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Sister Lashon Harper v. New York Child Welfare Commissioners

July 26, 2012

SISTER LASHON HARPER PLAINTIFF,
v.
NEW YORK CHILD WELFARE COMMISSIONERS, ADMINISTRATION FOR CHILDRENS SERVICES, BROOME COUNTY DEPARTMENT OF SOCIAL SERVICES AND BROOME COUNTY CHILD PROTECTIVE SERVICES, DEFENDANTS, SISTER LASHAN HARPER PLAINTIFF
v.
JOHN DOES 1 - 10, DEFENDANTS.



APPEARANCES: OF COUNSEL: SISTER LASHON HARPER Plaintiff, Pro Se

The opinion of the court was delivered by: Norman A. Mordue, U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Presently before the Court are two actions (Case No. 3:12-CV-0646 and Case No. 9:12-CV-0735) commenced by the pro se plaintiff. Hon. David E. Peebles, United States Magistrate has prepared a Report-Recommendation and Order which recommends consolidation and dismissal of both actions for failure to state a cause of action with leave to replead. In lieu of filing objections to the Magistrate Judge's Report-Recommendation, plaintiff has filed a 186 page amended complaint (Dkt # 8) with 167 pages of exhibits. Subsequent to filing her amended complaint, plaintiff filed a motion (Dkt # 9) seeking "immediate custody" of her daughter and to "vacate" a "void judgment."

II. Factual and Procedural background

As an initial matter, the Court finds that the filing of the Amended Complaint rendered

moot the Report-Recommendation insofar as it consideration of the substance of the original two complaints. However, the Court adopts the findings of the Report-Recommendation concerning Magistrate Judge Peeble's determination of plaintiff's entitlement to IFP status.

The Court notes its obligation nonetheless to consider the sufficiency of the allegations set forth in plaintiff's amended pleading in light of 28 U.S.C. §1915(e). Section 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at any time if the court determines that -- . . . (B) the action . . . (I) is frivolous or malicious." 28 U.S.C. § 1915(e)(2)(B). Thus, the Court has a gatekeeping responsibility to determine that a complaint may be properly maintained in this district before it may permit a plaintiff to proceed with an action in forma pauperis. See id. Turning to the allegations in the amended complaint, they appear to be related to various encounters plaintiff had with ambulance personnel, health care providers, child and social welfare agencies, lawyers, judges, and other civil and law enforcement personnel in connection with the birth of her child and subsequent DSS and family court proceedings concerning custody and visitation with her child. In her extremely long, disjointed and rambling amended complaint, plaintiff provides few facts. The Court has reviewed the entire pleading and pieced together the following scenario from the information and various documents attachments thereto. It appears that plaintiff gave birth to a baby girl on or about June 24, 2011, either at Lourdes Hospital in Binghamton, New York or en route to said hospital in an ambulance. Plaintiff devotes a considerable amount of time in her amended complaint detailing the actions of an EMS worker in the ambulance which transported her to the hospital. Plaintiff states that this man, a blonde man named Adam, "rubbed her clitoris," allegedly to prevent excessive bleeding, and no one did anything to stop him although they knew what he was doing.

Plaintiff also alleges that personnel including nurses at the hospital were not prepared for her and that the room where she and her baby stayed was unsanitary. Plaintiff seems to allege medical malpractice on the part of the nurses, doctors and Lourdes Hospital itself.

It appears that plaintiff's child was removed from her custody very shortly after birth due to alleged neglect. Attached to the amended complaint is an Order of the Broome County Family Court dated March 30, 2012, indicating that all matters relating to neglect, custody and limited

visitation rights of her child were dismissed without prejudice. Also included, however, is a letter from plaintiff's attorney to the Broome County Family Court judge dated May 11, 2012, which purports to relate to an ongoing "trial" of an unsupervised visitation rights matter. Complicating matters further is the motion filed by plaintiff concerning her request for immediate custody of her daughter and an order vacating a "void judgment." In this motion, plaintiff asserts that her

daughter was "illegally kidnaped" by defendants on June 24, 2011, that a Broome County Family Court Judge is allowing Department of Social Services' ("DSS") personnel to be witnesses for plaintiff's baby's father. Plaintiff states that her visits have been illegally revoked and unannounced and that she is not certain where her child is. It is wholly unclear to the Court what plaintiff's actual status is vis-a-vis her child regarding custody and visitation rights.

There are documents attached to the amended complaint that shed some light on the DSS determination to bring neglect charges against plaintiff. In a December 14, 2011, letter from DSS to plaintiff, a caseworker advised plaintiff that a supervised visit with her daughter had been scheduled for December 20, 2011. The caseworker, Heather Denton, and her supervisor, both of whom are named as defendants in this lawsuit, advise plaintiff that she was expected to provide proper care for her child during the visit and that she could not be under the influence of drugs or

alcohol. The letter states that during plaintiff's last visits, the baby was scheduled to eat and plaintiff was "asked to feed her several times and refused." Ms. Denton wrote that she believed this was the reason that the baby cried throughout the entire visit. Ms. Denton also wrote that plaintiff would be required to face her caseworker during the supervised visit for safety reasons and not keep her back to Ms. Denton and the supervisor. The caseworker also ...


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