” nor can a judge “be deprived of immunity because Dist. LEXIS 41973 (S.D.N.Y. May 21, 2008) the action he took was in error ... or was in excess of his (holding that claims against a union for improperly authority.” Mireles, 502 U.S. at 11, 112 S.Ct. 286 (quoting distributing funds from plaintiff's ERISA account Stump, 435 U.S. at 356, 98 S.Ct. 1099). were implausible because the union was neither a

plan, administrator, nor trustee of the plan). Here, Here, Plaintiff's allegations relate to an Order issued by the Judicial Defendants are not administrators or Judge Ross and Referee Gibson in their capacity as judicial trustees of the plan, and as such, Plaintiff cannot officers overseeing Plaintiff's matrimonial action. Plaintiff is bring an action against them for monetary relief. correct that ERISA generally preempts state laws that relate

*6 Accordingly, because the Judicial Defendants are entitled to employee benefits plans. 29 U.S.C. § 1144(a). However, to absolute immunity, the motion to dismiss on behalf of there are “several exceptions to its general preemption Defendants Justice Ross and Referee Gibson is granted in its provision, one of which is relevant here: ERISA does not entirety. preempt ‘qualified domestic relations orders [“QDRO”].’ ” Metro. Life Ins. Co. v. Bigelow, 283 F.3d 436, 440 (2d Cir. 2002) (quoting 29 U.S.C. § 1144(b)(7) ). In this case, the IV. Claims Against Defendants Rhindress and Nicolosi sequestration order was issued as a QDRO, and thus may have Defendants Rhindress and Nicolosi move to dismiss qualified as an exception to ERISA.

Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 8, 9(b) and 12(b)(6). Rhindress and Nicolosi argue

The Court is cognizant of Plaintiff's argument that the Judicial that Plaintiff has not stated any legally cognizable claims Defendants lacked jurisdiction to sequester Plaintiff's account against them. for attorney's fees. Liberally construed, Plaintiff's argument could be read as stating that the sequestration order did Notwithstanding the liberal pleading standards granted to a not qualify as a QDRO. However, the Court will not opine pro se Plaintiff, all complaints must contain at least “some on the propriety of the sequestration order and whether minimum level of factual support for their claims.” Alfaro it properly qualified as a QDRO. Regardless of whether

Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987). Here, the action was taken in error, and the sequestration order the Court cannot discern exactly what Plaintiff's claims are did not meet the requirements for a QDRO, it cannot be against Defendants Nicolosi and Rhindress. As noted above, said that the order was issued in the complete absence of Plaintiff cannot seek monetary damages against Nicolosi and all jurisdiction. As the Supreme Court stated in one of its

Rhindress for a violation of ERISA because these Defendants cornerstone judicial immunity opinions, “judges ... are not are not plan administrators or trustees. See Leonelli v. liable to civil actions for their judicial acts, even when such Pennwalt Corp., 887 F.2d 1195, 1199 (2d Cir. 1989). If there acts are in excess of their jurisdiction, and are alleged to have are claims other than an alleged ERISA violation within been done maliciously or corruptly. A distinction must be

the Complaint, it is entirely unclear exactly what the claims here observed between excess of jurisdiction and the clear are and what Defendants' involvement was in these claims. absence of all jurisdiction over the subject-matter.” Bradley Accordingly, the Court DISMISSES Plaintiff's claims against v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1872). Defendants Rhindress and Nicolosi for failure to comply with Here, the Judicial Defendants did not act in complete absence

Federal Rule of Civil Procedure 8. However, as discussed of jurisdiction, and therefore are entitled to judicial immunity more fully below, the Court grants Plaintiff an opportunity to for their actions in issuing the sequestration order. 3 amend his claims against Defendants Nicolosi and Rhindress. 3

In addition to the doctrine of judicial immunity, V. Claims Against H&R Block Plaintiff's demand for monetary damages against Although not entirely clear, Plaintiff's allegations against the Judicial Defendants cannot be maintained under H&R Block appear to be that H&R Block breached its ERISA. “Only the plan and the administrators fiduciary duty to Plaintiff and violated ERISA by refusing and trustees of the plan in their capacity as such to distribute funds to Plaintiff. H&R Block moves to compel may be held liable” in a recovery of benefits claim. Leonelli v. Pennwalt Corp., 887 F.2d

Palumbo v. Ross, Not Reported in Fed. Supp. (2009)

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Plaintiff to arbitration based upon a written arbitration the arbitration proceeds” and not to dismiss claims referred agreement Plaintiff signed. to arbitration). H&R Block has submitted a signed account application

VI. Leave to Amend wherein Plaintiff acknowledges receiving the H&R Block On April 4, 2008, Plaintiff filed a motion for leave to file Investor's Account Agreement (hereinafter “Agreement”) a Second Amended Complaint. Plaintiff's proposed Second and understanding that Plaintiff is bound by the terms and Amended Complaint asserts a variety of state law actions conditions of the Agreement. See Sellar Dec. Ex. A. The and asserts claims under 42 U.S.C. §§ 1983 and 1985, 18 Agreement states that the investor “agree[s] to submit any U.S.C. §§ 1951-1960, and 18 U.S.C. § 1961. On April 30, and all controversies or claims arising out of the relationship 2008, the Judicial Defendants filed an opposition to Plaintiff's established by [the] Agreement ... to arbitration.” Id. Ex. B motion to amend; the remaining Defendants have not filed an ¶ 24. Plaintiff does not deny signing the acknowledgment, opposition. nor does he argue fraud or overreaching. Plaintiff merely asserts, “[w]hile I don't remember reading or even seeing

Rule 15(a) of the Federal Rules of Civil Procedure states the handbook, I remember the discussion with Investment that a party shall be given leave to replead when justice so Manager Drew Keenan.” Plaintiff then proceeds to argue that requires. A district court “should not dismiss without granting the Court has jurisdiction over his claims because of ERISA. leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be

“There is a strong federal policy favoring arbitration as an stated.” Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991); alternative means of dispute resolution” and any “doubts as see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, to whether a claim falls within the scope of that agreement 48 (2d Cir. 1991). should be resolved in favor of arbitrability.” ACE Capital Re Overseas Ltd. v. Cent. United Life Ins. Co., 307 F.3d 24, 29 (2d Cir. 2002) (internal quotations omitted). The

A. Proposed Claims Against the Judicial Defendants Court finds that Plaintiff agreed to submit all disputes arising Plaintiff's proposed Second Amended Complaint purports to out of his relationship with H&R Block to arbitration. assert various new claims against the Judicial Defendants, Although Plaintiff vaguely asserts that he does not remember including claims under Sections 1983 and 1985, a RICO reading the Agreement, the Court finds that this unsupported violation, and various state law claims. However, each of allegation does not render the clause ineffective. See Gold the new claims relate to Plaintiff's dissatisfaction with the v. Deutsche Aktiengesellschaft, 365 F.3d 144, 149 (2d Cir. sequestration order and with various other orders issued by 2004) (rejecting the plaintiff's argument that he failed to

Judge Ross in the state court proceedings. fully read agreement before signing arbitration clause); see also Tarulli v. Circuit City Stores, Inc., 333 F.Supp.2d

Plaintiff's proposed new claims against the Judicial 151, 156 (S.D.N.Y. 2004) (finding that plaintiff was bound Defendants are barred by judicial immunity. The proposed by arbitration agreement regardless of whether she read it Second Amended Complaint does not assert any new facts because “[i]n New York, ... parties are bound ‘by the contracts which would overcome the doctrine of judicial immunity, they sign whether or not the party has read the contract so long and in fact, again asserts claims related to actions taken as there is no fraud, duress or some other wrongful act of the by the Judicial Defendants in their official capacity as other party.’ ”) (quoting Tuskey v. Volt Info. Scis., Inc., No. officers overseeing the underlying state court proceedings. 00-CV-7410, 2001 WL 873204, at *3, 2001 U.S. Dist. LEXIS

As discussed above, the doctrine of judicial immunity is 10980, at *9 (S.D.N.Y. Aug. 3, 2001) ). Thus, the Court finds specifically applicable to actions brought pursuant to 42 that Plaintiff's claims against H&R Block must be referred to U.S.C. § 1983. See Tucker v. Outwater, 118 F.3d 930, 933 arbitration. (2d Cir. 1997). Although absolute judicial immunity does not bar claims for prospective injunctive relief, “such relief is not

*7 Plaintiff's claims against H&R Block are stayed available under § 1983 absent an allegation of a violation of pending the outcome of arbitration. See Centra Indus. v. a prior declaratory decree, which is not this case.” Jacobs v. McGuirewoods, LLP, 270 F.Supp.2d 386, 389 (S.D.N.Y. Mostow, 271 Fed. Appx. 85, 88 (2d Cir. 2008). Likewise, 2003) ( [“P]roper course is to stay ... claims in this Court while

Plaintiff's proposed RICO claims would be barred by judicial immunity. See Peia v. U.S. Bankr. Ct., 62 Fed. Appx. 394, 396

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(2d Cir. 2003) (holding that RICO claims against bankruptcy Here, Plaintiff's Complaint summarily states that Nicolosi judges were barred by judicial immunity). “acted in concert” with Ross. Such conclusory allegations are

insufficient to support a Section 1983 claim against private In sum, Plaintiff's Second Amended Complaint may not individuals. assert new claims against the Judicial Defendants; the Court finds that such amendment would be futile as the Court has However, the Court is cognizant of Plaintiff's pro se status, already determined that the Judicial Defendants are entitled and thus will grant Plaintiff an opportunity to amend his to absolute immunity for their actions in Plaintiff's state court Complaint to the extent that he can assert a cognizable Section domestic relations proceedings. See Hom v. Brennan, 304 1983 claim against Defendants Nicolosi and Rhindress. F.Supp.2d 374, 380 (E.D.N.Y. 2004) (finding that amendment would be futile because the potential judicial defendant was

C. Section 1985 Claims protected by judicial immunity). Plaintiff alleges that his Complaint is also brought pursuant to 42 U.S.C. § 1985. In order to state a cognizable claim under

B. Proposed Claims Under Section 1983 Section 1985, Plaintiff must allege that he was a member of *8 The Court finds that Plaintiff's proposed Second a protected class, that Defendants conspired with others to Amended Complaint fails to state a cognizable claim under deprive him of his constitutional rights, that Defendants acted Section 1983. To state a claim under Section 1983, “a plaintiff with class-based, invidiously discriminatory animus, and that must allege that: (1) the challenged conduct was attributable Plaintiff suffered damages as a result of Defendants' actions. at least in part to a person acting under color of state law; and See 42 U.S.C. § 1985(2), (3); Griffin v. Breckenridge, 403 (2) the conduct deprived the plaintiff of a right guaranteed U.S. 88, 102-103, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). under the Constitution of the United States.” Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. New York, Plaintiff's proposed Second Amended Complaint fails to set 985 F.2d 94, 98 (2d Cir. 1993) (overruled on other grounds) ). forth a claim under Section 1985. At the outset, Plaintiff

has not shown that he is a member of a protected class. Plaintiff's proposed Section 1983 claims fail because Nicolosi Additionally, Plaintiff has not provided any factual support and Rhindress are not state actors. Only under highly limited for a claim of conspiracy based on racial or other class- circumstances, not alleged here, will a private individual be based animus. However, because Plaintiff is proceeding pro held liable under Section 1983. See Spear v. Town of West se, the Court will grant Plaintiff an opportunity to amend his Hartford, 954 F.2d 63, 68 (2d Cir. 1992); see also Rendell- Complaint to allege a Section 1985 claim. As with Plaintiff's Baker v. Kohn, 457 U.S. 830, 838-42, 102 S.Ct. 2764, 73 Section 1983 claim, Plaintiff may not assert a Section 1985 L.Ed.2d 418 (1982); Flagg Bros., Inc. v. Brooks, 436 U.S. claim against the Judicial Defendants as any such amendment 149, 157-60, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). would be futile. To the extent that Plaintiff alleges a conspiracy between

D. Racketeering Influenced and Corruption Act state actors, i.e., the Judicial Defendants, and private parties, *9 Plaintiff cites to a variety of statutes in his proposed Plaintiff fails to allege facts to support such a claim. “To state Second Amended Complaint in what appears to be an attempt a claim against a private entity on a section 1983 conspiracy to assert a civil Racketeering Influenced and Corruption Act theory, the complaint must allege facts demonstrating that the (“RICO”) claim. private entity acted in concert with the state actor to commit an unconstitutional act.” Spear v. Town of W. Hartford, 954

“To state a RICO claim, a plaintiff must plead ‘(1) conduct, F.2d 63, 68 (2d Cir. 1992). In other words, a private actor (2) of an enterprise, (3) through a pattern (4) of racketeering acts under color of state law when the private actor “is a activity.’ ” Anatian v. Coutss Bank Ltd., 193 F.3d 85, 88 willful participant in joint activity with the State or its agents.” (2d Cir. 1999) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) ). A 1598, 26 L.Ed.2d 142 (1970) (quoting United States v. Price, plaintiff must also plead injury to business or property as 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966) ). a result of the RICO violation. See id. Plaintiff's proposed Merely conclusory allegations that a private entity acted in Second Amended Complaint fails to set forth a RICO Claim concert with a state actor does not suffice to state a Section as it does not plead an enterprise or a pattern of racketeering 1983 claim against the private entity. Spear, 954 F.2d at 68. Palumbo v. Ross, Not Reported in Fed. Supp. (2009)

2009 WL 10708951

in its current form. As stated above, amendment of the activity. Nonetheless, in light of Plaintiff's pro se status, and claims against the Judicial Defendants would be futile as in light of the fact that Defendants Rhindress and Nicolosi

these Defendants are subject to judicial immunity for their have not opposed Plaintiff's motion to amend, the Court will official actions. Additionally, any amended claims against grant Plaintiff an opportunity to amend his Complaint to add H&R Block will be stayed pending arbitration. Plaintiff's a RICO claim. Amended Complaint must be filed no later than March 23, 2009.

E. State Law Claims Plaintiff's proposed state law claims are unclear. Plaintiff asserts a “Fourth Cause of Action Against Defendants

CONCLUSION

Nicolosi and Rhindress” but does not delineate exactly what claim he seeks to assert in this fourth cause of action.

