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Malcolm Bey, Francique Bey, Rein Bey, Drizzle Bey, Truth Bey, and Amicus Curiae Bey, In Propia Persona, Sui Juris v. State of New York

September 21, 2012

MALCOLM BEY, FRANCIQUE BEY, REIN BEY, DRIZZLE BEY, TRUTH BEY, AND AMICUS CURIAE BEY, IN PROPIA PERSONA, SUI JURIS, PLAINTIFFS,
v.
STATE OF NEW YORK, NASSAU COUNTY INC., NASSAU COUNTY FAMILY COURT, NASSAU COUNTY CHILD PROTECTIVE SERVICES, EDMUND DANE, SUZANNE LEAHEY, ELIZABETH MCGRATH, ROSALIE FITZGERALD, JOHN COPPOLA, ALTON WILLIAMS, DAVID SULLIVAN,
KATHLEEN RICE, DAVID GOTIMER, BRUCE COHEN, MERRY-LOU FERRO, CHERYL KREGER, WARREN FREEMAN, AND JANE DOE/JOHN DOE 1-100, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM & ORDER

Presently pending before the Court are the following motions: (1) Plaintiff Malcolm Bey's ("Mr. Bey") motions to "set aside and vacate" this Court's Order dated July 28, 2011 (Docket Entries 19, 27); (2) Mr. Bey's motion for a default judgment (Docket Entry 39); (3) a motion to dismiss the claims against Defendants State of New York, Nassau County Family Court, Judge Edmund Dane, Judge David Sullivan, Rosalie Fitzgerald, and John Coppola (the "State Defendants") (Docket Entry 25); (4) a motion to dismiss the claims against Bruce Cohen (Docket Entry 29); and (5) motions to dismiss the claims against Cheryl Kreger (Docket Entries 18, 32).*fn1 For the following reasons, Mr. Bey's motions to vacate and for a default judgment are DENIED and the motions to dismiss are GRANTED (with the exception of Defendant Kreger's letter-motion at Docket Entry 18, which is DENIED AS MOOT).

BACKGROUND

The Plaintiffs in this action are Mr. Bey; his wife, Francique Bey ("Mrs. Bey"), and their minor children, Rein Bey, Drizzle Bey, Truth Bey, and Amicus Curiae Bey (the "Bey Children"). Mr. Bey commenced this action pro se, on behalf of himself, his wife, and his children against Nassau County, Inc. [sic], Nassau County Child Protective Services ("CPS"), Suzanne Leahey, Elizabeth McGrath, Alton Williams, Nassau County District Attorney Kathleen Rice, David Gotimer, Merry-Lou Ferro, and Warren Freeman (collectively, the "County Defendants"), the State Defendants, Mr. Cohen, and Ms. Kreger arising out of petitions for child neglect that were filed in Nassau County Family Court in 2009 and 2010. The Court will briefly summarize the facts as stated in the Complaint--which are presumed to be true for the purposes of this Memorandum and Order--that are relevant to the pending motions.

On or around June 4, 2009, the Bey Children were questioned at school by CPS regarding suspected child abuse occurring in the Bey home. (Compl. ¶ 26.) The Bey Children were later taken to the police station for further questioning. (Compl. ¶ 26.) Mrs. Bey was arrested, and the Bey Children returned home with their father. (Compl. ¶ 26.) The following day, however, the Bey Children were removed from the home and placed in foster care (Compl. ¶¶ 27, 31), and on or around June 9, 2009 petitions for neglect were filed with the Family Court against Mr. and Mrs. Bey. (Compl. ¶ 31).

Shortly thereafter, CPS inspected the Bey home and, after finding it habitable for the Bey Children, returned them to their father. (Compl. ¶ 32.) A temporary restraining order was issued against Mrs. Bey, however, and she was only allowed supervised visitation with her children. (Compl. ¶ 32.) She was ordered to take parenting and anger management classes. (Compl. ¶ 34.) During this time, Mr. Bey "lost work" because he could not afford daycare, and he and his family were eventually evicted from their home. (Compl. ¶ 35.) In December 2009, the neglect petition against Mr. Bey was withdrawn. (Compl. ¶ 36.)

In April 2010, a new neglect petition was filed and a temporary restraining order issued against Mr. Bey. (Compl. ¶ 37.) During the next few months, the Bey Children were repeatedly questioned by CPS at school and visited by CPS twice a month at home. (Compl. ¶ 39.) On June 7, 2010, Mr. Bey attempted to file an "objection and counterclaim" in Family Court, but Defendant Coppola, the Family Court's Deputy Chief Clerk, refused to file it. (Compl. ¶ 40.) Mr. Bey was able to successfully file it, however, a few days later. (Compl. ¶ 41.)

Mr. Bey returned to Family Court several times during the next few months for appearances before Judge Dane related to the neglect petition. (Compl. ¶ 42.)*fn2 The proceedings were repeatedly adjourned, and Mr. Bey eventually told Judge Dane that he would not be returning to court. (Compl. ¶ 42.) Judge Dane warned him that failure to appear would result in a warrant being issued for his arrest. (Compl. ¶ 42.)

