Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wilson v. Wilson-Polson

September 23, 2010

DWAYNE L. WILSON, PLAINTIFF,
v.
MAYELA WILSON-POLSON, ELISA BARNES, IN HER INDIVIDUAL AND OFFICIAL CAPACITIES AS COURT-APPOINTED GUARDIAN AD LITEM, CAROL J. GOLDSTEIN, IN HER INDIVIDUAL AND OFFICIAL CAPACITIES AS COURT ATTORNEY REFEREE FOR FAMILY COURT OF THE STATE OF NEW YORK, AND OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF NEW YORK DEFENDANTS.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.

MEMORANDUM OPINION AND ORDER

Pro se Plaintiff Dwayne L. Wilson asserts claims pursuant to 42 U.S.C. § 1983 against his ex-wife Mayela Wilson-Polson, court-appointed guardian ad litem Elisa Barnes, Family Court Attorney Referee Carol J. Goldstein, and the Office of the Attorney General for the State of New York ("OAG"). Wilson alleges that these Defendants conspired to violate and violated his constitutional rights by denying him a relationship with his daughter.

All defendants have moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6). For the reasons stated below, the Defendants' motions to dismiss will be GRANTED, and the Complaint will be dismissed in its entirety without leave to amend.

BACKGROUND

On March 14, 2008, Defendant Wilson-Polson instituted a divorce action against Plaintiff Wilson in New York Supreme Court, New York County, seeking sole legal and physical custody of their daughter Elisha with reasonable visitation rights for Wilson. (Cmplt., Ex. B (Verified Cmplt. Action for Divorce))*fn1 A Special Referee subsequently entered a Judgment of Divorce on October 10, 2008, granting Wilson-Polson sole physical custody and sole legal custody of their daughter with reasonable visitation for Wilson. (Cmplt. Ex. B (Judgment Divorce))

On October 21, 2008, Wilson-Polson initiated a Family Offense Petition against Plaintiff for "attempted assault, aggravated harassment, harassment, disorderly conduct, menacing, reckless endangerment, stalking, and criminal mischief." (Cmplt., Ex. A (Fam. Offense Pet.)) In the petition, Wilson-Polson requests, inter alia, that the court enter an order of protection requiring Wilson "not to menace, harass and/or assault her or her child," "not to interfere with the care of her daughter," and to "stay away from her, her child, her home, her daughter's school, her job and/or her daughter's dance class and/or violin class." (Id.) On November 25, 2008, the Family Court for New York County entered an ex parte Temporary Order of Protection, expiring January 5, 2009, granting Wilson-Polson's petition. (11/25/08 Temp. Order Prot. at 1-2, Wilson v. Wilson, No. O-11307-08 (N.Y. Fam. Ct. Nov. 25, 2008)).

On December 29, 2008, Wilson-Polson was summoned to appear at a hearing on January 5, 2009, in New York County Family Court before Referee Carol J. Goldstein to answer Wilson's Petition for Modification of an Order of Another Court of Visitation. (Cmplt., Ex. A (Summons)) Wilson's petition requested visitation with his daughter on alternate weekends, three-day weekends where applicable, half the summer, alternate holidays, and dinner one night a week. (Pet. for Mod. of Order, Wilson v. Wilson, No. V-16518-08/08A (N.Y. Fam. Ct. Dec. 29, 2008))

On January 5, 2009, Wilson and Wilson-Polson appeared before Referee Goldstein and agreed by stipulation to the Family Court Order referring the Family Offense Petition and Wilson's Petition for Modification of an Order of Another Court of Visitation to Referee Goldstein to hear and determine. (Anspach Decl. ¶ 7, Ex. 1 (Stipulation of Parties))On January 5, 2009, the Family Court appointed Defendant Elisa Barnes guardian ad litem for Wilson and Wilson-Polson's daughter for purposes of Wilson's Petition for Modification. (Cmplt. ¶ 6; Barnes Decl. ¶ 3)

