Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jones v. Nickens

United States District Court, E.D. New York

August 20, 2013


Page 476

[Copyrighted Material Omitted]

Page 477

For Plaintiffs: Michael J. Collesano, New York, N.Y.

For The County, Defendants: Arlene S. Zwilling, Suffolk County Attorney, Hauppauge, N.Y.

For Southampton Hospital, Defendants: Anthony Francis Barbiero, Joseph M. O'Connor of Bartlett, McDonough & Monaghan, LLP, Islip, N.Y.

For The Hollywood Nursery, Defendants: Steven F. Goldstein of Goldstein & Tanenbaum, LLP, Carle Place, N.Y.

For The Stony Brook Hospital, Defendants: Ross Neil Herman, New York State Attorney General's Office, New York, N.Y; Susan M. Connolly, New York State Attorney General's Office, Hauppauge, N.Y.

For Scriven, West, Grossman, Defendants: Eric B. Betron, John W. Hoefling, Shawn P. Kelly of Kelly, Rode & Kelly, LLP, Mineola, N.Y.

For Rubin, Defendant: Jennifer Lynn Larkin-Higgins of Geisler & Gabriele, LLP, Garden City, N.Y.

For Armondi, Zack, Defendants: Anthony Matturro of Matturro & Associates, Westbury, N.Y.


Page 478


JOSEPH F. BIANCO, United States District Judge.

Plaintiffs Roy A. Jones, Jr. (" Roy Jones" ), on behalf of himself and the Estate of Roy Jones III, and Marie Jones, as Administrator of the Estate of Roy Jones III (collectively, " plaintiffs" ), commenced this action against Corris Nickens, Jamie Robertson, the County of Suffolk (collectively, the " County defendants" ), Roy Burnham, Susan Masciello, Justine Bullock, Kimberly Cardaci, Bonnie Williams, Susan Rosenberg, Mira Rucando, Jin Wang, Dorrett Newell, Jonathan Kelvas, Ryan Koch, Karen Chang, Abram D'Amato, Dwight Lee (collectively, the " Stony Brook Hospital defendants" ), Southampton Hospital, Kevin Costello, Susan Corwith, Nancy Naughton, Patricia Pensa, Jennifer Concepcion Arline (collectively, the " Southampton Hospital defendants" ), Maria Thorner, Hollywood Nursery, Inc. (collectively, the " Hollywood Nursery defendants" ), Lawrence Rubin (" Rubin" ), Richard Scriven (" Scriven" ), Devin Grossman (" Grossman" ), Steven West (" West" ), Barry Armandi (" Armandi" ), Justin Zack (" Zack" ), and Pedro Jones (collectively, " defendants" ) pursuant to 42 U.S.C. § 1983 (" Section 1983" ) and the New York Social Services Law. Plaintiffs also bring claims under New York common law for negligence, medical malpractice, social worker malpractice, and wrongful death.

Specifically, plaintiffs allege that the actions or inaction of Suffolk County, various individual employees of the County's Department of Social Services, Stony Brook University Hospital, Southampton Hospital, Hollywood Nursery, and various individual physicians, contributed to the death of the decedent at the hands of his mother's boyfriend. Essentially, plaintiffs allege that the defendants failed to do enough to protect the decedent fro the threats of child abuse and maltreatment that he faced while living with his mother and her boyfriend.

Presently before this Court are multiple motions to dismiss the second amended complaint. The Southampton Hospital defendants, Hollywood Nursery defendants, Rubin, Scriven, West, and Grossman all move to dismiss the federal claims alleged against them, arguing that they are private entities and/or actors not subject to suit under Section 1983. The Stony Brook Hospital defendants also move to dismiss the federal causes of action under the theory that, based on controlling case law, plaintiffs have failed to state plausible due process claims against them. All of the moving defendants also urge the Court -- in the event it dismisses plaintiffs' federal claims -- to decline to exercise supplemental jurisdiction over the remaining state law claims. The Court notes that the County defendants (as well as Pedro Jones, Armandi, and Zack) have not formally moved to dismiss any of the claims at this time.

