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Estate of M.D. v. State

United States District Court, S.D. New York

March 10, 2017

ESTATE OF M.D., by LOUIS DeCOSMO, Administrator, and J.D., a minor, by LOUIS DeCOSMO, his father and natural guardian, Plaintiffs,

          Michael D. Pomerantz, Esq. Marrone Law Firm, L.L.C. Philadelphia, PA Counsel for Plaintiff

          Robert L. Kraft, Esq. Counsel for Defendants the State of New York and New York State Office of Children and Family Services

          David L. Posner, Esq. McCabe & Mack LLP Counsel for Defendants Dutchess County, Department of Community and Family Services of Dutchess County, Robert Allers, Alison Sterling, and Monica Balassone

          Michael T. Cook, Esq. Cook, Netter, Cloonan, Kurtz & Murphy, P.C. Counsel for Defendants Ulster County, Ulster County Department of Social Services, and Michael Iapoce

          OPINION & ORDER


         Louis DeCosmo (“DeCosmo”), as administrator of the estate of M.D., and as father and natural guardian of J.D., a minor (“Plaintiffs”), bring this Action against Defendants the State of New York, New York State Office of Children and Family Services (“OCFS, ” and together with the State of New York, “State Defendants”), Dutchess County, Department of Community and Family Services of Dutchess County (“Dutchess DCFS”), Robert Allers (“Allers”), Alison Sterling (“Sterling”), Monica Balassone (“Balassone, ” and together with Dutchess County, Dutchess DCFS, Allers, and Sterling, the “Dutchess Defendants”), Ulster County, Ulster County Department of Social Services (“Ulster DSS”), Michael Iapoce (“Iapoce, ” and together with Ulster County and Ulster DSS, the “Ulster Defendants”), Kenneth Stahli (“Stahli”), and Katlin Wolfert (“Wolfert”), alleging violations of Plaintiffs' constitutional rights. (See Second Am. Compl. (“SAC”) (Dkt. No. 78).)[1] Plaintiffs also bring claims of negligence, assault and battery, wrongful death, and survival action under state law. (Id.) Before the Court are Motions To Dismiss on behalf of State Defendants, Dutchess Defendants, and Ulster Defendants (the “Motions”). (See Dkt. Nos. 84, 86, 94.)[2] For the reasons to follow, the Motions are granted.

         I. Background

         The following facts are taken from Plaintiffs' SAC and are assumed true for the purpose of resolving the instant Motions.

         A. Factual Background

         At the beginning of May 2014, DeCosmo, J.D., M.D., and Defendant Wolfert resided together in Poughkeepsie, New York. (SAC ¶ 25.) At the time, J.D. was four months old and Decedent M.D. was two and one-half years old. (Id.) The four had lived together since the birth of M.D. (Id.) Plaintiff DeCosmo, who is blind, was employed as a disc jockey at a local radio station and was an active parent to J.D. and M.D. (Id. ¶¶ 26-27.)

         For a period of time leading up to May 2014, DeCosmo and Wolfert's relationship “had deteriorated to the point where the couple was no longer close.” (Id. ¶ 26.) On May 1, 2014, a verbal argument occurred between DeCosmo and Wolfert and Wolfert “struck DeCosmo in the face with her fist.” (Id. ¶ 28.) Following the incident, Wolfert made an ex parte application to Dutchess County Family Court (“DCFC”) for a restraining order that would prohibit DeCosmo from entering their home. (Id. ¶ 29.) On May 5, 2014, DCFC granted Wolfert's application, (id. ¶ 30), and on May 12, 2014, DCFC entered an amended temporary restraining order that granted DeCosmo access to the home, if accompanied by law enforcement, for the purpose of retrieving his personal property, (id. ¶ 31). DeCosmo was not allowed, by virtue of a temporary restraining order, to continue to provide care to J.D. and M.D. (Id. ¶ 32.)

         As a result of the violent incident between DeCosmo and Wolfert, Defendants OCFS, DCFS, and Allers opened a child protective services (“CPS”) file in relation to M.D. and J.D. (Id. ¶ 33.)[3] The CPS file was assigned to Defendant Sterling, who was supervised by Defendant Balassone. (Id. ¶¶ 34-35.) Sterling visited the home and interviewed Wolfert twice a month from May to June 2014. (Id. ¶¶ 36-37.)

