United States District Court, N.D. New York
LIONEL RICHARDSON, on behalf of himself and N-Minor, Plaintiff,
DENNIS J. PACKARD, Comm'r of N.Y.S. Dep't of Soc. Serv.; JEAN M. NICHOLAS, Supervisor A, N.Y.S. Child Protective Serv.; and CASSIE McCRACKEN, Child Protective Case Worker, Defendants.
LIONEL RICHARDSON Plaintiff, Pro Se Cedar Hill, TX
GOLDBERG SEGALLA, LLP JONATHAN M. BERNSTEIN, ESQ. Counsel for Defendants Albany, NY
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Currently before the Court, in this pro se civil rights action filed by Lionel Richardson ("Plaintiff") against the three above-captioned New York State employees ("Defendants"), is Defendants' motion to dismiss Plaintiff's Complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 8.) For the reasons set forth below, Defendants' motion to dismiss is granted, and Plaintiff's Complaint is dismissed.
I. RELEVANT BACKGROUND
A. Plaintiff's Claims
Generally, liberally construed, Plaintiff's Complaint alleges that, between approximately February of 2011 and January of 2013, in Schenectady County, New York, Defendants permitted the mother of Plaintiff's minor child to move with their child from the State of New York to the State of Georgia, despite knowing that the mother had tested positive for drugs, thereby causing his child to be taken into custody by the State of Georgia (due to his mother's drug use), where he broke his leg and is kept from Plaintiff. (Dkt. No. 1, at 8-12.) Based on these factual allegations, Plaintiff's Complaint asserts the following six claims against Defendants: (1) a claim that they failed to comply with Sections 1024 and 1026 of the Family Court Acts by not petitioning the courts for a determination of the best interests of his child; (2) a claim that they neglected their duty to protect his child; (3) a claim that they denied Plaintiff to right to due process under both the United States Constitution and New York State Constitution; (4) a claim that they caused his child to be in foster care longer than necessary; (5) a claim that they denied Plaintiff his right to access the courts; and (6) a claim that they denied Plaintiff the care, custody and management of his child. ( Id .)
Familiarity with the factual allegations supporting these claims in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for the review of the parties. ( Id .)
B. Parties' Briefing on Defendants' Motion
Generally, in support of their motion to dismiss, Defendants assert the following six arguments: (1) Plaintiff has failed to allege facts plausibly suggesting the existence of a municipal policy or custom sufficient to render Defendants liable under Monell v. New York City Dep't of Soc. Servs. , 436 U.S. 658 (1996); (2) Plaintiff's claim under Sections 1024 and 1026 of the Family Court Acts is not actionable; (3) Plaintiff's claim that his child's three-day placement in foster care in Georgia (over which Defendants had no control) was too long is not actionable and actually contradicts his claim that his child should not have been returned to his mother's custody; (4) Plaintiff possesses no due process claim under the New York State Constitution where (as here) the remedy for such an alleged violation exists under the United States Constitution (and 42 U.S.C. § 1983), and Plaintiff's due process claim under the United States Constitution (which is essentially the same as his denial-of-access-to-the-courts claim under the United States Constitution) fails to allege facts plausibly suggesting that Defendants prevented Plaintiff from petitioning a New York State court for full custody of his son while he was in New York State; (5) in any event, based on Plaintiff's own factual allegations, Defendants are protected from liability as a matter of law by the doctrine of qualified immunity; and (6) all of Plaintiff's state-law claims should be dismissed under N.Y. Gen. Mun. Law § 50-e for failure to serve Defendants with a Notice of Claim before commencing suit. ( See generally Dkt. No. 8, Attach. 6 [Defs.' Memo. of Law].)
Generally, liberally construed, Plaintiff's response to Defendants' motion asserts the following four arguments: (1) Plaintiff "denies" (in a general manner) Defendants' failure-to-state-a-claim argument, qualified-immunity argument, and notice-of-claim argument; (2) Plaintiff "object[s]" to both Defendants' Notice of Removal and their motion to dismiss, based on the (asserted) untimeliness of those filings; (3) a municipal policy or custom exists because, "[a]s per [the] testimony of Susan Jeffords of the New York State Board of Parole[, ] [i]t's customary for Schenectady County Child Protection Service to allow a mother... [who is] [h]igh on [d]rugs to take [her] children from the State of New York to other States"; and (4) because Plaintiff's claim against Defendant Packard in his official capacity is the same as a claim against the State of New York, that claim is not subject to dismissal based on the doctrine of qualified immunity. ( See generally Dkt. No. 15 [Plf.'s Opp'n Memo. of Law].)
Generally in their reply, Defendants assert the following four arguments: (1) by failing to specifically address Defendants' arguments regarding various of his claims, Plaintiff has effectively abandoned those claims, which should therefore be dismissed; (2) both the removal of this action from state court to federal court and the filing of Defendants' motion to dismiss were untimely, because the Complaint was served on February 25, 2013, and March 11, 2013, Defendants filed their application for removal on March 14, 2013, and they filed their motion to dismiss on April 19, 2013 (before the filing deadline of April 23, 2013); (3) Plaintiff's reliance on "the testimony of Susan Jeffords" is misplaced because (a) the testimony does not carry preclusive effect due to the dissimilarity between the issues presented by it and the Complaint, and (b) the testimony does not constitute an admission given that Ms. Jeffords is alleged not to be an employee of the New York State Department of Social Services; and (4) in any event, Plaintiff has failed to allege facts plausibly suggesting how Defendants violated the United States Constitution by allowing the return of the child to his mother, as permitted by Sections 1024 and 1026 of the Family Court Acts, thus protected them from liability by the doctrine of qualified immunity. ( See generally Dkt. No. 13 [Defs.' Reply Memo. of Law].)
II. RELEVANT LEGAL STANDARDS
A. Legal Standard Governing a Motion to Dismiss for ...