United States District Court, E.D. New York
For Plaintiff: John W. Ray, Esq., Vesselin Venelinov Mitev, RAY, MITEV & ASSOCIATES, Miller Place, New York.
For Defendants: Christopher Gatto, Esq., Assistant County Attorney, DENNIS M. BROWN, Suffolk County Attorney, Hauppauge, New York.
MEMORANDUM AND ORDER
LEONARD D. WEXLER, United States District Judge.
Before the Court is Defendants' motion to dismiss Plaintiff's Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the motion. For the following reasons, Defendants' motion is granted.
This case arises out of two separate Family Court actions in which the Plaintiff, Ajamu Uwadiegwu (" Plaintiff" ), was alleged to have neglected his two minor children, A.U., Jr. and A.U., by engaging in drug use and domestic violence with the children's mother on several occasions. (Gatto Decl., Ex. A, E.) Defendant Suffolk County Department of Social Services (" DSS" ) filed the initial Petition for Neglect on June 14, 2012. (Gatto Decl., Ex. A.)
A hearing on the DSS Petition for Neglect was held on June 15, 2012. (Gatto Decl., Ex. B.) In its Order dated that same day, the Family Court took a negative inference based on Plaintiff's refusal to take a drug test and noted that Plaintiff left court prior to the case being heard. (Gatto Decl., Ex. B.) The Court ordered the immediate removal of A.U., Jr. and A.A. to foster care and directed that there be no visitation as it would be detrimental to the best interests of the children. (Gatto Decl., Ex. B.)
By Order dated July 27, 2012, Plaintiff consented to the entry of a finding of neglect based on the incidences described in the neglect petition. (Gatto Decl., Ex. C.) The Family Court entered a finding of neglect against Plaintiff and directed that the children were to remain in foster care. (Gatto Decl., Ex. C.) The Family Court also directed Plaintiff to obtain a substance abuse evaluation and to attend and participate in both a parenting skills program and a domestic violence prevention program. (Gatto Decl., Ex. C.) Finally, the Family Court ordered that visitation was to be supervised by DSS. (Compl. ¶ 19; Gatto Decl., Ex. C.)
The Family Court issued another Order on January 15, 2013, by which it returned custody of A.U., Jr. and A.A. to their mother. (Gatto Decl., Ex D.) In that Order, the Family Court explicitly stated that the children were to have no contact with the Plaintiff. (Gatto Decl., Ex. D.)
On April 3, 2013, DSS filed a second Petition for Neglect against Plaintiff, this
time with respect to the minor child A.U. (Gatto Decl., Ex. E.) The Petition alleged that Plaintiff had failed to undergo a substance abuse evaluation and to attend and participate in both a parenting skills program and a domestic violence prevention program, as ordered by the Family Court in July 2012. (Gatto Decl., Ex. E.) For that reason, DSS alleged that A.U. would be at risk of harm if he were to remain in Plaintiff's care. (Gatto Decl., Ex. E.)
By Order dated May 7, 2013, Plaintiff consented to an order of derivative neglect being entered with respect to A.U. (Gatto Decl., Ex. F.) A.U. was released into the custody of his mother and Plaintiff was again ordered to obtain a substance abuse evaluation and to attend and participate in both a parenting skills program and a domestic violence prevention program. (Gatto Decl., Ex. F.) The Family Court further ordered that DSS shall provide supervised visitation for Plaintiff with A.U. (Gatto Decl., Ex. F.)
Plaintiff alleges that DSS failed to provide him with supervised visitation with his children, as ordered by the Family Court. (Compl. ¶ 22.) Plaintiff further alleges that instead, on or about July 8, 2013, DSS and Defendant John Harder facilitated and assisted in the surreptitious relocation of A.U., Jr. and A.U. to Jackson, Mississippi without his knowledge or consent. (Compl. ¶ ¶ 22-25.) To this date, the minor children remain in Mississippi. (Compl. ¶ 22.)
Plaintiff commenced the within action on May 21, 2014, pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his First, Fourth and Fourteenth Amendment rights by failing to provide him with court-ordered visitation with his children and by assisting or facilitating the relocation of his children to Mississippi. Plaintiff also asserts claims for municipal liability, violation of the New York State Constitution and violation of New York Social Service Law § 384-b[a]. Defendants now move to dismiss the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted.
I. Legal Standard