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Licorish-Davis v. Mitchell

United States District Court, Second Circuit

May 20, 2013



EDGARDO RAMOS, District Judge.

Plaintiffs Tasha O. Licorish-Davis and Tyreek Davis (collectively, "Plaintiffs"), appearing pro se, bring this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Blythedale Children's Hospital ("Blythedale"), and various Blythedale employees (collectively, "Defendants"), alleging violations of the First, Fourth, Ninth and Fourteenth Amendments, as well as violations of 18 U.S.C. §§ 241 and 242. Complaint ("Compl.") Doc. 3. Pending before the Court is Defendants' motion to dismiss the Complaint. Doc. 31. For the reasons set forth below, Defendants' motion to dismiss is GRANTED.

I. Factual Background

The Court accepts Plaintiffs' factual allegations as true for purposes of Defendants' motion to dismiss.[1]

Plaintiffs' daughter, Aaliyah Davis ("Aaliyah"), was born on April 2, 2011 in Richmond, Virginia. Compl. at 5. On June 9, 2011, while visiting New York and staying at the apartment of Ms. Licorish-Davis's mother in Brooklyn, Aaliyah was burned in a "scald accident" while being bathed. Id. Plaintiffs allege that the apartment where the accident occurred was under construction at the time and "was in terrible condition." Id. Plaintiff Licorish-Davis rushed Aaliyah to New York Methodist Hospital ("Methodist Hospital"). Id. That same day, Aaliyah was transferred to the New York Presbyterian Weill Cornell Medical College ("Weill Cornell") burn center, where she stayed until her transfer to Blythedale on August 5, 2011. Id. Upon her admission to Methodist Hospital immediately following the accident, the hospital contacted the New York City Administration for Children's Services ("ACS"). Id. Plaintiffs allege that Methodist Hospital called ACS at the direction of Weill Cornell, despite the fact that Dr. Laudenbauch, who oversaw Aaliyah's care while at Methodist Hospital, stated that Aaliyah's injuries were the result of an accident. Id. Aaliyah was subsequently ordered into the custody of ACS, pursuant to a June 13, 2011 Removal Order issued by the Honorable Amanda White of the New York State Family Court, Kings County ("Family Court"). See Affidavit of Susan Murray ("Murray Aff.") Ex. 2.[2]

Plaintiffs allege that Aaliyah was transferred from Weill Cornell to Blythedale on or about August 5, 2011 for rehabilitation, notwithstanding the fact that Plaintiffs requested that she not be sent there because it was too far from their home and would be costly to travel to. Compl. at 5. Plaintiffs have been visiting Aaliyah in the hospital since she was first hospitalized and claim that on many occasions, they requested that Aaliyah be transferred to Virginia, where there is also a burn center and a pediatric rehabilitative hospital. Id. at 5-6. Sometime in August 2011, the night nurse supervisor informed Plaintiffs that Aaliyah was no longer in their custody, and was instead in the custody of the Commissioner for Children Services. Id. at 6.

Plaintiffs allege that they have requested on many occasions that they be permitted to get a second opinion from a burn specialist regarding Aaliyah's treatment and care and for the purpose of determining whether her burns were the result of an accident. Id. Plaintiffs further allege that a second opinion is necessary because of the negligent medical care Aaliyah has received. Id. Plaintiffs claim that Defendant Millicent Mitchell, M.D., told them that they could arrange an appointment for a second opinion that Blythedale would supervise. Id. Plaintiffs made an appointment at Staten Island University Hospital, but allege that they were met with great resistance by Defendants. Id. Specifically, Plaintiffs claim that Staten Island University Hospital has attempted on many occasions to contact Defendant Mitchell regarding Aaliyah's care, however, Blythedale has continuously refused to facilitate the second opinion, citing the fact that ACS is involved. Id. at 7. Plaintiffs allege in their opposition papers[3] that it is generally Blythedale's policy to allow patients or their parents to change facilities and/or to obtain second opinions from other doctors or hospitals. Pls.' Nov. 5, 2012 Mem. L. Opp. (Doc. 40) ("Pls.' 11/5/12 Mem. L. Opp.").