*10 For the reasons stated above, the Court GRANTS Similarly, Plaintiff asserts a “Thirteenth Cause of Action Nicolosi and Rhindress's motion to dismiss (Docket Entry Continuous Tort” but does not explain what the tort is. Finally, No. 9), GRANTS the Judicial Defendants' motion to dismiss Plaintiff asserts a “Sixteenth Cause of Action Against H&R (Docket Entry No. 10), DENIES the motion to appoint Block,” but again does not specify what this sixteenth cause

counsel (Docket Entry No. 12), GRANTS H&R Block's of action is. Plaintiff's proposed Second Amended Complaint motion to compel arbitration (Docket Entry No. 21), and skips from a fourth cause of action to a thirteenth cause of DENIES in part and GRANTS in part Plaintiff's motion for action, and then to a sixteenth cause of action. There is no fifth leave to file a Second Amended Complaint (Docket Entry No. through twelfth action, nor is there a fourteenth or fifteenth

25). action. Plaintiff may file a Second Amended Complaint against The Court cannot decipher exactly what Plaintiff's state Defendants Nicolosi, Rhindress, and H&R Block; the Second law claims are. For example, Plaintiff's thirteenth cause of

Amended Complaint must comply with Federal Rule of Civil action vaguely states that the “torts committed by defendants Procedure 8, and any new claims against H&R Block will be individually and in concert constitute continuous torts as stayed pending arbitration. The Court denies permission to defined by Federal law, caselaw and New York law and add new claims against the Judicial Defendants as any such caselaw.” Proposed Sec. Am. Comp. ¶ 88. It is unclear what

amendment would be futile. Plaintiff's Amended Complaint the facts are underlying this continous tort, and what exactly must be filed no later than March 23, 2009. the tort is. Similarly, the sixteenth cause of action against H&R Block states that H&R Block was negligent, violated Finally, Plaintiff's motion for reconsideration of the Court's Plaintiff's confidentiality, and illegally confiscated Plaintiff's

Order denying Plaintiff's Order to Show Cause (Docket Entry retirement plan. It is unclear whether Plaintiff purports to No. 35) and Plaintiff's emergency motion for disbursement assert a claim for negligence, for a breach of fiduciary duty, of funds (Docket Entry No. 43) are dismissed as moot. The or perhaps a claim for conversion, or a claim under all three Court has already determined that it cannot overturn the State state law theories. The proposed state law claims simply do

Court order of sequestration. not meet the pleading requirements of Rule 8.

SO ORDERED.

Although the state law claims in the proposed Second Amended Complaint are entirely unclear, the Court must be

All Citations considerate of Plaintiff's pro se status. Plaintiff may amend his Complaint once to assert state law claims; however, the

Not Reported in Fed. Supp., 2009 WL 10708951 claims must meet the requirements of Rule 8 and thus the proposed Second Amended Complaint cannot be submitted End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. LeClair v. Vinson, Not Reported in Fed. Supp. (2019)

2019 WL 1300547

private attorney appointed by the Court, which conduct is said to have prevented the reunification of Plaintiff and his

2019 WL 1300547

children by creating a “prejudicial” Family Court Record Only the Westlaw citation is currently available. and by covering up alleged misconduct of the maternal United States District Court, N.D. New York. grandmother, who at one point in time had physical custody Nicholas LECLAIR, individually and of the two children, and her son. See Am. Compl. as parent and natural guardian of “I.L.”

and “S.L.”, his children, Plaintiff, v.

I. INTRODUCTION

Jessica VINSON, et al., Defendants. A. Factual Statement Civ. No. 1:19-CV-28 (BKS/DJS) | Briefly stated, the Amended Complaint alleges that Plaintiff Signed 03/21/2019 is married to Emily Whipple and they are the parents of two children, I.L. and S.L., who at the times relevant, were

Attorneys and Law Firms between the ages of one and three. Am. Compl. at ¶ 3. While living in New Hampshire, Plaintiff and his wife were arrested NICHOLAS LECLAIR, Plaintiff, Pro Se, P.O. Box 300, and their children were placed in protective custody. Id. at Chestertown, NY 12817. ¶ 25. Plaintiff and his wife were thereafter released on their own recognizance after a weekend in custody. Id. at ¶ 31. Plaintiff and his family relocated to Warren County, and at

REPORT RECOMMENDATION and ORDER one point moved in with Lacey Ferguson and her son Jacob Daniel J. Stewart, U.S. Magistrate Judge in Chestertown, New York. Id. at ¶ 33. Lacey Ferguson is Ms. Whipple's mother and the grandmother of Plaintiff's children. *1 The Clerk has sent to the Court a Complaint filed by pro Id. What then follows in the Amended Complaint is a lengthy se Plaintiff Nicholas LeClair on behalf of himself and this two saga involving numerous members of Warren County Child children, designated as “I.L.” and “S.L.” Dkt. No. 1, Compl. 1 Protective Services (“CPS”), the Warren County Family On Feburary 4, 2019 Plaintiff filed an Amended Complaint as Court and its staff, and various attorneys, regarding the of right, which is now the operative pleading and is therefore grandmother's attempt to obtain custody of I.L. and S.L., and the subject of this Court's review. Dkt. No. 4., Am. Compl. Plaintiff's attempt to prevent that and regain custody of his Plaintiff has not paid the filing fee, but has submitted a Motion children. Id. at ¶ 32. to Proceed In Forma Pauperis. Dkt. No. 2. 2 1 B. Family Court Record

For ease of reference, the Court will refer to Mr. LeClair as “Plaintiff” and his children by

This Court's review of the Family Court's orders discloses as their initials as Plaintiff does in his Amended follows: First, on March 14, 2018 Judge Ted Wilson issued Complaint, although the children are currently a temporary order on consent giving the grandmother sole listed as plaintiffs. legal and physical custody of the minor children. Temporary 2 Order of Custody, Ferguson v. Whipple , File No. 11964, By separate Order, the Court has granted Plaintiff's Mar. 14, 2018 (available on file at Warren County Family IFP application. Dkt. No. 6. Court). Next, on May 7, 2018, the Family Court modified the The present Amended Complaint, submitted by a pro se prior ruling and issued a second temporary order of custody, litigant, is over 200 typed pages, and covers conduct in giving the grandmother and the children's parents joint Vermont, New Hampshire, and New York. See generally Am. legal custody, with the grandmother having primary physical Compl. Plaintiff Nicholas LeClair seeks to bring a civil rights custody. Second Temporary Order of Custody, Ferguson v. action on behalf of himself and his two children regarding Whipple , File No. 11964, May 7, 2018 (available on file conduct of members of the Warren County Department of at Warren County Family Court). A third temporary order Social Services, the Warren County Family Court, and a LeClair v. Vinson, Not Reported in Fed. Supp. (2019)

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of custody was issued on May 29, 2018, which continued representation of the two children denied Plaintiff due joint legal custody to the parents and the grandmother, but process. Id. modified the conditions of visitation of the mother and

2. Sarah Raymond . Ms. Raymond is a social worker for father. Third Temporary Order of Custody, Ferguson v. the Warren County Office of Child Protective Services. Whipple , File No. 11964, May 29, 2018 (available on file at Id. at ¶ 4. She was involved in investigating the condition Warren County Family Court). A fourth order was issued on of the children; providing information to the Family June 12, 2018, which modified conditions of visitation, but Court; and making motions to the Family Court with maintained primary physical custody of the children with the regard to the custodial status of Plaintiff's two children. grandmother. Fourth Temporary Order of Custody, Ferguson Id. She also investigated a claim that Ms. Ferguson and v. Whipple , File No. 11964, July 12, 2018 (available on file her son physically abused one of Plaintiff's children. at Warren County Family Court). A fifth order was issued E.g., id. at ¶ 382. That claim was ultimately determined on August 7, 2018, at which time legal and physical custody to be unfounded. Id. at ¶ 400. Plaintiff objects to Ms. of the children was awarded to the parents, with visitation Raymond's allegedly improper investigation, including provided to the grandmother. Fifth Temporary Order of suggestive questioning and entering Plaintiff's residence Custody, Ferguson v. Whipple , File No. 11964, Aug. 7, 2018 uninvited, as well as her advocation for separation of the (available on file at Warren County Family Court). Finally, children from the parents. E.g., id. at ¶ 451. on October 9, 2018, the Family Court issued the final order of custody which provided for legal and physical custody

3. Danielle Colon . Ms. Colon is a social worker employed of the children to Plaintiff and his wife, and changed the by Warren County and is employed in the Foster Care grandmother's visitation schedule. Final Order of Custody and Unit of Child Protective Services. Id. at ¶ 6. She is said Visitation, Ferguson v. Whipple , File No. 11964, Oct. 9, 2018 to have not properly investigated the claim of abuse (available on file at Warren County Family Court). An Appeal against I.L. Id. at ¶¶ 353-379. She is also alleged to have was filed by Mr. LeClair, but that Appeal was dismissed by fabricated evidence and falsified reports in the Family the Appellate Division, Third Judicial Department. 3 Court proceeding. E.g., id. at ¶¶ 458, 469. 4. John Lord and Tammy Breen . Mr. Lord and Ms. Breen 3 The Court takes judicial notice of the Family Court are said to be supervisors employed by Warren County orders. Trombley v. O'Neill , 929 F. Supp. 2d 81, 103 in the Child Protective Unit. They are alleged to have (N.D.N.Y. 2013) (taking judicial notice of custody created a policy of concealing the alleged abuse by the order of the Family Court); Villanueva v. City of grandmother and her son, while simultaneously using New York , 2010 WL 1654162, at *5 (S.D.N.Y. coerced and fabricated reports to implicate Mr. LeClair, Apr. 14, 2010) (“[W]e consider the court orders thereby negatively affecting the outcome of his Family and hearing transcripts from the underlying Family Court proceeding. Id. at ¶¶ 5, 8, 447. Court proceedings....”). 5. Katherine Thompson . Ms. Thompson is the Chief Court Clerk for the Warren County Family Court. Id. at ¶ C. Allegations and Claims 11. In the Amended Complaint it is alleged that, among other things, she would not accept ex parte motions

*2 The following is a summary of the named Defendants to prepared by Mr. LeClair during a time when he was the action and the conduct for which they are thought to be represented by appointed counsel. She also allegedly liable for damages: discouraged him from attempting to represent himself. 1. Jessica Vinson. Ms. Vinson is a private attorney who E.g., id. at ¶¶ 423-30. was appointed by the Family Court as the Law Guardian 6. Garfield Raymond . Mr. Raymond is a law clerk to for Mr. LeClair's two minor children. Am. Compl. at the Hon. Ted Wilson, Family Court Judge for Warren ¶¶ 7, 45. It is claimed that she violated her professional County. Id. at ¶ 12. Mr. Raymond is said to be responsibility by supporting the custody claim of the responsible for, and “controlled,” the record in the grandmother and not that of the mother and father. Family Court, and for not allowing Plaintiff to file his E.g., id. Plaintiff alleges that Ms. Vinson's improper own motions in the Family Court proceeding when he was represented by an attorney. Id. at ¶¶ 268-270, 430.

LeClair v. Vinson, Not Reported in Fed. Supp. (2019)

2019 WL 1300547

7. Terra Cahill and Whitney Hoerter . Ms. Cahill and Finally, the Fifth Count of the Amended Complaint is against Ms. Hoerter are employed as Social Workers by Warren Defendants Sarah Raymond and Terra Cahill for an alleged County in the Child Protective Service Unit. Id. at ¶¶ 9, coercive interview. Id. at ¶¶ 495-499. 10. Ms. Hoerter is said to have put false information into a service plan; acted as “muscle” to coerce Plaintiff and his wife into accepting further services; and suppressed

II. DISCUSSION

evidence of abuse and presented false evidence in the Family Court proceeding. Id. at ¶¶ 10, 153, 323, 458.

Section 1915(e) of Title 28 of the United States Code directs Defendant Cahill is said to have improperly conducted that, when a plaintiff seeks to proceed in forma pauperis , an abuse investigation; refused to accept evidence of “the court shall dismiss the case at any time if the court injury to Plaintiff's child; failed to timely interview that determines that ... the action or appeal (i) is frivolous or child; and presented false evidence to the Family Court. malicious; (ii) fails to state a claim on which relief may be Id. at ¶¶ 9, 199, 355, 367, 455, 458. granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

*3 8. Warren County . Warren County is said to be a Thus, it is a court's responsibility to determine that a plaintiff governmental entity, and the employer of all the other may properly maintain his complaint before permitting him Defendants. Id. at ¶¶ 4-13. to proceed with his action. The Amended Complaint seeks to assert five causes of action: In reviewing a pro se complaint, this Court has a duty to show liberality toward pro se litigants, see Nance v. Kelly ,

Count One of the Amended Complaint is brought against 912 F.2d 605, 606 (2d Cir. 1990), and should exercise Defendants Breen, Lord, S. Raymond, Colon, Vinson, G. “extreme caution ... in ordering sua sponte dismissal of a Raymond, Thompson, Hoerter, and Cahill; it alleges a due pro se complaint before the adverse party has been served process violation premised upon the Defendants presenting and both parties (but particularly the plaintiff) have had an false evidence against Mr. LeClair, while simultaneously opportunity to respond.” Anderson v. Coughlin , 700 F.2d 37, being negligent in their investigation of Lacey and Jacob 41 (2d Cir. 1983) (emphasis in original) (citations omitted). Ferguson for their alleged abuse of Plaintiff's children. Id. at Therefore, a court should not dismiss a complaint if the ¶ 456. According to Plaintiff, this resulted in a prejudicial plaintiff has stated “enough facts to state a claim to relief record before the Family Court, and therefore denied Plaintiff that is plausible on its face.” Bell Atl. Corp. v. Twombly , an equal right to justice. Id. at ¶ 458. Plaintiff further 550 U.S. 544, 570 (2007). “A claim has facial plausibility claims that he, his wife, and his children were not properly when the plaintiff pleads factual content that allows the represented by counsel at the Family Court proceeding. Id. at court to draw the reasonable inference that the defendant ¶ 463. is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly , 550

Count Two is a section 1983 claim based upon intentional U.S. at 556). Although the court should construe the factual infliction of emotional distress. Id. at ¶¶ 476-479. That claim allegations in the light most favorable to the plaintiff, “the is also against Defendants Breen, Lord, S. Raymond, Colon, tenet that a court must accept as true all of the allegations Vinson, G. Raymond, Thompson, Hoerter, and Cahill. contained in a complaint is inapplicable to legal conclusions.” Id. “Threadbare recitals of the elements of a cause of action,

Count Three is a section 1983 claim for abuse of civil supported by mere conclusory statements, do not suffice.” Id. process against Defendants Breen, Lord, S. Raymond, Colon, (citing Bell Atl. Corp. v. Twombly , 550 U.S. at 555). “[W]here Vinson, G. Raymond, Thompson, Hoerter, and Cahill. Id. at the well-pleaded facts do not permit the court to infer more ¶¶ 480-485. than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’–‘that the pleader is entitled

Count Four is a claim against Defendants Vinson and to relief.’ ” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2) ). Sarah Raymond for alleged violations of the Fourteenth Furthermore, Federal Rule of Civil Procedure 8 “demands Amendment right of family association, as well as a Fourth more than an unadorned, the-defendant-unlawfully-harmed- Amendment violation for an alleged illegal search, seizure, me accusation.” Ashcroft v. Iqbal , 556 U.S. at 678 (citing Bell and detention. Id. at ¶¶ 486-494. LeClair v. Vinson, Not Reported in Fed. Supp. (2019)

2019 WL 1300547

Atl. Corp. v. Twombly , 550 U.S. at 555). Thus, a pleading that, should Plaintiff be afforded the opportunity to file a that only “tenders naked assertions devoid of further factual further amended complaint, he be provided time to retain enhancement” will not suffice. Id. (internal quotation marks counsel or to request counsel be appointed for his children. 4 and alterations omitted). Allegations that “are so vague as to fail to give the defendants adequate notice of the claims

4 There is no legal right to counsel in civil cases. against them” are subject to dismissal. Sheehy v. Brown , 335 However, 28 U.S.C. § 1915 specifically provides Fed. Appx. 102, 104 (2d Cir. 2009). that a court may request an attorney to represent any person “unable to afford counsel.” 28 U.S.C.

