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Milan v. Wertheimer

United States District Court, E.D. New York

September 2, 2014

CRYSTAL M. MILAN, Plaintiff,


SANDRA L. TOWNES, District Judge.

On March 19, 2014, plaintiff Crystal M. Milan ("Plaintiff' or "Ms. Milan"), proceeding prose, commenced this action in the United States District Court for the Southern District of New York (the "SDNY") on behalf of herself and her four children: English, India, Asia and Beyonce. The action was subsequently transferred to this Court which, by order dated July 2, 2014, and entered July 3, 2014 (the "Prior M&O"), granted Plaintiffs request to proceed in forma pauperis, dismissed the complaint, and granted leave to file an amended complaint within 30 days. Plaintiff has now filed an amended complaint dated July 30, 2014, but it fails to cure the deficiencies in the original complaint. Accordingly, the action is dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).


Plaintiffs original complaint in this action is described in detail in the Prior M&O, familiarity with which is assumed. In a nutshell, that pleading alleged that Plaintiffs four children were removed from her care in 2004 following complaints by Plaintiffs mother, defendant Mary Davis. The original complaint named Davis and four others-Nefredia Covington, Zenobia Parker, Denise Costanza, and Fred Wertheimer-as defendants, but did not indicate what actions or omissions by those defendants violated Plaintiff's constitutional or statutory rights. Rather, the complaint merely asserted that this Court had jurisdiction by virtue of violations of unspecified Constitutional rights.

The Prior M&O dismissed all claims purportedly made on behalf of Plaintiff's children on the ground that Plaintiff, who is not a lawyer, could not represent them. The remaining claims were dismissed for failure to state a claim, but Plaintiff was granted leave to file an amended complaint.

In early August 2014, Plaintiff filed five separate documents, each entitled "Amentment [sic] Complaint." One document (hereafter, the "Form") is a four-page form complaint which Plaintiff completed by hand and dated July 30, 2014. The caption on the first page of the Form lists Ms. Milan as the only plaintiff, but lists the same five defendants as the original complaint. The second document (the "Addendum") is a seven-page, double-sided, handwritten document which elaborated on allegations contained in the "Statement of Claim" section of the Form. The remaining three documents appear to be copies of (1) the order transferring this action from the SDNY to this Court; (2) the original complaint, slightly modified to correct spelling errors; and the Prior M&O.

The Factual Allegations in the Amended Complaint

The following facts are drawn exclusively from the Form and Addendum, the allegations of which are assumed to be true for purposes of this Memorandum and Order. Plaintiff's children were removed from her custody in 2004 (Addendum, p. 2A).[1] The children were placed with defendant Davis in Montgomery County, Pennsylvania, where they were assigned caseworkers. However, the Family Court of the City of New York, Law Guardians Denise Costanza and Fred Wertheimer, both New York lawyers; and the Seaman's Society for Children and Families, a Staten Island-based organization, continued to be involved in the case.

On September 30, 2004, Davis falsely told "the courts" that Plaintiff had left a telephone message in which she threatened to kill Davis (id., p. 3B). According to Plaintiff, Davis lied in order to obtain an order of protection against Plaintiff, and then claimed that she could not accommodate Plaintiff's visitation requests because the order prevented Plaintiff from visiting her home (id., p. 4A). As a result, Plaintiff was prevented from seeing her children for "a whole year" after their removal (id.). Davis also falsely told a Pennsylvania caseworker that Plaintiff did not want the children, while telling courts in New York that the children did not want to see Plaintiff (id.).

Because of Plaintiff's inability to visit the children, Pennsylvania caseworkers had the mistaken impression that Plaintiff was "parking" the children with her mother and "running the streets" (id.). For example, in November 2006, during her first visit with her children, Beyonce's caseworker, Mr. Cole, allegedly told Plaintiff, "[A]fter you done ran [sic] the streets for a whole year, now your [sic] tired and want your kids back" (id., p. 4B). Plaintiff, who had been working at a hospital emergency room before her children were removed and who was employed at the time of the conversation, attempted to tell Cole that he was mistaken (id., pp. 4B-SA). However, Cole did not believe Plaintiff and told her, "I think it's best for those children to remain in your mother['s] care" (id., p. 5A (brackets added)). After some "back and forth, " Cole told Plaintiff that she would never get her children back (id.).

Two other incidents occurred during the November 2006 visit. First, while Plaintiff was permitted to visit with her three daughters and to give them clothing and shoes, Plaintiffs son, English, was initially not present (id., p. SA). When Plaintiff inquired as to her son's whereabouts, Davis told Plaintiff that English had been told of Plaintiffs visit but did not want to see her (id., pp. SA-SB). That claim was disproven about a half-hour later, however, when English returned home and said that no one had told him of Plaintiffs visit (id., p. SB).

Second, Plaintiffs sister, India, offered Plaintiff a can of beer and attempted to induce Plaintiff to drink it in the presence of the children (id., pp. SB-6B). Plaintiff refused to accept the beer, asking, "India[, ] why [do] you keep on asking me to have something to drink when you know that I am not sup[p]ose[d] to be drinking" (id., p. 6B (brackets added)). Plaintiff subsequently noticed that there was another woman sitting behind her and, upon inquiring, learned that the woman was defendant Parker, another of Beyonce's caseworkers (id., pp. 6B-7A). Plaintiff was convinced that "[t]hey were trying to set [her] up" and asserts that Parker "has been trying to set [her] up ever[] since" (id., p. 7A (brackets added)).

Plaintiffs complaint also contains specific allegations regarding events which took place in 2009. After a court appearance before Family Court Judge Arnold Lim on January 21, 2009, Plaintiff was apparently permitted more extensive visitation rights, including the right to have one or more of the children come to New York for overnight visits (id., p. IA). Pursuant to this order, Plaintiff had a one-day visit on January 30, 2009, and an overnight visit on February 14, 2009 (id.). However, on February 16, 2009, a caseworker from the Seaman's Society told Plaintiff that Davis had called a "hotline" on February 14, 2009, claiming that she witnessed Plaintiff twisting Beyonce's wrist (id.). Davis expressed the view that it was "too dangerous for Beyonce" to proceed with any future visits (id.).

On April 21, 2009, the Seaman's Society called Davis to arrange for Beyonce to visit Plaintiff again. Although Judge Lim's order remained in effect, Davis claimed that defendant Costanza had told Davis not to bring Beyonce to New York because there would not be any more visits (id., pp. 1A-1B). According to Plaintiff, Costanza filed several proposed orders to show cause in an effort to have the visits stopped (Form, ¶ III(C)), including a proposed order filed on June 30, 2009 (Addendum, p. IA). Although Costanza never succeeded in her legal efforts, she nonetheless had the Seaman's Society and "a few other people believing that Judge Lim stopped [the] visits" (Form, ¶ IIl(C)). Plaintiff asserts that Costanza succeeded in preventing Plaintiff from having "a visit in two straight years" (id.). It is unclear when that two-year period took place, though Plaintiff ...

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