The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Victoria Schweitzer ("Victoria") filed the present action individually, and on behalf of her infant daughter Jordanna Schweitzer ("Jordanna") (collectively, "Plaintiffs"), against defendants Lisa Crofton ("Crofton"), Darlene Gelin ("Gelin"), Suffolk County Department of Social Services ("County DSS"), and Stony Brook University Medical Center ("SBUMC") (collectively, "Defendants"). Victoria alleges that twelve days after she gave birth to Jordanna at SBUMC, County DSS workers temporarily removed Jordanna from her custody without a prior court order and absent probable cause based upon her history of mental illness. Presently pending before the Court are the following three motions to dismiss: (1) a motion by Gelin and SBUMC (the "State Defendants") to dismiss the Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) and Rule 12(b)(6); (2) a motion by Crofton and County DSS (the "County Defendants") to dismiss the Complaint in part pursuant to Rules 12(b)(2) and (6); and (3) a separate motion by Crofton to dismiss the Complaint pursuant to Rule 4(m). For the reasons stated below, the motion by the State Defendants is granted; the motion by the County Defendants is denied in part and granted in part; and the motion by Crofton is denied.
The following summary of facts is taken from the Complaint.
In the Spring of 2005, Victoria suffered from bi-polar disorder and took prescription medication, namely Zyprexa and lithium, to stabilize her condition. She became pregnant and on April 26, 2005, was admitted to SBUMC due to complications with her pregnancy and high blood pressure. Victoria remained hospitalized and on May 16, 2005, gave birth to Jordanna who was born with elevated levels of lithium and neurological problems due to the lithium. Jordanna was placed in the Neo-Natal Intensive Care Unit ("NICU") where she remained for the length of her stay at SBUMC.
While at SBUMC, Victoria expressed "displeasure" in responding to numerous staff inquiries regarding her fitness to parent because she had a history of mental illness, which the staff interpreted as "agitation." (Compl. ¶ 34.) In addition, on two occasions, Victoria became alarmed and cried while holding Jordanna. The staff at SBUMC interpreted her crying as "symptomatic and stereotyped it as mental illness due to her history when, in fact, Victoria's behavior was merely an emotional reaction to new motherhood and concern over the child who was ill at birth." (Id. ¶ 51.)
The day after Jordanna was born, Gelin, a social worker and employee at SBUMC, visited Victoria and asked to speak to her parents about Victoria's ability to parent. Gelin later informed County DSS and Crofton, a County DSS caseworker, about her "concerns regarding [Victoria's] mental illness and her ability to care for Jordanna." (Id. ¶ 45.) Gelin "recommended that [County DSS] take steps to prevent [Victoria] from maintaining the custody and care of Jordanna." (Id. ¶ 46.)
Thereafter, Victoria was discharged from SBUMC and Jordanna remained hospitalized in NICU. On May 26, 2005, Crofton conducted an assessment of safety issues at Victoria's home to determine whether she could properly care for Jordanna. Following this assessment and absent a court order, on May 28, 2008, County DSS emergency service workers removed Jordanna from Victoria's custody pursuant to § 1024 of the New York Family Court Act by removing Jordanna from NICU and placing her in a foster home. Notice of the removal was delivered to Victoria's home that same day; Victoria refused to sign or consent to the removal.
On May 31, 2005, County DSS filed a neglect petition under New York Family Court Act, Article 10. On June 2, 2005, the Suffolk County Family Court held a hearing and ruled that the emergency removal of Jordanna was warranted. At this time, and allegedly under duress, Victoria consented to the temporary removal of Jordanna. Victoria feared that if she contested the removal, the process would be prolonged and her rights frustrated. Victoria's parents were awarded temporary custody of Jordanna and Victoria was granted supervised visitation.
On October 20, 2005, the Family Court ordered the petition adjourned in contemplation of dismissal and ordered further monitoring by County DSS pending a final custody determination. Victoria was awarded unsupervised visitation with Jordanna.
On June 6, 2006, the Family Court awarded joint custody to Victoria and her parents. The residential custody of Jordanna was awarded to Victoria's parents and Victoria was awarded unlimited and unsupervised visitation rights.