Plaintiffs further allege that Defendants Katey Walsh, the social worker assigned to Aaliyah; Susan Murray, Director of Social Work; and Dr. Mitchell fabricated information in order to get Plaintiffs' visits with Aaliyah restricted. Compl. at 6. Plaintiffs claim that the staff at Blythedale told ACS that Plaintiffs planned to "kidnap" Aaliyah in order to get a second opinion from another hospital. Id. Plaintiffs attached to their Complaint as Exhibit D a portion of a September 28, 2011 affidavit by Defendant Murray.[4] The affidavit states:

The parents have requested that Aaliyah be transferred to a different facility, and Blythedale sent referrals to Elizabeth Seton Pediatric Center, St. Mary's, and Rusk; yet, all facilities denied the referrals, as Aaliyah requires far more treatment than any of the facilities can provide.... [O]n one occasion, Ms. [Licorish-]Davis claimed that Aaliyah was scheduled for a second opinion at Staten Island University Hospital on September 27, 2011, yet provided no supporting documentation or information regarding such an appointment, and Aaliyah was not re-evaluated for a second opinion. In fact, due to [Blythedale's] concerns with the parents' behavior, and Mr. Davis' threats to remove Aaliyah from the hospital despite her current remand to ACS, we do not believe she should be removed from the hospital at any time in order to undergo a second opinion. Further, for these same reasons, we also believe that the parents' visitation with Aaliyah should be suspended for the period of time that she remains at Blythedale Children's Hospital.

Murray Aff. Ex. 3 § 6.

As of the date of the filing of the Complaint, January 20, 2012, Aaliyah was still receiving treatment at Blythdale. Compl. at 6. Plaintiffs argue in their opposition papers, however, that Aaliyah "has been cleared for discharge many times since [October] 2011... and is languishing in Defendant['s] hospital longer than medically necessary." Pls.' 11/5/12 Mem. L. Opp. 1. Pursuant to a March 22, 2012 Order issued by the Honorable Ilana Gruebel of the Family Court, on consent of all parties and counsel, Plaintiff Licorish-Davis was granted supervised visitation rights subject to the visiting hours of Blythedale and any medical needs of Aaliyah. Murray Aff. Ex. 4. Additionally, the Order provided that when Aaliyah is released from Blythedale to a foster home, a court conference will be scheduled to consider a schedule for visitation by Plaintiff Licorish-Davis. Id. According to a February 5, 2013 letter from Plaintiff Tyreek Davis to the Court, on November 8, 2012, Aaliyah received a second opinion from Dr. Michael Cooper at the Staten Island University Burn Center, who deemed her injuries the result of an accident. See Pls.' Feb. 5, 2013 letter (Doc. 48.)

Plaintiffs claim that Defendants use ACS as a "scare tactic" to violate the inalienable rights they have as parents, and that the basis of their action is the violation of Aaliyah's and Plaintiffs' constitutional right to obtain a second opinion regarding Aaliyah's injuries, to change doctors, and to have her transferred back to Virginia, her home state. Compl. at 7. Although Plaintiffs allege that they have parental rights and are currently fighting in court over this matter, they do not specify the nature or current status of those court proceedings. Id. Moreover, Plaintiffs do not state in the Complaint whether Aaliyah continues to be in the custody of ACS, however, Plaintiffs' February 5, 2013 letter to the Court indicates that Aaliyah continued to be in the custody of ACS and was in foster care at least as of the date of the letter. See Pls.' Feb. 5, 2013 letter.

II. Legal Standard on Motion to Dismiss

When ruling on a motion to dismiss pursuant to Rule 12(b)(6), district courts are required to accept as true all factual allegations in the complaint and to draw all reasonable inferences in the plaintiff's favor. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). However, this requirement does not apply to legal conclusions, bare assertions or conclusory allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order to satisfy the pleading standard set forth in Rule 8 of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. Id. at 678 (citing Twombly, 550 U.S. at 570). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Accordingly, a plaintiff is required to support its claims with sufficient factual allegations to show "more than a sheer possibility that a defendant has acted ...

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