*4 “Ordinarily, a court should not dismiss a complaint filed § 1915(e)(1). The Court cautions Plaintiff that by a pro se litigant without granting leave to amend at least while counsel may be appointed in appropriate once ‘when a liberal reading of the complaint gives any circumstances, see FED. R. CIV. P 17(c); 28 U.S.C. indication that a valid claim might be stated.’ ” Bruce v. § 1915(e)(1), counsel is not appointed in many Tompkins Cty. Dep't of Soc. Servs. ex rel. Kephart , 2015 WL cases, particularly where, as here, there is not a 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting Branum v. fully developed record from which an assessment Clark , 927 F.2d 698, 704-05 (2d Cir. 1991) ). However, where of the merits of the case can be made. See Hodge v. the grounds for dismissal offer no basis for curing the defects Police Officers , 802 F.2d 58, 61-62 (2d Cir. 1986) in the pleading, dismissal with prejudice is appropriate. Kunz (stating that, in determining whether to appoint v. Brazill , 2015 WL 792096, at *3 (N.D.N.Y. Feb. 25, 2015). counsel, the court must first determine whether the indigent's claims are likely to be of substance, and then consider a number of factors regarding the

A. Claims on Behalf of the Children nature of the case and the indigent's abilities). It is well-settled that a person who has not been admitted to practice law may not represent anyone other than himself.

B. Jurisdiction Lattanzio v. COMTA , 481 F.3d 137, 139-40 (2d Cir. 2007); see also 28 U.S.C. § 1654. Moreover, under the “prudential It is well settled that a federal court, whether trial or appellate, is obligated to notice on its own motion the basis for its standing rule” litigants are barred from “asserting the rights jurisdiction. City of Kenosha, Wisconsin v. Bruno , 412 U.S. or legal interests of others in order to obtain relief from injury to themselves.” Rajamin v. Deutsche Bank Nat. Tr. Co. , 757 507, 512 (1973); see also Alliance of Am. Ins. v. Cuomo , F.3d 79, 86 (2d Cir. 2014). While adults may represent their 854 F.2d 591, 605 (2d Cir. 1988) (challenge to subject matter jurisdiction cannot be waived); FED. R. CIV. P. 12(h)(3) own interests, they may not represent the interests of their (court may raise basis of its jurisdiction sua sponte ). When children. See Cheung v. Youth Orchestra Found. of Buffalo , 906 F.2d 59, 61 (2d Cir. 1990) (“[A] non-attorney parent must subject matter jurisdiction is lacking, dismissal is mandatory. be represented by counsel in bringing an action on behalf United States v. Griffin , 303 U.S. 226, 229 (1938); FED. R. CIV. P. 12(h)(3) (“If the court determines at any time that of his or her child” because “[t]he choice to appear pro se it lacks subject-matter jurisdiction, the court must dismiss is not a true choice for minors who under state law, cannot determine their own legal actions.”) (citing FED. R. CIV. P. the action.”). In light of Plaintiff's pro se status, the Court 17(b) ). Thus, in this case the children may not be plaintiffs on will sua sponte assess whether subject matter jurisdiction is present in this case. Kruglov v. Copart of Connecticut, Inc. , their own because they are minors, and the father, Nicholas 2018 WL 1399332, at *3 (N.D.N.Y. Jan. 16, 2018), report and LeClair, may not represent his children. See also Armatas v. Maroulleti , 484 Fed. Appx. 576 (2d Cir. 2012) (summary recommendation adopted , 2018 WL 1399337 (N.D.N.Y. Mar. order). It follows that the Plaintiff's Amended Complaint, 19, 2018). insofar as it seeks to assert claims on behalf of his two minor *5 In the present case, Plaintiff cites to violations of federal children, should be dismissed . Bullock v. DSS, CPS, Comm'r , constitutional law, and seeks redress under the civil rights 2018 WL 1115218, at *4 (N.D.N.Y. Jan. 18, 2018), report and recommendation adopted , 2018 WL 1111059 (N.D.N.Y. statute, 42 U.S.C. § 1983. The federal courts would normally Feb. 26, 2018). That dismissal, however, should be without have original jurisdiction under 28 U.S.C. § 1331 to hear such a case; however, because of the precise allegations of prejudice to allow the children, when properly represented by legal counsel, to reassert these claims. I therefore recommend LeClair v. Vinson, Not Reported in Fed. Supp. (2019)

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the claims, the Court must also consider three additional well established jurisdictional rules.

2. The Rooker-Feldman Doctrine A dismissal pursuant to the Rooker-Feldman doctrine is for 1. The Domestic Relations Exception lack of subject matter jurisdiction under Federal Rule of Under the domestic relations exception to the jurisdiction of Civil Procedure 12(b)(1). Remy v. New York State Dep't federal courts, cases involving divorce, alimony, and child of Taxation and Finance , 507 Fed. Appx. 16, 18 (2d Cir. custody remain outside federal court jurisdiction. Marshall 2013). This doctrine divests the federal court of jurisdiction to v. Marshall , 547 U.S. 293, 308 (2006). This exception is consider actions that “seek to overturn state court judgments.” based upon a policy dictating that the states have traditionally Fernandez v. Turetsky , 2014 WL 5823116, at *3 (E.D.N.Y. adjudicated marital and child custody disputes, developing Nov. 7, 2014) (citing Exxon Mobil Corp. v. Saudi Basic Indus. “competence and expertise in adjudicating such matters, Corp. , 544 U.S. 280, 284 (2005) ). The doctrine also bars the which the federal courts lack.” Thomas v. N.Y. City , 814 F. federal court from considering claims that are “inextricably Supp. 1139, 1146 (E.D.N.Y. 1993). Specifically, the Supreme intertwined” with a prior state court determination. Id. Court has recognized that “[t]he whole subject of the domestic (quoting Johnson v. Smithsonian Inst. , 189 F.3d 180, 185 (2d relations of husband and wife, parent and child, belongs to Cir. 1999) ). the laws of the States and not to the laws of the United States.” Ankenbrandt v. Richards , 504 U.S. 689, 703 (1992) *6 There are four requirements to the application of Rooker- (internal quotation marks omitted) (citation omitted); Sobel Feldman : (1) “the federal-court plaintiff must have lost v. Prudenti , 25 F. Supp. 3d 340, 353 (E.D.N.Y. 2014) (the in state court”; (2) the plaintiff's injuries must have been domestic relations exception “divests the federal courts of caused by a state court judgment; (3) the plaintiff must be power to issue divorce, alimony, and child custody decrees”) asking the federal court to review and reject the state court's (internal quotation marks omitted) (citation omitted); see also judgment; and (4) the state-court judgment must have been Hernstadt v. Hernstadt , 373 F.2d 316, 317 (2d Cir. 1967). rendered prior to filing the federal court action. Hoblock Therefore, insofar as the present pro se Complaint seeks to v. Albany Cty. Bd. of Elections , 422 F.3d 77, 85 (2d Cir. overturn a custody decision of the family court, the federal 2005). Giving a generous reading to the pro se Plaintiff's courts lack jurisdiction to hear that claim, and it should Amended Complaint, it is not clear that the Rooker-Feldman be dismissed. Amato v. McGinty , 2017 WL 4083575, at *5 doctrine applies. Indeed, in a factually similar case the Second (N.D.N.Y. Sept. 15, 2017). Circuit concluded that the plaintiff did not meet “at least

two of the Rooker-Feldman requirements: the plaintiff did This principle, however, does not appear to be a complete not lose in state court and plaintiff does not ‘invite district bar to the present pro se Complaint. As noted above, the court review and rejection’ of a state court judgment.” Green Warren County Family Court has granted Plaintiff and his v. Mattingly , 585 F.3d 97, 102 (2d Cir. 2009). As in Green , wife physical and legal custody of his two children and Plaintiff LeClair has been awarded custody of his children therefore it does not appear that the present Complaint is and therefore is not seeking to overturn a Family Court ruling, seeking to overturn the final custody order; rather, it seeks nor is he technically a state court loser. Therefore, the Court damages for constitutional violations based, inter alia , on does not perceive this doctrine as a basis to prevent the Family Court orders that have already been changed. Such a Amended Complaint from proceeding past initial review on claim does not run against the domestic relations exception. jurisdictional grounds. 5 Thomas v. New York City , 814 F. Supp. 1139, 1147 (E.D.N.Y. 1993) (“[T]he adjudication of whether the state's procedure ...

5 Of course, nothing prevents the surviving complies with the constitutional due process requirements is Defendants from presenting these issues to the squarely within this Court's federal question jurisdiction and Court by way of a motion on a more complete does not entail any investigation by the federal court into the record. fitness of the parent to care for the child or the issuance of any decree that the parent must necessarily be reunited with the child....”). For this reason, the domestic relations exception is

3. Younger Abstention not a total bar to Plaintiff's claims. LeClair v. Vinson, Not Reported in Fed. Supp. (2019)

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In Younger v. Harris , the Supreme Court held that federal independent professional judgment on behalf of the clients courts must abstain from exercising jurisdiction over claims, [she] represent[s].’ ”) (quoting Parent v. New York , 786 F. seeking declaratory or injunctive relief, that implicate Supp. 2d 516, 538 (N.D.N.Y. 2011), aff'd 485 Fed. Appx. 500 ongoing state proceedings. 401 U.S. 37, 43-44 (1971). The (2d Cir. 2012) ). Supreme Court held that when there is a parallel criminal proceeding in state court, the federal court must refrain from *7 While it is true that private actors may be proper section enjoining the state prosecution. Id. Younger abstention is 1983 defendants when they conspire with state actors, a triggered only by three categories of state court proceedings: mere conclusory allegation that a private individual acted in (1) state criminal prosecutions; (2) “civil proceedings that concert with state officials is wholly insufficient. Ciambriello are akin to criminal proceedings”; and (3) civil proceedings v. Cty. of Nassau , 292 F. 3d 307, 324 (2d Cir. 2002). In that “implicate a State's interest in enforcing the orders and the present Amended Complaint, the conclusory, vague, and judgments of its courts.” Sprint Commc'ns, Inc. v. Jacobs , 571 general allegations of conspiracy do not state a plausible U.S. 69, 72-73 (2013). In Sprint , the Court used state-initiated civil rights claim against attorney Vinson. Accordingly, it custody proceedings as an example of civil proceedings is recommended that the claims against Defendant Jessica which are akin to criminal proceedings. Id. at 79 (citing Vinson be dismissed with leave to replead allegations Moore v. Sims , 442 U.S. 415, 419-420 (1979) (state-initiated satisfying the state action requirement. proceeding to gain custody of children allegedly abused by their parents) ); see also Davis v. Baldwin , 594 Fed. Appx. 49, 51 (2d Cir. 2015) (same).

D. Absolute Judicial Immunity While it is true that Younger abstention does not apply to Judicial Immunity is applicable to conduct taken by the court claims for monetary damages, such as the present one, the as part of its judicial power and authority, and its absolute doctrine does dictate that “a stay of the action pending protection extends to all judicial acts except those performed resolution of the state proceeding may be appropriate.” in the clear absence of all jurisdiction. See Pierson v. Ray, Kirschner v. Klemons, 225 F.3d 227, 238 (2d Cir. 2000). 386 U.S. 547, 554 (1967) (“This immunity applies ... not Based upon the present record, however, the Court believes for the protection or benefit of a malicious or corrupt judge, that any issue regarding such a stay would be best left to the but for the benefit of the public, whose interest it is that District Court after issue has been joined and with the benefit the judges should be at liberty to exercise their functions of fully filed briefs. Therefore, the Court does not perceive a with independence and without fear of consequences.”). The jurisdictional basis to dismiss this entire matter upon initial Supreme Court has emphasized that the scope of a judge's review. jurisdiction must be construed broadly. Stump v. Sparkman , 435 U.S. 349, 356-57 (1978) (citing Bradley v. Fisher , 80 U.S. 335, 351 (1871) ). The present Amended Complaint contains many allegations relating to alleged misconduct or

C. State Action improper decisions by Family Court Judge Ted Wilson. See Defendant Jessica Vinson is alleged to be a private attorney Am. Compl. at ¶¶ 132, 162, 275. No doubt recognizing the who represented Plaintiff's children in the family court application of absolute judicial immunity, Plaintiff does not proceedings. See, e.g. , Am. Compl. at ¶¶ 7, 43. Based on the seek to name Judge Wilson as a defendant. However, he does allegations against her, however, she cannot be considered sue members of the Warren County Family Court staff; in to be a state actor or someone whose conduct is fairly particular Judge Wilson's law clerk, Garfield Raymond as attributable to the State, an essential prerequisite to a § 1983 well as the Chief Family Court Clerk, Katherine Thompson. claim. It is well settled that conduct of private attorneys However, the vast breadth of judicial immunity protects practicing in family court proceedings, even where they are against such allegations. It extends to the court clerk, as the paid by the State, do not rise to the level of State action. allegations relate to her judicial functions. Scott v. Dixon , 720 Koziol v. King , 2015 WL 2453481, at *11 (N.D.N.Y. May F.2d 1542, 1546 (11th Cir. 1983), cert. denied , 469 U.S. 832 22, 2015). That rationale applies to law guardians as well. Id. (1984); see Rodriguez v. Weprin , 116 F.3d 62, 66-67 (2d Cir. (“More to the point, it is equally well-settled that, ‘although 1997) (“A court's inherent power to control its docket is part appointed by the state, an attorney for the child[ ] or law of its function of resolving disputes between parties. This guardian is not a state actor because [s]he ... must exercise is a function for which judges and their supporting staff are LeClair v. Vinson, Not Reported in Fed. Supp. (2019)