II. Claims Asserted in the Complaint
On January 10, 2008, Plaintiffs filed the instant Complaint seeking compensatory and punitive damages, attorneys' fees, and costs. The Complaint names Gelin and Crofton personally, County DSS, and SBUMC, and asserts the following ten causes of action:
(1) defendants Gelin and Crofton entered into a civil conspiracy to violate the civil rights of Victoria and Jordanna pursuant to 42 U.S.C. § 1983 ("Section 1983"); (2) defendant Crofton violated Jordanna's rights against unreasonable seizures under the Fourth Amendment and Section 1983; (3) an unnamed defendant violated Victoria's procedural due process rights under the Fourteenth Amendment and Section 1983 by removing Jordanna without a hearing and in the absence of probable cause to believe that Jordanna faced imminent danger; (4) defendant Crofton violated Victoria's and Jordanna's substantive due process rights under the Fourteenth Amendment and Section 1983; (5) (6) and (7) defendant County DSS violated Plaintiffs' substantive due process rights, Plaintiffs' procedural due process rights, and Jordanna's Fourth Amendment rights*fn1 ; (8) defendants County DSS and SBUMC violated Victoria's rights under Title II of the Americans with Disabilities Act ("ADA") by judging Victoria's fitness to care for Jordanna based on "stereotypic views of individuals with mental illness" (Compl. ¶ 99); (9) defendants County DSS and SBUMC violated § 504 of the Rehabilitation Act, 29 U.S.C. § 794, by judging Victoria's fitness to care for Jordanna based on "stereotypic views of individuals who suffer from mental illness" (Id. ¶ 101); and (10) defendants County DSS, Gelin, and Crofton engaged in a civil conspiracy to violate Victoria's civil rights under state law.
Before the Court are three motions. First, the State Defendants move to dismiss all claims asserted against them in their entirety, viz. the first, eighth, ninth, and tenth causes of action. Next, the County Defendants move to dismiss all claims asserted against Crofton based upon lack of service as well as the tenth cause of action in its entirety. Finally, Crofton has filed a separate motion seeking to dismiss all claims asserted against her based upon insufficient service.*fn2 For the reasons stated below, the State Defendants' motion is granted; the County Defendants' motion is granted to the extent that the tenth cause of action is dismissed; and Crofton's motion is denied.
I. Motion to Dismiss: Legal Standards
Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court has recently clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6).
First, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 550 U.S. at 562. Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Id. at 570.
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Id. at 555 (citations and internal quotation marks omitted).
More recently, in Ashcroft v. Iqbal, -- U.S. --, 129 S.Ct. 1937 (2009), the Supreme Court provided further guidance, setting forth a two-pronged approach for courts deciding a motion to dismiss. First, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." 129 S.Ct. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual assumptions." Id. Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555)).
Second, "[w]hen there are well-pleaded factual allegations a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950. The Court defined plausibility as follows:
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"
Id. at 1949 (quoting Twombly, 550 U.S. at 556-57) (internal citations omitted).
II. The County Defendants' Motions to Dismiss
The County Defendants move to dismiss the Complaint as against Crofton for lack of jurisdiction based upon a failure to serve. They also move to dismiss the tenth cause of action as against the County Defendants, a claim for civil conspiracy under New York law, based upon Plaintiffs' failure to file a Notice of Claim pursuant to § 50-e of the New York General Municipal Law. See, e.g., Poux v. County of Suffolk, No. 09 CV 3081, 2010 WL 1849279, at *12 (E.D.N.Y. May 4, 2010) ("Under New York law, service of a notice of claim upon a municipality, including a county, is a condition precedent to maintaining a tort action against the municipality or any of its officers, agents or employees acting within the scope of their employment.") (citing N.Y. Gen. Mun. L. §§ 50-e and 50-i(1); N.Y. County Law § 52). Plaintiffs concede that they failed to serve a Notice of Claim on the County Defendants and therefore agree that this claim should be dismissed as against the County Defendants. (Decl. of William M. Brooks ¶ 13, Dec. 19, 2008 ("Dec. 19, 2008 Brooks Decl.").) Accordingly, the tenth cause of action is dismissed as against the County Defendants. The Court now turns to the issue of service.
A. The County Defendants' Motions to Dismiss as to Crofton Based Upon Lack of Service
Rule 4(m) establishes a 120-day deadline for a plaintiff to serve defendants with process after filing a complaint. Fed. R. Civ. P. 4(m). Here, as set forth in greater detail below, it is undisputed that Plaintiffs did not serve Crofton within 120 days of filing the Complaint. Nonetheless, Plaintiffs argue that Crofton's claims should not be dismissed because: (1) Crofton waived the defense of insufficient process; (2) the period of time for Plaintiffs to serve Crofton was tolled pending this Court's decision on Plaintiffs' request to proceed in forma pauperis; (3) Crofton received actual and/or constructive notice of this lawsuit; and (4) good cause and/or equitable factors warrant excusing Plaintiffs' failure to serve. For the reasons that follow, the Court finds that Crofton did not waive the defense of insufficient service. However, because the Court finds that Plaintiffs are entitled to a ...