The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiffs Dawn Kaminski ("plaintiff" or "Kaminski")*fn1
and Marcus Kaminski (collectively "plaintiffs")*fn2
commenced this action against the Commissioner of Oneida
County Department of Social Services ("Commissioner"), the Oneida
County Department of Social Services ("DSS"), The Neighborhood Center
("Center"), and Charlene Wyslusaly.*fn3 Plaintiffs
bring federal claims pursuant to 42 U.S.C. § 1983 for civil rights
violations. The complaint includes claims for: due process violations
against all defendants by Kaminski; due process violations against all
defendants by Kaminski on behalf of her children; unlawful
imprisonment against all defendants brought by Kaminski on behalf of
her child G. K.-R.; and a claim by Kaminski for malicious prosecution
by the Commissioner and DSS. Plaintiffs also bring several state law
claims including prima facie tort, intentional infliction of emotional
distress, negligence, and unlawful imprisonment.
Defendants Commissioner and DSS moved for dismissal pursuant to Federal Rules of Civil Procedure ("Rule __") 12(b)(1) and (6) and for judgment on the pleadings pursuant to
Rule 12(c). The Center moved for dismissal pursuant to Rules 12(b)(1) and (6) and for summary judgment pursuant to Rule 56. Plaintiffs opposed and the Center replied. The motions were taken on submit without oral argument.
Kaminski is the mother of Marcus Kaminski, T. K-R, and G. K-R. In 2002, Kaminski relinquished custody of her three children for health reasons and they were placed in foster care. In June 2003, the three children were returned to Kaminski's care. In January 2004, DSS removed the children from her care because of neglect concerns. The children were placed in separate foster homes, and DSS hired the Center to provide counseling to the children.*fn4
After her children were removed, Kaminski initiated a number of proceedings against DSS and the Center in New York State Supreme Court, Oneida County ("Supreme Court") and Oneida County Family Court ("Family Court") to increase visitation with her children. Complaint, Dkt. No. 1, ¶ 18. Her requests were denied. Id. ¶ 19. She appealed those decisions, but her appeals were denied. Id. ¶ 20.
On May 4, 2007, Family Court terminated Kaminski's parental rights with respect to T.K.-R. pursuant to New York Social Services Law section 384-b. Order, Dkt. No. 33-2. Then, on December 10, 2008, Family Court terminated her parental rights with respect to G.K.-R. Id. Kaminski appealed both decisions. On May 1, 2009, the Appellate Division, Fourth Department affirmed the Family Court's termination of her parental rights with respect to T.K.-R. Id. On December 30, 2009, they affirmed the Family Court's termination of her parental rights with respect to G.K.-R. Needham Decl., Dkt. No. 61, Ex. A. Kaminski sought leave to appeal from the New York State Court of Appeals, but her request was denied. Id.
The Commissioner and DSS moved to dismiss all claims pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, Rule 12(b)(6) for failure to state a claim, and for judgment on the pleadings pursuant to Rule 12(c). The Center moved for dismissal of all claims for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). In the alternative, it moved for an order dismissing the children's claims because Kaminski lacks standing and for summary pursuant to Rule 56 on the negligence claim.
"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). When a defendant moves to dismiss on other grounds, such as Rule 12(b)(6), for failure to state a claim upon which relief can be granted, the court must consider the Rule 12(b)(1) motion first. Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., No. 10-CV-2594, 2011 WL 2638448, at *4 (S.D.N.Y. June 29, 2011).
To survive a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, - U.S. -, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1960 (2007)). A complaint is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonableinference that the defendant is liable for ...