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LEVINE v. COUNTY OF WESTCHESTER

July 30, 1993

ANDREW LEVINE and SHAWNE L., Plaintiff(s),
v.
COUNTY OF WESTCHESTER, OFFICE of the DEPT. OF SOCIAL SERVICES OF WESTCHESTER COUNTY, OFFICE of CHILD PROTECTIVE SERVICES OF OSSINING, NY, OFFICES of the COUNTY ATTORNEYS OF WESTCHESTER, NY, ATTORNEY GENERAL OF THE STATE OF NEW YORK, OFFICE OF JEWISH COMMUNITY SERVICES, MARIA JOY FRANK, DONNA McLEOD, STATE OF NEW YORK, STATE OF NORTH CAROLINA, HON. ORAZIO BELLANTONI, HON. VINCENT COLABELLA, and HON. CHESTER DAVIS, Defendant(s).



The opinion of the court was delivered by: JOHN E. SPRIZZO

 SPRIZZO, D.J.,

 Plaintiff Andrew Levine ("Levine"), the father in a long-running child custody and visitation dispute, has brought this action pursuant to § 1 of the Civil Rights Act, 42 U.S.C. § 1983, on behalf of himself and his daughter Shawne, against the County of Westchester, various County agencies, a children's law guardian, his former wife and the child's mother, the States of New York and North Carolina, and two New York judges and one North Carolina judge. For the reasons that follow, defendants' motions to dismiss the Third Amended Complaint are granted.

 BACKGROUND

 Levine's Third Amended Complaint defies easy characterization, but from the series of orders and letters that Levine has attached as exhibits to the Third Amended complaint, the court has discerned the following facts. Levine and defendant Donna McLeod ("McLeod") married in 1980 and had the child who is the subject of this dispute in 1981. Third Amended Complaint Ex. MM at P 3. On or about November 3, 1986, McLeod filed for divorce in the Supreme Court of the State of New York, Westchester County. Id. at P 10. In his answer to McLeod's divorce complaint, Levine requested custody of the child. Id. at P 11.

 On December 1, 1986, McLeod filed a family offense petition under Article 8 of the New York Family Court Act in the Family Court of the State of New York alleging, inter alia, that Levine had sexually abused their five year old daughter. Third Amended Complaint Ex. A. On the same date, the Family Court granted McLeod a temporary order of protection that ordered Levine to remain away from and out of McLeod's residence. Id.

 On January 15, 1987, the defendant-Department of Social Services, County of Westchester ("DSS"), instituted a proceeding under Article 10 of the New York Family Court Act to determine whether the child had been abused. Third Amended Complaint Ex. G. On April 27 and July 10, 1987, defendant, the Honorable Orazio R. Bellantoni, Family Court Judge, State of New York, Westchester County, conducted an Article 10 factfinding hearing and took testimony from two social workers from defendant Child Protection Services ("CPS"), a division of defendant DSS, the child's law guardian defendant Maria Joy Frank ("Frank"), the child herself, in camera, Levine, Levine's mother, and the mother of the child's best friend. Third Amended Complaint Ex. L; id. Ex. II at 5. By order dated August 19, 1987, Judge Bellantoni found that Levine had sexually abused the child, ordered that the temporary order of protection be continued, and scheduled a dispositional hearing. Third Amended Complaint Ex. Q.

 Thereafter, from about November 2, 1987 to December 4, 1987, Judge Bellantoni held a dispositional hearing at which Levine appeared through counsel and after which, by order dated February 24, 1988, Judge Bellantoni granted custody of the child to McLeod, granted a permanent order of protection forbidding all contact between Levine and the child, and requested DSS to supervise both Levine and the child (the "Dispositional Order"). Third Amended Complaint Ex. W. On May 22, 1989, the Appellate Division affirmed the Dispositional Order and awarded custody of the child to McLeod. Third Amended Complaint Ex. R. On or about December 6, 1991, Levine filed an order to show cause why a stay of the Dispositional Order should not be granted. Third Amended Complaint Ex. RR. Judge Bellantoni treated the order to show cause as a motion to stay the Dispositional Order and denied the relief requested. Id.

 Meanwhile, in August 1987, Donna McLeod and the child moved to North Carolina. Third Amended Complaint Ex. MM P 7. On August 2, 1990, Judge Bellantoni ordered that "the proper jurisdiction for the custody and visitation currently lies in North Carolina where the child has resided for over two years." Id. at P 9.

 Subsequently, on October 29, 1991, McLeod filed a motion in the Forsyth County District Court, State of North Carolina, to transfer jurisdiction over the custody of the child to North Carolina pursuant to the Uniform Child Custody Jurisdiction Act. *fn1" Id. P 17. By order dated February 21, 1992, nunc pro tunc to December 9, 1991, defendant the Honorable Chester C. Davis assumed jurisdiction over the custody and visitation dispute and adopted the New York Family Court's February 24, 1988, Dispositional Order granting custody to McLeod and forbidding contact between Levine and the child. Id. at P 7. It appears that Levine did not appeal this order.

 After the North Carolina court adopted the New York Dispositional Order, Levine instituted this civil action pursuant to § 1 of the Civil Rights Act, 42 U.S.C. § 1983, in the United States District Court for the Southern District of New York on behalf of both himself and the minor child for declaratory and injunctive relief and monetary damages of fifteen million ($ 15,000,000) dollars. Defendants have moved to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(3), and for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). *fn2" The Court concludes that the complaint must be dismissed as to all defendants.

 DISCUSSION

 Defendants' motions to dismiss must be granted for the following reasons. First, Fed. R. Civ. P. 8(a)(2) requires that a complaint set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Furthermore, "each averment of a pleading shall be simple, concise, and direct." Fed. R. Civ. P. 8(e)(1). These requirements are designed to compel a plaintiff to identify the relevant circumstances that he claims entitle him to relief in such a manner that the defendants are provided with fair notice to enable them to answer and prepare for trial. See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988); see generally 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure: Civil § 1217 (2d ed. 1990). However, "complaints which ramble, which needlessly speculate, accuse and condemn, and which contain circuitous diatribes far removed from the heat of the claim do not comport with these goals and this system" and must be dismissed. Prezzi v. Berzak, 57 F.R.D. 149, 151 (S.D.N.Y. 1972); accord Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972) (per curiam), cert. denied, 411 U.S. 935, 36 L. Ed. 2d 396, 93 S. Ct. 1911 (1973); Chodos v. F.B.I., 559 F. Supp. 69, 71-72 (S.D.N.Y.), aff'd, 697 F.2d 289 (2d Cir. 1982), and cert. denied, 459 U.S. 1111, 74 L. Ed. 2d 962, 103 S. Ct. 741 (1983).

 Plaintiff's Third Amended Complaint is a virtually incomprehensible document accompanied by numerous "exhibits." It contains only conclusory, vague, and general factual allegations and thus provides the Court with no adequate basis to discern the nature of plaintiff's claims. Viewed in its best light it contains little more than a collection of prolix demands for relief based upon the following conclusory accusations: conspiracy, medical malpractice, adultery, rape, incest, mistaken ...


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