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Clinton v. Broome County Dep't Social Services

August 17, 2007

ANTHONY CLINTON, SR., PLAINTIFF,
v.
BROOME COUNTY DEPT. SOCIAL SERVICES, THE STATE OF NEW YORK, REBECCA HERMAN, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Plaintiff commenced this action pro se pursuant to 42 U.S.C. § 1983 contending that the actions of the Broome County Department of Social Services ("BCDSS") and one of its caseworkers, Defendant Rebecca Herman, violated his constitutional rights to due process, equal protection, and access to courts causing him to suffer emotional damages and placing his children's "safety and well being" in peril. See Compl. [dkt. # 1].*fn1

Defendant BCDSS*fn2 moves pursuant to Fed. R. Civ. P. 56 to dismiss the action against it on the grounds that (1) the Rooker-Feldman doctrine deprives the Court of subject matter jurisdiction over the action, and (2) the action is barred by res judicata and/or collateral estoppel. Plaintiff has not opposed the motion.

II. BACKGROUND

Defendant BCDSS has filed and served a motion for summary judgment upon Plaintiff. Plaintiff has not opposed the motion and his time do so has expired. In accordance with the Local Rules pertaining to motions for summary judgment, Defendant's motion includes a "Notification of the Consequences of Failing to Respond to a Summary Judgment Motion" and a "Statement of Undisputed Material Facts." See dkt. # 12-7, # 12-8. Due to Plaintiff's failure to respond to Defendant's motion, the properly supported facts set forth in Defendant's "Statement of Undisputed Material Facts" are deemed admitted. See N.Y.N.D.L.R. 7.1(a)(3). These properly supported facts, relevant to the instant motion, are as follows:

1. That on July 25, 2005, Broome County Family Court held a hearing regarding the custody of Plaintiff's two children (Behnke Affidavit Para 7, Exhibit C).

2. That Plaintiff appeared at that hearing and was represented by an attorney. (Exhibit C).

3. That after a hearing and due deliberation and with the consent of the parties to that proceeding, Broome County Family Court granted custody of the Plaintiff's two children to their mother. The Court's Order was entered on August 5, 2005. (Behnke Affidavit Para 7 and 8, Exhibit C).

4. The Plaintiff appealed that Order to the New York Supreme Court Appellate Division Third Department. (Exhibit D).

5. The Plaintiff was represented by an attorney on the appeal (Exhibit D).

6. That in a Memorandum and Order entered November 30, 2006, the Appellate Division affirmed the decision of Broome County Family Court. (Behnke Affidavit Para 9, Exhibit D).

7. That the Appellate Division found that the Plaintiff was afforded an opportunity to voice his objection to the proposed custody determination on the record at the Broome County Family Court hearing and that Family Court did not err in making ...


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