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Rhee-Karn v. Burnett

United States District Court, S.D. New York

September 12, 2014

MAGGIE RHEE-KARN, individually and as the parent and natural guardian on behalf of SARAH KARN, Plaintiffs,
v.
MARVA A. BURNETT, as a state actor referee; EDWINA RICHARDSON-MENDELSON, as a state actor Administrative Judge for the New York City Family Court; ROSEMARY RIVIECCIO; STEPHANIE BRANDT; A. GAIL PRUDENTI, as Chief Administrative Judge of the Courts; OFFICE OF COURT ADMINISTRATION; and DOES 1-3, Defendants.

OPINION AND ORDER

J. PAUL OETKEN, District Judge.

Maggie Rhee-Karn ("Rhee-Karn"), individually and on behalf of her daughter, Sarah Karn ("Sarah"), brings this action pursuant to 42 U.S.C. § 1983 against the New York State Office of Court Administration ("OCA") and several individuals involved in a child custody dispute in New York County Family Court. Plaintiffs claim that Defendants have violated and continue to violate their constitutional rights under the First and Fourteenth Amendments by prolonging the proceedings for more than four years and conspiring to deprive Rhee-Karn of custody of her daughter without due process. Defendants have moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiffs have not plausibly alleged that they lack an adequate opportunity for vindication of their rights in state court or that special circumstances warrant intervention. Defendants' motions to dismiss are therefore granted.

I. Background

A. Factual Background

Unless otherwise noted, the following facts are alleged in the Second Amended Complaint (Dkt. No. 33 ("Am. Compl.")), and are assumed true for purposes of the instant motions.

On April 23, 2010, Rhee-Karn initiated an action in the New York County Family Court to gain full custody of her daughter, Sarah. On November 17, 2010, Sarah's father, Ken Karn ("Ken"), asked the court to divide custody evenly between himself and Rhee-Karn. The court granted his request. At the time, Rhee-Karn had primary custody of Sarah.

On August 19, 2011, the referee in the proceedings, Marva A. Burnett, held a hearing on the order. After receiving testimony from Ken, she decided: "I have not heard enough that makes me think... that I have to change this." (Dkt. No. 33 ("Am. Compl.") ¶ 25.) Immediately thereafter, the attorney for Sarah, Rosemary Rivieccio, stated: "I am concerned at this juncture there is information that Ms. Karn may relocate to yet a third apartment in a very short period of time." ( Id. ¶ 26.) Based upon this statement-and without hearing testimony from Rhee-Karn-Burnett reversed her prior determination and said that "there is enough concern over the history of this case and what I have heard to make me believe that I need to change the access schedule"; "err[ing] on the side of caution, " she modified Rhee-Karn's custody to day visits only on alternating weekends and every Wednesday. ( Id. ¶ 30.) Burnett then ordered an investigation by the Administration for Child Services ("ACS") and adjourned the hearing until October. In September 2011, ACS reported that Sarah preferred living with her mother and that no issues existed between the two. Notwithstanding this report, Burnett refused to continue the hearing and did not allow Rhee-Karn to testify or cross-examine Ken.

In late 2011, Rhee-Karn appealed Burnett's August 2011 order to the First Department of the New York Supreme Court's Appellate Division. The court dismissed the appeal on March 20, 2012 on the grounds that the order was non-final and thus not appealable as of right, and that neither the Family Court nor the First Department had given Rhee-Karn permission to appeal. Matter of Rhee-Karn v. Karn, 2012 N.Y. Slip Op. 02045 (1st Dep't Mar. 20, 2012).

On January 9, 2012, Rhee-Karn moved to consolidate the custody action with her divorce action in New York Supreme Court, arguing that matters would proceed more quickly in that forum. The court denied her motion, finding that she was at fault for the delay in Family Court because she had requested a forensic evaluation in February or March of 2011, which had not been completed until August 2011. The court also expressed concern that her "true motivation in seeking consolidation [was] to change the forum." (Dkt. No. 25, Ex. B.)

Over the course of the next year, Burnett issued several ex parte orders further restricting Rhee-Karn's access to Sarah. In December 2012, Plaintiffs initiated an action in the Southern District of New York substantially identical to the instant action. 12-CV-9354 (NRB). They voluntarily dismissed that action on February 5, 2013. (Dkt. No. 25, Ex. C.)

On January 15, 2013, based upon forensic evidence and the testimony of court-appointed psychiatrist Stephanie Brandt, Burnett continued an order limiting Rhee-Karn to supervised visitation. Brandt's report was "incompetent, " "deficient, " "inconsistent with the facts and the best interests of the child, biased against [Rhee-Karn] and based upon hearsay and fictions." Brandt was also influenced by a preexisting work and personal relationship with Rivieccio and Ken's counsel, Cheryl Solomon. (Am. Compl. ¶ 171.)

On February 14, 2013, Rhee-Karn filed a motion with the First Department seeking leave to appeal the January 2013 order. The court summarily denied the motion on May 28, 2013. ( Id., Ex. D.) This order and the March 20, 2012 order are allegedly "suspect and tainted" because Rivieccio did not disclose that she was a member of the Departmental Advisory Committee for the First Department. ( Id. ¶ 72.)

In a letter dated February 18, 2013, Rhee-Karn, proceeding pro se, complained about Burnett's actions to Edwina Richardson-Mendelson, Administrative Judge for the New York County Family Court, and Robert Mulroy, Deputy Chief Judge of the Family Court Magistrates. In her letter, she asserted that she would re-file her suit in federal court if they did not address her case. ( Id., Ex. C.) She did not receive a response.

On May 15, 2013, Rhee-Karn called Richardson-Mendelson's office to ask why she had not received a response to her February letter. She was told by an agent that a response "would not be appropriate" since Rhee-Karn had threatened to take legal action. ( Id. ¶ 104.) On July 9, 2013, Rhee-Karn, through counsel, wrote another letter to Richardson-Mendelson (as well as Burnett), again complaining of the delay and requesting immediate and consecutive trial dates. On July 11, 2013, she wrote a final letter-apparently without counsel-to ...


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