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afforded absolute immunity.”). Judicial immunity also applies was insufficient evidence of abuse. Id. at 192. It turned out to the judicial law clerk, who is considered an extension of that the father continued to abuse the child, resulting in the judge at whose pleasure he serves. Oliva v. Heller , 839 permanent brain damage to Joshua. Id. at 193. Despite these F.2d 37, 40 (2d Cir. 1988). These claims Plaintiff seeks to tragic facts, the Supreme Court rejected the mother's claim assert are barred by absolute immunity and granting leave to on behalf of the child and held that the failure of Social amend would therefore be futile. See Kunz v. Brazill , 2015 Services to remove Joshua from his father's custody, despite WL 792096, at *3 (N.D.N.Y. Feb. 25, 2015). Accordingly, all the defendants' alleged knowledge of abuse, did not constitute claims against the Court Clerk Thompson and the Law Clerk a violation of the due process clause because the person G. Raymond should be dismissed with prejudice. causing injury was a private citizen, and not a state actor. Id. at

202. The Court noted that there was no affirmative obligation on the part of the state to provide protective services. Id. at 196-97. The present Amended Complaint suffers from

E. Plaintiff's Claims the same impediment insofar as it seeks to hold the Warren County Defendants liable on the theory that they should have

1. Fourteenth Amendment Due Process performed a more thorough investigation into the reported abuse and intervened to stop any further alleged abuse. The Plaintiff's first cause of action alleges, in part, that the Court recommends that this portion of the cause of action be Defendants presented false and fraudulent evidence during dismissed with prejudice . the family court proceeding. As a result, Plaintiff's familial relationship with his two children was damaged due to the interim custody orders issued by the family court

2. Intentional Infliction of Emotional providing physical custody to the children's grandmother, in Distress Under 42 U.S.C. 1983 violation of his due process rights protected by the Fourteenth Amendment to the United States Constitution. See, e.g., Kia

As his second cause of action, Plaintiff has attempted to P. v. McIntyre, 235 F.3d 749, 758 (2d Cir. 2000) (recognizing allege a section 1983 claim based upon the theory that the that substantive due process can protect against government Defendants violated his civil rights due to their “intentional interference with the right of parents to have custody of infliction of emotional distress.” Am Compl. at ¶¶ 476-479. their children). Upon review, the Court finds that this aspect Although disfavored, New York does recognize such a claim of the first cause of action in the Amended Complaint under state common law for “extreme and outrageous conduct alleges enough to warrant a responsive pleading. In so doing, intentionally or recklessly caus[ing] severe emotional distress however, the Court expresses no opinion as to whether to another.... [The] conduct [must be] so outrageous in Plaintiff's claims can withstand a properly filed dispositive character, and so extreme in degree, as to go beyond all motion. possible bounds of decency.” Murphy v. Am. Home Prods. Corp. , 58 N.Y.2d 293, 303 (1983). It is clear from the

*8 It should be noted, however, that a separate part of the Amended Complaint that Plaintiff is not seeking to pursue first cause of action in the Amended Complaint is centered such a claim under state law. Nor is there is any specific upon the allegation that the Defendants did not timely and allegation that Plaintiff complied with any notice of claim properly investigate a claim of abuse by the children's requirements that would be a condition precedent to such grandmother or her son. Am. Compl. at ¶¶ 456, 457 & 460. a state law claim. Rather, what Plaintiff seeks to do, but The failure of the Defendants to intervene and stop the alleged cannot, is to graft the state law claim requirements of an IIED abuse is said to have led to further abuse of the children, and claim on to an action under the federal civil rights statute. therefore violated Plaintiff's and the children's constitutional Stated simply, “[t]here is no recognized claim for intentional rights. Id. Such a theory of constitutional liability, however, infliction of emotional distress under section 1983.” Schisler has already been rejected by the United States Supreme v. City of Rome , 2017 WL 1418296, at *4 (N.D.N.Y. Mar. Court in the case of DeShaney v. Winnebago Cty. Dep't of 22, 2017), report and recommendation adopted , 2017 WL Soc. Servs. , 489 U.S. 189 (1989). In the DeShaney case 1411533 (N.D.N.Y. Apr. 20, 2017) (quoting Watson v. Doe , the young child at issue, Joshua, was in the custody of his 2016 WL 347339, at *32 (N.D.N.Y. Jan. 28, 2016) ). It is natural father. Social services received information that the therefore recommended that Plaintiff's second cause of action child was being abused by his father but ultimately released him back to his father's custody upon the finding that there LeClair v. Vinson, Not Reported in Fed. Supp. (2019)

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be dismissed with leave to replead as a pendent state law unlawful removal of Plaintiff's children from Plaintiff's care claim. and custody. Am. Compl. at ¶¶ 486-494. The Court finds that

the allegations in the Amended Complaint are sufficient to warrant a response as to the illegal entry claim. However, as to the seizure claim involving the children, that claim

3. Abuse of Process cannot proceed in the present action as “Fourth Amendment rights are personal rights which ... may not be asserted

“[A]buse of criminal process is actionable under section vicariously.” Alderman v. United States , 394 U.S. 165, 174 1983 as a denial of procedural due process.” Sullivan v. (1969); Southerland v. City of New York , 680 F.3d 127, 143 LaPlante , 2005 WL 1972555, at *3 (N.D.N.Y. Aug. 16, 2005) (2d Cir. 2011) (“A Fourth Amendment child-seizure claim ( citing Cook v. Sheldon , 41 F.3d 73, 80 (2d Cir. 1994) ). belongs only to the child, not to the parent ...”); Graham v. The underlying litigation in this case, however, is civil in City of New York , 869 F. Supp. 2d 337, 355 (E.D.N.Y. 2012) nature. Southerland v. Woo , 44 F. Supp. 3d 264, 282 (E.D.N.Y. (“[P]arents do not have their own Fourth Amendment right 2014), aff'd , 661 Fed. Appx. 94 (2d Cir. 2016). It is unclear to be free from a child's court-approved removal.”). As noted whether an abuse of process claim relating to a family court above, Plaintiff is proceeding pro se and therefore cannot proceeding can give rise to a cause of action under section pursue claims on behalf of his minor children. The Court 1983. See, e.g., Spear v. Town of West Hartford , 954 F.2d 63, therefore recommends that the Fourth Amendment claims of 68 (2d Cir. 1992); Cook v. Sheldon , 41 F.3d at 79-80. the children be dismissed without prejudice to be re-filed only when the children are properly represented.

Under either New York or federal law, “a malicious abuse of process claim lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without

5. Coercive interview excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.” Plaintiff's final section 1983 claim is based upon Cook v. Sheldon , 41 F.3d at 80. Without the element of allegedly coercive interviews performed by Defendants Sarah collateral purpose, no abuse of process claim is stated. Raymond and Terra Cahill. Am. Compl. at ¶¶ 495-499. In Mortimer v. City of New York , 2018 WL 1605982, at *23 Cavaez v. Martinez , the Supreme Court rejected such a claim (S.D.N.Y. Mar. 29, 2018) (“[W]hile Plaintiffs attack the asserted under the Fifth Amendment, because plaintiff “was validity of [the Family Court] proceedings, they do not state never made to be a ‘witness’ against himself in violation that either was brought for a purpose other than removal of of the Fifth Amendment's Self-Incrimination Clause because [the child] from the home.”). Here, the Amended Complaint his statements were never admitted as testimony against him alleges in conclusory terms that the actions of the Defendants in a criminal case. Nor was he ever placed under oath and in favor of the maternal grandmother were for a collateral exposed to the cruel trilemma of self-accusation, perjury purpose other than in support of her request for custody, which or contempt.” 538 U.S. 760, 767 (2003) (internal quotation was the purpose of the Family Court proceeding. See Am. marks omitted) (citations omitted). The Amended Complaint Compl. at ¶ 482. Such conclusory allegations cannot suffice likewise does not allege that any statements of Mr. LeClair to satisfy the pleading requirements. See Ashcroft v. Iqbal , 556 were used in a criminal proceeding. Courts have, however, U.S. 662, 678. Accordingly, it is recommended that Plaintiff's allowed a coercive interview claim to proceed in the family Third Cause of Action should be dismissed with leave to court context under a substantive due process violation theory. replead . Under such an analysis, defendants can be liable if they

“used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information.” Zahrey v. City

4. Fourth Amendment Violation of New York , 2009 WL 54495, at *12 (S.D.N.Y. Jan. 7, 2009) (quoting Devereaux v. Abbey , 263 F.3d 1070, 1076

*9 The fourth cause of action is limited to a claim against (9th Cir. 2001), amended on reconsideration in part , 2009 Defendant Sarah Raymond, alleging a violation of Plaintiff's WL 1024261 (S.D.N.Y. Apr. 15, 2009) ). Such a claim is Fourth Amendment rights based upon an alleged illegal entry the type asserted here. However, this theory of a substantive into the LeClair apartment; and a separate Fourth Amendment due process violation has already been asserted in the first claim against Defendant Vinson arising out of the alleged LeClair v. Vinson, Not Reported in Fed. Supp. (2019)

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cause of action of the Amended Complaint, and therefore it (ii) the date on which such misconduct occurred; (iii) the is recommended that the fifth cause of action be dismissed names of each and every individual who participated in such without prejudice as duplicative of the first. misconduct; (iv) where appropriate, the location where the

alleged misconduct occurred; and, (v) the nexus between such misconduct and Plaintiff's civil and/or constitutional rights.

F. John Doe Defendants *10 Importantly, any such pleading must be “ concise and direct .” FED. R. CIV. P. 8(d) (emphasis added). 6

“A complaint in a civil rights action is subject to dismissal against a defendant for failure to state a claim on initial review under 28 U.S.C. § 1915(e)(2)(B)(ii) where a defendant named 6

The Amended Complaint is 206 pages and in the caption is not mentioned in the factual allegations in the 499 paragraphs, and does not comply with this body of the complaint.” Cruz v. New York , 2017 WL 6021838, requirement. at *16 (N.D.N.Y. Oct. 27, 2017), report and recommendation Plaintiff's second amended complaint shall also assert claims adopted , 2017 WL 6001833 (Dec. 4, 2017) (collecting cases). against each and every defendant named in such complaint; any defendant not named in such pleading shall not be a

Plaintiff names Does 1-10 as Defendants in the caption of defendant in the instant action . Plaintiff is further cautioned his Amended Complaint. Am. Compl. at p. 1. However, he that no portion of any prior complaint shall be incorporated does not provide any allegations regarding these individuals into his second amended complaint by reference. Plaintiff in the body of the Amended Complaint. As such, the Court shall state in the single amended complaint all claims that recommends dismissing Does 1-10 without prejudice . he wishes this Court to consider as a basis for awarding Plaintiff relief herein; his failure to file such a pleading will result in dismissal of this action without further Order of

III. CONCLUSION the Court . Unless specifically stated otherwise, several of the above Finally, if Plaintiff does not obtain counsel for his children, recommendations of dismissal are based primarily on he should remove all claims asserted on behalf of his minor pleading deficiencies and not necessarily on the viability children in any further amended complaint. of the claims intended to be stated. Although the Court recommends dismissal of such claims and Defendants,

WHEREFORE , for the reasons stated herein, it is hereby alternatively, in light of Plaintiff's pro se status, the Court recommends that on some of these claims that prior to

RECOMMENDED , that Plaintiff's Amended Complaint outright dismissal of this action, the Court should afford (Dkt. No. 4) be DISMISSED WITH PREJUDICE as him the opportunity to file another amended complaint if against Defendants Katherine Thompson and Garfield he desires to proceed. Should Plaintiff be directed by the Raymond; and it is further District Judge to file a second amended complaint, I offer the following guidance. Any such second amended complaint,

RECOMMENDED , that Plaintiff's claims against Defendant which shall supersede and replace in its entirety the Vinson be DISMISSED WITHOUT PREJUDICE ; and it previous Amended Complaint filed by Plaintiff , must is further contain a caption that clearly identifies, by name, each individual that Plaintiff is suing in the present lawsuit and

RECOMMENDED , that insofar as the pro se Second must bear the case number assigned to this action. The Amended Complaint seeks to assert claims on behalf of body of Plaintiff's second amended complaint must contain his two infant children, that such claims be DISMISSED sequentially numbered paragraphs containing only one WITHOUT PREJUDICE, but shall not be repled until the act of misconduct per paragraph . Thus, if Plaintiff claims minors are properly represented by counsel; and it is further that his civil and/or constitutional rights were violated by more than one defendant, or on more than one occasion,

RECOMMENDED , that Plaintiff's first cause of action he should include a corresponding number of paragraphs alleging a Due Process violation under 42 U.S.C. § 1983 in his amended complaint for each such allegation, with against Defendants S. Raymond, Colon, Lord, Breen, Cahill, each paragraph specifying (i) the alleged act of misconduct; LeClair v. Vinson, Not Reported in Fed. Supp. (2019)

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Hoerter and Warren County, for alleged interference with

RECOMMENDED , that the Plaintiff's fifth cause of action the Plaintiff's rights to custody of his children based upon be DISMISSED WITHOUT PREJUDICE as duplicative of the use of false, fraudulent, or coerced evidence only, BE the Plaintiff's first cause of action; and it is further ALLOWED TO PROCEED , but that the due process claim alleging that the Defendants failed to affirmatively take action

*11 RECOMMENDED , that the Amended Complaint be to stop the alleged abuse by the grandmother or her son, be DISMISSED WITHOUT PREJUDICE as to Does 1-10; DISMISSED WITH PREJUDICE ; and it is further and it is further RECOMMENDED , that as to Plaintiff's second cause of RECOMMENDED , that in the event these action, his section 1983 claim for intentional infliction of recommendations are adopted by the District Judge and the emotional distress be DISMISSED WITH PREJUDICE but case is approved to proceed against Defendants S. Raymond; that his pendent state law claim be DISMISSED WITHOUT Colon; Lord; Breen; Cahill; Hoerter and Warren County, the PREJUDICE ; and it is further Clerk shall return the matter to the undersigned so that an Order can be issued regarding service by the Marshal; and it

RECOMMENDED , that Plaintiff's third cause of action is further based upon an alleged abuse of process be DISMISSED WITHOUT PREJUDICE ; and it is further

ORDERED , that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this

RECOMMENDED , that Plaintiff's fourth cause of action for action. a violation of the Fourth Amendment be allowed to proceed insofar as it alleges that Defendant S. Raymond illegally entered Plaintiff's apartment, but DISMISSED WITHOUT

All Citations PREJUDICE as to the claim that Plaintiff's children were illegally detained, which claim can only be asserted by the Not Reported in Fed. Supp., 2019 WL 1300547 children at the point that they are properly represented; and it is further End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. LeClair v. Vinson, Not Reported in Fed. Supp. (2019)

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insofar as it alleges that Defendant S. Raymond illegally entered Plaintiff's apartment, but dismissed without prejudice

2019 WL 2723478

as to the claim that Plaintiff's children were illegally detained; Only the Westlaw citation is currently available. (8) that the Plaintiff's fifth cause of action be dismissed United States District Court, N.D. New York. without prejudice as duplicative of the Plaintiff's first cause Nicholas LECLAIR and Minors I.L. and S.L., Plaintiffs, of action; and (9) that the Amended Complaint be dismissed without prejudice as to Doe Defendants 1–10. (Dkt. No. 7, at v. 26–27). Jessica VINSON, et al., Defendants. 1:19-cv-0028 (BKS/DJS) Plaintiff has filed an objection to the Report | Recommendation, objecting to Magistrate Judge Stewart's Signed 07/01/2019 recommendation that his claims against law clerk Garfield Raymond be dismissed with prejudice based on judicial Attorneys and Law Firms immunity. (Dkt. No. 8). For the reasons set forth below, the Report Recommendation is adopted in its entirety.

