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POLLACK v. NASH

July 30, 1999

SEAN POLLACK, KYLE POLLACK, PAUL POLLACK, ALL INFANTS, BY THEIR PARENT AND NATURAL GUARDIAN STUART POLLACK, RACHEL POLLACK AND STUART POLLACK, PLAINTIFFS,
v.
JOAN NASH, BARBARA WILMIT, WILLIAM P. WARREN, JACQUELINE SANDS, MARGARET GARVEY, ALEXANDER BURSZTEIN, G. NICHOLAS DEL PIZZO, NOAH WEINBERG, IN HIS CAPACITY AS THE COMMISSIONER OF SOCIAL SERVICES OF THE COUNTY OF ROCKLAND OF THE STATE OF NEW YORK, COUNTY OF ROCKLAND, PHYLLIS ROSENBLUM, STANLEY WEISS AND KAREN POLLACK, DEFENDANTS.



The opinion of the court was delivered by: William C. Conner, Senior District Judge.

      OPINION AND ORDER

This action is before the Court on defendants' motion to dismiss. Fed.R.Civ.P. 12(b)(6). For the reasons stated hereinafter, the motion is granted.

BACKGROUND

Plaintiff Stuart Pollack is an attorney admitted to practice in the State of New York, and brings this action on behalf of himself pro se, as well as on behalf of his children, Sean Pollack, Kyle Pollack, Paul Pollack, and Rachel Pollack. Sean, Kyle, and Paul are all minors, whereas Rachel attained the age of eighteen in June of 1997. Thus, Stuart seeks to represent Sean, Kyle, and Paul as their guardian, while apparently representing Rachel simply as her attorney. This action revolves around plaintiffs' allegation that various individuals, both state and private actors, conspired to ensure that Stuart would lose custody of his children in a March 1995 hearing in the Family Court of the State of New York. After this hearing, the presiding judge found that Stuart had been physically and verbally abusive to his wife and determined that the children were "neglected children as a result of. . . . Stuart Pollack's behavior." See Judge Warren's April 6, 1995 Decision.

As a consequence of this alleged conspiracy, plaintiffs here sue: (1) Noah Weinberg, the Commissioner of Social Services of the County of Rockland; (2) the County of Rockland in its municipal capacity; (3) Jacqueline Sands, who is employed by the Legal Aid Society of Rockland County, and was appointed by the Family Court as the law guardian of Sean, Kyle, Paul, and Rachel; (4) Alexander Bursztein, who is employed by the Legal Aid Society of Rockland County, and was Sands' supervising attorney during the relevant period; (5) Barbara Wilmit, an Assistant County Attorney for the County of Rockland who filed the child neglect petitions in Family Court against Stuart; (6) G. Nicholas Del Pizzo, an attorney for the County of Rockland and Wilmit's supervisor; (7) Joan Nash, a case worker with the Child Protective Services of the Department of Social Services for the County of Rockland; (8) Karen Pollack, Stuart's wife and mother to plaintiffs Sean, Kyle, Paul, and Rachel; (9) The Honorable William P. Warren, Judge of the Family Court of the State of New York in the County of Rockland, who presided over the March 1995 hearing; (10) The Honorable Margaret Garvey, Judge of the Family Court of the State of New York in the County of Rockland, who, plaintiffs claim, following Judge Warren's decision, issued an arrest warrant for Karen Pollack after she failed to appear for a court appearance; (11) Phyllis Rosenblum, a private psychologist who administered therapy to Rachel, Stuart, and Karen Pollack, and who testified at the hearing before Judge Warren; and (12) Stanley Weiss, a private therapist who administered therapy to Stuart and who also testified at the hearing.

