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POLITE v. CASELLA

October 17, 1995

ROSEANN POLITE, Individually and on behalf of CHARLES POLITE, an Infant, Plaintiff, against DANIEL CASELLA, ESQ., HARVEY SINGER, ESQ., LYNN SMITH, BROOME COUNTY DEPARTMENT OF SOCIAL SERVICES, and COUNTY OF BROOME, Defendants.


The opinion of the court was delivered by: MCAVOY

 I. INTRODUCTION

 Plaintiff Roseann Polite commenced this action by filing a complaint on May 12, 1995, in which she alleged various federal and state causes of action against defendants Daniel Casella, Harvey Singer, Lynn Smith, the Broome County Department of Social Services ("DSS"), and Broome County. By orders dated September 26, 1995, and October 2, 1995, the Court dismissed plaintiff's claims against defendants Singer and Casella, respectively, for lack of subject-matter jurisdiction. Defendants Smith, DSS, and Broome County now move to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

 II. BACKGROUND

 Plaintiff Roseann Polite gave birth to a boy, Charles, on October 13, 1989, at Lourdes Hospital in Binghamton, New York. Plaintiff was only 14 years old at the time of Charles' birth. Charles subsequently was transferred to Wilson Hospital in Johnson City, New York, because he required treatment for a cyst in his throat. Plaintiff alleges that when she arrived to pick up Charles following his treatment, police officers and DSS officials appeared and removed Charles. The officials then placed Charles in DSS foster care facilities, where he remained for a period of three years.

 On October 24, 1989, DSS filed a neglect petition regarding Charles in the Broome County Family Court. In an order dated April 2, 1990, the Hon. Herbert B. Ray, Family Court Judge, responded by awarding custody of Charles to DSS on a temporary basis and ordering plaintiff to undergo a psychiatric and psychological evaluation at Broome County Mental Health Services.

 Defendant Singer, a Binghamton attorney, was appointed on March 25, 1991, to represent plaintiff in her ongoing dealings with DSS and Family Court. Plaintiff was interviewed by a clinical social worker and a psychiatrist pursuant to Judge Ray's order in the summer of 1991, during the period that defendant Singer acted as plaintiff's attorney. Both the social worker and psychiatrist gave plaintiff favorable reviews and recommended that her access to Charles be increased.

 On February 4, 1992, DSS filed a permanent neglect petition in Family Court regarding Charles. Three weeks later, defendant Singer was discharged as plaintiff's attorney and replaced for a short time by another Binghamton attorney, Patricia Dunn. Ms. Dunn subsequently was replaced in mid-1992 by defendant Casella, an attorney from Johnson City. On July 24, 1992, defendant Casella represented plaintiff in the formal hearing of DSS's permanent neglect petition. In an order dated August 11, 1992, Judge Ray terminated plaintiff's parental rights and committed Charles to DSS for adoption placement. Plaintiff apparently has not appealed from Judge Ray's order.

 Plaintiff brought suit in this Court alleging, inter alia, that her rights under the Fourteenth Amendment to the United States Constitution and under 42 U.S.C. §§ 671(a)(15), 675(5)(A), 675(5)(C), and 1397(3) were violated by defendants Smith, DSS, and Broome County during the events stated above. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. She also is attempting to join state law claims against defendants based in negligence and respondeat superior. Defendants' primary allegation here is that because no private cause of action exists under the federal statutes cited by plaintiff, her claims under those statutes must fail for lack of subject matter jurisdiction. Defendants also argue that several other claims by plaintiff fail to refer to defendants and consequently should be dismissed for failure to state a cause of action. Finally, defendants argue that the Court should decline to exercise pendent claim jurisdiction over plaintiff's state law claims once the Court dismisses all her federal claims.

 III. DISCUSSION

 Plaintiff derives her right to seek relief in this case from 42 U.S.C. § 1983, which is the basis for most suits in federal court against state and local governments and government officers. Section 1983 creates a cause of action against any person who, acting under color of state law, abridges rights created by the Constitution and laws of the United States. Section 1983 does not create federal court jurisdiction. Rather, it creates a cause of action, a legal entitlement to relief, against those who violate federal law while acting pursuant to state government authority.

 In their memorandum of law, defendants argue that plaintiff's Section 1983 claims must fail because the federal statutes on which they are based create no private causes of action. First, Counts Four, Five, Six, Eight, and Nine of the Complaint should be dismissed, according to defendants, because they are founded on the Federal Adoption Assistance and Child Welfare Act ("FAACWA"), 42 U.S.C. §§ 670 et seq. Defendants argue that under the FAACWA, only the federal government may act against a state or locality's failure to comply with their own plans for foster care and adoption assistance. Second, Counts Seven and Ten should be dismissed, in defendants' view, because they are based on the Social Security Act, Title XX, Chapter 7 ("Chapter 7"), 42 U.S.C. §§ 1397 et seq. Defendants allege that Chapter 7 was enacted "to enable states to provide financial assistance to needy persons and not as a means of seeking compensation when one of those persons is (allegedly) indirectly injured by the state." (Defs' Mem. Supp. Dism. at 9.)

 The Court finds that Counts Four through Ten of the Complaint should be dismissed as against defendants. Not only has plaintiff declined to contest defendants' statement of the relevant law, the Court tends to agree with defendants' position. Section 1983 is not available to enforce a violation of a federal statute "where Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges, or immunities" within the meaning of Section 1983. Suter v. Artist M., 503 U.S. 347, 354, 118 L. Ed. 2d 1, 112 S. Ct. 1360 (1992); Wright v City of Roanoke Redevelopment and Housing Auth., 479 U.S. 418, 423, 93 L. Ed. 2d 781, 107 S. Ct. 766 (1987). The Court also finds that Counts One, Two, Eleven, and Twelve should be dismissed as against defendants Smith, DSS, and Broome County because plaintiff makes no allegations or claims against these defendants under said counts.

 The most significant remaining issue, therefore, is whether Count Three of the Complaint, wherein plaintiff alleges violations of due process under the Fourteenth Amendment, should be dismissed here. Defendants Smith, DSS, and Broome County argue that it should, because they claim that plaintiff has made no specific allegation or claim against them under Count Three. Plaintiff counters that, although it may have been unartfully drafted, the Complaint does in fact allege -- in Count Three and elsewhere -- constitutional due process violations by defendants Smith, DSS, and ...


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