UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SISTER E. JONES-BEY, Plaintiff, 20-CV-9171 (LLS) -against- ORDER TO AMEND DANA LA CASSE, et al., Defendants. LOUIS L. STANTON, United States District Judge: Plaintiff Sister E. Jones-Bey, appearing pro se, brings this action under the Court’s federal question jurisdiction, alleging that Defendants violated her constitutional rights. By order dated November 4, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order. STANDARD OF REVIEW The Court must dismiss an in forma pauperis 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, who resides in the Bronx, filed this complaint against the City of New York; Dana La Casse, a Child Protection Specialist with the New York City Administration for Children’s Services (ACS); and Vicknell Powell, Plaintiff’s landlord. (ECF 2-1 at 10.) The complaint contains the following allegations. On September 28, 2020, an unidentified person lodged a “false report” with the New York State Office of Children and Family Services Registry, prompting La Casse to come to Plaintiff’s apartment and attempt to enter and interrogate her and her children without permission or a warrant. La Casse “held a meeting about [Plaintiff’s] tribe without [her] knowledge or consent,” and filed a “fraudulent” petition in New York State Family Court, Bronx County, seeking the removal of Plaintiff’s children from her custody. (ECF 2 at 17.) It is not clear from the complaint whether Plaintiff’s children were actually removed. According to Plaintiff, ACS has been “harassing” her “for 11 years.” (Id. at 6.) Powell, Plaintiff’s landlord, whom Plaintiff describes as a “coconspirator” of La Casse,
“intercepted” Plaintiff’s mail, “took a package that belonged” to Plaintiff, and “presented fraud” to “several city and state officials” to intimidate and harass her and to “force” her and her children to leave their apartment. (Id. ¶ 4.) Attached to the complaint are documents showing that Powell is attempting to evict Plaintiff and to obtain back rent that Plaintiff allegedly owes. (Id. at 17-22.) Plaintiff seeks money damages and the imposition of “penalties” on Defendants.1 (ECF 2-2 at 8.) DISCUSSION A. Claims Arising from Family Court Proceedings Plaintiff’s assertions against the City of New York and La Casse appear to arise out of family court proceedings and possible removal of Plaintiff’s children from her care. The Court construes these claims as arising 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).
1 Plaintiff mentions a false arrest case that she has pending, under a different name, in the United States District Court for the Eastern District of New York. See Bey v. Antoine, 19-CV- 1877 (E.D.N.Y. filed Mar. 27, 2019). That case does not appear to bear any relationship to this one. Substantive Due Process Plaintiff’s assertions may implicate the substantive component of the Due Process Clause of the Fourteenth Amendment. Substantive due process “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Parents have a “constitutionally protected liberty interest
in the care, custody and management of their children,” and can bring a substantive due process claim to challenge a child’s removal. Southerland v. City of N.Y., 680 F.3d 127, 142 (2d Cir. 2011). But the right to family integrity “‘does not automatically override the sometimes competing’ government interest in protecting children, [ ] particularly from harm caused by the parents themselves.” E.D. ex rel. V.D. v. Tuffarelli, 692 F. Supp. 2d 347, 360 (S.D.N.Y. 2010) (quoting Kia P. v. McIntyre, 235 F.3d 749, 758 (2d Cir. 2000)). To establish a substantive due process claim with respect to the removal of a child, “a plaintiff must demonstrate that the state action was so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Southerland, 680 F.3d at 151 (internal quotation marks and citation omitted). “[M]ere failure to meet local or professional standards, without
more, should not generally be elevated to the status of constitutional violation,” Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 106 (2d Cir. 1999); see, e.g., Kia P., 235 F.3d at 759 (caseworkers violate due process where their actions lack “any reasonable justification in the service of a legitimate governmental objective”). Thus, courts have imposed liability only for “‘obvious extremes,’” such as knowingly making false statements, manufacturing evidence, or ignoring exculpatory information. Tuffarelli, 692 F. Supp. 2d at 360 (quoting Wilkinson, 182 F.3d at 104). Plaintiff does not allege any facts suggesting that ACS violated her substantive due process rights. She asserts that case worker La Casse responded to a report to the state registry by coming to Plaintiff’s home, attempting to speak with Plaintiff and her children, and later filing a petition in family court. Plaintiff asserts that the report was “false” and the petition was “fraudulent,” but she does not provide any other details about the allegations in the petition and exactly what occurred. The facts provided in the complaint do not describe “shocking, arbitrary, or egregious” conduct sufficient to state a substantive due process claim.2
In addition, it is not clear from the complaint whether Plaintiff’s children were removed from her custody, and Plaintiff may be arguing that she should not have been subjected to an investigation or court proceedings. But courts have held that a parent “has no right to be free from ACS investigation.” Watkins-El v. Dep’t of Educ., No. 16-CV-2256, 2016 WL 5867048, at *4 (E.D.N.Y. Oct. 7, 2016); see, e.g., Phillips, 894 F. Supp. 2d at 378-79 (quoting Doe v. Heck, 327 F.3d 492, 520 (7th Cir. 2003)); Villanueva v. City of New York, No. 08-CV-8793, 2010 WL 1654162, at *7 (S.D.N.Y. Apr. 14, 2010). Procedural Due Process The Court also examines whether the complaint could be liberally construed as asserting that Defendants violated Plaintiff’s procedural due process rights guaranteed by the Fourteenth
Amendment. “The two threshold questions in any § 1983 claim for denial of procedural due process are whether the plaintiff possessed a liberty or property interest protected by the United States Constitution or federal statutes and, if so, what process was due before plaintiff could be deprived of that interest.” Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995) (citing Logan v.
