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Southerland v. City of New York

August 2, 2006

SONNY SOUTHERLAND, SR., ET AL. PLAINTIFFS,
v.
CITY OF NEW YORK, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Sifton, Senior Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Sonny Southerland, Sr. commenced this action, on his own behalf and on behalf of his then minor children, Venus, Sonny Jr., and their still minor siblings, Nathaniel, Emmanuel, Kiam, and Elizabeth, against defendants the City of New York ("City"), Timothy Woo, and J. Does 1-9, for compensatory and punitive damages stemming from a decision of the New York State Family Court, Kings County, to remove Southerland's children from his custody without a court order. The children were allegedly held without court order for a period of three days, after which defendants obtained a court order confirming the removal.

After the parties reported to the Court that a settlement had been reached with respect to the claims of the minors, I issued an order to show cause why an infant compromise order approving settlement of the claims pursuant to Local Rule 83.2 should not be granted. The parties having responded, for the reasons that follow, the infant compromise order is denied.

BACKGROUND

The following facts are drawn from the amended complaint and the parties' submissions in response to the order to show cause. They are, for the purposes of this issue, undisputed.

In June, 1997, after Sonny Southerland's daughter, Ciara, drank non-toxic paint at school, defendant Timothy Woo ("Woo"), a caseworker for defendant ACS, visited plaintiffs' home in Brooklyn to inquire about Ciara's well-being.

On June 6, 1997, defendant Woo obtained a search warrant to search Southerland's house from defendant Daniel Turbow, a New York State family court judge. Plaintiffs allege that defendant Woo's affidavit in support of his application for the search warrant was false and misleading.

On June 9, 1997, defendant Woo arrived at Southerland's home with police officers to execute the search warrant. At approximately 11:00 p.m. that night, Woo removed Southerland's children from his custody without a court order. The children remained in custody without a court order until the morning of June 12, 1997, at which time Woo obtained a court order confirming the removal. After this time, Venus, Sonny Jr., Nathaniel, and Emmanuel were in foster care for approximately eight years. Kiam and Elizabeth remain in foster care.

On June 9, 1999, plaintiff Sonny Southerland, proceeding pro se, filed the original complaint on behalf of himself and his minor children, alleging violations by over forty named defendants of 42 U.S.C. §§ 1983, 1985, 1986, and 1988, 18 U.S.C. §§ 241 and 242, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 42 U.S.C. §§ 1962 and 1964, and various other provisions of state law. The complaint alleged, among other things, that Woo wrongfully seized Southerland's children and removed them from his home and custody without proper investigation of allegations of abuse and neglect. The complaint also alleged that the children were beaten in the foster care of defendant Joyce Baldwin. Various defendants filed motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). In a Memorandum and Order dated February 1, 2000, I granted the motions on various grounds, including failure to state a claim, lack of subject matter jurisdiction under the Rooker-Feldman doctrine, Eleventh Amendment immunity, judicial immunity, and failure to plead certain matters with sufficient particularity. In addition, I denied a request for a preliminary injunction and dismissed the complaint in Southerland's companion case, CV-99-6159, arising out of the same situation as that which gave rise to the first filed case.

Southerland appealed to the Second Circuit Court of Appeals, and the decision was affirmed in part, reversed in part and remanded. The Court of Appeals held, inter alia, that Southerland's Section 1983 claims against ACS and the individual employees of ACS should not have been dismissed for failure to state a claim, on the ground that the complaint stated a valid claim for a violation of the Fourteenth Amendment Due Process Clause. Southerland v. Guiliani, No. 00-7410, 2001 WL 127293 (2d Cir. Feb. 14, 2001).

Upon remand, Michael G. O'Neill ("O'Neill") was appointed counsel for plaintiffs.*fn1 Plaintiffs filed an amended complaint on November 22, 2002, consistent with the Court of Appeals' opinion, and proceeded with discovery. The amended complaint alleges violations of the Fourth and Fourteenth Amendments and municipal liability with respect to the time the children were held without court order. Following document production but prior to the taking of depositions, a disagreement arose between Southerland and O'Neill. According to O'Neill's declaration, the disagreement resulted in a impasse of such nature that it became impossible for him to continue representing Southerland. Southerland requested that O'Neill cease representing him, but continue to represent his children.*fn2 Southerland elected to proceed pro se. O'Neill asked the Court to appoint a guardian ad litem for the children because Southerland was too emotionally involved, and in O'Neill's view, was unable or unwilling to grasp the fact that this litigation will not result in the return of his children to his custody. O'Neill also stated that Southerland did not understand the scope and extent of the constitutional issues involved and may not be able to adequately evaluate settlement opportunities. O'Neill proposed that the Court appoint Rose M. Weber ("Weber"), as guardian ad litem for the children.

On April 20, 2004, I granted the motion to relieve O'Neill as counsel for Southerland. O'Neill remained counsel for the children. In addition, Rose Weber was appointed guardian ad litem for the children.

On April 19, 2006, counsel for the children and the defendants reported to the Court that they had entered into a stipulation of settlement of the children's claims. On April 24, 2006, I issued an order to show cause why an infant compromise order approving the settlement should not be granted. Thereafter, on ...


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