Wilson entered a special appearance in Family Court on April 27, 2009, challenging the jurisdiction and authority of Referee Goldstein on the grounds that she had "never filed an oath [of] office since January 1979 up to March 2009, thereby breaking New York State Law, and rendering her assumed office vacant, void, unlawful, illegal, and all her actions a deception under color of law and action[s] without jurisdiction." (Spec. Appearance, at page 4, Wilson v. Wilson, O-11307-08, V-16518-08/08A (N.Y. Fam. Ct. Apr. 27, 2009)) Wilson attached a certification from Norman Goodman, County Clerk and Clerk of the Supreme Court of New York County, indicating that he found no "Oath of Office" in his records between January 1979 through March 2009 for Carol J. Goldstein. (Spec. Appearance (Oath of Norman Goodman dated Apr. 7, 2009))

On June 1, 2009, Referee Goldstein held a hearing on Wilson-Polson's Family Offense Petition and then entered an Order of Protection, expiring June 1, 2011, ordering Wilson to: (1) stay away from Wilson-Polson, their daughter, the home of Wilson-Polson and their daughter, Wilson-Polson's place of employment, their daughter's schools and other enrichment programs for their daughter; (2) refrain from communicating with Wilson-Polson and their daughter by mail, telephone, email, voicemail, or other means; and (3) refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, disorderly conduct, intimidation, criminal mischief, threats or any criminal offense against Wilson-Polson and their daughter. (Cmplt., Ex. A (Order of Prot.)) The Order noted that Wilson had "not been present in Court" during the hearing.*fn2 (Id.)

On November 30, 2009, Wilson, proceeding pro se, filed the instant action asserting -- pursuant to 42 U.S.C. § 1983 -- that Defendants Wilson-Polson, Barnes, Goldstein, and the OAG conspired to violate, and violated, his constitutional rights by denying him a relationship with his daughter. (Cmplt. ¶¶ 1, 8-12, 30-34, 36-40)

Wilson alleges that he was denied a relationship with his daughter "through a malicious scheme concocted by [Wilson-Polson] and with the assistance of Barnes and Goldstein." (Id. ¶ 1) In furtherance of this scheme, Wilson-Polson allegedly "deceptively, falsely, and maliciously" commenced a family offense petition to seek sole custody of her daughter and -- in support of that petition -- "began to hatch out a malicious plot to create fictional incidents of confrontation each time plaintiff would visit with his daughter." (Id. ¶¶ 8, 11) According to the Complaint, Wilson-Polson also would "make up instances of what she created out of her wild imagination of conflict and brutality and make up scenarios of fright and fear and falsify reports of 'being in danger of being assaulted' by plaintiff." (Id. ¶ 12)

Wilson further alleges that guardian ad litem Barnes, as part of the scheme, "made it her duty to facilitate a successful denial and prejudice of the plaintiff's fundamental parental rights by corroborating a patently false and malicious criminal accusation of abuse...." (Id. ¶ 6)

Wilson also contends that while "proceeding under color of law, office and authority," Referee Goldstein unlawfully used the fright and might of the New York Court Systems to authenticate and facilitate the malicious scheme created by [Wilson-Polson], without due process of law to plaintiff, and proceeding ex parte, performed actions that have denied and disparaged plaintiff of his fundamental right of fatherhood protected by the United States Constitution at the 14th Amendment....

(Id. ¶ 7) According to the Complaint, "it is common knowledge that the New York State [F]amily Court system has a practice of arbitrarily and capriciously denying [f]athers of African-American descent their parental rights...." (Id. ¶ 33)

Wilson seeks a declaratory judgment that Defendants have violated his Fourteenth Amendment rights by "depriving [him] of his Fundamental Right of fatherhood," and actual damages of $1 million each from Wilson-Polson, Barnes, and Goldstein. (Cmplt., Prayer for Relief)

DISCUSSION

On January 29, 2010, Goldstein and the OAG moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6), arguing, inter alia, that this Court lacks subject matter jurisdiction under the Eleventh Amendment and that Goldstein is protected by judicial immunity. (Goldstein/OAG Br. 1-2) On February 3, 2010, Barnes, proceeding pro se, also moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6). (Docket No. 13) Wilson-Polson, also proceeding pro se, moved by letter to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.