Plaintiff pro se: Nicholas LeClair, Chestertown, New York.

II. STANDARD

MEMORANDUM-DECISION AND ORDER This court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been Hon. Brenda K. Sannes, United States District Judge: properly preserved with a specific objection. Petersen v. Astrue , 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); 28 U.S.C.

I. INTRODUCTION

§ 636(b)(1)(C). Findings and recommendations as to which *1 Plaintiff pro se Nicholas LeClair brought this action, on there was no properly preserved objection are reviewed for behalf of himself and minors I.L. and S.L., against defendants clear error. Id. on January 7, 2019. (Dkt. Nos. 1, 4). This matter was referred to United States Magistrate Judge Daniel J. Stewart who, on March 21, 2019, issued a Report Recommendation and

III. DISCUSSION

Order recommending that: (1) Plaintiff's Amended Complaint Plaintiff's claims arise out of a contentious child custody be dismissed with prejudice as against Defendants Katherine dispute before Warren County Family Court Judge Ted Thompson and Garfield Raymond; (2) Plaintiff's claims Wilson. According to the Amended Complaint, public against Defendant Vinson be dismissed without prejudice; (3) defender Glenn Liebert was appointed to represent Plaintiff, that insofar as the Amended Complaint seeks to assert claims but Plaintiff was dissatisfied with Liebert's representation. on behalf of Plaintiff's two infant children, that such claims (Dkt. No. 4, ¶¶ 54, 63, 79–80, 98–99, 106, 131, 136, 142, 156– be dismissed without prejudice; (4) that Plaintiff's first cause 57, 178, 249). Plaintiff asserts that he “officially fired Liebert of action alleging a due process violation under 42 U.S.C. § on June 18, 2018 in an email” to the court and all parties, 1983 against Defendants S. Raymond, Colon, Lord, Breen, and began proceeding as a pro se litigant. ( Id. ¶ 179). Plaintiff Cahill, Hoerter and Warren County, for alleged interference subsequently filed a motion to dismiss Liebert. ( Id. ¶ 180). with the Plaintiff's rights to custody of his children based The Warren County Clerk, however, told Plaintiff that Judge upon the use of false, fraudulent, or coerced evidence only, Wilson “would only grant the motion if it was submitted be allowed to proceed, but that the due process claim alleging by Glenn Liebert.” ( Id. ¶ 192). Judge Wilson refused to let that the Defendants failed to affirmatively take action to stop Plaintiff represent himself pro se. ( Id. ¶¶ 239, 247). the alleged abuse by the grandmother or her son, be dismissed with prejudice; (5) that Plaintiff's second cause of action

*2 At some point, Liebert served Plaintiff with a motion to under § 1983 for intentional infliction of emotional distress be dismiss himself from the case, and Plaintiff drafted a reply, dismissed with prejudice but that his pendent state law claim agreeing with Liebert's request for dismissal. ( Id. ¶¶ 243, 245, be dismissed without prejudice; (6) that Plaintiff's third cause 249). On July 10, 2018, Plaintiff attempted to file his reply of action based upon an alleged abuse of process be dismissed with the court. (Dkt. 4, at 90). Judge Wilson's law clerk, without prejudice; (7) that Plaintiff's fourth cause of action for Garfield Raymond, however, ordered the clerk at the filing a violation of the Fourth Amendment be allowed to proceed window not to accept Plaintiff's document for filing. (Dkt. No. LeClair v. Vinson, Not Reported in Fed. Supp. (2019)

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4, at 90, ¶ 12). The clerk then “threw away the copy of the 1

The Louisana state case on which Plaintiff relies, motion in the trash and whited out the time stamp and then Palowsky v. Campbell , 249 So. 3d 945 (La. App. drew an ‘X’ on the original and returned it to” Plaintiff. (Dkt. 1 Cir. 4/11/18), is not applicable here. Federal No. 4, at 90). According to Plaintiff, his motion seeking his law of immunity applies to Plaintiff's claims attorney's dismissal was “literally thr[o]w[n] ... in the trash under 42 U.S.C. § 1983. Cornejo v. Bell , 592 right infront [sic] of him,” and the document was “never F.3d 121, 130 (2d Cir. 2010). Moreover, the allowed on the record by Warren County Family Court.” ( Id. ). Court notes that defendant Raymond's rejection of Later, at a hearing on July 16, 2018, Judge Wilson refused to Plaintiff's document for filing is not analogous to dismiss Liebert from the case. (Dkt. No. 4, ¶¶ 273–75). the intentional concealment or destruction of court records alleged in Palowsky . See Palowsky , 249

Plaintiff has asserted civil rights claims against law clerk So. 3d at 958 (finding that the plaintiff “has stated Garfield Raymond under 42 U.S.C. § 1983, alleging, inter a cause of action against [the law clerk] insofar alia , that Raymond violated Plaintiff's right to due process. as he has asserted the intentional concealment or ( Id. at 175–195). Magistrate Judge Stewart recommended that destruction of documents from the court outside of these claims be dismissed with prejudice because judicial any directive from a judge”). immunity extends to the judicial law clerk “who is considered The Court has reviewed the remainder of Magistrate Judge an extension of the judge at whose pleasure he serves.” (Dkt. Stewart's thorough Report Recommendation for clear error No. 7, at 17). and found none. Accordingly, the Court adopts the Report Recommendation in its entirety for the reasons stated therein.

Plaintiff “objects to Garfield Raymond being given absolute immunity for his conduct on July 10, 2018.” (Dkt. No. 8, at 12). Having reviewed this issue de novo , the Court agrees

IV. CONCLUSION

with Magistrate Judge Stewart's recommendation. A law clerk *3 For these reasons, it is hereby “assisting the judge in carrying out judicial functions [is] covered by the doctrine of absolute immunity.” Oliva v.

ORDERED that Magistrate Judge Stewart's Report Heller , 839 F.2d 37, 40 (2d Cir. 1988). While Plaintiff argues Recommendation (Dkt. No. 7) is ADOPTED in all respects; that judicial immunity “cannot extend to the independent and it is further act by a law clerk of intentionally destroying documents or withholding documents from the judge or jury without the

ORDERED that Plaintiff's Amended Complaint (Dkt. No. 4) judge's knowledge,” there are no such facts alleged here. (Dkt. is DISMISSED WITH PREJUDICE as against Defendants No. 8, at 3). Raymond is alleged to have rejected a document Katherine Thompson and Garfield Raymond; and it is further for filing by a litigant represented by counsel. “A court's inherent power to control its docket is part of its function

ORDERED that Plaintiff's claims against Defendant Vinson of resolving disputes between parties,” and actions by court are DISMISSED WITHOUT PREJUDICE ; and it is further staff in furtherance of docket control are part of that judicial function. Rodriguez v. Weprin , 116 F.3d 62, 66 (2d Cir. 1997);

ORDERED that insofar as the pro se Amended Complaint see, e.g. , Charles v. O'Garro , No. 18-cv-0729, 2018 WL seeks to assert claims on behalf of his two infant children, that 2926307, at *3, 2018 U.S. Dist. LEXIS 97419, at *5-6 (D. such claims are DISMISSED WITHOUT PREJUDICE , Conn. June 11, 2018) (ruling that court clerk who allegedly and shall not be repled until the minors are properly failed to file documents provided to him on the plaintiff's represented by counsel; and it is further behalf is entitled to qualified immunity); Peker v. Steglich , 324 Fed. App'x 38, 39–40 (2d Cir. 2009) (“folding, filing,

ORDERED that Plaintiff's first cause of action alleging a Due and storing” exhibits is “a task that was basic and integral to Process violation under 42 U.S.C. § 1983 against Defendants the judicial function,” and the clerk alleged to have done so S. Raymond, Colon, Lord, Breen, Cahill, Hoerter and Warren negligently is protected by judicial immunity). Raymond was County, for alleged interference with the Plaintiff's rights assisting the judge in carrying out a judicial function and was to custody of his children based upon the use of false, therefore covered by absolute immunity. Oliva , 839 F.2d at fraudulent, or coerced evidence only, are allowed to proceed, 39–40. 1 but that the due process claim alleging that the Defendants failed to affirmatively take action to stop the alleged abuse

LeClair v. Vinson, Not Reported in Fed. Supp. (2019)

2019 WL 2723478

ORDERED that the Plaintiff's fifth cause of action is by the grandmother or her son, is DISMISSED WITH DISMISSED WITHOUT PREJUDICE as duplicative of PREJUDICE ; and it is further the Plaintiff's first cause of action; and it is further ORDERED Plaintiff's § 1983 claim in his second cause ORDERED that the Amended Complaint is DISMISSED of action, for intentional infliction of emotional distress, is WITHOUT PREJUDICE as to Doe Defendants 1–10; and DISMISSED WITH PREJUDICE but with leave to replead it is further it as a pendent state law claim; and it is further ORDERED that the Clerk shall return the matter to ORDERED that Plaintiff's third cause of action based upon Magistrate Judge Stewart so that an Order can be issued an alleged abuse of process is DISMISSED WITHOUT regarding service by the Marshal; and it is further PREJUDICE ; and it is further ORDERED that the Clerk serve a copy of this Order on the ORDERED that Plaintiff's fourth cause of action for Plaintiff in accordance with the Local Rules. a violation of the Fourth Amendment is allowed to proceed insofar as it alleges that Defendant S. Raymond

IT IS SO ORDERED.

illegally entered Plaintiff's apartment, but is DISMISSED WITHOUT PREJUDICE as to the claim that Plaintiff's children were illegally detained, which claim can only be

All Citations asserted by the children once they are properly represented; and it is further Not Reported in Fed. Supp., 2019 WL 2723478 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. Harmon v. Runyon, Not Reported in F.Supp. (1997)

1997 WL 118379

Sargenti Co. Inc., 877 F.2d 170, 172 (2d Cir.1989). In Hodge v. Police Officers, 802 F.2d 58, 61–62 (2d

1997 WL 118379

Cir.1986), cert. denied, 502 U.S. 986, 112 S.Ct. 596, Only the Westlaw citation is currently available. 116 L.Ed.2d 620 (1991), the Second Circuit set forth United States District Court, S.D. New York. the factors courts should consider in deciding whether Jeanette HARMON, Plaintiff, to grant a pro se plaintiff's request for the appointment of counsel. As a threshold requirement, the court must v. decide whether the plaintiff's claim “seems likely to be of Marvin T. RUNYON, Postmaster General, substance.” Hodge, 802 F.2d at 61. If the plaintiff meets this United States Postal Service, Defendant. requirement, the court must next consider factors including: No. 96 CIV. 6080(SAS). the indigent's ability to investigate the crucial facts, | whether conflicting evidence implicating the need for Mar. 17, 1997. cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the

Attorneys and Law Firms complexity of the legal issues and any special reason in that Jeanette Harmon, pro se. case why appointment of counsel would be more likely to lead to a just determination. Aaron Katz, Asst. U.S. Atty., New York, N.Y., for Defendant. Id. at 61–62. As plaintiff is not indigent, the court is also required to consider plaintiff's efforts to obtain a lawyer. Cooper, 877 F.2d at 172, 174.

MEMORANDUM ORDER

In the instant case, plaintiff has not met the threshold requirement set forth in Hodge. Plaintiff has presented

SCHEINDLIN, District Judge. no evidence whatever to support her claims regarding defendant's allegedly improper actions. Without presenting

*1 On August 12, 1996, plaintiff filed this action pursuant any evidence to support her claims, Harmon cannot meet to 42 U.S.C. §§ 2000e to 2000e–17 and § 29 U.S.C. §§ the first requirement of the Hodge test described above. 621 to 634 for employment discrimination on the basis of Accordingly, plaintiff's application is denied. her age, race and gender. On November 21, 1996, plaintiff applied for the appointment of counsel on the grounds that she

Given the early stage of these proceedings, it is possible that lacks sufficient knowledge of the law to continue to maintain plaintiff eventually will be able to provide some evidence to her claims pro se. For the reasons set forth below, plaintiff's support her claims. Plaintiff's application is therefore denied application for appointment of counsel is denied with leave with leave to renew. If plaintiff wishes to apply again for the to renew. appointment of counsel, she must make some attempt to refer to evidence which supports her claims.

Discussion As an initial matter, there is no constitutional

SO ORDERED.

right to appointed counsel in civil cases. Moreover, due to the scarcity of volunteer attorneys, the Second Circuit has cautioned against the routine appointment All Citations of pro bono counsel in civil cases. See Cooper v. A.

Not Reported in F.Supp., 1997 WL 118379 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. Amato v. McGinty, Not Reported in Fed. Supp. (2017)

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Order. (Dkt. No. 8). District Judge D'Agostino denied the motion on the same day. (Dkt. No. 9).

