The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge
In accordance with 28 U.S.C. §636(c), the parties have consented to jurisdiction by a United States Magistrate Judge .*fn1 Before me is defendants' motion to dismiss the Complaint pursuant to Fed. R. Civ. P. ("Rule")12(b)(6) . For the following reasons, the motion is granted, without prejudice to the filing of an Amended Complaint.
Plaintiff commenced this action pro se seeking relief pursuant to 42 U.S.C. §1983, alleging "religious discrimination" as a result of defendants' interference "with familial religious practice by isolating plaintiff's child an [sic] giving her food to eat during fasting hours and undermining plaintiff's parental rights". Complaint , p. 1, Nature of Suit.*fn2 Her first claim alleges that on March 3, 2010 "Kristina Lesh (principal) was notified via written communication that Vashti Meadows was participating in a 7am- 4pm fast and to please excuse her from the cafeteria due to religious reasons. Ms. Lesh called plaintiff demanding additional information. Plaintiff cited civil rights and stated she would only provide Ms Lesh with church confirmation of the fast. Ms. Lesh agreed but on that same day called CPS". Id., First Claim.
Plaintiff also alleges that "Ms. Lesh has continued to defy plaintiff and has continued to circumvent plaintiff from picking up child during lunch by removing her from class time, isolating her and presenting her with food". Id., Second Claim. According to plaintiff, this conduct violated her "freedom of religion". Id., p. 4. Plaintiff seeks monetary and injunctive relief. Id., p. 5, Summary of Relief.
In moving to dismiss the Complaint, defendants argue that plaintiff "fails to show any conduct or deprivation of rights guaranteed by the Constitution or by federal law. Further, Plaintiff fails to allege that anyone was acting under the color of law". Defendants' Memorandum of Law [4-3], pp. 2-3. In response to defendants' motion, plaintiff submits a April 23, 2010 letter from the American Center for Law & Justice ("ACLJ") opining that "Tapestry's actions clearly violated Vashti's constitutionally protected right to free expression of religion and free speech". Plaintiff's Response , letter, p. 4.
A. Plaintiff's Standing to Sue
Although defendants do not question plaintiff's standing to bring this action, I must raise the question on my own if I have any doubts in that regard. "The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of the jurisdictional doctrines". FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230 (1990).
"To have standing to pursue a claimed violation of the Free Exercise Clause, a plaintiff must allege that her own 'particular religious freedoms are infringed.'" Altman v. Bedford Central School District, 245 F.3d 49, 71 (2d Cir.), cert. denied, 534 U.S. 827 (2001) (quoting School District of Abington v. Schempp, 374 U.S. 203, 224 n. 9 (1986). As an exception to this rule, courts generally recognize that parents have standing to challenge conduct impinging on their right to control the religious upbringing and training of their children. See, e.g., Fleischfresser v. Directors of School District 200, 15 F.3d 680, 684 (7th Cir. 1994) ("One aspect of the religious freedom of parents is the right to control the religious upbringing and training of their minor children . . . . In this case, the parents have a direct, personal right to direct their children's religious training . . . . Therefore, the parents have standing to bring this claim as well"); School District of Abington Township, Pa. v. Schempp, 374 U.S. 203, 225 n. 9 (1963).
However, not all parental relationships confer such standing. See Elk Grove Unified School District v. Newdow, 542 U.S. 1, 14-18 (2004) (holding that a parent who lacked legal custody of his daughter did not have standing to pursue an Establishment Clause claim arising from the recitation of the Pledge of Allegiance in his daughter's classroom). Although the Complaint alleges that Vashti Meadows is plaintiff's "child", it does not directly allege that plaintiff has legal custody of her.
Since I am in any event recommending that the Complaint be dismissed with leave to replead, plaintiff will have the opportunity in her Amended Complaint to clarify whether or not she has legal custody of Vashti Meadows. See Multistack LLC v. Arctichill Inc., 2006 WL 510506, *6 (S.D.N.Y. 2006) (granting plaintiffs leave to replead to cure a standing defect).
"When, as here, the complaint is filed by a pro se plaintiff, we construe the complaint liberally, interpreting it to raise the strongest arguments that it suggests." Caro v. Weintraub, __F.3d__, 2010 WL 3191353, *2 (2d Cir. 2010). Moreover, "the court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any ...