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Daniel Marcel; Daniel Marcel, As Parent and Legal Custodian of Shaniya Heaven Marcel v. the United States of America

September 12, 2011

DANIEL MARCEL; DANIEL MARCEL, AS PARENT AND LEGAL CUSTODIAN OF SHANIYA HEAVEN MARCEL; DANIEL MARCEL, AS PARENT AND LEGAL CUSTODIAN OF DANIEL MARCEL, JR., A/K/A DANIEL MARCEL;
DANIEL MARCEL, AS PARENT AND LEGAL CUSTODIAN OF RUTH ONALISHA-RODRIGUEZ MARCEL, A/K/A RUTH MARCEL AND BABY GIRL PULLIN, PLAINTIFFS,
v.
THE UNITED STATES OF AMERICA;
THE STATE OF NEW YORK;
ANDREW MARK CUOMO, GOVERNOR OF THE STATE OF NEW YORK, IN HIS PERSONAL AND OFFICIAL CAPACITIES; FAMILY COURT OF THE STATE OF NEW YORK; HON. JUDGE DANIEL TURBOW, IN HIS PERSONAL AND OFFICIAL CAPACITIES; OFFICE OF CHILDREN AND FAMILY SERVICES FOR THE STATE OF NEW YORK; GLADYS CARRION, COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMILY SERVICES FOR THE STATE OF NEW YORK, IN HER PERSONAL AND OFFICIAL CAPACITIES; CITY OF NEW YORK; MICHAEL BLOOMBERG, MAYOR OF THE CITY OF NEW YORK, IN HIS PERSONAL AND OFFICIAL CAPACITIES; ADMINISTRATION FOR CHILDREN'S SERVICES FOR THE CITY OF NEW YORK; JOHN B. MATTINGLY, COMMISSIONER OF ADMINISTRATION FOR CHILDREN'S SERVICES FOR THE CITY OF NEW YORK, IN HIS PERSONAL AND OFFICIAL CAPACITIES; VANETTA WILLIAMS; ERICA BARBI; JAMIE ALBERT; NEW YORK FOUNDLING HOSPITAL; WILLIAM BACCAGLINI, ALSO KNOWN AS, BILL BACCAGLINI; PATRICIA HARVEY; MARGARET BECKER; LIYAN BAO; JODI KARSCH; ZENOLA POWELL, II; MARANGELY ORIHUELA-JONES; JESSICA ECHEANDIA; SHAKIA BROWN; ERWIN GODETTE, JR.; NYIALAH HIKEEM; SPOHNGELLERT LEINE; CHRIST RECTOR; MADELLE AMARO; MARGARITA ROLDAN; MARY CORYS; JACLYN PIEPRA; CHERYL ASHBY; JEREMIAH JAMES QUINLAN; JARED MARE BERLINER; DELANO CONNOLLY; GILBERT TAYLOR; AND, JOHN AND/OR JANE DOE #1-90., DEFENDANTS.



The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.

MEMORANDUM AND ORDER

Plaintiff, appearing pro se, filed the instant complaint pursuant to the Court's federal question jurisdiction raising claims under 2 U.S.C. §§ 1983, 1985, and 1986*fn1 and various state law claims. He files this action against thirty-seven named defendants and ninety John Doe defendants, including the United States, the state, the city, the mayor, the state family court, a state family court judge, state and city children and family agencies, the New York Foundling Hospital, and employees thereof, s court-appointed guardians, social workers, a foster parent and attorneys. He alleges statutory and constitutional claims arising out of a family court action involving neglect and termination proceedings and his children have been placed in foster care. Plaintiff seeks declaratory relief, dismissal of all claims against him and his children in state court, vacatur of state court findings of negligence or permanent neglect against him, damages and release of the children from defendants' custody and returned to his custody.

The Court grants plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and directs plaintiff to submit an amended complaint within thirty (30) days of the date of this order that properly sets forth his claims.

BACKGROUND

A. Statutory

In order to understand this case, some familiarity with the New York State statutory scheme for temporary and permanent removal of children from their parents or guardians (hereafter "parents") due to neglect or abuse is necessary. See generally Nicholson v. Scoppetta, 344 F.3d 154, 158--61 (2d Cir. 2003) (providing in-depth background on the Family Court Act). New York's Family Court Act ("FCA") grants the State the power to monitor and protect children, and in New York, this task is carried out by the Administration for Children's Services ("ACS"). Id. ACS not only investigates complaints, but can also initiate and prosecute child protective proceedings against parents. Id.

When ACS determines that some protective action is necessary, the N.Y. Fam. Ct. Act ("FCA") provides a spectrum of three procedures for temporary removal, depending on the urgency of the situation: removal without court order under § 1024, pre-petition temporary removal order under § 1022, post-petition temporary removal order under § 1027 without parental appearance at the hearing.

Permanent removal proceedings occur on a less expedited basis, and begin with the filing of a petition of neglect or abuse by ACS against the parent. The next step is a "fact-finding" hearing, which can involve parent, child, caseworker, and expert testimony, inter alia. Nicholson, 344 F.3d at 160--61. If the Family Court finds abuse or neglect by a preponderance of the evidence at the fact-finding hearing, a "dispositional hearing" is then held, at which the court has "wide latitude" to devise various long-term foster-care arrangements or to order a permanent termination of parental rights. Id.

B. Factual

The complaint, although one hundred and three pages long, is lean on facts. The crux of plaintiff's complaint is that he feels disenfranchised by the state court proceedings which have placed his children into foster care and may terminate his parental rights.

Plaintiff alleges that Shante Vanessa Pullin and he are the parents of Shaniya, Daniel Jr. and Ruth Marcel ("the children"). Complaint at ¶ 58. The children are each subject to family court neglect proceedings and were placed in foster care. Plaintiff alleges that this was done without notice to him or his consent, and in contravention of his efforts to regain custody of his children. See, e.g., id. at ¶ 59, 101. The children are also, apparently, the subject of permanent removal proceedings pursuant to Section 384-b of the Social Services Law of the State of New York. Id. at ¶ 104. The status of those proceedings is unclear from the complaint.

STANDARD OF REVIEW

Under 28 U.S. C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis action where it is satisfied that the action is "(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief."

To avoid dismissal, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will be considered plausible on its face "when the plaintiff pleads factual content that allows the court to draw reasonable inference that the ...


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