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Only the Westlaw citation is currently available. A complaint must allege “ ‘enough facts to state a claim United States District Court, N.D. New York. to relief that is plausible on its face.’ ” Preacely v. City of New York , 622 Fed.Appx. 14, 15 (2d Cir. 2015) (quoting Bell Francis AMATO, et al., Plaintiffs, Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, v. 167 L.Ed.2d 929 (2007) ). A claim “ ‘has facial plausibility Judge Anthony MCGINTY, et al., Defendants. when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable

1:17-CV-593 (MAD/ATB)

for the misconduct alleged.’ ” Id. (quoting Ashcroft v. Iqbal , | 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) Signed 06/06/2017 ). A case is “frivolous” when either the factual contentions are “clearly baseless or when the claim is based upon “an

Attorneys and Law Firms indisputably meritless legal theory.” ” Id. (quoting Livingston v. Adirondack Beverage Co. , 141 F.3d 434, 437 (2d Cir. 1998)

Frances Amato, Marlboro, NY, pro se. ). A district court has inherent authority to dismiss a frivolous John Doe, pro se. action sua sponte “even when the plaintiff has paid the required filing fee.” Id. (quoting Fitzgerald v. First E. Seventh Adrienne Auchmoody, pro se. St. Tenants Corp. , 221 F.3d 362, 364 (2d Cir. 2000) ). Finally, a federal court has a continuing and independent obligation

Toni Jean Kulpinski, pro se. to examine its subject matter jurisdiction sua sponte. Robbins v. City of New York , 254 F.Supp.3d 434, 436 (E.D.N.Y. 2017) Vladimir Kulpinski, pro se. (citing Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 583, Michaela Kulpinski, pro se. 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ). See also Forde v. Hornblower New York, LLC, 243 F.Supp.3d 461, ––––, 2017

Michelle Arzola, pro se. WL 1078585, at *2 (S.D.N.Y. 2017) (citations omitted). Jane Doe, pro se. I. Complaint Adrienne J. Kerwin, Office of Attorney General, David B. This civil rights action has been brought by plaintiffs Cabaniss, Cabaniss Casey LLP, Albany, NY, for Defendants. Frances Amato, her son (“CB”), Adrienne Auchmoody (CB's grandmother), Toni Jean Kulpinski (CB's Aunt and Godmother), Vladimir Kulpinski (CB's Uncle and

ORDER and REPORT-RECOMMENDATION Godfather), Michaela Kulpinski (CB's cousin), and Michelle Arzola and her two minor children (CB's sister, niece, and

Hon. Andrew T. Baxter, U.S. Magistrate Judge nephew). (Compl. ¶¶ 1-7). *1 The Clerk has sent to the Court a civil rights complaint filed by pro se plaintiffs Francis Amato, her son “John Plaintiffs appear to challenge the conduct of defendant Ulster Doe,” Adirenne Auchmoody, Toni Jean Kulpinski, Vladimir

County Family Court Judge Anthony McGinty relative to Kulpinski, Michaela Kulpinski, Michelle Arzola, and Ms. a custody proceeding involving CB. (Compl. ¶¶ 8, 16). Arzola's two children, who have also been referred to as Jane Plaintiffs have also named Attorney Andrew Gilday, who and John Doe. (Complaint (“Compl.”) at 1). Plaintiffs have plaintiffs state is a “Public Defender,” but appears to be the paid the filing fee for this action. However, the court will

assigned counsel for Patrick Bessmer—CB's father 2 —in the conduct an initial review of the complaint. 1 Plaintiff Amato custody proceeding. (Compl. ¶ 9). Patrick Bessmer and his has also filed a motion to obtain an ECF Login and Password. alleged “paramour,” Pamela Augustine are also named as (Dkt. No. 10). defendants. (Compl. ¶¶ 11, 12). Plaintiffs have also named Amy Ingram, Esq., CB's assigned attorney for the custody 1 proceeding. The court notes that on June 2, 2017, plaintiff Amato filed a motion for a Temporary Restraining

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2 states that these three defendants intentionally inflicted

Plaintiff Amato and defendant Patrick Bessmer emotional distress by removing her child, “altering the 9 were apparently not married. year status quo from me and my entire family, violating our *2 Plaintiffs allege that defendant McGinty was “highly due process....” (Compl. ¶ 22(a) ). These three defendants abusive” to “all” plaintiffs; violated “constitutional” and also allegedly committed “Malicious Trespass,” “Abuse of “ADA rights;” caused “extreme pain, suffering, and trauma Process,” “Retaliation,” “False and Unlawful Arrest,” “Pre to “all” plaintiffs when he violated their constitutional decided trial with no evidence allowed, Obstructing Justice,” rights; endangered the welfare of “a child;” and “illegally “Child Endangerment,” and “Falsely placing mother and extended fictitious authority in CLEAR ABSENCE of subject child on a missing persons clearinghouse....” (Compl. ¶ matter jurisdiction.” ” (Compl. ¶ 18(a)-18(e) ). Plaintiff 22(b)-22(h) ). Amato then describes conduct that was allegedly directed at her. 3 (Compl. ¶ 20). Plaintiff Amato alleges that defendant

4 There appears to be no ¶ 21 in the complaint. McGinty denied access to “ ‘his court,’ ” denied plaintiff The complaint contains three “Causes of Action,” which Amato her “rights to proper serving process,” denied “any contain additional facts and various citations to case law. evidence into the court for purpose of record,” and denied (Compl. ¶¶ 30-41). The first cause of action is “First “the serious risk and harm to [her] child- who is currently and Amendment.” (Compl. ¶¶ 30-33). The second cause of action not by [her] consent in public governmental counseling for is “Parental Impairment,” and the third cause of action is “Due high risk children.” (Compl. ¶ 20). Plaintiff Amato believes Process.” (Compl. ¶¶ 34-37, 38-41). Because of the way that that the state proceedings “remain plagued by retributions the complaint is written, rather than repeating all of the facts, [sic] for plaintiff's exercise of First Amendment rights to the court will discuss the additional facts as necessary to the free speech and petition government [sic] for redress of analysis of plaintiff's complaint. grievances.” (Compl. ¶ 19). 3

The court notes that, although there are multiple II. Judicial Immunity plaintiffs, most of the defendants' alleged conduct A. Legal Standards was directed at plaintiff Amato alone. Plaintiff With minor exceptions, judges are entitled to absolute Amato appears to allege that the defendants' immunity for actions relating to the exercise of their judicial conduct toward her and CB injured the other functions. Mireles v. Waco , 502 U.S. 9, 9-10, 112 S.Ct. 286, defendants because of their family relationship to 116 L.Ed.2d 9 (1991). Judicial immunity has been created plaintiff Amato and CB. ( See Compl. ¶ 45) (stating for the public interest in having judges who are “at liberty that “no parties had a due process court hearing or to exercise their functions with independence and without trial, [and] were never served any form of order”). fear of consequences.” Huminski v. Corsones , 396 F.3d 53, Plaintiff Amato alleges that she is an “outspoken advocate,” 74 (2d Cir. 2004). Judicial immunity applies even when the working along side the District Attorney of Ulster County judge is accused of acting maliciously or corruptly. Imbler v. to compile evidence and to file numerous complaints against Pachtman , 424 U.S. 409, 419 n.12, 96 S.Ct. 984, 47 L.Ed.2d defendant McGinty. ( Id. ) Plaintiff Amato states that she has 128 (1976) (citing Pierson v. Ray , 386 U.S. 547, 554, 87 been interviewed by many local newspapers and television S.Ct. 1213, 18 L.Ed.2d 288 (1967) ). Judicial immunity is stations regarding her concerns about Ulster County Family immunity from suit, not just immunity from the assessment Court and attorney Amy Ingram. Plaintiff claims she has of damages. Mitchell v. Forsyth , 472 U.S. 511, 526, 105 S.Ct. been “very outspoken” regarding the “countless children” 2806, 86 L.Ed.2d 411 (1985). The only two circumstances endangered by the “decisions of these judges and the in which judicial immunity does not apply is when he or she negligence of these public servants and child attorneys takes action “outside” his or her judicial capacity and when mentioned [in the complaint.]” ( Id. ) the judge takes action that, although judicial in nature, is taken “in absence of jurisdiction.” Mireles , 502 U.S. at 11-12, 112

Plaintiff Amato lists a series of alleged violations which were S.Ct. 286. committed by defendant McGinty, together with defendants Ingram and Gilday, resulting in the “kidnaping” and

*3 Injunctive relief against judges is also barred “unless “endangerment of a minor.” (Compl. ¶ 22). 4 Plaintiff Amato a declaratory decree was violated or declaratory relief Amato v. McGinty, Not Reported in Fed. Supp. (2017)

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was unavailable.” Bobrowski v. Yonkers Courthouse , 777 Plaintiff attempts to argue that Judge McGinty acted “in F.Supp.2d 692, 711 (S.D.N.Y. 2011) (citing inter alia Montero absence” of jurisdiction because he took over plaintiff's v. Travis , 171 F.3d 757, 761 (2d Cir. 1999) (per curiam) ). custody case from another judge in violation of N.Y. Judiciary Although fairness and injustice may result on occasion, Law § 21. (Compl. ¶ 18). Plaintiff Amato's argument is a judicial officer must be free to act on his or her own misplaced. N.Y. Judiciary Law § 21 reads as follows: convictions in exercising the authority vested in him or her, “without apprehension of personal consequences....” Id. (citing inter alia Mireles , 502 U.S. at 10, 112 S.Ct. 286).

A judge other than a judge of the court of appeals, or of the appellate

Whether an act by a judge is a “judicial one” relates to division of the supreme court, shall not the “nature of the act itself”—whether it is a function that decide or take part in the decision of is necessarily performed by a judge. Id. (citing Stump v. a question, which was argued orally in Sparkman , 435 U.S. 349, 362, 98 S.Ct. 1099, 55 L.Ed.2d the court, when he was not present and 331 (1978) ). The parties must have dealt with the judge in sitting therein as a judge. his or her “judicial capacity.” Id. The court acts in “absence of all jurisdiction” when “it does not have any statutory or constitutional power to adjudicate the case.” Id. (citing Gross

N.Y. Jud. Law § 21. This means that a trial-level judge shall v. Rell , 585 F.3d 72, 84 (2d Cir. 2009) ). The judge will not be not decide factual issues that were tried before a different deprived of absolute immunity if he or she takes action that is judge. See People v. Hampton , 21 N.Y.3d 277, 284-85, 970 merely “in excess” of his or her authority. Id. (citing Mireles , N.Y.S.2d 716, 992 N.E.2d 1059 (2013). This applies to 502 U.S. at 12-13, 112 S.Ct. 286). situations in which the new judge is called upon to make rulings based on an evaluation of testimony that he or she did not hear. Id. at 286, 970 N.Y.S.2d 716, 992 N.E.2d 1059. It

B. Application does not apply to motions involving pure issues of law. Id. Plaintiffs have named Ulster County Family Court at 285, 970 N.Y.S.2d 716, 992 N.E.2d 1059. This also does Judge Anthony McGinty as a defendant. Plaintiff states not mean that a judge cannot take over a custody case, or any that the “defendants” have violated “clearly established other action, after another judge has recused herself. See id. laws.” (Compl. ¶ 31). Plaintiffs allege that defendant McGinty Otherwise, no judge could ever be replaced after a case has is biased, discriminates against women who are victims of begun. domestic violence, and has retaliated against plaintiff Amato because she has spoken out against him and other Family

*4 Plaintiff does not allege that there were motions pending Court judges, staff, and appointed counsel for her child. that the previous judge did not address when Judge McGinty took over the case. In fact, the complaint indicates that

Plaintiffs claim that the “federal funding law” rewards “states Judge McGinty presided over the challenged proceedings and judicial agents,” based on the “number and size of himself. (Compl. ¶ 22(f) ). Plaintiff Amato states that Judge child support orders.” (Compl. ¶ 32). Based on this “fact,” McGinty “pre-decided” the trial with no evidence allowed. plaintiffs state that a “financial bias has impaired fair and ( Id. ) Plaintiff Amato states that defendant McGinty “struck proper consideration of plaintiff's claims and defenses in the from the record anything that was pertinent to the safety of challenged proceedings.” However, all of Judge McGinty's the child and mother....” ( Id. ) Finally, plaintiff alleges that alleged “biased” or “illegal” conduct was taken in connection defendant McGinty and defendants Gilday and Ingram held a with his position as a Family Court judge presiding over “mock trial.” ( Id. ) Thus, the judge heard the factual issues in plaintiff Amato's custody case. Whether the judge's conduct question, and plaintiff has not alleged a violation of Judiciary involved issuing orders based on “funding,” allegedly biased Law § 21. decisions in favor of defendant Bessmer, or making decisions that were not in the best interest of CB, these were all actions

In any event, even if the judge acted in violation of Judiciary taken in the course of a custody proceeding in his capacity Law § 21, the appropriate remedy in state court would be as a Family Court Judge. Thus, Judge McGinty is entitled to remand to the same judge for his or her own hearing of the judicial immunity. issue and a subsequent decision. Id. at 286, 970 N.Y.S.2d 716, 992 N.E.2d 1059. Although the state court has referred

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to this statute as “jurisdictional,” it is only with respect to In dismissing the claims against Judge King, Judge Sharpe the particular decision that the judge made without hearing cited Davis v. Kushner , No. 1:14-CV-511, 2014 WL 5308142, the evidence him or herself. Id. It does not deprive the at *5 (N.D.N.Y. Oct. 16, 2014), in which the court held that a court of “jurisdiction” over custody cases. Judge McGinty family court judge was protected by judicial immunity where was still a family court judge with jurisdiction over custody the plaintiff alleged that the judge denied him custodial and matters. At worst, if Judge McGinty decided a motion or visitation rights because he was a Muslim, which violated issue improperly, he would have been acting “in excess” his civil rights. Thus, judicial immunity is not lost because of jurisdiction, and he would still be entitled to judicial plaintiff alleges that the judge's decision was unconstitutional. immunity. Plaintiffs in this case disagree with the judge's decisions.

(Compl. ¶ 29). Plaintiff Amato quotes the judge's order Plaintiffs challenge rulings by Judge McGinty and complain awarding custody to defendant Bessmer, and states that of the way that he managed his courtroom, allegedly the judge did not properly consider CB's father's drug “denying access to what the judge called ‘his court.’ dealing, drug abuse, arrests, domestic violence, and probation ” (Compl. ¶ 20). Judge McGinty allegedly placed CB in violations. ( Id. ) “governmental counseling for high risk children” without plaintiff Amato's consent, “denied evidence ... for purpose *5 Plaintiff Amato also states that defendant McGinty of record; and “falsely” placed plaintiff Amato and CB on a abused his authority when he issued an order of protection “missing persons clearinghouse.” ” (Compl. ¶¶ 20, 22(h) ). without “a trial or hearing,” and subjected plaintiff Amato Plaintiffs allege that on January 31, 2017, defendant McGinty to supervised visitation, allegedly contrary to New York law. “issued a directive to plaintiff [Amato] under penalty of (Compl. ¶ 35). Plaintiff discusses the proper procedure for imprisonment .... sixty days in county jail on a civil offense “imposing supervised visitation,” and faults the judge as well of a woman with no background at all because she wanted as the other defendants for imposing such restrictions on to protect her child from further addiction and domestic her. However, these decisions are also within the purview violence.” (Compl. ¶ 24). Plaintiff Amato alleges that the of the Family Court Judge. Even if the judge was incorrect court mocked her and endangered CB with its rulings. ( Id. ) in imposing the alleged restrictions to plaintiff Amato's Plaintiff Amato also claims that a “stay” was granted by visitation, it would not deprive Judge McGinty of judicial the Appellate Division, which ordered plaintiff's immediate immunity. release from the Ulster County Jail “false arrest and abuse of power.” ( Id. ) Plaintiff Amato clearly has issues with the Family Court

system and claims that the system has been abused by Judge Notwithstanding plaintiffs' allegations that the Judge made McGinty. The complaint also contains two paragraphs which improper adverse rulings against plaintiff Amato during the refer to “financially based custody laws” and states that custody proceeding with malice or in retaliation for her “Plaintiff” seeks an order declaring Sections 236 and 240 “exposing” abuses in Family Court, the judge was still of the Domestic Relations Law unconstitutional. (Compl. ¶¶ performing judicial functions and presiding over plaintiff's 36). Judge McGinty's application of the laws that he has custody action. As stated above, a judge does not lose his or jurisdiction to interpret does not deprive him of judicial her judicial immunity because he or she is accused of acting immunity, even if those laws were unconstitutional. The with malice or corruptly. constitutionality of state statutes is an issue separate from

judicial immunity. 5 In Koziol v. King , the plaintiff sued a variety of judges in connection with custody and support proceedings. Koziol v.