Page 479

For the reasons set forth in detail below, the Court grants all of the motions to dismiss with respect to plaintiffs' federal due process claims. The Southampton Hospital defendants, Hollywood Nursery defendants, and Rubin are private actors, and plaintiffs have failed to sufficiently allege that they were acting under color of state law at the time of the events in question. Accordingly, the Section 1983 due process claims brought against them cannot survive a motion to dismiss. As for the Stony Brook Hospital defendants, as well as West, Scriven, and Grossman (all three of whom are alleged to be affiliated with the Stony Brook University Hospital to a certain degree), plaintiffs have failed to state plausible substantive or procedural due process claims against them. Based on the Supreme Court's opinion in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), plaintiffs have no plausible substantive due process claim under the facts alleged (even accepting them as true and drawing all reasonable inferences therefrom). Moreover, under the framework established by the Second Circuit in Sealed v. Sealed, 332 F.3d 51 (2d Cir. 2003), for analyzing the type of procedural due process claim asserted in this case, as well as New York State case law interpreting the relevant statutory provisions, plaintiffs have failed to allege that they have a liberty or property interest subject to due process scrutiny. For these reasons, both plaintiffs' substantive and procedural due process claims cannot survive the Stony Brook Hospital defendants', Scrivens', West's, and Grossman's motions to dismiss. Accordingly, the federal claims are dismissed as against all moving defendants.

The Court denies all of the motions with respect to the request that it decline to exercise supplemental jurisdiction over the remaining state law claims. Given that the state law claims alleged against the moving defendants derive from a common nucleus of operative fact as the federal claims that remain in this case against the County defendants, Pedro Jones, Armandi, and Zack, it is proper at this juncture for the Court to exercise supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367.[1]

I. Background

A. Factual Background

The following facts are taken from the second amended complaint. These facts are not findings of fact by the Court. Instead, the Court assumes these facts to be true for purposes of deciding the pending motions to dismiss, and will construe them in a light most favorable to plaintiffs, the non-moving party.

Roy Antonio Jones, III (" decedent" ), the son of Roy Jones and Vanessa Jones, was

Page 480

born at Southampton Hospital, in Southampton, New York, on March 18, 2009. (Second Am. Compl. ¶ 54.) He passed away at Southampton Hospital on August 1, 2010. ( Id . ¶ 55.) His grandmother, Marie Jones, was granted Letters of Administration of his Estate by the Surrogate Court of the County of Suffolk on April 27, 2012. ( Id . ¶ 56.) The instant action is brought by the decedent's father, Roy Jones,[2] and his grandmother, Marie Jones.

1. The Orders of Protection and Vanessa Jones' Subsequent Custody of the Decedent

On June 4, 2009, Judge Joan M. Genchi of the Family Court of the State of New York, County of Suffolk, issued two orders of protection (1) preventing Roy Jones and Vanessa Jones from having physical contact with the decedent other than visitation supervised by the Suffolk County Department of Social Services (" DSS" ), and (2) directing Roy Jones and Vanessa Jones to refrain from " acts or threats of domestic violence that create an unreasonable risk to the health, safety or welfare of the decedent." ( Id . ¶ 59.)

Subsequent to the issuance of the orders of protection, Vanessa Jones moved back and forth with the decedent between her mother's home at the Shinnicock Indian Reservation in Southampton, New York, and a shelter in Huntington Station, New York. ( Id . ¶ ¶ 61-63.) DSS informed Roy Jones that, because of Vanessa Jones' constant movement, DSS was having trouble keeping a watch on the decedent. ( Id . ¶ 63.) DSS made no effort, however, to remove the decedent from the custody of Vanessa Jones, despite the orders of protection that had been entered against her. ( Id .) Moreover, on December 28, 2009, DSS approved a residence in Flanders, New York for Vanessa Jones and the decedent, even though the orders of protection allowed her only supervised visitation with the child. ( Id . ¶ 64.)