Plaintiffs brings this complaint, alleging: (1) a conspiracy between both state and non-state actors to deprive them of their right to due process, as guaranteed by the Fifth and Fourteenth Amendments to the Constitution, in violation of 42 U.S.C. § 1983, as against Nash, Rosenblum, Weiss, Wilmit, Sands, Del Pizzo, Bursztein, Weinberg, Karen Pollack, Judge Warren, Judge Garvey, and the County of Rockland; (2) a violation of 42 U.S.C. § 1985 as against Sands, Wilmit, Nash Bursztein, Del Pizzo, Weinberg, Judge Warren, and the County of Rockland; (3) the commission of a federal constitutional tort under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as against Nash, Wilmit, Sands, Bursztein, Del Pizzo, Warren, and Weinberg;*fn1 (4) a pendent state law claim for a state constitutional tort in violation of Article I, sections 1, 11, and 12 of the New York State Constitution as against Nash, Wilmit, Sands, Bursztein, Del Pizzo, Warren, and Weinberg; (5) a pendent state common law claim for psychological malpractice as against Rosenblum; (6) a pendent state common law claim for breach of contract as against Rosenblum and Weiss; (7) a pendent state law claim for a breach of confidential communications in violation of N.Y.C.P.L.R. §§ 4507 and 4508 as against Rosenblum; (8) a pendent state common law claim for legal malpractice as against Sands; (9) a pendent state common law claim for breach of fiduciary duty as against Sands; and (10) a pendent state common law claim for intentional infliction of emotional distress as against Nash, Wilmit, Sands, Bursztein, Del Pizzo, and Judge Warren.

DISCUSSION

I. Section 1983 Claim

  A. General Requirements for Stating a Cognizable § 1983
    Conspiracy Claim

A complaint should not be dismissed for failure to state a claim "`unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). All well-pleaded factual allegations will be accepted as true and all reasonable inferences must be drawn in favor of the plaintiff. See Wright v. Ernst & Young LLP, 152 F.3d 169, 173 (2d Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 870, 142 L.Ed.2d 772 (1999). "`The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

However, it is well-established that in order to survive a motion to dismiss, a § 1983 complaint must contain "more than naked[,] improbable[,] unsubstantiated assertions without any specifics." Neustein v. Orbach, 732 F. Supp. 333, 346 (E.D.N Y 1990); see also Salahuddin v. Cuomo, 861 F.2d 40, 43 (2d Cir. 1988); Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987); Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977) (per curiam); Koch v. Yunich, 533 F.2d 80, 85 (2d Cir. 1976). Moreover, a complaint alleging a conspiracy to violate civil rights is held to a heightened pleading standard. Julian v. N YC. Transit Auth., 857 F. Supp. 242, 252 (E.D.N.Y. 1994) (interpreting § 1985). As the Second Circuit has explained,

  We have, of course, repeatedly held that in order to
  state a claim of conspiracy under § 1983 the
  complaint must contain more than mere conclusory
  allegations. And while a plaintiff should not plead
  mere evidence, he should make an effort to provide
  some details of time and place and the alleged effect
  of the conspiracy. Thus, complaints containing only
  conclusory, vague, or general allegations that the
  defendants have engaged in a conspiracy to deprive
  the plaintiff of his constitutional rights are
  properly dismissed: diffuse and expansive allegations
  are insufficient, unless amplified by specific
  instances of misconduct.

Dwares v. City of New York, 985 F.2d 94, 99-100 (2d Cir. 1993) (internal citations and quotations omitted). Because "certain claims are so easily made and can precipitate such protracted proceedings with such disruption of governmental functions . . . detailed fact pleading is required to withstand a motion to dismiss. A claim of conspiracy to violate civil rights is a clear example." Angola v. Civiletti, 666 F.2d 1, 4 (2d Cir. 1981) (internal citations omitted).

This Court is sympathetic to the difficulty of proving a conspiracy, and thus has construed the pleadings generously for even circumstantial evidence to support a conspiracy claim. Moreover, because Stuart is proceeding pro se, we have construed the pleadings liberally, see Hughes, 449 U.S. at 9, 101 S.Ct. 173, even though the fact that Stuart is an attorney duly licensed in the State of New York strongly militates against the traditional tolerance accorded to pro se plaintiffs. We also note that plaintiffs have already amended their complaint twice before defendants moved to dismiss, and thus have had three opportunities to state adequately a cause of action against these defendants. Finally, we note that the Court, in part because these motions contemplate dismissal with prejudice, held a lengthy conference in chambers with counsel for all parties to discuss the merits of ...


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