5 Although plaintiffs' complaint asks that two King , No. 6:14-CV-946, 2015 WL 2453481 (N.D.N.Y. May sections of New York Domestic Relations Law 22, 2015). In Koziol , then-Chief District Court Judge Gary be declared “unconstitutional,” the court must Sharpe dismissed claims against County Court Judge King first note that, to the extent that the claim could which related primarily to visitation and custody orders in be asserted at all, it could only be asserted matters pending before him, based on absolute immunity. Id. by plaintiff Amato because she is the only at *8. Plaintiff Koziol had also challenged that way that Judge plaintiff who has been a party to the custody King “managed his courtroom.” Id. proceedings and to whom the statute would have been applied. In addition, none of the individuals

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named as defendants are proper defendants in such Morgenstern , No. 12-CV-4870, 2013 WL 2237550, at *4 an action. Finally, in cases involving Domestic (E.D.N.Y. May 20, 2013) (citations omitted); Lewittes v. Relations issues, the court must afford the state Lobis , No. 04 Civ. 155, 2004 WL 1854082, at *11 (S.D.N.Y. court appropriate deference in light of ongoing Aug. 19, 2004) (citations omitted). In Lewittes , the court held proceedings involving the plaintiff. See Kahn that the plaintiff would have other available remedies if the v. Shaiswit , 414 F.Supp. 1064, 1068 (S.D.N.Y. child's attorney were derelict in performing his or her duties. 1976) (dismissing an action by plaintiff husband 2004 WL 1854082, at *12. This holding is supported by New in a divorce matter in which he challenged the York State court decisions holding that such guardians are constitutionality of New York Domestic Relations protected by quasi-judicial immunity. Id. at *11-12, 112 S.Ct. Law § 239). The court in Kahn cited Mendez v. 286 (citing inter alia Bluntt v. O'Connor , 291 A.D.2d 106, Heller , 530 F.2d 457 (2d Cir. 1976), in which 737 N.Y.S.2d 471 (4th Dep't), appeal denied, 98 N.Y.2d 605, Judge Oakes stated in a concurring opinion, that “ 746 N.Y.S.2d 279, 773 N.E.2d 1017 (2002) ). Thus, defendant ‘probate and domestic relations are matters which Ingram, as the attorney for CB would also be entitled to have long been recognized as invoking, at least absolute immunity, and the complaint must be dismissed as initially, interests which are predominantly of state against her. concern.’ ” Id. at 1067 (quoting Mendez , 530 F.2d at 461). Thus, to the extent that plaintiff Amato may

III. State Action be attempting to challenge the constitutionality of sections of the New York Domestic Relations Law,

A. Legal Standards the claim may be dismissed. To state a claim under section 1983, the plaintiff must allege Plaintiff Amato claims in her third cause of action that both that the defendant has violated plaintiff's rights under she was denied the right to a “rational, orderly and timely either the Constitution or laws of the United States and that court proceeding before a neutral and detached magistrate

the defendant acted “under color of state law.” Rae v. City of or judge.” (Compl. ¶ 39). This is clearly an action that is Suffolk , 693 F.Supp.2d 217, 223 (E.D.N.Y. 2010); 42 U.S.C. judicial in nature, and Judge McGinty would be entitled § 1983. to judicial immunity for any such claim. The same is true for plaintiff's state law claims of intentional and negligent

A person acts under color of state law when he or she acts infliction of emotional distress. Thus, plaintiffs' 6 complaint in his or her official capacity, “clothed with the authority of state law,” or acts under “pretense” of law by purporting to must be dismissed as against defendant McGinty. act with official power. Pleasure Island, Inc. v. City of New York , No. 12 Civ. 4699, 2013 WL 2311837, at *5-6 (E.D.N.Y.

6 Judicial immunity applies to shield Judge May 24, 2013) (quoting West v. Atkins , 487 U.S. 42, 49, 108 McGinty's liability as to all the plaintiff's, although S.Ct. 2250, 101 L.Ed.2d 40 (1988) ). The requirement that the plaintiff Amato is generally the plaintiff to whom defendant acted under “color of state law” is jurisdictional. the complaint refers. Plaintiff Amato appears to Lucas v. Riggi , No. 07-CV-6200, 2008 WL 4758706, at *2 attempt to include the other plaintiffs by stating (W.D.N.Y. Oct. 29, 2008) (citing Polk County v. Dodson , 454 that they did not get “hearings,” they do not appear U.S. 312, 315, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) ). to have been parties to the custody case. To the extent that any of the other “plaintiffs,” uncle, aunt,

Private conduct is simply beyond the reach of section 1983 “ grandmother, sister, niece and nephew had dealings ‘no matter how discriminatory or wrongful that conduct may with Judge McGinty, it was only in connection be.’ ” Id. (quoting American Mfrs. Mut. Ins. Co. v. Sullivan , with the custody action, and the judge is entitled to 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) absolute immunity no matter who the plaintiff is. ). A private party may act under color of state law if he or *6 It has also been held that law guardians are entitled she engages in conduct that constitutes willful participation to absolute quasi-judicial immunity for their actions in

in joint activity with the state. Sybalski v. Indep. Grp. Home representing children in Family Court. Davis v. Kushner , No. Living Program, Inc. , 546 F.3d 255, 257 (2d Cir. 2008) (per 1:14-CV-511, 2014 WL 5308142, at *5 (N.D.N.Y. Oct. 16, curiam). The nexus to the state must be so close as to be fairly 2014) (citing inter alia Yapi v. Kondratyeva , 340 Fed.Appx. treated as that of the state itself. Tancredi v. Metro Life Ins. 683, 685 (2d Cir. 2009) (citations omitted) ); Holland v.

Co., 316 F.3d 308, 312 (2d Cir. 2003) (citations omitted). Amato v. McGinty, Not Reported in Fed. Supp. (2017)

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certainly a “private action,” and the judge's failure to issue a protective order for CB is not alleged to

B. Application have been the result of any “conspiracy.” Plaintiffs have sued Attorneys Andrew Gilday and Amy Plaintiffs allege that defendants Gilday, Ingram, and Judge Ingram 7 as well as Patrick Bessmer and his girlfriend, McGinty “co-conspired,” violated her rights and placed CB Pamela Augustine. With respect to Attorneys Gilday and in the custody of a dangerous criminal in violation of Ingram, it is well-established that private attorneys do not “Statute.” (Compl. ¶ 22). “Merely resorting to the courts and act under color of state law even if they are court-appointed being on the winning side of a lawsuit does not rise to the attorneys, performing their traditional function as counsel. level of “conspiracy.” ” Dennis v. Sparks , 449 U.S. 24, 27, See Harmon v. New York County Dist. Attorney's Office , No. 101 S.Ct. 183, 66 L.Ed.2d 185 (1988). Defendant Gilday was 13 Civ. 1711, 2014 WL 1044310, at *9 (S.D.N.Y. March appointed to represent defendant Bessmer and had a duty to 17, 2014) (citing inter alia Brown v. Legal Aid Soc'y , 367 represent his interests in the custody proceeding. Defendant Fed.Appx. 215, 216 (2d Cir. 2010); Rodriguez v. Weprin , 116 Ingram was appointed to protect the interests of CB during F.3d 62, 65-66 (2d Cir. 1997) ). See also Licari v. Voog , 374 the proceedings. Plaintiff faults Attorney Ingram for being Fed.Appx. 230, 231 (2d Cir. 2010) (private attorneys, even ill prepared, not returning plaintiff Amato's calls, and was if they are court-appointed, and/or associated with a Legal generally an ineffective advocate for CB. Plaintiff claims Aid organization, do not act under color of state law when that defendant Ingram also “fought vehemently” in favor of representing their clients). According to plaintiffs, defendant custody for defendant Bessmer (Compl. ¶ 26). Plaintiff also Gilday is the court-appointed attorney for defendant Bessmer, states that her “adversary,” the judge, and the appointed child and defendant Ingram was appointed by the court as the attorney “ganged up” on her. (Id.) attorney for CB. Defendant Ingram's alleged incompetence and the fact 7 As stated above, defendant Ingram is entitled to that the judge ultimately ruled in defendant Bessmer's immunity. The lack of state action is an alternative favor does not indicate that the judge conspired with the basis for dismissal as against this defendant. attorneys regarding his ruling or that defendants Bessmer and

Augustine somehow conspired with the judge to obtain a *7 Defendants Bessmer (CB's father) and Augustine are favorable result. Thus, the complaint may be dismissed in clearly private parties who do not act under color of state law its entirety as against defendants Attorney Gilday, Attorney for purposes of section 1983. Although plaintiffs allege that Ingram, Bessmer and Augustine. Bessmer and Augustine “conspired” with other defendants, plaintiff states no facts to support these conclusory statements that are dispersed throughout the complaint. (Compl. ¶¶ 11,

IV. Minor Child Plaintiffs 12). Conclusory allegations of conspiracy are insufficient to state a claim under the civil rights laws. See Brown , 367

A. Legal Standards Fed.Appx. at 216 (color of state law may be established if the It is well-settled that a person who has not been admitted to individual conspired with a state actor, however, conclusory practice law may not represent anyone other than himself. 9 allegations of conspiracy are insufficient). The only state Lattanzio v. COMTA , 481 F.3d 137, 139-40 (2d Cir. 2007). actor is Judge McGinty, and there is no indication, other See also 28 U.S.C. § 1654. than the judge's decision in Bessmer's favor, how defendant Bessmer or defendant Augustine would have “conspired”

9 An limited exception exists if an individual with the judge sufficient to establish that they acted under appears for an estate in which there are no other color of state law. 8 beneficiaries or creditors. See Guest v. Hansen , 603 F.3d 15, 20 (2d Cir. 2010). The exception

8 Plaintiff alleges that she was verbally and is not applicable to this case. An exception has physically threatened by defendants Bessmer and also been established for parents representing their Augustine outside the court, and that Judge children in applications for Supplemental Security McGinty only issued an order of protection for Income (“SSI”). Machadio v. Apfel , 276 F.3d 103, plaintiff Amato and not for CB. (Compl. ¶ 29).

106-07 (2d Cir. 2002). However, the interests of The alleged attack by Bessmer and Augustine was the child and the parent were “intertwined,” and Amato v. McGinty, Not Reported in Fed. Supp. (2017)

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the Social Security regulations provided for such A. Legal Standards representation. A plaintiff bears the burden of establishing that he or she has standing to bring an action in federal court. Amidax Trading

B. Application Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011). Plaintiff's have listed various “John” or “Jane” Doe minors “To establish constitutional standing, a plaintiff must show as plaintiffs, including CB, plaintiff Amato's child. The adult (1) an injury in fact, (2) causation between the injury and plaintiffs have all signed the complaint and added their John the offensive conduct, and (3) ‘a likelihood that the injury or Jane Doe children under their names. 10 (Compl. CM/ECF will be redressed by a favorable decision.’ ” Heath v. Banks , pp. 27, 28, 32). However, while the adults may represent their No. 16-3493-cv, slip. op. at 2 (2d Cir. June 5, 2017) (quoting own interests, they may not represent the interests of their Susan B. Anthony List v. Driehous , ––– U.S. ––––, 134 S.Ct. children. See Cheung v. Youth Orchestra Found. of Buffalo , 2334, 2341, 189 L.Ed.2d 246 (2014) ). In addition, there 906 F.2d 59, 61 (2d Cir. 1990) (a non-attorney parent must be is a “prudential standing rule” which states that, normally represented by counsel in bringing an action on behalf of his litigants are barred from “asserting the rights or legal interests or her child because the choice to appear pro se is not a true of others in order to obtain relief from injury to themselves.” choice for minors who, under state law, cannot determine their Id. (quoting Rajamin v. Deutsche Bank Nat't Tr. Co. , 757 F.3d own legal actions) (citing Fed. R. Civ. P. 17(b) ). The court in 79, 86 (2014) ). Cheung further stated that it is not in the interests of minors or incompetents that they be represented by non-attorneys. Id. “Where they have claims that require adjudication, they

B. Application are entitled to trained legal assistance so their rights may In this case, plaintiff Amato has added other adult plaintiffs, be fully protected.” Id. Thus, the minor children may not

including her mother, CB's Aunt and Uncle, and CB's adult be plaintiffs on their own because they are minors, 11 and cousin. None of these individuals are parties to the custody action, and it is unclear how family that lives in Ohio, the adult plaintiffs may not represent their children. See also (Compl. ¶ 7), would have standing to assert claims in this Armatas v. Maroulleti , 484 Fed.Appx. 576 (2d Cir. 2012). case. According to the prudential standing rule, the additional plaintiffs would be barred from asserting the legal interests

10 One plaintiff has attempted to sign the complaint of either plaintiff Amato or CB even if the other plaintiffs herself as a “minor,” with her “guardian” signing claimed that they are “injured” by any of the defendants' the complaint underneath the minor's name. actions. Thus, the complaint may also be dismissed for lack (Compl. at CM/ECF p.32). of standing as against all plaintiffs other than plaintiff Amato 11 and CB. Fed. R. Civ. P. 17(e). *8 The court would also point out that although all the adult plaintiffs have signed the complaint, they did not include

VI. Rooker-Feldman , The Domestic Relations Exception, their addresses. The only specific contact information is and Younger v. Harris for plaintiff Amato. The complaint contains a description A. The Domestic Relations Exception of the various plaintiffs and generally where they live, 12 but no specific addresses have been provided. (Compl. ¶¶ 3-7). Plaintiff Amato may not act on behalf of any of the

1. Legal Standards other plaintiffs because she is not an attorney. This includes Under the domestic relations exception to the jurisdiction of accepting mail from the court and sending it to the other federal courts, cases involving divorce, alimony, and child plaintiffs. In any event, as discussed below, the adults, other custody remain outside federal court jurisdiction. Marshal v. than the plaintiff have no standing to bring this action. Marshall , 547 U.S. 293, 308, 126 S.Ct. 1735, 164 L.Ed.2d 480 (2006). This exception is based upon a policy dictating

12 Most of the plaintiffs live in New York State, but that the states have traditionally adjudicated marital and child Michelle Arzola and her two “Doe” “children” live custody disputes, developing “competence and expertise in in Ohio. (Compl. ¶ 7). adjudicating such matters, which the federal courts lack.” Thomas v. N.Y. City , 814 F.Supp. 1139, 1146 (E.D.N.Y. 1993).