At some point in time, Roy Jones (the father of the decedent) was incarcerated. ( Id . ¶ 65.) Vanessa Jones began to date, and later jointly resided with, Pedro Jones (having no relation to the decedent or to plaintiff Roy Jones). ( Id . ¶ 65.) The decedent was living with Vanessa Jones when Pedro Jones moved in. ( Id .)

2. The Events Leading to the Decedent's Death

At various points in time, the decedent " suffered physical injuries, said injuries indicative of child abuse, maltreatment and/or neglect, and was seen on multiple occasions suffering from same by doctors, nurses, agents, employees and servants of Hollywood Nursery, Inc., Southampton Hospital, Stony Brook Hospital and emergency medical technicians . . . ." ( Id . ¶ 66.) None of those medical professionals took action to remove the decedent from the custody and control of Vanessa Jones and Pedro Jones. ( Id . ¶ 67.)

For example, in November of 2009, the decedent was treated at Southampton Hospital for injuries indicative of physical abuse. ( Id . ¶ 69.) Then, on approximately May 25, 2010, the decedent was assaulted by Pedro Jones; Pedro Jones punched the decedent in the ribs. ( Id . ¶ 70.)[3] In June

Page 481

of 2010, Pedro Jones " hit" and " repeatedly punched" the decedent, causing the decedent to fall to the ground. ( Id . ¶ 73.) Following that incident, on approximately July 19, 2010, the decedent was taken to Southampton Hospital, and was then transferred and admitted to Stony Brook Hospital, where he was diagnosed with a fractured skull. Doctors also noticed other signs of physical abuse. ( Id . ¶ 75.) None of the medical professionals who transferred the decedent between facilities or tended to the decedent once he was admitted to Stony Brook University Hospital reported any findings of child abuse. ( Id . ¶ ¶ 76-77, 79.)[4] The decedent was discharged from Stony Brook University Hospital on July 20, 2010, and was placed back in the custody and care of Vanessa Jones and Pedro Jones. ( Id . ¶ 80.)

Roy Jones was interviewed by the County of Suffolk in July of 2010. He was asked about any dangers posed to the health and well-being of his child. Roy Jones " informed the County that his child was in danger while in the care of Vanessa Jones, but the County took no action." ( Id . ¶ 82.)

On approximately August 1, 2010, Vanessa Jones left decedent with Pedro Jones after the couple got into a heated argument. ( Id . ¶ 83.) Pedro Jones was under the influence of drugs at the time. ( Id . ¶ 82.) That evening, Pedro Jones shook, punched, fatally wounded, and murdered the decedent (sixteen-months-old at the time). The decedent was pronounced dead at Southampton Hospital at approximately 9:11 p.m. that night. ( Id . ¶ 86.) The Suffolk County Police Department arrested Pedro Jones following the death of the decedent. ( Id . ¶ 85.) The police took a statement from Pedro Jones, in which he admitted to assaulting the decedent multiple times throughout 2010. ( Id . ¶ ¶ 68, 85.) Pedro Jones has since been convicted for the murder of the decedent. ( Id . ¶ 85.)

B. Procedural History

Plaintiff Roy Jones, proceeding pro se at the time, filed the complaint in this action on May 17, 2011. By Order dated October 21, 2011, this Court stayed (1) the action for 60 days, pending plaintiff's application to the appropriate court to be appointed the representative of his son's estate, and (2) defendants' time to move to dismiss. On December 20, 2011, Michael Collesano (" Collesano" ) filed a notice of appearance with the Court on behalf of the plaintiffs. The Court held a telephone conference with the parties on April 11, 2012, at which time the Court further stayed the action and asked that Collesano inform the Court when permanent letters of administration were issued. Collesano filed letters of limited ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.