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Donald Schoon and Ruby Schoon v. Elizabeth R. Berlin

March 23, 2011

DONALD SCHOON AND RUBY SCHOON, PLAINTIFFS,
v.
ELIZABETH R. BERLIN, COMMISSIONER OF OFFICE OF TEMPORARY DISABILITY ASST., MS. ELAINE DARBY, DIRECTOR OF RIDER CTR. #38, FRANK AGBI, SUPERVISOR OF FAIR HEARING UNIT AT RIDER CTR. #38, MS. MARTOS, FAIR HEARING LIAISON OF RIDER CTR., MS. DONNA GIBSON, LIAISON OF COMMUNITY AFFAIRS AT HRA CENTRAL COMPLAINT UNIT*FN1 DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

MEMORANDUM OPINION AND ORDER

The plaintiffs, Donald and Ruby Schoon, filed this action, pro se, alleging numerous claims arising out of various denials of public assistance benefits. Judge Kimba Wood dismissed each of the allegations and directed the plaintiffs to file an amended complaint regarding their due process claims arising from a June 2006 denial of public assistance food stamps.

The plaintiffs' Second Amended Complaint (the "SAC") alleges that several City employees and the State Commissioner of the Office of Temporary Disability Assistance ("OTDA"), violated (1) the Ninth and Fourteenth Amendments, (2) the "Expo Facto" Clause; (3) the "Human Rights Act"; (4) 42 U.S.C. §§ 1983 and 1985; and (5) 18 U.S.C. §§ 241 and 246. The plaintiffs request punitive damages pursuant to 18 U.S.C. §§ 241 and 246, declaratory relief pursuant to 28 U.S.C. § 2201, and reinstatement of their daughter's benefits.

The defendants, Elaine Darby, as Director of Rider Center #38, Frank Agbi, as Supervisor of the Fair Hearing Unit, Ms. Martos, as Fair Hearing Liaison of the Rider Center, and Donna Gibson, as Liaison of Community Affairs at HRA Central Complaint Unit (collectively, the "City Defendants"), and Elizabeth R. Berlin, as Commissioner of the OTDA (the "State Defendant"), move separately, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), to dismiss the SAC. In lieu of responding to that motion, the plaintiffs moved for summary judgment pursuant to Federal Rule of Civil Procedure 56.*fn2

I.

When presented with motions under both Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack of subject matter jurisdiction and Rule 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted, the Court must first analyze the Rule 12(b)(1) motion to determine whether the Court has subject matter jurisdiction to consider the merits of the action. See Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990); Abrahams v. App. Div. of the Sup. Ct., 473 F. Supp. 2d 550, 554 (S.D.N.Y. 2007), aff'd on other grounds, 311 Fed. App'x. 474 (2d Cir. 2009); see also S.E.C. v. Rorech, 673 F. Supp. 2d 217, 220 (S.D.N.Y. 2009).

In defending a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Procedure 12(b)(1), the plaintiff bears the burden of proving the Court's jurisdiction by a preponderance of the evidence. In considering such a motion, the Court generally must accept the material factual allegations in the complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiff's favor. Id.; Graubart v. Jazz Images, Inc., No. 02 Civ. 4645, 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006).

On a Rule 12(b)(6) motion to dismiss, the allegations in the complaint are accepted as true. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). In deciding a motion to dismiss, all reasonable inferences must be drawn in the plaintiff's favor. Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Twombly v. Bell Atl. Corp., 550 U.S. 544, 570 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

The pleadings and allegations of a pro se plaintiff must be construed liberally for the purpose of a motion to dismiss pursuant to Rule 12(b)(6). See McKithen v. Brown, 481 F.3d 89, 96 (2d. Cir. 2007); Weixel v. Bd. of Educ., 287 F.3d 138, 145-46 (2d Cir. 2002). Additionally, the submissions of a pro se litigant should be interpreted to "raise the strongest arguments that they suggest." Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); see also Kavowras v. N.Y. Times Co., 328 F.3d 50, 57 (2d Cir. 2003); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991); Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991).

II.

The defendants move to dismiss all the claims in the SAC for lack of standing, insofar as they are raised on behalf of the plaintiffs' daughter, Jacquelyn Schoon.*fn3

Under Federal Rule of Civil Procedure 17(c) a "non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child." Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990). As a result, the plaintiffs cannot assert the rights of their daughter.

While it is within this Court's power to appoint counsel to represent the daughter, the SAC, as discussed below, provides insufficient indicia that the claims are likely to be meritorious to justify appointment of counsel. See Berrios v. N.Y.C. Hous. Auth., 564 F.3d 130, 132-35 (2d Cir. 2009); Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123, 125 (2d Cir. 1998) (per curiam) (a court may properly decline to appoint counsel- even for a minor or incompetent person-"when it is clear that no substantial claim might be brought on behalf of such a party"), overruled on other grounds by Winkelman v. Parma ...


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