         In the beginning of June 2014, Wolfert began a relationship with Defendant Stahli. (Id. ¶ 38.)[4] During June 2014, Defendants Sterling and Balassone indicated in the CPS case file that Defendant Wolfert's home was safe for M.D. and J.D. (Id. ¶ 43.) Accordingly, Defendants Sterling and Balassone determined that the Dutchess CPS case file for M.D. and J.D. should be closed, (id. ¶ 46), and recommended against the provision of family support services, (id. ¶ 47).[5]

         Plaintiffs allege that this was a reckless decision and resulted from a “lack of proper training, the overburdened nature of the CPS system[, ] and the excessive caseload on social workers and supervisors.” (Id. ¶ 50.) According to Plaintiffs, these deficiencies were “part of a longstanding and widespread custom and/or practice that was known to Defendants State of New York, OCFS, Dutchess County, DCFS, and Allers, acting through high-level policy[]makers with final authority or so widespread that they should have known of such custom and/or practice of incomplete and inaccurate CPS investigations.” (Id. ¶ 53.)

         On or around July 6, 2014, Wolfert moved with M.D. and J.D. to Milton, New York, in Ulster County. (Id. ¶¶ 57, 60.)[6] Stahli also moved into Wolfert's new home with her children and became their sole caretaker while Wolfert worked during the day. (Id. ¶¶ 60-61.) During the following month, Wolfert and Stahli “engaged in a drug fueled pattern of abuse, physical battering[, ] and torture.” (Id. ¶ 62.) On August 5, 2014, an emergency medical technician and paramedic were called to Wolfert's home and encountered an unresponsive M.D. with visible bruising on his body. (Id. ¶ 63.) The paramedic attempted to perform life-saving measures on M.D., but they were unsuccessful. (Id. ¶ 64.) An autopsy performed on M.D. revealed that he had suffered internal bleeding from a lacerated pancreas and liver, brain injuries, a lacerated frenulum, a subdural hematoma, and a broken rib. (Id. ¶ 65.) The post-mortem examination also revealed the presence of heroin in M.D.'s body. (Id.)

         An examination of J.D. at the time of M.D.'s death revealed “a double ear infection, a 101 [degree] fever, severe eczema . . . and very inflamed nipples, with a hickey-type injury about two inches below the right nipple.” (Id. ¶ 71.) Following M.D.'s death, J.D. was removed from Wolfert's home and is currently in the custody of DeCosmo. (Id. ¶ 70.) On May 8, 2015, following a jury trial in Ulster County, Stahli was convicted of the murder of M.D. and is currently serving a sentence of 25 years to life in prison. (Id. ¶¶ 66, 73.)

         Plaintiffs assert nine counts against various Defendants for violation of Plaintiffs' rights under the Fourth and Fourteenth Amendments, supervisory liability, Monell liability, assault and battery, negligence, wrongful death, and survival action, (see Id. ¶¶ 78-132), seeking monetary and punitive damages, as well as interest, costs, and attorney's fees, (see id.).

         B. Procedural History

         Plaintiffs filed their initial Complaint on August 20, 2015. (Dkt. No. 1.)[7] Plaintiffs filed an Amended Complaint on September 1, 2015, (Dkt. No. 28), and the Second Amended Complaint on February 8, 2016. (Dkt. No. 78.) On March 28, 2016, State Defendants filed a Motion To Dismiss and accompanying memorandum of law, (Dkt. Nos. 84-85), and on the same day, Dutchess Defendants filed a Motion To Dismiss and accompanying papers, (Dkt. Nos. 86- 92). On March 29, 2016, Ulster Defendants filed a Motion To Dismiss and accompanying papers. (Dkt. Nos. 94-98.) On May 12, 2016, Plaintiffs filed oppositions to each Motion To Dismiss, (Dkt. Nos. 99-101), and State, Dutchess, and Ulster Defendants each filed a reply on May 26, 2016, (Dkt. Nos. 102-04).

         II. Discussion

         A. Standard of Review

         The Supreme Court has held that although a complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks omitted). Rather, a complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint, ” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face, ” id. at 570, if a plaintiff has not “nudged [his] claims across the line from conceivable to plausible, the[] complaint must be dismissed, ” id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” (second alteration in original) (citation omitted) (quoting Fed.R.Civ.P. 8(a)(2))); id. at 678-79 (“Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).