2 Plaintiff is alerted that abstention doctrines may prevent this Court from intervening in family court proceedings or reviewing family court orders. See Sprint Commc’n, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013); Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005); Deem v. Deem 941 F.3d 618, 621 (2d Cir. Oct. 30, 2019) (citing Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1859)). Because it is not clear if Plaintiff is seeking such relief, the Court will consider whether any of those doctrines apply after Plaintiff amends her complaint. Zimmerman Brush Co., 455 U.S. 422, 428 (1982)); see also Hynes v. Squillance, 143 F.3d 653, 658 (2d Cir. 1998) (To state a due process claim, a plaintiff must “demonstrate that he possessed a protected liberty or property interest, and that he was deprived of that interest without due process of law.”). “The fundamental requisite of due process of law is the opportunity to be heard
. . . at a meaningful time and in a meaningful manner.” Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (citations omitted). Where the government deprives a plaintiff of some interest pursuant to an established procedure,3 due process is generally satisfied so long as some form of hearing is provided before the individual is finally deprived of the property interest. Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011). By contrast, a government employee’s random and unauthorized act does not violate due process if a meaningful postdeprivation remedy is available; when the government cannot predict precisely when the loss will occur, it would be impossible to provide a meaningful hearing before the deprivation of property. See Hudson v. Palmer, 468 U.S. 517, 533 (1986); Parratt v. Taylor, 451 U.S. 527, 540-43 (1981), overruled in part on other grounds by Daniels v.
Williams, 474 U.S. 327, 220-31 (1986); see also Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 882 (2d Cir. 1996) (“[T]here is no constitutional violation (and no available § 1983 action) when there is an adequate state postdeprivation procedure to remedy a random, arbitrary deprivation of property or liberty.”).
3 Conduct is undertaken in accordance with established state procedures when, for example, it is “pursuant to a statute, code, regulation, or custom” or is the result of a decision made by a high-ranking official with “final authority over significant matters,” see Viteritti v. Inc. Vill. of Bayville, 918 F. Supp. 2d 126, 134 (E.D.N.Y. 2013) (citing Chase Grp. Alliance LLC v. City of New York Dep’t of Fin., 620 F.3d 146, 152 n.3 (2d Cir. 2010)). Plaintiff does not allege any facts concerning the proceedings against her, much less that Defendants deprived her of a liberty or property interest without due process of law in those proceedings. Plaintiff thus fails to state a claim on which relief may be granted. City of New York When a plaintiff sues a municipality under § 1983, it is not enough for the plaintiff to
allege that one of the municipality’s employees or agents engaged in some wrongdoing. The plaintiff must show that the municipality itself caused the violation of the plaintiff’ s rights. See Connick v. Thompson, 563 U.S. 51 (2011) (“A municipality or other local government may be liable under this section [1983] if the governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such deprivation.”) (quoting Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words, to state a § 1983 claim against a municipality, the plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff’s constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm’rs of
Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (internal citations omitted). If Plaintiff wishes to assert claims against the City of New York, she must allege facts in the amended complaint suggesting that the City has a policy, custom, or practice that violated her constitutional rights in connection with the events giving rise to this action. B. Claims Against Powell Plaintiff alleges that Powell, her landlord, is unlawfully seeking to evict her. Federal district courts have limited subject matter jurisdiction. Federal courts have jurisdiction only when a “federal question” is presented, 28 U.S.C. § 1331, or when plaintiff and defendant are citizens of different states and the amount in controversy exceeds $75,000, 28 U.S.C. § 1332. “[A]ny party or the court sua sponte, at any stage of the proceedings, may raise the question of whether the court has subject matter jurisdiction.” Manway Constr. Co., Inc. v. Hous. Auth. of the City of Hartford, 711 F.2d 501, 503 (2d Cir. 1983); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own initiative
. . . .”). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Federal Question Jurisdiction To invoke federal question jurisdiction, a plaintiff’s claims must arise “under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A case arises under federal law if the complaint “establishes either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.” Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 734-35 (2d Cir. 2007) (quoting Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)). Here, Plaintiff’s claims that Powell is violating her rights as a tenant appear to arise under New York state law — not federal law.4 Plaintiff’s complaint might be liberally construed as
alleging that Defendant Powell tampered with Plaintiff’s mail, which can in some circumstances be a violation of federal criminal law. But a private plaintiff cannot prosecute an action for criminal violations, Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” ). Plaintiff’s allegations that Powell violated federal criminal law cannot be a basis for federal question jurisdiction, and her remaining claims about her tenancy arise under state law.