On October 19, 2010, Mr. Bey went to the Family Court to file papers and bumped into his court-appointed attorney, Mr. Cohen, leaving Judge Dane's chambers. (Compl. ¶ 44.) Mr. Cohen advised him that he had missed a court appearance that morning before Judge Dane and that it had been rescheduled for 2:00PM. (Compl. ¶ 44.) When Mr. Bey returned that afternoon, however, he was arrested for failing to appear that morning and incarcerated. (Compl. ¶ 44.)

In January 2011, Judge Dane extended the temporary restraining order issued against Mr. Bey and ordered that he be mentally evaluated. (Compl. ¶ 45.) Mr. Bey returned to court on March 15, 2011 for trial. CPS asked Mr. Bey to turn custody of the Bey Children over to CPS for one year, but Mr. Bey refused and his trial was adjourned to April 29, 2011. (Compl. ¶¶ 46. 48.) Around the same time, Mr. Bey requested copies of "everything in the court file." (Compl. ¶ 47.) Defendants Fitzgerald, the Family Court's Chief Clerk, and Coppola gave him some documents but not others. (Compl. ¶ 47.) Mr. Bey returned to court on April 29 and was asked to turn over custody of his children to CPS for six months, but he again refused. (Compl. ¶ 49.) His trial was adjourned to May 13, 2011. (Compl. ¶ 49.) On that date, he was again asked to give CPS custody of his children. (Compl. ¶ 50.) This time, Ms. Kreger, the Bey Children's appointed law guardian, "attempt[ed] to coerce" him to agree to it, but he again refused. (Compl. ¶ 50.) The trial was rescheduled to June 8, 2011 (Compl. ¶ 51), and on June 15, 2011, Ms. Kreger spoke with the Bey Children at school about the alleged neglect (Compl. ¶ 52).

Mr. Bey commenced this action on July 8, 2011, asserting claims for, inter alia, violations of the Constitution (e.g., due process and unreasonable search and seizure), various criminal statutes (e.g., genocide and kidnapping), international treaties and provisions of the United Nations' Charter, as well as a claim under the Alien Tort Claims Act and claims for "breech [sic] of trust and fiduciary duty," for "use of statutes[,] ordinances, rules and policies of the corporate state of New York[,] not a rule of law against indigenous man," and fraud. He is seeking monetary, declaratory, and injunctive relief. Mr. Bey simultaneously filed an application for a temporary restraining order and preliminary injunction which was denied by this Court on July 13, 2011.*fn3

On July 28, 2011, this Court entered an Order that:

(1) reminded Plaintiffs that pursuant to Rule 4(m) of the Federal Rules of Civil Procedure they had to serve process on Defendants by November 7, 2011 or their Complaint would be dismissed; (2) advised Plaintiffs of their duty to keep the Court informed of any change of address; and (3) warned Plaintiffs that the claims brought on behalf of the Bey Children would be dismissed without prejudice unless counsel entered a notice of appearance on their behalf within thirty days. (Docket Entry 7.) No counsel has filed a notice of appearance on behalf of the Bey Children to date.

Presently pending before the Court are the following:

(1) Mr. Bey's motions to vacate the July 28, 2011 Order,

(2) motions to dismiss filed on behalf of the State Defendants, Mr. Cohen, and Ms. Kreger, and (3) Mr. Bey's motion for a default judgment against all Defendants.*fn4 Plaintiffs have not opposed the motions to dismiss.

DISCUSSION

Before discussing the merits of the pending motions, the Court must briefly address a threshold issue. Pursuant to Rule 11(a) of the Federal Rules of Civil Procedure, "[e]very pleading, written motion, and other paper shall be signed by at least one attorney of record . . . or, by a party personally if the party is unrepresented." Since a non-attorney, pro se party may not represent another's interests, see Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998), every pro se plaintiff must sign a copy of the operative complaint in order to be a party to the action, see Lynch v. DeMarco, No. 11-CV-2602, 2011 WL 3418390, at *2 (E.D.N.Y. July 29, 2011). Here, only Mr. Bey signed the Complaint; therefore, he is the only proper plaintiff in this action. If the Court does not receive a copy of the Complaint signed by Mrs. Bey within thirty (30) days of the date of this Memorandum and Order, all of her claims will be dismissed.

I. Motion to Set Aside and Vacate

On September 19, 2011, Mr. Bey filed a motion requesting that the Court "take mandatory judicial notice that the order dated July 28, 2010 [sic], signed by Judge Joanna Seybert is inconsistent with Stare decisis [sic] Supreme Court Ruling [sic] Winkleman v. Parma Central School District, 550 U.S. 516 (2007)" and "set aside and vacate [this] void order." (Docket Entry 19.) Mr. Bey filed a similar (albeit less clear) motion to "take mandatory judicial notice" and "set ...


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