The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Pro se plaintiff Philip Johnson filed the present action on August 12, 2002 under 42 U.S.C. §§ 1983, 1985, and 1986, alleging violations of his civil rights stemming from the emergency removal of his children on June 3, 2002. On August 23, 2002, U.S. District Judge Allyne R. Ross directed plaintiff to amend his complaint within sixty (60) days, naming the individuals he claimed deprived him of his rights, and specifying what each individual did or failed to do that violated plaintiff's constitutional rights. Plaintiff submitted an amended complaint on October 22, 2002. By Memorandum and Order dated February 5, 2003, U.S. District Judge Allyne R. Ross dismissed the amended complaint as to all defendants except New York City Administration for Children's Services ("ACS") and the City of New York ("City"). Judge Ross determined that the only issue remaining before the court is whether the plaintiff "was afforded due process by the Administration for Children's Service and the City of New York when his children were removed in June 2002." (Defs.' Ex. B at 2.)
Defendants filed a motion for summary judgment, requesting dismissal of plaintiff's claims on grounds that he has not demonstrated any constitutional violation. Because plaintiff is a pro se litigant, the court, in deciding this motion, has construed plaintiff's papers broadly, interpreting them to raise the strongest arguments they suggest. Weixel v. Bd. of Educ. of the City of New York,287 F.3d 138, 146 (2d Cir. 2002). For the reasons set forth below, defendants' summary judgment motion is granted in all respects.
Plaintiff Philip Johnson is married to Marion Johnson and, at the time the events relevant to this action occurred, was living with her and their four children, Jazmon Shelborn, Ashley Johnson, Ethan Johnson, and Zalika Johnson. On June 3, 2002, ACS received a report from the New York State Child Abuse and Maltreatment Register alleging that plaintiff had been abusing or maltreating his children. This report was filed by plaintiff's wife.
Due to the allegations of abuse, Child Protective Specialist ("CPS") Marc Williams and another agent were sent to conduct a home visit at the Johnson residence. During the home visit, which was initiated late in the evening, CPS Williams spoke with plaintiff and plaintiff's wife. Each of plaintiff's children were interviewed individually either by CPS Williams or his assisting agent. Jazmon, plaintiff's then sixteen-year-old step-daughter, said during her interview that her father once "pushed her against the fridge and put a belt around her neck," which left a permanent scar on the right side of her neck. (Defs.' Ex. C at 401.) She also stated that she and her father fought the day of the home visit and he scratched her right hand while he had her in a headlock. (Id.) Ashley, who was twelve years old at the time, complained that her father "hits her everyday with a wooden spoon that left cuts and bruises on the inside of her right arm" and also hits her mother. (Id. at 402.) During Zalika's interview, she did not say that she had been hurt by her father, but she did mention that her father had hit her brother and sisters. (Id. at 403.) The youngest child, Ethan, who was nine years old, said that his father had hit him that day and that his father would hit him with a belt if Ethan got an answer wrong during their home schooling lessons. (Id. at 404.)
After concluding the interviews, CPS Williams and the assisting agent left the Johnson residence. Approximately half an hour later, the two agents returned with the police to conduct an emergency removal of the children from the home pursuant to N.Y. Fam. Ct. Act § 1024. Plaintiff was directed by one of the officers to go to his bedroom and wait there. Plaintiff's wife, Marion Johnson, was downstairs while the children were being removed from the house. The children were placed overnight in the custody of ACS. Plaintiff testified at his deposition that, when Marion came up to the bedroom where he was waiting, he did not ask her what had transpired downstairs while the children were being removed.
The next morning, June 4, 2002, Marion told plaintiff "that she was going to go and find out what happened to [the children]." (Defs.' Ex. D., Johnson Dep. at 115.) Plaintiff did not ask her any questions and did not accompany her when she left. (Id. at 115--16.) That day, ACS filed neglect petitions in New York State Family Court, Queens County, before Family Court Judge Charles J. Heffernan. Marion attended this proceeding. Judge Heffernan granted Marion and the children a temporary ex-parte order of protection, until July 12, 2002, excluding plaintiff from the family residence.*fn1 (See Defs.' Ex. E at 3; Defs.' Ex. J.) The children were paroled to Marion's custody. On June 5, 2002, plaintiff was served with "a pink or orange piece of paper," which he understood to be an order of protection, and was told to leave his residence. (Defs.' Ex. D, Johnson Dep. at 123.)
Plaintiff made an application on June 7, 2002 for the return of the children under N.Y. Fam. Ct. Act § 1028. A proceeding was held that same day before Family Court Judge Robert F. Clark. During the proceeding, Judge Clark offered plaintiff court-appointed counsel. However, no counsel was available to be assigned to represent plaintiff that day. Therefore, plaintiff agreed that proceedings should be adjourned until June 10, 2002 so that he could be represented by counsel.
On June 10, 2002, plaintiff was represented at the Family Court proceedings by court-appointed counsel, Ann Lewis. By and through counsel, plaintiff acknowledged service of the family offense petitions. Judge Clark explained that he thought that the matter was not properly filed as a § 1028 action under the N.Y. Family Court Act since the children were not removed from the home, but rather the plaintiff was removed from the home. However, Judge Clark granted a hearing under N.Y. Fam. Ct. Act § 1027 to determine whether the order of protection was "appropriate or necessary to protect the children." (6/10/02 Tr. at 9.) Proceedings were then adjourned and a hearing was scheduled for June 13, 2002.
At the § 1027 hearing held on June 13, 2002 in Queens County Family Court, plaintiff testified. Plaintiff's counsel cross-examined CPS Williams. Judge Clark ruled that the order of protection was necessary and should be continued.
A trial was held in Queens County Family Court on August 30, 2002 before Judge Clark to determine whether the children had been neglected. Plaintiff appeared pro se, but he was still afforded the opportunity to cross-examine witnesses. Judge Clark found that the children were "neglected" children, pursuant to N.Y. Fam. Ct. Act § 1012(f), and that plaintiff had shown "absolute failure to exercise a minimum degree of care in protecting the best interest of the children." (8/30/02 Tr. at 123--24.)