4 Nothing in this order prevents Plaintiff from seeking relief in state court. Diversity Jurisdiction Federal courts can exercise subject matter jurisdiction over a complaint asserting only state law claims where the Plaintiff alleges facts demonstrating that the Court has diversity jurisdiction. To establish jurisdiction under 28 U.S.C. § 1332, a plaintiff must first allege that the plaintiff and the defendant are citizens of different states. Wis. Dep’t of Corr. v. Schacht, 524 U.S.
381, 388 (1998). In addition, the plaintiff must allege to a “reasonable probability” that the claim is in excess of $75,000.00, the statutory jurisdictional amount. See 28 U.S.C. § 1332(a); Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006). Plaintiff indicates in the complaint that both she and Defendant Powell are domiciled in New York. Because both parties are citizens of New York, the Court cannot exercise diversity jurisdiction over this matter. The Court therefore cannot exercise federal question or diversity jurisdiction over her claims against Powell. C. Leave to Amend Plaintiff is granted leave to amend her complaint to detail her claims against La Casse and the City of New York. In the statement of claim, Plaintiff must provide a short and plain
statement of the relevant facts supporting each claim against each defendant named in the amended complaint. Plaintiff is also directed to provide the addresses for any named defendants. To the greatest extent possible, Plaintiff’s amended complaint must: a) give the names and titles of all relevant persons; b) describe all relevant events, stating the facts that support Plaintiff’s case including what each defendant did or failed to do; c) give the dates and times of each relevant event or, if not known, the approximate date and time of each relevant event; d) give the location where each relevant event occurred; e) describe how each defendant’s acts or omissions violated Plaintiff’s rights and describe the injuries Plaintiff suffered; and f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive relief, or declaratory relief. Essentially, the body of Plaintiff’s amended complaint must tell the Court: who violated her federally protected rights; what facts show that her federally protected rights were violated; when such violation occurred; where such violation occurred; and why Plaintiff is entitled to relief. Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wishes to maintain must be included in the amended complaint. D. Consent to Electronic Service and Information About NYLAG Clinic In light of the current global health crisis, parties proceeding pro se are encouraged to submit all filings by email to Temporary_Pro_Se_Filing@nysd.uscourts.gov. Instructions for filing by email are located at https://nysd.uscourts.gov/forms/instructions-filing-documents- email. Pro se parties also are encouraged to consent to receive all court documents electronically. A consent to electronic service form is available on the Court’s website. Pro se parties who are unable to use email may submit documents by regular mail or in person at a drop box at one of
the designated courthouse locations in Manhattan (500 Pearl Street) or White Plains (300 Quarropas Street). For more information, including instructions on this new email service for pro se parties, please visit the Court’s website at https://www.nysd.uscourts.gov. Also, Plaintiff may consider contacting the New York Legal Assistance Group’s (NYLAG) 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 the flyer with details of the clinic is attached to this order. The clinic is currently only available by telephone. CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 20-CV-9171 (LLS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. SO ORDERED. Dated: December 10, 2020 New York, New York Louis L. Stanton US.D.J.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
_____CV_______________ (Include case number if one has been Write the full name of each plaintiff. assigned)
AMENDED -against-
COMPLAINT
Do you want a jury trial? ☐ Yes ☐ No
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 II.
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. 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 ☐ 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. 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 Work Address (or other address where defendant may be served)
County, City State Zip Code Defendant 3: First Name Last Name
Current Work Address (or other address where defendant may be served)
County, City State Zip Code Defendant 4: First Name Last Name
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. I 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
Telephone Number Email Address (if available)
I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: ☐ Yes ☐ No 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. Since 1990, NYLAG has provided free civil legal services to New Yorkers who cannot afford private attorneys. NEW YORK LEGAL ASSISTANCE GROUP
Free Legal Assistance for Self-Represented Civil Litigants in Federal District Court in Manhattan and White Plains
The NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York is a free legal clinic staffed by attorneys and paralegals to assist those who Thurgood Marshall are representing themselves or planning to United States Courthouse represent themselves in civil lawsuits in the Room LL22 Southern District of New York. The clinic, 40 Centre Street which is not part of or run by the court, New York, NY 10007 assists litigants with federal civil cases (212) 659 6190 including cases involving civil rights, employment discrimination, labor law, Open weekdays social security benefits, foreclosure and tax. lO a.m.- 4 p.m. The clinic cannot assist individuals while Closed on federal and court holidays they are incarcerated, but can provide assistance to litigants once they are released from custody. To make an appointment for a The Hon. Charles L. Brieant Jr. consultation, call (212) 659-6190 or come Federal Building and Courthouse by either clinic during office hours. Please 300 Quarropas St note that a government-issued photo ID is White Plains, NY 10601 required to enter either building. (212) 659 6190 The clinic offers in-person Open Wednesday appointments only. The clinic does [2 p.m.- 4 p.m. not offer assistance over the phone Closed on federal and court holidays or by email.
Disclaimer: The information contained herein is for informational purposes only and is not legal nwiase. i