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Morris v. Main

March 31, 2009

JEFFREY LEE MORRIS, PLAINTIFF,
v.
ROBERT G. MAIN, JR., FRANKLIN COUNTY FAMILY COURT JUDGE; KIM MURTAUGH, FRANKLIN COUNTY PROBATION DEPARTMENT DIVERSION PROGRAM COORDINATOR; TYEREE STINES, AND SARA J. NICHOLS-MORRIS DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff pro se Jeffrey Lee Morris brings this action pursuant to 42 U.S.C. § 1983 alleging, inter alia*fn1 , that the defendants violated his constitutional rights when an order of protection caused him to become homeless and suffer physical/emotional distress. Pending are Franklin County Family Court Judge Robert Main, Jr., and Franklin County Probation Officer Kim Murtaugh's motions to dismiss under FED.R.CIV.P. 12(c),12(b)(1) and (6). (Dkt. Nos. 15 and 17.) For the reasons that follow the motion to dismiss brought by Judge Main is granted in its entirety. However, Murtaugh's motion is denied in all respects.

II. Facts

On July 30, 2007, Morris was released from a New Jersey State prison. His parole was transferred to New York State and he began residing with his girlfriend, Carrie LaPlant. LaPlant was engaged in a custody battle with the biological father of her children.

The custody hearing was brought in Franklin County Family Court before Judge Main pursuant to Article 6 of the Family Court Act. During the custody hearing, an investigation was conducted by Murtaugh. Murtaugh's investigative report*fn2 was used by the court to determine whether a Temporary Order of Protection should be issued.

On August 24, 2007, the court issued an Order of Protection. The Order of Protection*fn3 provided that LaPlant "shall not allow Jeff Morris to reside in the household of the children, nor have unsupervised visitation with the children." (Compl. p.13.) The Order of Protection was extended through January 6, 2009. (Id. at 13-14.)

III. Standard of Review

A. Subject Matter Jurisdiction

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Further, "[i]n resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ... may refer to evidence outside the pleadings." Id. "When the question to be considered is one involving the jurisdiction of a federal court, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). Thus, "[a] plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova, 201 F.3d at 113.

B. Motion to Dismiss

Rule 12(b)(6) provides that a cause of action shall be dismissed if a complaint fails "to state a claim upon which relief can be granted." FED.R. CIV. P. 12(b)(6). Thus, "[t]o survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)).*fn4 "A court's task in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." AmBase Corp. v. City Investing Co. Liquidating Trust, 326 F.3d 63, 72 (2d Cir. 2003) (internal quotation marks and citation omitted). Therefore, in reviewing a motion to dismiss, a court "must accept the facts alleged in the complaint as true and construe all reasonable inferences in [the plaintiff's] favor." Fowlkes v. Adamec, 432 F.3d 90, 95 (2d Cir. 2005) (citation omitted).

IV. Discussion

A. Eleventh ...


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