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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,
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.
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.
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.
A. General Requirements for Stating a Cognizable § 1983
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
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 ...