United States District Court, W.D. New York
Donna Mulvihill, Plaintiff, Pro se, Honeoye, NY.
For State of New York, Defendant: Gary M. Levine, LEAD ATTORNEY, New York State Office of the Attorney General, Rochester, NY.
DECISION AND ORDER
DAVID G. LARIMER, United States District Judge.
Plaintiff, Donna Mulvihill, proceeding pro se , commenced this action on May 24, 2013. The original complaint names a single defendant, the State of New York (" State" ).
Mulvihill's claims are generally based on certain actions of the Child Protective Services (" DPS" ) unit of the Ontario County Department of Social Services (" DSS" ) and its employees. Plaintiff alleges that those actions (which need not be recited for purposes of this Decision and Order) violated her Fourth Amendment constitutional rights. She also alleges claims under state law for intentional infliction of emotional distress, harassment, and defamation. Plaintiff seeks five million dollars in damages.
The State has moved to dismiss the complaint pursuant to Rules 12(b)(5) and (6) of the Federal Rules of Civil Procedure, on the grounds of insufficient service of process and failure to state a claim, respectively. The State contends that plaintiff failed to serve a copy of the summons along with the complaint, and that the State is immune from suit under the Eleventh Amendment to the United States Constitution.
Plaintiff then moved on June 6, 2013 for leave to file an amended complaint. (Dkt. #6.) The proposed amendment would not have altered plaintiff's substantive allegations, but would have substituted " NYS/DSS" for the State as the defendant. Plaintiff also sought to add as defendants Judge Craig Doran, Attorney Holly Adams, DSS/CPS director Matt Grant, CPS Director Rhonda Peterson and CPS case worker Russ Standish. In her accompanying response to the motion to dismiss (Dkt. #7), plaintiff also conceded that her claims against the State were barred by the Eleventh Amendment.
The State opposed the motion to amend (Dkt. #9), on various grounds, one of
which is that there is no such entity as " NYS/DSS" . Plaintiff then moved again for leave to file an amended complaint (Dkt. #11), this time seeking to name " Ontario County DSS" as defendant instead of NYS/DSS.
At the outset, I note that the State's original motion to dismiss is well founded. It is clear that plaintiff's claims against the State are barred under the Eleventh Amendment. See Will v. Michigan Dep't of State Police , 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Simmons v. Gowanda Corr. Facility , 13-CV-647, 2013 WL 3340646, at *2 (W.D.N.Y. July 1, 2013). See also Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (" Although the Amendment, by its terms, bars only federal suits against state governments by citizens of ...