V. Standing Amato v. McGinty, Not Reported in Fed. Supp. (2017)

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In Bukowski v. Spinner , No. 17-CV-845, 2017 WL 1592578 relations exception. To the extent that the custody case has (E.D.N.Y. Apr. 28, 2017), the District Court dismissed a been concluded, the court will also discuss alternate bases for fee-paid action, sua sponte which raised very similar claims dismissal. to the case herein. In Bukowski , the plaintiff sought to challenge rulings made in an underlying state court child

B. Rooker-Feldman custody case, 13 naming the Judge, law guardian, and County Attorney, among other defendants. Id. Plaintiff in Bukowski criticized the Judge, stated that the law guardian was “not 1. Legal Standards troubled” by the judge's actions, criticized the caseworkers,

A dismissal pursuant to the Rooker Feldman 14 doctrine is and claimed that she was subjected her to “unfounded” for lack of subject matter jurisdiction under Fed. R. Civ. charges. Id. at *1. P. 12(b)(1). Remy v. New York State Dep't of Taxation and Finance , 507 Fed.Appx. 16, 18 (2d Cir. 2013). This doctrine 13 One of the rulings granted sole custody to the father divests the federal court of jurisdiction to consider actions that of the child. 2017 WL 1592578, at *1. seek to overturn state court judgments. Fernandez v. Turetsky , No. 12-CV-4092, 2014 WL 5823116, at *3 (E.D.N.Y. Nov. 7, 2014) (citing Exxon Mobil Corp. v. Saudi Basic Indus.

2. Application Corp. , 544 U.S. 280, 284 (2005) ). The doctrine also bars the *9 Plaintiffs in this case are making the same claims federal court from considering claims that are “inextricably and challenging similar actions by the state court judge intertwined” with a prior state court determination. Id. and the state court attorneys who appeared in plaintiff (quoting Johnson v. Smithsonian Inst. , 189 F.3d 180, 185 (2d Amato's custody case. The plaintiff in Bukowski also raised Cir. 1999) ). “constitutional” issues, but the court recognized that the allegations essentially challenged a state domestic relations 14

District of Columbia Court of Appeals v. Feldman , matter, and were therefore, outside the federal court's 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 jurisdiction. 2017 WL 1592578, at *3 (citations omitted). (1983) and Rooker v. Fidelity Trust Co. , 263 U.S. A review of plaintiffs' request for relief in this case shows 413, 414 17, 44 S.Ct. 149, 68 L.Ed. 362 (1923). that they are essentially challenging the state court's action. There are four requirements to the application of Rooker In addition to substantial monetary damages, plaintiffs Feldman : (1) the federal court plaintiff must have lost in state seek “immediate return” of CB, together with a judgment court; (2) the plaintiff's injuries must have been caused by “declaring the orders, edicts, and processes described in the state court judgment; (3) the plaintiff must be asking the this Complaint unconstitutional with an order permanently federal court to review and reject the state court's judgment; enjoining the enforcement of these orders.” (Compl. at CM/ and (4) the judgment must have been rendered prior to filing ECF p. 26). the federal court action. Bukowski , 2017 WL 1592578, at *3 (citing Hoblock v. Albany Cty. Bd. of Elections , 422 F.3d 77,

In order to return custody of CB to plaintiff, or to “enjoin” 85 (2d Cir. 2005) ). the state court's orders, this court would have to re-determine the judge's decision in the custody matter. This would also involve resolving factual disputes regarding custody and visitation. This court is divested of jurisdiction to make such

2. Application determinations. See also Ankenbrandt v. Richards , 504 U.S. As Judge D'Agostino stated in her June 2, 2017 decision, 689, 703, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992); Hernstadt under the Rooker Feldman doctrine, the district court also v. Hernstadt , 373 F.2d 316, 317 (2d Cir. 1967) (it has been does not have subject matter jurisdiction over claims that uniformly held that federal courts do not adjudicate cases effectively challenge state court judgments in general. (Dkt. involving the custody of minors and rights of visitation); No. 9) (quoting Arena v. Dep't of Soc. Servs. of Nassau Cty. , Sobel v. Prudenti , 25 F.Supp.3d 340, 353 (E.D.N.Y. 2014) 216 F.Supp.2d 146, 151 (E.D.N.Y. 2002) ). Although it is (the domestic relations exception “divests the federal courts of unclear whether the plaintiff's custody case is finally decided power to issue divorce, alimony, and child custody decrees”). because plaintiff claims that the Judge scheduled a proceeding Thus, the case may be dismissed based on the domestic Amato v. McGinty, Not Reported in Fed. Supp. (2017)

2017 WL 9487185

in “October” notwithstanding that the witnesses were ready 18

Pennzoil Co. v. Texaco, Inc. , 481 U.S. 1, 107 S.Ct. to testify. 15 (Dkt. No. 8 at CM/ECF p.4). To the extent that 1519, 95 L.Ed.2d 1 (1987). plaintiff's custody case is terminated, or to the extent that In Sprint Communications, Inc. v. Jacobs , 571 U.S. 69, 134 plaintiff seeks review of decisions that the judge has already S.Ct. 584, 588, 187 L.Ed.2d 505 (2013), the Court revisited issued, this complaint is barred by Rooker Feldman because the analysis required to invoke abstention under Younger. In plaintiff is essentially challenging the state court's decision. Sprint , the Court rejected the three-part test in favor of a Plaintiff lost in state court, her injuries are allegedly causes by “categorical approach.” Mir v. Shah , 569 Fed.Appx. 48, 51 the state court judgment that she seeks to overturn, plaintiff (2d Cir. 2014) (citing Sprint , 134 S.Ct. at 591-94). Younger is asking this court to overturn Judge McGinty's rulings, and abstention is triggered only by three categories of state it appears that custody was awarded to Mr. Bessmer prior to court proceedings: (1) state criminal prosecutions; (2) civil plaintiff bringing this action. Thus, all the requirements for proceedings that are akin to criminal proceedings; and (3) Rooker Feldman have been met with respect to orders that civil proceedings that “implicate a State's interest in enforcing have already been issued by Judge McGinty. the orders and judgments of its courts.” Id. (quoting Sprint , 134 S.Ct. at 588). In Sprint , the Court used state-initiated

15 Plaintiff Amato does allege that custody has custody proceedings in its analysis 19 as an example of civil already been awarded to defendant Bessmer.

proceedings which are akin to criminal proceedings. 134 S.Ct. at 592 (citing Moore v. Sims , 442 U.S. 415, 419–420, 99 S.Ct.

C. Younger v. Harris 16 2371, 60 L.Ed.2d 994 (1979) (state-initiated proceeding to 16 gain custody of children allegedly abused by their parents) ).

401 U.S. 37 (1971).

See also Davis v. Baldwin , 594 Fed.Appx. 49, 51 (2d Cir. 2015) (same).

1. Legal Standards 19 Sprint did not involve custody proceedings. *10 In Younger v. Harris , the Supreme Court held that “If the federal court action falls into one of the three categories federal courts must abstain from exercising jurisdiction listed above, the court may then consider additional factors, over claims, seeking declaratory or injunctive relief, that such as “whether the state interest is vital and whether the implicate ongoing state proceedings. 401 U.S. at 43-44. The state proceeding affords an adequate opportunity to raise the Supreme Court held that when there is a parallel criminal constitutional claims.” ” Torres v. Gaines , 130 F.Supp.3d proceeding in state court, the federal court must refrain from

630, 636 (D. Conn. 2015). In Judge D'Agostino's decision, enjoining the state prosecution. Id. Younger abstention has she stated that “several courts in the Circuit have held that been expanded to include state civil proceedings which are Younger abstention applies in similar circumstances as this akin to criminal prosecutions 17 and state court proceedings case.” (Dkt. No. 9 at 5) (citing Graham v. N.Y. Ctr. for which implicate a state's interest in enforcing the orders and Interpersonal Dev. , No. 15-CV-459, 456 S.W.3d 545, 2015 judgments of its courts. 18 Until 2013, the abstention analysis WL 1120121, at *2-3 (E.D.N.Y. Mar. 12, 2015) (holding that involved determining (1) whether there was an ongoing plaintiff's claim for injunctive relief was barred by Younger state proceeding; (2) whether an important state interest when the plaintiff sought to challenge an ongoing family court was implicated; and (3) whether the plaintiff had an avenue custody proceeding) ). open for review of constitutional claims in state court. See Middlesex County Ethics Comm. v. Garden State Bar Assn. ,

In Graham , the court stated that “ ‘there can be no doubt that 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); a custody dispute ... raises important state interests.’ ” 2015 Parent v. New York , 485 Fed.Appx. 500, 503 (2d Cir. 2012) WL 1120121, at *3, 456 S.W.3d 545 (quoting Reinhardt v. (quoting Younger, supra; Liberty Mut. Ins. Co. v. Hurlbut , 585 Com. of Mass. Dep't of Social Servs. , 715 F.Supp. 1253, 1256 F.3d 639, 647 (2d Cir. 1997) ). (S.D.N.Y. 1989) ). In addition, the court held that plaintiff was able to raise any potential constitutional claims in state

17 Huffman v. Pursue, Ltd. , 420 U.S. 592, 95 S.Ct. court. Id. Therefore, the court applied Younger to dismiss 1200, 43 L.Ed.2d 482 (1975). plaintiff's claims for injunctive relief. The same is true in this

action to the extent that any of the issues upon which plaintiffs base their action are still pending or are to be tried in the

Amato v. McGinty, Not Reported in Fed. Supp. (2017)

2017 WL 9487185

future. 20 In fact, plaintiff Amato has cited a quote from a might in certain circumstances be entitled to challenge the

constitutionality of laws as they applied to her without letter, signed by Judge McGinty, telling plaintiff Amato that, running afoul of the domestic relations exception, Younger , if she is unhappy with the court's decision, her recourse is an or Rooker Feldman , the other plaintiff's do not have standing appeal of that decision. 21 (Compl. ¶ 41). to assert this claim because the laws have not been applied to them, and plaintiff Amato has not named any defendants

20 Younger does not apply to monetary damages, thus, that would be able to afford her the relief that she seeks with the dismissal of plaintiff's damage claims would be respect to the sections of the law that she appears to challenge. governed by the domestic relations exception and In addition, it is likely that even a proper challenge to the not Younger. statute would have to be brought first in state court. See Kahn, supra. The court also points out that this claim does not appear

21 The letter is referring to a “decision” from 2016. in plaintiff's “relief” section. Thus, the court will recommend It is unclear what that decision may have been or dismissing this claim without prejudice to filing an amended whether it was the judge's actual custody decision. complaint with only plaintiff Amato as the plaintiff, against the proper defendant, at the proper time, and in the appropriate

VII. Opportunity to Amend forum. 22 A. Legal Standards 22 *11 Generally, when the court dismisses a pro se complaint Although plaintiff also mentions the Family Court sua sponte , the court should afford the plaintiff the Act in paragraph 36 of her complaint, she does not opportunity to amend at least once, however, leave to re-plead indicate which sections of the Act she believes to may be denied where any amendment would be futile. Ruffolo be unconstitutional. v. Oppenheimer & Co. , 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with plaintiff's causes of

VIII. Motion to Obtain ECF Login and Password action is substantive such that better pleading will not cure it. Because this court is recommending dismissal at this time, Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. 2000) (citation the court will deny plaintiff's motion to obtain ECF privileges omitted). without prejudice. WHEREFORE , based on the findings above, it is

B. Application Because Judge McGinty and Attorney Ingram are entitled to RECOMMENDED , that plaintiffs' complaint be dismissed absolute immunity, it would be futile to allow the plaintiffs in its entirety WITH PREJUDICE as against defendants to amend their complaint. No amendment will cure this McGinty, Ingram, Gilday, Bessmer, and Augustine, and it is deficiency. Defendant Gilday does not act under color of state law, and plaintiffs have made no sufficient allegations of a

RECOMMENDED , that plaintiff Amato's complaint be conspiracy with Judge McGinty that would be sufficient to dismissed WITHOUT PREJUDICE only with respect to establish state action by defendant Gilday. Thus, the court any claim challenging the constitutionality of New York also recommends that no amendment be allowed. Defendants Domestic Relations Law, and only against the proper Bessmer and Augustine also do not act under color of defendant for such challenge, at the proper time for such state law, and defendant Bessmer is simply plaintiff Amato's challenge, and in the proper forum, as discussed above, and adversary in the custody dispute. Defendant Augustine does it is not appear to be involved in the litigation at all. Thus, no amendment would change this court's recommendation with

*12 ORDERED , that plaintiff Amato's motion to obtain respect to defendants Bessmer and Augustine. ECF privileges (Dkt. No. 10) is DENIED , and it is The court notes that, as stated above, in two of the ORDERED , that the Clerk serve a copy of this order on paragraphs of her complaint, plaintiff appears to state that plaintiffs to the extent that addresses are available. New York Domestic Relations Law §§ 236 and 240 are “unconstitutional,” but her reasoning for this allegations is

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the completely unclear. (Compl. ¶ 36). While plaintiff Amato parties have fourteen (14) days within which to file written Amato v. McGinty, Not Reported in Fed. Supp. (2017)

2017 WL 9487185

Health and Human Services , 892 F.2d 15 (2d Cir. 1989) ); 28 objections to the foregoing report. Such objections shall be U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72. filed with the Clerk of the Court. FAILURE TO OBJECT

TO THIS REPORT WITHIN FOURTEEN DAYS WILL

PRECLUDE APPELLATE REVIEW. Roldan v. Racette ,

All Citations 984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary of Not Reported in Fed. Supp., 2017 WL 9487185 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

NOTES

[9] The Clerk shall also provide plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders , 557 F.3d 76 (2d Cir. 2009) (per curiam). 11

Case Details

Case Name: Griffin v. Syracuse City School District

Court Name: District Court, N.D. New York

Date Published: Sep 16, 2024

Docket Number: 5:24-cv-01044

Court Abbreviation: N.D.N.Y.