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Johnson v. State

March 9, 2007

PHILIP JOHNSON, PRO SE, PLAINTIFF,
v.
STATE OF NEW YORK; CITY OF NEW YORK; A.C.S., QUEENS ADMINISTRATION FOR CHILDREN'S SERVICES; A.C.S. UNIT "68-4"; QUEENS A.C.S EMPLOYEES, JANE DOE A/K/A KAGAN, JANE DOE A/K/A POLLAK, DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM AND ORDER

Pro se plaintiff Philip Johnson commenced this action on March 12, 2004 pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 1331, and "The Constitution of the United States and All of Its Amendments in Particular Amendment's 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15" against the State of New York, the New York City Administration for Children's Services ("ACS") and the City of New York ("City"), as well as against Jane Does a/k/a Alexsandra Kagan and Robin Pollack (collectively "Defendants"), alleging the violation of his civil rights. This claim stems from a determination by the ACS that the removal of plaintiff's children would be appropriate on March 11, 2004.

By Memorandum and Order dated August 6, 2004, U.S. District Judge Allyne R. Ross dismissed the claims against the State of New York and any claims seeking to challenge the temporary order of protection or for any other injunctive relief regarding the custody of plaintiff's children pursuant to 28 U.S.C. § 1915(e)(2)(B). In so doing, Judge Ross determined that the only issue remaining before the court is whether the emergency removal of plaintiff's children on March 11, 2004 violated plaintiff's procedural due process rights. Specifically, Judge Ross stated, "The record currently before the court is insufficient to determine whether 'a reasonably perceived emergency' justified the City Defendants' 'temporary assertion[] of custodial authority' over the plaintiff's children." (Defs.' Ex. E at 5.)

All defendants have now moved for summary judgment. The court is mindful that plaintiff is proceeding pro se in this case. As a result, the court is "obliged to construe his pleadings liberally, particularly when they allege civil rights violations." McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004) (citing Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001)). For the reasons set forth below, defendants' motion for summary judgment is granted and plaintiff's complaint is dismissed in its entirety.

I. Facts

This is the second action plaintiff has filed based on the removal of his children by ACS. On August 12, 2002, plaintiff brought suit against ACS and the City of New York alleging violations of his civil rights stemming from the emergency removal of his children on June 3, 2002. See Johnson v. Queens Administration for Children's Services, No. 02-CV-4497, 2006 WL 229905 (E.D.N.Y. 2006). Specifically, plaintiff alleged that he was not given notice and a prompt hearing to contest the removal. In a Memorandum and Order dated January 31, 2006, this court granted defendants' motion for summary judgment finding that there had been no violation of plaintiff's constitutional right to due process.*fn1

Plaintiff is married to Marion Johnson, and prior to 2001, he had lived with her and their four children, Jazmon Shelborn, Ashley Johnson, Ethan Johnson and Zalika Johnson. (Defs.' Ex. A at 2; Defs.' Ex. F, Johnson Dep. at 25-26, June 15, 2005.) On June 4, 2002, the Family Court of the State of New York, Queens County ("Queens Family Court") entered a Temporary Order of Protection against plaintiff, excluding him from the family home at 130-26 226th Street in Queens, and prohibiting any unsupervised contact between plaintiff and their children. (Defs.' Ex. G.) The Family Court proceeding resulted in a finding of neglect against plaintiff on August 30, 2002 for:

(1) impairing the physical, mental and emotional condition of the children; (2) failing to provide a minimum degree of care in providing the children with proper supervision; and (3) imprisoning the children and enforcing [plaintiff's] view of education with physical punishment. (Pierre-Louis Decl. ¶ 5.) On March 5, 2003, the Family Court issued a one-year Order of Protection for Marion Johnson and the four children that expired March 5, 2004. (Id. at ¶ 6.) As a part of the court-ordered supervision, the case was assigned to Family Services Worker Audrey Pierre-Louis ("FSW Pierre-Louis"). (Id. at ¶ 4.)

Plaintiff returned to the family home on Friday, March 5, 2004. (Id. at ¶ 6.) Over the weekend, plaintiff announced that he intended to remove the children from public school in order to "homeschool" them. (Defs.' Ex. F, Johnson Dep. at 42.) In proceedings before the Queens Family Court, Ashley testified that plaintiff's approach to homeschooling involved waking the children up "in the middle of the night" for lessons, but keeping them trapped on the second floor of the house during the day. (Defs.' Ex. I at 49-50.) Ashley further testified that plaintiff would hit the children with a belt if they answered incorrectly, and that the beatings would leave "welts" -- where "the skin is coming up a little bit . . . and it's red." (Id. at 52-53.) Zalika testified that plaintiff would "teach [the children] stuff they already [knew]" late at night around "11:00, 12:00" at night. (Id. at 32.) Plaintiff forced the children to stay in their bedrooms, not even allowing the children to "go downstairs" to eat or drink water. (Id. at 33.) If the children left their rooms, plaintiff would hit them "with a belt . . . anywhere on our bod[ies]." (Id. at 34.)

