Harris v. Administration for Children Services

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK LATOYA HARRIS, Plaintiff, 20-CV-6832 (LLS) -against- ORDER OF DISMISSAL ADMINISTRATION FOR CHILDREN SERVICES, Defendants. LOUIS L. STANTON, United States District Judge: Plaintiff, appearing pro se, brings this action allegingthat the New York City Administration for Children’s Services (ACS) wrongfully accused her of neglecting her son and allowed him to be abused while under the agency’s care. By order dated September 30, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is,in forma pauperis (IFP).For the following reasons, the complaint is dismissedwith leave to replead within thirty days of the date of this order. STANDARD OF REVIEW The Court must dismiss anIFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction.See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude”in pro se cases,id. at 475 (citation omitted), has its limits – to state a claim,pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.

The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S.at 555.After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible –not merely possible –that the pleader is

entitled to relief.Id. BACKGROUND Plaintiff brings this action against ACS,alleging that the agency took her son away and then allowed him to be abused. Sheasserts that the events giving rise to her claims occurred from 2005 to 2009. Plaintiff provides the following statement as the facts of her case: Within 2005 ACS was said to take my child away, and I was said to have neglect my child. During this time this was not what was happening, and I can prove this case of what happened to me by a person name Raheem Thomas 292 Ralph Ave #5A Bklyn NY 11233. He is a person Im asking the courts to speak to in reference to my case. He known of me for many years, and I would like the courts to speak with him because of the neglect charge that’s not true. I was not abusing my child. Also during beingin the care of ACS my son has said in 2017 to me and the Board of Education that he was abused while in care, and I would like to bring a case against ACS for the abuse my child sustained while in/under ACS care. I have medical reports from my doctor and can explain my case with Raheem Thomas. Please assist me with this case. (ECF No. 2, at 5-6.) Plaintiff further asserts that she suffered distress from the neglect proceedings and what she characterizes as the rape of her son. She seeks “continuing payments to [her] for wrongly accusing [her] of neglect of [her] child and abused from [sic] him while in care.” (Id. at 6.) DISCUSSION Plaintiff’s assertions against ACSarise out of child neglect proceedings,the removal of her son from her care, and the abuses he suffered while under the agency’s care.Because she claims thatACSviolated her federal constitutional and statutory rights, the Court construes her claims as being brought under 42 U.S.C. §1983. To state a claim under §1983, a plaintiff must

allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988). Plaintiff’s claims are untimely. The statute of limitations for claims under §1983 is found in the “general or residual [state] statute [of limitations] for personal injury actions,” Owens v. Okure, 488 U.S. 235, 249-50 (1989). In New York, that period is three years.See Pearl v. City of Long Beach, 296 F.3d 76, 79-80 (2d Cir. 2002). Claims under §1983generally accrue when a plaintiff knows or has reason to know of the injury that is the basis of the claim. Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013). Plaintiff brings the complaint asserting claims arising from conduct that occurred from

2005 to2009.But she filed this action on August 21, 2020, more than eleven years after the alleged violations occurred. Because the failure to file an action within the limitations period is an affirmative defense, a plaintiff is generally not required to plead that the case is timely filed. See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007). Dismissal is appropriate, however, where the existence of an affirmative defense, such as the statute of limitations, is plain from the face of the pleading. See Waltersv. Indus. and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011); see

alsoPino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal under 28 U.S.C. §1915(d) on statute of limitations grounds). A district court should grant notice and opportunity to be heard, however, before dismissing a complaint sua sponteon statute of limitations grounds. Abbas, 480 F.3d at 640. Here, it is clear that Plaintiff filed her claims well beyond the three-year statute of limitations for §1983 claims. In addition, she fails to provide sufficient facts to state claims on which relief may be granted. The Court therefore dismisses the complaint. But as provided below, Plaintiff is granted thirty days’ leave to replead. LEAVE TO AMEND Plaintiff proceeds in this matter without the benefit of an attorney. District courts

generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). The Court is doubtful that Plaintiff can cure the deficiencies inthe complaint, but because amendment might not be futile, the Court grants Plaintiff thirty days’ leave to replead her claims. If Plaintiff submits an amended complaint, she must pleadany facts showing that equitable tolling appliesto her untimely claims. She must also provide facts statinga claim for relief. Plaintiff must tell the Court: who violated her federally protected rights; what facts show that her federally protected rights were violated; when such violationoccurred; where such violationoccurred; and why she is entitled to relief. She must also name as defendants the

individuals who violated her rights. Should Plaintiff choose to file an amended complaint, the Court strongly encourages her to ask for assistance from someone who can help her organize her thoughts and claims.If Plaintiff needs legal advice related to this matter, she may contact the New York Legal Assistance Group’s Legal Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this Court. A copy of a flyer with details of the clinic is attached to this order. CONCLUSION The Clerk of Court is directed to mail a copyof this order to Plaintiff and note service on

the docket. The complaint is dismissed for failure to state a claim for relief. 28 U.SC. §1915(e)(2)(B)(ii). All other pending matters are terminated. Plaintiff is granted thirty days’ leave to file an amended complaint that addresses the deficiencies discussed in this order. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within thirtydays of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 20-CV-6832(LLS). An Amended Complaint form is attached to this order. If Plaintiff fails to file an amended complaint, the Court will enter judgment in this case, and it will be closed. SO ORDERED. Dated: October 7, 2020 New York, New York Louis L. Stanton US.D.J.

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New York HE Legal Assistance Group

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CVE TT a (clu ber if has b Write the full name of each plaintiff. evened) me eNews

against AMENDED

□ COMPLAINT ee Do you want a jury trial? LlYes ULINo

Write the full name of each defendant. If you need more space, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section Il.

NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.

Rev. 2/10/17

I. BASIS FOR JURISDICTION Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may be a citizen of the same State as any plaintiff. What is the basis for federal-court jurisdiction in your case? [] Federal Question L] Diversity of Citizenship A. If you checked Federal Question Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship 1. Citizenship of the parties Of what State is each party a citizen? The plaintiff , ,is a citizen of the State of (Plaintiff's name)

(State in which the person resides and intends to remain.) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of

If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff.

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If the defendant is an individual:

The defendant, , is a citizen of the State of (Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of . If the defendant is a corporation: The defendant, , is incorporated under the laws of the State of and has its principal place of business in the State of or is incorporated under the laws of (foreign state) and has its principal place of business in . If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant.

II. PARTIES A. Plaintiff Information Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available) B. Defendant Information To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are the same as those listed in the caption. Attach additional pages if needed. Defendant 1: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 2: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 3: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 4: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code III. STATEMENT OF CLAIM Place(s) of occurrence:

Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and what each defendant personally did or failed to do that harmed you. Attach additional pages if needed. INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

IV. RELIEF State briefly what money damages or other relief you want the court to order. V. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff's Signature

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: OYes [LINo If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.

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