         “[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint, ” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and “draw[] all reasonable inferences in favor of the plaintiff, ” Daniel v. T & M Prot. Res., Inc., 992 F.Supp.2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted); see also Wang v. Palmisano, 157 F.Supp.3d 306, 317 (S.D.N.Y. 2016) (same).

         B. Analysis

         1. Plaintiffs' Claims Against State Defendants

         As noted, Plaintiffs allege that the “deficiencies in the CPS investigation . . . which brought about the death of M.D. and the injuries suffered by J.D. . . . were part of a longstanding and widespread custom and/or practice that was known to Defendants State of New York . . . [and] OCFS . . ., acting through high-level policy[]makers with final authority [who] deliberately chose not to pursue a different course of action.” (SAC ¶ 54.) Similarly, Plaintiffs aver that “the active and affirmative conduct of Defendants Alison Sterling and Monica Balasone were the result of decisions by Defendants State of New York . . . [and] OCFS . . ., acting through high-level policy[]makers with final authority and/or acquiescing to a longstanding custom and/or practice known to such high-level policymakers.” (Id. ¶ 55.) Plaintiffs further allege that during the final weeks of Decedent M.D.'s life, witnesses to the abuse committed by Defendants Wolfert and Stahli “called anonymous child abuse ‘tip lines' maintained by Defendants State of New York” and that despite receiving such information, “Defendant[] State of New York . . . did not initiate any CPS investigation or assign any caseworker.” (Id. ¶ 69.)

         In their Motion To Dismiss, State Defendants argue that “Plaintiffs' claims against State Defendants are barred by the Eleventh Amendment.” (See Mem. of Law in Supp. of State Defs.' Mot. To Dismiss 5 (Dkt. No. 85).) The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Amendment prohibits suits against a state in federal court unless the state consents or there has been a valid abrogation of its sovereign immunity by an act of Congress. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984). “[Section] 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability and which shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States.” Quern v. Jordan, 440 U.S. 332, 345 (1979); see also Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (affirming dismissal of § 1983 claims for damages against state on Eleventh Amendment grounds).

         State sovereign immunity extends to state agencies that constitute “arms of the state.” See N. Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189, 193 (2006); see also Jones v. N.Y. State Div. of Military & Naval Affairs, 166 F.3d 45, 49 (2d Cir. 1999) (holding that the Eleventh Amendment bars § 1983 suits against state agencies). Here, OCFS is properly characterized as an “arm of the state.” See Hale v. Mann, 219 F.3d 61, 67-69 (2d Cir. 2000) (granting immunity under the Eleventh amendment to OCFS in the context of a Family Medical Leave Act suit); Rivera v. Mattingly, 604 F.Supp.2d 634, 638 (S.D.N.Y. 2009) (finding official capacity claims against OCFS Commissioner barred by Eleventh Amendment).

         In response to State Defendants' Motion, Plaintiffs argue that “[t]he Eleventh Amendment . . . is not truly a limit on subject matter jurisdiction, but rather a block on the exercise of jurisdiction that still exists.” (Pls.' Resp. in Opp'n to Defs. State of New York and New York State Office of Children and Family Servs.' Mot. To Dismiss (“Pls.' State Opp'n”) 2 (Dkt. No. 101).) Plaintiffs offer no further explanation of this claim, whatever it is. Plaintiffs further assert that OCFS's assertions of immunity are unavailing because under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), a municipal agency is considered a “person” subject to suit, (Pls.' State Opp'n 2-3). As the Supreme Court made clear in Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989), “it does not follow that if municipalities are persons [under Monell] then so are States.” Id. at 70. “States are protected by the Eleventh Amendment while municipalities are not . . . and . . . [the] holding in Monell [was limited] to local government units which are not considered part of the State for Eleventh Amendment purposes.” Id. (citation and internal quotation marks omitted).

         Because New York State has not waived its Eleventh Amendment immunity, nor has Congress abrogated the state's immunity under § 1983, this Court lacks subject matter jurisdiction over Plaintiffs' claims against the State of New York and OCFS. ...

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