On the morning of Monday, March 8, 2004, the Johnson children got dressed and ready to leave for school, but found plaintiff standing at the front door of the family home blocking their way. (Defs.' Ex. F, Johnson Dep. at 128-29.) Ashley testified that plaintiff "was standing by the door with the belt," and that when she attempted to push past him in order to catch her school bus, plaintiff "grabbed [her] so that [she] couldn't get out of the house and ripped [her] shirt and he scratched [her]" on her "chest or by [her] shoulder." (Defs.' Ex. I. at 41-56.) Ashley indicated that the scratch was approximately one to two inches and left a "welt." (Id. at 45-46.) Ashley's testimony was corroborated both by her mother, Marion Johnson, and her sister, Zalika Johnson. (Id. at 28-30; Defs.' Ex. J. at 67.) Plaintiff admits to having pushed Ashley and blocking her way through the front door. (Defs.' Ex. F, Johnson Dep. at 130.) Following the altercation, the children summoned the police to the family home. (Id. at 63-64.) The police informed plaintiff that he had to allow his children to attend school, and they then escorted Ashley to her bus stop, and made sure that the other children were allowed to travel to their respective schools. (Id. at 65.)

Ashley did not return home from school on March 8, 2004. (Id. at 66.) The next day, plaintiff and his wife discovered that Ashley was staying at the home of a paternal aunt and uncle who lived in the neighborhood ("relatives' house"). (Id. at 67.) On March 10, 2004, plaintiff tried to file a missing person's report with police but was told that since he knew of Ashley's whereabouts, she was not a missing person. (Compl. at 7.) However, plaintiff's second attempt at filing a missing person's report, on March 11, 2004, was successful. (Id.) Also on March 11, 2004, the Queens field office of ACS received three Oral Report Transmittals ("ORTs") from the New York State Central Registry (one from Ashley's school, one from the Police Department, and one from FSW Pierre-Louis), which contained allegations of educational neglect and abuse. (Defs.' Ex. K.) The case was assigned to ACS Caseworkers in the educational neglect unit of the Queens ACS field office ("CWs"), Kagan and Pollack. (Defs.' Ex. L at 29-30.)

On March 11, 2004, the CWs made a home visit to speak with plaintiff and Marion Johnson. (Id. at 30-31.) Plaintiff did not permit the CWs to enter the family home or to speak with the other children who were present, Ethan and Zalika Johnson. (Id. at 31.) Marion Johnson informed the CWs that the family was on its way to the relatives' house to retrieve Ashley, and that they could follow them there if they wanted to speak with their children. (Id. at 33; Defs.' Ex. F, Johnson Dep. at 73.)

Upon arrival at the relatives' home, the CWs found the police already on the scene because of the missing person's report that plaintiff had filed. (Defs.' Ex. F, Johnson Dep. 74-75.) The police allowed the CWs to speak with each child individually, away from plaintiff. (Id. at 77-78, 80-81, 84.) During the interviews, the children described several instances of physical abuse that had occurred since plaintiff returned to the family home on March 5, 2004. Ashley told the CWs about the March 8, 2004 altercation with plaintiff during which he scratched her and ripped her shirt, and stated to CW Kagan that she refused to go home after leaving school on March 8, 2004 because she was afraid of her father. (Defs.' Ex. L at 37-38.) Zalika informed the CWs that plaintiff had slapped her when she attempted to attend school on March 8, 2004. (Id. at 43.) During the proceedings before the Queens Family Court, Zalika testified that she had been waiting for Ashley to escort her to their relatives' house. However, plaintiff caught her before Ashley arrived, slapped her, and took her home. (Id. at 30-31.) Ethan stated that plaintiff had hit him on his left hand with a belt on at least one occasion since returning to the family home. (Id. at 40.) The children all corroborated their respective accounts of the abuse plaintiff had inflicted upon them since returning to the family home on March 5, 2004. (Id. at 35-43.) The children also individually and collectively expressed their fear that plaintiff would hurt them for speaking to the CWs if they returned home with him. (Id.) The CW testified that, "all the children indicated that they were afraid to go home because the mother is supposed to go to work and they were afraid to be with the father on this night," March 11, 2004. (Id. at 42.)

While the CWs were interviewing the Johnson children, FSW Pierre-Louis called to check that Ashley had arrived at the relatives' house safely. (Pierre-Louis Decl. ¶ 30.) FSW Pierre-Louis gave the CWs a factual account of ACS' involvement with plaintiff and the Johnson family, including the fact that there had recently been a finding of neglect against plaintiff by Judge Heffernan of the Queens Family Court, after fact-finding, for excessive corporal punishment of his children. (Id. at ¶ 31.) FSW Pierre-Louis further informed the CWs that Ashley had just been to her office recounting the altercation that occurred with plaintiff on March 8, 2004. (Id. at ¶ 32.) Ashley had also expressed fear to FSW Pierre-Louis of being forced to return to the family home with plaintiff because she ...


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